On February 15, 2023, the California Supreme Court denied the petitions for review and issued an order decertifying the Second District Court of Appeal’s controversial (and previously published) opinion in G.I. Industries v. City of Thousand Oaks (2022) 84 Cal.App.5th 814, rev. den. and depub’d. 2/15/23 (Supreme Ct. Case No. S277439). (My prior posts on this decision and its subsequent procedural history can be accessed by clicking on their following dates: 10/31/22; 12/5/22; and 1/30/23.)
The decision, while still binding on the parties to the case, is no longer citable as precedent and thus does not affect statewide law. This is welcome news to those CEQA practitioners who had substantial qualms about the decision creating new and burdensome procedural requirements in conflict with well-established CEQA law, as explained more fully in my prior posts and materials attached to them.
Notwithstanding this positive development, it may still be a prudent practice for public agencies considering a CEQA-exempt project – and particularly one that is likely to be opposed or controversial – to include in their agenda notices a statement that the project has been determined to be exempt and citing the particular exemption or exemptions that apply. This should not only serve to guard against any Brown Act claims (like those made in G.I. Industries) if the exemption is discussed in the public hearing on the project, but will help to bolster an exhaustion defense should project opponents challenge a project approval on CEQA grounds without having raised them at the hearing.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.