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By Glen Hansen

On June 1, 2012, the County of Madera, the Madera County and Merced County Farm Bureaus, Chowchilla Water District, and other individuals and entities (collectively, “Petitioners”) sued the California High-Speed Rail Authority (“Authority”) on the grounds that the Authority had violated CEQA and the Bagley-Keene Open Meeting Act related to the approval of the approximately 75-mile Merced to Fresno section (“Section”) of the proposed 800-mile public transit project known as the High-Speed Rail project. Petitioners allege that that a significant portion of the Section would “deviate from existing transportation corridors, resulting in the destruction of and interference with thousands of acres of farmland, wildlife habitat, hundreds of homes, may businesses, commercial properties and industrial facilities, existing roads and water delivery facilities.” Petitioners further allege that the final environmental impact report (“FEIR”) for the Section contains “myriad analytical deficiencies,” fails to disclose and analyze “the full scope and severity of impacts,” and improperly defers “impact analysis and mitigation.” Petitioners also allege that the Authority violated the Open Meeting Act by not providing “the required notice for the substantive changes to the analysis of Section impacts and the scope of mitigation measures included in the Errata to the FEIR ….” Continue Reading First Link In High Speed Rail Project Clears Preliminary Injunction Hurdle In CEQA Litigation.

By Katherine J. Hart

In Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899 (Rialto Citizens), the City of Rialto (City) and Walmart appealed a trial court’s grant of writ of mandate invalidating the City’s approval of a 230,000-square-foot commercial shopping center to be anchored by a 24-hour Walmart Supercenter. In its decision, the Court of Appeal, Fourth Appellate District, discussed public interest standing to challenge a CEQA project, the import of defective notice of a public hearing, whether the approval of the development agreement missing a general/specific plan consistency finding was valid, and a myriad of other CEQA issues such as the adequacy of (1) the project description, (2) cumulative impact analyses on traffic and air quality, (3) the greenhouse gas analysis, and (4) mitigation measures for biological impacts, and whether the City properly rejected the reduced density alternative as infeasible.Continue Reading Multiple Harmless Errors Do Not Require Project Approvals Be Overturned Unless Prejudice Is Shown

By William W. Abbott

In case you missed the recent legal tremor, be advised that land use practitioners are looking at two appellate districts in conflict with one another over the application of CEQA to a citizen sponsored land use measure. In Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores, Inc.) (October 30, 2012, F063849) ___Cal.App.4th ___, the facts involve the efforts of Wal-Mart to seek an expansion of an existing store in the City of Sonora. An EIR was prepared by the City, and the Planning Commission recommended approval. Before the matter was considered by the City Council, an initiative was filed, the effect of which would change the land use regulations on the Wal-Mart parcel, and dispense with the need for a discretionary permit. Once the city determined that the initiative petition contained the requisite number of signatures, the City Council had two basic choices: enact the measure as its own without modification or place it on the ballot. With the belief that CEQA did not apply, the City Council chose the former option and enacted the initiative measure as its own. Litigation challenging the approval ensued, including a claim that the City Council was required to complete the CEQA process first. The City and Wal-Mart demurred to the petition/complaint, which the trial court sustained. Petitioners then filed a writ petition with the Fifth Appellate District which granted the writ as to the CEQA claim, effectively reinstating the claim at the trial court.Continue Reading Appellate Court Draws Line In Sand Requiring CEQA Review Before City Council Enactment of Land Use Measure

By William W. Abbott

Roseburg Forest Products Co. operates a wood veneer processing facility in Weed, California. In 2008, the County of Siskiyou approved a permit for the purpose of installing a biomass-fueled cogeneration power plant. The project included a steam-driven cogeneration system, turbine, cooling tower and substation (communications tower and building.) Source fuel included waste wood from the veneer plant operation, along with fuel from forest management activities. The County processed an EIR. In September 2008, the Siskiyou County Planning Commission certified an EIR and approved the use permit. Mount Shasta Bioregional Ecology Center (“MSBEC”) and others appealed the Commission’s decision. The Board upheld the permit in November of 2008. MSBEC and another organization then filed a CEQA challenge. In March, 2010, the trial court denied the writ petition.Continue Reading Co-Gen EIR With Limited Range Of Alternatives Upheld

In Chung v. City of Monterey Park (October 23, 2012, B233859) ___Cal.App.4th ___, the City Council directed staff to prepare a ballot measure that would require the City to seek competitive bids for trash service when the current contractor’s contract was complete in 2017, and provide a new bidding opportunity every five years thereafter. Chung, a resident of the City and signatory to the ballot arguments against the measure, filed suit to remove the measure from the ballot arguing the City violated the California Environmental Quality Act (CEQA) by failing to perform environmental review and because the Council “had deemed Measure BB a voter ‘initiative,’” but failed to follow the initiative measure requirements for a petition and thus, unconstitutionally restricted the actions of future City Councils.Continue Reading No Commitment, No “Project”

By William W. Abbott

The City of Santee certified an EIR, a water supply assessment and entitlements for a mixed use project on 970 acres of a 2,600 acre real estate holding. The approved land uses included 1,380 single family dwellings, 230 acres of a pedestrian oriented village, and a 10 acre lake. About half the area, 1,400 acres, would be approved as an open space preserve. Opponents challenged the EIR, and the trial court found a CEQA error pertaining to fire safety. The trial court declined the opponents request to set aside all of the approvals, opting for limited relief as contemplated by Public Resources Code section 21168.9. The trial court also awarded attorneys fees to the opponents under the authority of Code of Civil Procedure 1021.5. Both sides appealed.Continue Reading EIR Set Aside For Failure To Explain Discrepancy Between EIR And WSA In Water Demand Number And To Analyze Groundwater Impacts Resulting From Filling A Lake

By Katherine J. Hart

In Voices for Rural Living v. El Dorado Irrigation District, the Court of Appeal, Third Appellate District, affirmed the trial court’s determinations that (1) the small project categorical exemption in CEQA did not apply to exempt an agreement for water service from CEQA review due to the unusual circumstances surrounding the agreement, and (2) a local water district lacked authority to disregard or deem unconstitutional annexation conditions previously imposed by the local agency formation commission (LAFCo).Continue Reading Class 3 CEQA Exemption: Unusual Circumstances Exception Becoming Less Unusual?

By William W. Abbott, Diane Kindermann, Elizabeth Strahlstrom, Katherine J. Hart and Glen Hansen

We are pleased to present our cumulative Third Quarter CEQA Review for 2012. The newest decisions issued in the 3rd quarter are bolded and preceded by asterisks (***).

In terms of new developments, the Supreme Court has taken up the Neighbors for Smart Rail case, meaning that there are now three CEQA cases pending at the California Supreme Court: Neighbors for Smart Rail, Berkeley Hillside Preservationand City of San Diego v. Board of Trustees of the California State University. One common theme in the third quarter cases was judicial deference to the decisions of the lead agency. Particularly noteworthy were decisions which recognized the integration of lead agency CEQA practice with the independent substantive regulations and laws administered by other agencies such as USFWS, CDFG, state agencies and special districts (Rialto, Maywood), as well as rejection of alternatives (Rialto, Maywood).Continue Reading 2012 CEQA 3rd QUARTER REVIEW

By William W. Abbott

City of Maywood v. Los Angeles Unified School District (2012) 208 Cal.App.4th 362. Los Angeles Unified School District ("LAUSD") proposed construction of a new high school in the City of Maywood. LAUSD was interested in a two block site consisting of 8.37 acres, then bisected by a major street. The original concept, called for the street to be abandoned and incorporated into the overall campus design. In response to the Notice of Preparation for the EIR, LAUSD received comments including questions concerning the infeasibility of street abandonment. The District modified the design as part of the Draft EIR, leaving the road in place but adding a pedestrian overcrossing of the existing street to provide connectivity between the two project site areas. Following certification of the EIR, the District approved the project. The City filed a CEQA challenge, and the trial court agreed that the District had committed several CEQA errors, and in response to a subsequent motion filed by the City, awarded attorneys’ fees of $670,000 to the City under the authority of California’s private attorney general statute, Code of Civil Procedure 1021.5. The District appealed. In a lengthy and painstaking decision, the Second Appellate District largely agreed with LAUSD, reversing the trial court of 4 of 5 CEQA issues and reversing and remanding the award of attorneys’ fees for further consideration. The appellate decision provides guidance as to a number of key CEQA subjects: cumulative effects, alternatives, mitigation deferral and growth assumptions.Continue Reading Appellate Court Re-grades EIR Exam and Gives L.A.U.S.D. High Marks; Assigns More Homework to Address Pedestrian Safety for High School Project.