The state Supreme Court has modified its most recent California Environmental Quality Act ruling, but it rejected the losing side's request for a re-hearing.

In Muzzy Ranch Co. v. Solano County Airport Land Use Commission, the court ruled than adoption of an airport land use compatibility plan qualified for a "common sense" exemption from CEQA review (see CP&DR Legal Digest, July 2007, May 2007). In one portion of the opinion, the court applied the "substantial evidence test" to the issue of the exemption, even though the CEQA Guidelines and prior case law indicate that the "fair argument" standard applies to non-statutory exemptions. Under this standard, a project does not qualify for a non-statutory exemption if an argument can be made that the project might have a significant effect on the environment.

In its modification, the court did not specifically name the fair argument test, but the court did remove all references to the substantial evidence test for non-statutory exemptions.

The modification was filed September 12, 2007, and may be found at 2007 DJDAR 14225.


A divided state Supreme Court has decided not to hear a closely watched case involving CEQA and housing elements.

In an unpublished opinion issued in June, the First District Court of Appeal ruled that San Francisco should have conducted an environmental impact report for a housing element update adopted in 2004. The city argued that no environmental review was necessary because the 2004 update was not substantially different from the previous housing element adopted in 1990. But the First District accepted the argument from neighborhood groups concerned about overcrowding, traffic and impacts on business that the update required study.

The state Supreme Court took extra time to consider San Francisco's request for review, but only Justices Joyce Kennard and Carlos Moreno voted to hear the case — two short of the four needed to grant review.

Thus, the First District ruling stands in San Franciscans for Livable Neighborhoods v. City and County of San Francisco, No. A112987.