California Environmental Quality Act (CEQA)

Berkeley Hillside Preservation v. City of Berkeley (2015) ___ Cal.4th ___, Case No. S201116

This week the California Supreme Court issued its long-awaited decision in the Berkeley Hillside case, which considered whether the City of Berkeley properly exempted a large single-family home on a hillside lot from CEQA review. The court’s lengthy opinion announced a new two-part test for the “unusual circumstances exception” to CEQA exemptions and the applicable standards of review. In doing so, the court not only reversed the First District Court of Appeal, but also resolved several other conflicting interpretations of the unusual circumstances exception. The case is important for agencies and developers because the new test will apply generally to categorical exemptions, and as discussed below, it suggests a strategy for defending against potential challenges to exemptions.
Continue Reading California Supreme Court Announces New Test for CEQA “Unusual Circumstances” Exception

Ventura Foothill Neighbors v. County of Ventura (12/15/14, 2d Civil No. B254120)

The Court of Appeal for the Second Appellate District of California has ruled that (i) a 20% increase in the actual height of a building over the stated height in the certified EIR required Ventura County to prepare a supplemental EIR rather than an addendum; and (ii) the County’s failure to prepare a supplemental EIR including the taller height of the building made the County susceptible to a valid claim beyond the standard 30-day statute of limitations on CEQA claims.   The court’s conclusion highlights the need for EIRs and notices of decision (“NODs”) to more completely describe a project, with all its details, to avoid potential claims.Continue Reading Undisclosed Change in Building Height Requires Supplemental EIR

On December 16, the Los Angeles City Council unanimously authorized the City Attorney to establish a Land Use/CEQA Panel, which will consist of five municipal law firms, to defend the City in CEQA and land use lawsuits that challenge the entitlements for private development projects, and to require that the project applicant reimburse the City for its legal costs and fees.
Continue Reading City of Los Angeles Outsources Defense of CEQA/Land Use Lawsuits To Private Law Firms – Developers To Foot The Bill

In the case of Lynch v. California Coastal Commission (D064120; Cal.App.4th 658; San Diego Superior Court; 37-2011-00058666-CU-WM-NC), the California Supreme Court has granted a petition for review of the decision by the Fourth Appellate District (Division One) upholding a prior decision in which the California Coastal Commission denied bluff-top homeowners’ petition for a coastal development permit to reconstruct a seawall and access stairs that would provide the homeowners with private beach access.  On review, the California Supreme Court will address the following issues:
Continue Reading California Supreme Court to Review Denial of Homeowner’s Private Beach Access

Sierra Club v. County of San Diego (10/29/14, D064243)

On October 29, 2014, the Fourth District California Court of Appeal unanimously affirmed the trial court’s decision in favor of Sierra Club, agreeing that the County of San Diego’s adopted Climate Action Plan (CAP) violated CEQA. First, the court held the County’s adopted CAP failed to provide sufficiently detailed deadlines and enforceable measures to ensure specified greenhouse gas (GHG) emission reductions by 2020 or to put the County on a trajectory to achieve 2050 GHG emission reductions identified in Executive Order S-3-05 as required by the County’s General Plan Update.  Second, it held the County failed to analyze the environmental impacts of the CAP itself or to incorporate mitigation measures directly into the CAP as required by CEQA Guidelines 15183.5(b)(1)(D) and Public Resources Code 21081.6(b).  Accordingly, the court granted the Sierra Club’s petition to require enforceable mitigation and ordered the County to prepare a supplemental EIR.Continue Reading County of San Diego’s Adopted Climate Action Plan Violates CEQA: Fails to Include Enforceable GHG Reduction Measures

Cleveland National Forest Foundation v. San Diego Association of Governments (11/24/14, D063288)

In a split decision on November 24, 2014, the Fourth District California Court of Appeal invalidated the program EIR for San Diego Association of Governments’ (SANDAG) 2050 Regional Transportation Plan/Sustainable Communities Strategy (Regional Transportation Plan). The court found the EIR in violation of CEQA for failing to adequately analyze and mitigate GHG emissions in light of the standards set forth in Executive Order S-03-05.  Despite the EIR’s analysis of the Regional Transportation Plan’s GHG emissions against specific regional reduction targets for 2020 and 2035, the majority determined the EIR did not amount to a reasonable, good faith effort to disclose and evaluate GHG emissions due to its lack of analysis surrounding the plan’s potential conflict with the Executive Order.Continue Reading Fourth District’s Split Decision Further Complicates CEQA Requirements Surrounding GHG Impact Analysis and Mitigation Measures – Dissent Warns Majority Opinion Will Weaken and Confuse the Law

Saltonstall v. City of Sacramento (11/20/14, C077031)

The NBA owns the right to acquire and relocate the Sacramento Kings if a new arena is not completed and open in downtown Sacramento by 2017.  The City and the Kings have targeted an October 2016 opening to avoid this outcome.  To facilitate construction, the California Legislature added Section 21168.6.6 to the Public Resources Code to provide for an expedited review of the arena project under the California Environmental Quality Act.  Several individuals sued the City and the Kings, challenging the constitutionality of the new provisions of the Public Resources Code, and moved for a preliminary injunction that would stay demolition of the existing shopping center.  The Court of Appeal denied the preliminary injunction, holding that the Legislature may limit the CEQA review process under its broad authority to make public policy determinations and amend existing laws.Continue Reading Legislature Can Amend CEQA to Expedite Construction of Sacramento Kings Arena

The Governor’s Office of Planning and Research (OPR) has extended the comment period for its draft of changes to the way that transportation impacts are analyzed under the California Environmental Quality Act (CEQA).  The new deadline for submission of comments is November 21, 2014.  OPR is proposing significant changes in the way transportation impacts should be evaluated under CEQA.
Continue Reading UPDATE: Comment Period for OPR Rethink of CEQA Guidelines on Transportation Impacts Extended Until November 21, 2014

Picayune Rancheria of Chukchansi Indians v. Brown, C074506 (9/24/2014)

In a recent Third District Court of Appeal published opinion, the court in Picayune Rancheria of Chukchansi Indians v. Edmund G. Brown, Jr. (3rd. Dist. 2014) strictly interpreted the California Environmental Quality Act’s definition of “public agency,” holding that it only applies to governmental bodies or offices, and not officials or individuals.  Under this holding, Governor Brown did not need to comply with CEQA requirements (see Pub. Res. Code §§ 21000 et seq.) as a prerequisite to concurring with the Secretary of the Interior’s determination that the North Fork Rancheria of Mono Indians’ (the “North Fork Tribe”) development of a new Indian gaming establishment would benefit the North Fork Tribe and not be detrimental to the surrounding community.Continue Reading Tribe’s Gamble That Casino Land Transfer Approval Not Subject to CEQA Pays Off

Barbara Lynch et al. v. California Coastal Commission (9/9/14, D064120)

To read an updated posting on this case, please click here.

The Court of Appeals for the Fourth Appellate District (Division One) has held that homeowners who accepted the benefit of a coastal development permit (“CDP”) for seawall reconstruction to protect  their bluff-top homes cannot subsequently challenge the terms upon which the CDP was conditioned, even though the homeowners complied with those conditions “under protest.”  The court held that: (1) the homeowners waived their right to challenge the CDP conditions when they voluntarily submitted to those conditions and accepted the benefit of the permit by moving forward with construction, (2) the California Coastal Commission (the “Commission”) lawfully limited the CDP to a 20-year term because the Commission was anticipating the seawall’s long-term impacts in light of the changing landscape of California’s coastline, and (3) the restriction on rebuilding the homeowners’ private beach access stairs was lawful in light of the state-wide phasing-out of private access to beaches over bluffs.  The court’s ruling highlights that, unless circumstances fit into one of two narrow exceptions, a permittee cannot accept a Commission-issued CDP “under protest.” The decision also reinforces the Commission policy disfavoring private access to beaches over bluff tops.Continue Reading Homeowners “Bluffed” Out Of Challenge To Coastal Permit To Rebuild Private Access Stairs