In United Auburn Indian Community of the Auburn Rancheria v. Brown (2016) 4 Cal.App.5th 36, the Third Appellate District affirmed the trial court and rejected challenges to Governor Brown’s concurrence in a determination made by the Secretary of the Interior (“Secretary”) concerning the Enterprise Rancheria of Maidu Indians of California’s (“Enterprise Tribe”) request to acquire
SUPREME COURT FINDS RESIDENTIAL PROJECT INCONSISTENT WITH THE CITY OF ORANGE’S GENERAL PLAN
On December 15, 2016, the Supreme Court filed, Orange Citizens for Parks & Recreation v. Superior Court (2016) __ Cal.App.5th __ (2016 Cal. LEXIS 9595), a unanimous opinion finding a 39-unit residential development project proposed on 50 acres of land in the foothills of the Santa Ana Mountains could not be found consistent with the
: FIRST APPELLATE DISTRICT UPHOLDS ADEQUACY OF THE SUPPLEMENTAL EIR PREPARED FOR THE GOLDEN STATE WARRIORS NEW ARENA
In Mission Bay Alliance v. Office of Community Investment & Infrastructure (2016) 6 Cal. App. 5th 160, the First Appellate District affirmed the trial court’s ruling that the Office of Community Investment and Infrastructure (OCII) complied fully with CEQA in approving a proposed 488,000-square foot multipurpose event center, which would serve as the Golden State
SECOND APPELLATE DISTRICT REJECTS CEQA CHALLENGE TO CHANGES TO A HOSPITAL REDEVELOPMENT PLAN
In an unpublished opinion, Ventura Realty & Investment Company v. City of San Buenaventura, 2016 Cal. App. Unpub. LEXIS 7486, the Second Appellate District affirmed the trial court’s rulings and upheld the City of San Buenaventura’s (City) approval of changes to a plan to redevelop a 15-acre hospital district (Hospital Plan) proposed by Community
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.
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.
Downey Brand’s Fall 2016 CEQA and Land Use Litigation Update
On October 7, I had the privilege of presenting the annual CEQA and Land Use Litigation Update at the League of California Cities’ Annual Conference & Expo in Long Beach. The Annual Conference is the state’s largest gathering of city officials from throughout California, and addresses a host of cutting-edge legal issues in the field
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.
GOVERNOR SIGNS SWEEPING CLIMATE CHANGE BILL, SENATE BILL 32, INTO LAW
Governor Jerry Brown signed Senate Bill (S.B.) 32, which will extend the State’s greenhouse gas targets from 2020 to 2030. The legislation builds on Assembly Bill (A.B.) 32, the California Global Warming Solutions Act of 2006, which required California to reduce greenhouse gas levels to 1990-era levels by 2020. Under S.B. 32, the State will
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.