The Housing Crisis Act of 2019, which enacted Government Code section 66300, generally precludes a city from reducing the intensity of land use on a parcel where housing is allowed below what was allowed on January 1, 2018.  A court held that this provision prohibits reductions in the Floor Area Ratio (FAR) as well as reductions in density.  Yes in My Back Yard v. City of Culver City, No B321477 (2nd Dist., Oct. 27, 2023).

Culver City initiated proceedings to address community concerns regarding “mansionization” in the City’s R-1 single family residential zoning district. A consultant concluded that houses maximizing the existing FAR are “consistently disliked.”  A staff report opined that because recent state laws preclude counting second units in FAR calculations, the original intent of the FAR had been undermined. Accordingly, an ordinance reducing the FAR in the R-1 district was proposed.

Staff asked the California Department of Housing and Community Development (HCD) whether the proposed ordinance would violate the Housing Crisis Act.  HCD warned that the Act “ta[lk]s about intensity of uses,” and stated that because the proposed FAR reduction could affect the number of bedrooms, the proposed ordinance “might trigger the less intensive use provision.”

In 2020, the Council enacted an ordinance reducing the FAR from .60 to .45.  Yes In My Back Yard sued to invalidate the ordinance. 

The City defended its ordinance by relying on dictionaries to argue the terms “density” and “intensity” are ambiguous. It further argued that the Legislature intended that only a reduction in density, meaning the number of housing units, violates the Act. The court disagreed, noting that the Act itself defines “reducing the intensity of land use” to include reductions in floor area ratio.  “A statute itself furnishes the best evidence of its own meaning, and if an act’s intent can be ascertained clearly from its own provisions, that intent prevails and courts do not resort to other aids for construction.”  The ordinance therefore violated the Act.

A court upheld an ordinance that restricted development standards in designated overlay zones to protect wildlife corridors, finding that it did not establish a “use” that would be subject to certain requirements of the Surface Mining and Reclamation Act (SMARA).  The court also upheld the County’s reliance on CEQA exemptions for the protection of a natural resource and the environment.  It held that the Class 7 exemption requires only protection of a natural resource, not protection of the entire environment, and that a potential for environmental impacts was not sufficient to defeat an exemption.  California Construction and Industrial Materials Association v. County of Ventura, 97 Cal. App. 5th 1 (2023).

The County of Ventura enacted an ordinance creating two overlay zones designed to preserve wildlife corridors. The overlay zones were applied to rural areas, including those in which extraction of minerals could occur. The County found the project exempt from CEQA. Two associations sued, claiming the ordinance violated both SMARA and CEQA.  The court rejected all claims.

SMARA requires that, prior to “permitting a use” that would threaten the potential to extract minerals, the County must submit a statement specifying its reasons to the state for review.  The court agreed with the County that the wildlife corridor ordinance was not subject to this requirement.  In discussing what the Legislature meant by “permitting a use,” the court concluded that had the Legislature intended to include changes in permitting requirements, it would have said so. Further, “permitting a use” did not mean simply changing permitting requirements that may have the potential for changing what uses are permitted.  The court also rejected the project opponents’ argument that the ordinance permits a “use” consisting of a wildlife corridor, noting that the use is by wildlife.  “We are confident that wildlife is loath to seek permission from the County.”  The ordinance only set standards for future developments that might otherwise interfere with wildlife movement, which was not a use.  Finally, the opponents could not show prejudice.  “Nothing in the record shows it is reasonably probably that the Project Opponents would have obtained a more favorable result had the County issued a statement of reasons.” 

The court then addressed the CEQA claims.  The County relied on the common sense CEQA exemption, where it can be seen with certainty there is no possibility that the activity in question may have a significant effect on the environment, and on the Class 7 and Class 8 categorical exemptions, which apply to actions taken by regulatory agencies to assure the maintenance, restoration, or enhancement of a natural resource or the environment.

The court found that there was ample evidence to support the exemptions, including reports regarding the need to preserve wildlife corridors. It rejected the opponents’ argument that mining activity would be diverted elsewhere, since nothing in the ordinance prohibited the extraction of minerals. It also ruled that the exemptions do not require a showing that the project will protect the entire environment; Class 7 requires only protection of “a natural resource.”  

The court also addressed the opponents’ reliance on Wildlife Alive v. Chickering, 18 Cal. 3d 190 (1976), which stated that a reasonable possibility of a significant effect made an exemption improper.  Wildlife Alive was disapproved in Berkeley Hillside Preservation v. City of Berkeley, 60 Cal. 4th 1086, 1102 (2015), in which the California Supreme Court concluded “the Legislature, through the Guidelines, intended to enumerate classes of projects that are exempt from CEQA because, notwithstanding their potential effect on the environment, they already ‘have been determined not to have a significant effect on the environment.’”  Accordingly, the potential for a significant impact was not relevant; instead, the court is to review whether the decision that the project fits within the category is supported by substantial evidence. The court then rejected the argument that unusual circumstances established an exception that precluded application of the exemptions. The opponents cited no evidence that the project was significantly larger than other projects in its class. Also, while the opponents pointed out that the project overlays 10,000 acres of classified mineral resources, they cited no evidence that other projects in Classes 7 and 8 do not overlay similar resources.

The First District Court of Appeal has approved an EIR analyzing a proposed fifty percent increase in density at the Parnassus campus of the University of California, San Francisco. Yerba Buena Neighborhood Consortium, LLC v. Regents of the University of California, 95 Cal.App.5th 779 (2023, petitions for review filed 10/30/2023).

In the five published sections of a much longer opinion, the court rejected neighbors’ claims, holding that:

  • The EIR considered a reasonable range of alternatives to the proposed project and was not required to analyze an additional project alternative focused on constructing a large hospital building at a different UCSF campus. The court relied on two CEQA principles:
    • An alternatives analysis is not required to include both alternatives to the project and alternatives to its location; and
    • CEQA “alternatives” are alternatives to the project as a whole, not alternatives to only one component of the project, such as one building in a campus-wide redevelopment plan.
  • The EIR incorrectly analyzed the project’s impacts to public transit as informational only rather than as CEQA impacts, but the error did not preclude informed participation by the decisionmakers and the public, and therefore did not require invalidation of the EIR.
  • UCSF was not required to preserve historically significant buildings even if they could be repaired and reused for some purpose; the proposed project required their demolition to make way for new buildings as part of the campus revitalization plan. An alternative may be rejected as infeasible if it is “impractical or undesirable from a policy standpoint.”
  • The EIR was not required to analyze aesthetic impacts because the project met the criteria of CEQA section 21099(d)(1), which provides that aesthetic impacts of a “residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.” In a case of first impression, the court held that despite the campus’s “Public” zoning on San Francisco’s zoning map, the city’s zoning did not govern; the university’s own “functional zones” allowed commercial uses; and therefore the project satisfied the restriction of “employment center projects” to sites that are zoned for commercial use. 
  • The EIR adequately identified mitigation measures for the project’s wind impacts. Distinguishing – with difficulty – the analysis in East Oakland Stadium Alliance v. City of Oakland, 89 Cal.App.5th 1226 (2023), which reached the opposite result, the court held that the project’s wind mitigation measures were just certain enough to meet CEQA requirements.

This case addressed both application of CEQA’s categorical exemption for renovation of historical resources and application of an exception to the exemption that turned on the question whether the project complied with Secretary of Interior standards regarding renovation of historic structures.  The court ruled that this issue is to be reviewed under the substantial evidence standard rather than the fair argument standard. Historic Architecture Alliance v. City of Laguna Beach, 96 Cal.App.5th 186 (2023).

The Kirbys sought to expand and renovate their house in Laguna Beach, which was listed in the city’s historic register.  During processing of their application, the Kirbys revised their project to conform to recommendations from the city’s historic resources consultant, its heritage committee and city staff, all to bring the project into consistency with Secretary of Interior standards. 

The city found the project exempt under CEQA Guidelines section 15331, the historical resources exemption.  That exemption applies to the “maintenance, repair, stabilization, rehabilitation, restoration, preservation, conservation or reconstruction of historical resources in a manner consistent with the Secretary of the Interior’s Standards for the Treatment of Historic Properties . . . .”  Two historic resources groups sued, alleging the City violated CEQA. 

The appellate court acknowledged that “The Secretary’s Standards are the benchmark that CEQA uses to establish whether a project will have a significant adverse impact on a historical property.”  It confirmed that the substantial evidence standard applies to a determination whether a project fits within a categorical exemption, and concluded that substantial evidence supported the city’s determination that the project was consistent with the Secretary’s standards and therefore fit within the section 15331 categorical exemption. 

The court noted that mitigation measures may not be used to support a categorical exemption but rejected petitioners’ argument that the changes made to the project throughout processing constituted mitigation measures.  “Prior to the City’s approval, revisions were made . . . so the project was consistent with the Secretary’s Standards; these revisions were not mitigation measures as used in the context of CEQA’s mitigated negative declarations, negative declarations, or EIRs.” 

The court then rejected petitioners’ argument that an exception to the categorical exemption applied, which should be evaluated under the fair argument standard.  Petitioners relied on the exception in CEQA Guideline section 15300.2(f), which states “a categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource.”  Pursuant to prior case law, the determination whether the exception applies is reviewed under the fair argument standard.  Under this standard, an agency must determine whether the record shows substantial evidence of a fair argument that there may be a significant environmental effect. The agency is not permitted to weigh the evidence or come to its own conclusion about whether there will be a significant effect.

The court explained that once a city has determined that the project complies with the Secretary’s Standards under the substantial evidence standard, the issue has been resolved and need not be reconsidered in the context of applying the exception under the fair argument standard.  The court explained:

[T]he single inquiry to be determined is whether the project complies with the Secretary’s Standards. During this inquiry, the agency considers the evidence and argument of the opposing sides. If the agency finds the project follows the Secretary’s Standards, the agency’s finding establishes the project does not have a significant impact on the historical resource and the historical resource exception would not bar reliance on the historical resource exemption.

The court concluded that the fair argument standard did not apply and affirmed a trial court judgment denying the writ. 

A court of appeal has upheld Monterey County’s approvals for a desalination plant, rejecting challengers’ claims that uncertainty regarding the availability of source water for the plant necessitated additional CEQA review. Marina Coast Water District v. County of Monterey, 96 Cal.App.5th 46 (2023).

In 2018, the California Public Utilities Commission, acting as the CEQA lead agency, certified an EIR for and approved a Water Supply Project that had two principal components: a desalination plant in Monterey County and slant wells in the City of Marina that would supply brackish water to the desalination plant. The CPUC approval acknowledged that many additional approvals would be needed from other agencies if the project were to be built and operated.

In 2019, the County approved construction and operation of the desalination plant. The County determined that it could rely on the CPUC EIR and did not need to prepare a supplemental or subsequent EIR in its role as a CEQA responsible agency. The County also issued a statement of overriding considerations explaining its decision to approve the project despite its significant and unavoidable environmental impacts. Plaintiffs challenged both the County’s decision not to prepare an additional CEQA analysis and the bases for the statement of overriding considerations.

Plaintiffs Showed No New Information Triggering a Supplemental or Subsequent EIR

Plaintiffs identified five categories of new information that they alleged required the County to re-study the project in a supplemental or subsequent EIR. The court dismissed all of the challengers’ claims, primarily on the basis that the claimed new information was either not new or not relevant to the County’s approvals:

  • The City of Marina’s denial of approvals for the slant wells did not require additional CEQA review. Uncertainty regarding the project’s water source was not new. In addition, the City’s denial would undergo de novo review by the Coastal Commission; accordingly, when the County made its decision, it was not clear whether the project would need a new water source.
  • The County’s condition of approval describing steps the project sponsors would need to take if the plant could not obtain source water, or if construction ceased for more than five years, did not require environmental analysis of those scenarios. The court cited Berkeley Hillside Preservation v. City of Berkeley, 60 Cal.4th 1086, 1120 (2015) for the rule that the potential consequences of an approved project’s failure need not be analyzed when the project is approved.
  • A battle of the experts concerning the existing and future direction of groundwater flow was not new; nor was uncertainty created by the Sustainable Groundwater Management Act. Substantial evidence supported the County’s conclusion that regardless of these uncertainties, the vast majority of the project’s intake water would come from the ocean.
  • Substantial evidence supported the County’s (and earlier, the CPUC’s) conclusion that the expansion of a different water supply project, Pure Water Monterey, was speculative and even if approved and constructed would not represent an adequate alternative supply.
  • The availability of excess groundwater storage capacity, which could in theory be used along with Pure Water Monterey water to provide an alternative supply, was not new information given the decades of groundwater overdraft that had created that capacity.

The County’s Statement of Overriding Considerations Permissibly Relied on Project Benefits That Would Accrue Only if Source Water Became Available

Plaintiffs argued that the County’s statement of overriding considerations for the project’s significant unavoidable environmental impacts was invalid because it relied on water-related benefits that would never materialize if source water could not be obtained. Plaintiffs claimed that the County should have relied only on benefits from the portion of the project that was subject to its jurisdiction – the desalination plant. The court rejected this argument, holding that for purposes of a statement of overriding considerations by a responsible agency, the “project” whose benefits are described is the whole project, not only the portion of the project that is within the responsible agency’s jurisdiction to approve.

Finally, plaintiffs argued that the County’s statement of overriding considerations was defective because it did not describe the uncertainty of the project’s source water supply. The court, citing extensive evidence in the record of robust public debate on this issue, held that neither the decisionmakers nor the public were deprived of information on this topic.

The Third District Court of Appeal has held that Sacramento County’s environmental impact report for a master planned community complied with CEQA’s requirements for analysis of greenhouse gas emissions. Tsakopoulos Investments, LLC v. County of Sacramento, 95 Cal.App.5th 280 (2023). Describing in detail the County’s analysis, the court held that substantial evidence – encompassing both County-specific and land use-specific data – supported the County’s choice of numeric significance thresholds for GHG emissions.

The project the County approved included more than 3,500 residential units, an environmental education campus, a research and development park, two schools, and 21 acres of commercial-retail uses, as well as park, community center and open space uses, on an 848-acre site.

The plaintiff claimed that the methodology the County used to identify significance thresholds for the project’s GHG emissions was the same as the methodology rejected in two earlier cases: Center for Biological Diversity v. Department of Fish & Wildlife, 62 Cal.4th 204 (2015), and Golden Door Properties, LLC v. County of San Diego, 27 Cal.App.5th 892 (2018).

In Center for Biological Diversity, the EIR used the Air Resources Board’s 2008 Scoping Plan target of a 29 percent statewide reduction in business-as-usual GHG emissions as its significance threshold for a development project. The California Supreme Court disapproved this significance threshold, finding no substantial evidence in the project record that the state’s 29 percent statewide GHG reduction goal was “the same for an individual project as for the entire state population and economy.”

In Golden Door, the EIR applied a uniform significance threshold of 4.9 metric tons of CO2 equivalent per person per year. Because the County based this threshold on statewide rather than local data, and treated all land uses as the same, the court held that this EIR’s GHG significance threshold, like that rejected in Center for Biological Diversity, was not supported by substantial evidence. 

The court in Tsakopoulos held that the County’s GHG thresholds of significance differed from those invalidated in the earlier cases. For its general plan update in 2011, to identify its share of the state’s 2020 GHG reduction goals, the County used specific countywide rather than statewide data to model the county’s existing GHG emissions; divided those emissions into transportation, residential, commercial and industrial sectors, among others; applied the same percentages to those sectors in the future; and set sector-by-sector thresholds. For the master plan project, the County updated its thresholds to account for the then-new 2017 Scoping Plan. Again using countywide and sector-specific data rather than statewide data, the project EIR identified significance thresholds of 0.73 metric tons of CO2e per capita per year for residential; 4.28 metric tons per 1,000 square feet for commercial and industrial; and 1.47 metric tons per capita for transportation. Rather than make assumptions based on statewide information, as in the cases on which the plaintiff relied, here the County supported its significance thresholds with relevant and substantial evidence.

The trial court improperly retained jurisdiction of a CEQA challenge after the City of San Diego filed a return to the peremptory writ of mandate confirming that it had rescinded the project approvals and thereby satisfied the terms of the writ. McCann v. City of San Diego, 94 Cal. App. 5th 284 (2023).

This case is the second appeal arising from property owner Margaret McCann’s dispute with the City of San Diego regarding the environmental review of a series of projects to underground utility lines. In the prior case (McCann v. City of San Diego, 70 Cal. App. 5th 51 (2021) (McCann I)), the court held that the City’s environmental review of a portion of the undergrounding projects was incomplete because the City failed to analyze whether the projects were consistent with the greenhouse gas reduction (GHG) measures in the City’s Climate Action Plan. On remand, the trial court issued a peremptory writ of mandate requiring the City to set aside the relevant project approvals and ordering that the court would retain jurisdiction, pursuant to Public Resources Code Section 21168.9(b), until it determined the City complied with CEQA.

The City rescinded the project approvals and filed a return asking the court to discharge the writ. McCann objected to the City’s request, arguing that the trial court was obligated to retain jurisdiction until the City either demonstrated compliance with CEQA by preparing a legally sufficient GHG analysis or affirmatively indicated that it had abandoned the projects. The trial court agreed and declined to discharge the writ.

On appeal, the court held that the City fully satisfied the terms of the peremptory writ and the trial court therefore erred in declining to discharge it. To reach this decision, the court engaged in a straightforward analysis of Section 21168.9 of the Public Resources Code, which governs issuance of peremptory writs under CEQA.

When an agency violates CEQA, the court may issue three types of writs (or a combination thereof) in accordance with Section 21168.9(a). The court may direct an agency to: (1) void, in whole or part, a determination, finding or decision; (2) suspend certain project activities; or (3) take specific action to bring a project into compliance with CEQA. In McCann I, the appellate court directed the trial court to “issue a peremptory writ of mandate directing the City to set aside [its specific project approvals]” pursuant to Section 21168.9(a)(1). The trial court executed the writ as directed—it ordered the City to rescind the approvals (without requiring any further remedial action). The City’s return confirming that the approvals had been set aside satisfied the plain terms of the writ.

McCann argued that Section 21168.9(b) of the Public Resources Code required that the trial court retain jurisdiction until the City completed the GHG analysis in compliance with CEQA. The court disagreed, observing that section 21168.9(b) requires that the trial court retain jurisdiction until it “has determined that the public agency has complied with this division” (emphasis in original). “This division” refers to the relevant grounds for issuance of a writ in Section 21168.9(a). Therefore, the trial court must retain jurisdiction only until the terms of the particular writ, as determined by the Section 21168.9(a), are fulfilled.

Here, the court did not order the City to perform any corrective action with respect to the GHG analysis under CEQA—only to rescind the project approvals. As such, the writ was satisfied and should have been discharged. Section 21168.9(b) does not permit a trial court to retain jurisdiction “in perpetuity based on the hypothetical possibility that the City moves forward with the same projects in the future.” 

The Court of Appeal rejected a challenge by two school districts to a specific plan EIR, finding the districts’ claim that the EIR should have analyzed off-site impacts resulting from inadequate school facilities to be speculative. Santa Rita Union School Dist. v. City of Salinas, 94 Cal.App.5th 298 (2023).

The City approved a specific plan covering approximately 800 acres in the northern portion of the City. The Plan contemplated 4,340 new residential units as well as mixed-commercial uses, parks, open space and schools to address projected increases in student population resulting from the new housing. The EIR for the Plan addressed anticipated off-site impacts from development of schools on the sites designated in the Plan.

Two school districts challenged the EIR, contending that because of insufficient school-facilities funding over the 20 to 30-year life of the Plan, the new schools contemplated by the Plan would likely never be built, and the EIR improperly failed to address indirect, off-site environmental impacts resulting from the districts having to use other means to accommodate student growth.

The court concluded that the EIR complied with CEQA. In preparing the EIR, the City was required to assume that all elements of the Plan would eventually be built, and the EIR properly assumed that the contemplated new schools would be constructed. The City also provided project-level mitigation measures for non-school physical impacts from construction of these facilities, including air quality, traffic and noise, recognizing that the districts themselves would need to address any project-specific impacts.

The districts’ challenge assumed that sufficient funding over the next two to three decades for construction of the new schools was uncertain and that the districts might ultimately need to accommodate the additional students through one or more alternative means such as installing portable classrooms, expanding unspecified existing facilities, constructing new facilities and/or bussing unidentified numbers of students to other districts. These alternative means were alleged to cause traffic, noise, air quality, and other off-site environmental impacts.

The court held that the City was not required to analyze any potential off-site impacts of the “ill-defined, uncertain, generalized, and speculative alternatives to new-school construction . . . offered by the Districts.” The districts’ concerns about inadequate funding were based on the manner in which schools are currently funded, and their assumptions about a perennial lack of sufficient school-facilities funding over the life of the Plan, without providing more detailed information or identifying a more specific alternative plan to address this possibility, amounted to no more than speculation. Under CEQA, evidence of environmental impacts must be founded on facts, reasonable assumptions based on facts, and expert opinion supported by facts. The vague generalities proffered by the districts did not meet this threshold, hence no further environmental review or response from the City was required.

The court upheld the authority of the California Coastal Commission to decide appeals of coastal development permits under a de novo standard of review. Cave Landing LLC v. California Coastal Commission, 94 Cal. App. 5th 654 (2023).

The McCarthys owned a parcel in the coastal zone of San Luis Obispo County that was subject to an easement granted to the county for a hiking trail.  The easement provided that it could be relocated “to a location on Grantor’s property that Grantor and Grantee shall reasonably agree.”  

Pursuant to the Coastal Act, once the Coastal Commission approves a local agency’s local coastal program, all actions implementing the program are delegated to the local government.  Developers must obtain coastal development permits which, in jurisdictions with approved local coastal programs, are decided by the local agency, subject to appeal to the Commission.  San Luis Obispo County had an approved local coastal program.

In 2013, without a coastal development permit, the McCarthys blocked access to the county hiking trail by installing fences and gates.  In 2014, the Commission issued a cease-and-desist order prohibiting the McCarthys from undertaking any activity that discourages or prevents public use of the trail.  The order stated that it remained in effect unless rescinded.  The McCarthys did not challenge the order in court.

In 2016, the McCarthys, joined by their neighbor as co-applicant, applied for a coastal development permit to move the trail over to the neighbor’s parcel.  They proposed that the new trail would be constructed and dedicated to the county, then the county would quitclaim the existing easement back to the McCarthys. The county approved a coastal development permit for the project, which was appealed to the Commission. 

The Commission denied the permit. It relied on a staff report that described how the project would interfere with public views, be located within an archaeological sensitive area, involve grading of 1,260 cubic yards that would materially change the area’s scenic rural character, and would be undertaken in a geologically unstable area.  The staff report also concluded the McCarthys had no legal right to move the trail, citing the language in the easement that limited relocation to areas within the McCarthy parcel, and the Commission’s cease-and-desist order.  The McCarthys sought a writ to vacate the Commission’s denial and approve the permit. 

The appellate court first rejected the McCarthys’ interpretation of the easement language, under which relocation to any property owned by “Grantor” would have been permitted.  The court noted that the easement referred only to the McCarthy parcel.  The court next dismissed the argument that only the county, and not the Commission, was a party to the easement, since the Commission has ultimate authority regarding compliance with the Coastal Act. 

The McCarthys also noted that the cease-and-desist order prohibited them only from engaging in further development “unless authorized pursuant to the Coastal Act,” and argued their development was authorized when the County granted a coastal development permit.  They relied on Public Resources Code section 30519(a), which states that after a local coastal program is effective, the development review authority shall no longer be exercised by the Commission and shall be delegated to the local government. The appellate court pointed out that the McCarthys ignored the first phrase of section 30519(a), which states “except for appeals to the Commission.”  The court confirmed that the Commission has de novo review authority under sections 30621(a) and 30625(a) and upheld the denial of the McCarthy’s writ.

Property owners who acted illegally by blocking parking on a public street fronting their houses were not entitled to use the County’s alleged noncompliance with CEQA as a defense to actions enforcing encroachment laws.  Anderson v. County of Santa Barbara, 94 Cal.App.5th 554 (2023).

Property owners in the Montecito area of Santa Barbara County did not want drivers parking on the public road fronting their houses, which leads to a trailhead. They installed landscaping, boulders, and signs that encroached into the public right of way. The public continued to park on the street despite the encroachments, partially obstructing the travel lane, reducing the street to a one-lane road, and creating a safety hazard, especially at night.

The County’s transportation division sent notices to three properties instructing the owners to remove the encroachments.  It later filed a Notice of Exemption for restoring the right of way by removing the encroachments. Some other property owners sued and challenged the CEQA exemption.  They obtained a preliminary injunction and later a writ preventing removal of the encroachments until the County undertook CEQA review.

The appellate court reversed.  It rejected arguments that the restoration project was only part of a larger project to increase the number of hikers accessing the trailhead by increasing parking on the road.  The project “is properly considered a stand-alone project because it has independent utility.”  It further agreed that the restoration project was categorically exempt from CEQA because it involved the maintenance or repair of an existing road and the enforcement of statutes and ordinances prohibiting unpermitted encroachments in the public right of way. It found no substantial evidence that the project presented unusual circumstances.

The court further ruled that a trial court may not enjoin a public officer from enforcing the law. “The injunction at issue here allows adjacent landowners to encroach upon a public right-of-way, a misdemeanor offense. Any claimed ‘failure’ to follow [CEQA] is not a defense to the commission of a crime.”  Citing Public Resources Code section 21174, the court noted that CEQA is not a limitation or restriction on the power or authority of any public agency in the enforcement or of any law it is permitted or required to enforce. In balancing the harms, the court concluded that “a party suffers no grave or irreparable harm by being prohibited from violating the law ….”