The California Court of Appeal held that 2016 amendments to the San Diego City Charter did not require the City to obtain voter approval prior to entering into a lease revenue bond transaction with the Public Facilities Financing Authority of the City of San Diego. San Diegans for Open Government v. Public Facilities Financing Authority
California Governor Extends Flexibility to Hold Virtual Public Meetings
In March 2020, as part of a series of emergency measures in response to the COVID-19 pandemic, Governor Newsom signed Executive Order N-29-20, allowing local and state agencies to hold virtual meetings via teleconference and to make meetings accessible electronically notwithstanding the open meeting requirements in the Bagley-Keene Act and the Brown Act. These provisions…
Lease of City Property Did Not Subject Nonprofit to Liability Under 42 U.S.C. section 1983
The Ninth Circuit held that a private nonprofit club that leased city property was not a state actor that could be held liable for constitutional claims under 42 U.S.C. § 1983. Pasadena Republican Club v. Western Justice Center, No. 20-55093 (9th Cir., Jan 21, 2021).
The City of Pasadena leased city-owned property to the…
Brown Act Does Not Require a Finding of Prejudice to Survive a Demurrer
Plaintiffs do not have to allege prejudice caused by a violation of the Brown Act’s statutory vote reporting requirement to survive a demurrer, and it is improper to render a case moot by taking judicial notice of only one party’s records at the demurrer phase. New Livable California v. Association of Bay Area Governments,…
CEQA YEAR IN REVIEW 2020
A Summary of Published Appellate Opinions Involving the California Environmental Quality Act
Despite relatively few published opinions this year, there were significant appellate court rulings on a range of topics, including whether projects are properly classified as discretionary or ministerial, the adequacy of mitigation, agencies’ document retention obligations, the remedy for an inadequate EIR, mootness, and statutes of limitations.
The one California Supreme Court CEQA decision addressed the distinction between discretionary projects and exempt ministerial projects. In Protecting Our Water and Environmental Resources v. County of Stanislaus, the court held that the agency’s issuance of well permits was discretionary in certain circumstances because the permit approval process required the agency to exercise independent judgment and allowed it to modify a project in response to environmental concerns.
A key theme in several cases, involving both EIRs and negative declarations, was courts’ critical look at the adequacy of mitigation measures. In three cases, the court held that agencies had improperly deferred formulation of mitigation. In one case, the court held that a greenhouse gas mitigation measure allowing for carbon offsets was inadequate because it lacked assurances that the offsets would be effective mitigation and it did not specify objective standards for implementation. In another case, the court held that a mitigation measure requiring oil and gas drillers to develop and implement a plan to reduce their water use improperly deferred formulation and implementation of mitigation and lacked enforceability. The court also ruled that agricultural conservation easements are not adequate mitigation for the loss of farmland because they do not offset that loss or create new farmland. In a third case, the court held inadequate a mitigation measure that required construction monitoring and development of a data recovery excavation program if avoidance of archaeological sites was not possible; the agency had not analyzed whether archaeological sites could be avoided and the mitigation measure did not specify performance criteria for evaluating the feasibility of avoidance.
In a significant decision on administrative records, a court held that a lead agency must save all emails about a project, notwithstanding any contrary records retention policy. The court further held that a lead agency could be compelled to produce potential administrative record documents through discovery.
One court applied the mootness doctrine to dismiss a case where construction of the project was completed during litigation. In that case, the developer did not begin construction in violation of any court orders or in bad faith, and the petitioners waited to seek an injunction until construction was nearly completed.
In a decision that conflicts with holdings from other appellate districts, the Fifth District held that partial decertification of an EIR is never permissible when the EIR has been adjudged inadequate; rather, decertification of the entire EIR is the only remedy. The court also held that even under the rule followed by other courts, partial decertification was not appropriate because the EIR’s defects could not be severed from the statement of overriding considerations that supported the agency’s approval of the project.
The following summaries are intended to identify the key issues in the cases decided in 2020. Each summary is linked to a more detailed post on this site describing the court’s opinion. …
Continue Reading CEQA YEAR IN REVIEW 2020
Law Restricting Judicial Review of Thermal Power Plant Licensing Decisions Ruled Unconstitutional
The First District Court of Appeal held that Public Resources Code section 22531 unconstitutionally restricted judicial review of licensing decisions by the Energy Resources Conservation and Development Commission regarding thermal power plants over 50 megawatts. Communities for a Better Environment v. Energy Resources Conservation and Development Commission, No. A157299 (1st Dist., Dec. 8, 2020).…
Completion of Construction Did Not Render Suit for Violation of Public Bidding Laws Moot
A claim that a contract for construction of a school violated public bidding requirements did not become moot after construction was completed because effective relief — in the form of disgorgement of public funds paid to the contractor — was still available in plaintiff’s taxpayer action. Davis v. Fresno Unified School District (Davis 2)…
Anti-SLAPP Motion May Not Be Based on Speech Activities Merely Incidental to Asserted Claims
An anti-SLAPP motion was properly denied because the claims for damages arose from breach of contract and tort actions, not from any protected First Amendment activity. Oakland Bulk and Oversized Terminal, LLC v City of Oakland, 54 Cal.App.5th 738 (2020).
This case arose from an ongoing dispute between the City of Oakland and Oakland Bulk…
Maximum State Density Bonus Increases for Primarily Market-Rate Housing Projects under AB 2345
The State Density Bonus Law, Government Code section 65915, provides the opportunity to develop additional market-rate housing and receive other benefits in exchange for including affordable units in a project. Governor Newsom recently signed legislation, Assembly Bill 2345, that makes several amendments to the Density Bonus Law, the most significant of which will increase how…
California Governor Issues Executive Order N-80-20 Regarding Commercial Evictions
Governor Gavin Newsom has issued Executive Order N-80-20, extending through March 31, 2021 Executive Order N-28-20, which allows local governments to impose commercial eviction moratoriums and restrictions for commercial tenants who are unable to pay their rent because of COVID-19.
The governor’s order only addresses commercial evictions (as AB 3308 fully addressed residential evictions through…