Another Third District CEQA Ruling Gets Overturned

The clamp on local governments in California grows only tighter and tighter.

The number and detail of state mandates continues to increase. The ability to raise revenue continues to decrease. The amount of litigation never decreases. Redevelopment is in doubt. Keeping a city or county out of financial or legal trouble seems to get more difficult every year.

Those were the implicit – and sometimes explicit – messages during the UCLA Extension Land Use Law and Planning Conference in Los Angeles last Friday. As always at the conference, expert practitioners and analysts reviewed last year's lawmaking, rulemaking and courtroom activity, and speculated about the year ahead. It was difficult to detect many rays of light for cities or counties.

I was trying to figure out a way to summarize the 2009-2010 session of the California Legislature when I found a summary upon which I could not improve.

In its September 3 edition of "Framing the Issues," the affordable housing advocacy group California Housing Law Project nailed the situation. Under the headline "No Budget … No Money … No Legacy … Failed Policy," was this:

The California Environmental Quality Act does not apply in reverse, the California Supreme Court ruled Thursday.

Overturning the First District Court of Appeal, the Supreme Court ruled that, with a few exceptions, CEQA analysis must be limited to the project's impacts on the environment (and, by extension, the project's environmental impacts on its own population) but not the environment's impact on the project.

Among other things, the ruling would seem to suggest that a CEQA analysis cannot analyze and mitigate the effect of future sea level rise or other climate change effects on a proposed project. >>read more

UCLA Extension convened its annual Land Use Law and Planning Conference last week in Los Angeles.

It can sound like a simple step, to end Level of Service (LOS) metrics in CEQA transportation analysis. The more conceptually elegant Vehicle Miles Traveled (VMT) metric is easy to welcome in the abstract, with its incentives for shared and active transportation, its arguably simpler calculation methods, its potential to realign CEQA analysis with state climate protection law – and most of all, its escape from the addictive spiral of induced demand for broad, free-flowing highways that, under the logic of LOS analysis, always need widening again.

But in early August the Governor's Office of Planning and Research (OPR) published a detailed discussion draft setting out an alternative transportation impacts metric in compliance with last year's SB 743 mandate. And alongside the big-picture discussions of environmentally conscious innovation, the technical arguments began.

Everybody always loves to complain about the California Environmental Quality Act, but despite all the complaining we don't now much about how effective it really is and what all the CEQA activity adds up to. >>read more

Almost 60% of lawsuits filed under the California Environmental Quality Act challenge environmental review projects in infill locations as opposed to greenfield locations, according to a new analysis of 95 recent cases by two lawyers at Holland & Knight.

The new analysis comes on the heels of three other recent studies concluding that CEQA actions are struck down by courts between 40-60% of the time, compared to virtually zero for NEPA.

Update: Sen. Michael Rubio and Senate Pro Tem Darrel Steinberg have announced that Senate Bill 317, which would have made major changes to the enforcement of the California Environmental Quality Act, has been killed and will not be heard by the Senate.

As does every year, 2011 included a wide range of published appeals court cases, some setting major precedents and others tinkering with the arcana of land use law. Here are some highlights from CP&DR's Legal Digest compiled over the course of the year, organized by area of law.

This compilation draws on a presentation given by CP&DR contributor and Sacramento-based land use lawyer Bill Abbott, of Abbott & Kindermann, at the UCLA Land Use Law and Planning Conference earlier this month. 

In the first quarter of 2011, 53% of buyers could afford the median-priced single-family in California, and 60% could afford the median-priced condo or townhouse, according to the California Association of Realtors.

"Life in the Slow Lane" is the headline of a piece in The Economist that provides a very interesting analysis of the lack of infrastructure spending in the United States.

Because the story is in The Economist, it comes at the topic from a European perspective. No doubt this will trouble conservatives because, well … I'm not sure why conservatives fear comparisons with other prosperous, industrialized, democratic societies. Anyway, I think the story is worth reading.

California is on the verge of "five major, protracted water crises" and must change its system of governance to address the urgent situation, according to "Managing California's Water," a comprehensive examination of the subject recently produced by the Public Policy Institute of California.

The report recommends creating a Department of Water Management that is headed by an appointed director whose term overlaps different governors' administrations. This department, which could have cabinet-level status, would house a "public trust advocate" to ensure water is put toward reasonable uses and, for the first time, would have significant groundwater oversight.