CEQA

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By Katherine J. Hart

In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439 (Neighbors), the California Supreme Court held that a lead agency has discretion to omit existing conditions analyses by substituting a baseline consisting of environmental conditions projected to exist solely in the future, but to do so the agency must justify its decision by showing an existing conditions analysis would be misleading or without informational value.Continue Reading Supreme Court Resolves Baseline Issue In Neighbors for Smart Rail Ruling

By Katherine J. Hart

In San Diego Citizenry Group v. County of San Diego (Published August 26, 2013, D059962) ___ Cal.App.4th ___, the Court of Appeal, Fourth District, upheld San Diego County’s (County) certification of an EIR and approval of a Tiered Winery Ordinance Amendment (Winery Ordinance) which permits boutique wineries in agriculturally designated and zoned land in the unincorporated area of the County by right. In ruling on a dispute regarding the cost of transcripts in the administrative record, the Fourth Appellate District reversed the trial court and held appellant was not required to reimburse the County for the costs of transcribing transcripts of the planning commission meetings pursuant to Public Resources Code section 21167.6(e)(4).Continue Reading Transcripts Not Always Required For Administrative Record

By William W. Abbott

Friends of Oroville v. Wal-Mart Stores, Inc. (August 19, 2013, C070448) ___ Cal.App.4th ___.

Wal-mart moved several steps closer to a new store as a result of the most recent appellate court decision over a new retail center proposed to be constructed in Oroville, suffering a setback however on greenhouse gas emissions. Friends of Oroville appealed a planning commission approval of a proposed supercenter, intended to replace an existing store. Following the appeal hearing, the City Council approved the new store, and the Friends of Oroville filed a petition for writ of mandate to set aside the approval. The trial court denied the petition, and Friends of Oroville appealed. On appeal, the appellate court affirmed the legal sufficiency of the EIR save one issue (greenhouse gases) and one clarification (payment of traffic fees.) The published portion of the decision pertains to greenhouse gas analysis, and the court ruled as follows.Continue Reading With Friends Like This, Who Needs CEQA Enemies?

By Katherine J. Hart

On August 16, 2013, CEQA attorney Tina Thomas filed a depublication request with the California Supreme Court over the Fifth District Court of Appeal’s decision in Citizens for Ceres v. Ceres v. Superior Court 217 Cal.App.4th 889 (Citizens for Ceres).  For a copy of the depublication letter, click here.Continue Reading California Infill Builders Federation Files Request for Depublication of Citizens for Ceres Case

By Katherine J. Hart

In Masonite Corporation v. County of Mendocino (July 25, 2013) 215 Cal.App.4th 230, the Court of Appeal, First Appellate District, reversed a trial court’s decision denying a petition for writ of mandate, and directed Mendocino County (County) to decertify its EIR, set aside its project approvals (a conditional use permit and reclamation plan), and prepare and circulate a supplemental EIR to address concerns related to an endangered frog, mitigation of impacts to prime agricultural farmland, and mitigation measures related to cumulative traffic impacts, for an aggregate mining project.Continue Reading Court Puts Onus On County To Demonstrate Infeasibility Of Agricultural Conservation Easements To Mitigate Loss Of Prime Farmland

By William W. Abbott

Save the Plastic Bag Coalition v. County of Marin (July 25, 2013, A133868) ___Cal.App.4th ___.

In January 2011, the Board of Supervisors for the County of Marin enacted an ordinance generally banning the use of single use plastic bags and adopting a fee for paper bags. The ordinance also required retailers covered by the ordinance to offer reusable bags for purchase. This ordinance came about after some period of County study. A trade group, Save the Plastic Bag Coalition, submitted comments in opposition to the proposed ordinance, including a demand for an EIR. Initially, the Board continued the hearing. At the continued hearing, the Board considered, among other items, a letter from the County Counsel’s office suggesting that the Board should complete the hearing and could act based upon a categorical exemption (classes 7 and 8; maintenance and restoration of a natural resource and maintenance, restoration, enhancement or protection of the environment, respectively.) Relying upon the two exemptions, the Board approved the use of the two exemptions and approved the ordinance. The Coalition sued. The trial court upheld the Board’s decision and the Coalition appealed.Continue Reading Appellate court upholds ordinance restricting single use plastic bags and adopting a fee for paper bags based upon a categorical exemption in CEQA.

By Katherine J. Hart

In Citizens for Ceres v. Superior Court (July 8, 2013) ___ Cal.App.4th ___ (Citizens for Ceres), the Fifth Appellate District considered a writ from the trial court’s order denying the Citizens’ motion to augment the administrative record with various communications and documents excluded by the City. In overruling the trial court’s order, the Court of Appeal held that while Public Resources Code section 21167.6(e)(10) does not abrogate the attorney-client and attorney work-product privileges, “the common interest privilege does not protect otherwise privileged communications disclosed by the developer to the city or by the city to the developer prior to project approval.” Such a ruling conflicts with the implied holding of the California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th1217 (California Oak) ruling on this issue.Continue Reading Fifth Appellate District Says There Is No Common Interest Privilege In California Pre-Project Approval

By William W. Abbott

Save Panoche Valley v. San Benito County (June 25, 2013, H037599) ___ Cal.App.4th ___.

Famous for its bird sitings (http://www.audublog.org/?p=4155), Panoche Valley sits nestled between Interstate 5 and Highway 101 (http://www.cosb.us/Solargen/). I wager that few Californians have passed through this quiet terrain, and but for this court decision, would not know that this valley exists. Besides its limited number of residents and great diversity in bird species, Panoche Valley is also notable in that (1) it is exposed to high levels of solar radiation, and (2) it is bisected by a 230 kV transmission line. Just as no-good-deed-goes-unpunished, neither do conflicting environmental values resolve themselves without a CEQA lawsuit.Continue Reading Williamson Act Contract Cancellation For Solar Project Upheld Along With Companion Environmental Impact Report

Welcome to Abbott & Kindermann’s 2013 CEQA update. It is cumulative for the year, with the newest cases issued in the 2nd quarter shown in italics and bold type face.

To review our prior annual reviews, click here: 2012; 2011; 2010; 2009; 2008.

The pace of published CEQA cases remains relaxed for the first half of 2013. However, five cases are pending at the California Supreme Court. These include the unusual circumstances limitation on exemptions (Berkeley Hillside Preservation v. City of Berkeley); setting the baseline (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority); application of CEQA to council enactment of measures which qualify as initiatives on local ballots (Tuolumne Jobs & Small Business Alliance v. Superior Court); and mitigation requirements (City of San Diego v. Board of Trustees and City of Hayward v. Board of Trustees.)Continue Reading 2013 CEQA 2ND QUARTER REVIEW