Recent Cases - Land Use and Entitlements

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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

In Tanimura & Antle Fresh Foods, Inc. v. Salinas Union High School District, the Sixth District Court of Appeal considered whether the Salinas Union High School District (“District”) acted reasonably in imposing a school impact fee on a new 100-unit residential development intended to only house adult seasonal farmworkers without dependents (the “Project”) employed by Tanimura & Antle Fresh Foods (“T&A”). After reviewing the relevant statutory schemes, the Legislature’s intent, and the District’s evidence for imposing the fee, the court found that the District properly determined a reasonable relationship existed between the fee and the new residential construction, even though the development would not generate any new students. Therefore, the District did not act arbitrarily by imposing the fee on the Project. In holding so, the court reversed the trial court judgment.

This decision reinforces the concept that, while school districts must demonstrate a nexus – or reasonable relationship – between development fees and the type of development, such as residential units, they generally are not required to evaluate the ultimate user of a particular development project before imposing district-wide fees on a developer. This ruling will likely have direct repercussions to a developer’s proforma in today’s marketplace, were both developers and local governments are implementing creative strategies for addressing certain housing shortages – such as the provision of specific workforce housing.
Continue Reading No Students? No Problem, Developer Still Pays

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

WildEarth Guardians v. United States Bureau of Land Management, et al., 870 F.3d 1222 (10th Cir. 2017). WildEarth Guardians and the Sierra Club (collectively, “Plaintiffs”) brought a claim under the Administrative Procedure Act (the “Act”) against the Bureau of Land Management’s (BLM), challenging the BLM’s decision to grant four coal leases in Wyoming’s Powder River Basin. The basin accounts for almost 40 percent of the United States’ total coal production, and the subject leases would extend the life of two mines that provide almost 20 percent of the United States’ annual domestic coal production. Id. at 1227. Plaintiffs alleged the BLM’s determination that the leases would not have a significant effect on national carbon dioxide emissions, as compared to the “No Action” alternative, was arbitrary and capricious because (1) it was not supported by the administrative record and (2) the BLM failed to acquire information “essential to a reasoned choice among alternatives.” Id. at 1233–34. The Tenth Circuit agreed the decision was not supported by the record and remanded to the district court with instructions to enter an order requiring the BLM to revise its Environmental Impact Statement (EIS) and Records of Decision, but refused to vacate the leases themselves. Id. at 1240.
Continue Reading Tenth Circuit Holds Bureau of Land Management Improperly Relied On Unsupported and Irrational Assumption in Analyzing Environmental Impacts of Coal Mining Leases

United States of America v. Osage Wind, LLC et al., 871 F.3d 1078 2017 WL 4109940 (10th Cir. Sept. 18, 2017). Causing heartburn for project applicants developing on tribal land, the Tenth Circuit reversed the District Court for the Northern District of Oklahoma’s grant of summary judgment and determined that the defendants’ large-scale excavation project, involving site modification and the use of excavated rock and soil in the installation of wind turbines, constituted “mining” under federal regulations addressing mineral development on Native American land. Id. at *1. This decision creates new obligations for developers, which could result in delay and additional costs.
Continue Reading Tenth Circuit Takes Expansive View of the Definition of the Term “Mining,” Holding Wind Farm Project Needs Permit Prior to Commencement of Excavation in Tribal Mineral Estate

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

Barbara Lynch et al. v. California Coastal Commission, Case No. S221980

The California Supreme Court has drawn a deeper line in the sand by (a) refusing to expand the Mitigation Fee Act to cover “land use restrictions” in permit conditions of approval that are unrelated to the project’s construction, and (b) requiring applicants to litigate their objections to final judgment before accepting the benefits of the permit. Though the case involved a Coastal Commission permit, it has broader implications discussed below.Continue Reading Are You Sure You Want to Challenge That Permit Condition?