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CEQA News You Can Use – Vol. 4, Issue 3 | October 2019

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!

Last bills standing: CEQA legislation responds to California’s existential threats

The CEQA legislation enacted this year addressed some of California’s most critical challenges: housing and fire. In response to California’s homelessness crisis, a special CEQA provision for “emergency shelters, navigation centers and supportive housing” targeting homeless populations was included in the 2019-20 Budget Trailer Bill. This provision ensures expedited judicial review when a project is challenged, though it does not expedite CEQA review by a local agency. The governor also signed SB 744, which clarifies that a local agency’s decision to seek funds for permanent supportive housing from California’s No Place Like Home Program is not a CEQA project, and SB 450, which provides a CEQA exemption until January 2025 for hotels converted to supportive housing. As the state still reels from the devastating Camp Fire, the governor signed two bills aimed at modifying CEQA procedures for a range of activities including post-fire rebuilding in certain parts of Butte County (AB 430) and vegetation management (SB 632) but vetoed a CEQA exemption for improvements to evacuation routes (AB 394). In a different vein, the governor signed AB 782 authored by Assemblymember Marc Berman (D-Palo Alto), which creates a new CEQA exemption for public agency land acquisitions and transfers related to open space, agricultural preservation, habitat conservation, and similar uses. Finally, at the City of Los Angeles’ urging, the governor signed AB 1515, which will curb the uncertainty faced by developers proceeding under a general plan or specific plan subject to pending CEQA litigation.

Recycling CEQA claims to challenge a recirculated EIR not recommended

This seems to be the moral of the story in Ione Valley Land, Air & Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal.App.5th 165, which concerned Ione Valley Land’s second challenge to an aggregate quarry project. Ione Valley Land partially succeeded in its first challenge to the project when the trial court found the EIR’s traffic impacts analysis insufficient. After the county fixed the traffic analysis and certified the partially recirculated EIR, Ione Valley Land sued again. The court rejected Ione Valley Land’s second bite at the apple, however, finding its claims were precluded by res judicata because they were, or could have been, litigated and resolved in the first case.

Dogged DOGGR makes it easier for future fracking projects to comply with CEQA

SB 4 required the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (DOGGR) to prepare a programmatic EIR (PEIR) to analyze statewide impacts of oil and gas “well-stimulation” treatments, such as hydraulic fracturing (or fracking). After DOGGR complied, the Center for Biological Diversity (CBD) challenged the PEIR alleging it failed to analyze indirect impacts of a stand-alone “project,” such as “emissions caused by pumping and transporting oil and gas produced by stimulated wells, traffic, and wastewater produced from stimulated wells.” In Center for Biological Diversity v. Cal. Dept. of Conservation, Div. of Oil, Gas, and Geothermal Resources (2019) 36 Cal.App.5th 210, the court held that DOGGR “was not required to analyze indirect impacts of well stimulation in the EIR, but nevertheless adequately analyzed them on a programmatic basis, properly deferring further analysis to later, project-level EIRs.” Future projects can now use DOGGR’s PEIR to streamline CEQA review to only those environmental impacts particular to those projects.

“HERO” cannot rescue affordable units already legally withdrawn from the market

In Hollywoodians Encouraging Rental Opportunities v. City of Los Angeles (2019) 37 Cal.App.5th 768, the Second District Court of Appeal affirmed a judgment denying HERO’s challenge to a project converting a vacant former apartment building into a boutique hotel. In 2009, the owner of the rent-controlled apartment building received approval from the city to demolish the building and build a new apartment building. After withdrawing the units from the rental market under the Ellis Act, however, the project fell through in 2013. In 2015, the city approved the revised project. Hearing the calls of affordable housing advocates, HERO leapt into action to save the perceived lost rent-controlled units. The court found that the city properly used the vacant building, not the previously occupied apartments, as the baseline condition to assess housing and population impacts because the units had been legally withdrawn from the market under the Ellis Act.

Test case upholds SB 375’s CEQA streamlining provisions

In the first case to test SB 375’s CEQA streamlining provisions, the court affirmed that the city’s Sustainable Communities Environmental Assessment (SCEA) need only provide general information about uses, residential densities, and building intensities (not site-specific zoning or development standards) and the city’s reliance on prior EIR analyses was permitted. (See Sacramentans for Fair Planning v. City of Sacramento (2019) 37 Cal.App.5th 698.) The court also rejected Sacramentans’ constitutional challenges to the project, finding that charter cities like Sacramento are not bound by zoning conformity. So while the project was inconsistent with the city’s general plan, “unique” general plan policies that allow for inconsistencies are permissible so long as they are rationally related to a legitimate governmental purpose.

The Supreme Court peers through the haze: Medical cannabis ordinance is a “project” under CEQA

In Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, the Supreme Court unanimously found that the City of San Diego’s adoption of a medical marijuana ordinance is a “project” under CEQA. The court reconciled Public Resource Code sections 21065 and 21080, and found public agency actions like zoning ordinances, conditional use permits, and variances are not necessarily projects requiring CEQA review unless they potentially lead to a direct or indirect physical change in the environment. The court held the city’s ordinance satisfied this test, however, as the “theoretical effects” caused by the city’s ordinance may lead to an indirect physical change in the environment.

Will a seized Land Rover in Indiana limit land use and environmental fines in California?

When the police arrested Tyson Timbs on drug charges and then seized the Land Rover SUV he bought with insurance money after his father died, it seemed improbable that his case might have implications for land use and environmental fines levied in California. Now, not so much. Timbs argued that the SUV seizure was unconstitutional under the Eighth Amendment, which protects citizens against excessive fines, just like it protects citizens against “cruel and unusual punishment” and “[e]xcessive bail.” Indiana argued the Eighth Amendment does not apply to a state action. In Timbs v. Indiana (2019) 139 S.Ct. 682, 586 U.S. __, the U.S. Supreme Court made it clear (for the first time) that the Eighth Amendment protection against excessive fines also applies to states and local agencies because it is incorporated by the Due Process Clause of the 14th Amendment.

Although the reach of the Timbs ruling remains to be seen, it could potentially limit state and local agencies’ power to fine, especially in land use and environmental cases where fines can quickly grow to epic proportions.

This document is intended to provide you with information regarding CEQA. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact one of the attorneys listed below or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.



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