CEQA News You Can Use - Vol. 8, Issue 1 - April 2023
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CEQA News You Can Use - Vol. 8, Issue 1 - April 2023

Brownstein Client Alert, April 7, 2023

Noisy college students, the new CEQA impact?

Would you be surprised to learn that college students can throw noisy parties? Uh, no, but it may be a surprise that they constitute a potentially significant environmental impact under CEQA. In Make UC a Good Neighbor v. Regents of University of California (2023, No. A165451) __ Cal.App.5th __, the First Appellate District ruled on a high-profile CEQA case regarding UC Berkeley’s plans for new student housing located at People’s Park, an “historic landmark and the well-known locus of political activity and protest.” The court held that the Regents failed to comply with CEQA because the EIR (1) failed to justify the decision not to consider alternative locations to People’s Park; and (2) failed to assess potential noise impacts from noisy parties in residential neighborhoods near the campus. On alternatives, the court noted the Regents did not necessarily need to study alternative sites for the People’s Park project but were required to justify the decision not to. On noisy parties, the court found the Regents improperly dismissed the impact as speculative. In case you’re counting, this is the second CEQA loss involving UC Berkeley. In 2021, the Alameda County Superior Court ordered UC Berkeley to cap student enrollment, which would have required the university to turn away admitted students, but the California Legislature quickly passed legislation to give the university more time to comply with CEQA.

GHG emissions trouble reuse proposal for business complex in Irvine

In IBC Business Owners for Sensible Development v. City of Irvine (2023) 88 Cal.App.5th 100, applicants sought to update a 4.95 acre portion of the 2,800-acre Irvine Business Complex (IBC) in the City of Irvine by replacing one 2-story, ~70,000 sf warehouse with 5- and 6-story office buildings totaling 275,000 sf and a 7-story parking structure. The IBC allowed for transfer of development rights (TDRs) from one parcel to another in the IBC to “borrow” anticipated environmental impacts from other areas of the IBC. The city evaluated the project with an Addendum to a 2010 Program EIR, which IBC Business Owners challenged on multiple grounds. Applying the deferential substantial evidence standard, the court agreed the project would have no adverse impacts on surrounding traffic circulation systems but found the Addendum lacked substantial evidence that the project would comply with the IBC’s net-zero GHG emissions threshold at full buildout. The court cited the Addendum's failure to quantify the project’s anticipated GHG emissions as part of this lack of substantial evidence. In addition, the court held that the project was not CEQA-exempt under the infill exemption because unusual circumstances related to the project—namely its size as compared to the buildings it would replace—combined with a potentially significant impact with respect to GHG emissions meant the infill exemption did not apply. The court sent the project back to the city for further review without expressing an opinion as to whether an EIR would be required.

Lack of specificity dooms challenge to home remodel

The legal concept of “issue exhaustion” requires the exact issue being litigated to have been raised in the administrative proceedings. In Arcadians for Environmental Preservation v. City of Arcadia (2023) 88 Cal.App.5th 418, the Second Appellate District considered a challenge to the City of Arcadia’s approval of a second-story addition to a single-family home. The court affirmed the trial court’s ruling that Arcadians for Environmental Protection failed to exhaust administrative remedies and were therefore barred from challenging on CEQA grounds. The court held that Arcadians’ comments to the city referencing the need for an EIR and potential environmental impacts were insufficient to provide notice that Arcadians intended to sue on the issue of whether the home remodel was covered by a Class 1 categorical exemption for the “minor alteration of existing public or private structures.”

CEQA infill exemption applies to eldercare facility despite aesthetic objections from neighbors

Opponents of an eldercare facility in the Pacific Palisades neighborhood of Los Angeles (LA) brought CEQA, zoning code and Coastal Act claims against the project. In Pacific Palisades Residents Assn v. City of Los Angeles (2023) ___ Cal.App.5th ___, the Second Appellate District turned back all of the resident association’s challenges. Focusing on the CEQA claim, the resident association challenged LA’s use of the Class 32 “infill” categorical exemption, arguing that the project could not qualify because it was not consistent with all applicable general plan policies due to the project’s aesthetic impacts. Using the substantial evidence standard and deferring to LA’s interpretation of its own general plan, however, the court upheld LA’s consistency determination. In sum, the court concluded that a reasonable person could agree with the city’s determination, even if others vociferously disagreed.

Must CEQA exemptions be included in public agendas under the Brown Act noticing requirements? Supreme Court dodges the question

In GI Industries v. City of Thousand Oaks (2022) 84 Cal. App. 5th 814, the Court of Appeals held that the city violated the Brown Act by adopting categorical and statutory CEQA exemptions for a project without including these exemptions on the published agenda. The court reasoned that, as with the adoption of an environmental impact report or mitigated negative declaration, the adoption of an exemption from CEQA is a distinct item of business and thus must be included on the agenda. The city filed a petition for review in the California Supreme Court, arguing that the opinion inappropriately expands the Brown Act and imposes onerous new obligations on public agencies. The city’s appeal of the controversial opinion was supported by depublication request letters from Sonoma and Solano counties, as well as by an amicus letter from the League of California Cities. On Feb. 15, 2023, the California Supreme Court denied the petitions for review and issued an order decertifying the Court of Appeal’s opinion. The result? While the decision is still binding on the parties in the case, it is no longer citable as precedent.

CEQA plaintiff’s attorney can’t avoid malicious prosecution suit

Can a lawyer get in trouble for filing a meritless CEQA suit? In a word, yes. This case starts with the Jenkins, a couple who want to build a new home in San Anselmo. When the city approved the design and found the home CEQA-exempt, neighbors hired Susan Brandt-Hawley, a prominent, experienced CEQA plaintiff’s attorney to file suit. After the trial court ruled against them, the neighbors flirted with an appeal before finally dropping it. Then the Jenkins filed a malicious prosecution action against Brandt-Hawley. In Jenkins v. Brandt-Hawley (2022) 86 Cal.App.5th 1357, they argued Brandt-Hawley intentionally misrepresented facts. Brandt-Hawley tried to dismiss the case under California’s “anti-SLAPP” law, which prevents certain free speech conduct from being the basis of a lawsuit, but the trial court ruled against her and the First Appellate District affirmed. The fact that Brandt-Hawley is a well-known CEQA lawyer makes the decision significant. If the Jenkins win their malicious prosecution suit, they could be entitled to damages, including their attorneys’ fees. We note, however, that the Supreme Court is considering both an appeal and request to depublish the case. Stay tuned.

A long, winding road for riverfront apartment project proposed in 2003

Over a 15-year span, the apartment project at issue in Save North Petaluma River and Wetlands v. City of Petaluma (2022) 86 Cal.App.5th 207, shrank from 312 to 180 units, was resubmitted to conform with an amended city general plan and spurred the preparation of a Habitat Mitigation Monitoring Plan. Opponents challenged the EIR certification on multiple grounds. Among the more notable was their argument that setting the baseline as to special status species required a study conducted at the time the notice of preparation was issued—a claim the Court of Appeal rejected. Petitioners also argued that CEQA required an evacuation and egress study in light of neighbor comments concerning flooding and grassfire hazards, even though petitioners could not point to an adopted emergency response or evacuation plan that would be impaired by the project. Here too, the Court of Appeal was unpersuaded.

New “Friday Night” lights not CEQA-exempt

Plaintiff Saint Ignatius Neighborhood Association challenged the use of a CEQA exemption to cover installation of 90-foot high stadium lights at Saint Ignatius College Prep High. San Francisco (SF) found the project CEQA-exempt under Class 1 (existing facilities) and Class 3 (new construction) exemptions. The First Appellate District disagreed with SF, holding that Class 1 did not apply because the lights would significantly increase night use from 40–50 nights to 150 nights per year. Class 3 also did not apply because the 90-foot tall lights would not be “small” structures. We note that the Supreme Court granted SF’s depublication request, so while the case remains binding on the parties, it is no longer citable as precedent.

Little Hoover Commission takes on CEQA

Could CEQA reform be gaining traction? California’s Little Hoover Commission has been asked to examine CEQA’s role in protecting the environment and public disclosure and its impact on housing, land use and other issues. The Little Hoover Commission is an independent, nonpartisan oversight agency created in 1962. Its mission: to investigate state government operations and make recommendations to the governor and legislature. The commission plans to receive public comment at three hearings (March 17, April 13 and April 27). It will then release a final report that may, or may not, impact new CEQA legislation.

This document is intended to provide you with general information regarding CEQA updates. 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 the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.


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