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I'm gobsmacked. The City of L.A. just lost *another* CEQA infill exemption case in Court of Appeal, w/ court relying on infamous UC Berkeley "social noise == pollution" precedent. 1/9 appellatecases.courtinfo.ca.gov/search/case/ma

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Chris Elmendorf

@CSElmendorf

Aug 12

New CA Court of Appeal decision is going to make it harder for cities to issue CEQA infill exemptions. Fortunately, there's an easy fix--but will @GavinNewsom tell @samassefa (OPR) and @WadeCrowfoot (Nat Res. Agency) to do it? 1/17 twitter.com/matthewplan/st…

12:48 PM · Aug 15, 2023

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I think

's AB 1307 will fix the narrow issue of social noise, but the case also speaks to a larger problem that

@samassefa

and his team at OPR ought to address. leginfo.legislature.ca.gov/faces/billNavC /2

The ostensible "environmental" problem w/ the housing project in this case is that the original design had a roof deck that city zoning administrator said was "atypical" and might “overwhelm” neighbors with “noise and music.” /3

Responding to the ZA, the developer submitted a revised project design that "moved rooftop amenities away from the perimeter." This "fully addressed" the ZA's concerns about social noise. End of story, right? Nope. /4

The city's issuance of the CEQA infill exemption was overturned by the court because, in the court's view, the developer's decision to *alter* the roofdeck design in response to ZA's concern was "mitigation," and you can't "mitigate into an exemption." /5

This is a correct statement of the law. It's also crazy. It makes an infill project's qualification for the infill exemption turn on an entirely arbitrary question of timing. /6

If the *original* design has roofdeck pulled back from perimeter, project is exempt. But if roofdeck was pulled back later, in response to city's suggestion that original design might be noisy, project is not exempt. Folks, it's the same building either way! /7

The "no mitigation into exemption" rule is not commanded by CEQA's text or legislative history. It's a byproduct of the CEQA Guidelines. OPR & the Nat. Resources Agency can and should change the Guidelines -- at the very least for dense infill housing on good sites. /8

This is not a new issue. The leading precedent is from 1997 (see screenshots in last tweet). OPR's failure to deal with it for 25+ years is inexcusable. /end

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Christopher England

@C_W_England

In the late 90s, there was a Berkeley Co-op that was shut down after a lawsuit claimed that noise from the co-op had lowered property values throughout the city. Any idea whether that case contributed to the noise = pollution precedent?

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Chris Elmendorf

@CSElmendorf

I don't think so. "Social noise" became a CEQA issue only with the "Make UC A Good Neighbor" decision last winter.

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Matt Brown

@maattttbrown

Hi Chris, do you know if this is the first ruling of its kind to rely on the Berkeley precedent?

First I've heard of.

That’s impossible, Sierra Club board members like

@BradB_Outdoors

*swore* that CEQA abuse was fake

twitter.com/BradB_Outdoors

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Randy Shaw

@beyondchron

Now even more vital for the CA S.Ct to overturn that terrible Berkeley decision.

Abolish CEQA. Entirely.

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C. Montgomery Burns

@Burns_Mister

You should not be gobsnacked by this. Until CEQA is massively reformed (or ideally eliminated and totally redone), it will continue to wreak havoc. All the other pro-housing laws are progress, but the final boss remains undefeated.

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