Second District Denies Mandatory Relief from Adverse Judgment to Plaintiff Whose Counsel Failed to Timely Lodge Administrative Record

LED Street LightOn April 13, the Second Appellate District disapproved two of its prior decisions that had expansively interpreted the availability of mandatory relief from default or dismissal under Code of Civil Procedure section 473(b). In The Urban Wildlands Group, Inc. v. City of Los Angeles, the court held that this mandatory relief provision did not apply to an adverse judgment at a CEQA merits hearing, resulting from plaintiff’s failure to lodge the administrative record with the court prior to the hearing.

The underlying mandate petition and complaint alleged a single cause of action challenging the City’s finding that a streetlight replacement project using LED lights was exempt from environmental review under CEQA. The parties stipulated that plaintiff would prepare the administrative record and, following certification by the City, lodge it with the trial court. However, plaintiff never lodged the certified record. At the hearing on the merits, the trial court determined that plaintiff could not present sufficient evidence to support its arguments because it failed to lodge the record. Accordingly, the trial court denied the plaintiff’s petition and complaint and entered judgment in favor of the City. Continue Reading

Fourth Appellate District Upholds EIR for 200-Acre Specific Plan Development in Riverside County

French Valley in Riverside CountyIn its February 14 decision (certified for publication on March 15) in Residents Against Specific Plan 380 v. County of Riverside, the Fourth Appellate District upheld the County of Riverside’s (“County’s”) approval of a master-planned community.  The opinion provides helpful guidance for lead agencies and applicants in understanding when changes made to a project in direct response to public comments after publication of a Final EIR do not necessitate recirculation.  The decision also reaffirms that where defects in a notice are not prejudicial, unwinding of the approval is not required.

The case involves a proposed 200-acre development in the French Valley region of Riverside County, containing a mixture of residential, mixed use, commercial, and open space uses (“Project”).  The Project, which was proposed by the Hanna Marital Trust (“Trust”), required approval of a specific plan (known as Specific Plan 380), a general plan amendment, and a zoning change. Continue Reading

Downey Brand Partners to Speak at AEP 2017 State Conference in San Francisco

3-14-2017 1-13-38 PM_editI am pleased to announce that both Christian Marsh and I will be participating in panel discussions at the Association of Environmental Professionals’ 2017 State Conference, entitled “Bridging the Gap” and taking place in San Francisco from May 18 through May 21 (view schedule of events).  As stated by AEP, “the conference seeks to ‘bridge the gap’ between CEQA practitioners and the technical experts they rely on, between CEQA and planning, and among other related local, regional, statewide, and national environmental issues.” Continue Reading

CEQA Implications of California Supreme Court Decision Finding Public Officials’ and Employees’ Personal Accounts Do Not Escape Reach of Public Records Act

On March 2, 2017, the California Supreme Court ruled in City of San Jose v. Superior Court that where a public employee uses a personal email account or texts to communicate about the conduct of public business, those writings may be subject to disclosure under the California Public Records Act (“PRA”). While resolving one long-debated question in California law, this decision also raised myriad new issues, including issues that are specifically relevant to litigation under the California Environmental Quality Act (“CEQA”). Continue Reading

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?

Continue Reading

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

LexBlog