Real Estate & Property Law

When Considering The Environmental Impacts of Tara, Tomorrow is Not Another Day

By Robert Thomas (inversecondemnation.com)

I don't pretend to be an expert on the California Environmental Quality Act -- 1700-page treatises are devoted to CEQA's nuances -- but I know enough to realize that the California Supreme Court's decision in Save Tara v. City of West Hollywood, No. S151402 (Oct. 30, 3008) is an important one. The court framed the issue:

Under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.),1 a public agency must prepare an environmental impact report (EIR) on any project the agency proposes to ?carry out or approve? if that project may have significant environmental effects (§§ 21100, subd. (a), 21151, subd. (a)). We address in this case the question whether and under what circumstances an agency?s agreement allowing private development, conditioned on future compliance with CEQA, constitutes approval of the project within the meaning of sections 21100 and 21151. We conclude that under some circumstances such an agreement does amount to approval and must be preceded by preparation of an EIR. Under the circumstances of this case, we further conclude the City of West Hollywood?s conditional agreement to sell land for private development, coupled with financial support, public statements, and other actions by its officials committing the city to the development, was, for CEQA purposes, an approval of the project that was required under sections 21100 and 21151 to have been preceded by preparation of an EIR.

Slip op. at 1-2 (emphasis added). The court held an agency can't conduct environmental review after the project has been approved. That may seem like an obvious conclusion, but wade through the facts of the case first to see the other side of the coin. Especially interesting is the court's discussion starting on page 16 of the slip opinion. The holding:

A CEQA compliance condition can be a legitimate ingredient in a preliminary public-private agreement for exploration of a proposed project, but if the agreement, viewed in light of all the surrounding circumstances, commits the public agency as a practical matter to the project, the simple insertion of a CEQA compliance condition will not save the agreement from being considered an approval requiring prior environmental review.

Slip op. at 17.

Full post as published by inversecondemnation on October 30, 2008 (boomark / email).