Perkins Coie attorneys, including regular contributors to this report, recently presented the 29th Annual Land Use & Development Law Briefing in San Francisco, Palo Alto and Walnut Creek. The presentation focused on 2018 legal developments and trends in land use, affordable housing, CEQA, wetlands and endangered species. The final presentation in this year’s series is … Continue Reading
A Summary of Published Appellate Opinions Under the California Environmental Quality Act The California Supreme Court issued its only CEQA opinion of 2018 at the end of the year. In Sierra Club v. County of Fresno, the court rejected a standard air quality impact analysis in the EIR for a typical mixed-use development project. The … Continue Reading
The court of appeal held that the plaintiff’s challenge to the City of Rohnert Park’s reapproval of a Wal-Mart grocery store was barred by the doctrine of res judicata because a prior proceeding had raised the same issues. Atwell v. City of Rohnert Park (Wal-Mart Stores, Inc.), 27 Cal. App. 5th 692 (2018). In 2010, … Continue Reading
The Supreme Court of California has granted review of two cases to resolve a split among courts of appeal over whether the issuance of well permits pursuant to state standards is subject to CEQA. California Water Impact Network v. County of San Luis Obispo and Protecting Our Water & Environmental Resources v. Stanislaus County. At … Continue Reading
The California Natural Resources Agency has adopted new CEQA Guidelines that will leave behind level of service in favor of vehicle miles traveled. Following years of development and public comment, the Office of Planning and Research (OPR) and the Natural Resources Agency have issued new CEQA Guidelines for analyzing transportation impacts. These new regulations represent … Continue Reading
Where a petitioner in a CEQA case has elected to prepare the administrative record but unreasonably delays such preparation, the defendant agency may prepare the record itself and be awarded costs for doing so. LandWatch San Luis Obispo Co. v. Cambria Comm. Serv. Dist., 25 Cal. App. 5th 638 (2018). LandWatch, a nonprofit organization, filed … Continue Reading
A court of appeal has overturned a city’s mitigated negative declaration for a small mixed-use development in a historic overlay district, holding that aesthetic and traffic issues require the preparation of an environmental impact report. Protect Niles v. City of Fremont, 25 Cal. App. 5th 1129 (2018). The proposed project, comprising 98 housing units and … Continue Reading
The Third District Court of Appeal rejected a CEQA challenge to a county’s general plan update, holding that a county’s California Timberland Productivity Act finding that a residence or structure is necessary for timberland production zone management is not a discretionary act for CEQA purposes. High Sierra Rural Alliance v. County of Plumas, 29 Cal. … Continue Reading
The California Supreme Court has overturned the environmental impact report for a mixed-use development project, holding that the EIR inadequately explained the human health consequences of significant air pollutant emissions that would result from the development. Sierra Club v. County of Fresno, Cal. Supreme Court Case No. S219783 (Dec. 24, 2018). In so doing, the … Continue Reading
The California Court of Appeal rejected a facial challenge to the EIR addendum process, and held that an agency is not required to make new findings in connection with approval of an EIR addendum. Save Our Heritage Organisation v. City of San Diego, 28 Cal. App. 5th 656 (2018). Background In 2012, the City of … Continue Reading
Broadly construing Government Code § 65009, which establishes a 90-day limitations period for claims under the Planning and Zoning Law, an appellate court held that approval of an agreement allowing removal of trees constituted a “decision regarding a permit,” triggering the 90-day filing deadline. Save Lafayette Trees v. City of Lafayette, No. A154168 (1st Dist., … Continue Reading
A project opponent’s argument that the project might violate zoning laws in the future is not sufficient to require a city to prepare an EIR under CEQA. Friends of Riverside’s Hills v. City of Riverside, 26 Cal.App.5th 1137 (2018). The Lofgrens requested a residential development permit to build six single-family homes on an 11-acre parcel … Continue Reading
The Fourth District Court of Appeal held that the project baseline under CEQA for construction of a new home should not have been set prior to demolition of a potential historic structure when the demolition had occurred before submittal of a permit application to build the new home. Bottini v. City of San Diego, No. … Continue Reading
A court of appeal has rejected CEQA and public trust challenges to a State Lands Commission lease extension allowing the Diablo Canyon nuclear power plant to continue operating through 2025. World Business Academy v. California State Lands Commission, 24 Cal. App. 4th 476 (2018). Pacific Gas & Electric Company plans to cease operating Diablo Canyon … Continue Reading
Claims of significant noise impact unsupported by expert opinion, fact, or reasonable inference did not provide grounds for challenging a negative declaration, the court of appeal held in Jensen v. City of Santa Rosa, 23 Cal. App. 5th 877 (2018). The project, called the Dream Center, would provide emergency shelter for homeless youth and transitional … Continue Reading
The Fourth District Court of Appeal upheld a mitigated negative declaration where the project opponent correctly appealed the approval of entitlements but failed to properly appeal the CEQA determination under the City of San Diego’s bifurcated appeals process. Clews Land & Livestock, LLC v. City of San Diego, 19 Cal. App. 5th 161 (2017). A … Continue Reading
A court of appeal has held that the California Air Resources Board violated CEQA when it issued a “regulatory advisory” notifying small trucking operations that they need not meet ARB’s regulatory deadline for retrofitting their truck engines, and that the regulation would soon be relaxed. John R. Lawson Rock & Oil, Inc. v. State Air … Continue Reading
In Aptos Residents Association v. County of Santa Cruz, the court of appeal upheld Santa Cruz County’s use of a CEQA exemption to approve a distributed antenna system (often referred to as a DAS) for the provision of cell service. (6th Dist., No. H042854, Feb. 27, 2018.) The court found that the project fit squarely … Continue Reading
Successful petitioners under CEQA who are motivated to file suit, in part, by their private financial interests are not necessarily ineligible for an award of attorneys’ fees under the public interest fee statute. Heron Bay Homeowners Association v. City of San Leandro, 19 Cal. App. 5th 376 (2018). Halus Power Systems sought approval from the … Continue Reading
A general plan policy that limited the size of retail tenants in certain areas of a city was not likely to cause urban decay and was not inconsistent with other general plan policies encouraging infill development, the court of appeal held in Visalia Retail, LP v. City of Visalia, 20 Cal. App. 5th 1 (2018). … Continue Reading
Rejecting most challenges to the environmental impact report for a new railyard near the Port of Los Angeles, a court of appeal nevertheless held that the EIR must be decertified because it did not adequately address air quality impacts in the vicinity of the new yard. City of Long Beach v. City of Los Angeles, … Continue Reading
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 … Continue Reading
Citing the likelihood of repurposing Placerville’s historic downtown courthouse and evidence nearby businesses were not dependent on it, the First District Court of Appeal held that “urban decay” was not a reasonably foreseeable consequence of moving judicial activities from downtown to a new building in the outskirts of the city. Placerville Historic Preservation League v. … Continue Reading
In a precedent-setting decision, the Fifth District Court of Appeal has upheld two key aspects of the 2014 environmental impact report for a refinery expansion project. Association of Irritated Residents v. Kern County Board of Supervisors No. F073892 (5th Dist., Nov. 21, 2017). First, the court approved the use of 2007 operating data for the … Continue Reading
