CEQA

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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.

Rewritten to address desperately needed CEQA reform, SB 317 (sponsored by Senator Rubio) proposes significant revisions to CEQA via a completely different statute – The Sustainable Environmental Protection Act. While environmentalists claim the changes are “last minute” and would completely “gut” CEQA, business interests contend the proposed changes have been in the works for at…

By Glen C. Hansen

In Conservatorship of Whitley (2010) 50 Cal. 4th 1206, the California Supreme Court examined the three requirements that litigants must prove in order to recover attorneys’ fees under California’s ‘private attorney general’ fee statute in Code of Civil Procedure section 1021.5. Those factors are “(1) plaintiffs’ action ‘has resulted in the enforcement of an important right affecting the public interest,’ (2) ‘a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons’ and (3) ‘the necessity and financial burden of private enforcement are such as to make the award appropriate.’” (Id. at p. 1214 (citation omitted).)Continue Reading Only The Pecuniary Interests Of A Public Litigant May Be Considered When Awarding Attorneys’ Fees To The Public Litigant Under Code of Civil Procedure §1021.5

By William W. Abbott

California State University East Bay undertook a dual purpose EIR for its campus master plan and two construction projects, the latter consisting of a housing complex and a parking structure. The EIR included alternatives at both the master plan and construction project level. The City of Hayward and public interest groups filed suit challenging the sufficiency of the EIR. The trial court found the EIR to be deficient and issued an order granting the petition for writ. The University subsequently appealed.Continue Reading Town Versus Gown Fight Continues Over State University EIR

By Sharon Buckenmeyer

On July 27, 2012, the California Natural Resources Agency gave notice of intent to adopt CEQA Guideline section 15183.3 pursuant to SB 226 (Simitian). Section 15183.3 is intended to streamline the environmental review process for eligible infill projects and reduce the time and cost of the environmental review. To be eligible the…

By William W. Abbott

Neighborhood activists organized to defeat the proposed demolition of the Van De Kamp Bakery Building for the construction of a new commercial building. With the support of the activists, the Los Angeles Community College District acquired the site in 2001 with the idea of developing a satellite college facility. The District completed an EIR and two addenda for a reuse plan for the building, but due to budgetary constraints, the campus was not developed. In 2009, the District adopted an interim use plan, and authorized the execution of a lease with a private education service provider. The District determined that the lease did not require additional CEQA review as it served the same functionality that the site had been analyzed for under the EIR and related documents. Appellants filed a CEQA lawsuit (CEQA I) challenging the 2009 approvals. In 2010, while the CEQA I lawsuit was pending, the District took further actions to implement the 2009 resolutions. Appellants then filed a second CEQA action (CEQA II), challenging the 2010 actions on the basis that they violated CEQA. The District demurred to the CEQA II lawsuit on the basis that it was duplicative of the first lawsuit and time barred by the statute of limitations running from the 2009 resolutions. Appellants argued in part that the District did not commit itself to a particular course of action until such time as the 2010 approvals were granted. Applying the 180 day statute of limitations running from the 2009 resolutions, the trial court determined that the CEQA II claim was untimely. The court also concluded that the second lawsuit was duplicative. The court dismissed CEQA II, and in the separate CEQA action, granted the appellants partial relief.Continue Reading Court Says No Second Servings in CEQA Case