California Environmental Quality Act
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.)
The Fourth District Court of Appeal has upheld the City of Newport Beach’s decision to “approve” a development project on Banning Ranch, saying that the city complied with both the California Environmental Quality Act and its own general plan. A trial judge had ruled that the city complied with CEQA but violated its own general plan.
The project is still pending before the Coastal Commission.
It was the second time in less than three years that the Fourth District upheld Newport Beach’s action on the Banning Ranch project. In December 2012, the court ruled that the city’s EIR had properly analyzed the impact of the project on adjacent parks.
CP&DR News Briefs, May 18, 2015: L.A. Mobility Plan; Delta Smelt Face Extinction; Solar Power Plan PostponedBy Matthew Hose on 18 May 2015 - 10:45am
The Los Angeles Planning Commission advised the City Council to adopt the city's proposed Mobility Plan 2035 (pdf), update the land use element of 35 community plans, and adopt an ordinance to implement new street standards and complete street principles.
The Desert Renewable Energy Conservation Plan (DRECP) has taken on the difficult task of bringing high-flown talk about renewable energy goals down, literally, to earth, in the form of land use planning. It's asking members of the energy, planning and environmental fields to cooperate in adding a new dimension to the meaning of property ownership in California's southeastern deserts.
But it’s also running into resistance from local governments that don’t want the plan to restrict their own land use power; Imperial County, for example, has banned new solar facilities. And some environmental groups are criticizing the plan because of the potential environmental impact of large-scale solar and other renewable energy facilities. It’s an ironic clash between a governor who wants rapid progress on renewable energy and local and environmental groups who are concerned about the environmental impact of large-scale solar facilities.