Articles Posted in CEQA

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LOS ANGELES — On behalf of the Ventura County Coalition of Labor, Agriculture and Business (CoLAB), Jeffer Mangels Butler & Mitchell LLP (JMBM) filed a lawsuit in Superior Court against the County of Ventura challenging a Wildlife Corridor Ordinance that rezones more than 160,000 acres and imposes complex new rules and restrictions on businesses and landowners of thousands of parcels.

“I’ve never seen regulations affecting over 160,000 acres of land go into effect without any environmental review,” said Benjamin M. Reznik, Chair of JMBM’s Government, Land Use, Environment & Energy Group. “Relying on obscure exemptions to California’s environmental laws in a regulation of this magnitude is highly unusual.”

The lawsuit states: “Despite the laudable purpose—and CoLAB supports reasonable efforts to minimize impacts to wildlife movement within the County—many of the Ordinance’s regulations are legally flawed and scientifically unsupportable.” The lawsuit also states that the Ordinance is in conflict with the County’s own General Plan.

“The restrictions this ordinance imposes on property owners are likely to have a serious negative impact on property owners’ ability to use their land, which will also effect property values” said Reznik.

JMBM has also filed a lawsuit on behalf of the California Construction and Industrial Materials Association (CalCIMA) against the County of Ventura, challenging the Wildlife Corridor.

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Ben Reznik is the Chair of JMBM’s Government, Land Use, Environment and Energy Department. His practice emphasizes real estate development entitlements, zoning and environment issues, including frequent appearances before city planning commissions, city councils and other governmental boards and agencies on behalf of real estate development firms and various industries. Reach him at BMR@JMBM.com or 310. 201.3572.

About JMBM’s Government, Land Use, Environment and Energy Department
JMBM’s government, land use, environment, and energy lawyers represent a wide range of industries, businesses, trade groups and individuals before every level of government, and in litigation. We routinely advocate for our clients’ interests before the myriad of regulatory authorities, administrative agencies and elected bodies that govern business and development activities. Our negotiation expertise and lobbying experience includes representing clients seeking to locate and develop new sites, relocate, expand operations, and all related permitting and compliance.

About Ventura County Coalition of Labor, Agriculture and Business (CoLAB)
CoLAB is a 501(c)6 non-profit membership organization formed in 2010 to support land-based and industrial businesses including farming, ranching, oil, mining, and service, and to promote sensible and rational local government.

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By Martin Stratte for Jeffer Mangels Butler & Mitchell LLP

In August 2018, the California Court of Appeal decided Citizens Coalition Los Angeles v. City of Los Angeles, 26 Cal.App.5th 561 (2018), commonly referred to as “Target II,” which arose from a years-long challenge by citizen activist organizations to the development of a Super Target in Hollywood, California.

As discussed below, the court was asked to resolve the following issue of first impression: what level of environmental review is required by the California Environmental Quality Act (CEQA) for a legislative action that re-designates a project site for the purpose of mooting pending litigation that was filed in opposition to an already approved project?

In essence, what the City of Los Angeles did was re-zone the site of a previously approved Super Target to remove the need for the variances that were adopted in support of the project, which the trial court had struck down in the litigation commonly referred to as “Target I.”

Background

Target applied to the City of Los Angeles (City) for land use entitlements to develop an approximately 75-foot high, three-story Super Target at the intersection of Sunset Boulevard and Western Avenue in Hollywood, California, the top floor of which would contain the 163,862 square foot “Superstore.”

The City certified an EIR for the Target project and granted eight exceptions (variances) so that the project could exceed height and parking-space restrictions, among others.  Thereafter, two citizen activist organizations filed a petition for writ of mandate alleging: 1) the project violated CEQA; and 2) the variances violated the City’s Municipal Code because they were not supported by substantial evidence.  Target proceeded with construction while the litigation was pending; that litigation is commonly referred to as “Target I.”

The trial court denied the petitioners’ CEQA claim in Target I, but found that six of the eight variances were not supported by substantial evidence.  Accordingly, the court ordered Target to stop construction.  Target filed an appeal and the petitioners filed a cross-appeal. Continue reading

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By Neill Brower
The California Supreme court determined the California State University (“CSU”) could not rely solely on earmarked appropriations from the State Legislature for payment of “fair share” mitigation fees the CSU determined necessary for full mitigation of impacts, and the absence of specific legislative appropriations for mitigation fees did not render payment of mitigation fees infeasible. On August 3, 2015, the California Supreme Court filed its decision in City of San Diego v. Bd. of Trustees of the California State University, Case No. S199557, rejecting the notion that the contingent nature of State budgeting excused a failure to commit to enforceable mitigation for off-campus impacts resulting from on-campus development. Further, because the CSU relied on the purported infeasibility of paying mitigation fees as a basis for its Statement of Overriding Considerations, the Statement of Overriding Considerations was unsupported by substantial evidence as to that finding.

In this case, the CSU approved an Environmental Impact Report (“EIR”) to expand the San Diego State University (“SDSU”) campus to accommodate, among other significant components; a hotel, academic research, medical, social, administrative, and conference facilities; faculty and student housing; a 10,000-student enrollment increase; and associated increases in faculty and staff by 2030 school year. Among other impacts, the EIR determined the project would result in significant contributions to cumulative traffic impacts on off-campus roads in the City of San Diego and Caltrans jurisdictions. The EIR determined the specific improvements required to mitigate these impacts and calculated the “fair-share” fees necessary to construct those improvements.
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By Benjamin M. Reznik
In terms of land use regulations that have far-reaching effects on development in California, the application – or misapplication – of the California Environmental Quality Act (CEQA) is near the top of the list. CEQA, when first implemented, certainly had a well-intentioned purpose: to protect the environment. But too often, CEQA is used as a Trojan horse by development project opponents to delay or ultimately thwart construction, increasing costs along the way. One of the most egregious examples of this took place in San Francisco, where a CEQA lawsuit even delayed the construction of environmentally-friendly bike lanes.
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On September 25, 2014, Governor Brown signed Assembly Bill 52 (“AB 52”), which modifies the California Environmental Quality Act (“CEQA”) to add new protections for Native American cultural resources and enhances the role of Native American tribes in the environmental review process. AB 52 is a significant amendment to CEQA that poses both challenges and opportunities for project applicants. A brief summary of the new law, which takes effect July 1, 2015, is provided below.

AB 52 Creates a New Category of Potentially-Significant Environmental Impacts

Under current CEQA law, lead agencies typically evaluate whether a project would impact historic or archaeological resources. Although impacts to Native Americans may be evaluated, AB 52 specifically mandates evaluation of whether a project will impact “tribal cultural resources” which include sites, features, places, cultural landscapes, sacred places, and objects with cultural value to tribes. If the potential for impacts to such resources exists, as with other environmental impacts, increasing levels of CEQA analysis, mitigation measures, and the consideration of alternatives is required. Input from a tribe as to what is culturally significant to that tribe will drive the analysis for a given project. These changes take effect on July 1, 2015.
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This session’s California Environmental Quality Act (“CEQA”) reform bill, Senate Bill 743 (“SB 743”) packs a potentially large punch, but only for a narrow group of projects. SB 743 is the brainchild of Senator Darrell Steinberg (D-Sacramento), who made CEQA reform a top political priority for 2013. While Senator Steinberg’s primary objective was to deliver on a promise to NBA Commissioner David Stern to streamline approval of the Sacramento Kings arena project, SB 743 also provides new rules of general applicability that significantly benefit select projects. First, with regard to projects in transit priority areas, SB 743 reduces the scope of CEQA’s impact analysis and may also change the standard traffic evaluation. Second, SB 743 substantially expedites judicial review of so-called “environmental leadership development projects.” Thus, while many will be disappointed that SB 743 does not completely overhaul CEQA, certain project proponents will benefit tremendously from the new rules.
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by Neill Brower
An August 5, 2013, the California Supreme Court provided some additional flexibility to local agencies in deciding what conditions properly constitute the “baseline” for analysis under the California Environmental Quality Act (“CEQA”). The decision, Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (“Neighbors”), Case No. S202828, narrowly upholds the environmental impact report (“EIR”) prepared for phase 2 of the Exposition Corridor Transit Project (“Expo Phase 2”) and strikes a middle ground among previous decisions regarding the use of various future baselines. The court ruled, among other things, that although an agency may, in very limited circumstances, evaluate project impacts on the basis of conditions anticipated to exist at the time of certification of an environmental impact report (“EIR”) for the project, or on a hypothetical longer-term future baseline, these cases remain the exception, rather than the rule. If using only a hypothetical future conditions and omitting existing conditions as a baseline, an agency must demonstrate that an analysis based on existing conditions “would detract from an EIR’s effectiveness as an informational document” by providing an uninformative or misleading analysis. In most cases, an agency must still evaluate the impacts of a project in comparison to existing conditions, though nothing prevents additional analysis of long-term impacts, particularly in the context of a cumulative analysis or a “no project” alternatives analysis.
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By Matthew Hinks
Effective environmental review of a real estate development project under the California Environmental Quality Act (“CEQA”) often requires that the approving agency and representatives of the developer work together collaboratively to ensure that environmental review is carried out according to the dictates of the law. However, doing so raises the question of the protectability of communications shared between the developer, the CEQA lead agency and their lawyers. Communications between an attorney and his or her client are privileged and are therefore not subject to disclosure as part of the discovery process or the administrative record in CEQA litigation. But what about in situations where communications take place or are shared among a developer, a lead agency and their lawyers?

A new California Court of Appeal opinion — Citizens for Ceres v. Superior Court — offers a new answer to that question, which will have significant practical implications for property owners and developers engaged in the CEQA process. However because the opinion appears to conflict with a prior Court of Appeal opinion, it is unclear how the rule announced by the Ceres court will get applied in future litigation. Moreover, there is significant question as to whether the Ceres rule will get applied outside of the CEQA context.
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By Matthew Hinks
Statues of limitations issues frequently loom large in litigation under the California Environmental Quality Act (“CEQA”) and can confound litigants and their counsel. Depending on the challenge being made and the context in which it is made, claims brought under CEQA may be subject to a range of limitations periods — from 30 to 180 days. Moreover, the date on which a CEQA claim accrues is not always clear. For example, an agency making a CEQA decision may file a Notice of Determination, which generally triggers the shorter CEQA limitations periods, but parties with an interest in that same decision may not always get notice of the filing. For these reasons, among others, calculating the correct statute of limitations period applicable to a CEQA claim can be risky business. A new opinion from the California court of appeal, Alliance for the Protection of the Auburn Community Environment v. County of Placer, raises the stakes even higher and holds that a party may not obtain relief from a late filing by reason of mistake, inadvertence, surprise, or excusable neglect.
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by Matthew Hinks
The California Legislature and the courts have recognized that challenges to the California Environmental Quality Act (CEQA), if allowed to drag on, would impede the decisions of public agencies regarding land use. For this reason, CEQA imposes very short limitations periods and requires CEQA cases be given priority in both the trial courts and the courts of appeal.

But in a potentially troubling new case, the California Court of Appeal explicitly blessed the type of unreasonable litigation delay the Legislature protected against in enacting CEQA.
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