Long-Awaited Berkeley Hillside Arguments Test The Meaning Of 'Unusual Circumstances'

The State Supreme Court heard oral arguments December 2 in the major Berkeley Hillside CEQA exemptions case, focusing on the legal significance of the term "unusual circumstances".

While the genesis of the case is a single residence, the ruling may have statewide impact on the application of exceptions to categorical exemptions from CEQA. Thus, the case has attracted interest from environmental advocates, public agencies, preservation activists, and the development community across the state.

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CP&DR News Briefs, December 2, 2014: 4thDist Orders Publication On San Diego County Climate Ruling; CA Supreme Court Nominee; Bird Survey Out of SJ General Plan For Now

[The news briefs have been edited as noted below.]

San Diego Climate Plan Ruling Ordered Published
On November 24, the Fourth Appellate District's Division 1 issued a publication order for its October ruling rejecting San Diego's climate plan. That same day the same division issued its major decision rejecting the EIR for the San Diego Association of Governments' regional transportation plan. The effect was to give value as precedent to two cases that impose stricter greenhouse gas reduction standards on local and regional planners.

Advocates For Vets' Housing Seek Injunction To Stop Amphitheater Construction On VA's West L.A. Campus

Some important institutions got an awkward surprise last August when U.S. District Judge James Otero ruled that the Veterans Administration's sumptuous 387-acre West Los Angeles Campus was reserved for the provision of health care to U.S. military veterans, to the exclusion of several third-party lease agreements. His order sided with a group of chronically homeless veterans living with mental disabilities and/or brain injuries who argued that veterans like themselves had a priority right to receive care on the campus, including through supportive housing.

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Fourth District: SANDAG EIR must consider EO S-3-05

With a split decision in a long-awaited case, the Fourth District Court of Appeal has ruled that the San Diego Association of Governments (SANDAG) should have analyzed a gubernatorial executive order on greenhouse gas emissions in the environmental impact report on its long-range transportation plan.

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CP&DR News Briefs, November 25, 2014: Review denied on ParkMerced ruling; AVAP EIR approved; SF to bid for 2024 Olympics

In land use news this week:

  • The State Supreme Court denied review of San Francisco Tomorrow v. City and County of San Francisco (ParkMerced Investors Properties), Case No. S221844.

Coastal Commission issues two big rulings on Central Coast water and growth

California American Water won clearance from the Coastal Commission on November 12 to dig its disputed slant well from the Cemex sand mining plant in North Marina on the Monterey Peninsula. The well would allow feasibility studies for a desalination plant fed by sand-filtered water to be drawn from under Monterey Bay. The project had some unbudging opponents but received support from some conservation groups, in part because it called for subsurface rather than open-water intakes.

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Are Millenials Truly Different -- Or Just Poor?

So, one of the biggest questions in planning and development today – in California and elsewhere – is what accounts for the Millenials’ preferences for urban living and less driving. Is it generational? Or a lousy economy?

“I think our answer is yes,” says Brian Taylor, an urban planning professor at UCLA and head of the Lewis Center for Regional Policy Studies there. 

Legal news briefs, November 11, 2014: Cell phone towers, Bowman redux, and the La Mirada Ave. Neighborhood Association strikes again

  • Attorney Robert May of the LA-based Telecom Law Firm writes in the San Francisco Daily Journal that a new order from the Federal Communications Commission (FCC) could limit local power to regulate cell phone towers. The October 17 FCC approval interprets Sec. 6409 (a) of the Middle Class Tax Relief and Job Creation Act of 2012 to allow the addition of new equipment within the areas of currently used wireless sites.

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Parties in SANDAG litigation ask court what it means to take climate change planning seriously

A ruling is expected any day now on a major appellate court test of a key early response to California's SB 375 law on greenhouse gas reduction. The case of Cleveland National Forest Foundation v. San Diego Association of Governments (SANDAG) was argued before California's Fourth District Court of Appeal on August 14 and submitted August 27, so the court is nearing its 90-day deadline to reach a decision.

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CP&DR News Briefs, November 10, 2014: Cal American settles with Cemex; HomeAway sues SF over AirBnB; Purple Line groundbreaking

In California land use news this week:

SB 743: as comment deadline nears, the roadshow comes home

Officials with the Office of Planning and Research (OPR) have created a "new normal" baseline for discussing possible changes to CEQA transportation metrics under SB 743. They've succeeded pretty much by having the stamina to keep discussing their August 6 preliminary discussion draft. Over. And over. And over. For three months.

In an extended public workshopping process the key OPR drafters -- Chris Calfee and Chris Ganson -- have spoken before many different California groups to explain their August draft, often appearing with leading experts and spokespeople who raise challenging questions about it. Bill Fulton was already referring to "The SB 743 roadshow" in mid-September. (See http://www.cp-dr.com/node/3576.) Now in late fall, with public comments on the draft due November 21, the roadshow has returned, well-tested, to Sacramento.

Those appearances didn't build complete agreement on CEQA transportation metrics -- nothing could -- but through public debates and informal consultations, it appears OPR has built up a corps of influential loyal-opposition advisor/critics who are at least willing to keep arguing constructively and maybe willing to edge toward consensus.

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USF panel: VMT advocates debate CEQA critic Hernandez

There could have been more fireworks at the USF debate, but it was fierce enough. Sponsored by the USF Law School's Environmental Law Society with support from local bar groups, the debate featured a speaker who is distinctly not a convert to the Office of Planning and Research (OPR) view of CEQA transportation impact metrics: Holland & Knight's Jennifer Hernandez.

Back in August, Hernandez was the lead author of her firm's polemical criticism against OPR's discussion draft on guidelines to substitute vehicle miles traveled (VMT) analysis for the existing Level of Service (LOS) analysis. The article, titled, "OPR Proposes to Increase CEQA's Costs, Complexity and Litigation Risks with SB 743 Implementation," especially warned against litigation potential in a group of very specific suggested VMT mitigation approaches that were proposed to be added to Appendix F of the guidelines. (See http://www.cp-dr.com/node/3560 and our recent OPR coverage at http://www.cp-dr.com/node/3623.)

On the USF panel with Hernandez were NRDC's Eaken and UCLA Prof. Ethan Elkind, both of whom had published indignant responses to the Holland & Knight article. Elkind's called the article a "misleading diatribe". Eaken's blog post titled, "Setting the record straight on the Governor's CEQA reform proposal" didn't say directly what it was answering but did announce "an effort to clarify misconceptions and stop the ill-intended rumors" before launching into a string of arguments, including "Fact: Suggestions of Mitigation Measures are Just Suggestions..."

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Not All NIMBYs Are Alike

Last week Harvard history professor Naomi Oreskes defended the public figure that many planners love to hate: the NIMBY. In a column in the Washington Post entitled, “Stop hating on NIMBYs. They’re saving communities,” she argues that "NIMBY" does not deserve the pejorative connotation that many in the planning community naturally ascribe to it.

Voters veer away from land use ballot drama in November elections

Californians voted cautiously this week if they chose to vote at all. It would be foolish to look for just one electoral mood in such a large state – but when voters considered ballot measures related to land use, they mainly chose to preserve status quos.