Author Archives: Christina Berglund

FIRST DISTRICT HOLDS BERKELEY CITY COUNCIL VIOLATED BROWN ACT BY RELOCATING MEETING RATHER THAN REMOVING DISRUPTIVE ATTENDEES

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In Berkeley People’s Alliance v. City of Berkeley (2025) 114 Cal.App.5th 984, the First District Court of Appeal held that the Berkeley City Council violated the Brown Act by recessing public meetings and reconvening in a different room in response to disruptive attendees. Although the Brown Act permits a legislative body to address disruptions that prevent the orderly conduct of a meeting, the court held that relocating the meeting rather than clearing the room fell outside that exception.

Key Takeaways

  • The Brown Act exception for disruptive situations is literally construed and does not apply in “functionally equivalent” scenarios.
  • In his statement concurring with the Supreme Court’s denial of depublication, Justice Groban encourages the Legislature to consider local legislative bodies’ “legitimate concerns” about responding to unruly individuals at open meetings.

Background

The Brown Act includes various requirements intended to protect the public’s right to attend and participate in meetings of local governing bodies, subject to limited exceptions. One such exception, set forth in Government Code section 54957.9, permits a legislative body to clear the meeting room and continue in session if a group of attendees willfully disrupts the meeting to the point that it cannot proceed and order cannot be restored by removing the individuals responsible.

During three city council meetings in 2023 and 2024, the mayor determined that disruptive attendees prevented the council from continuing the meetings and that removing them was not feasible. The mayor therefore recessed and reconvened the meetings in a different room, allowing members of the press to attend in person while providing the public with access via video.

Plaintiffs filed suit seeking declaratory and injunctive relief, arguing that the City Council failed to comply with Government Code section 54957.9 because it did not “order the meeting room cleared and continue in session” as the statute requires. The City demurred, contending that the council had effectively cleared the room by recessing and relocating the meetings. The trial court sustained the demurrer without leave to amend, and the plaintiffs appealed.

Appellate Decision

The Court of Appeal reversed. Interpreting Government Code section 54957.9 de novo, the court emphasized that exceptions to the Brown Act must be narrowly construed. Looking to the statute’s plain language, the court explained that relocating a meeting to a different room is not equivalent to “clear[ing] the meeting room and continu[ing] in session,” as the statute expressly requires. Because the Council recessed the meetings and reconvened them in a new location rather than clearing the original meeting room, the court held that the statutory exception did not apply.

Subsequent Proceedings

The California State Association of Cities and the League of California Cities requested an order to depublish the opinion, and the Supreme Court declined. In a concurring statement, however, Justice Groban encouraged the Legislature to revisit the statute, citing local legislative bodies’ “legitimate concerns that attempting to clear a room of unruly members of the public could create a dangerous situation for attendees and government officials alike.”

— Louisa I. Rogers

FIRST DISTRICT REVERSES DECISION SETTING ASIDE TOWN OF TIBURON’S GENERAL PLAN UPDATE

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In The Committee for Tiburon LLC v. Town of Tiburon (Cal. Ct. App., Feb. 2, 2026, No. A171983) 2026 WL 266411, the First District Court of Appeal reversed a trial court decision setting aside the Town of Tiburon’s general plan update and housing element. The court held that a program EIR for a general plan need not include site-specific environmental analysis for housing element sites where no development project has been proposed.

Key Takeaway

  • Identifying housing sites to meet RHNA obligations when no specific housing project has been proposed does not trigger a duty to analyze site-specific impacts in a program EIR.

Background

The Town adopted a general plan update that incorporated its 2023–2031 Housing Element, which identified the Town’s RHNA as 639 units and identified 17 sites for rezoning to accommodate 916 total units.

The Town prepared a program EIR that modeled a full buildout of the 17 sites. Rather than analyzing site-specific impacts, the EIR evaluated the townwide environmental effects of adding 916 housing units. The Town certified the EIR, adopted the general plan update, and later implemented rezonings through amendments to the municipal code.

The Committee for Tiburon LLC (“Committee”) challenged the EIR, asserting the Town violated CEQA by failing to analyze the site-specific impacts of rezoning Site H for very high-density residential use. The trial court granted the petition. The Town appealed.

Appellate Decision

The appellate court reversed, holding that the Town properly used a program EIR to analyze the broad environmental effects of increased housing under the general plan update, and that CEQA did not require site-specific analysis of Site H in the absence of a proposed development project.

The court rejected the Committee’s reliance on Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 (Vineyard), distinguishing Vineyard as involving a concrete, multi-phase development project with foreseeable long-term impacts requiring project-specific analysis. The court observed that the Town’s identified housing sites were not phases of a single project but rather components of a planning document adopted to satisfy RHNA obligations, and there was no certainty that any particular site would be developed. The court emphasized that CEQA’s core purposes cannot be fulfilled without a concrete project, making deferral appropriate when no site-specific proposal exists.

The court also disagreed with the Committee’s argument that reports submitted to HCD during housing element review demonstrated the feasibility of a site-specific CEQA analysis of Site H. The court explained that while the reports described existing conditions, they did not analyze environmental impacts or mitigation measures associated with any proposed project and therefore did not support a requirement for a site-specific CEQA review.

Moreover, the court was not persuaded that deferring site-specific environmental review does not eliminate future CEQA review. Rather, the court explained that if development on Site H would result in impacts not addressed in the program EIR, CEQA would require additional project-level review tiered from that EIR.

Finally, the court remanded the matter to the trial court to determine whether rezoning of Site H is exempt under SB 131 for rezonings that implement actions contained in an approved housing element, and, if not, whether substantial evidence supports the Town’s determination that the EIR adequately analyzed the zoning amendments and that no supplemental or subsequent EIR is required.

–Adam D. Nir

THIRD DISTRICT AFFIRMS EIR AND WATER SUPPLY ANALYSIS FOR GIOVANNONI LOGISTICS CENTER PROJECT

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In City of Vallejo v. City of American Canyon (Cal. Ct. App., Jan. 14, 2026, No. C102070) 2026 WL 100754, the Third District Court of Appeal affirmed the denial of a CEQA and Water Code challenge to the City of American Canyon’s certification of an environmental impact report (EIR) for the Giovannioni Logistics Center.

This published decision represents a strong result for RMM client, Buzz Oates LLC, confirming that the project’s environmental review and water supply analysis were legally sound and allowing the Giovannioni Logistics Center to move forward. The outcome reflects the effective defense of the EIR by RMM attorneys James Moose and Christina Berglund.

Key Takeaways

  • Once incorporated into and certified with EIR, a water supply assessment is justiciable.
  • Lower historical water purchases do not make EIR speculative absent evidence of actual supply or deliverability constraints.

Background

The project involves developing a 2.4-million-square-foot warehouse complex on industrially zoned land in American Canyon. Once operational, the project is expected to require approximately 23.9 acre-feet per year of potable water—an amount the EIR characterized as modest relative to citywide demand. American Canyon relies primarily on the State Water Project, supplemented by water purchased from the City of Vallejo pursuant to a 1996 agreement. Vallejo also holds an appropriative water right under License 7848.

Vallejo challenged the EIR’s water supply assessment under CEQA and Water Code sections 10910 and 10911, arguing that the analysis overstated water availability and failed to address several asserted constraints. The trial court denied the petition. Vallejo appealed.

Appellate Decision

CEQA Claims

The Court of Appeal rejected each of Vallejo’s CEQA claims, emphasizing that CEQA requires a reasoned analysis of water availability—not certainty, perfection, or exhaustive detail.

  • Authorized vs. actual water purchases. Vallejo argued that the EIR was misleading because it relied on American Canyon’s contractual entitlement to purchase water rather than the lesser amount it historically purchased. The court disagreed, explaining that the record contained no evidence showing that the difference reflected supply constraints, rather than economic decisions by American Canyon. Critically, the court noted that the EIR properly relied on American Canyon’s urban water management plan, which explained that while Vallejo treated water is a reliable source, American Canyon typically purchases less than its full contractual allotment because of its higher costs, not because the water is unavailable.
  • Place of use restrictions. Vallejo also contended the EIR was deficient for failing to discuss place-of-use restrictions associated with License 7848 water. The court acknowledged that such restrictions could, in a narrow sense, affect where the water may be used, but emphasized that they did not reduce the overall volume of water available to the citywide system. Even assuming disclosure might have been appropriate, the court held Vallejo failed to show prejudice—because the EIR evaluated water supply and demand on a citywide basis and substantial evidence supported its conclusion that supplies were sufficient under all modeled scenarios.
  • Curtailment analysis. Vallejo argued the EIR should have analyzed water availability on a monthly basis and addressed the risk of “simultaneous curtailment” affecting multiple imported sources. The court rejected both arguments. CEQA Guidelines section 15155 requires consideration of drought and curtailment risks but does not mandate monthly projections. The court also found the EIR adequately disclosed that American Canyon’s imported supplies share common infrastructure and hydrologic constraints and described contingency planning for dry years.
  • Alternative water sources. Vallejo’s argument that the EIR was required to analyze alternative water sources failed for two reasons. First, the issue was not preserved in the trial court. Second, an alternative analysis is required only when a lead agency cannot determine that sufficient water will be available—a finding American Canyon never made.
  • Related contract litigation. Finally, Vallejo argued the EIR should have disclosed separate litigation over the 1996 agreement. The court declined to find error, noting that the record contained no information about the litigation’s substance or potential effect on water availability. Without such evidence, Vallejo could not demonstrate that the omission was material or prejudicial.

Water Code Claims

The court also rejected Vallejo’s claims under Water Code sections 10910 and 10911. Although water supply assessments are often treated as preliminary informational documents, the court held Vallejo’s claims were justiciable because the assessment had been incorporated into and certified in the EIR.

On the merits, the court concluded the assessment adequately identified relevant water supply contracts and relied on American Canyon’s urban water management plan to describe historical deliveries. The Water Code does not require the level of detail Vallejo sought, nor does it require a contingency plan unless the agency determines supplies will be insufficient—which American Canyon did not.

– Adam Nir

RMM Attorneys to Speak at AEP Advanced CEQA Workshop

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We’re pleased to share that two of our attorneys will be speaking at the Association of Environmental Professionals (AEP) Advanced CEQA Workshop on February 27.

• Nathan George will speak at the Superior Chapter workshop in West Sacramento
• Nina Berglund will speak at the San Francisco Bay Area Chapter workshop in Eureka

We look forward to engaging with planners, consultants, and agency staff on advanced CEQA issues across Northern California.

More information: https://www.califaep.org/2026_advanced_ceqa_workshop.php

U.S. DEPARTMENT OF THE INTERIOR DELAYS MONARCH BUTTERFLY LISTING AND OTHER ENDANGERED SPECIES DECISIONS

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Despite concern over the monarch butterfly’s population decline, the U.S. Department of the Interior has delayed—indefinitely—the decision to list the species as threatened under the Endangered Species Act (“ESA”). The listing was expected to be finalized in mid-December 2025, following a proposal issued by the U.S. Department of Fish and Wildlife in December 2024. Instead, the Department of the Interior placed the decision on its Spring 2025 Agency Rule List as a “long-term action”—a designation that carries no deadline and effectively places the decision on hold for an undetermined period of time. The change not only delays action on the monarch butterfly but also signals broader slowdowns for many other species awaiting listing decisions.

The U.S. Fish and Wildlife Service’s December 2024 Special Status Assessment Report identified habitat loss and degradation as primary drivers of the monarch’s health decline. Chief among these threats are the conversion of grasslands to agricultural uses, the widespread application of herbicides and insecticides, continued urban development, and the compounding effects of climate change. The report concluded that these largely human-driven stressors have contributed to the ongoing loss and degradation of breeding, migratory, and overwintering habitat throughout the monarch’s North American range

If finalized, the proposed listing of the monarch butterfly as threatened under the ESA would authorize the U.S. Fish and Wildlife Service to adopt species-specific protections tailored to preventing further population decline and designate approximately 4,395 acres of critical habitat. The U.S. Department of the Interior’s decision to classify the listing as a “long-term action,” however, signals that these protections are not expected to move forward in the near term.

– Veronika Morrison

FOURTH DISTRICT HOLDS THAT THE BOARD OF FORESTRY AND FIRE PROTECTION MUST CONSIDER TYPE CONVERSION IMPACTS IN PROGRAM EIR

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In an unpublished decision, California Chaparral Institute v. Board of Forestry and Fire Protection (May 30, 2025, No. D083484), the Court of Appeal for the Fourth District, Division One, held that the State Board of Forestry and Fire Protection’s (the Board’s) certification of the Program EIR (PEIR) for its vegetation management and treatment program (the Program) violated CEQA because it failed to make findings or discuss mitigation for vegetation type conversion impacts. The court emphasized the irony of the Board’s argument that type conversion—which results in a more flammable landscape—is not a significant impact of prescribed burns.

Background

To address the State’s wildfire crisis, the Governor issued an executive order directing the Cal Fire to improve forest management and reduce barriers for prescribed fires. The Board—the body within Cal Fire tasked with developing the State’s forest policy—proposed the Program to reduce wildfire risks via controlled burning and other techniques to decrease the types of vegetation that fuel wildfires.

Public Resources Code section 4483 requires that the PEIR for the Program provide additional consideration for sensitive chaparral and coastal sage scrub plant communities, and that treatments of these species should only occur if Cal Fire finds the activity will not cause “type conversion,” meaning a shift from native shrub-dominated vegetation to vegetation dominated by weedy or non-native grasses and herbs. The PEIR included standard project requirement (SPR) BIO-5, which would require future project proponents relying on the PEIR to avoid “type conversion” where chaparral and coastal sage scrub are present. To do so, proponents must work with qualified forestry or biological experts to design treatments that prevent type conversion, evaluate impacts at an appropriate site scale, and demonstrate that the habitat function of these species would be maintained for the affected vegetation communities.

Plaintiffs California Chaparral Institute and the Endangered Habitats League (Plaintiffs) filed a petition for writ of mandate alleging violations of CEQA and Public Resources Code section 4483. Plaintiffs argued that the PEIR fell short in several key respects. Specifically, they contended the PEIR failed to analyze the risk of vegetation type conversion from native shrublands to more flammable grasslands and improperly deferred key impact analysis to future project proponents without clear standards or guidance.

The trial court denied the petition. This appeal followed.

Appellate Decision

Vegetation Type Conversion Impacts

Regarding the effects of “type conversion,” the court explained that the PEIR acknowledged a basic problem: burning chaparral and coastal sage scrub too frequently can prevent shrubs from regenerating, converting native shrublands into grasslands that are more flammable and therefore more vulnerable to wildfire. The Board assumed that this risk would be avoided because projects must follow SPR BIO-5, which is designed to “mimic” natural fire cycles and would prevent the removal of immature shrubs. The court found this assumption was unsupported by the record. The court noted that the PEIR did not clearly prohibit burning immature shrubs. The court further observed that the PEIR acknowledged that chaparral and coastal sage scrub are already burning more frequently than under natural conditions. As a result, prescribed burns are not “restoring” a natural fire regime but instead add to already excessive fire frequency—making vegetation type conversion and increased fire risk more likely. Finally, the court explained that because wildfire timing cannot be controlled, deliberately burning these shrubs more frequently will essentially guarantee that one fire or another (wild or prescribed) will eventually cause type conversion.

For these same reasons, the court also found that the Board’s conclusion that the Program would avoid type conversion impacts by requiring treatment activities that return vegetation to their natural “condition class,” which refers to how closely an area’s current vegetation and fire behavior match what would be expected under natural fire cycles, taking into account plant composition and fire frequency.

The court also rejected the Board’s reliance on a requirement to design treatments to maintain or improve the habitat function of chaparral and coastal sage scrub. It reasoned that this standard allows prescribed burns even when shrublands are within their “natural fire return interval,” which the court explained would allow even at-risk chaparral and coastal sage scrub to be reduced by more than 65 percent—meeting the PEIR’s definition of type conversion. The court further found the Board failed to show how protecting habitat function would prevent increased fire risk, and that the record did not support the conclusion that this approach would avoid vegetation conversion or wildfire impacts.

Tiering of Impact Analysis to Future Project Proponents

The court rejected the Board’s claim that increased wildfire risk could be deferred to later project-level review, tiered off the PEIR. It held that the impact was “ripe” for program-level analysis because the PEIR already defined type conversion, acknowledged that fuel-reduction treatments could cause it, and recognized that resulting grasses are more flammable and spread fire more quickly. Citing Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412, 431, the court emphasized that tiering does not excuse agencies from analyzing reasonably foreseeable significant impacts. And even if tiering were appropriate, the PEIR failed to provide meaningful mitigation guidance or performance standards for future projects.

Additional Arguments

The court rejected several other defenses raised by the Board. It held that Plaintiffs were not required to submit independent expert evidence because they relied on the PEIR’s own admissions that vegetation treatments could cause type conversion, which the court found sufficient and applicable to future conditions. The court also rejected the Board’s claim that analyzing impacts solely in terms of “habitat function” satisfied CEQA, explaining that compliance with an agency’s chosen threshold does not excuse failure to address substantial evidence of other significant impacts, including increased wildfire risk.

The court further found irrelevant the Board’s argument that Public Resources Code section 4483 imposes duties only on Cal Fire and not the Board, explaining that this does not relieve the Board of its obligations under CEQA to consider reasonably foreseeable environmental impacts of the Program. Finally, the court rejected the Board’s characterization of the case as a policy dispute, noting that Plaintiffs did not challenge the general use of prescribed fire in forests and that requiring analysis of type conversion impacts does not prevent the Board from approving treatments with appropriate findings, including a statement of overriding considerations as necessary.

The court concluded the Board’s CEQA violations were prejudicial because the absence of findings left the public without meaningful information about how type conversion would be evaluated, avoided, or mitigated, and could allow continued loss of already threatened chaparral and coastal sage scrub habitats.

Remand to the Trial Court

The matter was remanded to the trial court with directions to vacate the denial of the writ petition and issue a writ consistent with the appellate court’s decision.

On November 14, 2025, the trial court issued its final judgment and writ directing the Board to correct the CEQA deficiencies in the PEIR. Until those deficiencies are remedied, the PEIR may not be used to approve projects affecting chaparral or coastal sage scrub. The court found the type-conversion issue severable, however, and allowed specified categories of critical safety projects involving these habitats to proceed.

The Board of Forestry will be publishing the Draft EIR for the forthcoming update to the Program EIR referenced in the writ in early to mid- 2026:

https://bof.fire.ca.gov/projects-and-programs/calvtp-homepage-and-storymap/

– Veronika Morrison & Christina Berglund 

CALIFORNIA CHAMBER OF COMMERCE ADVANCES BALLOT INITIATIVE AIMED AT STREAMLINING CEQA FOR “ESSENTIAL PROJECTS”

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On December 26, 2025, the California Chamber of Commerce (“CalChamber”) received title and summary for a statewide CEQA initiative titled “Building an Affordable California” (“BACA”), which would shorten lead agency review and permitting timelines, substantially narrow the scope of judicial review, and expedite litigation schedules for specific “essential projects.” If passed by a majority of voters in the fall of 2026, BACA would mark the most significant CEQA overhaul since its inception in 1970.

BACA would introduce substantial changes to CEQA review and litigation for a wide range of projects. To accomplish this, the initiative proposes the following series of key procedural and substantive reforms.

What counts as an “essential project”?

BACA broadly defines an “essential project” as one related to broadband, clean energy, housing, education, public health and safety, transportation, and water supply. The initiative further defines each category of “essential project,” ranging from residential and mixed-use developments to renewable energy generation and transmission infrastructure, medical facilities, wildfire risk-reduction projects, transit and roadway improvements, and water system upgrades.

BACA subjects all “essential projects” to labor standards. Essential housing projects must comply with AB 130’s labor requirements. In contrast, all other “essential projects” must adhere to the labor requirements applicable to environmental leadership development projects under Public Resources Code section 21183.5.

The initiative also allows an applicant with a pending application for a covered project to withdraw the application and resubmit it to avail itself of BACA’s streamlined framework. Essential housing projects receive additional protection: applications for qualifying “essential projects” may be withdrawn and resubmitted without losing vested rights under California housing laws, including the Subdivision Map Act and the Housing Accountability Act.

Strict deadlines for determination of application completeness

Agencies must issue a written determination of application completeness within 30 days of receipt; otherwise, the application is deemed complete by default. If an application is found incomplete, the lead agency must provide an exhaustive list of deficiencies. The applicant has 90 days to resubmit, and the agency may rely only on that original deficiency list when evaluating the resubmittal. Applicants may extend the 90-day resubmittal period by notifying the agency of the additional time needed and the reasons for the extension.  An applicant may challenge a determination of application incompleteness, and any appeal must be decided within 60 days; if not, the application is deemed complete by default. The initiative would provide applicants with a 90-day window to seek judicial review following a final adverse written determination.

Enhanced tribal consultation requirements

BACA would establish a two-step tribal consultation framework consisting of early initial screening followed by formal consultation. Initial screening would begin before an application is deemed complete and would require early record searches and information sharing with affiliated, federally recognized tribes, with opportunities for the tribe, lead agency, and the applicant to meet and identify resources and potential treatment measures.

Formal consultation then proceeds largely under existing CEQA law, but with enhanced requirements for early disclosure of studies and draft environmental documents, and with agreed-upon mitigation measures becoming enforceable conditions of project approval. In this way, BACA retains AB 52’s core consultation principles but moves tribal consultation earlier and includes defined timelines and outcomes directly tied to project approval.

Environmental review for “essential projects”

Once an application is deemed complete, the agency has 30 days to determine the required level of environmental review­—and that review must be completed within 365 days for an EIR, 180 days for a negative declaration or MND, or 90 days for an exemption. An applicant can request an extension of these deadlines. Notably, “days” in this context expressly excludes weekends and state holidays; all other deadlines in BACA are measured in calendar days.

If, however, an agency fails to meet the mandated deadlines, an applicant may require the agency to hold a public hearing on the project. Within 60 days of an applicant’s request for a hearing, the agency must either complete the environmental document, and the “highest-ranking decision-making body” must then hold a hearing at which the project must be approved or denied. If a recommendation from the planning commission or the planning director is needed, the initiative requires that it occur within 30 days of the applicant’s request for a hearing.

BACA also mandates public comment periods of 20 days for a negative declaration or MND and 45 days for EIRs, with extensions allowed only by court order.

Additionally, the initiative narrows the way agencies evaluate environmental impacts for “essential projects” and gives applicants greater control over the standards that apply. Agencies would be required to identify, assess, determine significance, and mitigate the project’s impacts based on compliance with “existing law,” in effect when the project application is submitted, with limited carve-outs for life-safety and building code updates. Applicants may “vest into” significance thresholds the agency published, adopted, or routinely used before the application was filed, and the agency must use those thresholds in its analysis.

Finally, after the lead agency completes CEQA review, BACA requires the lead agency to issue a final decision on any permit or approval concurrently with its final CEQA determination for the project, subject to a narrow exception for certain state agencies with evidentiary hearing requirements. Any non-lead agency with permitting jurisdiction over the project, e.g., responsible or trustee agencies, must issue a final decision 90 days from a determination of application completeness for the approval it is considering or within one day of the lead agency’s approval of the environmental document, whichever is later. If an agency fails to meet these permitting or approval deadlines, the applicant may demand that the agency approve or deny the permit or approval at a hearing that must occur within 45 days of the applicant’s demand.

Preliminary scoping and streamlined alternatives analysis process

BACA would create a voluntary preliminary scoping process paired with a streamlined alternatives analysis. Applicants who choose this path must provide advance written notice, which includes a high-level project description, to the lead agency. The lead agency and applicant must meet during this period to discuss the project, potential alternatives, and affected resources. Public input may be submitted by email, but the applicant is not required to respond. The preliminary scoping process must be completed within 60 days of the applicant’s written notice.

After which, the applicant must generate a single project alternative informed by the input received during the scoping process. The alternative must be consistent with the project’s fundamental purpose, should align with local zoning and land use policies where practicable, and should not need to be located on a different site. The alternative may include on- or off-site improvements and operational parameters designed to reduce environmental impacts.

Within 15 days following completion of the preliminary scoping process, the applicant must share a description of the project, the single proposed alternative, and the no project alternative, which must consider the reasonably foreseeable impacts in the absence of the project, including alternative uses and foregone project benefits. The lead agency then has 15 days to determine whether the applicant has complied with the streamlined scoping and alternatives requirements. If the agency does not act within that period, compliance is deemed certified by default. Any certification may be administratively appealed within 5 days, after which it becomes final.

If an applicant does not opt into this process, the standard CEQA alternatives analysis requirements would apply.

Streamlined judicial review of “essential project” approvals

BACA would require CEQA challenges to “essential projects” to be filed within 30 days of the notice of determination or exemption, and the entire case—including any appeal—must be completed within 270 days. A court may extend that deadline by up to 90 days, but otherwise extensions are permitted only with the mutual written consent of the petitioner, the public agency, and the applicant.

The initiative would also significantly restructure judicial review of “essential projects” by narrowing the scope of claims, altering standards of review, and limiting both the evidentiary record and available remedies.

  • Standard of Review: In actions challenging approval of an “essential project” for CEQA noncompliance, judicial review is confined to whether the approval complies with objective, pre-existing legal requirements, and the court may only determine whether the project approval is supported by substantial evidence in light of the whole record. Challenges based on alleged public-participation defects are further constrained to whether the error was arbitrary and capricious and resulted in prejudicial harm.
  • Administrative Record: Under BACA, the administrative record for an “essential project” is limited to materials that were publicly disclosed during the CEQA process. The record consists only of notices, studies, and other documents that the lead agency was required to distribute to the public, make available at a public repository, or post on its website; and public comments submitted during the comment period (and a narrow category of late comments), along with the agency’s responses to those comments. Materials outside this universe are excluded from the record.
  • Remedies: If a court finds that an approval is not supported by substantial evidence, it must issue a writ of mandate identifying the specific legal deficiency and the particular part, phase, or activity affected. The remedy is limited to temporarily halting only the noncompliant portion of the project until the deficiency is corrected. Courts are expressly prohibited from rescinding project approvals, and unaffected portions of the project may proceed and are insulated from further CEQA challenge once compliance is achieved.
  • Subsequent Approvals: Once a project approval is either not challenged, upheld in court, or brought into compliance through a court-approved return to the writ, no further CEQA actions may be filed to challenge later phases, construction, or subsequent approvals of the project. In addition, minor project modifications that do not create new significant impacts or substantially worsen previously identified impacts are expressly insulated from further CEQA challenge.
  • Injunctive Relief: A court may grant injunctive relief only upon a showing of clear and convincing evidence of an unmitigable adverse impact on public safety, and any such relief is limited to a temporary injunction.

The Building an Affordable California Initiative is available online at: https://oag.ca.gov/system/files/initiatives/pdfs/25-0023A1%20%28%26quot%3BEssential%20Projects%26quot%3B%29.pdf

For additional information or questions, please contact Christina L. Berglund (cberglund@rmmenvirolaw.com) or Blaine R. Dyas (bdyas@rmmenvirolaw.com)

SECOND DISTRICT UPHOLDS CLASS 1 EXEMPTION FOR PROJECT TO EXPAND SINGLE-FAMILY HOME

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In Arcadians for Environmental Preservation v. City of Arcadia (2023) 88 Cal.App.5th 418, the Second District Court of Appeal upheld a finding by the City of Arcadia that a project to expand and add a second story to a single-family home was categorically exempt from CEQA. In doing so, the court concluded that petitioner failed to exhaust its administrative remedies regarding the scope of the exemption and failed to demonstrate that the city improperly relied on the exemption.

Background

Over a nearly two-year period beginning in June 2018, project applicant submitted, revised, and re-submitted an application to her homeowners’ association (HOA), seeking to expand the first floor of her single-family home and add a second floor. In April 2020, after the HOA’s architectural review board twice rejected her project, the applicant appealed the rejection to the city’s planning commission.

In May 2020, after a noticed hearing, the planning commission voted to conditionally approve the project, so long as various proposed changes were incorporated. The planning commission found that the project qualified for a Class 1 categorical exemption for modifications to existing structures.

The applicant’s neighbor appealed the planning commission’s approval to the city council. The city council upheld the planning commission’s decision.

The neighbor then formed the petitioner organization and filed a petition for writ of mandate challenging the city’s compliance with CEQA. Shortly thereafter, the city filed a Notice of Exemption for the project. The trial court denied the petition. Petitioner appealed.

Court of Appeal’s Decision

The court held that (1) petitioner failed to exhaust its administrative remedies on the issue of whether the project was within the scope of the Class 1 exemption, (2) the city did not abuse its discretion by impliedly determining that no exceptions to the categorical exemption applied, and (3) petitioner failed to demonstrate that the cumulative impacts exception precluded the city’s reliance on the Class 1 exemption.

Failure to Adequately Exhaust

Petitioner argued that the city erred in determining the Class 1 exemption applied and cited the neighbor’s comments during his administrative appeal as support that petitioner had adequately exhausted on this issue. The court disagreed, reasoning that the neighbor (or anyone else) failed to articulate why the Class 1 exemption was inapplicable. Instead, the court noted that the neighbor made only “general references to potential environmental impacts” that did not fairly apprise the city of petitioner’s specific objection that the exemption did not apply.

The court rejected petitioner’s argument that its member had impliedly objected to the city’s exemption finding by requesting an EIR. The court conceded that a request for an EIR suggests a belief that no exemption applies but explained that such a request nevertheless does not adequately notify the agency about the substance of the challenge.

The court acknowledged that CEQA’s exhaustion requirement may be excused if the agency provides no opportunity for public comment or fails to give notice; however, it concluded that petitioner’s failure to exhaust was not excused in this case. Although the city did not consistently identify the specific subdivision of the Class 1 exemption that it relied on, the court concluded that this discrepancy was immaterial.

Exceptions to the Exemption

The court next rejected petitioner’s argument that the city failed to proceed in a manner required by law by failing to expressly consider whether an exception precluded the application of the Class 1 exemption. The court explained that the city’s determination that the Class 1 exemption applied necessarily included an implied finding that no exception precluded its application. The court reasoned that, while the city could not ignore contrary record evidence when making its finding, the finding did not need to be express.

After noting that there was “some question” whether petitioner’s comments during the administrative appeal preserved an argument that the cumulative impacts exception precluded the application of the Class 1 exemption, the court concluded that, regardless, that the argument failed on its merits.

The court concluded that petitioner’s general reference to “cumulative environmental effects caused by multiple large-scale projects,” along with identification of various nearby projects, did not amount to evidence of actual impacts that would result from the project and other nearby projects. The court rejected petitioner’s evidence that the cumulative impacts exception applied as “pure speculation” that could not, without more, preclude application of the Class 1 exemption.

Louisa Rogers

FIRST DISTRICT HOLDS EIR FOR UC BERKELEY’S LONG RANGE DEVELOPMENT PLAN AND STUDENT HOUSING PROJECT INADEQUATE

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In Make UC a Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656, the First District Court of Appeal found the EIR for the UC Berkeley long range development plan (LRDP) and a student housing project inadequate. While the court rejected most of the petitioners’ claims, it held that the EIR failed to consider alternative locations for the housing project, and it did not analyze potential noise impacts caused by students in residential neighborhoods near campus.

Background

In 2021, UC Berkeley adopted the LRDP to guide the university’s development decisions through the 2036-2037 academic year. The LRDP estimated future enrollment levels for planning purposes, but did not establish any enrollment levels. In part, the LRDP provides a strategy to increase housing in response to both a decades-long housing crisis in the region and a projected future increase in the campus population.

Consistent with the LRDP, the UC Regents began planning two student housing projects. One of those projects is located at People’s Park, a historically significant landmark associated with social and political activism in Berkeley. People’s Park is now occasionally used as a venue for special events, but is predominantly used “by transient and unhoused people in multiple encampments” and “is afflicted with crime.”

The Regents certified a hybrid EIR including a program-level review of the approval and implementation of the LRDP as well as a project-level review of the two housing projects.

Petitioners Make UC a Good Neighbor and The People’s Park Historic District Advocacy Group filed a petition for writ of mandate alleging the EIR violated CEQA. The trial court denied the petition. Petitioners appealed.

Court of Appeal’s Decision

The court rejected petitioners’ arguments that (1) the EIR’s analysis of alternatives to the LRDP was insufficient, (2) the EIR improperly restricted the LRDP’s geographical scope to the campus, and (3) the EIR’s treatment of impacts related to population growth and displacement of existing residents was flawed. However, the court agreed with petitioners that the EIR’s failure to consider alternative locations for the People’s Park housing project was not adequately justified. Additionally, the court concluded that the EIR did not adequately consider potential noise impacts from student parties on nearby residential neighborhoods.

LRDP Alternatives

The court concluded that the Regents did not violate CEQA by omitting an alternative to the LRDP that would limit student enrollment. The court explained that, because the complicated process for determining enrollment levels is separate from the LRDP process, any alternative requiring a cap in future enrollment levels would change the nature and scope of the plan. Given the constrained purpose of the LRDP to “guide future development regardless of the actual amount of future enrollment,” the EIR did not need to include a capped enrollment alternative.

Scope of LRDP

The court also rejected petitioners’ argument that the Regents improperly segmented the LRDP by focusing only on the campus and neighboring properties and excluding more distant locations. While petitioners argued that the LRDP arbitrarily omitted more remote properties, the court reasoned that it was “perfectly rational” for the Regents to focus primarily on the campus and adjacent properties in the LRDP and develop separate plans for more distant locations.

Population Growth and Displacement

Rejecting a third argument by petitioners, the court concluded that the EIR sufficiently addressed impacts from population growth and displacement of existing residents. The EIR found that the LRDP would induce unplanned population growth, but concluded that this impact could be mitigated to a less-than-significant level by ensuring that the Regents provide local and regional planning entities with annual information about university-driven population growth. Despite petitioners’ assertion otherwise, the court declined to assume that these planning entities would fail to plan for the population growth projected in the LRDP.

Additionally, the court rejected petitioners’ argument that the EIR’s treatment of displacement impacts was inadequate. The court concluded that the EIR properly analyzed these impacts and that petitioners failed to produce sufficient evidence to demonstrate that displacement caused by the project would exacerbate homelessness and in turn lead to environmental impacts.

Site Alternatives to People’s Park

While the court found that the EIR sufficiently analyzed alternatives to the LRDP, it agreed with petitioners that the EIR failed to consider a reasonable range of alternative locations for the housing development at People’s Park. The EIR determined that the housing project would have a significant impact on historical resources, due to the demolition of People’s Park and construction of new housing that would be incompatible with other nearby historical resources. Nevertheless, the EIR did not contain an in-depth analysis of any alternative locations for the housing project.

The court concluded that the EIR’s reasons for declining to consider alternatives were insufficient. The EIR explained that an alternative location might reduce the amount of new housing or require the university to acquire new properties, and that many potential alternative sites were smaller than People’s Park or were close to historical resources. According to the court, these reasons were vague and unequivocal, and did not demonstrate that no feasible alternatives existed.

The Regents argued that developing another site would fail to meet one of the project’s primary objectives—to revitalize the People’s Park site—and the record demonstrated that this was one of the project’s main purposes. The court, however, noted that the cited objective referred generally to “a UC Berkeley property” and not to People’s Park, specifically. The court also determined that the Regent’s arguments for rejecting other locations, even if potentially valid, were not reflected in the EIR.  Similarly, the court concluded that the EIR did not support the Regents’ argument that all of the proposed housing sites would need to be developed to achieve the EIR’s objectives. Moreover, observing that these explanations differed from those in the EIR, the court concluded that the Regents “hid the ball” and failed to adequately inform the public about the project.

Noise impacts

Finally, the court held that the EIR was deficient because it did not analyze potential noise impacts from student parties. In doing so, it determined that substantial evidence in the record supported a fair argument that the LRDP and the housing projects might result in a significant noise impact.

The court acknowledged that “stereotypes, prejudice, and biased assumptions about people served by a CEQA project” cannot constitute substantial evidence for a CEQA claim; however, it rejected the Regents’ argument that concerns about noise impacts from student parties relied merely on improper stereotypes about “loud and unruly drunk college students.”

The court explained that the record revealed noise from student parties to be “a longstanding problem” in the residential neighborhoods near UC Berkeley’s campus. Among other things, the City of Berkeley had previously declared such parties to be a public nuisance and restricted high-density student housing in private homes, neighborhood groups pointed to hundreds of noise citations related to student parties, and the university itself had collaborated with various community groups to address complaints about noisy parties. Given the evidence demonstrating that student party noise was already a problem, the court concluded that there was a reasonable possibility that “adding thousands more students to these same residential neighborhoods would make the problem worse.”

Louisa Rogers

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