Residential Development Project Consistent with Specific Plan Found Exempt from Further CEQA Review

In Citizens’ Committee to Complete the Refuge v. City of Newark (2021) 74 Cal.App.5th 460, the First District Court of Appeal affirmed the trial court’s ruling that a residential project in a specific plan area in the city of Newark fell within Government Code section 65457, a statutory exemption under CEQA for residential development projects that are consistent with a specific plan for which an Environmental Impact Report (EIR) has been certified.  Petitioners argued a subsequent EIR was required due to three project changes that they claimed led to new significant impacts.  However, the Court found the exemption applied to the project as the exemption’s focus is to increase the supply of housing and it therefore should apply to projects that meet the criteria “regardless of possible environmental impacts.”

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2022’s New State Housing Laws

This week Governor Newsom signed a series of bills intended to accelerate housing development in California. Two bills – AB 2011 and SB 6 – seek to facilitate residential redevelopment of commercially zoned areas, though they contain stringent requirements that may put their benefits out of reach for many developers. AB 2097 largely eliminates local parking requirements for most residential and non-residential development projects near public transit in order to both facilitate housing and reduce car dependence. AB 2334 makes changes to the Density Bonus Law, granting benefits to a larger swath of 100% affordable projects. Lastly, SB 886 establishes a CEQA exemption for university housing projects meeting certain criteria, following the dispute over UC Berkeley’s enrollment increase earlier this year. Though the new laws are designed to facilitate housing, and particularly affordable housing, the bills do not directly address many of the financial and legal obstacles to residential development in California. Therefore, we anticipate that future Legislative changes will be needed for the Governor to meet his ambitious 2017 pledge to build 3.5 million new housing units by 2025.

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Court Holds CEQA Is Not Preempted in Federal Hydroelectric Relicensing Proceeding

In County of Butte v. Dep’t of Wat. Resources (2022) 13 Cal.5th 612, issued on August 1, 2022, the California Supreme Court carved out a role for the California Environmental Quality Act (“CEQA”) even where the project is largely governed by a federal proceeding.  The case arose in connection with the relicensing of the Oroville Dam by the Federal Energy Regulatory Commission (“FERC”).  The Federal Power Act (“FPA”) (16 U.S.C. § 791, et seq.) delegates to FERC the authority to license hydroelectric dams; the FPA has “a significant preemptive sweep.”  Despite a comprehensive federal process for licensing dams, the Supreme Court held that state agency review under CEQA was not entirely preempted.  As significant as the ruling itself is the strident dissent, penned by outgoing Chief Justice Cantil-Sakauye.

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Third District Invalidates Water Bottling Facility EIR for Overly Narrow Project Objectives and Failure to Recirculate

On April 20, 2022, the Third District Court of Appeal filed its opinion in We Advocate Through Environmental Review v. County of Siskiyou (2022) 78 Cal.App.5th 683, reversing the trial court’s judgment upholding the County’s Environmental Impact Report (“EIR”) for a water bottling facility. The court held that (1) the County’s EIR for the botting facility defined the project objectives in an overly narrow manner; and (2) the County’s process for evaluating the project’s climate change impacts was flawed. This is one of two CEQA cases brought by the same Petitioners challenging the facility; see our blog post on the related CEQA case here.

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Third Circuit Makes Clear That Lead Agencies and Responsible Agencies Alike Must Make Findings Under CEQA

On May 11, 2022, the Third District Court of Appeal published its opinion in We Advocate Through Environmental Review v. City of Mount Shasta (2022) 78 Cal.App.5th 629, reversing the decision below and ordering the trial court to grant a petition for writ of mandate, specifying actions under CEQA that the City of Mt. Shasta (“City”) must take before issuing a wastewater permit for a water bottling facility. The court held that the City, acting as a responsible agency, had failed to make findings or support such findings as required by Public Resources Code section 21081 on the significant effects identified by the lead agency, Siskiyou County (“County”), in its environmental impact report (“EIR”). This is one of two CEQA cases brought by the same Petitioners challenging the facility; see our blog post on the related CEQA case here.

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Trial Court Decision Indicates that Housing Must be Permitted at General Plan Density, Regardless of More Restrictive Zoning

In YIMBY v. City of Los Angeles (Super. Ct. L.A. County, 2022, No. 21STCP03883), a Los Angeles County trial court decided a number of issues under California housing laws. Though the trial court decision carries neither precedential nor persuasive value, it may portend the direction in which courts will interpret these relatively new laws. In particular, the case held that the Housing Accountability Act (HAA) (Gov. Code, § 65589.5) requires a City to permit housing development at the density allowed under its general plan regardless of whether the general plan is consistent with the applicable zoning. It also held that an SB 330 preliminary application is considered “submitted” once the required information is provided, even if the units proposed are found to exceed permitted density, and the application does not contain information required by local ordinance beyond the statutory categories.

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Housing Accountability Act Only Applies to Multi-Unit Residential Projects

In Reznitskiy v. County of Marin (2022) 79 Cal.App.5th 1016, the First District held that the Housing Accountability Act, Government Code Section 65589.5 (HAA), does not apply to a project consisting of one individual residential unit. In unpublished portions of the opinion not further discussed in this summary the Court also held that equitable estoppel did not apply and that substantial evidence supported the agency’s determination.

The HAA is a statute designed to increase the approval and construction of new housing. It provides a number of benefits to “housing development projects,” including prohibiting an agency from disapproving such a project on the basis of any standard that is not objective.

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CEQA Lawsuit, Latest in Decades of Local Opposition Delaying Marin County Housing Development, Met with Judicial Rebuke: “Something is very wrong with this picture”

In Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700, the First District Court of Appeal considered the adequacy of an EIR certified by Marin County (County) for a residential development. The Court rejected a number of arguments raised by opponents, most prominently the argument that the EIR erred in recognizing limits on the County’s discretion under two prior federal court stipulated judgments, and upheld the EIR. The opinion concludes with an acknowledgment that CEQA is manipulated to be a tool for obstruction of housing projects, and that the record in this case revealed extreme delay combined with local government animus, vindicating the worst fears of Supreme Court jurists and CEQA commentators.

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Trial Court Failed to Take Catalytic Effect of CEQA Lawsuit into Account When Denying Petitioners Attorney’s Fees Following Voluntary Dismissal

In Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, the Third District Court of Appeal held that the trial court abused its discretion in denying motions for attorney’s fees arising out of the voluntary dismissal of coordinated petitions following project changes and decertification of the challenged EIR under pressure from Governor Newsom.

The Department of Water Resources (DWR) initially proposed two tunnels to convey fresh water from the Sacramento River to pumping stations in the Sacramento San Joaquin Delta (Project). Lawsuits were brought by a number of organizations (Plaintiffs) challenging the Project. The suits were coordinated at the trial court level. While the coordinated proceeding was pending, newly elected Governor Newsom announced that he did not support the dual-tunnel proposal, and directed DWR to pursue a single-tunnel conveyance instead. DWR decertified its EIR and rescinded its Project approvals, and the various lawsuits were voluntarily dismissed.

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Emergency Pandemic Tolling no Excuse for Untimely CEQA Suit; Petitioner’s Attempts to Evade Procedural Dismissal Unsuccessful

In Committee for Sound Water & Land Development v. City of Seaside (2022) 79 Cal.App.5th 389, the Sixth District Court of Appeal upheld the trial court’s finding that a CEQA challenge to a proposal to develop a large “Mixed-Use Urban Village” on the former Fort Ord military base (Project) was time-barred. The Court also found that an alleged violation of due process to have been mooted by changes in the law governing land use on the former military base.

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