CEQA

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By Janell M. Bogue

In development, as in life, plans change. From a CEQA standpoint, problems emerge as projects are modified, as the triggers requiring new environmental review are less than precise. The recent case of Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385 (“Mani Brothers”) demonstrates that even the courts are unclear on the issue, as two appellate courts have come to two different conclusions. The court in Mani Brothers emphasized that the question is not whether the changes amount to a new project, but whether there is substantial evidence that the changes in the project would create new and significant environmental impacts.
Continue Reading Second Appellate District Clarifies Test for SEIR Preparation When Project is Modified

By Glen C. Hansen

Due to increasing regulatory complexity, development projects may require multiple approvals, issued over an extended time period. Lead and responsible agencies frequently, but not always, file separate notices of determination (“NOD”) for each approval. When that happens, interested parties are challenged as to the optimal time period to file suit. In a multiple NOD scenario, a later filed petition will be considered under a less favorable standard of judicial review, which could lead to a very different outcome in the litigation. Such a result is illustrated by the recent case of Citizens For A Megaplex-Free Alameda v. City of Alameda (“Megaplex”) (March 29, 2007) 149 Cal.App.4th 91, review denied (Cal., June 27, 2007) 2007 Cal.LEXIS 6959.
Continue Reading Multiple Sequential NODs: Weapons of mass confusion for applicants and project opponents

By William W. Abbott

Unlike residential or commercial development projects with somewhat predictable levels of activity (and in turn, environmental effects), mining projects involving rock, sand and gravel can vary widely based upon local economic conditions. The recent case of San Joaquin Raptor v. County of Merced (April 10, 2007) 2007 Cal. App. LEXIS 516 examines the duty of the lead agency to also evaluate impacts associated with periodic or sustained peaks, and not just to rely upon historic averages. The decision also addresses deferred mitigation in the area of biological impacts.
Continue Reading Mine Games: CEQA documentation for mining projects with fluctuating production levels

By William W. Abbott

One person’s misery can be someone else’s gain. This can also hold true when dealing with inter-jurisdictional disputes over impact fees. The recent case of Woodward Park Homeowners Association, Inc. v. City of Fresno (April 13, 2007) 2007 Cal.App.LEXIS 544 highlights a number of important CEQA practice issues. While these are not necessarily new concerns, the case daylights a key issue of first impression–namely, whose responsibility is it to calculate the nexus for impact fees to be set for impacts to state highway facilities? Is CalTrans responsible, or is it the responsibility of the city or county approving a development project which impacts state facilities? According to the Fifth Appellate District, the answer to the question is the lead agency.
Continue Reading Rough Road Ahead: Whose responsibility is it to perform a nexus study for mitigation fees for local project impacts to state highways?

By William W. Abbott

For many discretionary actions, lead agencies struggle with the question of CEQA timing. While many court decisions have criticized cities and counties with delaying the CEQA process, there are rare occasions in which the lead agency concludes that meaningful CEQA review is too speculative and therefore premature. Two new cases provide the bookends to this discussion.
Continue Reading Too early or too late for CEQA review: Two appellate decisions bracket the fundamental question of timing

By William W. Abbott & Janell M. Bogue

Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (February 1, 2007, S132972) __ Cal.4th __ [2007 Cal.Lexis 748]

Few CEQA cases reach the California Supreme Court. Accordingly, it is noteworthy that the court has issued two decisions on CEQA issues in the past eight months. The most recent decision in Vineyard Area Citizens, provides added extensive guidance on the interface between water supply and CEQA. The case also provides a more limited analysis on EIR recirculation.
Continue Reading California Supreme Court Weighs In Once Again on CEQA Compliance

By Kate J. Hart

California’s Fifth Appellate District recently decided the case of Wagner Farms, Inc. v. Modesto Irrigation District (December 6, 2006) 2006 Cal.App.Lexis 1923, which involves the awarding of costs for preparation of the record of proceeding arising out of a CEQA suit.
Continue Reading Recent Case Examines Cost Recovery for Record Preparation Under CEQA

By Janell M. Bogue

Recently, the Third Appellate District held that the Natomas Basin Habitat Conservation Plan (“HCP”) was properly certified by the City of Sacramento and Sutter County (“City and County”) under CEQA and that the Department of Fish and Game (“DFG”) complied with the California Endangered Species Act (“CESA”) in issuing its incidental take permits. The case is Environmental Council of Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 1018.
Continue Reading HCPs and Hawks and Snakes…Oh My!

By William W. Abbott

When it comes to administrative appeals of land use decisions, state law largely delegates to cities and counties the choice of being flexible or rigid on administrative appeals (e.g. tentative subdivision map approvals, conditional use permits, CEQA documents). Most cities and counties opt for a de novo review by the appellate body. This means that the appellate body effectively starts over on the decision, and it is empowered to make any decision it deems to be appropriate under the circumstances. As illustrated by the recent decision of Citizens for Open Government v. City of Lodi (Browman Development Co., real party in interest) 2006 Cal. App. LEXIS 1764, de novo review may permit a project opponent to challenge in court the adequacy of the CEQA document, even though the appeal to the city council was on non-CEQA grounds.
Continue Reading Local Administrative Rules Leave Door Open for CEQA Challenge