By William W. Abbott

A continuing reoccurring question for CEQA practitioners is: when is it appropriate to rely upon the regulatory scheme and permitting steps of independent regulatory agencies? The most ready criticism of that practice is that it involves deferred mitigation. That criticism has to be balanced against the recognition that subsequent to the enactment of CEQA, that there now exists a myriad number of local, state and federal regulatory agencies with special regulations and expertise and CEQA should integrate with existing regulatory practices where issues overlap. As the decision in Citizens Opposing a Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th 360 illustrates, perhaps an easier case can be made for regulatory reliance when a CEQA lead agency relies upon a federal agency with exclusive regulatory authority.Continue Reading Permissible CEQA Mitigation Includes Reliance Independent Agency Regulatory Review

By Glen Hansen

In 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 “project 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; and (c) properly allows for supplemental review that may be necessary in the future.Continue Reading It Says It’s A “Project” EIR. You Say It Should Be A “Program” EIR. Does The Label Even Matter?

 By William W. Abbott

The courts have been clear: the decisionmaking body has to consider the CEQA document before taking action to granting a discretionary approval. A recent court decision examines a variation on that practice when the approving body approved the CEQA document, but lacked the authority under the local code to do. How does the legislative body cure that error?Continue Reading An Appeal To The City Council Fails To Wash Away All CEQA Sins. Consideration Of Historical Resources In A Negative Declaration Falls Under The Substantial Evidence Test, Not The Fair Argument Test.

By Katherine J. Hart

In Coalition for Adequate Review v. City and County of San Francisco (September 15, 2014, A135512) ___Cal.App.4th ___, the Court of Appeal, First Appellate District, reversed in part and remanded in part, a trial court’s denial of the City’s ability to recover costs for the record of proceedings where the Coalition failed to include all relevant documents in the record the Coalition elected to prepare, despite the trial court’s denial of the petition for writ of mandate.Continue Reading Appellate Court Clarifies Costs Recovery Rules In CEQA Litigation

By Glen Hansen

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

On July 15, 2008, the City of Rialto approved development of a commercial retail center to be anchored by a Wal-Mart Supercenter. The notice of the initial, July 1, 2008, public hearing before the city council on the project approvals was legally defective because the notice did not indicate that the planning commission had recommended the city council adopt the project approvals. (See Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 890–893.) In August 2008, Rialto Citizens for Responsible Growth, a nonprofit mutual benefit corporation (“Rialto Citizens”), petitioned the trial court to invalidate and set aside the project approvals based in part on the defect in the notice of the July 1 city council hearing. On appeal, the court ruled against Rialto Citizens, holding that the petitioner made no attempt to show in the trial court, and the trial court did not find, that the defect in the notice was prejudicial, caused substantial injury to any of Rialto Citizens’ members, or that a different result was probable absent the defect. (See Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 916–921.)Continue Reading CEQA Case Barred: Petitioners Seeking Vindication of Same Public Interest as Prior Unsuccessful Claimant

By William W. Abbott

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

Programmatic EIRs invariably invoke the uneasy question, of “how much information is enough?” This question is reminiscent of the challenge to the United States Supreme Court in defining obscenity and Justice Potter Stewart’s concurring opinion when he acknowledged the difficulty of articulating a standard, writing “I know it when I see it”, and then concluding that the movie in question was not obscene. The Third District Court of Appeal recently wrestled with CEQA’s equivalent to defining the undefinable, concluding that the level of detail on a programmatic EIR was sufficient.Continue Reading Third District Court of Appeal Upholds Level Of Detail In Programmatic EIR for Rail Corridor

By Katherine J. Hart

In California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173, the Court of Appeal, Third District, held the City of Woodland’s (City) programmatic environmental impact report (EIR) 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.Continue Reading The Third DCA Turns Off The Lights and Directs A More Thorough Energy Analysis Be Prepared For Regional Shopping Center Project

By William W. Abbott

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

Details do matter in CEQA litigation as reflected in the recent decision involving the application of the statute of limitations to bar a CEQA claim. Citizens for a Green San Mateo v. San Mateo County Community College District (2014) 226 Cal.App.4th 1572. The facts involve a facilities master plan adopted by the San Mateo County Community College District. The chronology begins in 2001 when the District adopted a master plan. The District updated the master plan in 2006. The 2006 plan called for building demolition and reconstruction, and extensive site redevelopment including modification to existing landscaping. A mitigated negative declaration was approved in conjunction with the updated master plan. From 2008 through 2010, the District developed, approved and awarded site specific construction contracts. To differing degrees, these plans and construction contracts referenced tree removal. In late 2010, the District awarded a contract for tree removal which began on December 29, 2010, continuing on into January. Citizens raised concerns in early January, and filed a petition for writ of mandamus against the District on July 1, 2011. Continue Reading An NOD Filed On A Facilities Master Plan In 2006 Applied To A 2010 Tree-Cutting Contract Awarded In Furtherance Of The Master Plan