On May 25, 2022, the League of California Cities (“League”) and California State Association of Counties (“CSAC”) filed a 10-page letter with the California Supreme Court requesting it to depublish the First District Court of Appeal’s recent decision in Save the Hill Group v. City of Livermore, Case No. A161573 (my April 4, 2022 post on which can be found here).
The depublication request letter argues that the First District’s opinion improperly conflates CEQA rules governing an EIR’s “no project” alternative’s assumptions and analysis with those governing an agency’s findings that alternatives are infeasible, and also implicitly incorrectly concludes that an agency can’t reject the no project alternative for failure to meet project objectives. The League/CSAC letter, which can be found here, further argues that the opinion: will cause agencies to prematurely reject alternatives in the DEIR and improperly “pre-commit” to projects in violation of Save Tara; fails to apply the substantial evidence standard (to what the Court analyzed as an informational sufficiency challenge); and “ignores the realities of modern housing law” in suggesting the City could amend its residential zoning to accommodate open space preservation.
The League/CSAC request evinces a worry on the part of public agencies statewide that the Court of Appeal’s decision will make the already overly complex CEQA review process even more so and create “a potential new tree of CEQA case law” untethered to past precedents. (It also seems to reflect a welcome acknowledgment by these organizations representing cities and counties of the substantial legal constraints on agency discretion to down-zone and deny housing projects imposed under State housing production laws, such as the Housing Crisis Act and Housing Accountability Act, that are continuously being strengthened by the Legislature.)
Under the Rules of Court, the First District or any interested person may submit a response to the depublication request within 10 days, and the Supreme Court may thereafter decide to deny the request or, alternatively, depublish the opinion.
