Recent Cases - Land Use and Entitlements

Subscribe to Recent Cases - Land Use and Entitlements via RSS

Last week’s unexpected opinion of the U.S. Court of Appeals for the D.C. Circuit (“DC Circuit”) holding that the Council for Environmental Quality (“CEQ”) lacks authority to promulgate regulations implementing the National Environmental Policy Act (“NEPA”) leaves federal agencies and private projects facing tremendous uncertainty and likely delays in completing environmental reviews. In Marin Audubon Society v. Federal Aviation Administration, No. 23-1067 (D.C. Cir. Nov. 12, 2024), a divided panel ruled, nearly five decades after CEQ first adopted regulations directing federal agencies’ compliance with NEPA, that the CEQ’s rules are ultra vires because Congress has never given CEQ such rulemaking authority. With many agencies explicitly incorporating the CEQ rules into their own NEPA regulations, the opinion not only calls into question the proper methods for NEPA analysis, but also casts doubt on hundreds of completed and pending environmental reviews that have relied on the CEQ regulations.Continue Reading DC Circuit Rejection of CEQ Authority Leaves NEPA Review in Limbo

In its decision in Upland Community First v. City of Upland, the Fourth District Court of Appeal upheld a Mitigated Negative Declaration (MND) for the development of a warehouse and parcel delivery service building against a challenge primarily to its greenhouse gas (GHG) emissions thresholds. In doing so, the Court provided a rare victory for a challenged MND while reaffirming local agency discretion in selecting appropriate quantitative thresholds of significance for GHG emissions under the California Environmental Quality Act (CEQA).Continue Reading A New Hope for the Future of Mitigated Negative Declarations: The Logistics of Warehouse Storage Greenhouse Gas Analysis

In Westside Los Angeles Neighbors Network v. City of Los Angeles, the Second District Court of Appeals considered and upheld the City of Los Angeles’s (“City”) actions associated with the approval of the Westside Mobility Plan. Specifically, the court upheld: (i) the Los Angeles City Planning Commission’s (“CPC”) certification of the Westside Mobility Plan Environmental Impact Report (“EIR”); (ii) the determination that the Streetscape Plan was categorically exempt from CEQA; (iii) the finding that Westside Los Angeles Neighbors Network (“Network”) failed to show that the EIR was deficient in its analysis of growth inducing impacts or the imposition of certain traffic-related mitigation measures.Continue Reading Westside Mobility Plan Clears the Road of CEQA Challenges

Until recently, local policies on homelessness have been guided by two controversial rulings from the Ninth Circuit Court of Appeals: Martin v. Boise (9th Cir. 2019) 920 F.3d 584 and Johnson v. City of Grants Pass (9th Cir. 2022) 50 F.4th 787.[1] However, the Supreme Court’s decision in City of Grants Pass v. Johnson (2024) 603 U.S. ____, is likely to transform local jurisdictions’ policy approaches to managing homelessness. In a 6-3 decision, the Supreme Court upheld the city’s ban on camping and parking overnight on public property.Continue Reading Supreme Court Holds That the Eighth Amendment Does Not Prevent Enforcement of Local Camping Bans, Authorizing a Significant Shift in Local Policies on Homelessness

Undoubtedly, development impact fees (DIFs)[1] can make or break the pro forma of any development project. Until this month, developers hoping to challenge the assessment of project-related DIFs were often limited in the causes of action that could be brought. For instance, in California, a DIF may be challenged under the Mitigation Fee Act (Govt. Code §§ 66000 et seq.), and only DIFs that were “imposed neither generally nor ministerially, but on an individual and discretionary basis” could invoke the Takings Clause embedded in the Fifth Amendment of the United States Constitution.[2] This limitation on developers’ ability to utilize the Takings Clause meant that courts would not apply the “Nollan/Dolan test” to DIFs generally applicable to a broad class of property owners pursuant to legislative action.[3]Continue Reading What the Sheetz: Where California Development Impact Fees Stand Following Recent Supreme Court Decision

In its recent decision in Hilltop Group Inc. v. County of San Diego, California’s Fourth District Court of Appeal issued a number of holdings that resulted in a strong ruling in support of streamlined environmental review for projects that are consistent with and within the scope of a program environmental impact report (EIR) for a general plan. The Court clarified that CEQA Guidelines section 15183 (“Section 15183”) does not permit additional environmental review for such projects except as necessary to determine whether a project will have significant effects that are peculiar to the project or the site that were not analyzed in the prior EIR and cannot be substantially mitigated by uniformly applied development policies or standards. The Court went on to hold that public controversy and lay testimony about “peculiar” impacts that might arise from a project do not constitute substantial evidence sufficient to require further environmental review under Section 15183. Perhaps the most important lesson of Hilltop Group Inc. is that decisionmakers cannot err on the side of requiring environmental review simply because a project is controversial, particularly when streamlining is in play. If substantial evidence demonstrates a project’s environmental effects were studied in the prior general plan EIR or can be addressed through uniform policies and procedures, the California Environmental Quality Act (“CEQA”) does not permit the lead agency to require an EIR, mitigated negative declaration or other additional environmental review.Continue Reading A Win for Consistency Evaluations Under CEQA Guidelines 15183: Court Rules that Public Controversy is not a Basis for Additional Environmental Review

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,[1] 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