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Just when you thought appellate judges were growing frustrated with the California Environmental Quality Act, the First District Court of Appeal has ruled that a major project in the Irvine Business Complex is not exempt from CEQA because it involves a significant transfer of density within the IBC. In a business-against-business CEQA lawsuit, the justices actually seemed alarmed at the scale of change proposed by the project.

The issue of wildfire evacuation routes is threatening to bring down another major development project – this time, a 536-unit residential project in the suburban Rancho Penasquitos area. A San Diego County Superior Court judge ruled that the city should have included an analysis of wildlife evacuation routes in the environmental impact report. The judge also ruled that the city should have considered the cumulative impact of the Junipers project and two other nearby pending projects but did not do so in the EIR. In the last year, wildfire evacuation routes have become a major issue under the California Environmental Quality Act. Among other cases, the Fanita Ranch project in nearby Santee was shut down by a different San Diego judge on wildfire evacuation issues last year. At a CEQA seminar in December, Ron Milam of Fehr & Peers expressed concern about wildfire evacuation as a CEQA issue, saying, ““This is one of those ones that if you’re not careful will expand.” Locally, the cumulative impact angle got more attention, especially from San Diego City Attorney Mara Elliott. The Junipers project , proposed by Lennar, is a gated community, which will redevelop the property that was the former location of a golf course. But two other projects are being developed nearby, including Minnenium PQ , a 313-unit apartment building, and The Trails at Carmel Highlands , which would add 826 homes. Local residents, organized as PQ-NE Action Group , argued in the CEQA lawsuit that the city should have considered the cumulative impact of all three projects. In San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal. App. 3d 61, the seminal case on the issue, the First District court of Appeal said that projects “under environmental review” should be examined for their cumulative impact. This view was later added to the CEQA guidelines (Cal. Code Regs. Tit. 14, § 15355), which defines cumulative impact as “the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects.” In the Junipers case, the city did not examine the cumulative impact of the three projects because the other two applications had not been “deemed complete” when the Notice of Preparation for the EIR was issued in 12018. But San Diego Superior Court Judge Ronald Frazier concluded:. “The city was clearly aware Millennium PQ and Trails were reasonably probably future projects. Thus, the EIR fails to comply with CEQA because it did not adequately consider the cumulative impact of Millennium PQ, Trails, and the Project.” The ruling raised Elliott’s ire. She told the San Diego Union-Tribune : “We disagree with the ruling, which could potentially require the city to restart the environmental review process whenever a second, unrelated project is proposed nearby, delaying completion of the first project.” The case is PQ-NE Action Group v. City of San Diego , No. 37-2021-00033583-CU-TT-CTL (tentative ruling filed February 2, 2023).

Following the January 31 deadline by which the 109 or so jurisdictions of the Bay Area were supposed to have adopted certified housing elements, it's hard to tell whether many of them are being savvy to a fault or simply tempting fate.

Rancho Planner Case May Move Forward

State Creates Map of Government-Owned Surplus Properties and Housing Element Sites The Department of General Services in partnership with the Department of Housing and Community Development released an interactive public map of property identified by local governments to help developers find land for housing development. The Housing and Local Land Development Opportunity Map shows potential development sites identified in local housing elements (housing plans) adopted on or after January 1, 2021, and locally-owned surplus and excess sites identified in housing element Annual Progress Reports. This new map allows developers to view all sites identified by cities and counties for housing through their housing elements, as well as locally-owned surplus and excess land, which may be subject to affordable housing requirements when disposed of through the Surplus Land Act. Further the map allows these sites to be overlaid with key datasets, including the HCD/Tax Credit Allocation Committee Opportunity Maps, Cal EnviroScreen 4.0, and fire hazard data to assist them in applying for state affordable housing funding sources and accessing streamlining benefits. HCD is also hosting a webinar on February 24, 2023 to introduce this tool. Concord Naval Air Station Redevelopment Stalls Again Three years after rejecting mega-developer Lennar to lead redevelopment of the former Concord Naval Air Station, the Concord City Council sent the project back to the drawing board again. On a 3-2 vote last week, the council rejected a term sheet with Concord First Partners, effectively firing the group after two years of planning. Totaling 2,225 acres and set to include 15,000 housing units, the $6 billion project would be the single largest housing development in the Bay Area (if not the state). The Navy still owns the property, but the city governs its reuse. Guy Bjerke, Concord’s director of economic development and base reuse, told the San Francisco Chronicle, “we are evaluating options and will seek Council direction in the near future.” (See related CP&DR coverage .) Oakland Taps African-American Developer for Coliseum Site The City of Oakland entered into an exclusive development agreement with Oakland developer AASEG to redevelop the 200-acre Oakland Coliseum site into a $5 billion mixed-use community focused on equity, with generous amounts of affordable housing for low-income, and especially African-American, residents. AASEG is owned by African-American businessperson Ray Bobbitt, who grew up in Oakland. The redevelopment is predicated on the Oakland A's departure from the Coliseum, and it could include an arena to host a WNBA or other professional sports team. But the focus would be on housing; "We're talking about affordable housing, so that we can keep those who have lived here in Oakland for generations, so their families can continue to live here," said Oakland Mayor Sheng Thao told ABC News. Any redevelopment would require the assent of the A's asset, which owns about half of the site. The A's have not commented on the AASEG development agreement. (See related CP&DR coverage .) Analysis of RHNA Progress Awards C- to Cities Statewide According to a study by the Southern California News Group most counties and cities statewide are falling behind state mandated goals on affordable housing as of 2021. The average rating, under California’s Regional Housing Needs Assessment program, statewide was a C-. Low-income housing projects, as displayed by these study results, fell behind market-rate development statewide. According to the study, only 29 out of 538 state cities and counties were on track to provide housing for very low-, low-, moderate-, and above moderate-income residents according to their previously decided upon goals. Deputy Director for housing policy at California’s Housing and Community Development Department “complained that cities fail to take the initiative in promoting new housing. In some cases, she said, they obstruct development.” Cities in the state argue that they are at the whim of a difficult market. Others claim the state itself is not creating enough financial resources or incentive to local governments for the construction of low-income housing. One California city — Norwalk — met and exceeded the Southern California News Group's rating standards and received an A-plus in 2021. CP&DR Coverage: Fulton Considers CEQA Appeal Based on recent cases, Bill Fulton wonders whether California's appellate courts are getting tired of hearing cases about the California Environmental Quality Act. In the Bay Area, home to the First District Court of Appeal, where justices have recently lamented that “something is very wrong” with CEQA, insisted that environmental documents don’t have to be perfect, and even allowed a malicious prosecution case to move forward against a prominent CEQA plaintiffs’ lawyer. In the Sacramento-based Third District, however, things appear to be different, as evidenced by the outcome of the recent appellate court involving the proposed new annex to the State Capitol. In the Save Our Capitol! Case, the Third District first said that the Department of General Services should have included visual representations of the new annex in its environmental analysis. Recently, a tentative ruling from the First District in the People’s Park case seemed to indicate that noise from students and potential problems associated with homeless persons could be viewed as environmental impacts under CEQA. Fulton concludes that it's "a confusing time for CEQA, where many courts are really resisting expansion while others are facilitating it. If ever there was a time that called for comprehensive legislative reform, it’s now." Quick Hits & Updates Interstate 980 in Oakland has been listed as a “Freeway Without a Future” according to the Congress for New Urbanism (CNU). CNU argues that instead of investing in costly repair and expansion of the 980, money should be put toward city streets, housing, and green spaces.  Clovis City Council approved a new 1,000- acre development of single family homes just beyond the city limits. Development of the homes had been halted previously due to the presence of an endangered salamander. The site will not include any affordable housing, and the city still needs to study the fiscal impact of the development as it considers annexing it into Clovis city limits. Assemblymember Alex Lee introduced AB 309, which would promote mixed-income "social housing" statewide. Social housing is protected from being sold to a private for-profit entity for the duration of its life, and residents are granted the same protections (if not stronger) as tenants in private properties, and residents are able to participate in decision making. Golden State Warriors star Steph Curry and his wife Ayesha weighed in on the tense housing debates in the San Francisco Peninsula. The couple wrote a highly publicized letter to the Atherton City Council asking the council to oppose upzoning of properties adjacent to their home. Atherton is known for large properties exceeding one acre. A new Oceanside development along the Sprinter rail-line received approval Jan. 12 after a heated City Council meeting. An appeal by impassioned residents concerned about looming traffic issues was denied, enabling the development.  Cerritos Mayor pro tem Bruce Barrows filed a lawsuit that could delay construction of a light rail line extending from downtown Los Angeles through southeast Los Angeles County. The suit alleges that LA Metro violated the Public Records Act for failing to fully discuss its plans for a "cut-and-cover" segment in Cerritos. A new report from the Public Policy Institute finds that, due to the inevitability of water supply vulnerability, California must learn to "thrive with less." The report includes several strategies for adapting to these changing standards, including modernizing water storage, making the most of wet years, consolidating small water utilities in rural communities, and water-limited farming for agriculture use. Glendale planners are looking to improve the industrial neighborhood surrounding the city's Transportation Center. New design proposals include employment, housing, and retail opportunities as well as sidewalk repaving, new light fixtures, urban greenery, and curb extensions. A recent report from UC Berkeley's Othering & Belonging Institute expands on previous explorations of the impact of exclusionary zoning on racial and economic segregation, this time in the San Diego region. The report stresses that over three-quarters of residential land is zoned for single-family housing, which is consistent with previous reports on the San Francisco, Los Angeles, and Sacramento areas.Though fewer people left California between 2021 and 2022 than in the previous year, the statewide population is continuing to decline , according to new data from the U.S. Census Bureau. In the past year, about 114,000 people left, resulting in a 0.3% population decrease, compared to the previous year's 0.9%. Los Angeles City Controller-elect Kenneth Mejia's leadership team includes former L.A. city deputy major Rick Cole as chief deputy controller. The entire team includes a mix of political veterans and those new to local government, all intending to promote accountability and transparency of the city budget. Los Angeles County Metro's assessment of the NextGen Bus Plan, a bus network intended to increase ridership by growing the number of bus lines, improving frequency, and create safer waiting stops. The assessment found that accessibility improved with the new network, especially for people in Equity Focused Communities. Burbank's Civic Center Redevelopment would bring over 5,600 new housing units to the city's downtown as well as a 65,000-square-foot library and 52,000 square feet of open space. Burbank officials may soon make a down payment on city-owned land. Sacramento city council members approved a policy that will increase the amount of protected bike lanes across Midtown and Downtown Sacramento. The lanes will be connected to currently-existing pathways. Pathways Climate Institute LLC and San Francisco Estuary Institute and the Aquatic Science Center studied and mapped Bay Area shallow groundwater response to sea level rise in an effort to understand the impacts, creating an interactive map of groundwater rise.

Have appellate justices finally had it with the California Environmental Quality Act? The short answer appears to be yes – at least in the Bay Area, home to the First District Court of Appeal, where justices have recently lamented that “something is very wrong” with CEQA, insisted that environmental documents don’t have to be perfect, and even allowed a malicious prosecution case to move forward against a prominent CEQA plaintiffs’ lawyer. “In all these cases, you are starting to see a thread of frustration that has CEQA been hijacked by labor unions, by NIMBYs, by competitors,” veteran CEQA lawyer Tina Thomas , who often represents agency defendants, said at the recent UCLA Land Use and Planning Conference. “I don’t know how these cases are going to turn out, but there is this sort of thread of frustration.” Not everybody is frustrated, however. In the Sacramento-based Third District, however, things appear to be different, as evidenced by the outcome of the recent appellate court involving the proposed new annex to the State Capitol. In the Save Our Capitol! Case, the Third District first said that the Department of General Services should have included visual representations of the new annex in its environmental analysis. (The court softened its position slightly on this issue after a rehearing; CP&DR coverage can be found here .) And back in the Bay Area, Alameda County appears to be particularly fertile ground for CEQA expansion rather than frustration. The whole battle over the CEQA implications of UC Berkeley exceeding its enrollment projections began when Alameda County Superior Court Judge Brad Seligman ruled, essentially, that increases in student enrollment could create an environmental impact. Both the First District and the California Supreme Court declined to resolve the CEQA battle over student enrollment at UC Berkeley, leading the Legislature to take the unusual step of amending CEQA to clarify the issue. (You can read CP& DR’s analysis of the case here .) More recently, a tentative ruling from the First District in the People’s Park case seemed to indicate that noise from students and potential problems associated with homeless persons could be viewed as environmental impacts under CEQA. (Read CP&DR coverage here .) CEQA plaintiffs’ lawyers are clearly getting more defensive about the law, though even they acknowledge that judges are beginning to lose patience. “You’re starting to see this frustration show up,” plaintiffs attorney Kevin Bundy said at the UCLA conference. But like his counterparts, he argues strongly that CEQA, at its best, will make development projects better. “We risk losing a lot of what is very important about CEQA,” he said at the UCLA event. “It makes sense to understand what the impacts of a project are before you approve it. It makes sense to see if there are feasible ways to reduce those impacts. We have to plan for wildfire and droughts. We have to plan for sea level rise.” What judges think about CEQA matters a lot. Over the past half-century, the Legislature has repeatedly declined to reform CEQA by statute, in large part because of changing cast of powerful characters – mostly recently labor unions – have found CEQA useful in gaining leverage over developers for their own purposes. That means Superior Court judges and appellate court justices have had to fend for themselves in interpreting CEQA – and although trends have ebbed and flowed over the years, in general judges have tended to expand CEQA through their rulings. Remember that the most important CEQA expansion dd the judgment that CEQA applied to permits for private development projects as well as government projects – came originally from the courts in the Friends of Mammoth in 1972 . Though most CEQA cases are not challenged in court, there’s always the threat of litigation, and judges have a long history of finding environmental analysis inadequate in some way. “There’s always another study that can be done under CEQA,” Thomas told the UCLA audience. Even CEQA practitioners have begun to be concerned about endless CEQA expansion. Take, for example, the issue of evacuation routes in wildfire risk areas – an issue that has emerged recently in several CEQA cases. (For one example, take a look at CP&DR’s coverage of what we called the Lake County “reverse-reverse-CEQA case.) At the CLE conference in San Francisco in December, Fehr & Peers’ Ron Milam – one of the leading transportation analysts in the state, said: “This is one of those ones that if you’re not careful will expand. We’re talking about wildfire evauation. What about other evacuations, urban fire, terrorism, whatever. Be prepared for some opponent to a project to translate that to all those other things you should have looked at. I’m hesitate to want to jump there because it just gives more opposition to projects.” Still, judicial frustration appears to be mounting. The Tiburon case involved a fight over building 43 units on a spectacular 110-acre property overlooking San Francisco Bay that has been going on for almost a half-century. The appellate court’s ruling was written by veteran Justice James Richman, who concluded his 110-page analysis of the California Environmental Quality Act by saying, “Something is very wrong with this picture.” (See CP&DR coverage here .) In the Save Livermore Downtown case, which was just published in late January, the plaintiffs argued that the project’s specifics violated the city’s general plan and downtown specific plan in various ways. But, the appellate court ruled, “A given project need not be in perfect conformity with each and every general plan policy.” Last year, in Southwest Regional Carpenters Council v. City of Los Angeles , the First District Court of Appeal let an environmental impact analysis go forward even though the final project did not emerge until the final EIR and therefore the public didn’t have a chance to comment on it. “ Although we believe decision-makers and the public would be better served if the public had an opportunity to comment on the actual project before approval, we decline to engraft that requirement into CEQA,” the court wrote. (This was more or less the opposite of the conclusion in the Save Our Capitol! Case.) Perhaps most surprisingly was the decision of the First District to permit a malicious prosecution case go forward against prominent CEQA plaintiffs’ lawyer Susan Brandt-Hawley for supposedly misrepresenting the facts in a challenge to a single-family home in San Anselmo. Brandt-Hawley tried to invoke the anti-SLAPP law but failed. So what does all this add up to? A confusing time for CEQA, where many courts are really resisting expansion while others are facilitating it. If ever there was a time that called for comprehensive legislative reform, it’s now. But as the Berkeley enrollment situation proved, it’s unlikely that the legislators will do anything but create more CEQA Swiss-cheese when their backs are to the wall: We may see a little more tinkering around the edges, especially on UC enrollment. But comprehensive reform seems to be as far away as ever.

Schools have honor rolls, big-box stores have employees of the month, and now the California Department of Housing and Community Development has “Prohousing cities.”

The Second District Court of Appeal has published a recent ruling concluding that a developer in Ventura required to excavate an unexpected amount of fill did not pursue all administrative remedies before suing.

An appellate ruling rejecting a community group’s challenge to an affordable housing project in Downtown Livermore has been published by the First District Court of Appeal, meaning the case can be cited in other court cases as a precedent.

Caltrain Extension to Salesforce to cost $6.7 Billion The Transbay Joint Powers Authority (TJPA) released a new estimate that puts the cost of extending Caltrain 1.3 miles to the Salesforce Tower in downtown San Francisco at $6.7 billion. In spite of the 34% increase in estimated cost from 2015, transit planners have set a completion date for “The Portal” at 2032. It would be one of the costliest rail projects, on a per-mile basis, in the world. The project costs come largely from building the new underground station and tunnel. In an effort to reduce budget Caltrain has already decided to shrink proposed tunnel size and eliminate an underground passage from Salesforce Tower, which was constructed with space for an underground rail station, to the Embarcadero BART station. TJPA is hoping to secure at least 50% of their proposed budget from the Biden administration, which may be difficult given that Caltrain ridership three years after the start of the COVID-19 pandemic is still down 60%. Caltrain is already projecting operating on a deficit, which could affect its proposed 2024 rollout of electrified trains. Los Angeles Further Extends, Enhances Tenant Protections  11 days before COVID-19 anti-eviction protections were set to expire, the Los Angeles City Council voted unanimously to expand tenant protections . Small landlords made their voices heard during public comment on the policy, with many claiming they were already severely burdened under the existing COVID-19 protections. The new tenant protections will stop landlords from evicting tenants unless there were documented lease violations, unpaid rent, and or owner move-ins. This will expand just-cause evictions protections, like those already given to tenants in rent-stabilized units, to an additional 400,000 units in the city. Evictions for tenants with unauthorized pets and with added residents not listed on leases are also paused until 2024. The council also voted to extend the timeline for tenants to pay back-rent, and directed city departments to propose new relief programs for smaller landlords within 30 days. Supreme Court Rejects Lawsuit over Bay Area Toll Hikes; Capital Improvements to Proceed The California Supreme Court dismissed a 2018 lawsuit intended to challenge toll hikes at seven Bay Area Bridges through Regional Measure 3 . While Measure 3 passed in 2018 with 55% of the vote, the Howard Jarvis Taxpayers Association argued that since the funds generated by the toll hikes would benefit the general public — not just bridge users — it should have been on the ballot as a local tax, which would have required two thirds of the vote. The toll hikes still went into effect in 2019, but the hundreds of millions already generated by the measure are sitting in an escrow account. Now, with the lawsuit dismissed, BART, MUNI, and other Bay Area Transit agencies will have access to funds that could alleviate their existing financial burdens. Money from Measure M will go towards projects like BART’s expansion into downtown San Jose, the ongoing replacement of old BART cars, the San Francisco Bay Ferry’s expansion into Mission Bay, and Caltrain’s extension into the Salesforce Transit Center. Major Sonoma County Redevelopment Faces Lawsuit  A bid to redevelop a former state-run Sonoma Developmental Center in Glen Ellen is facing a lawsuit from citizen groups. The plaintiffs, Sonoma County Tomorrow and Sonoma Community Advocates for a Livable Environment have filed suit to contest the county’s environmental impact report for the site, raising concerns about wildfire evacuation risks, danger to wildlife corridors, and preservation of historic buildings. The county’s land use and development agency, Permit Sonoma, has responded to the lawsuit insisting that they take their responsibility to uphold their obligations under the California Environmental Quality Act seriously. The county has a sizable need for additional housing, and the closed developmental center’s 945 acre plot posed a rare opportunity to combat the housing shortage. The county has already scaled down the proposed number of units from 1,000 to 700. (See related CP&DR coverage .) CP&DR Coverage: Does Los Angeles's New Mayor Understand Development?  Newly elected and installed Los Angeles Mayor Karen Bass comes into office with an unenviable task: solving the country's worst homelessness crisis and providing affordable housing for potentially hundreds of thousands of residents who are rent-burdened or otherwise housing insecure. She has pledged to develop affordable housing. Unfortunately, she has also expressed her antagonism toward "luxury housing," which, in Los Angeles, means pretty much anything with a door and four walls. CP&DR 's Josh Stephens explain how Bass is given into tired NIMBY tropes and why antagonism toward any housing type is not what the city needs right now.  Quick Hits & Updates An attempt by the city of Lakeport to annex 137 acres south of Main Street and East of Highway 29 was halted by the Lake Local Area Formation Commission (LAFCo). The area in question contains a lucrative commercial corridor which is at the heart of the city’s desire for annexation.  A study commissioned by the Housing Inclusionary Program in San Francisco casts doub t on the city’s ability to meet a state mandate of building 82,000 units by 2031. In the current market, many proposed projects are not financially viable for developers, and with mandated affordability requirements they become even less so.  The Los Angeles County city of El Segundo is revamping its Downtown Specific Plan, with the city hoping to adopt an updated version by summer 2023. The new update could accommodate up to 300 new residential units, 130,000 square feet of retail/restaurant space, 200,000 square feet of new office space, and 24,000 square feet of medical offices.  A Palo Alto environmental group bought an 839 acre propert y adjacent to Mount Madonna for $10.6 million. The property had been in the Estrada family since 1848, and sold it to Peninsula Open Space Trust (POST) with the agreement that the property will be managed by the Estrada’s to ensure its preservation. POST, founded in 1977, has preserved 82,000 acres between Santa Cruz, San Mateo, and Santa Clara county.  A deal to sell the 387-acre Banning Ranch for public use as a natural open space has closed escrow. Environmental activists are celebrating the $100 million sale, a process which took over 30 years and will prevent future development on the land. A campaign titled Stop the Energy Shutdown is gathering signatures to place a referendum on the 2024 California ballot that would overturn the recently-passed SB 1137, which outlaws new oil and gas wells within 3,200 feet of schools, homes, and hospitals. San Diego developer 1HWY1 will seek $550 million in public funding to help finance site infrastructure and amenities as part of its downtown seaport redevelopment. The $3.5 billion proposal includes hotels, an urban beach, and new marinas. The Menlo Park City Council approved Meta's (formerly Facebook) plan for a mixed-use urban village with housing, office, and retail space in Willow Village. Despite unanimous approval, some council members remain concerned that the project, in its effort to avoid neighborhood opposition, is too distant from transit centers. Santa Monica developer WS Communities (WSC) has filed its first Builder's Remedy project application for a 10-story, 75-unit apartment building with 15 affordable units. WSC has proposed most of the Builder's Remedy projects expected to come to Santa Monica. (See related CP&DR coverage .)

CP&DR Vol. 38 No. 4 April 2023

CP&DR Vol. 38 No. 1 January 2023