California Environmental Quality Act (CEQA)

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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

The Governor’s Office of Planning and Research (“OPR”) has spent five years drafting a comprehensive update to 30 sections of the California Environmental Quality Act (“CEQA”) Guidelines.[1] The updated text[2] (“Final Text”) ensures the Guidelines are consistent with recent court decisions, implements legislative changes, clarifies rules governing the CEQA process, and eliminates duplicative analysis. Several changes to the Guidelines address two hot button topics: global climate change and statewide affordable housing shortages. During the deliberative process, the Agency also released its “Final Statement of Reasons for the Regulatory Action Amendment to the State Guidelines” to give more history and context to each change to the Final Text.[3]


Continue Reading Five Years in the Making: California is One Step Closer to a Comprehensive Update to the CEQA Guidelines

State lawmakers passed over 1,200 bills this year, the most in more than a decade according to sources. Governor Brown signed 1,016 into law as of September 30th. Below is a summary of the bills signed into law regulating the planning and development of housing. The majority will take effect on January 1, 2019.
Continue Reading California Housing Legislation (2017-2018)

In July 2017, the California Supreme Court determined the federal Interstate Commerce Commission Termination Act of 1995 (49 U.S.C. § 10101 et seq.) (“ICCTA”) does not preempt the application of the California Environmental Quality Act of 1970 (Pub. Res. Code § 21000 et seq.) (“CEQA”), a state statute, to a state public entity railroad project on a rail line owned by that same entity, the North Coast Rail Authority (“NCRA”). Friends of the Eel River resolves a split among the California Courts of Appeal.[1] However, the decision may conflict with federal precedent and could eventually reach the Supreme Court. As the majority opinion and the dissent both emphasize, the decision creates a direct conflict with the federal Surface Transportation Board’s (“STB”) determination that ICCTA preempts any application of CEQA to California’s state-owned, high-speed rail project.[2] Thus, the dispute over CEQA’s application to High-Speed Rail may need to be resolved by the U.S. Supreme Court. Additionally, Friends of the Eel River introduces more legal complications for the planned $64 billion bullet train between Los Angeles and San Francisco, as it appears to require that project to comply with CEQA, which could lead to additional litigation.
Continue Reading Faceoff with Federal Government Possibly Looming Following California Supreme Court CEQA Ruling; Cal High Speed Rail Project Also Vulnerable

Cleveland National Forest Foundation, et al. v. San Diego Association of Governments (2017) __ Cal. 5th __, Supreme Court Case No., S223603

Judicial deference to a lead agency’s determination regarding the proper greenhouse gas (“GHG”) threshold for a project California Environmental Quality Act (“CEQA”) remains a swinging pendulum.  The California Supreme Court recently upheld the San Diego Association of Government’s (“SANDAG”) determination that the year 2050 statewide GHG reduction goals set forth in Executive Order S-3-05 (“Executive Order”) issued in 2005 did not create a CEQA threshold of significance an agency must follow.  However, the court did so for reasons different than SANDAG stated in the response to comments on the Environmental Impact Report (“EIR”) on proposed amendments to its Regional Transportation Plan (“RTP”).  In Cleveland National Forest Foundation, et al. v. San Diego Association of Governments (2017) __ Cal. 5th __, Supreme Court Case No., S223603, the court found that “SANDAG did not abuse its discretion in declining to adopt the 2050 goal as a measure of significance because the Executive Order does not specify any plan or implementation measure to achieve its goal.”  The EIR’s long-term GHG analysis adequately informed the public and agency, in part, because SANDAG summarized the Executive Order in the EIR’s regulatory framework section and disclosed the increase in GHG emissions in 2050 compared to the 2010 baseline.  An analysis of “Lessons Learned and Reaffirmed” by the case appears at the end of this post.Continue Reading High Court Upholds Long-Term GHG Emissions Analysis, But Warns Agencies to Keep Pace with Regulatory Advancements: Lessons from Cleveland National Forest Foundation v. SANDAG

Union of Medical Marijuana Patients, Inc. v. City of Upland (3/25/16, D069293)

In 2007, the City of Upland banned both fixed and mobile medical marijuana dispensaries from any zone within the City’s limits. Presumably this ban applied to mobile dispensaries delivering marijuana into the City from locations outside the City.  However, in 2013, the City adopted an additional ordinance expressly prohibiting deliveries by mobile dispensaries headquartered outside the City.  The Union of Medical Marijuana Patients, Inc., challenged the 2013 ordinance, arguing the City was required to undertake a preliminary review of environmental impacts under the California Environmental Quality Act prior to its adoption.  The Union asserted that the ordinance had foreseeable environmental effects, including travel by residents seeking medical marijuana outside the City and increased electrical use, water consumption and waste due to higher levels of indoor marijuana cultivation.  The Court of Appeal found that, because the 2013 ordinance merely restated the 2007 ordinance, it did not constitute a “project” under CEQA and was therefore exempt from review.  Additionally, the environmental impacts cited by the Union were too speculative for the 2013 ordinance to be considered a project.
Continue Reading Challenge to Ordinance Prohibiting Mobile Medical Marijuana Dispensaries Goes Up in Smoke

Paulek v. Western Riverside County Regional Conservation Authority (Anheuser-Busch, LLC, Real Party in Interest) (6/19/2015, 4th Civil No. B253935) (opn. modified on denial of rehearing, http://www.courts.ca.gov/opinions/documents/E059133M.PDF.)

In Paulek v. Western Riverside County Regional Conservation Authority, the California Court of Appeals, Fourth District, held that removal of the protected status from a parcel of land still needs to comply with the environmental review requirement of the California Environmental Quality Act (CEQA).  In doing so, the court concluded that the Western Riverside County Regional Conservation Authority’s (“Conservation Authority”) re-classification of land was a fundamental land use decision, akin to a change in zoning laws or a municipal general plan.  
Continue Reading Changing Protected Status of Land Requires CEQA Compliance

In Save Our Uniquely Rural Community Environment v. County of San Bernardino, __  Cal.App.4th ___, 2015 WL 1259781 (4th Dist., Div. 2, 2015) (SOURCE) , the Fourth District Court of Appeal affirmed the trial court’s decision to significantly reduce plaintiff Save Our Rural Community Environment’s (SOURCE) claim for attorney fees[1] from $231,098 to $19,176.  The Fourth District found that the court’s failure to provide an explicit analysis of its decision was not enough to indicate an abuse of discretion by the trial court.  The court determined reversal of the attorney fees award would require that the record contain some indication that the trial court had considered improper factors, or some evidence that the award had been snatched from “thin air.”
Continue Reading Abuse of Discretion Not Shown By Court’s Failure To “Show Its Arithmetic” in Significantly Reducing Claimed Attorney Fees in CEQA Litigation