California Environmental Quality Act

 

Elimination of Minimum Housing Densities Not Exempt From CEQA

Overturning the decision of a trial judge, the Fourth District Court of Appeal has ruled that the City of Palm Springs’s decision to eliminate minimum residential densities from its general plan is exempt from the California Environmental Quality Act.

“The City’s claim that the [General Plan] Amendment is exempt from CEQA analysis begs the question:  Is the City able to accommodate its share of the regional housing needs if there is no minimum (and a lower average) density for residential areas as originally identified and required in the General Plan?” wrote Justice Thomas E. Hollenhorst for the unanimous three-judge panel. The case was issued in April but the court ordered partial publication in late May.

In 2007, the city approved a new general plan that included maximum and minimum densities for all residential land uses. In 2013, the city approved a general plan amendment that removed minimum densities. In the staff report and presentation before the city council in 2013 [http://palmsprings.granicus.com/MediaPlayer.php?view_id=2&clip_id=1644], the city’s planning staff said that in the wake of the 2008 real estate market downturn, developers began to request densities below the minimums, especially on planned development projects. 

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Pro-Environment Ruling Overturned In San Bernardino Groundwater Pumping Case

Overturning a trial judge, the Fourth District Court of Appeal has ruled that the private water company Cadiz Inc. and two public agencies did not violate the California Environmental Quality Act in moving forward a groundwater pumping and restoration project in San Bernardino County.

The Center for Biological Diversity and other environmental groups had argued that the project’s environmental review violated CEQA on two major points: First, by making the Santa Margarita Water District the lead agency rather than San Bernardino County; and second, by writing the project description in such a way that the project was characterized as a water conservation project even though it will result in a net loss of water. 

Orange County Superior Court Judge Gail Andrea Andler ruled in favor of the environmental plaintiffs. But the Fourth District overturned her on all of the plaintiffs’ claims. 

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Upland Mobile Dispensary Ordinance Not Subject to CEQA, Court Rules

In the second medical marijuana ruling out of the City of Upland in the last week, the Fourth District Court of Appeal has ruled that Upland’s ban on mobile medical marijuana dispensaries is not subject to the California Environmental Quality Act. 

Among other things, the court concluded that the assertions by the Union of Medical Marijuana Patients (UMMP) about the potential impact of the ban – for example, that medical marijuana patients would have to drive to other cities – were too speculative to be considered “reasonably foreseeable” under CEQA.

Last week, the Fourth District ruled that Proposition 218 does not apply to an initiative to overturn the ban. 

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Community Character Under CEQA Limited to Aesthetics, Appellate Court Rules

Resident concerns about the social and psychological impact associated with the conversion of a horse-boarding facility to a 12-lot subdivision do not constitute a “community character” issue requiring an environmental impact report, the Fourth District Court of Appeal has ruled.

The appellate court overturned a ruling by San Diego Superior Court Judge Ronald Prager, who found that the City of Poway’s mitigated negative declaration did not adequately take into account community character issues. On appeal, the Fourth District ruled strongly that the California Environmental Quality Act only requires lead agencies to community character issues that are aesthetic in nature.

“Community character is not defined in CEQA or in the Guidelines,” wrote Acting Presiding Justice Gilbert Nares for a unanimous three-judge panel. “To the extent published California cases have discussed community character in CEQA cases, it has been limited to aesthetic impacts.”

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Carlsbad Voters Reject Tuolomne Tactic

In an absurd twist on use of the Tuolomne Tactic, Carlsbad voters have apparently overturned the city council’s decision to adopt a proposed ballot initiative approving a specific plan that would permit developer Rick Caruso to move forward with a shopping center. 

Caruso successfully used this “Tuolomne Tactic” to end-run the California Environmental Quality Act last August when the city council adopted his initiative seeking approval of a specific plan allowing his project. However, subsequently, a citizen group, gathered enough signatures to place a referendum on the ballot seeking to overturn the council’s adoption of the proposed initiative. The citizen group received most of its financial support from Westfield Corp. owner of a nearby shopping mall

The resulting election took place last Tuesday.

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Cal Supremes Deny Rehearing In Newhall Ranch Case

The California Supreme Court has denied a rehearing in Center for Biological Diversity v. Los Angeles County, the major challenge to the environmental impact report on the Newhall Ranch project. 

In the ruling on November 30, the Supreme Court ruled that a lead agency could use the baseline statewide target of a 29% reduction in greenhouse gas emissions from a "business as usual" scenario in the EIR but, rather, had to use a more project-specific baseline instead. CEQA practitioners have been scratching their heads ever since about how to actually do this. 

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Insight: Consensus, Not Clarity, From Cal Supremes on CEQA

Now that comprehensive legislative reform of the California Environmental Quality Act seems unlikely, all eyes are turning to the California Supreme Court – if not for reform, then at least for clarity that will make the world of CEQA a little simpler, a little cleaner, and a little more understandable.

Good luck. Although the Cal Supremes have a heavy CEQA docket – and the justices are clearly putting a lot of thought into CEQA cases – the result is not exactly clarity.

When the Berkeley Hillside case went before the Cal Supremes, everybody hoped the result would be clarity about when the unusual circumstances exemption can be used. But the result was a complicated two-step test that actually may strengthen the exemption but requires a lot more effort to do so.

OPR Revises SB 743 Guidance, Putting Thresholds in "Advisory" Category

A new set of recommendations for implementing SB 743 – which would require traffic analysis to be based on vehicle miles traveled -- proposes moving many proposed significance thresholds from the legally binding CEQA guidelines to a technical advisory memo. These recommendations also call for stricter thresholds on the so-called “regional averages” and provide simpler methodologies for dealing with safety issues. The thresholds of significance are important because they often trigger an environmental impact  report.

The new recommendations were released by the Governor’s Office of Planning and Research on Wednesday morning. OPR will be taking comments for 45 days – until the end of February – before turning the proposal over to the Natural Resources Agency for a formal rulemaking process.

SB 743 requires that traffic analysis under the California Environmental Quality Act be shifted away from the long-standing “Level of Service” metric, which focuses on congestion. OPR’s original draft recommendations were issued almost a year and a half ago. They called for a shift to a VMT standard and called for a variety of thresholds to be included in the CEQA Guidelines. Among other things, projects would be deemed less than significant if they are located within a half-mile of transit and/or if they generate less than the regional average for VMT on residential and office developments. The proposal also permitted CEQA analysis of safety issues that might be related to congestion, such as queueing – a matter of concern to Caltrans.

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Using Tuolumne Tactic, Moreno Valley Approves Development of 40 Million Square Feet

For years, National Football League teams have been trying to find places to play in the Los Angeles area. Soon enough, 700 of them could move to Moreno Valley, with room to spare.  

In what may be the largest single commercial development in the history of California — or possibly the universe — the World Logistics Center will, as currently envisioned, cover 40 million square feet, most of which will be dedicated to storage, transshipment, and other functions related to the logistics industry. It will be more than twice as large as New York City’s much-heralded Hudson Yards project.  

WLC was approved last summer on a 3-2 vote of the Moreno Valley City Council. Following the filing of as many as nine California Environmental Quality lawsuits against the project, that vote was reaffirmed in November as the council voted to adopt a ballot initiative to approve the project – using the so-called “Tuolumne Tactic” after developer Highland Fairview qualified a measure for the ballot. It is believed to be the first time the tactic has been used after a project had been approved by local elected officials and CEQA lawsuits had been filed. 

CDFA Erred in EIR Alternatives Analysis on Pest Control Action, Court Rules

The California Department of Food & Agriculture erred in preparing an environmental impact report for a program intended to eradicate with an invasive pest without examining the long-term consequences of an alternative program to control the pest rather than eradicate it, the Third District Court of Appeal has ruled.

As it happens, CDFA actually switched the program at the last minute from eradication to control, but the Third District said the defeat in the EIR would have been a legal problem under any circumstances. Relying on Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, the Third District said CDFA’s action was “prejudicial,” requiring the appellate court to reverse two trial court rulings related to the case.

The case involves CDFA’s efforts to eradicate the light brown apple moth, or LBAM, an invasive “leaf-roller” moth that was first seen in California in 2007. Because LBAM represented a threat to all California ornamental plants as well as fruits and vegetables, and its invasion of California was moving fast, the legislature quickly authorized CDFA to undertake a temporary LBAM program with the goal of eradicating the pest. 

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