California Environmental Quality Act
The Second District Court of Appeal has upheld the environmental impact report for the extension of Los Angeles’s Purple Line, removing another hurdle for construction of the “Subway to the Sea” through Beverly Hills. Now we'll see whether the Beverly Hills city and school district will appeal to the California Supreme Court.
The subway extension has been consistently opposed by both the City of Beverly Hills and the Beverly Hills Unified School District, primarily because it would require tunneling under Beverly Hills High School. The Los Angeles Metropolitan Transportation Authority is planning to locate a station at Constellation Boulevard and Avenue of the Stars, in the middle of the Century City business district, which is located immediately west of Beverly Hills High School, rather than further north along Santa Monica Boulevard.
In ruling against the city and the school district, the appellate court emphasized the need to give great deference to the lead agency in reviewing decisions about whether to recirculate an EIR.
Reversing itself on remand, the First District Court of Appeal has ruled in the Berkeley Hillside case that the proposed home of computer pioneer Mitch Kapor and his wife does not, in and of itself, represent an “unusual circumstances” under the CEQA Guidelines and therefore the City of Berkeley acted properly in applying a CEQA exemption to the project.
In so doing, the court did not need to move on to the second half of the analysis laid out earlier this year by the California Supreme Court in the appeal of the Berkeley Hillside case, Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, which was decided in May.
The City of Carlsbad acted correctly in including traffic from a vacant store in its environmental baseline for a shopping center renovation, the Fourth District Court of Appeals has ruled in an unpublished case.
Westfield, the shopping center operator, proposed demolishing and reconstructing the vacant Robinson-May store in Plaza Camino Real, a shopping center originally built in 1969. Westfield’s changes actually resulted in a reduction in the overall square footage of the shopping center.
California's Supreme Court justices were picking doubtfully Wednesday morning at the famous "CEQA in reverse" argument -- a claim that the California Environmental Quality Act can require an environmental impact report (EIR) not only when a project may threaten the environment, but also when a project would draw users to a place with hazardous environmental conditions.
The question before the court in California Building Industry Association v. Bay Area Air Quality Management District is not so much whether projects should be built near hazards, but whether CEQA is the appropriate law to regulate such proposals. (Last year Bill Fulton suggested that if CEQA doesn't apply "in reverse", then maybe local officials will have to dust off other planning tools to protect the public more affirmatively.)
Justices Mariano-Florentino Cuéllar, Goodwin Liu and Carol Corrigan led the questioning. They appeared to view full-on "reverse" CEQA as too radical, and instead were inviting rationales for compromise outcomes.
The California Supreme Court is finally catching up on its backlog of cases interpreting the California Environmental Quality Act (CEQA). Recently the justices moved along two cases related to the law's climate change implications. The bottom line, however, is that the list is getting longer. The court now has eight CEQA cases pending on issues ranging from how CEQA must account for climate change to whether the law is pre-empted by federal railroad regulation.
The justices heard arguments September 2 on the leading Newhall Ranch case, emphasizing greenhouse gas reduction standards. They've also just scheduled oral argument for October 7 on the "CEQA in Reverse" case, which addresses whether developers must consider the impact of environmental conditions on a project, as well as vice versa.
This is a big change from a year ago. Shorthanded from two retirements, the court had a docket full of big lurking environmental review issues with grants of review dating as far back as 2012. Last year, not counting denials of review, the justices issued one big CEQA opinion in the whole year: Tuolumne Jobs & Small Business Alliance, an August 2014 decision allowing the use of ballot measure petitions to pressure local governments into adopting large projects. (See CP&DR coverage here.)
Just before Labor Day, Rick Caruso, the savvy real estate developer from Los Angeles, used the “Tuolomne Tactic” to end-run the California Environmental Quality Act in order to get a shopping center approved in Carlsbad.
Which means the score is now one Walmart in Tuolomne County, two football stadiums in L.A., and a shopping center in San Diego County. And that raises a pretty interesting question: How far will developers push the Tuolomne Tactic? And will the Legislature step in with a fix?
Not likely – which means California planning regulation just got even more convoluted than it was before.
The California Supreme Court has agreed to hear two important planning and development cases – one involving Banning Ranch in Newport Beach and one involving the seemingly endless Newhall Ranch project.
Tuesday’s California Supreme Court ruling in a CEQA case involving San Diego State lays down an important marker: State agencies can’t claim that a mitigation measure is infeasible just because they didn’t get a legislative appropriation to pay for it. It’s the second time the Supreme Court has rejected an argument by Cal State that fiscal considerations under state law should trump CEQA.
The Cal State Board of Trustees had tried to argue that they didn’t have to pay for offsite mitigations for expansion of San Diego State University under the California Environmental Quality Act because the legislature had not specifically authorized the money to pay for those mitigations. But a unanimous Supreme Court rejected the argument.
To do so, write Justice Pamela Werdergar for the Supreme Court, would put the legislature in the position of serving as lead agency on every CEQA-related project undertaken by any state agency – essentially determining which mitigations to pay for and when a statement of overriding considerations is justified. “[S]uch a holding would logically apply to all state agencies, thus in effect forcing the Legislature to sit as a standing environmental review board to decide on a case-by-case basis whether state agencies’ projects will proceed despite unmitigated off-site environmental effects,” Werdegar wrote.
A decision to remove 200 acres of the Anheuser-Busch-owned Warm Springs Ranch from the Western Riverside County Multiple Species Habitat Plan is not exempt from the California Environmental Quality Act even though the property would be replaced in the plan by 1,000 acres on two other nearby ranches, the Fourth District Court of Appeal has ruled.
The decision to remove the property was the result of a complicated – and in some ways failed -- negotiation between the company, the Western Riverside County Regional Conservation Authority, and Riverside County. Overturning Riverside County Superior Court Judge Daniel Ottolia, the Fourth District ruled that CEQA Exemptions 7 and 8 did not apply to the situation, even though the change would not automatically lead to development of the parcel.
“[W]e conclude the removal of the conservation overlay from the phase 9 property is a ‘project’ under CEQA as a change embodied a fundamental land use decision that has the potential for causing ultimate physical changes in the environment, because land that was protected for conservation purposes will no longer be subject to such protections,” the court wrote.
A developers’ group is promoting a new piece of legislation that would postpone implementation of SB 743 – the bill that would change traffic analysis to vehicle miles traveled in environmental review – for a year. The bill has apparently revealed a split among developers who say they focus on infill projects.
Sponsored by Assemblymember Cristina Garcia (D-Norwalk), who was elected in November, Assembly Bill 779 would postpone implementation of SB 743 until 2017. A lobbying group called the Infill Builders Federation is sponsoring a bill that, depending on its final form, would postpone the implementation of SB 743. Supporters insist that they embrace VMT but say that the two years are needed to help developers prepare for the switch and to work out what they see as kinks in the law. (The City of Pasadena has already implemented most of the provisions of SB 743.)