I have written about the California Environmental Quality Act (“CEQA”) and its workings on a number of occasions in my blog. To be sure, requiring California government agencies to take into account the protection of the environment in their decision-making processes is a demonstrable benefit to society generally. As of late, however, the salutary purpose of this law has been perceived by experts and laymen alike as having been marred by overreach and the abuse of its provisions.
Observers have noted that a number of lawsuits are being brought under CEQA with ulterior motives outside of its intended purposes. Studies have been published that link the misuse of CEQA litigation to California’s housing crisis. Here in Silicon Valley, an affordable housing project championed by Habitat for Humanity (!) was the target of a dodgy CEQA action. All in all, the view that CEQA is being employed for improper reasons in many instances has gained purchase in a number of circles.
Recently, the California Supreme Court granted review of a ruling by the Fourth Appellate District that could provide the Court an opportunity to address the broader issue of the misapplication of the CEQA review process, in a decision involving Kafkaesque facts. The underlying circumstances of that case were succinctly summarized by the appellate court as follows:
“[The Bottinis] applied to the City of San Diego for a coastal development permit (CDP) to construct a single-family home on a vacant lot in La Jolla. City staff determined that the Bottinis’ proposed construction project is categorically exempt from environmental review under [CEQA], but the City Council…reversed that determination. In reaching its decision, the City Council found that full environmental review is necessary because the Bottinis had removed a 19th century cottage from the lot on which they planned to build their residence shortly before they applied for a CDP. The City itself had previously voted against designating that cottage as a historical resource, declared that the cottage was a public nuisance, and authorized the Bottinis to demolish the cottage. Nevertheless, the City Council—after the cottage’s demolition—declared the cottage ‘historic,’ concluded that the cottage’s demolition must be considered part of the Bottinis’ project for purposes of CEQA, and found that there was a reasonable possibility that CEQA’s ‘historical resources’ and ‘unusual circumstances’ exceptions applied to the Bottinis’ construction project, thus requiring full environmental review.” (Citations omitted.)
In other words, the City of San Diego required full CEQA environmental review for the Bottinis’ single family home project—notwithstanding the fact that such construction is categorically exempt under CEQA—on the ground that the demolition of the existing structure that was cleared to make way for the new house—which the City of San Diego had previously approved because that structure was not historic—triggered historic impact analysis.
In response, the Bottinis sued for administrative mandamus to compel the City Council to set aside its decision, and for damages against the City of San Diego for violations of the takings, due process and equal protection clauses of the California Constitution. The City of San Diego then moved for summary judgment on the Bottinis’ constitutional claims. The trial court ruled in favor of the Bottinis to set aside the City Council’s decision to require full environmental review of their project, and granted the City of San Diego’s motion for summary judgment on the Bottinis’ constitutional claims. The court of appeal affirmed the trial court in full.
Now that the California Supreme Court has granted review in this case, it will be of significance to see what the Court does in dealing with the types of CEQA abuses that this situation illuminates. The proper standards for the implementation of categorial exemptions under CEQA, which are at issue in this case, have been previously discussed in this blog. Beyond that basic issue, the question remains: What can be done to stem the apparent tide of CEQA abuse? Given the stakes, one can only hope for a swift resolution.
