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Cal Supremes Accept CEQA Case, Order Prop. 218 Suit Rehearing

The California Supreme Court has accepted yet another California Environmental Quality Act (CEQA) case for review, this one involving the question of whether denial of a conditional use permit extension is subject to CEQA. In an unrelated matter, the court has dismissed a Proposition 218 case regarding assessments for a business improvement district.

The CEQA case concerns Sacramento County's denial of a conditional use permit renewal for a general aviation airport near Elk Grove. The county has battled for years with the owner of Sunset Skyranch Airport over permits. Four years ago, the Board of Supervisors decided not to renew the conditional use permit because of the airport's proximity to new homes and a proposed school. The county ordered the airport to close within 180 days.

A group of local pilots sued, arguing that the county could not deny the permit renewal without conducting an environmental study. They argued and the Third District Court of Appeal agreed that closure had implications for the Sunset Skyranch facilities, other airports and the pilots that had to be studied under CEQA (see CP&DR Legal Digest, September 2008).

The county appealed to the state Supreme Court, and six of seven justices voted to accept the case. The questions for the court are these: Is denial of an application to renew a conditional use permit a "project" under CEQA? If the denial is a project, is it exempt from CEQA nonetheless?

The case is Sunset Skyranch Pilots Association v. County of Sacramento, No. S165861.

During the last few years, the state high court has shown more interest in CEQA than at anytime since the 1970s. Earlier this year, the court upheld the environmental impact report for the Cal-Fed Bay-Delta project, and it upheld the Department of Forestry's analysis of three timber harvest plans in Tuolumne County. In cases decided last year, the court rejected a program EIR for a proposed 20,000-unit housing development in Rancho Cordova because of an inadequate water analysis, and the court exempted from CEQA Solano County's adoption of an airport land use compatibility plan because it only incorporated existing general plan and zoning policies.

In September, the court heard oral arguments in Save Tara v. City of West Hollywood, No. S151402 (see CP&DR Legal Digest, April 2007). The case concerns exactly when in the development process CEQA is triggered. The Second District Court of Appeal ruled that the city's approval of a conditional agreement with the developer of a proposed housing project should have been subject to environmental review because it committed the city to a definite course of action. The city contends environmental review so early in the process would be premature and possibly lead to repetitive review once the project is fully known. During oral argument, justices asked about the possibility of establishing a "bright line" test to determine when CEQA is triggered. An opinion is due by December 1.

Other pending CEQA cases at the state Supreme Court: Communities for a Better Environment v. South Coast Air Quality Management District, No. S161190, which concerns the baseline for an EIR; Citizens for Sensible Planning v. City of Stockton, No. S159690, which involves the statute of limitations for filing a CEQA suit when a project is not properly approved; and Committee for Green Foothills v. Board of Supervisors, No. S163680, which concerns the statute of limitations for a suit when an agency declares a project could not have a significant impact. None of those three cases has been set for oral argument yet.

Away from CEQA, the court transferred Dahms v. Downtown Pomona Property and Business Improvement District, No. S143165, back to the Second District Court of Appeal, Division One. The case involves formation of, and assessments for, a business improvement district. In 2006, the Second District rejected a business owner's argument that a required public hearing was conducted at the wrong time and that the assessments are not proportional to the benefits received.

The Supreme Court directed the Second District to reconsider its decision in light of the recent decision in Silicon Valley Taxpayer's Assn., Inc. v. Santa Clara County Open Space Authority, 44 Cal. 431. In that case, the court threw out an open space assessment because it was a special tax that should have gone before voters. The district violated Proposition 218 by subjecting the assessments to a vote of only landowners, the court ruled (see CP&DR Legal Digest, August 2008).