On December 22, the Second Appellate District certified for publication its November 30 opinion in Los Angeles Conservancy v. City of West Hollywood, concerning a proposed mixed-use redevelopment of the “Melrose Triangle” site that would result in demolition of the existing buildings. In this decision, the Court rejected the Conservancy’s claim that the City gave short-shrift to an alternative that would have preserved one of the buildings, which is located at 9080 Santa Monica Boulevard and may be eligible for listing on the California Register of Historical Resources as an exemplar of “Streamline Moderne Style” (the “9080 Building”). Notably, the Court’s ruling reaffirmed prior case law holding that a lead agency may find an alternative to be infeasible where it is impractical or undesirable for reasons of public policy.
Fourth Appellate District Upholds City of San Diego’s Rejection of Subdivision Project and Related MND
CEQA decisions usually arise in the context of a challenge to a lead agency’s approval of a project and a related CEQA document. However, in a recent decision, Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034 (certified for publication on May 23, 2017), the Fourth Appellate District resolved a court action arising from a lead agency’s rejection of a project and its MND, and did so in favor of the lead agency.
Sixth District Upholds County Zoning Updates Against Piecemealing Claim, Rejects Challenge to Negative Declaration Based on “Wholly Speculative” Impacts
In March 2017, the Sixth Appellate District issued its decision in Aptos Council v. County of Santa Cruz, which rejected a two-pronged challenge to the County of Santa Cruz’s adoption of three zoning ordinances revising existing sections of the County zoning code, including an ordinance altering height, density, and parking requirements for hotels. In affirming denial of the petition for writ of mandate, the appellate court held that (1) the County did not engage in improper “piecemeal” review of the three ordinances under CEQA, and (2) the negative declaration for the hotel ordinance did not need to consider environmental impacts that could result from future hotel development, where those impacts were not reasonably foreseeable.
Fourth Appellate District Upholds EIR for 200-Acre Specific Plan Development in Riverside County
In 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.
Downey Brand Partners to Speak at AEP 2017 State Conference in San Francisco
I 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.”
California Supreme Court Grants Review in Medical Marijuana CEQA Case
On 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?
Local Ordinance Regulating Medical Marijuana Dispensaries is Not a “Project” Subject to CEQA Review, Fourth Appellate District Rules (Again)
In 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.
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.
First Appellate District Upholds Use of Subsequent Mitigated Negative Declaration for Revisions to Use Permit for Religious Facility, Rejects Claim of General Plan Inconsistency
On August 31, the First Appellate District issued its decision in Coastal Hills Rural Preservation v. County of Sonoma, which centered on the applicable standards and appropriateness of proceeding on a subsequent mitigated negative declaration (SMND), rather than an environmental impact report (EIR) under CEQA, where changes had been incorporated in a religious facility use permit that was originally reviewed under a mitigated negative declaration (MND). The appeals court affirmed the trial court judgment for the lead agency, Sonoma County, ruling that use of the SMND was appropriate and that the revised permit was not inconsistent with the County’s “Resources and Rural Development” general plan designation.
Second Appellate District Upholds Use of Class 3 Exemption and Rejects Claim That “General Effects” of Operating a Business Constitute Unusual Circumstances
In its July 21 decision in Walters v. City of Redondo Beach, the Second Appellate District rejected a challenge to the use of a Class 3 categorical exemption for a proposed car wash and coffee shop in the City of Redondo Beach. The decision is helpful for lead agencies, as it clarifies that the general effects of an operating business, such as noise, parking, and traffic, cannot serve as unusual circumstances in and of themselves.
Redondo Auto Spa filed an application with the City of Redondo Beach (City) to build a 4,080 square-foot, full-service car wash and small coffee shop on a property zoned for commercial uses. In approving the project, the City issued a conditional use permit (CUP), found that the project was categorically exempt from CEQA review under the Class 3 exemption for a “store, motel, office, restaurant or similar structure not involving the use of significant amounts of hazardous substances,” (CEQA Guidelines section 15303(c)), and imposed several conditions concerning noise, operating hours, and capacity (a vehicle limit of 10,000 cars per month).
Five neighboring homeowners filed a petition for writ of mandate challenging the City’s CEQA exemption determination and issuance of the CUP. The trial court upheld the City’s actions and denied the writ petition, and the neighbors appealed.