California Environmental Quality Act (CEQA)

At the end of the 2020 legislative session, California Governor Newsom signed Senate Bill 288 (Wiener)[1] (SB 288) into law.  SB 288, amends the California Environmental Quality Act (CEQA), streamlining the environmental review process for: (i) specific transportation-related projects, including bus rapid transit projects, light rail service projects, construction or maintenance of charging or refueling stations for zero-emission buses; (ii) projects that improve customer information and wayfinding for transit riders, bicyclists, or pedestrians; (iii) city or county projects designed to minimize parking requirements; and (iv) similar transportation oriented projects.  Specifically, SB 288 designates these projects necessary to facilitate development of sustainable transportation alternatives and related infrastructure, encouraging broader use of sustainable transit throughout the state.  Due to this designation, SB 288 exempts these projects from CEQA review as categorical exemptions beginning January 1, 2021.  SB 288 is slated to sunset on January 1, 2030.  In addition, SB 288 extends the existing exemption for bicycle transportation plans (including restriping of streets and highways, bicycle parking and storage, signage, and related improvements to intersection operations) from the existing sunset date[2] to January 1, 2030.
Continue Reading SB 288: Sustainable Transportation and the “Road to Recovery” for Post-COVID Air Pollution and Unemployment Concerns

MAY 8, 2020 – UPDATE: The final version of the New Ordinance has been signed by Mayor Gracetti and takes effect May 12, 2020.

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California Senate Bill (“SB”) 899, introduced in March by Senator Scott Wiener and currently in the Senate Housing, Environmental Quality, and Governance and Finance Committees, would exempt eligible affordable housing projects and mixed use projects on property owned by religious institutions and nonprofit medical facilities from review under the California Environmental Quality Act (Pub. Res. Code § 21000 et seq.) (“CEQA”) and provide for other permit streamlining.  Eligible entities include nonprofit hospitals, diagnostic or treatment centers, rehabilitation facilities, and nursing homes, as well as religious institutions.  As Senator Wiener noted, “religious and charitable institutions often have land to spare, and they should be able to use that land to build affordable housing and thus further their mission.  SB 899 ensures that affordable housing can be built and removes local zoning and approval obstacles in order to do so.”  These eligible organizations may partner with a qualified nonprofit developer or local public entity to construct the affordable housing developments.
Continue Reading Proposed Legislation Aims to Boost Affordable Housing on Land Owned by Religious Institutions and Nonprofit Hospitals

On April 23, 2020, California Governor Gavin Newsom issued Executive Order N-54-20 (EO) which, in part, addresses an outstanding question related to the California Environmental Quality Act’s (CEQA) “public review” requirements, which quickly became problematic upon closure of the locations typically used to house and post CEQA-related documents.  These closures, which impact government buildings like the County Recorder’s Office, are just one of the many consequences of the COVID-19 pandemic and resultant stay-at-home orders issued in an attempt to safeguard the public and flatten the curve.  Under this EO, while the time periods for public review remain the same, all requirements related to public filing, posting, notice, and public access to draft and final documents set forth in CEQA and the CEQA Guidelines, are exempted and suspended for the next 60 days (until June 22nd), including the Notice of Preparation, Notice of Comment Period, Notice of Intent to Adopt an EIR, Negative Declaration/Mitigated Negative Declaration, Notice of Determination and Notice of Exemption[1] so long as certain substitute procedures are followed.
Continue Reading Digital CEQA: New Executive Order Creates An Alternative Path For Complying With CEQA Notice, Posting And Public Review Requirements

In the belatedly-published Environmental Council of Sacramento, et al. v. County of Sacramento (Cordova Hills, LLC, et al. – Real Parties-in-Interest) (2020) ____ Cal.App.5th ____,[1] the Third District Court of Appeal affirmed judgment against a slew of California Environmental Quality Act (“CEQA”) claims centered on Environmental Council’s and Sierra Club’s (collectively, “Environmental Council” or “petitioners”) contention that the project at issue included a component – a university – that is ultimately not likely to be built.  More specifically, petitioners contended that because the university was not likely to be built, the environmental impact report (“EIR”) prepared pursuant to CEQA was therefore insufficient for failing to analyze the project without the university and thereby understated project impacts to things such as air quality, climate change and transportation.
Continue Reading Failure to Include A No-Build Analysis in Project Description Does Not Violate CEQA

In rejecting a California Environmental Quality Act challenge to a mitigated negative declaration for conversion of a vacant apartment building into a 24-room boutique hotel (the “Project”), the Second District Court of Appeal affirmed the City of Los Angeles’s use of an existing conditions baseline when assessing housing and population impacts. The decision in Hollywoodians Encouraging Rental Opportunities (HERO) v. City of Los Angeles et al. (2019) ___ Cal.App.5th ____ indicates that the time for courts to address population displacement, and more specifically affordable housing, as a CEQA-cognizable impact is fast approaching.
Continue Reading Court of Appeal Rules HERO Cannot Save Previously Vacated Rental Units

On July 30, 2019, the Los Angeles City Council unanimously approved an update to the “Transportation” section of the City’s California Environmental Quality Act (“CEQA”) Threshold Guide.  City Council’s action has effectively updated the framework for evaluating traffic impact analysis to a vehicle miles traveled (“VMT”) metric in accordance with updated CEQA Guidelines section 15064.3 and Senate Bill 743.  Per the City’s Planning Department, by shifting to a VMT-centric analysis, the City will be better positioned to assess potential impacts on the City’s transportation system, as well as meet its climate change goals. Interestingly, while the City Council action is complete, there is still a bit of confusion at the City as to how the VMT metric will, in practice, be phased in for projects already in the planning process. 
Continue Reading Following Suit – City of Los Angeles Updates CEQA Guide to Include VMT Methodology Ahead of State-Imposed Deadline

In Sacramentans for Fair Planning v. City of Sacramento (2019) ___ Cal.App. 5th ___, the Third District Court of Appeal upheld the City of Sacramento’s use of a sustainable communities environmental assessment (“SCEA”) pursuant to the Sustainable Communities and Climate Protection Act (SB 375), rather than a more traditional CEQA document (i.e., an environmental impact report or mitigated negative declaration), when it approved the Yamanee development (the “Project”) as a transit priority project (“TPP”). The mixed-use Project comprised one floor of commercial space, three levels of parking, 134 residential condominiums and one floor of residential amenities, for a total of 177,032 square feet on a 0.44-acre site. The Project also included inconsistencies with the City’s general plan density and building intensity standards. The court rejected arguments that the City improperly utilized a regional transportation and greenhouse gas (“GHG”) reduction plan in approving the SCEA; or that the SCEA should have further analyzed the Project’s cumulative impacts, and not relied on tiering off past EIRs. The holding further affirms the innovative and beneficial use of SCEAs in streamlining environmental review for qualifying TPPs.
Continue Reading Sustainable Communities Environmental Assessment Upheld Under CEQA

The belatedly published South of Market Community Action Network v. City and County of San Francisco (2019) ___ Cal.App.5th ___ (“South of Market”), is the first published decision in which the court applies the principles articulated by the California Supreme Court in the recent Sierra Club v. County of Fresno decision (commonly referred to as “Friant Ranch”) regarding the standard of review for the adequacy of an EIR (discussed in detail here).

The challenged EIR in South of Market set forth two proposed schemes for a mixed‑use development (the “5M Project”) on a 4-acre site in downtown San Francisco: an “Office Scheme” and a “Residential Scheme.” Under both schemes, the overall gross square footage was substantially the same, with varying mixes of office and residential uses. Additionally, each scheme would result in new active ground floor space, office use, residential dwellings, and open space. Both schemes would also preserve and rehabilitate the Chronicle and Dempster Printing Buildings, demolish other buildings on site and construct new buildings ranging from 195 to 470 feet in height.

Petitioners alleged a litany of CEQA violations in their petition, including claims regarding traffic and circulation, open space, inconsistencies with area plans and policies, and the adequacy of the statement of overriding considerations. Applying existing law and specifically relying on Friant Ranch, the South of Market court looked to whether the EIR at issue contained the details necessary for informed decision-making and public participation. The court emphasized that when assessing the legal sufficiency of an EIR, perfection is not required as long as a good faith effort at full disclosure has been made. Contrary to the petitioners’ allegations, the court held this standard was met here, demonstrating that, in this case at least, Friant Ranch does not appear to have led to a significantly different approach to resolving the various CEQA challenges alleged in the petition for writ of mandate.

To avoid redundancy and for the sake of brevity, the remainder of this post will address in detail only the more novel and/or nuanced holdings of the court.
Continue Reading EIR for Downtown San Francisco Mixed-Use Project Upheld Under Supreme Court’s Newly Articulated Standard of Review

In Fudge v. City of Laguna (G055711), published on February 13, 2019, the Fourth District Court of Appeal joined the First and Sixth Districts by reaffirming the need for a litigant to wait for the California Coastal Commission’s (“Commission”) determination on the appeal of a coastal development permit (“CDP”) prior to initiating litigation.

The key takeaway here is that a local agency’s California Environmental Quality Act (“CEQA”) determination in cases where a CDP has been appealed is not final for purposes of adjudication if the Commission has not ruled on the appeal. While the exhaustion of administrative remedies doctrine is well established, this decision is unique in that it applies the doctrine even where a judicial challenge alleges only CEQA violations, providing insight into the relationship between CEQA and the Coastal Act. Moreover, this decision also addresses the extent to which the Commission’s standard of review is de novo.
Continue Reading CDP Applicant May Not Challenge Local Agency’s CEQA Decision on Coastal Development Permit While CDP Appeal to Coastal Commission Is Pending

In Sierra Club v. County of Fresno (S219783), the California Supreme Court unanimously reaffirmed that the substantial evidence standard of review does not always apply when a lead agency prepares an environmental impact report (“EIR”) for a development project. Rather, the court determined that the less deferential de novo standard applies if the EIR’s discussion of a potentially significant impact has been omitted or is factually insufficient. In other words, while a lead agency has considerable discretion as to the methodology and analysis it employs to analyze a potentially significant impact, an EIR must reasonably describe the nature and magnitude of the impact (i.e., include a meaningful explanation of why an impact is significant or not) if it is to survive judicial scrutiny. In County of Fresno, the court employed the de novo standard and held that the EIR’s air quality analysis was inadequate because it did not explain the connection between the project pollutants and negative health effects or explain why it could not make such a connection.
Continue Reading California Supreme Court Clarifies Scope of De Novo and Substantial Evidence Standards Of Review In CEQA Cases