By Katherine J. Hart
In the last quarter of 2009, three new California Environmental Quality Act (“CEQA”) cases were issued – two by the First Appellate District and one by the Second Appellate District – wherein developers claimed relief from agency inaction pursuant to Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215 (“Sunset”). In sum, both the First and Second Appellate District Courts noted that Sunset does not stand for the proposition that an agency has a mandatory duty to complete and consider an EIR: 1) at all, and 2) not necessarily within the one year time frame provided by CEQA. A brief synopsis of each of the cases follows.
Las Lomas Land Company, LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837
On September 17, 2009, the Second Appellate District issued its opinion in the Las Lomas case. In this case, developer petitioned the court to compel the city to complete an EIR for a 550-acre mixed use project just north of Los Angeles requiring annexation, a specific plan, zoning amendments and entitlements. The City was to annex the land and issued a notice of preparation for the EIR in June 2002. In February 2008, after the developer expended “millions of dollars” in consultant fees to process the environmental review of the project, the City voted to suspend the environmental review process, and then in March 2008, voted to reject the project and cease all work on it. The developer sued the City for violating CEQA, denying it procedural and substantive due process, and denying it equal protection. In denying the developer any relief, the court held, among other things, that the city had no duty under CEQA to process and complete the EIR after rejecting the project. In its defense, developer asserted the Sunset case and argued that an agency has a ministerial duty to complete an EIR in a timely manner. The court distinguished Sunset from the pending case on its facts.
Lake Almanor Associates, LP v. Huffman-Broadway Group, Inc. (2009)178 Cal.App.4th 1194
In late October, 2009, the First Appellate District held that a County’s EIR consultant, funded by the developer, is not liable to the developer for damages if the consultant fails to prepare the EIR within a specific time frame. In this case, the developer submitted a complete application to the County of Plumas in April 2005 for a 1,392-acre mixed use development project. Huffman executed a contract with the county to submit an administrative draft EIR by November 2005...
