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.
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.
Appellate Court Rejects Urban Decay Claim Based on Lay Witness Opinion, Upholds Mitigated Negative Declaration
When cities and counties conduct CEQA review of a large-scale commercial development project including a major national chain like Wal-Mart or Costco, a common objection is that the project will displace existing, locally owned retail establishments, resulting in a significant impact on the environment, in the form of urban decay (or “blight”). This is generally understood to involve abandoned buildings or shopping centers physically deteriorating and becoming a magnet for graffiti, gang/drug activity, and illegal dumping. This claim is often brought in CEQA litigation resulting from approval of such retail projects.
Recently, Division Two of the Fourth Appellate District issued its decision in Joshua Tree Downtown Business Alliance v. County of San Bernardino (June 15, 2016; certified for partial publication on July 13, 2016), upholding a mitigated negative declaration and addressing a key issue for lead agencies and courts evaluating an urban decay claim: when do the comments or testimony of a lay witness constitute substantial evidence of an urban decay impact? The appellate court also rejected a claim of general plan inconsistency, affirming the broad discretion that local governments enjoy in interpreting their general plans.
Fifth Appellate District Rejects CEQA and General Plan Consistency Challenges to Modesto Commercial Development
The City of Modesto and Downey Brand client Berberian Holdings, L.P. (“Berberian”), have prevailed in a legal challenge to a commercial development project proposed by Berberian. On June 7, the Fifth District Court of Appeal issued a 45-page unpublished opinion in the action (Naraghi Lakes Neighborhood Preservation Association v. City of Modesto), affirming