First District Denies Challenge to Napa County Approval of Mining Operations Because Petitioner Failed to Exhaust Administrative Remedies and CEQA Requires Limited Review of General Plan Consistency

By Natalie C. Kirkish and Kathryn L. Oehlschlager on June 17, 2021 Posted in Environmental Impact Report (EIR), Exhaustion of Administrative Remedies

In Stop Syar Expansion v. County of Napa (2021) 63 Cal.App.5th 444, the First District Court of Appeal upheld Napa County’s Environmental Impact Report (EIR) for the expansion of Syar Industries, Inc.’s aggregate mining operations at a local quarry. Citizen group Stop Syar Expansion (“SSE”) filed a Petition for Writ of Mandate under CEQA claiming that the EIR was deficient on 16 counts, including in its analysis of greenhouse gas emissions, water usage baseline, water quality, and general plan consistency. The trial court denied the Petition for Writ of Mandate, and SSE appealed, raising five issues. The Court of Appeal affirmed, holding that SSE did not exhaust administrative remedies because it failed to raise specific issues in the administrative proceedings as required by the Napa County Code. Additionally, the Court denied SSE’s general plan consistency claim under CEQA, holding that general plan consistency is properly reviewed with traditional mandamus under Code of Civil Procedure section 1085.

Governor Newsom’s New Executive Order Establishes End Dates For Pandemic-Related Suspensions for CEQA Filing, Posting, Notice, and Tribal Consultation Requirements and Brown Act Meeting Requirements

By Hina Gupta and Christian L. Marsh on June 17, 2021 Posted in Legislation

On June 11, 2021, Governor Newsom signed Executive Order N-08-21 (the “Order”) that establishes September 30, 2021, as the end date for COVID-19 pandemic-related suspensions for (1) deadlines for filing, noticing, and posting of CEQA documents with county clerk offices; (2) tribal consultation deadlines under CEQA; and (3) open meeting requirements. This end date for pandemic-related relief from normal CEQA procedures is certain to affect base requirements for ongoing projects.

Third District Finds County General Plan Requirements for Mitigating Traffic Impacts Present an Unconstitutional Exaction

By Christopher I. Rendall-Jackson and Christian L. Marsh on June 9, 2021 Posted in General, Litigation, Planning and Zoning

In an opinion filed on April 19, and certified for publication on May 4, 2021, the Third Appellate District in Alliance for Responsible Planning v. Taylor (County of El Dorado) held that a citizen-sponsored ballot measure requiring new development to fund all cumulative traffic mitigation prior to construction violated the Takings Clause of the Constitution by requiring new development to pay more than its fair share. The Court’s ruling reaffirms the constitutional principles of nexus and proportionality as applied to general plan policies and mitigation under the California Environmental Quality Act (“CEQA”), and limits the ability of local agencies to burden new development with the costs of mitigating impacts beyond those of their project.

Good News for California Housing: SB 7 Extends Expedited CEQA Review to Small-Scale Infill Housing Projects

By Kathryn L. Oehlschlager and Madeline R. Weissman on May 28, 2021 Posted in Legislation

Single home under construction with 2 builders on the roof

On May 20, 2021, California Governor Gavin Newsom signed into law Senate Bill 7, known as the Housing and Jobs Expansion and Extensions Act, which extends expedited California Environmental Quality Act (CEQA) judicial review for small-scale housing developments. In 2011, Assembly Bill 900, known as the Jobs and Economic Improvement Through Environmental Leadership Act, created an expedited judicial review process under CEQA for large, multi-benefit housing, clean energy, and manufacturing projects, provided that they met certain requirements, including provisions related to labor. Eligible projects were entitled to immediate review in the court of appeal—rather than superior court—and would be reviewed on an expedited timeframe. No AB 900 project has been overturned in court since the law was enacted, and implementation of the law and its benefits resulted in the creation of over 10,000 new housing units. AB 900 was repealed by its own terms on January 1, 2021.

CEQA Plaintiffs Beware: Meritless Lawsuits May Be Subject To Counter-Claims for Malicious Prosecution

By Christian L. Marsh and Madeline R. Weissman on May 21, 2021 Posted in Litigation, Mitigated Negative Declaration (MND)

In Jan Dunning et al. v. Kevin K. Johnson, APLC et al., the Fourth District Court of Appeal held that a developer and property owner could pursue its claims against a neighbor and project opponent for malicious prosecution after the developer successfully defended a meritless CEQA lawsuit against its construction of a private secondary school project. The Fourth District found that the developer established a probability of prevailing on its malicious prosecution claim by presenting evidence that the project opponents in the CEQA action pursued their claim with malice and without probable cause. This case is a warning shot to project opponents filing knowingly meritless CEQA lawsuits based on ulterior motives.

Poseidon’s Desalination Plant’s Supplemental EIR Holds Water According to the Court of Appeal

By Christian L. Marsh and Natalie C. Kirkish on May 17, 2021 Posted in Environmental Impact Report (EIR), Responsible Agencies

In California Coastkeeper v. State Lands Commission, the Third District Court of Appeal upheld the State Lands Commission’s decision to prepare a supplemental environmental impact report (EIR) for a desalination plant in Huntington Beach, overturning an earlier trial court ruling that invalidated the EIR. Limited changes to a desalination project were proposed in order to comply with desalination-related amendments to the State’s Ocean Plan. Because the prior EIR retained informational value, and the proposed changes to the Project were minor, it was appropriate for the Commission, in its capacity as a responsible agency, to prepare a supplemental EIR under the California Environmental Quality Act (CEQA). After initially releasing its opinion informally, the Court on May 7, 2021, certified the opinion for publication. Continue Reading

In First Published Opinion Interpreting SB 35, Court of Appeal Rejects City of Berkeley’s Attempts to Avoid Application of the Law and Orders Streamlined Approval of Mixed-Use Infill Project

By Kathryn L. Oehlschlager and Megan V. Unger on May 14, 2021 Posted in Legislation

On April 20, 2021, the First District Court of Appeal filed its first published opinion interpreting California Senate Bill 35’s streamlining provisions in Ruegg & Ellsworth v. City of Berkeley. The Court held that the City of Berkeley erred in finding a mixed-use development project ineligible for SB 35 streamlining. Because the project met the essential qualifications under SB 35, the First District commanded the trial court to issue a writ of mandate directing the City to approve the project without further environmental review. This marks the first published decision to enforce the State’s new affordable housing laws and is a harbinger of battles to come.

In 2015, the developer submitted an application for a mixed-use development on a surface parking lot that is part of a three-block area the Berkeley Landmarks Preservation Commission designated as a City of Berkeley Landmark in 2000, as the location of the West Berkeley Shellmound. After several years of legal wrangling with the City and stakeholders over that proposal, and following the passage of SB 35, the developer submitted a new application, proposing a mixed-use project comprised of 260 dwelling units—50 percent of which were designated as “affordable to low-income households”—above approximately 27,500 square feet of retail space and parking. Continue Reading

Properly Posting Notice of Determination Triggers Short CEQA Statute of Limitations Despite Not Providing the Notice to Petitioner as Requested

By Brenda C. Bass on May 3, 2021 Posted in CEQA Guidelines

Published on February 9, 2021, the Court of Appeal in Organizacion Comunidad de Alviso v. City of San Jose held that the City of San Jose’s (“City’s”) posting of a second, revised Notice of Determination (“NOD”) adequately triggered CEQA’s abbreviated, 30-day statute of limitations despite the fact that the City failed to provide a copy to the Petitioner’s representative as requested. While CEQA requires lead agencies to provide notices to those who have requested them, the Court held that the revised NOD in this instance provided constructive notice sufficient to trigger the 30-day statute and dismiss the case. Continue Reading

First District Finds Petitioner Failed to Exhaust Administrative Remedies in CEQA Challenge to Removal of Controversial Sculpture

By Christopher I. Rendall-Jackson on April 22, 2021 Posted in CEQA Categorical Exemptions, Exhaustion of Administrative Remedies

In an opinion filed on February 1, 2021, the First Appellate District in Schmid v. City and County of San Francisco found that petitioners challenging the City of San Francisco’s decision to remove a controversial sculpture had failed to exhaust their administrative remedies by not appealing the CEQA determination by the San Francisco Historic Preservation Committee (“HPC”) to the San Francisco Board of Supervisors (“Board of Supervisors”). The challenge involved the unelected HPC’s decision to remove a sculpture facing criticism for “displaying a racist attitude towards Native Americans,” a dispute that the court described as “a local version of the controversies over removal of commemorative symbols, generally names and statues of historical figures, that have played out across the country recently.” The Court found that, “[u]nder CEQA and San Francisco Administrative Code, chapter 31, any appeal of a categorical exemption determination must be made to the Board of Supervisors, as the body of elected officials responsible for making final CEQA determinations.” (Pub. Resources Code, § 21151(c); Cal. Code Regs., tit. 14, § 15061(e); S.F. Admin. Code, § 31.16(a).)

California Supreme Court Grants Review of Third District’s Preemption Decision

By Megan V. Unger on April 19, 2021 Posted in Environmental Impact Report (EIR), Water Quality

On December 11, 2019, the California Supreme Court granted review of the Third District’s decision in County of Butte v. Department of Water Resources, dismissing a CEQA challenge to DWR’s relicensing application to the Federal Energy Regulatory Commission (FERC) for the Oroville Dam on the basis that the claim was preempted by federal law. The Court of Appeal held the Federal Power Act (FPA) exclusively occupies the field of dam licensing and preempts state regulation, and accordingly found that it had no jurisdiction to consider the case. Continue Reading

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