By William W. Abbott, Diane Kindermann, Katherine J. Hart, Glen Hansen and Brian Russell

Welcome to Abbott & Kindermann’s 2014 Annual CEQA update, cumulative for the year. The 4th quarter decisions are highlighted in bold font. To read the prior year cumulative CEQA review, click here: 2013

1.               Cases Pending

There are eight CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:

Friends of the Eel River v. North Coast Railroad Authority, S222472. (A139222; 230 Cal.App.4th 85; Marin County Superior Court; CV1103591, CV1103605.) Petition for review after the court of appeal affirmed the judgments in actions for writ of administrative mandate. This case includes the following issues: (1) Does the Interstate Commerce Commission Termination Act [ICCTA] (49 U.S.C. § 10101 et seq.) preempt the application of the California Environmental Quality Act [CEQA] (Pub. Resources Code, § 21050 et seq.) to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine (see Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314)? (2) Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state owned rail line and/or leasing state-owned property?

Center for Biological Diversity v. Department of Fish & Wildlife, S217763. (B245131; 224 Cal.App.4th 1105; Los Angeles County Superior Court; BS131347.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. This case presents the following issues: (1) Does the California Endangered Species Act (Fish & Game Code, § 2050 et seq.) supersede other California statutes that prohibit the taking of "fully protected" species, and allow such a taking if it is incidental to a mitigation plan under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? (2) Does the California Environmental Quality Act restrict judicial review to the claims presented to an agency before the close of the public comment period on a draft environmental impact report? (3) May an agency deviate from the Act’s existing conditions baseline and instead determine the significance of a project’s greenhouse gas emissions by reference to a hypothetical higher "business as usual" baseline?

Sierra Club v. County of Fresno, S219783(F066798, 226 Cal.App.4th 704); Fresno County Superior Court; 11CECG00706, 11CECG00709, 11CECG00726.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. This case presents issues concerning the standard and scope of judicial review under the California Environmental Quality Act. (CEQA; Pub. Resources Code, § 21000 et seq.)

Citizens for Environmental Responsibility v State ex rel. 14th Dist. Ag Assn., S218240 (C070836; depublished opinion, Sacramento County Superior Court; No. 34-2011-80000902CUWMGDS). Petition for review granted. Further action stayed pending disposition of Berkeley Hillside Preservation.

Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist., S214061. (A135892; nonpublished opinion; San Mateo County Superior Court; CIV508656.) Petition for review after the court of appeal affirmed the judgment in an action for writ of administrative mandate. This case presents the following issue: When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385), or is the agency’s decision subject to a threshold determination whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)?

California Building Industry Assn. v. Bay Area Air Quality Management Dist., S213478. (A135335, A136212; 218 Cal.App.4th 1171; Alameda County Superior Court; RG10548693.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. The court limited review to the following issue: Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?

City of San Diego v. Trustees of the California State University, S199557. (D057446; 201 Cal.App.4th 1134; San Diego County Superior Court; GIC855643, GIC855701, 37-200700083692-CU-WM-CTL, 37-2007-00083773-CU-MC-CTL, 37-2007-00083768-CU-TT-CTL.) Petition for review after the court of appeal affirmed in part and reversed in part the judgment in a civil action. This case includes the following issue: Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) by stating that it has sought funding from the Legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible?

Berkeley Hillside Preservation v. City of Berkeley, S201116. (A131254; 203 Cal.App.4th 656; Alameda County Superior Court; RG10517314.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. This case presents the following issue: Did the City of Berkeley properly conclude that a proposed project was exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) under the categorical exemptions set forth in California Code of Regulations, title 14, sections 15303, subdivision (a), and 15332, and that the “Significant Effects Exception” set forth in section 15300.2, subdivision (c), of the regulations did not operate to remove the project from the scope of those categorical exemptions? This case was argued in early December 2014.


On August 6, 2014, OPR released the draft CEQA Guidelines amendments designed to implement Public Resources Code section 21099 (SB 743, Steinberg). The new guidelines could permit a shift away from the use of traditional LOS significance criteria while shifting the focus to VMT and transportation impacts. The proposed amendments recognize that there land use decisions which can reduce VMT (potentially having a less than significant impact) while others may induce increased VMT by increasing roadway capacity. Given the vast diversity of circumstances, these Guidelines recognize the diversity of planning, land use planning and development dynamics that exists in California. The likely result will be a framework, not a series of hard and fast rules. 

3.         CEQA Litigation 

a.         Exemptions

San Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th 1012.

Approval of 726 utility boxes to be installed at street level for high speed telecommunications equipment qualified for a Class 3 exemption. The planning commission approved the request, based upon a CEQA exemption (Class 3; limited numbers of new, small facilities or structures, and installation of small new equipment and facilities in small structures. Guidelines section 15303.) The court of appeal affirmed. With respect to the “unusual circumstances” doctrine, the court held that regardless of which standard of review was applied (substantial evidence or fair argument), the exception limitation of “unusual circumstances” did not apply to these improvements. Given the highly urbanized environment existing in San Francisco and the existing thousands of utility type installations in the public rights of way, the appellate court concluded that the evidence relied upon by appellants did not rise to level of a “fair argument,” much less substantial evidence of an impact. The court also rejected the argument that the lead agency improperly relied upon mitigation measures to fit the project into the exemption (an approach rejected in Salmon Protection and Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098.) The appellants made the argument based upon the lead agency’s inclusion in the notice of exemption, language stating a certain city code that the applicant was obligated to comply with when siting the cabinets to the appellate court. According to the court, it was simply a statement as to relevant regulations. The court also rejected the argument that the MOU offered by the applicant to the Board of Supervisors constituted mitigation, finding that there was insufficient basis to conclude that the Board of Supervisors relied upon the MOU as any form of impact mitigation.

Picayune Rancheria v. Brown (2014) 229 Cal.App.4th 1416.

The Governor, when acting upon a concurrence request from the United States Department of the Interior for the location of a new tribal casino, is not subject to CEQA.

Tuolumne Jobs & Small Business Alliance v The Superior Court (2014) 59 Cal.4th 1029.

Initiative measures submitted to a city council and enacted by the legislative body are not subject to CEQA review. What about later discretionary approvals? What is the required scope of CEQA analysis?

North Coast Rivers Alliance v. Westlands Water District (2014) 227 Cal.App.4th 832.

Execution of interim short term (two year) water delivery contracts between Westlands Water District and the United States Bureau of Reclamation Central Valley Project were approved based upon a CEQA exemption for grandfathered projects. The Westlands Water District held contracts dating back to the 1960’s for delivery of federal water. Given the approvals and infrastructure built or committed to prior to the enactment of CEQA, the appellate court concluded that the approval of the interim contracts pending federal EIS preparation was appropriately exempt from CEQA review based upon the exemptions for ongoing projects (Guidelines section 15261) and for existing utilities (Guidelines section  15301(b).

b.         Negative Declarations

Citizens for the Restoration of L Street v. City of Fresno (2014) 229 Cal.App.4th 340.

Demolition of buildings does not render a CEQA challenge centered on historical resources as moot. The substantial evidence test applies to the initial characterization of historical resources for purposes of evaluation in a negative declaration. While most negative declaration factual matters are resolved under the “fair argument” test, the initial resolution of the status of historical resources is subject to the “substantial evidence” standard of review, as provided in Public Resources Code section 21084.1.

The city’s code did not authorize the historical commission to approve the CEQA document. The commissioner’s unauthorized approval was not sanitized by an appeal to the city council and the city council appeal procedures did not provide for all of CEQA’s procedural steps and thus did not resolve the procedural errors below.

Rominger v. County of Colusa (2014) 229 Cal.App.4th 690.

On appeal, the Third Appellate District looked at whether a tentative subdivision mao was a project under CEQA, whether the common sense exemption applied, whether the agency’s failure to publish the Mitigated Negative Declaration for a full 30 days was subject to the provisions of Code of Civil Procedure section 12 and prejudiced the petitioners, whether the county failed to look at the project as a whole, and finally, whether there was substantial evidence of a fair argument as to any impacts requiring an EIR to be prepared. The court of appeal held that the petitioners provided a fair argument that the subdivision could have potentially significant effects on traffic circulation and safety, which triggered the need for an EIR.

c.         Environmental Impact Reports

Friends of the Kings River v. County of Fresno (2014) 232 Cal.App.4th 105.

This case involves a proposed 100-year aggregate mine and related processing plants (i.e., asphalt, ready mix concrete and recycling plants) on a 1,500 acre site at the base of the Sierra Nevada foothills. The county board of supervisors certified an EIR and approved a use permit, site plan and reclamation plan for the project. The EIR found the following significant and unavoidable impacts: (1) conversion of farmland; (2) air pollutant emissions; (3) odors; and (4) traffic.  Petitioner first appealed the approval to the State Mining and Geology Board (SMGB), then filed a CEQA action while the SMGB appeal was pending.  The SMGB denied the county’s approval of the reclamation plan on procedural grounds and remanded it back to the Board for consideration after a new reclamation plan was submitted, but this did not invalidate the county’s approval of the reclamation plan. The CEQA action alleged the county’s EIR failed to sufficiently disclose, analyze and mitigate the project’s environmental impacts, that the project conflicted with the county’s general plan, and further, that the reclamation plan did not meet SMARA requirements. The trial court denied the petition for writ of mandate, and the appellate court affirmed.  The majority of the appellate court’s analysis of CEQA issues remains unpublished, but the court ordered publication of its consideration of the mitigation measures for the permanent conversion of agricultural lands.

Cleveland National Forest Foundation v. San Diego Association of Governments (2014) 231 Cal.App.4th 1056.

SANDAG’s program EIR for its SCS is set aside because: (1) the EIR failed to evaluate noncompliance with the Governor’s Executive Order post 2020; (2) the EIR lacked meaningful mitigation measures; (3) notwithstanding the inclusion of seven alternatives, the EIR was required to include an alternative which meaningfully reduced VMT; (4) the EIR lacked a meaningful baseline discussion of areas and human exposure to toxic air contaminants; and (5) the EIR failed to make reasoned assessment of impacts to agricultural lands of less than 10 acres in size. This decision adds uncertainty and expense to the preparation of programmatic documents. * A petition for review was filed on January 6, 2015.

Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152.

The Sierra Club challenged a climate action plan, adopted based upon an addendum to the General Plan EIR. The Sierra Club successfully argued that the general plan implementation action did not conform to the parameters/requirements as defined by the general plan and EIR.

Make no great plans. “Over-promising” in a general plan carries two risks. First, in the event that the development of implementation measures fails to occur within a reasonable time frame, a city or county faces the risk of litigation compelling it to act or potentially a challenge to set aside agency approvals. Cities and counties also face significant CEQA exposure when moving from General Plan adoption to the implementation phase. Cases suggest strongly that a supplemental EIR for the implementation action is required unless the implementation details are spelled out as part of the general plan (the exception rather than the rule.) What is the moral of the story? Don’t make grand plans when it comes to mitigation measures or general plan implementation.

Paulek v. Department of Water Resources (2014) 231 Cal.App.4th 35.

The California Department of Water Resources proposed a dam remediation project at Perris Lake, located within the Lake Perris State Recreation Area. The project included the following components: remediation of structural deficiencies; replacement of the existing outlet tower; and construction of an emergency outlet extension. In response to comments on the DEIR, the lead agency separated out the emergency outlet extension for separate CEQA review. In response to the CEQA lawsuit, the state (as the lead agency) argued that petitioner Paulek had only posed questions regarding the project, but had not “objected” to the project as required by Public Resources Code section 21177 and therefore, lacked standing to pursue a CEQA claim. Reviewing the transcript and comments, the court of appeal concluded that a question about the project could readily be understood as an “objection”, thereby satisfying the standing requirement.

The appellate court then turned to the three substantive CEQA claims: (1) did removal of the emergency outlet extension result in a potentially significant impact; (2) did the separation of the emergency outlet extension result in improper project segmentation; and (3) were the responses to comments on the DEIR sufficient? As to the removal of the emergency outlet extension from the project, no new impact was created. The risk associated with the existing (inadequate) facility was part of the baseline. Thus, removal of the proposed improvement from the project would not create a new impact as it was part of the existing physical conditions. Regarding the claim of segmentation, the court concluded that the first two project elements could proceed without the third (the emergency outlet extension) and was not a reasonably foreseeable consequence of the dam and overflow tower repairs. Factually, this satisfied the independent utility test which allows lead agencies to conduct separate environmental reviews. Finally, as to the claim of the inadequate response to comment, the appellate court concluded that (a) there was no obligation to respond to comments submit prior to the release of the DEIR, and (b) the lead agency’s practice of referring the reader to particular sections of the DEIR responsive to a general DEIR comment satisfied CEQA’s requires, noting that generalized comments require only generalized responses.

Citizens Opposing a Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th 360.

In a challenge to an EIR for a wind energy project, the court held that the lead agency could rely upon the FAA regulatory requirements for flight safety as mitigating for potential impacts between aircraft and wind turbines. This did not constitute impermissible deferred mitigation. The hand off to the FAA was also challenged on the basis that the FAA lacked enforcement authority in the event of conflict. However, once the FAA made a safety decision, the county’s conditions of approval assured safety through its land use regulations, so there was effective coverage of the risk. Appellants also challenged the sufficiency of the county’s response to an aviation safety related comment, but the appellate court noted that the comment was untimely under CEQA’s rules, and that the county had no obligation to respond. The court of appeal also found that there was substantial evidence in support of the disputed mitigation measure. That evidence consisted of the staff reports and discussion of FAA’s regulatory requirements. As to this issue, the court restated the well-understood rule that a reviewing court does not reweigh the evidence in an EIR, and noted that record included expert reports in support of the county’s determinations. Finally, the opponents challenged the rejection of an alternative which would have relocated the turbines off the ridgeline and away from the flight paths used by the glider pilots. The appellate court concluded that once the Board of supervisors had determined the impacts to be adequately mitigated, that the Board was not obligated to further consider alternatives which further reduced impacts.

Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314.

A programmatic EIR for a route corridor did not have to examine alignment specific issues in detail. A court needs to defer to the lead agency in circumstances in which there are debates among experts. Finally, an expansive consideration of alternatives at the outset (with the rationale for why particular ones were not carried forward), may yield significant benefits for the lead agency later on when facing new alternatives volunteered by project opponents. 

Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036.

The Court of Appeal for the First Appellate District held that the environmental impact report for the comprehensive plan to redevelop Treasure Island and Yerba Buena Island in the San Francisco Bay, which was labeled a “program EIR” (a) satisfied the substantial evidence standard of review as to all of the required elements of an EIR; (b) addressed the environmental impacts of the proposed project to a degree of specificity consistent with the underlying activity being approved; (c) did not avoid any supplemental review that may be necessary in the future. In response to the petitioner’s argument that the EIR should have been a “project EIR” instead of a “program EIR,” the court explained that designating an EIR as a program EIR does not by itself decrease the level of analysis otherwise required in the EIR; the key issue is whether the EIR addressed the environmental impacts of the proposed project to a degree of specificity consistent with the underlying activity being approved through the EIR.

California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173.

The Court of Appeal for the Third Appellate District, held the City of Woodland’s programmatic EIR for a regional commercial and retail center was invalid on the following three grounds: (1) it failed to provide sufficient mitigation measures for urban decay impacts; (2) it failed to properly assess the feasibility of the mixed-use alternative and support the city’s rejection of the alternative; and (3) the city did not adequately study and disclose transportation, construction and operational energy impacts in the EIR. The appellate court refused to consider plaintiff’s general plan consistency arguments as they were not properly presented to the court.

Lotus v. Department of Transportation (2014) 223 Cal. App.4th 645.

Imprecise environmental commitments in a project description may not be sufficient to avoid potentially significant impacts. Operational commitments, as compared to physical design standards may be more susceptible to challenge as vague and imprecise in a CEQA lawsuit.

d.         Subsequent Environmental Review

Citizens Against Airport Pollution v City of San Jose (2014) 227 Cal.App.4th 788.

A lead agency properly relied upon an eighth addendum to a 1997 airport master plan EIR, based in part on the fact that airport flight operations had grown more slowly than as originally studied in the EIR, therefore the project, as modified in 2010, was within the CEQA envelope as previously studied. With respect to greenhouse gas emissions, the court followed the earlier CREED decision ((2011) 196 Cal.App.4th 515) concluding that the greenhouse gas claims raised in challenge to the addendum could have been raised at the time the original EIR was certified, and therefore, was not a basis to overturn the decision by the lead agency to use an addendum.

e.         Litigation

Saltonstall v. City of Sacramento (2014) 231 Cal. App.4th 837.

This case involved a preliminary injunction to stop the demolition of the Sacramento Downtown Plaza and a CEQA action challenging the constitutionality of the newly added Public Resources Code section 21168.6.6, which allows for expedited CEQA review for projects involving arenas to be constructed in downtown areas, including the Sacramento Downtown Arena and a new Los Angeles arena. The trial court denied plaintiff’s motion for a preliminary injunction to stop the demolition and plaintiff’s timely appealed. Despite the demolition of the Downtown Plaza having commenced, the appellate court determined the CEQA action was not moot and considered the merits of the CEQA action. First, the appellate court held that Section 21168.6.6 does not violate the separation of powers and is constitutional as adopted by the California Legislature. Then, the appellate court affirmed the trial court’s denial of the preliminary injunction on the grounds that plaintiffs and appellants failed to show how the demolition of the plaza would pose an imminent threat to the public health and safety or adversely affect unforeseen important Native American artifacts or important historical, archaeological, or ecological values, as required by subdivision (h) of the new statute. The appellate court also rejected the argument that Section 21168.6.6 harms the public and the environment due to truncated project review timeframes.

Ventura Foothills Neighbors v. County of Ventura (2014) 232 Cal.App.4th 429. 

A lead agency prepared an EIR for a 75-foot high medical building. Based upon an addendum, the lead agency approved a relocation of the building and an increase in the height to 90 feet. The addendum discussed the relocation but not the increase in height. The court of appeal held that the increase in height and the potential impact to view was a substantial change necessitating a supplemental EIR. As the addendum failed to discuss the increase in height, the notice of determination filed on the addendum and project modification did not run the statute of limitations against the later CEQA claim based upon the increase in building height. The CEQA claim was timely filed within the extended 180-day statute of limitation and thus, could proceed.

San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal. App.4th 498.

The trial court did not commit an abuse of discretion in excluding administrative materials sought to be included by the respondent, but objected to by the petitioner. These disputed materials included those from a subcommittee of the board of supervisors. Virtually everything comes in. The petitioner must demonstrate that the abuse of discretion was prejudicial.

Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th 1043.

The Court of Appeal for the First Appellate District reversed in part and remanded in part, a trial court’s denial of the city’s ability to recover costs for its review of the record of proceedings for certification, as well as its costs for the preparation of a supplemental record where the Coalition failed to include all relevant documents in the record, which the Coalition elected to prepare.

Roberson v. City of Rialto (2014) 226 Cal.App.4th 1499.

The Court of Appeal for the Fourth Appellate District held that a petitioner was barred from bringing a CEQA lawsuit over a public notice violation (a) because petitioner failed to create an adequate record to demonstrate his prejudice resulting from the violation; and more significantly (b) because the same violation was unsuccessfully challenged in a prior CEQA action, and petitioner was in privity (for res judicata purposes) with the prior claimant.

Citizens for a Green San Mateo v. San Mateo County Community College District (2014) 226 Cal.App.4th 1572.

A NOD triggers the 30-day statute of limitations for the project as described in the initial study, MND and related documents. A NOD on a facilities master plan approved in 2006 triggered the relevant statute of limitations for a tree cutting contract awarded in 2010. Thus, the more information found in the project description, the better in the long run in terms of running the statute of limitations.

4.         CEQA Legislation

The following CEQA bills were signed into law by Governor Brown.

AB 52 (Gatto) – Native Americans: CEQA

This bill amends Public Resources Code section 5097.94, and adds Sections 21073, 21074, 21080.3.1, 21080.3.2, 21082.3, 21083.09, 21084.2, and 21084.3 to, the Public Resources Code, relating to Native Americans. It will take effect on July 1, 2015.

This bill specifies that a project with an effect that may cause a substantial adverse change in the significance of a tribal cultural resource, as defined, is a project that may have a significant effect on the environment. The bill requires a lead agency to begin consultation with a California Native American tribe that is traditionally and culturally affiliated with the geographic area of the proposed project, if the tribe requested to the lead agency, in writing, to be informed by the lead agency of proposed projects in that geographic area and the tribe requests consultation, prior to determining whether a negative declaration, mitigated negative declaration, or environmental impact report is required for a project. The bill specifies examples of mitigation measures that may be considered to avoid or minimize impacts on tribal cultural resources. The bill makes the above provisions applicable to projects that have a notice of preparation or a notice of negative declaration filed or mitigated negative declaration on or after July 1, 2015. The bill requires the Office of Planning and Research to revise on or before July 1, 2016, the guidelines to separate the consideration of tribal cultural resources from that for paleontological resources and add consideration of tribal cultural resources. Additionally, this bill requires the Native American Heritage Commission to provide each California Native American tribe, as defined, on or before July 1, 2016, with a list of all public agencies that may be a lead agency within the geographic area in which the tribe is traditionally and culturally affiliated, the contact information of those agencies, and information on how the tribe may request those public agencies to notify the tribe of projects within the jurisdiction of those public agencies for the purposes of requesting consultation.

AB 1104 (Salas) – CEQA: biogas pipelines exemption

This bill repeals and then adds back in a new Section 21080.23.5 relating to biogas pipelines. It will take effect on January 1, 2015 and shall remain in effect only until January 1, 2018, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2018, deletes or extends that date. This bill provides in pertinent part as follows:

(a)             For purposes of Section 21080.23, “pipeline” also means a pipeline located in Fresno, Kern, Kings, or Tulare County, that is used to transport biogas, and meeting the requirements of Section 21080.23 and all local, state, and federal laws; and

(b)            For purposes of this section, “biogas” means natural gas that meets the requirements of Section 2292.5 of Title 13 of the California Code of Regulations and is derived from anaerobic digestion of dairy animal waste.

SB 674 (Hayward) – CEQA: residential infill projects exemption

This bill amends Section 21159.24 of the Public Resources Code, relating to exemptions for residential infill projects. It will take effect on January 1, 2015.

Currently, Section 21159.24(d)(2) defines “residential” to include a use consisting of residential units and primarily neighborhood-serving goods, services, or retail uses that do not exceed 15% of the total floor area of the project. This bill exempts as “residential” a use consisting of residential units and primarily neighborhood-serving goods, services, or retail uses that do not exceed 25% of the total building square footage of the project.

If you have any questions about these court decisions, contact William Abbott or Katherine Hart. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.