On December 18, 2018, the First Appellate District, in McCorkle v. St. Helena (A153238), affirmed the trial court’s denial of a Petition for Writ of Mandate challenging the City of St. Helena’s approval of a multi-dwelling residential development. First, consistent with Public Resources Code section 21151 and interpreting case law, the court held that the City Council properly delegated to nonelected officials—the Planning Commission—the project’s design review. Second, the court found that the City did not have discretion regarding the environmental effects of the project because the City zoning code properly limited its authority to design issues. Therefore, the California Environmental Quality Act (“CEQA”) did not apply. Having determined that CEQA did not apply, the court found that it did not need to address whether the City properly found the project to fall within the Class 32 infill exemption under CEQA Guidelines section 15332.
California Supreme Court Requires De Novo Review for EIR Adequacy Challenges and Imposes Heightened EIR Requirements Connecting Environmental Impacts with Specific Health Consequences
In a long-awaited decision, on December 24, 2018 the California Supreme Court in Sierra Club v. County of Fresno (S219783) affirmed, in part, and reversed, in part, the Fifth District Court of Appeal’s decision concerning a challenge to the adequacy of an EIR prepared for the Friant Ranch retirement community (“Project”). Employing a de novo standard of review, the Court found that the Project EIR is inadequate as a matter of law because the EIR did not make a reasonable effort to connect the Project’s air quality impacts to specific health consequences (or explain why it is not feasible to do so). The Court also upheld the lead agency County of Fresno’s discretion to substitute equally effective or more superior future mitigation measures and adopt mitigation measures that do not reduce the Project’s significant and unavoidable impacts to a less-than-significant level. This decision poses significant hurdles for project proponents going forward with new, heightened requirements for EIR analysis of environmental and health impacts and a more scrutinizing, independent legal standard of review for challenges to the adequacy of an EIR.
Fourth District Upholds San Diego’s Addendum for Balboa Park Revitalization Project, Validates the CEQA Addendum Process
On October 24, 2018, the Fourth Appellate District upheld the trial court’s decision in Save Our Heritage Organization v. City of San Diego (D073064), finding that the use of an addendum as outlined in section 15164 of the California Environmental Quality Act (“CEQA”) Guideline for approval of project modifications is valid under CEQA and does
Clean Sweep for City of San Diego in Challenge to Approval of Private School
On December 20, 2017, the Fourth District Court of Appeal delivered a solid win for the City of San Diego in a multi-faceted challenge to its approval of a private school pursuant to a Mitigated Negative Declaration (“MND”). In Clews Land and Livestock LLC et al. v. City of San Diego, Petitioners Clews Land and Livestock, et al. (“CLL”) argued that an Environmental Impact Report (EIR) was required because of significant impacts in the areas of fire hazards, traffic, noise, recreation, and historic resources, and because the final MND included impacts not disclosed in the draft. CLL further argued that the City’s approval violated the applicable community land use plan and historic resources provisions of the San Diego Municipal Code (SDMC.).
DWR Certifies EIR for WaterFix, Triggering 30-Day Deadline for Opponents to File Suit
On July 21, 2017, the California Department of Water Resources (“DWR”) certified the final environmental document and issued its Notice of Determination for the California WaterFix, a significant new water infrastructure component proposed by DWR and United States Bureau of Reclamation. DWR’s action triggered a 30-day statute of limitations to raise CEQA challenges to the
Up One Day, Down the Next—California Air Resources Board Receives Mixed Reviews in its Implementation of its Cap-and-Trade Program and Low Carbon Fuel Standard
In recent weeks, California appellate courts issued two decisions regarding California Air Resources Board (CARB) programs implemented under AB32, the Global Warming Solutions Act, with mixed results. The first decision upheld the legality of a key element of CARB’s cap-and-trade program, the auction of emission credits. In that case, the Third Appellate District rejected an industry challenge and found that the auctions are within the authority granted to CARB by AB32 and are not an illegal tax. In the second case, the Fifth Appellate District delivered a setback—the second in that court—for CARB’s Low Carbon Fuel Standard (LCFS), finding the agency failed under the California Environmental Quality Act (CEQA) to adequately analyze the potential effects of NOx emissions resulting from the increased use of biofuels mandated by the LCFS. CARB was first ordered by the court to correct this CEQA violation in a 2013 writ of mandate, but the agency failed to do so in its 2015 re-adoption of the LCFS. The court, noting the environmental benefits of this program, however, did not invalidate the LCFS and only froze the required standards at 2017 levels until CARB corrects the CEQA deficiencies. These decisions do little to clarify the muddy waters around how agencies should analyze greenhouse gas emissions under CEQA, as that analysis is inextricably intertwined with the effectiveness of the State’s greenhouse gas regulatory programs.
Fourth District Leaves Door Open for Attorney-Fee Award to Real Party in Interest
The Fourth District Court of Appeal recently issued its opinion in Save Our Heritage Organisation v. City of San Diego (2017) 11 Cal.App.5th 154, the latest round of litigation over the site development plan for a revitalization project in San Diego’s Balboa Park, finding that, under some circumstances, a project proponent may recover attorneys’ fees
Ninth Circuit Upholds Final EIS for Tahoe Area Regional Plan Update
In 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.
Fifth District Allows Real Party to Recover Costs of Record Preparation
On, 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.
Court of Appeal Rejects Use of Categorical Exemption, Muddies the Waters on Standard of Review for Exceptions
The Fourth District has waded into the world of CEQA exemptions, holding that the City of Palm Springs improperly relied upon the Class 5 categorical exemption for “minor alterations in land use limitations.” However, in a confusing discussion of whether an exception to that exemption might apply, the Court seemed to ignore the Supreme Court’s guidance in Berkeley Hillside Preservation v. City of Berkeley. This marks at least the second instance in which, despite a clear ruling in Berkeley Hillside, a court of appeal has so grossly misread the Supreme Court’s ruling, which portends a confusing road ahead for categorical exemptions. (See also Paulek v. Western Riverside County Regional Conservation Authority (2015) 238 Cal.App.4th 583, now unpublished, which applied the wrong standard of review to the unusual circumstances exception).
In 2013, the City approved a General Plan amendment removing reference to minimum density requirements for each land use designation. The General Plan had stated that, while the maximum densities were limits, the lower thresholds represented “a minimum amount of development anticipated” in that land use designation – in other words, they were predictions, not lower bounds. The City found that the action was exempt under CEQA’s Class 5 categorical exemption for “minor alterations in land use limitations in areas with an average slope of less than 20%, which do not result in any changes in land use or density . . .”, because it was simply revising the General Plan to conform with the City’s ongoing permitting practices.