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CEQA Case Report: Understanding the Judicial Landscape for Development[I]

By Winston P. Stromberg, Lucas Quass and Christopher Adam Martinez

In an opinion published on August 9, 2018, Protect Niles v. City of Fremont, Case No. A151645, the First Appellate District of the California Court of Appeal affirmed the trial court’s issuance of a writ of mandate ordering the City of Fremont (the City) to overturn a Mitigated Negative Declaration (MND) and prepare an Environmental Impact Report (EIR) for an 85-unit residential and retail development in a historical district (the Project).

In summary, the court determined:

  • A project’s visual impact on an officially designated historical district is appropriate to review as a potential aesthetic impact under CEQA.
  • The City’s Historical Architectural Review Board members’ collective opinions about the compatibility of the Project with the Niles Historical Overlay District are substantial evidence of the Project’s potentially significant aesthetic impacts.
  • Residents’ personal observations of traffic conditions where they live and commute may constitute substantial evidence, even if residents’ accounts contradict the conclusions of a professional traffic study.

Harvard professor Robert Stavins joins Latham partner Bob Wyman to review key climate change mitigation policies.

California’s climate change mitigation program is widely viewed as one of the most comprehensive of its kind — encompassing a cap-and-trade component and a series of complementary measures with specific performance targets for important sectors such as motor vehicles, transportation fuels, power plants, and emissions related to land use decisions.

In this Viewpoints video, Latham partner Bob Wyman, a leader in the firm’s…

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

By Christopher W. Garrett, Daniel P. Brunton, Lauren Glaser, Natalie C. Rogers, and Jennifer K. Roy

In a partially published opinion issued April 4, 2018, Small Property Owners of San Francisco Institute v. City and County of San Francisco, Case No. CPF14513453, the California Court of Appeal reversed the trial court’s judgment. The court held that state law preempted the City and County of San Francisco’s (City and County) ordinance provision prohibiting changes to nonconforming residential units for up to 10 years if the units’ tenants were evicted pursuant to the Ellis Act. In summary, the court determined:

  • Petitioner waived its Planning Code and CEQA claims for failure to exhaust its administrative remedies.
  • The Ellis Act preempted the City and County’s 10-year waiting period for alterations to non-conforming units if the owner had evicted a non-fault tenant.

The petitioner, a local property owners’ organization (Petitioner), petitioned for writ of mandate seeking to invalidate the City and County’s ordinance that limited the ability of owners of nonconforming housing units to alter those units if a non-fault eviction had occurred within the prior 10 years (the Ordinance). Petitioner argued:

  • The adoption of the Ordinance violated the Planning Code because the Board of Supervisors (Board) amended the Ordinance prior to adoption and those changes were not reviewed by the Planning Commission (Commission)
  • The City and County’s determination that the Ordinance was not a “project” subject to environmental review violated CEQA
  • The Ellis Act preempted the Ordinance

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

By Christopher W. Garrett, Daniel P. Brunton, Natalie C. Rogers, and Roopika Subramanian

In a published opinion issued February 28, 2018, Covina Residents for Responsible Development v. City of Covina, Case No. B279590, the Court of Appeal affirmed the trial court’s judgment and upheld the City of Covina’s (the City) approval of a 68-unit mixed-use infill project (Project). In summary, the court determined:

  • An EIR must address secondary parking impacts caused by traffic congestion, but parking impacts, in and of themselves, are exempt from CEQA review.
  • An agency is permitted to tier from a specific plan EIR if (1) the proposed action falls under an exemption, or (2) potential project impacts have been adequately analyzed and mitigated in the specific plan EIR.
  • In determining whether to approve a tentative map for a project, local agencies must make findings showing the proposed map’s compatibility with objectives, policies, and programs in the specific plan, but need not show perfect conformity.

Upcoming regulation will change substantive components of Prop 65 warnings. 

By Michael G. Romey and Lucas I. Quass

As discussed in Part 1 of Latham’s previous posts, California’s Office of Environmental Health Hazard Assessment (OEHHA) will modify how the department implements the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65 (Prop 65) on August 30, 2018. In 2016, OEHHA published new regulations (the 2016 Regulations) for Prop 65 enforcement that will increase businesses’ responsibility to provide a “clear and reasonable” warning to consumers for products that contain carcinogens and/or reproductive toxins. OEHHA intended for the updated clear and reasonable requirements to improve access to information for California consumers considering purchasing products containing certain chemicals that the State designates as causing cancer or reproductive harm. As discussed in Part 2 of this series, the 2016 Regulations explain which businesses in the supply chain are responsible for each part of the Prop 65 warning process.

The 2016 Regulations require different warning content than earlier Prop 65 regulations, and also provide new “safe harbor language” which, if followed, are by regulation clear and reasonable. Cal. Code. Regs. tit. 27, § 25603(a). Distributors, suppliers, manufacturers, producers, packagers, and importers (Upstream Entities) will be responsible for developing warning content that complies with the 2016 Regulations before they become effective on August 30th. This blog post will discuss the new safe harbor content provided by the 2016 Regulations. The post is part of a continuing series on Prop 65 compliance issues for entities within the California chain of commerce to consider, as the new regulations become effective on August 30, 2018. The 2016 Regulations are only applicable to products manufactured on or after August 30th.

Upstream entities will need to shoulder more responsibility in the warning process after August 30th.

By Michael G. Romey and Lucas I. Quass

As discussed in Latham’s previous post, August 30, 2018 will mark a significant change in the enforcement of the Safe Drinking Water and Toxic Enforcement Act of 1986, also known as Proposition 65 (Prop 65). California’s Office of Environmental Health Hazard Assessment (OEHHA), which is responsible for the implementation of Prop 65, published new regulations in 2016 (2016 Regulations) that will adjust how businesses provide what OEHHA deems “clear and reasonable” warnings to consumers about products that may result in an exposure to a chemical listed by the State as potentially causing cancer and/or reproductive harm. Among other obligations, the 2016 Regulations will require businesses to provide consumers with more information about chemicals listed under Prop 65 in consumer products, whether bought online or in person. The 2016 Regulations also explain which entities in the chain of commerce are primarily responsible for compliance with particular Prop 65 requirements.

Specifically, the 2016 Regulations impose more responsibility on upstream entities, such as manufacturers, distributors, packagers, importers, producers, and suppliers (Upstream Entities), shifting the primary burden away from retailers. See CAL. CODE REGS. tit. 27, § 25600.2(a) (2016). This increase in responsibility is based on OEHHA’s understanding that Upstream Entities possess superior knowledge about which chemicals are involved in producing consumer products. The 2016 Regulations also provide retailers with the opportunity to secure legal indemnity via written agreement with Upstream Entities. Id. § 25600.2(i).

This blog post is part of a continuing series on Prop 65 compliance issues aimed at entities within the California chain of commerce, as the 2016 Regulations become effective on August 30, 2018. The 2016 Regulations are applicable to products manufactured on or after August 30, 2018.

Metropolitan Water District of Southern California leadership increases the possibility of much-needed relief for California’s aging water-supply infrastructure.

By Paul N. Singarella, Daniel P. Brunton, and Lucas I. Quass

The California WaterFix is the most expensive, important, and controversial water infrastructure project in California, and perhaps the country, in decades. At a price tag of US$16.3 billion, WaterFix is designed to restore reliability to an aging water-supply infrastructure that serves 25 million Californians and more than three million acres of California farmland. WaterFix can be thought of as an insurance policy for the California economy, and indeed society at large, against possible — and potentially catastrophic — further loss of this critical water supply. An historic July 10 vote by the Metropolitan Water District of Southern California (Metropolitan) was a major step forward, and vote of confidence, for WaterFix, increasing the likelihood that the promise of WaterFix will be realized.

The Evolution of California WaterFix

Together, the State Water Project (SWP) and the Central Valley Project (CVP) form the largest water supply system in the country. This system diverts water from the Sacramento/San Joaquin Delta (Delta) and conveys it hundreds of miles to places like Silicon Valley, Southern California, and otherwise parched farmland that cannot survive on local supplies alone. The Delta is the lynchpin of this system, the gateway through which virtually all water conveyed from the Northern California rivers to the rest of the state must pass. The Delta is used this way because the SWP/CVP system was never completed. Original planning decades ago proposed to run fresh river water around the Delta. Instead the water enters the Delta where it mixes with brackish Delta water before it is diverted.

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

By Christopher W. Garrett, Daniel P. Brunton, Diego Enrique Flores, and Samantha K. Seikkula

In an unpublished opinion issued May 18, 2018, Responsible Development for Water Tank Hill v. County of San Mateo, Case No. A150883, the California Court of Appeal affirmed the trial court’s judgment denying Responsible Development for Water Tank Hill’s (Petitioner’s) petition for writ of mandate, finding that the County of San Mateo (County) had properly analyzed the potential environmental impacts of San Mateo Real Estate, Inc.’s (Developers’) proposed housing development (Project) and that the County’s determinations were supported by the substantial evidence. In summary, the court determined:

  • An EIR’s analysis of noise impact should be site-specific and should consider qualitative factors as well as technical factors
  • When an EIR finds, based on substantial evidence, that an impact would be less-than-significant, further mitigation is not required.
  • An agency may rely on statewide emissions-reduction goals when determining mitigation measures to reduce a project’s significant GHG impacts.

Background for Appeal

After several rounds of public comment, the San Mateo County Planning Commission (Commission) approved the Project. The County Board of Supervisors denied an appeal of the approval and upheld the Commission’s decision. Petitioner then filed a petition for writ of mandate seeking to set aside the Project approvals as inadequate under CEQA. Petitioner argued that the approvals were inadequate because:

  • The environmental impact report (EIR) failed to adequately analyze impacts
  • The County failed to adopt feasible mitigation measures
  • The County’s findings were not supported by substantial evidence
  • The County failed to recirculate the final EIR after making changes that constituted significant new information

The trial court rejected Petitioner’s specific challenges to the County’s environmental analysis of air quality, aesthetics, hydrology, and noise, finding that the County had properly analyzed the potential environmental impacts of the Project and that the County’s determinations were supported by substantial evidence. Petitioner appealed the decision with respect to air quality and noise.