In Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880 [certified for partial publication], the Court of the Appeal for the First District affirmed that the construction of three new single-family homes on adjacent parcels in the Berkeley Hills was exempt under CEQA’s Class 3 exemption for single-family residences in urbanized areas.
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.
Since the 2004 decision in Bakersfield Citizens for Local Control v. City of Bakersfield, CEQA petitioners challenging development projects often assert that the lead agency has failed to adequately analyze urban decay (“blight”) impacts on historic downtown areas or other existing business districts. However, such claims have met with limited success. (See, for example, our blog posts concerning the 2016 decisions in Joshua Tree Downtown Business Alliance v. County of San Bernardino and Naraghi Lakes Neighborhood Preservation Association v. City of Modesto.) The First Appellate District has just issued another decision addressing—and rejecting—urban decay claims. In Placerville Historic Preservation League v. Judicial Council of California (filed 9/15/17; certified for publication 10/16/17), the Court upheld the EIR prepared for the new El Dorado County courthouse in the City of Placerville, finding that the EIR’s analysis of potential urban decay impacts was supported by substantial evidence.
On May 3–4, 2017, the California Supreme Court heard oral arguments in three cases with significant implications for California land use law. Below we summarize the main issue(s) argued in each matter and possible outcomes. Because many of these cases have been pending for years, the Court that originally voted to grant review has since been dramatically transformed by Governor Brown’s newest appointments, including Justices Cuéllar and Kruger. Consequently, predicting the likely outcome in any of these cases is particularly difficult.
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.
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.
On July 19, the First District Court of Appeal published its opinion in Communities for a Better Environment v. Bay Area Air Quality Management District. In this case, Communities for a Better Environment (CBE) and a host of other environmental groups sought to challenge a rail-to-truck facility for the transloading of crude oil permitted by the Bay Area Air Quality Management District (BAAQMD). The appeals court affirmed the trial court’s ruling that CBE’s petition was time barred under Section 21167(d) of the Public Resources Code for failure to bring the claim within 180 days of BAAQMD’s approval of an Authority to Construct (ATC) that authorized the transloading of Bakken crude. In doing so, both courts rejected the argument by CBE that the “discovery rule” should apply in CEQA cases where, as here, there is no public notice of the approval.
Since the passage of AB 32 in 2006, the methods for climate change analysis under CEQA have taken a number of turns. Most recently, the California Supreme Court in Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, concluded that an EIR for a major development project (Newhall Ranch) lacked substantial evidence to show that the project’s reductions in emissions would be consistent with AB 32’s statewide goal for greenhouse gas (GHG) reductions by the year 2020. In a harbinger of its impending opinion in Cleveland National Forest v. San Diego Assoc. of Governments, the Court suggested that AB 32’s goal for 2020 may become less and less relevant as 2020 fast approaches. The Supreme Court’s opinion did state, however, that “[w]hile the burden of CEQA’s mandate in this context can be substantial, methods for complying with CEQA do exist”—expressly referencing consistency with regional climate action plans or sustainable communities strategies under SB 375.
On June 30, the First Appellate District issued an opinion that offered some hope to agencies struggling with climate analysis by rejecting a challenge to the regional GHG reduction mandates of “Plan Bay Area,” the sustainable communities strategy developed by the Metropolitan Transportation Commission (MTC) and Association of Bay Area Governments (ABAG) to comply with the requirements of SB 375. In Bay Area Citizens v. Association of Bay Area Governments, the appeals court rejected petitioner’s argument that the EIR for the Plan should have taken into account reductions in GHGs that will occur under statewide GHG reduction mandates.
In 2014, the appellate decision in California Clean Energy Committee v. City of Woodland (“CCEC”) caught many lead agencies and CEQA consultants off-guard, by holding that the type of energy impacts analysis conducted in many EIRs actually fails to comply with CEQA. EIRs prepared post-CCEC have generally included a much more in-depth analysis of energy impacts, to ensure compliance with that decision. But what to do about EIRs certified prior to CCEC, where further approvals are necessary or the EIR is being challenged? A recent decision by the First District Court of Appeal, Ukiah Citizens for Safety First v. City of Ukiah (June 21, 2016) rejects the use of an addendum to address the issue.
In 2011, Costco applied for a use permit and site rezone to allow construction of a 148,000-square-foot retail facility – including a warehouse store, over 600 parking stalls, and a 16-pump gas station – in the City of Ukiah. In December 2013 and January 2014, the City adopted the necessary rezoning legislation, certified the EIR, and adopted a statement of overriding considerations. Ukiah Citizens for Safety First, a local citizens group, filed suit to challenge the EIR in the Mendocino County Superior Court. Shortly after the suit was filed, the Third Appellate District issued its opinion in CCEC (225 Cal.App.4th 173). The City concluded that the CCEC decision required “a more detailed discussion of energy use than was previously understood at the time the EIR was certified,” and thereafter prepared an addendum and lodged the addendum with the trial court, in an effort to satisfy the more exacting standard articulated in CCEC.