In Pacific Palisades Residents Association, Inc. v. City of Los Angeles et al. (March 8, 2023, Case No. B306658) __ Cal.App.2d __, the Second District issued a strong opinion affirming the trial court’s ruling that a proposed eldercare facility in the Pacific Palisades neighborhood was consistent with the Los Angeles Zoning Code and exempt from CEQA review under the Class 32 exemption for infill development projects, and that substantial evidence supported the California Coastal Commission’s (CCC) decision that the Coastal Development Permit (CDP) appeal presented no substantial issue under the Coastal Act. Downey Brand attorneys Kathryn Oehlschlager and Hina Gupta represented the City of Los Angeles in this case.
Substantial Changes to Marilyn Monroe Art Installation Extends Statute of Limitations to Challenge Under CEQA
In Committee to Relocate Marilyn v. City of Palm Springs (Feb. 23, 2023, D080907) __Cal.App.5th__ [2023 Cal. App. LEXIS 120], the Fourth District Court of Appeal held that the petition filed by the Committee to Relocate Marilyn (Committee), challenging the determination by the City of Palm Springs (City) to issue a Notice of Exemption (NOE) for an art installation on a public street, was timely, vacating the trial court’s sustaining of the demurrer without leave to amend. In a separate holding, not discussed further in this summary, the Court also ordered the trial court to overrule the City’s demurrer as to the Committee’s other causes of action alleging that the City did not have the authority under both the Vehicle Code and Municipal Code to close the public street.
Neighbor’s General Complaints of Environmental Concerns Insufficient to Exhaust Administrative Remedies as to CEQA Exemption Determination
In Arcadians for Environmental Preservation v. City of Arcadia (Feb. 16, 2023, No. B320586) ___Cal.App.5th___ [2023 Cal. App. LEXIS 103] the Second District Court of Appeal found no error in a trial court ruling that there had been a failure to exhaust administrative remedies where project opponents merely raised general environmental objections without identifying any reason why the agency could not rely on a CEQA exemption. The Court also found that exhaustion was not excused due to minor inconsistencies in descriptions of the basis for the exemption, and found that the project opponent failed to demonstrate that any exception applied.
California Appeals Court Rules that State Water Board’s Duty to Prevent Waste and Unreasonable Use of Water is “Highly Discretionary”
On February 27, 2023, in a much anticipated decision, California’s Second District Court of Appeal overruled the trial court by determining that the State Water Resources Control Board (“State Water Board”) did not violate its duty to prevent waste and unreasonable use of water when it declined to investigate wastewater discharges from four Los Angeles area Publicly Owned Treatment Works (“POTWs”). The Court found that the State Water Board’s duty under state law to prevent waste and unreasonable use of water is “highly discretionary” and does not require an investigation or assessment of every allegation of unreasonable use. (Los Angeles Waterkeeper v. State Water Resources Control Board, Case No. B309151 (2d Dist. 2023).)
Court Finds Use of Addendum Improper as Project’s GHG Emissions Likely Outside the Scope of Prior Programmatic EIR and Unusual Circumstances Exception Applied to Use of Infill Exemption
In IBC Business Owners for Sensible Development v. City of Irvine et al. (Feb. 6 2023, Case No. G060850) ___ Cal.App.5th ___, the Fourth District Court of Appeal held that the City of Irvine (“City”) violated CEQA when it relied on an addendum to approve a project proposing to redevelop a parcel within the Irvine Business Complex (“the IBC”). The Court held that the environmental impacts of the Project were not within the scope of the 2010 Programmatic Environmental Impact Report (“the PEIR”) for IBC, nor was the project exempt from the CEQA environmental review. Applying the substantial evidence standard of review, the Court found that the evidence was insufficient to show that the project’s greenhouse gas (“GHG”) emissions were within the scope of the PEIR, or to show that the project’s GHG emissions were less than significant under any other threshold. The Court also held that the Class 32 Infill Exemption did not apply to the project because it involved unusual circumstances which may cause significant environmental effects.
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.
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.
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.
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.
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.
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.