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California Land Use & Development Law Report

California Land Use & Development Law Report offers insights into legal issues relating to development and use of land and federal, state and local permitting and approval processes.

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January 6, 2022

An Invalid Negative Declaration Can’t be Cured by Preparing a Limited EIR

A trial court could not order a remedy that required preparation of an environmental impact report limited to the potentially significant impacts that led to invalidation of the project's negative declaration -- once the trial court found substantial evidence supported a fair argument that the project may have one significant environmental impact, it had no option but to require preparation of a "

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January 4, 2022 Environmental and Land Use Litigation

Union Intervention in Case Properly Denied Where Inclusion Would Unduly Complicate Litigation

Courts may deny permissive intervention if there are already multiple parties in the case and the intervenor's interests will be adequately represented by other parties. South Coast Air Quality Management District v.

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January 3, 2022

State Water Board Registrations of Small Water Diversions Are Ministerial and Exempt from CEQA

The State Water Resources Control Board's registrations of small water diversions are ministerial projects and hence exempt from CEQA. As such, allegedly erroneous registrations cannot be challenged under CEQA.

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December 29, 2021

All Projects—Including Non-Occupancy Structures—Require Climate Action Plan Consistency Analysis to Benefit from Streamlined GHG Review under CEQA

The City of San Diego's approval of underground utility lines was incomplete because its Climate Action Plan checklist improperly allowed certain non-occupancy projects to avoid greenhouse gas emission (GHG) consistency analysis. To take advantage of streamlined GHG review, CEQA requires lead agencies analyze each project's consistency with the Climate Action Plan, regardless of occupancy.

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December 29, 2021

Failure to Timely Name and Serve Real Parties In Interest Does Not Warrant Dismissal Of An Entire CEQA Action if The Unnamed Parties Are Not Indispensable

In the first reported interpretation of a 2012 amendment to CEQA's statute of limitations provisions, the First District Court of Appeal addressed "whether an action against a lead agency must be dismissed--despite being filed within the limitations period--because of a failure to [timely name and serve] necessary third parties." Save Berkeley's Neighborhoods v.

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December 24, 2021

State Density Bonus Law Does Not Require Applicants to Demonstrate Economic Feasibility of Project When Requesting Incentives

A Court of Appeal held that the state's density bonus law (Gov't Code § 65915) does not require applicants to submit financial information to support requests for incentives or waivers and preempted a city ordinance that required such financial documentation to show that a project would not be "economically feasible" without the requested incentives. Schreiber v.

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December 22, 2021

A Revised and Recirculated Draft EIR That Entirely Replaces the Prior Draft EIR Is Not Required to Summarize Each Change Made to the Prior Draft

The court rejected a claim that the city violated CEQA Guidelines section 15088.5(g) by failing to summarize each of the revisions to a draft EIR made by a revised and recirculated draft EIR. Save Civita Because Sudberry Won't v. City of San Diego, 2021 WL 5937417 (No. D077591, 4th Dist. 1st Div., December.

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December 17, 2021

Informal Communications Failed to Meet Requirement to “Petition” City Officials for Appeal

A project challenger failed to exhaust administrative remedies because an email exchange and dinner meeting with city officials expressing general concerns about a recent permit approval did not satisfy the burden to "petition" a city official in order to appeal. Muskan Food & Fuel, Inc. v. City of Fresno, 69 Cal. App.

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December 6, 2021

Certification of Howard Terminal Project for Streamlined CEQA Review Under AB 734 Was Not Subject to AB 900 Deadlines

A California Court of Appeal held that special legislation providing fast-track judicial review to the Howard Terminal Project did not impose a deadline for the Governor to certify the project for streamlined environmental review under CEQA. Pacific Merchant Shipping Association v. Newsom (Oakland Athletics Investment Group, LLC), 67 Cal. App. 5th 711 (2021).

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December 6, 2021

Court Invalidates EIR for Development of Lake Tahoe Resort

The EIR for development of a new resort at Squaw Valley failed to meaningfully address Lake Tahoe as part of the environmental setting and was deficient in its analysis of water quality, air quality, and noise impacts. In a separate opinion, the court held that the County violated the Brown Act by placing a copy of memorandum in the clerk's office after hours. Sierra Watch v.

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December 6, 2021

Court Upholds Infill Development Categorical Exemption for Gas Station in Existing Shopping Center

In Protect Tustin Ranch v. City of Tustin, 70 Cal. App.

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November 19, 2021

CEQA Existing Facilities Exemption Inapplicable to Unlined Landfills and Exhaustion of Administrative Remedies not Required Where Public Notice of Intent to Rely on a CEQA Exemption is Inadequate

A California Court of Appeal held that CEQA's issue exhaustion requirement did not preclude a challenge to Inyo County's exemption determinations for condemnation proceedings and expanded operation of unlined landfills because the County failed to provide adequate notice that CEQA exemptions would be considered at its public meeting.

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November 12, 2021

Agreement to Extend Statute of Limitations for CEQA Claim Was Ineffective Because It Did Not Include an Indispensable Party

The Court of Appeal held that a CEQA challenge to a decision approving removal of trees adjacent to PG&E gas pipelines was time-barred because an agreement to toll the statute of limitations did not include PG&E, which was an indispensable party in the proceedings, and the suit was filed after the applicable 180-day limitations period had expired. Save Lafayette Trees v.

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September 21, 2021

Court Upholds Key Provisions of Housing Accountability Act

In a major decision, the California Court of Appeal rejected a city's interpretation of what constitutes an "objective" standard under the Housing Accountability Act and upheld the constitutionality of the law and amendments that strengthened it.

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September 1, 2021

In Limited Circumstances an EIR’s Alternatives Analysis Can Be Confined to the No Project Alternative

In Save Our Access v Watershed Conservation Authority, 68 Cal. App. 5th 8 (2021), plaintiff Save Our Access challenged the EIR certified by the Watershed Conservation Authority for a project to improve a recreation area within the Angeles National Forest.