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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In an unpublished opinion issued May 18, 2018, Responsible Development for Water Tank Hill v. County of San Mateo, Case No. A150883, the California Court of Appeal affirmed the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.

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.

By Daniel P. Brunton, Lucas I. Quass, and Stephanie L. Postal

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

In a published opinion issued March 15, 2018, Don’t Cell Our Parks v. City of San Diego, the California Court of Appeal affirmed the trial court’s judgment and upheld the City of San Diego’s (the City’s) determination that a wireless communications facility (the Project) qualified for a categorical exemption for new small facilities under CEQA. In summary, the court determined:

  • Exhaustion of administrative remedies is not required if the agency did not hold a public hearing or otherwise provide an opportunity for members of the public to raise objections.
  • A standalone utility can qualify under the Class 3 exemption.
  • For the location exception to CEQA exemptions to apply, a location impacted by a project must be designated as an environmental resource of hazardous or critical concern by an agency.

The petitioner, a non-profit entity (Petitioner), had filed an unsuccessful petition for writ of mandate seeking to overturn the approval of development and use permits for the Project. Petitioner argued that the City’s determination that the Project was exempt from environmental review under the Class 3 exemption was erroneous because, as a standalone utility, the Project would not qualify for a Class 3 exemption. Petitioner also argued that, even if the Project fell within the Class 3 exemption, an environmental impact report (EIR) would be required because the unusual circumstances exception and location exception applied . The court rejected each of these arguments.

By Daniel P. Brunton, Lucas I. Quass, and Stephanie L. Postal

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

In a published opinion issued March 15, 2018, Don’t Cell Our Parks v. City of San Diego, the California Court of Appeal affirmed the trial court’s judgment and upheld the City of San Diego’s (the City’s) determination that a wireless communications facility (the Project) qualified for a categorical exemption for new small facilities under CEQA. In summary, the court determined:

  • Exhaustion of administrative remedies is not required if the agency did not hold a public hearing or otherwise provide an opportunity for members of the public to raise objections.
  • A standalone utility can qualify under the Class 3 exemption.
  • For the location exception to CEQA exemptions to apply, a location impacted by a project must be designated as an environmental resource of hazardous or critical concern by an agency.

The petitioner, a non-profit entity (Petitioner), had filed an unsuccessful petition for writ of mandate seeking to overturn the approval of development and use permits for the Project. Petitioner argued that the City’s determination that the Project was exempt from environmental review under the Class 3 exemption was erroneous because, as a standalone utility, the Project would not qualify for a Class 3 exemption. Petitioner also argued that, even if the Project fell within the Class 3 exemption, an environmental impact report (EIR) would be required because the unusual circumstances exception and location exception applied . The court rejected each of these arguments.

By James Arnone, Lucinda Starrett, Marc Campopiano, and Christopher Garrett

California higher courts rule in favor of public agencies on small majority of environmental impact report cases.

Over the course of 2017, Latham lawyers reviewed all 46 California Environmental Quality Act (CEQA) cases, both published and unpublished, that came before California appellate courts. These cases covered a wide variety of CEQA documents and other topics. Below is a compilation of information from the review and a discussion…

By James Arnone, Lucinda Starrett, Marc Campopiano, and Christopher Garrett

California higher courts rule in favor of public agencies on small majority of environmental impact report cases.

Over the course of 2017, Latham lawyers reviewed all 46 California Environmental Quality Act (CEQA) cases, both published and unpublished, that came before California appellate courts. These cases covered a wide variety of CEQA documents and other topics. Below is a compilation of information from the review and a discussion…

By Chris Garrett, Diego Flores, Lucas Quass and Samantha Seikkula

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

In an unpublished opinion issued March 26, 2018, Golden Door Properties, LLC v. Vallecitos Water District, the California Court of Appeal affirmed the trial court’s judgment sustaining the Vallecitos Water District’s (District’s) demurrer from Golden Door, LLC’s (Golden Door’s) challenge to two statutory assessments in which the District concluded there is a sufficient water supply for Newland Sierra, LLC’s (Newland’s) proposed residential development (Project) in rural unincorporated San Diego County (County). In summary, the court determined:

  • A Water Supply Assessment issued by a water district in conjunction with a project’s CEQA review process is not independently reviewable and may only be challenged as part of a final EIR.
  • Challenges to a rescinded Water Verification are moot if there is uncertainty about whether particular dispute will recur and, in any case, will not evade review.

Appeal in POET II could complicate California Air Resources Board’s proposed LCFS amendments.

Joshua T. Bledsoe, Kimberly D. Farbota

In the case commonly referred to as POET II, petitioner POET, LLC, a biofuels manufacturer, challenged the Low Carbon Fuel Standard (LCFS) and Alternative Diesel Fuels (ADF) regulations which the California Air Resources Board (ARB) adopted in 2015. After briefing had been completed, defendant-respondent ARB filed a motion for judgement on the pleadings (MJOP) on November 21, 2017, in an attempt to have the case dismissed in light of earlier rulings in the related POET I case. On January 5, 2018 the Fresno County Superior Court issued a ruling granting the MJOP with respect to all claims and dismissing the entire case as moot. On March 6, 2018, POET noticed an appeal of the Superior Court’s decision to the California Court of Appeal for the Fifth Appellate District, the same Court of Appeal that issued the decisions in POET I. In that decision, the court sharply criticized the ARB for not acting in good faith and found that ARB failed to comply with the California Environmental Quality Act (CEQA).

Also on March 6, 2018, ARB released proposed amendments to the LCFS that would, inter alia, extend the Program to 2030. Included in the amendment package is an analysis of nitrogen oxide (NOx) emissions attributable to the LCFS, prepared in an attempt to fulfill the writ of mandate issued in POET I. On March 12, 2018, ARB released Regulatory Guidance Document 18-01, which updates prior guidance regarding ARB’s plans to meet the requirements of the writ of mandate issued in POET I. The appeal in POET II carries important implications for the Regulatory Guidance, the amendment package, and potentially for the future of the LCFS Program.

Webcast addresses recent developments involving the California Environment Quality Act.

By Marc Campopiano, Chris Garrett, and Winston Stromberg

The Project Siting & Approvals Practice hosted a 60-minute webcast on February 21, “CEQA Developments: How New Proposed Regulations and Streamlined Legislation Will Impact California Projects.” Speakers provided an overview of the proposed updates to the California Environmental Quality Act (CEQA) Guidelines, the implications of new proposed legislation to streamline CEQA (including S.B. 827), and the impact of the California…

By Joshua Bledsoe and Kimberly Farbota

Recent guidance published by the California Air Resources Board (ARB) clarifies the treatment of diesel fuels under the Low Carbon Fuel Standard (LCFS) in light of the Court of Appeals’ May 30, 2017 decision in POET I. Meanwhile, in POET II, ARB recently filed a Motion for Judgment on the Pleadings (MJOP), in an attempt to have the lawsuit dismissed as moot before a hearing on the merits occurs. While the MJOP addresses all of the claims in POET II and various other filings have been made by the parties in connection with the motion (e.g., Requests for Judicial Notice, a Motion to Strike, etc.), this blog entry focuses only on the key aspects of the MJOP and POET’s opposition thereto.

New Guidance Regarding Implications of the POET I Decision

On November 22, 2017, the ARB posted regulatory guidance to clarify the scope of the writ of peremptory mandate issued by the Fresno County Superior Court on October 18, 2017 (the Modified Writ) to implement the May 30, 2017 POET I decision.

As we have discussed in previous posts, the POET I case arose from Petitioner POET, LLC’s challenges to the original LCFS regulation adopted by ARB in 2009. On April 10, 2017, the Court of Appeal ruled that ARB had failed to faithfully execute a writ of peremptory mandate requiring it to remedy violations of the California Environmental Quality Act (CEQA) that occurred during adoption of the original LCFS. In response to a petition for rehearing filed by ARB, the Court of Appeal reissued its opinion on May 30, 2017.