Attorneys from Perkins Coie presented the 33rd Annual Land Use and Development Law Briefing on January 31, 2023.
Topics included:
A full
The firm’s annual publication, CEQA Year in Review, a summary of 2022 published decisions involving the California Environmental Quality Act, is now available.
Old East Davis Neighborhood Association v. City of Davis
73 Cal. App. 5th 895 (2022)
The court of appeal upheld the City’s determination that a mixed-use development was consistent with general plan policies requiring new buildings to maintain scale transition and provide an architectural fit with the neighborhood. The court observed that the applicable policies did not provide a formulistic method for determining whether a proposed structure met the transition requirements. Rather, this determination relied on subjective measures and the dispute was over conflicting evidence on matters such as whether step-backs, extra-wide alleys and other factors created a scale that was consistent with the area’s traditional scale and character. Reviewing each of the City’s consistency determinations, the court found that a reasonable person could have reached the same conclusion based on the record, and the City’s decision was therefore supported by substantial evidence.
Bankers Hill 150 v. City of San Diego
74 Cal. App. 5th 755 (2022)
Relying on the Density Bonus Law, a developer proposed a 20-story mixed-use project with affordable units that would exceed the maximum zoned capacity by 57 units. The developer also sought development incentives, including avoiding a setback restriction and eliminating on-site truck loading spaces. The court rejected petitioner’s claim that the project approval conflicted with several General Plan policies. It ruled that the City did not abuse its discretion in finding that several cited policies were inapplicable and that the project did not conflict with the policies that were applicable. It also found that if the City had denied the requested incentives or failed to waive inconsistent design standards, it would have physically precluded construction of the project and the affordable units, which would defeat the goals of the Density Bonus Law.
AIDS Healthcare Foundation v. City of Los Angeles
78 Cal. App. 5th 167 (2022)
The court rejected a claim that the City’s approval of a mixed-use project violated provisions enacted by the former Community Redevelopment Agency requiring 15 percent of units to be reserved for low-income housing. The court held that the 2011 Redevelopment Dissolution Law rendered the 15 percent requirement inoperative.
Tiburon Open Space Committee v. County of Marin
78 Cal. App. 5th 700 (2022)
Under stipulated judgments in federal court, the County agreed to approve development of a minimum of 43 residential units on 110 acres of land subject to compliance with applicable land use laws, including CEQA. The court dismissed petitioner’s claims that the County had effectively contracted away its police powers in the stipulated judgments and abdicated its duties under CEQA by approving the project. The court observed that the project EIR was over 800 pages and went through extensive redrafts, and that the lengthy administrative approval process provided ample opportunities for public input. The County Board would not have gone through such a “protracted charade” had it intended to bypass CEQA. The court also upheld the County’s determination that a less dense project alternative was legally infeasible under CEQA, stating that “no reason in law or logic prevents a final federal court judgment from having [that] impact.”
Continue Reading 2022 Land Use and Development Law Case Summaries
The courts issued 16 published CEQA decisions in 2022, continuing a trend of fewer published opinions than the pattern established in earlier years. The only California Supreme Court opinion, County of Butte v. Department of Water Resources, addressed federal preemption of CEQA, a rarely litigated issue.
The most important cases of the year centered on the adequacy of EIRs. The court in League to Save Lake Tahoe Mountain Area Preservation Foundation v. County of Placer addressed three hot CEQA topics, finding an EIR’s greenhouse gas mitigation measures and energy analysis inadequate, but upholding the EIR’s wildfire evacuation analysis.
Several important EIR cases focused on project alternatives. A decision that attracted significant notice – Save the Hill Group v. City of Livermore – held that an EIR’s discussion of project alternatives was inadequate because it did not explore the possibility of a public purchase of the project site for open space rather than its development for residential use.
In We Advocate Through Environmental Review v. County of Siskiyou, the court found the EIR’s list of project objectives so closely mirrored the proposed project that it foreclosed identification of a reasonable range of project alternatives. And in Tiburon Open Space Committee v. County of Marin, the county had settled federal litigation over a development site, promising to approve at least 43 residential units. In subsequent CEQA litigation, the court upheld the county’s rejection of an alternative allowing fewer than 43 units, concluding that the stipulated judgment in the federal litigation rendered the reduced alternative legally infeasible. Another EIR case answers the question whether an agency may approve a revised project that is a variation on the proposed project and alternatives considered in the EIR. The court held the city did not have to recirculate the EIR because the revised project was simply another permutation of the options that were fully covered by the EIR. Southwest Regional Council of Carpenters v. City of Los Angeles. .Finally, in an unusual case, a court held that a landowner could pursue a malicious prosecution action against counsel for unsuccessful CEQA plaintiffs. Jenkins v. Brandt-Hawley.
The following summaries identify the key issues in the cases decided in 2022.. Each of these case summaries links to a post on this site the provides a more detailed description of the court’s opinion.
Stephen Kostka and Julie Jones
The court of appeal held that an attorney’s actions in filing and prosecuting a meritless challenge to construction of a single-family home supported a claim for malicious prosecution. Jenkins v. Brandt-Hawley, No A162852 (1st Dist., Dec 28, 2022).
The underlying lawsuit challenged permits issued by the Town of San Anselmo allowing the Jenkins family to
A Summary of Published Appellate Opinions Under the California Environmental Quality Act
In 2017, the California Supreme Court issued two decisions involving highly controversial questions of first impression. In the closely-watched Cleveland National Forest Foundation case, the court reversed the court of appeal’s ruling that the EIR for SANDAG’s regional transportation plan was fatally flawed
San Francisco voters enacted a measure, Proposition T, that makes significant changes to the city’s rules governing gifts and campaign contributions to city officers, elected officials and candidates.
The significance thresholds for exposure of receptors to harmful air pollution in the Bay Area Air Quality Management District’s CEQA Guidelines cannot provide the basis for requiring an EIR or mitigation measures, when used to measure the impact of existing air pollution on future occupants or users of a project. As a result, the District’s