While the COVID-19 pandemic made 2020 a year most would prefer to keep in the rear view mirror, the courts kept fairly busy handing down precedents that hopefully provided us all with a better road map for navigating CEQA. What follows is not a comprehensive review, but more of a brief trip down memory lane to review a “baker’s dozen” of last year’s case law highlights.
- The Fifth District Court of Appeal found numerous defects in the EIR for Kern County’s ministerial ordinance for oil and gas well permitting. These included improper deferral of mitigation for water supply impacts, failure to adequately mitigate loss of farmland, and inadequate noise impact analysis. In conflict with other published precedent and the CEQA Guidelines, the Court held as a matter of law that agricultural conservation easements (ACEs) cannot mitigate the direct impacts of farmland conversion because they do not create new farmland to replace that which is lost. The Court also held noise impacts can’t be analyzed solely against an absolute numerical limit without considering increases over ambient levels in the various affected settings. The case is King and Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, and my 3/3/20 post on it can be found here.
- The Third District Court of Appeal reaffirmed the general CEQA principle that an EIR must assume the project proposed for approval will actually be built and analyze that project. Thus, it upheld the EIR for a large master planned community project and held that it was not deficient for failing to analyze the project without the planned university component that plaintiffs argued was unlikely to be built. The case is Environmental Council of Sacramento v. County of Sacramento (2020) 45 Cal.App.5th 1020, and my 3/6/20 post on it can be found here.
- The Second District Court of Appeal held CCP § 1021.5 private attorney general fees were properly denied to a neighbor group whose CEQA challenge to a negative declaration forced a real party in interest to abandon his plans for a modest single family residence “dream home” because he couldn’t afford to defend the litigation. The case holding that no important CEQA right was vindicated in those circumstances is Canyon Crest Conservancy v. County of Los Angeles (2020) 46 Cal.App.5th 398, and my 3/23/20 post covering it can be found here.
- In yet another case underscoring the vulnerability of mitigated negative declarations (MNDs) in the face of dedicated opposition, the Second District affirmed a judgment invalidating the project approvals and MND for a mixed use development, rejecting exhaustion, standing, and statute of limitations defenses, and holding plaintiffs made a fair argument that the project may have significant cultural resources, sensitive plant, oak tree and aesthetic impacts, thus requiring an EIR. The case is Save the Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665, and my 3/27/20 post on it can be found here.
- The Second District reaffirmed the principle that CEQA’s short statutes of limitations are triggered by the lead agency’s filing of the prescribed notice and operate independently of the merits, or lack thereof, of the claimed CEQA violations. Thus, the filing of a facially valid notice of determination (NOD) or notice of exemption (NOE) triggers the corresponding short limitations period even where the underlying CEQA determinations may be flawed. The case is Coalition for an Equitable Westlake/MacArthur...
