CEQA Case Report: Understanding the Judicial Landscape for Development[i]
By Christopher W. Garrett, Daniel P. Brunton, James A. Erselius, John D. Niemeyer, and Samantha K. Seikkula
In an unpublished opinion issued February 20, 2018, Advocates for Better Cmty. Dev. v. City of Palm Springs, Case No. E066193, the California Court of Appeal dismissed as moot an appeal from the trial court’s judgment and upheld the City of Palm Springs’ (City’s) decision to approve changes to a planned development in downtown Palm Springs. In summary, the court determined:
- On appeal, a CEQA challenge is moot where, due to events that occur while the appeal is pending, the court is no longer able to grant effective relief
Advocates for Better Community Development (Petitioner), had filed an unsuccessful petition for writ of mandate seeking to invalidate the City’s addendum to an environmental impact report (EIR) for the changes to the planned development. Petitioner argued that that the City’s approval was inconsistent with the Museum Market Plaza Specific Plan (Specific Plan) and that the approval violated CEQA because the changes were substantial and required additional environmental review. The court held that these issues were moot due to an ordinance that the City passed modifying the Specific Plan before Petitioner filed its notice of appeal.
Background for Appeal
On October 17, 2012, the City Council adopted Resolution No. 23238, approving the City’s addendum to the EIR for a planned mixed-use development. Petitioner filed an initial petition for a writ of mandate challenging this approval, but the trial court sustained a demurrer on Petitioner’s CEQA claim as time barred. On September 17, 2014, the City approved a revised project from the developer, and, on October 22, 2014, Petitioner challenged the City’s approval of changes to the development plan that would allow developers to swap uses between two parcels — one originally designated as open space, and the other as commercial development. The trial court entered judgment denying Petitioner’s writ of mandate on April 13, 2016. On April 20, 2016, before Petitioner filed a notice of appeal, the City adopted Ordinance No. 1889, which amended the Specific Plan to allow the changes the developer had proposed and that the City had previously adopted. The City Council approved a second addendum to the EIR and, at the same time, adopted the new Specific Plan. Petitioner challenged this City Council action, but ultimately sought voluntarily dismissal. On June 9, 2016, Petitioner appealed the April 13, 2016 judgment.
City Council’s Amendments to Specific Plan Mooted Petitioner’s Challenges
First, Petitioner argued that the City Council’s approvals of the revised project were improper, because allowing commercial development was inconsistent with the Specific Plan. However, the Court held that this issue was moot, because the Specific Plan had been amended to allow the changes that Petitioner now challenged in its appeal.
Second, Petitioner argued that its challenge to the revised project allowed it to reopen a challenge under CEQA to the City Council’s 2012 adoption of Resolution No. 23238. Specifically, Petitioner argued that the changes to the distribution of open space outlined in the original Specific Plan were so substantial as to require a subsequent EIR. However, the court held that this issue was also moot. Even assuming Petitioner could challenge the 2012 decision, the court was unable to enjoin development due to the new ordinance, which allowed the development.
Petitioner argued that the appeal was not moot because the City’s decision to adopt the new specific plan was based entirely on actions that Petitioner was challenging in its lawsuit. Therefore, a court order invalidating the approval of the revised project would also invalidate the amendments to the Specific Plan. The court disagreed, noting that City Council ordered a second addendum to the EIR to evaluate whether further environmental analysis was required. Moreover, the court concluded that the new Specific Plan reduced densities and use intensities, reducing the environmental impacts.
Petitioner also argued that the appeal was not moot because the case presented a matter of continuing public interest. The court summarily dismissed this argument. Lastly, Petitioner argued that ruling that the appeal was moot was against public policy, because the ruling would reward the City’s efforts to “evade judicial review of its unlawful approvals.” Again, the court rejected this argument because the City did not evade any unfavorable judgment; the City prevailed on all previous petitions seeking to stop the development.
Accordingly, the court dismissed the appeal as moot and ordered the parties to bear their own costs on appeal.
- Opinion by Justice Slough, with Acting Presiding Justice McKinster and Justice Miller concurring.
[i]California court decisions on California Environmental Quality Act (CEQA) related cases can impact business not only in California, but more broadly in other US jurisdictions (e.g., under the US National Environmental Policy Act (NEPA), though statutory provisions may differ). Latham’s case summary series provides a comprehensive archive of both published and unpublished cases, in order to track judicial interpretations of CEQA and new legal developments. Unpublished or “non-citable” opinions are opinions that are not certified for publication in Official Reports and generally may not be cited or relied on by other courts or parties in any filing with California courts in other court proceedings. (see California Rules of Court, rule 8.1115).
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