Despite repeated attempts at reform by the Legislature, the California Environmental Quality Act (CEQA) continues to be a minefield for those assigned with the herculean task of complying with the law’s myriad of directives. Add to the already inherent complexity of CEQA, judicial interpretation of its provisions has wide-reaching implications that can create even more potential pitfalls for those required to abide by its mandates, including decisionmakers and project proponents. Below are the summaries of the most notable CEQA cases from 2023, broken down by category.Continue Reading 2023 Year-in-Review CEQA Litigation
Following California Supreme Court and its own case law precedent, the Second District, Division Five, has ruled in Guerrero et al. v. City of Los Angeles (Jan. 17, 2024) (Guerrero), certified for publication, that a CEQA challenge to approval of a vesting tentative subdivision map conditioned on subsequent discretionary rezoning was untimely when not filed until after the rezoning was finally approved.Continue Reading Conditional Approval is Project Approval: Appellate Court Confirms CEQA Statute of Limitations Triggered by Tentative Map Approval Conditioned on Subsequent Rezoning
Near the end of 2023, the United States Supreme Court declined to consider the City of Costa Mesa’s appeal of a January Ninth Circuit ruling in SoCal Recovery, LLC v. City of Costa Mesa (2023) 56 F.4th 802. The decision held that sober living home operators can prove “actual disability” – as required by the federal Americans with Disabilities Act (ADA), the Fair Housing Act (FHA), and California’s Fair Employment and Housing Act (FEHA) – without an individualized assessment of each resident. Instead, the Ninth Circuit held that admissions criteria, house rules, and testimony are sufficient to show on a collective basis that a sober living home serves or intends to serve individuals with actual disabilities.Continue Reading U.S. Supreme Court Declines to Consider Appeal of Ninth Circuit Ruling that Sober Living Homes Do Not Have to Prove Each Resident Is Disabled to Survive Summary Judgment in Challenge to Allegedly Discriminatory Zoning Laws
In it’s recent decision in United Neighborhoods for Los Angeles v. City of Los Angeles (2023) ___ Cal.App.5th ___, the Second District Court of Appeal affirmed a judgment voiding the City of Los Angeles’s reliance on the CEQA Class 32 Infill Exemption for a hotel project in Hollywood that would demolish 40 rent-stabilized units (RSO). In upholding the trial court decision, the appellate court emphasized the City’s failure to adequately assess the Project’s consistency with all applicable general plan policies, as required by CEQA Guidelines section 15332(a).Continue Reading Second District Addresses CEQA’s Class 32 Infill Exemption Criteria
On June 13, 2023, the Second Appellate District affirmed the City of Pomona’s use of a statutory exemption for its Commercial Cannabis Overlay Permit Program under California Environmental Quality Act (CEQA) Guidelines section 15183, finding that the program required no additional environmental review. The decision in Lucas v. City of Pomona is noteworthy for the appellate court’s broad interpretation of the statutory exemption, holding that (i) the City’s zoning ordinance, General Plan Update, and environmental impact report (EIR) that do not address “density” may be exempt under CEQA Guidelines section 15183, and (ii) uses, including cannabis-related uses, that are not literally included in land use plan documents, may be determined to be sufficiently similar to existing and defined land uses allowed by underlying zoning.Continue Reading Commercial Cannabis Permit Program and Overlay District Statutorily Exempt Under CEQA Guideline Section 15183
Last week the Office of the Attorney General demonstrated the State of California’s unwillingness to cede its enforcement of state housing laws even in the face of defiance from local governments. On April 10, in People of California v. City of Huntington Beach (OCSC, Case No. 30-2023-01312235-CU-WM-CJC), Attorney General Rob Bonta filed a Motion to Amend its Petition For Writ of Mandate and Complaint For Declaratory and Injunctive Relief (Motion to Amend), which included the proposed First Amended Petition (Amended Petition), after the City of Huntington Beach (City), again, failed to adopt its sixth cycle update to its Housing Element (6th Cycle) on April 4, 2023 – more than 16 months after the statutory deadline – in violation of the state Housing Element Law (Govt Code. § 65580 et seq.). Continue Reading California City Flouts Housing Laws, Inviting State Scrutiny
In a case potentially overshadowed by the California Supreme Court’s same-day denial to hear a request to stay a cap on student admissions at UC Berkeley, the Second Appellate District Court (Div. 2) issued its opinion in Crenshaw Subway Coalition v. City of Los Angeles. This decision found, in effect, that the federal Fair Housing Act (FHA) and its State law counterpart, the California Fair Employment and Housing Act (FEHA), do not protect established minority-majority communities against displacement due to gentrification.
Continue Reading Challenge to Housing and Revitalization Project Found Not Cognizable under the Fair Housing Act and California Fair Employment and Housing Act
In Citizens’ Committee to Complete the Refuge et al. v. City of Newark et al., the First District Court of Appeal (Div. 4) found the California Environmental Quality Act did not require subsequent or supplemental environmental review for the City of Newark’s approval of a 469‑lot residential subdivision project. Instead, the court affirmed the City’s use of Government Code section 65457’s CEQA exemption for projects consistent with a “specific plan” for which a environmental impact report (EIR) was previously certified.
Continue Reading Petitioners Failed to Show Subdivision Consistent With a Specific Plan EIR Was Outside the Scope of a Statutory Exemption
Not your average game of patty-cake! Earlier this week, New York’s First Department, Appellate Division issued its decision related to 200 Amsterdam, overturning the lower court’s decision which would have required 200 Amsterdam to remove several floors of its building in order to comply with zoning. The lower court determined that the NYC Zoning Resolution did not permit a developer to utilize a portion of a tax lot to merge with a neighboring zoning lot.
Continue Reading Build Me A Building As Fast As You Can
In follow up to the New York City Department of City Planning’s (DCP), January 22nd, public hearing on the Draft Scope of Work for the City’s proposed Hotel Special Permit text amendment, there were several speakers both in support of and in opposition to the proposed legislation. Of note, were five elected officials who testified in support of the Hotel Special Permit, with a unified message, that the development of hotels takes away opportunities for affordable housing in this City, and therefore, hotels must be regulated at a higher level than other uses. Generally, the opposition cited to the City’s failure to provide a land use rationale for the Draft Scope of Work, the lack of any defined issue or specific policy objective that this proposed Hotel Special Permit seeks to address and the potential impact of the proposed Hotel Special Permit on the City’s economic recovery.
Continue Reading City Planning Holds First Public Hearing for its Citywide Hotel Special Permit Text
This past week, in a 4 to 3 decision, New York’s highest court – the Court of Appeals – decided an important New York City land use question regarding how “open space” is accessed by residents on a zoning lot with multiple buildings In the Matter of Randy Peyton, et al v. NYC Board of Standards and Appeals, et al. This rollercoaster ride ended with the Court of Appeals overturning the First Department, Appellate Division’s decision, and ultimately agreeing with the NYC Department of Buildings original application of the law, which was affirmed by the quasi-judicial NYC Board of Standards and Appeals (BSA). The Court of Appeals determined that open space available for use by residents of one building, such as a rooftop garden, does not need to be accessed by residents in other buildings when the buildings are part of a single zoning lot in order to satisfy zoning “open space” requirements, putting to rest this controversial question.
Continue Reading NY Court of Appeals Decides Who Gets Access to Required “Open Space”