CEQA Lawyers Get More Creative
- William Fulton
- Aug 27, 2023
- 5 min read
As most readers of CP&DR are aware, the California Environmental Quality Act plays a unique role in California planning and development. Depending on your point of view, it’s either the one thing standing in the way of destruction of your neighborhood or the one thing standing in the way of providing needed housing. As we recently reported, both sides of the CEQA debate often use CEQA litigation – either the supposed prevalence of it or the supposed rareness of it – to defend their point of view. But, whichever side of the issue you are on, CEQA continues to operate as the “big dog” of California planning, overshadowing almost everything else in sight (with, currently, the possible exception of the builder’s remedy). There is no question that CEQA invites creative challenges to development projects. The whole law is designed to encourage the creation of citizen groups that will sue and try to find something wrong with the environmental analysis – or the procedure used to conduct the environmental analysis. But lately, we’ve seen California’s appellate courts having to deal with more creativity than usual. Most of this creativity results in nothing more than a lengthy and expensive win for the local government approving the development, but it does highlight the state of play for CEQA right now. Three recent cases – two of which resulted in wins for the local government, one of which resulted in a loss – are unusually good examples of this creativity. The first, in case you didn’t notice it when we reported on it, was what is probably best described as “the Montecito biking trail case”. Here’s what happened: There’s a popular trail in pricey Montecito called Hot Springs Canyon, which has only about eight or 10 off-road parking spaces. During COVID, trail usage went through the roof and people started parking on adjacent streets and roads. Then, nearby residents – and this is an extremely expensive neighborhoods, with houses currently on the market for between $4 million and $25 million – put boulders, plants, and other obstructions out in the public street to prevent people from parking there – a violation of the Santa Barbara County’s encroachment law. But the hikers simply parked around the boulders and obstacles, blocking traffic. When the county tried to enforce the encroachment ordinance, the neighbors sued, saying that removal of the obstacles was really a prelude to an expansion of the parking area and therefore was part of a “project” under CEQA. The Court of Appeal disagreed, saying that the county was simply trying to reclaim parking that already existed. “Any claimed ‘failure’ to follow the California Environmental Quality Act is not a defense to the commission of a crime,” the court wrote. (CP&DR’s writeup of this case can be found here.) The reaction to our writeup of this case was virtually unprecedented. When Bay Area YIMBY Max Dubler called the case “bonkers,” on X (formerly Twitter), we got more web traffic than we’d had on any other story all year. Which I guess means all this CEQA creativity is good for us, even if the creative lawyers lose in appellate court. But that wasn’t the only creative case we’ve run across recently. Here’s another recent creative case: In San Diego, the city decided to try to underground utilities – something that most neighborhoods welcome. But because the underground utilities would have required above-ground transformer boxes, a resident of the affluent close-in neighborhood of Kensington sued. (The resident has sued the city several times over tree removal, which might have been part of the undergrounding project, and has also written a book about the neighborhood.) This case has now been to the Court of Appeal twice. The first time, the appellate court ruled in favor of the neighbor – saying that the city’s mitigated negative declaration was insufficient because the city had not analyzed consistency between the project and sent the case back down for the judge to resolve. Instead of redoing the environmental analysis, the city simply abandoned the project. You’d think that would be the end of it. But the neighbor continued the litigation, arguing that the city needed to do the additional environmental analysis anyway because the project might be re-started at some point in the future. At that point, the appellate court called a halt to the whole thing, saying that if the city re-starts the project in the future, additional CEQA analysis can be done at that time. (CP&DR’s writeup of that case can be found here.) But both those creative challenges failed. The challenge to the Marilyn succeeded. If you’ve been to downtown Palm Springs, you’ve probably seen the 26-foot-tall, 34,000-pound statue of Marilyn Monroe – recreating her famous scene from The Seven-Year Itch – which is located in the middle of Museum Way in front of the Palm Springs Art Museum. When the statue was placed on Museum Way in 2020, quite a few locals objected, calling it a sexist statue. The director of the Art Museum said: “You come out of the museum and the first thing you're going to see is a 26-foot-tall Marilyn Monroe with her entire backside and underwear exposed…We serve over 100,000 school-age children that come to our museum every single year. What message does that send to our young people, our visitors and community to present a statue that objectifies women, is sexually charged and disrespectful?” (Following a variety of controversies, that particular museum director left Palm Springs after two years.) However distasteful misogyny is, it’s not an environmental impact. So the Committee to Relocate Marilyn had to find something else to sue over, and they did. The city had declared the statue’s location on Museum Way as exempt from CEQA and also declared the statue’s positioning (and closure of the street) as “temporary” under the state Motor Vehicle Code. (When you stand in front of it, the statue sure looks permanent.) In this case, the appellate court said the CEQA problem was the exemption was tied to a temporary closure and subsequently the city permanently closed the street. The court revived the CEQA part of the case on those grounds. (CP&DR’s writeup of the Marilyn case can be found here.) What’s the common theme? In all of these cases, the plaintiffs were opposed to something for reasons other than the reasons they sued on. The Montecito residents didn’t want to comply with the law, so they sued based on CEQA grounds. The San Diego resident feared her trees would be removed, so she sued based on the city’s Climate Action Plan. The Palm Springs Marilyn opponents thought the statue sent the wrong message, but they sued over CEQA technicalities. You can complain all you want about these kinds of cases, but, as I say in my CEQA summing up in Guide to California Planning, CEQA is doing what it is designed to do: Engage communities (affluent ones, anyway) in a robust debate over the environmental effects of proposed projects – even if those supposed environmental effects are sometimes a stretch. If you don’t want CEQA to do that, you’ve got to change the law in a big way. And, for a variety of reasons, nobody in Sacramento is willing to take that on.
