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!
Happy 50th birthday to CEQA!
At its birth on Sept. 17, 1970, Gov. Ronald Regan could hardly have foreseen the revolutionary effect CEQA would have on California land use development. Beginning from the simple premise that public agencies should not approve projects if there are feasible alternatives or mitigation measures that would substantially lessen the project’s significant environmental effects, CEQA has expanded to function as the organizing process for nearly all land use projects. Throughout its teenage years and young adulthood, business leaders and developers began blaming CEQA—rightly or wrongly—for stymying development, while environmentalists and community organizers supported its rebellious efforts to promote public transparency and informed decision-making. Although CEQA seems perennially on the precipice of a midlife crisis, major reform efforts continue to fall by the wayside. Instead, CEQA continues to mature through case law and the ever-evolving CEQA Guidelines. As CEQA proceeds into middle age, Brownstein’s Natural Resource lawyers wish California's flagship environmental law a happy 50th birthday.
California Supreme Court shuts the door on petition for review of Golden Door decision
On Nov. 10, 2020, the California Supreme Court denied requests to review and to depublish the Fourth District Court of Appeals’ decision in Golden Door Properties v. Superior Court (2020) 53 Cal.App.5th 733. Accordingly, the Fourth District’s decision described in our last edition of CEQA News remains the law.
Court rules that Friant Ranch project approvals must be overturned
For long-time readers of CEQA News, Friant Ranch may sound familiar. In 2018, the Supreme Court (somewhat famously in CEQA circles) found that the EIR should have done an air quality health risk analysis or explained why such an analysis would be scientifically infeasible. (Sierra Club v. County of Fresno, 6 Cal.5th 502.) On remand, the trial court ordered the county to vacate the project approvals (including a General Plan Amendment and Specific Plan) and to fix specific sections of the EIR. The developer appealed, seeking a more limited order that left “all or most” of the project approvals intact and certification of those portions of the EIR not overturned by the Supreme Court. In Sierra Club v. County of Fresno (2020) ___ Cal.App.5th ___, the Fifth District Court of Appeal found that where an EIR “must be corrected,” approvals reliant on that CEQA analysis must be vacated and the entire EIR should be decertified. (The Fourth and Second Districts have criticized this position.) Noting that the county relied on a statement of overriding considerations (which requires balancing of economic, social and other benefits of the project against environmental impacts) when approving the project, the Fifth District concluded that the “balancing was tainted by the incomplete information provided in the EIR” so the approvals were also tainted.
New California law extending land use permits
In a multi-purpose bill, the California Legislature addressed the state’s housing woes in the context of two other crises that have risen to the fore in 2020: COVID-19 and racial injustice. Sponsored by the California Building Industry Association, AB 1561 provides an automatic 18-month extension for a broad range of “housing entitlements” that were issued prior to March 4, 2020, and are set to expire prior to Dec. 31, 2021. These “housing entitlements,” include legislative, adjudicative and administrative approvals and permits, as well as vested rights associated with those permits. The automatic extension does not apply to development agreements and certain development applications. The bill also authorizes, but does not require, California’s Department of Housing and Community Development to analyze constraints on the development of housing for people belonging to a protected class under California’s Unruh Civil Rights Act when evaluating the sufficiency of a general plan’s housing element. In recognition of the ongoing COVID-19 crisis, the legislation also includes a 30-day extension to the deadline for a Native American Tribe to request consultation under CEQA for any housing development project application deemed complete from March 4, 2020 to Dec. 31, 2021.
From all of us here at Brownstein, we wish you and yours a joyous and safe holiday season!
Many of us are grateful to see 2020 come to a close (in fact, some of us were ready to put 2020 in the rearview in August!). This year brought so much disruption to what we used to consider normal: gathering with family and friends, meeting in the office with colleagues and clients and getting to see each other’s faces without a mask. We at Brownstein Hyatt Farber Schreck are grateful for the opportunity to represent our clients, for invigorating and cutting edge work and for the fellowship of clients, colleagues, friends and family. We wish you and yours a peaceful and healthy end to 2020, with hopes for a more normal year in 2021.
