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California Land Use & Development Law Report Legal Commentary on Planning and Development

Category Archives: CEQA

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CEQA Lawsuit Fails to Slow High-Speed Rail

Posted in CEQA, Public Agencies

Several parties, including the San Francisco Peninsula communities of Atherton, Menlo Park, and Palo Alto, challenged the California High-Speed Rail Authority’s decision on where to route trains travelling between the Central Valley and the Bay Area.  The court of appeal recently upheld the Authority’s program EIR for the routing, but rejected the Authority’s argument that… Continue Reading

CEQA Compliance Not Required For Council-Adopted Land Use Initiative Measure

Posted in CEQA, Land Use, Planning and Zoning

Developers, project opponents, agencies and courts often lose the forest for the trees when considering CEQA issues.  A prime example is the conflicting appellate authority and public debate on the question whether a city council’s adoption of a voter-sponsored initiative measure is subject to CEQA. In Tuolumne Jobs & Small Business Alliance v. Superior Court,… Continue Reading

New Proposed CEQA Guidelines on Traffic Impacts Issued: It’s How Far You Go, Not How Slow

Posted in CEQA, Land Use, Planning and Zoning

By Stephen Kostka and Barbara Schussman Senate Bill 743, enacted in 2013, was designed to create a process for changing the way traffic impacts are examined under CEQA. The concept was to take the focus away from vehicle delay, measured by level of service, which has resulted in mitigation requirements to increase intersection and road… Continue Reading

No Treasure for Challenger on Appeal: Treasure Island EIR Upheld

Posted in CEQA

Three years after the San Francisco Board of Supervisors unanimously approved a major redevelopment project on Treasure Island and Yerba Buena Island, an appellate court affirmed a lower court judgment upholding the project’s EIR.  Citizens for a Sustainable Treasure Island v. City and County of San Francisco, A137828 (First District, July 7, 2014). In 2011,… Continue Reading

Airport Challenge Does Not Fly: Court Upholds Use of Addendum for Changes to San Jose Airport Master Plan

Posted in CEQA, Climate Change, Endangered Species

The City of San Jose’s use of an addendum for recent modifications to the San Jose Airport’s Master Plan has been upheld by the court of appeal.  Citizens Against Airport Pollution v. City of San Jose, H038781 (6th Dist.  July 2, 2014)  In 1988, the City of San Jose began to prepare an update to its… Continue Reading

Categorical Exemptions Under CEQA — California Supreme Court Grants Review of Another Case Involving the Unusual Circumstances Exception

Posted in CEQA

In a recent case decided by the Third District Court of Appeal the court upheld the use of a CEQA exemption for a proposed rodeo at a county fairground despite claims it would pollute  a nearby creek.   Citizens for Environmental Responsibility v. State of California ex rel. – 14th Dist. Agricultural Association (No. C070836).     The… Continue Reading

Greenhouse Gas and Climate Change Impacts: CEQA Practice Tips

Posted in CEQA, Climate Change

The analysis of climate change impacts under CEQA has rapidly evolved over the last several years. For this reason and others, nearly every challenge to an environmental impact report today features an attack on the EIR’s analysis of greenhouse gas emissions. Fortunately, amendments to the CEQA Guidelines and recent court decisions have provided environmental professionals… Continue Reading

Highway 101 EIR Felled by Redwoods

Posted in CEQA

Caltrans’s analysis of impacts to redwoods from  realignment of a one-mile stretch of Highway 101 has been rejected.  The court of appeal ruled that the project EIR both failed to identify any significance threshold for impacts to redwoods and impermissibly labeled mitigation measures as project features.  Lotus v. Department of Transportation, No. A137315 (First Dist.,… Continue Reading

Challenge To Annexation Dismissed Due To Failure To Comply With Required Procedures

Posted in CEQA, Land Use, Public Agencies

CEQA and other claims challenging a completed annexation were dismissed because they had not been brought in a reverse validation proceeding.  Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (No. F066544, 1/28/14) The Stanislaus County Local Agency Formation Commission approved annexation of land into the City of Ceres, relying on an EIR the… Continue Reading

CEQA Year In Review 2013

Posted in CEQA

A Summary of Published Appellate Opinions Under CEQA By Steve Kostka, Barbara Schussman, Julie Jones, Marc Bruner & Christopher Tom   The CEQA cases published in 2013 continued to reflect a recognition that CEQA does not require perfection, but rather a reasonable effort to provide useful environmental information — a trend that continued from the… Continue Reading

Existing Contamination On A Development Site Does Not Necessarily Trigger Preparation Of An EIR

Posted in CEQA, Environmental Regulation

Proposals to redevelop infill sites can often present difficult issues relating to how the potential effects of preexisting contamination should be evaluated under CEQA.  In a recently published opinion, the court in Parker Shattuck Neighbors v Berkeley made it clear that, in the absence of real evidence a significant environmental impact might occur,  the fact… Continue Reading

High Hurdle for EIR Recirculation Claims Set by Appellate Court

Posted in CEQA

In a recently published decision,  a California court of appeal rejected a challenge to an EIR alleging the agency was required to recirculate the EIR when a new alternative was proposed after the draft EIR had already been circulated. South County Citizens for Smart Growth v. County of Nevada, 2013 WL 5936664 (Cal. App. 3… Continue Reading

Comment Periods Open on New Fracking Regulations and Scope of Statewide EIR

Posted in CEQA, Environmental Regulation

In the face of mounting public pressure to address the potential perils of hydraulic fracturing, California has embarked upon a multi-faceted program to strengthen its oil and gas regulations, perform comprehensive environmental studies, and increase public disclosure.  On November 15, 2013, the Department of Conservation published two notices seeking comments on steps it is taking to… Continue Reading

Court Rejects Claim That New General Plan Housing Element Requires New EIR

Posted in CEQA, Planning and Zoning

Affordable housing advocates have lost a claim that Napa’s new General Plan Housing Element required a new environmental impact report.  Latinos Unidos de Napa v. City of Napa, No. A134959 (1st Dist., Oct. 10, 2013, publication ordered Nov. 5, 2013).  The court upheld the city’s decision that its 2009 Housing Element was not a new… Continue Reading

EPA Publishes Draft Scientific Report To Support Significant Expansion of Clean Water Act Jurisdiction

Posted in CEQA, Environmental Regulation, NEPA, Wetlands

On September 17, 2013, the Environmental Protection Agency announced the release of a draft scientific report that is widely seen as a prelude to upcoming regulations that would significantly expand federal permitting jurisdiction under the Clean Water Act. See our update for more information about the draft report, which is titled “Connectivity of Streams and… Continue Reading

Ninth Circuit Moves Low Carbon Fuel Regulations Closer to Validation

Posted in CEQA, Environmental Regulation, NEPA

Many CEQA and NEPA analyses of greenhouse gas impacts assume implementation of the Low Carbon Fuel Standard adopted by the California Air Resources Board. In a boost to the credibility of these analyses, the Ninth Circuit has dissolved a pending injunction and rejected multiple challenges to the Low Carbon Fuel Standard. Rocky Mountain Farmers Union… Continue Reading

Senate Bill 743: Legislature Sends CEQA Amendments to Governor

Posted in CEQA

Following a week of intense negotiations, the Legislature has sent Governor Brown a set of  CEQA amendments.  Senate Bill 743 replaces – at least for now — Senate Bill 731, which had become an unwieldy mass of 15 separate CEQA revisions.  (See our April 26 post CEQA Modernization?  Not really.)  Although it adds detailed provisions… Continue Reading

County Can Establish Winery Uses By Right Despite Environmental Impacts

Posted in CEQA

San Diego County’s decision to permit visitor-serving wineries by right has survived CEQA and general plan challenges.  San Diego Citizenry Group v. County of San Diego, 219 Cal. App. 4th 1 (2013).  Deferring to the county’s decision to encourage such wineries – despite their unavoidable environmental impacts – by eliminating use permit requirements, the court… Continue Reading

Faulty Greenhouse Gas Analysis Sinks EIR

Posted in CEQA, Climate Change

An environmental impact report must not only identify a proper significance threshold for a project’s greenhouse gas (GHG) emissions; it must then correctly apply that threshold.  The EIR for a Wal-Mart Supercenter failed this test in Friends of Oroville v. City of Oroville, No. 070448 (3rd Dist., Aug. 19, 2013).  Wal-Mart proposed to replace an… Continue Reading

No CEQA Review Required For Adoption of CEQA Thresholds of Significance

Posted in CEQA

A court of appeal today rejected a CEQA challenge to an air pollution control district’s published thresholds of significance for air pollution impacts.  California Building Industry Association v Bay Area Air Quality Management District, No. 135335 (First District, July 13, 2013).   The thresholds, contained in the District’s “CEQA Air Quality Guidelines,” were first adopted… Continue Reading

Use Of Future Baseline In CEQA Analysis Approved By California Supreme Court

Posted in CEQA

The California Supreme Court has both resolved a split in the appellate courts and forged new law on the baselines agencies may use to assess projects’ environmental effects under CEQA.  Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, Case No. S202828 (Cal. Supreme Court, August 5, 2013). In an unusual 3-3-1 decision, the… Continue Reading