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California Land Use & Development Law Report

California Land Use & Development Law Report offers insights into legal issues relating to development and use of land and federal, state and local permitting and approval processes. Subscribe 🡢

32nd Annual Land Use and Development Law Briefing — Materials Available

On January 19, 2022, attorneys from Perkins Coie presented the 32nd Annual Land Use and Development Law Briefing. Topics included:

- Developments in Land Use Law
- Housing Legislation Update
- Real Estate Due Diligence
- CEQA -- Cases, Legislation and Trends
- Regulatory Compliance, Investigations and

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2021 Land Use and Development Law Case Summaries

Below are summaries of the key California and Ninth Circuit land use and development law cases decided in 2021.

1. Planning and Zoning

CHEVRON v. COUNTY OF MONTEREY 70 Cal. App.

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Board of Supervisors Decision on CUP Invalid for Failure to Act Within Time Limits Set by County Code

The Second District Court of Appeal held that a Board of Supervisors decision on the appeal of a conditional use permit from the Planning Commission was untimely under the County Code and hence that the Planning Commission's decision was deemed affirmed.

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CEQA YEAR IN REVIEW 2021

A Summary of Published Appellate Opinions Under the California Environmental Quality Act

Introduction

The courts issued relatively few published CEQA decisions in 2021, with no California Supreme Court activity and no blockbuster court of appeal opinions. But two cases addressed topics of great current interest: wildfire and climate change impacts.

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Coastal Commission Must Complete Environmental Review Under Its Certified Regulatory Program Before Approving Permit

The court of appeal found that the California Coastal Commission erred by approving a coastal development permit for a residential development before environmental review for the project had been completed. Friends, Artists and Neighbors of Elkhorn Slough v. California Coastal Commission, 2021 WL 5905714 (No.

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After 27 Years, Litigation Over the Monterey Agreement Comes to an End

Over a quarter century of CEQA litigation over the validity of an agreement between the Department of Water Resources and State Water Project contractors finally came to an end with the court of appeal's decision in Central Delta Water Agency v. Department of Water Resources, 69 Cal. App.

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An Invalid Negative Declaration Can’t be Cured by Preparing a Limited EIR

A trial court could not order a remedy that required preparation of an environmental impact report limited to the potentially significant impacts that led to invalidation of the project's negative declaration -- once the trial court found substantial evidence supported a fair argument that the project may have one significant environmental impact, it had no option but to require preparation of a "

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Union Intervention in Case Properly Denied Where Inclusion Would Unduly Complicate Litigation

Courts may deny permissive intervention if there are already multiple parties in the case and the intervenor's interests will be adequately represented by other parties. South Coast Air Quality Management District v.

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State Water Board Registrations of Small Water Diversions Are Ministerial and Exempt from CEQA

The State Water Resources Control Board's registrations of small water diversions are ministerial projects and hence exempt from CEQA. As such, allegedly erroneous registrations cannot be challenged under CEQA.

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All Projects—Including Non-Occupancy Structures—Require Climate Action Plan Consistency Analysis to Benefit from Streamlined GHG Review under CEQA

The City of San Diego's approval of underground utility lines was incomplete because its Climate Action Plan checklist improperly allowed certain non-occupancy projects to avoid greenhouse gas emission (GHG) consistency analysis. To take advantage of streamlined GHG review, CEQA requires lead agencies analyze each project's consistency with the Climate Action Plan, regardless of occupancy.

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Failure to Timely Name and Serve Real Parties In Interest Does Not Warrant Dismissal Of An Entire CEQA Action if The Unnamed Parties Are Not Indispensable

In the first reported interpretation of a 2012 amendment to CEQA's statute of limitations provisions, the First District Court of Appeal addressed "whether an action against a lead agency must be dismissed--despite being filed within the limitations period--because of a failure to [timely name and serve] necessary third parties." Save Berkeley's Neighborhoods v.

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State Density Bonus Law Does Not Require Applicants to Demonstrate Economic Feasibility of Project When Requesting Incentives

A Court of Appeal held that the state's density bonus law (Gov't Code § 65915) does not require applicants to submit financial information to support requests for incentives or waivers and preempted a city ordinance that required such financial documentation to show that a project would not be "economically feasible" without the requested incentives. Schreiber v.

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A Revised and Recirculated Draft EIR That Entirely Replaces the Prior Draft EIR Is Not Required to Summarize Each Change Made to the Prior Draft

The court rejected a claim that the city violated CEQA Guidelines section 15088.5(g) by failing to summarize each of the revisions to a draft EIR made by a revised and recirculated draft EIR. Save Civita Because Sudberry Won't v. City of San Diego, 2021 WL 5937417 (No. D077591, 4th Dist. 1st Div., December.

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Informal Communications Failed to Meet Requirement to “Petition” City Officials for Appeal

A project challenger failed to exhaust administrative remedies because an email exchange and dinner meeting with city officials expressing general concerns about a recent permit approval did not satisfy the burden to "petition" a city official in order to appeal. Muskan Food & Fuel, Inc. v. City of Fresno, 69 Cal. App.

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Certification of Howard Terminal Project for Streamlined CEQA Review Under AB 734 Was Not Subject to AB 900 Deadlines

A California Court of Appeal held that special legislation providing fast-track judicial review to the Howard Terminal Project did not impose a deadline for the Governor to certify the project for streamlined environmental review under CEQA. Pacific Merchant Shipping Association v. Newsom (Oakland Athletics Investment Group, LLC), 67 Cal. App. 5th 711 (2021).

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