Recent Cases - Land Use and Entitlements

Saltonstall v. City of Sacramento (2/18/2015, 3d Civil No. C077772). For prior post on a related case, see here.

The Court of Appeal for the Third Appellate District of California has ruled in favor of the City of Sacramento with regard to a series of challenges brought under CEQA to certification of an EIR and approval of a project to build a new arena in downtown Sacramento. The project involves a partnership between the City and Sacramento Basketball Holdings LLC to build a downtown arena at which the Sacramento Kings will play. To facilitate the timely opening of a new downtown arena, the Legislature modified several deadlines under CEQA by adding section 21168.6.6 to the Public Resources Code. Section 21168.6.6 also allows the City to exercise limited eminent domain powers to acquire property for the project before its environmental review, but does not substantively alter other CEQA requirements. The court held that the City had not prematurely committed itself to the project; the EIR was not deficient for failing to address the remodel of the existing Sleep Train arena; the traffic analysis was not deficient; the failure to study “crowd safety” did not implicate CEQA; and trial court orders may be reviewed only by writ petition, not direct appeal.
Continue Reading Sacramento Kings Win Again; Second CEQA Challenge Rejected

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

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

A major fact correction on rehearing led the Second Appellate District to reverse its earlier ruling in Bowman v. California Coastal Commission (2nd Dist., Div. 6, 10/23/14, B243015 (on rehearing).  The court has now held that collateral estoppel does not prevent a landowner from letting a permit expire and then challenging imposition of the same conditions on a later replacement permit.  This conclusion replaces the original holding that reliance on an unchallenged permit estops the property owner from seeking changed conditions when applying for a revised permit.  Nevertheless, in a complete victory for the owner, the court has also found that the original condition should not have been imposed in the first place because it was an illegal taking under Nollan v. California Coastal Commission (1987) 483 U.S. 825.
Continue Reading Unlawful Development Permit Conditions Not Binding On Second Permit Applicant When Original Permit Expires Without Use – Second District Changes Mind On Changed Facts

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

Town of Atherton v. California High‑Speed Rail Authority (7/24/14, C070877)

The appellate court upheld the California High‑Speed Rail Authority’s Program EIR for the Central Valley to Bay Area portion of the route, concluding that (1) the Authority properly limited its environmental analysis to a program level when it deferred site-specific analysis of the vertical profile options for alignment, (2) the Town’s experts could not show the Authority’s revenue and ridership model was inadequate or unsupported, and (3) the Authority’s Program EIR considered an adequate range of alternatives despite rejecting an alternative proposed by one expert consulting company.

Continue Reading Level of Detail Adequate in High Speed Rail Authority’s Program EIR for Central Valley to Bay Area Rail Corridor

Tuolumne Jobs & Small Business Alliance v. Wal-Mart Stores, Inc., et al. (8/7/14, S207173)

The Supreme Court of California has held that CEQA review was not required before the Sonora City Council adopted an initiative measure approving a specific plan for expansion of a Wal-Mart store.  The court held that: (1) the Elections Code, which requires at most an abbreviated review, provides the exclusive process regarding voter initiatives, (2) the legislative body does not have to obtain full CEQA review before it can directly adopt a voter initiative, and (3) a full CEQA review would be incompatible with the requirements of the Elections Code.  The court’s conclusion highlights the judiciary’s staunch protection of the initiative process.

Continue Reading No CEQA Review Required For Initiative Measures, Whether Adopted By City Council Or Voters