The court of appeal held that CEQA claims filed more than 30 days after the City filed a facially valid Notice of Determination were barred by the statute of limitations regardless of whether the agency lacked authority to approve the project or make the CEQA determination. Coalition for an Equitable Westlake/Macarthur Park v. City of
Mitigated Negative Declaration Inadequate for Mixed-Use Project
The Second District Court of Appeal held that a project’s potentially significant environmental impacts required preparation of an EIR rather than the mitigated negative declaration adopted by the City. Save the Agoura Cornell Knoll et al. v. City of Agoura Hills et al., 46 Cal.App.5th 665 (2020).
The project at issue consisted of 35 residential apartment units plus retail, restaurant, and office space on an 8.2-acre site located in Agoura Hills, California. The City approved a Mitigated Negative Declaration (MND) for the project, finding no substantial evidence of a significant effect on the environment because the project incorporated feasible mitigation measures that would reduce any potential impacts to a less-than-significant level.
- Impacts on Cultural Resources
The court of appeal determined the MND’s mitigation measures were insufficient to avoid or reduce potential impacts to prehistoric cultural resources to a less-than-significant level. He proposed mitigation measures, it found, lacked any analysis of whether the archeological resources within the proposed construction site could be avoided. Nor did the measures specify any performance criteria for evaluating the feasibility of avoidance as an alternative to excavation. Further, substantial evidence provided by an expert in Native American archeology and history demonstrated that the project could likely cause significant permanent damage to the site and the proposed data recovery program was inadequate to mitigate that damage.
- Impacts on Sensitive Plant Species
The project site contained three special-status plant species that would be significantly impacted by project grading, landscaping, and fuel modification activities. The court found that, even with the proposed mitigation measures, the project could still have a significant impact on these sensitive plant species. It concluded that the mitigation measures improperly deferred formulation of certain mitigation efforts, failed to set forth specific performance criteria to ensure that mitigation would be effective, relied on outdated botanical surveys of the area, and did not provide for any feasible alternatives if proposed salvage and replanting efforts failed.
Continue Reading Mitigated Negative Declaration Inadequate for Mixed-Use Project
Fees Under Private Attorney General Doctrine Denied Where CEQA Lawsuit Neither Enforced Important Rights Nor Conferred Significant Public Benefits
Attorney’s fees could not be recovered in a CEQA action in which plaintiff obtained an initial stay of the project but the applicant later had the project approvals rescinded, citing inability to afford to litigate the case. Canyon Crest Conservancy v. County of Los Angeles, No. B290379 (2nd Dist., March 12, 2020).
Doron Kuhn sought to build a single-family residence on an undeveloped lot in Los Angeles County. Because the property was located on a steep hillside and construction would require removal of a protected coastal oak tree, Kuhn obtained a minor conditional use permit and an oak tree permit from the county. Plaintiff, Canyon Crest Conservancy, an organization formed by two of Kuhn’s neighbors, challenged the approvals alleging violations of CEQA.
After the trial court issued a stay of the permit approvals to preserve the status quo, Kuhn (who had been self-represented throughout the litigation) asked the County to vacate the permit approvals, stating he could not afford to continue the litigation. The County complied and plaintiff dismissed the case. Plaintiff then filed a motion for attorney fees under the private attorney general doctrine, Code of Civil Procedure section 1021.5. The trial court denied the motion, concluding that plaintiff failed to establish any of the requirements for a right to fees under the statute.
To obtain fees under section 1021.5, the moving party must establish that the action resulted in the enforcement of an important right affecting the public interest and that the action conferred a significant benefit on the public or a large class of persons.
Continue Reading Fees Under Private Attorney General Doctrine Denied Where CEQA Lawsuit Neither Enforced Important Rights Nor Conferred Significant Public Benefits
CEQA YEAR IN REVIEW 2019
A SUMMARY OF PUBLISHED APPELLATE OPINIONS UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
The year 2019 saw several trailblazing opinions, indicating that courts continue to grapple with some of CEQA’s core policies. The California Supreme Court weighed in on the threshold question of what constitutes a “project” subject to CEQA. In Union of Medical Marijuana Patients
Automobile Delay May Not Be Treated As a Significant Environmental Impact
Automobile delay (as measured solely by roadway capacity or traffic congestion) cannot constitute a significant environmental impact, even for projects that were approved before the new CEQA guidelines on transportation impacts were certified in December 2018. Citizens for Positive Growth & Preservation v. City of Sacramento, 2019 WL 6888482.
The case involved a challenge to the City of Sacramento’s 2035 General Plan, which it adopted in March 2015. The plaintiff alleged that the city violated CEQA and the Planning and Zoning Law.
CEQA: Transportation Impacts
Analyzing Transportation Impacts Under CEQA. Public Resources Code section 21099 (commonly known as SB 743) directed the Office of Planning and Research to develop guidelines for assessing transportation impacts based on vehicle miles traveled (VMT). SB 743 provides that upon certification of implementing guidelines by the Natural Resources Agency, “automobile delay, as described solely by level of service [LOS] or similar measures of vehicular capacity or traffic congestion shall not be considered a significant impact on the environment . . . except in locations specifically identified in the guidelines, if any.”
Section 15064.3 of the CEQA Guidelines, adopted in 2018 to implement SB 743, provides that, except for roadway capacity projects, “a project’s effect on automobile delay shall not constitute a significant environmental impact.” Further, the SB 743 guidelines specify that generally, VMT is “the most appropriate measure of transportation impacts.” The guidelines apply prospectively, and apply statewide beginning July 1, 2020, unless an agency elects to be governed by them sooner. (For a detailed analysis, see our report on the SB 743 Guidelines.)
Continue Reading Automobile Delay May Not Be Treated As a Significant Environmental Impact
Court Upholds San Diego Convention Center Expansion
A court of appeal has rejected Coastal Act and CEQA challenges to the Coastal Commission’s approval of expansions at the San Diego Convention Center. San Diego Navy Broadway Complex Coalition v. California Coastal Commission, 40 Cal. App. 5th 563 (2019). The court held both that the plaintiff Coalition failed to timely sue all indispensable
Power Plant EIR Defeated By Inadequate Responses to Commenters’ Proposed Mitigation Measures
An EIR that did not squarely respond to detailed comments recommending additional mitigation measures has been held not to comply with CEQA. Covington v. Great Basin Unified Air Pollution Control District, 3d Dist. Court of Appeal Case No. C080342 (certified for publication 12/23/2019). The court of appeal emphasized that where an EIR identifies certain
Unsubstantiated or Speculative Expert Opinion Is Not Substantial Evidence of a Significant Environmental Impact
Editors’ Note: On January 2, 2019, the California Supreme Court granted a request for depublication of this decision. A Supreme Court order to depublish means the case can no longer be cited or relied upon as precedent but does not reflect the court’s opinion of the correctness of the result of the decision or of
Agency Inaction Is Not a CEQA Project
An agency’s failure to maintain a historic building—“demolition by neglect”—is not a “project” subject to CEQA. Lake Norconian Club Foundation v. California Department of Corrections and Rehabilitation, No. A154917 (First District Court of Appeal, Sept. 13, 2019).
The Lake Norconian Club is a former hotel that is listed on the National Register of Historic
California Supreme Court Clarifies What Is a “Project” Subject to CEQA
The California Supreme Court clarified what activities are subject to CEQA in its recent decision in Union of Medical Marijuana Patients, Inc. v. City of San Diego, No. S238563, 2019 WL 3884465 (Aug. 19, 2019). First, the court held that enactment of a zoning ordinance is not necessarily a project in all circumstances. Second,