Welcome to CEQA News You Can Use, a quarterly production of Brownstein Hyatt Farber Schreck, LLP’s Natural Resources lawyers. This publication provides quick, useful bites of CEQA news, which we hope can be a resource to your real-time business decisions. That said, it is not and cannot be construed to be legal advice. Enjoy!
What to watch: over 30 CEQA bills introduced this legislative session, but only a few remain
CEQA seemed to be a hot topic with the California Legislature this year if the sheer number of bills introduced is any indication. Nevertheless, there are only a few left from those introduced that still have a chance of becoming law this year. Broadly speaking, the remaining bills are in response to wildfires that have ravaged California. We’re watching several bills aimed at modifying CEQA procedures for a range of activities, including post-fire rebuilding (AB 430), improvements to evacuation routes (AB 394), and vegetation management (SB 632).
Infill developers rejoice—design review does not trigger CEQA
CEQA is not triggered when new development is a permitted use and a city only requires design review, held the First District Court of Appeal in McCorkle Eastside Neighborhood Group v. City of St. Helena (2019) 31 Cal.App.5th 80. In McCorkle, a developer applied for design review to construct an eight-unit residential project, a permitted use by right, in the City of St. Helena’s (“City”) high-density residential district. The City approved the project during design review and found it exempt from CEQA under the Class 32 Infill Exemption (CEQA Guidelines § 15332). Beauty is in the eye of the beholder though, as neighborhood groups filed a petition for a writ of mandate challenging the City’s approval as a violation of CEQA. In denying the neighborhood group’s petition, the Court of Appeal held that where a city’s discretion is limited to the aesthetics by design review, the city is similarly limited to consideration of design-related CEQA impacts. Because of the City’s lack of discretion outside of aesthetics, the Court of Appeal held that the City did not need to rely on the Class 32 Infill Exemption to avoid a CEQA analysis.
Confirmed: that earthquake fault on your property is not an environmental resource
What is it about building single-family homes in Berkeley that spurs appellate litigation? In Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, the court rejected challenges to three single-family homes to be built side by side on a steep hillside. The city approved all three homes using the CEQA categorical exemption for construction of up to three single-family homes. (CEQA Guidelines § 15303.) Petitioners argued that the “location exception” (found in CEQA Guidelines Section 15300.2(a)) prevented the city from relying on the categorical exception as the home sites were in a mapped earthquake hazard zone. The appellate court found that the “location exception: did not apply, however, because it only concerns “environmental resources” and an earthquake hazard zone cannot be considered an “environmental resource.”
180-day CEQA statute of limitations cannot be shortened by 90-day Planning and Zoning statute of limitations
After the City of Lafayette signed an agreement allowing PG&E to cut down 272 trees in a natural gas pipeline right-of-way, Save Lafayette Trees sued under the planning and zoning law and CEQA to stop the removal. In Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, the court found that while Save Lafayette’s planning and zoning law claim was barred by its failure to comply with the 90-day statute of limitations, its CEQA claim could still proceed because the 90-day planning and zoning law statute of limitations was incompatible with CEQA’s 180-day statute of limitations and the longer statute of limitations must be given effect. In its opinion, the court distinguished Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, where the petitioner’s failure to comply with a longer statute of limitations under the planning and zoning law was fatal to its CEQA claim, which had been timely filed under a shorter 30-day CEQA statute of limitations.
Challenge to Coastal Development Permit cannot go to court until Coastal Commission is done
In Fudge v. City of Laguna Beach (2019) 32 Cal.App.5th 193, the appellate court rejected plaintiff’s attempt to appeal a Coastal Development Permit (CDP) to the Coastal Commission while simultaneously challenging the city’s CDP approval on CEQA grounds in court. The court found that CEQA’s “brambled thicket” clearly prohibits petitioners from getting “two bites at the apple.” Instead, a party wishing to challenge the approval of a CDP must first appeal the CDP to the Coastal Commission before seeking review in court.
First District upholds EIR using Sierra Club v. County of Fresno for guidance
In South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321, the appellate court rejected petitioners’ grab bag of challenges to the EIR for a mixed-use development project in downtown San Francisco. Among other things, the court found the EIR was not inconsistent or unstable for describing two alternative designs to the project—a residential and an office scheme—as the EIR adequately described the impacts of both possible schemes. The court rejected petitioners’ arguments that the methodology used in the EIR to analyze cumulative and traffic impacts was improper. Citing to the recent Supreme Court decision in Sierra Club v. County of Fresno, the court clarified that the methodology chosen by an agency to analyze environmental impacts is squarely within the “substantial evidence” standard of review. And finally, the court rejected petitioners’ argument that the EIR should have included petitioners’ proposed alternative to the project. Not only did the petitioners fail to show the agency’s range of nine project alternatives was manifestly unreasonable, but also, petitioners’ “general description” of their proposed alternative did not satisfy petitioners’ burden to show the alternative was feasible.
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