Readers of this blog know that CEQA reform is an issue near and dear to the firm. While many share our interest, apparently the Legislature believes in CEQA reform only for businesses involved in major league sports and selected infill projects. For the rest of the economy, it’s tough love and tough luck.
Where local governments have some latitude in reducing CEQA’s burdens it is in the conscious framing of ordinances to create ministerial permit pathways. The most recent decision which touches on this topic is Venice Coalition to Preserve Unique Community Character v. City of Los Angeles, (2019) 31 Cal.App. 5th 42. Through the Venice Coastal Zone Land Use Plan, adopted as part of the City’s General Plan, the City of Los Angeles identified a number of decisions which could be made by the Planning Director based upon established criteria. No notice. No hearing. No CEQA review. Wonderfully simple. Such determinations and approvals, if calibrated against published standards should be viewed as ministerial in character.
The professional challenge to local planners in crafting ordinances is to resist the temptation to make every determination discretionary in character. While drafting ordinances which rely upon real standards and not generalized criteria is challenging, my advice is to do the hard work. The regulatory journey to ministerial reviews must be a conscious choice. Merely labelling or wishing something to be ministerial will not succeed. Obviously, not every approval should be (or can be ministerial), but far more permits and approvals are exposed to the expense and litigation risk associated with CEQA than really need to be.
If you are interested in a deeper dive into this topic, I recommend reviewing the following cases, two of which involve design review: San Diego Navy Broadway Complex v. City of San Diego (2010) 185 Cal.App. 4th 924; Health First v. March Joint Powers Authority (2009) 16 Cal.App. 4th 1135; Sierra Club v. Napa County Board of Supervisors (2012) 205 CA 4th 162; Sierra Club v. County of Sonoma (2017) 11 Cal.App. 5th 11. Another case worthy of review is McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 31 Cal.App.5th 80, which also touches upon the design review/CEQA interface. Happy drafting!
William Abbott is a shareholder at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.