Cities charged with preparing EIRs for proposed projects often look to their general plans and other adopted policies to set thresholds of significance for assessing environmental impacts. A lead agency’s discretion to select a particular significance threshold has long been afforded deference under CEQA’s “substantial evidence” standard of review. Potential impacts assessed under a general plan-based significance threshold have similarly enjoyed deferential review under the substantial evidence standard. However, in East Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281, as modified on denial of rehearing, the Third Appellate District appears to have relied on the less deferential “fair argument” standard in holding that compliance with a general plan policy does not conclusively establish there is no significant environmental impact. In so holding, the court found that the City of Sacramento (“the City”) failed to adequately address the traffic impacts related to a development project.
Limitations on Subsequent Review Under CEQA
Since the California Supreme Court’s 2016 ruling in Friends of the College of San Mateo Gardens v. San Mateo County Community College District, California appeals courts have issued a spate of decisions addressing subsequent review under the California Environmental Quality Act (“CEQA”), including two in the last two months of 2016. In both cases, the appeals court upheld the agency’s decision not to undertake further environmental review.
Banning Ranch Conservancy v. City of Newport Beach
On March 30, 2017, in the first of at least three CEQA rulings expected this year, the California Supreme Court issued its long-awaited decision in Banning Ranch Conservancy v. City of Newport Beach. In a unanimous opinion authored by Justice Carol Corrigan, the Court invalidated an EIR for the coastal development at Banning Ranch approved by the City of Newport Beach. Despite the fact that the EIR addressed in detail the project’s physical impacts on wetlands and sensitive habitats, the Court nevertheless held that it failed to adequately disclose and consider the controversy surrounding the potential presence of Environmentally Sensitive Habitat Areas (“ESHA”) under the Coastal Act. This decision falls within a growing line of cases mandating inclusion of non-CEQA regulatory requirements within the confines of the CEQA environmental review process, and in a manner that places ever greater burdens on lead agencies and EIR preparers.
Second District Denies Mandatory Relief from Adverse Judgment to Plaintiff Whose Counsel Failed to Timely Lodge Administrative Record
On April 13, the Second Appellate District disapproved two of its prior decisions that had expansively interpreted the availability of mandatory relief from default or dismissal under Code of Civil Procedure section 473(b). In The Urban Wildlands Group, Inc. v. City of Los Angeles, the court held that this mandatory relief provision did not apply to an adverse judgment at a CEQA merits hearing, resulting from plaintiff’s failure to lodge the administrative record with the court prior to the hearing.
The underlying mandate petition and complaint alleged a single cause of action challenging the City’s finding that a streetlight replacement project using LED lights was exempt from environmental review under CEQA. The parties stipulated that plaintiff would prepare the administrative record and, following certification by the City, lodge it with the trial court. However, plaintiff never lodged the certified record. At the hearing on the merits, the trial court determined that plaintiff could not present sufficient evidence to support its arguments because it failed to lodge the record. Accordingly, the trial court denied the plaintiff’s petition and complaint and entered judgment in favor of the City.
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
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.”
CEQA Implications of California Supreme Court Decision Finding Public Officials’ and Employees’ Personal Accounts Do Not Escape Reach of Public Records Act
On March 2, 2017, the California Supreme Court ruled in City of San Jose v. Superior Court that where a public employee uses a personal email account or texts to communicate about the conduct of public business, those writings may be subject to disclosure under the California Public Records Act (“PRA”). While resolving one long-debated question in California law, this decision also raised myriad new issues, including issues that are specifically relevant to litigation under the California Environmental Quality Act (“CEQA”).
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?
Ninth Circuit Rejects NEPA Challenges to Los Angeles Metro’s Light Rail Extension Project
In Japanese Village, LLC v. Federal Transit Administration, 2016 U.S. App. LEXIS 21700, the Ninth Circuit affirmed the district court’s rulings and rejected NEPA challenges to the Los Angeles Metropolitan Transportation Authority’s (“Metro”) approval for a 1.9-mile light rail extension line in downtown Los Angeles. The project was proposed to be funded by the