Petitioner Required To Post Bond For Costs Incurred As A Result Of Delay In Carrying Out Affordable Housing Project In Livermore

In Save Livermore Downtown v. City of Livermore (Dec. 28, 2022, Case No. A164987) __ Cal.App.1st __, the First District Court of Appeal held that the City of Livermore (City) did not violate planning and zoning laws when it approved a 130-unit affordable housing project (Project) in the downtown area. The Project was found to be exempt under CEQA as it was consistent with a specific plan for which an EIR has been prepared (Gov. Code, § 65457). Further, the Court held that the trial court did not abuse its discretion when it required Save Livermore Downtown (Petitioner) to post a $500,000 bond after the developer moved for one under Code of Civil Procedure section 529.2, as security for costs that may be incurred as a result of delay in carrying out the affordable housing development project.

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Design Changes to State Capitol Renovation Revealed in FEIR Did Not Adequately Allow for Public Input or Informed Decision-Making

In Save Our Capitol! v. Department of General Services (Jan. 18, 2023, C096617, C096637) __Cal.App.5th__, the Third District Court of Appeal held that the Department of General Services violated CEQA when certain design changes to the State Capitol renovation (Project) were not revealed until the final EIR (FEIR), preventing the public from commenting on the changes. The Court also found that the EIR did not contain a reasonable range of alternatives, and the failure to provide depictions of key design changes or allow public comment led to the inadequate analysis of the Project’s impacts on aesthetics and historic resources.

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Approval Upheld for Lafayette Affordable Housing Project Delayed for a Decade

In a partially published opinion in Save Lafayette v. City of Lafayette (2022) 85 Cal.App.5th 842, the First District Court of Appeal upheld approval of an affordable housing project in the face of the third in a series of lawsuits filed by a citizens group against it. The Court held that the applicant could resume processing of its application after several years pursuing an alternative proposal, subject to the standards applicable when the initial application had been deemed complete. In the unpublished portion of the opinion, which is not discussed further in this summary, the Court rejected arguments that the long-since certified EIR had become “stale,” that it had not adequately examined impacts to special-status species and wildfire hazards, and that a supplemental EIR had been required for those reasons and due to the removal of 10 additional trees.

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First District Affirms Denial of Anti-SLAPP Motion in a Malicious Prosecution Action Filed Against CEQA Petitioner’s Attorney   

In Jenkins et al. v. Brandt-Hawley et al. (1st Dist., Div. 2, 2022) ___ Cal.App.5th ___, the First District Court of Appeal found that CEQA suits can be subject to malicious prosecution actions.  The Court of Appeal upheld an order denying an anti-SLAPP motion, allowing a malicious prosecution action to proceed against an attorney who litigated an unsuccessful CEQA challenge to the reconstruction of a single-family residence in San Anselmo.

Background

After purchasing a property in San Anselmo in 2017, Charles and Ellen Jenkins, learned that the home would have to be rebuilt to conform to present day building code requirements.  The Jenkins filed an application with the Town to authorize demolition of the home and development of a new home and detached studio on the property (the “Project”).  Neighbors objected to the design of the Project based on aesthetic and privacy concerns and the Jenkins worked with the neighbors to redesign the Project. 

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Construction of 90-Foot-Tall Lights at Athletic Field Not Categorically Exempt as either an Existing Facility or Construction of a Small Structure

Effective January 1, 2023, Thomas Law Group (TLG) will merge with Downey Brand. We are thrilled to welcome the TLG team to CEQA Chronicles and look forward to sharing their updates on important CEQA developments, new case law, legislation, and guidance.

In St. Ignatius Neighborhood Assn. v. City & County of San Francisco (Nov. 18, 2022, A164629) __Cal.App.5th__ [2022 Cal. App. LEXIS 992], the First District Court of Appeal held that the City & County of San Francisco (City) erred when it found that a lighting project was categorically exempt from environmental review under CEQA.

In 2018, the St. Ignatius College Preparatory High School (School) applied for approval of four permanent 90-foot-tall outdoor light standards for its athletic field (Project) to enable nighttime use of the stadium. In 2020, the planning department for the City determined that the Project was categorically exempt under both Class 1 “existing facilities” and Class 3 “New Construction or Conversion of Small Structures” exemptions. After imposing use conditions limiting the amount of days and the times that the School would be allowed to operate the lights, the City affirmed the exemption determination and approved a conditional-use authorization for the Project. The Saint Ignatius Neighborhood Association (Petitioners) petitioned for writ of mandate alleging the City erred in exempting the Project from CEQA, and that the City’s approval of the conditional-use authorization was inconsistent with the City’s planning code and general plan. The trial court denied the petition, and Petitioners timely appealed.

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Exhausting Administrative Remedies Does Not Toll the Statute of Limitations When the CEQA Determination Is Not at Issue

Effective January 1, 2023, Thomas Law Group (TLG) will merge with Downey Brand. We are thrilled to welcome the TLG team to CEQA Chronicles and look forward to sharing their updates on important CEQA developments, new case law, legislation, and guidance.

In American Chemistry Council v. Dept. of Toxic Substances Control (Nov. 18, 2022, F082604) __Cal.App.4th__ [2022 Cal. App. LEXIS 1004], the Fifth District Court of Appeal found a CEQA challenge to the regulatory decision of the Department of Toxic Substances Control (DTSC) to list a chemical for special scrutiny to be untimely. In a separate holding, not discussed further in this summary, the Court also determined that DTSC acted within its authority and properly complied with the Administrative Procedures Act (APA).

In early 2018, DTSC decided to list spray polyurethane foam systems (spray foam systems) as a priority product under California’s “Green Chemistry” law (Health & Saf. Code, §§ 25251-25257.2) due to health/safety concerns, and the agency issued a Notice of Exemption (NOE), relying on the common sense exemption (CEQA Guidelines, § 15061(b)(3)). DTSC did not, however, forward the NOE to the Office of Planning and Research or any other relevant government agency. In March 2018, DTSC submitted the final regulatory package for listing spray foam systems to the Office of Administrative Law, and it was approved shortly thereafter.

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Court Finds Site Visits and Reports Taken Before and After Issuance of NOP Adequate for Establishing Biological Resources Baseline, EIR’s Emergency Evacuation Analysis Upheld

Effective January 1, 2023, Thomas Law Group (TLG) will merge with Downey Brand. We are thrilled to welcome the TLG team to CEQA Chronicles and look forward to sharing their updates on important CEQA developments, new case law, legislation, and guidance.

In Save North Petaluma River and Wetlands v. City of Petaluma (Nov. 14, 2022, A163192) __Cal.App.4th__ [2022 Cal. App. LEXIS 1009], the First District Court of Appeal held that the City of Petaluma (City) did not violate CEQA when it certified the EIR for a 180-unit apartment complex (Project) on roughly 15-acres of vacant land along the Petaluma River.

Although the City published the Notice of Preparation (NOP) in 2007, the City did not issue the Draft EIR (DEIR) for the Project until 2018. In response to the conclusions raised in the DEIR and public comments, the Project underwent a number of subsequent revisions, and a version of the Project, which included reductions to the Project’s overall footprint and number of proposed units, was approved by the City in 2020. A group called Save North Petaluma River and Wetlands, along with an individual (collectively, Petitioners), filed suit challenging the adequacy of the EIR on a number of grounds, including the EIR’s analysis of special status species and emergency evacuations. The trial court denied the petition, and Petitioners timely appealed.

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Attorney General Issues Guidance Outlining Best Practices for Analyzing and Mitigating Wildfire Impacts Under CEQA

Citing the increasing prevalence of wildfires, the California Attorney General (AG) has issued guidance designed to help lead agencies comply with CEQA when considering whether to approve projects in wildfire-prone areas. Although the guidance does not impose any additional requirements on local governments or alter any laws or regulations, it does apprise local governments of important considerations for CEQA thresholds of significance, impact analyses, and mitigation related to wildfire hazards.

Analyzing Project Impact on Wildfire Risks

According to the AG, an EIR’s discussion of existing conditions should include information about open space areas and habitats within the project area that may be fire prone as well as fire history and fuels on the site, and the availability of existing water supplies for fire-fighting.

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Local Agency Violated the Brown Act by Failing to Properly Agendize CEQA Exemption

In G.I. Industries v. City of Thousand Oaks (2022) 84 Cal.App.5th 814, the Second District Court of Appeal held that the Brown Act (Government Code, § 54950 et seq.) required the City of Thousand Oaks (City) to list consideration of a CEQA exemption on the public agenda for the meeting at which the proposal was approved. Though multiple prior opinions have found that CEQA does not require an exemption to be expressly approved at the time of project approval, this opinion finds that there is such a requirement under the Brown Act.

In 2021, the City considered awarding an exclusive solid waste franchise agreement (Agreement) to Arakelian Enterprises, Inc. (Real Party), and posted the item on the public agenda for the City Council’s meeting. The agenda, however, did not separately state that the City would also consider whether the Agreement was exempt from CEQA, nor did the agenda include staff’s recommendation that it was. It was not until the day of the City Council meeting that a supplemental item noticing staff’s CEQA exemption recommendation was added to the agenda. At the meeting, the City Council approved the Agreement and found it to be exempt from CEQA. G.I. Industries, a competitor of Real Party who had until then provided solid waste management to the City, sent a “cure and correct” letter alleging that the City failed to provide the requisite notice for its consideration of the CEQA exemption under the Brown Act. After the City failed to respond, G.I. Industries filed suit to vacate the approval of the Agreement and the CEQA exemption finding. The trial court sustained the City’s demurrer without leave to amend, and G.I. Industries appealed.

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Discretionary Reductions in Water Deliveries Allowed Under Terms of Existing Leases are not a New CEQA Project

In County of Mono v. City of Los Angeles (2022) 81 Cal.App.5th 657, the First District Court of Appeal held that a reduction in water deliveries by the City of Los Angeles (City) to lessees in Mono County (County) was not a new CEQA project, but was within the scope of existing leases.

In 2010, the City approved a set of leases (2010 Leases), substantively identical to prior leases, relating to land the City owned in Mono County, finding the leases to be exempt from CEQA as ongoing operation of existing facilities. With respect to water rights, the 2010 Leases stated that the City’s rights were paramount to those of the lessees, and that the availability of water to the lessees would be determined solely by the City, dependent upon the City’s needs and ability to secure water elsewhere.

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