On May 25, 2022, the League of Cities of California (“League”) and the California State Counties Association (“CSCA”) filed a 10-page letter with the California Supreme Court asking it to unpublish the recent decision of the First District Court of Appeals. in Save the Hill Group v. Town of Livermorecase No. A161573 (my post of April 4, 2022 on which one can find here).
The letter requesting publication argues that the First District’s opinion incorrectly confuses CEQA’s rules governing assumptions and analysis of a “no-draft” alternative to an EIR with those governing agency findings. that the alternatives are impractical, and also implicitly wrongly concludes that an agency cannot reject the project’s non-alternative if the project’s objectives are not achieved. The Ligue/CSAC letter, which is located herefurther argues that the notice will: cause agencies to prematurely reject alternatives in the DEIR and inappropriately “pre-commit” to projects in violation of Save Tara; fails to meet the substantial standard of proof (which the Court analyzed as a challenge of sufficiency of information); and “ignores the realities of modern housing law” by suggesting that the city could change its residential zoning to accommodate the preservation of open space.
The League/CSAC request shows concern from public agencies across the state that the Court of Appeals decision will further complicate the already overly complex CEQA review process and create “a new potential tree of CEQA case law” unrelated to precedents. (It also seems to reflect a welcome acknowledgment by those organizations representing cities and counties of the substantial legal constraints on the agency’s discretion to reduce area and deny housing projects imposed under state laws on housing production, such as the Housing Crisis Act and the Housing Responsibility Act, which are continually being enforced by Parliament.)
Under the Court’s rules, the First District or any interested person can submit a response to the depublication request within 10 days, and the Supreme Court can then decide to dismiss the request or, failing that, to unpublish the notice. .