Miller Starr Regalia

First District Holds U.C. Berkeley Campus’s Decision To Increase Student Enrollment Above Maximum Projected Level Analyzed In EIR for Long Range Development Plan Is A “Project” Under CEQA And Not Exempt Under Public Resources Code § 21089.09

By Arthur F. Coon

July 2, 2020

In a partially published opinion filed June 25, 2020, the First District Court of Appeal (Division 5) reversed the trial court’s judgment entered after sustaining a demurrer without leave to amend; it held that a non-profit group’s petition and complaint for declaratory relief adequately stated a cause of action on the basis that U.C. Berkeley’s approval of student enrollment increases far beyond those projected in its 2005 Long Range Development Plan (“LRDP”), and analyzed in…

CEQA Developments

Third Time Is Not The Charm: Fourth District Affirms Judgment Setting Aside San Diego County’s Climate Action Plan And Related Supplemental EIR Approvals Due To CEQA Violations

By Arthur F. Coon

June 29, 2020

In a mammoth 132-page published opinion (with an additional five pages of appendices) filed on June 12, 2020, the Fourth District Court of Appeal (Division One) mostly affirmed the trial court’s judgment invalidating San Diego County’s approvals of a 2018 Climate Action Plan (CAP), related Guidelines for Determining Significance, and related Supplemental EIR (SEIR). The opinion – which marked “the third time the County’s attempt to adopt a viable climate action plan and related CEQA…

Land Use Developments

Development Agreement Allowed City to Impose New Fees on Housing Project Despite Previously Approved Vesting Tentative Map

By Bryan W. Wenter, AICP

June 19, 2020

In a new case published on June 8, 2020, North Murrieta Community, LLC v. City of Murrieta, __ Cal.App.5th __ (2020) (Case No. E072663), the Fourth District Court of Appeal addressed novel vested rights issues arising under both the Subdivision Map Act (Gov. Code § 66410 et seq.) and the density bonus law (Gov. Code § 65864 et seq.). Both statutes essentially establish that when a local agency approves a vesting tentative map or enters…

CEQA Developments

Update on COVID Pandemic’s Impact on CEQA/Land Use Litigation Statutes of Limitations: California Judicial Council Modifies Emergency Rule 9 To Provide “Hard Stop” Date of August 3, 2020 for Tolling

By Arthur F. Coon

June 1, 2020

On May 29, 2020, the California Judicial Council adopted amendments to its controversial Emergency Rule 9 to provide fixed dates for the tolling of civil statutes of limitations, thereby replacing the indeterminate tolling previously provided for by the rule. While the amended Emergency Rule 9 provides welcome certainty, many believe it goes too far in extending CEQA and other short statutes of limitations in the land use litigation context – most of which are short…

Land Use Developments

Court Invalidates City’s Denial of Conditional Use Permit Because Councilmember’s Pre-Hearing Actions Demonstrated Bias

By Bryan W. Wenter, AICP

June 1, 2020

In an important new case certified for publication on May 8, 2020, Petrovich Development Company, LLC v. City of Sacramento, __ Cal.App.5th __ (2020) (Case No. C087283), the Third District Court of Appeal addressed the constitutional due process restraints imposed on city council members, who are normally policymakers and voices of their constituents except when they act in a quasi-judicial capacity as adjudicators of matters on appeal from an administrative body.…

CEQA Developments

Sixth District Holds City Of San Jose’s Action In Seeking And Accepting Streambed Alteration Agreement From California Department Of Fish And Wildlife Is Not New Discretionary Approval For City’s Historic Trestle Demolition/Bridge Construction Project, And Thus Does Not Trigger Subsequent CEQA Review

By Arthur F. Coon

May 22, 2020

In a published opinion filed May 18, 2020, the Sixth District Court of Appeal affirmed the trial court’s denial of a historic preservation group’s writ petition that challenged the City of San Jose’s (City) entry into a Streambed Alteration Agreement (SAA) with the California Department of Fish and Wildlife (CDFW), which agreement was needed to implement the City’s pedestrian bridge project involving demolition of the historic Willow Glen Railroad Trestle. Willow Glen Trestle Conservancy v.…

Land Use Developments

New Bay Area Shelter-in-Place Orders Ease Rules, Allow All Construction to Resume Operations

By Bryan W. Wenter, AICP

April 30, 2020

Construction projects of every type in six Bay area counties—Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara—may resume operations on Monday, May 4, after health officers in six counties issued new shelter-in-place orders on April 29. While the new orders ease the rules in numerous ways, including certain outdoor businesses and recreation such as golf and tennis, Governor Newsom is poised to shut down California’s…

CEQA Developments

Back To CEQA Basics: Second District Teaches That CEQA Requires Judicial Deference To Lead Agency’s Chosen Baseline, Failure To Administratively Exhaust “Exact Issue” Results In Forfeiture, And An EIR Is Not Faulty For Omitting Immaterial Information

By Arthur F. Coon

April 21, 2020

In a published 2-1 majority opinion filed April 7, 2020, written by Justice Wiley and joined by Presiding Justice Bigelow, the Second District Court of Appeal (Div. 8) affirmed a judgment upholding the EIR for Tesoro’s “Los Angeles Refinery Integration and Compliance Project.” Communities for a Better Environment v. South Coast Air Quality Management District (Tesoro Refining and Marketing Company, LLC, Real Party in Interest) (2d Dist. 2020) 47 Cal.App.5th 588. The project involved Tesoro’s…

CEQA Developments

California Supreme Court Grants Review of Third District Decision Involving FERC Relicensing of State’s Oroville Hydroelectric Dam Project To Decide Extent To Which Federal Power Act Preempts CEQA; Merits Briefing Underway

By Arthur F. Coon

April 20, 2020

On December 11, 2019, the California Supreme Court by a 7-0 vote granted the petition for review of Butte and Plumas Counties and the Plumas County Flood Control and Water Conservation District in County of Butte v. Department of Water Resources (State Water Contractors), Case No. S258574 (formerly published at (3d Dist. 2019) 39 Cal.App.5th 708). The order granting review, which also directed that the Third District’s opinion be depublished at the request of defendant…

Land Use Developments

Alameda County Public Health Department Pulls Rank on Oakland, Highlights Arbitrary Treatment of Construction Under Shelter-in-Place Orders

By Bryan W. Wenter, AICP

April 19, 2020

On April 14, 2020, the Alameda County Public Health Department issued a letter to the Oakland Planning & Building Department criticizing the City’s interpretation of the County’s March 31 “shelter-in-place” order. Like the orders in the other Bay area counties, the stated intent of Alameda’s shelter-in-place order is to have people shelter in their residences to slow the spread of COVID-19. To that end, the order allows people to leave their residences only for…

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First District Holds U.C. Berkeley Campus’s Decision To Increase Student Enrollment Above Maximum Projected Level Analyzed In EIR for Long Range Development Plan Is A “Project” Under CEQA And Not Exempt Under Public Resources Code § 21089.09

Third Time Is Not The Charm: Fourth District Affirms Judgment Setting Aside San Diego County’s Climate Action Plan And Related Supplemental EIR Approvals Due To CEQA Violations

Development Agreement Allowed City to Impose New Fees on Housing Project Despite Previously Approved Vesting Tentative Map

Update on COVID Pandemic’s Impact on CEQA/Land Use Litigation Statutes of Limitations: California Judicial Council Modifies Emergency Rule 9 To Provide “Hard Stop” Date of August 3, 2020 for Tolling

Court Invalidates City’s Denial of Conditional Use Permit Because Councilmember’s Pre-Hearing Actions Demonstrated Bias

New Bay Area Shelter-in-Place Orders Ease Rules, Allow All Construction to Resume Operations

Back To CEQA Basics: Second District Teaches That CEQA Requires Judicial Deference To Lead Agency’s Chosen Baseline, Failure To Administratively Exhaust “Exact Issue” Results In Forfeiture, And An EIR Is Not Faulty For Omitting Immaterial Information

California Supreme Court Grants Review of Third District Decision Involving FERC Relicensing of State’s Oroville Hydroelectric Dam Project To Decide Extent To Which Federal Power Act Preempts CEQA; Merits Briefing Underway

Alameda County Public Health Department Pulls Rank on Oakland, Highlights Arbitrary Treatment of Construction Under Shelter-in-Place Orders

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