California Environmental Quality Act


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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Will CBIA v BAAQMD Make Infill Projects Easier To Build in California?

Last week’s unanimous, finely worded ruling by the California Supreme Court has spared builders their worst-case scenario in the long-awaited "CEQA in Reverse" case. It does not interpret the California Environmental Quality Act to require an environmental impact report whenever a project might attract more people within range of an existing hazard such as air pollution or earthquake risk. 

Attorneys for the plaintiff/respondent California Building Industry Association (CBIA) cheered the decision as especially likely to spare infill and affordable housing projects that might otherwise face CEQA challenges because of air pollution impacts on residents and others. 

But the ruling does still apply CEQA broadly enough to leave both sides claiming partial success in overall impact and in the underlying air quality guidelines matter. Each already disputes the other's claim. 

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Legal Briefs: Cal Supremes Take Another Newhall Case

Another Newhall Ranch case goes to the Supreme Court. The winning environmentalists seek a rehearing in the big Newhall lvictorh -- mostly to clarify the nature of their win. And, on another front, an appellate court reheard a groundwater extraction fee case and didn’t budget.

Now that the California Supreme Court has given environmentalists a big win in the “main event” Newhall Ranch case, the court has accepted one of the ancillary cases, CA Native Plant Society v. County of Los Angeles, No. B258090. This case involves the Mission Village phase of Newhall Ranch, which received county approval for its January project-level EIR approval in 2012. It was challenged as of June 2012.

Meanwhile, the Supreme Court will have to decide whether to grant a re-hearing in the main event, because the Center for Biological Diversity – which mostly won the case – wants a clarification that it cast as a request for a rehearing.  

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