California Supreme Court Grants Review in Medical Marijuana CEQA Case

Medical MarijuanaOn January 11, the California Supreme Court granted review of the Fourth Appellate District’s decision in Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal.App.5th 103.  The two issues to be decided by the Court are as follows:

  • Is the enactment of a zoning ordinance categorically a “project” within the meaning of CEQA?
  • Is the enactment of a zoning ordinance allowing the operation of medical marijuana cooperatives in certain areas the type of activity that may cause a reasonably foreseeable indirect physical change to the environment?

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Ninth Circuit Upholds Final EIS for Tahoe Area Regional Plan Update

Lake Tahoe WaterIn Sierra Club v. Tahoe Regional Planning Agency, the Ninth Circuit affirmed the district court’s summary judgment in favor of the Tahoe Regional Planning Agency (“TRPA”), finding that the TRPA’s final Environmental Impact Statement (“EIS”) for the agency’s Regional Plan Update (“RPU”) sufficiently addressed localized impacts on soil erosion and water quality. The 2012 RPU, among other things, restricted future development to areas that are already developed, and limited the extent of development in those areas. Plaintiffs, Sierra Club and Friends of the West Shore, challenged the RPU’s EIS, principally arguing that the RPU failed to adequately address the localized effects of the runoff created by the plan’s permitted development, and that the RPU improperly assumed that Best Management Practices (“BMPs”) would reduce water quality impacts of concentrated development. Continue Reading

Local Ordinance Regulating Medical Marijuana Dispensaries is Not a “Project” Subject to CEQA Review, Fourth Appellate District Rules (Again)

Medical Marijuana in jarIn its October 14 decision in Union of Medical Marijuana Patients, Inc. v. City of San Diego, the Fourth Appellate District weighed in for the second time this year on whether a city ordinance regulating medical marijuana dispensaries is subject to CEQA review. As in the first case, which was brought by the same petitioner (Union of Medical Marijuana Patients, Inc. v. City of Upland, decided on March 25), the appeals court held that the ordinance was not a “project” for purposes of CEQA. Continue Reading

Downey Brand’s Fall 2016 CEQA and Land Use Litigation Update

On October 7, I had the privilege of presenting the annual CEQA and Land Use Litigation Update at the League of California Cities’ Annual Conference & Expo in Long Beach. The Annual Conference is the state’s largest gathering of city officials from throughout California, and addresses a host of cutting-edge legal issues in the field of municipal law. Downey Brand again prepared a detailed paper summarizing all of the published CEQA and Land Use court decisions from May through August 2016, as well as cases pending before the California Supreme Court.

Fifth District Allows Real Party to Recover Costs of Record Preparation

Cost RecoveryOn, September 12, 2015, the Fifth District Court of Appeal issued its opinion in Citizens for Ceres v. City of Ceres (2016) _Cal.App.5th_.  The opinion authorized real-parties-in-interest to recover costs of record preparation, as long as the record was prepared in a manner prescribed by Public Resources Code section 21167.6. The petitioners in this action challenged the EIR for a new shopping center anchored by a Wal-Mart on a variety of grounds, including that the project did not adequately mitigate for urban decay impacts and that the EIR failed to set forth an adequate long-term plan for solid waste disposal. The trial court upheld the EIR on all grounds but rejected real-party-in-interest Wal-Mart’s motion to recover costs associated with preparing the record, based on Public Resources Code section 21167.6 and the principles elucidated in Hayward Area Planning Assn. v. City of Hayward (2005) 128 Cal.App.4th 176. Continue Reading

Surface Transportation Board Discusses Boundaries of Federal Preemption of CEQA and Local Land Use Requirements, Denies Petition by Refinery Over Crude-By-Rail Facility

The extent to which the federal Interstate Commerce Commission Termination Act (ICCTA) preempts CEQA has been a topic of much scrutiny recently. Currently pending before the California Supreme Court is Friends of the Eel River v. North Coast Railroad Authority (Case No. S222472), which will address whether the ICCTA preempts CEQA review of a state agency’s proprietary acts with respect to a state-owned or funded rail line (which is at issue in both that case and in Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314). The case has been fully briefed since April 2015 and is awaiting oral argument.

In the meantime, a September 20 decision by the federal Surface Transportation Board (STB) has addressed ICCTA preemption in the context of a proposed crude-by-rail facility. These facilities have garnered much public attention in California and resulted in CEQA challenges to several proposed projects. In this decision, the STB denied Valero Refining Company’s petition, finding that the ICCTA did not preempt the City of Benicia’s decision to deny certification of an environmental impact report (EIR) and deny a conditional use permit (CUP) for a crude-by-rail offloading facility at Valero’s Benicia refinery. The decision provides insight into the federal government’s view of CEQA preemption, which will be of interest to the Supreme Court and the parties to the Friends of the Eel River case, as well as to lead agencies and project proponents contemplating crude-by-rail and other rail-related facilities in California. Continue Reading

California Supreme Court Rejects “New Project Test” and Defers to Agencies on Whether Project Modifications Require Subsequent Environmental Review

Crane and building construction site against blue skyOn September 19, in a long-awaited and unanimous decision, the California Supreme Court issued its decision in Friends of the College of San Mateo Gardens v. San Mateo County Community College District.  The opinion, authored by the Court’s newest justice, Leondra Kruger, resolves a split among the Courts of Appeal regarding the proper procedures for addressing changes to a project that have already been subject to CEQA review.  The Court clarified that such changes are not subject to an independent, “new project” threshold test, and that an agency’s decision that no EIR is required as a result of proposed modifications to a previously-approved project is subject to review for substantial evidence.  The decision also affirmed the validity of CEQA Guidelines section 15162 and its application of the principles of finality and subsequent review to projects originally approved with a negative declaration. Continue Reading

First Appellate District Upholds Use of Subsequent Mitigated Negative Declaration for Revisions to Use Permit for Religious Facility, Rejects Claim of General Plan Inconsistency

Sculpture of Buddha in Japan

On August 31, the First Appellate District issued its decision in Coastal Hills Rural Preservation v. County of Sonoma, which centered on the applicable standards and appropriateness of proceeding on a subsequent mitigated negative declaration (SMND), rather than an environmental impact report (EIR) under CEQA, where changes had been incorporated in a religious facility use permit that was originally reviewed under a mitigated negative declaration (MND). The appeals court affirmed the trial court judgment for the lead agency, Sonoma County, ruling that use of the SMND was appropriate and that the revised permit was not inconsistent with the County’s “Resources and Rural Development” general plan designation. Continue Reading

Legislature Extends Judicial Streamlining For Environmental Leadership Projects For Two Years, Through 2018

LegislationOn August 26, Governor Brown signed SB 734 into law, extending by two years the sunset date of the Jobs and Economic Improvement Through Environmental Leadership Act of 2011 (the “Act”) – from January 1, 2017 to January 1, 2019 – and making two significant changes to the Act.

The Act, codified at Public Resources Code sections 21178-21189.3, promotes environmentally sustainable development having significant economic benefits by providing for streamlined judicial review of “environmental leadership development projects.” Such leadership projects include certain residential, commercial, cultural, sports, and recreational projects located at infill sites that (1) are certified as LEED Silver or better, (2) result in a minimum investment of $100 million in California, (3) create high-wage, highly skilled jobs that pay prevailing wages and living wages, and help reduce unemployment, and (4) do not result in any net additional emission of greenhouse gases. Continue Reading

Second Appellate District Upholds Use of Class 3 Exemption and Rejects Claim That “General Effects” of Operating a Business Constitute Unusual Circumstances

Car wash

In its July 21 decision in Walters v. City of Redondo Beach, the Second Appellate District rejected a challenge to the use of a Class 3 categorical exemption for a proposed car wash and coffee shop in the City of Redondo Beach. The decision is helpful for lead agencies, as it clarifies that the general effects of an operating business, such as noise, parking, and traffic, cannot serve as unusual circumstances in and of themselves.

Redondo Auto Spa filed an application with the City of Redondo Beach (City) to build a 4,080 square-foot, full-service car wash and small coffee shop on a property zoned for commercial uses. In approving the project, the City issued a conditional use permit (CUP), found that the project was categorically exempt from CEQA review under the Class 3 exemption for a “store, motel, office, restaurant or similar structure not involving the use of significant amounts of hazardous substances,” (CEQA Guidelines section 15303(c)), and imposed several conditions concerning noise, operating hours, and capacity (a vehicle limit of 10,000 cars per month).

Five neighboring homeowners filed a petition for writ of mandate challenging the City’s CEQA exemption determination and issuance of the CUP. The trial court upheld the City’s actions and denied the writ petition, and the neighbors appealed. Continue Reading

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