April 16, 2013, by
The generally accepted rule has been a public entity must comply with CEQA prior to adopting a resolution of necessity to condemn land needed for a public project. Last Friday, a California Court of Appeal decision reviewing the California Environmental Quality Act (“CEQA”), Public Resources Code section 21168.9(a), upheld a trial court’s writ decision not to set aside an adopted resolution of necessity in its entirety when it found non-compliance with CEQA and instead allowed the eminent domain action to proceed before CEQA review was completed.
In the decision Golden Gate Land Holdings, LLC v. East Bay Regional Park District (2013 Cal.App. LEXIS 283, April 12, 2013), the merits of the trial court’s ruling on CEQA project approval was not before the appellate court and its review of the District’s compliance with eminent domain law was not certified for publication. The trial court held that the District had not complied with CEQA and that further CEQA review was required, but it did not vacate the District’s adopted Resolution of Necessity in its entirety. Golden Gate’s limited argument on appeal was that the trial court erred in refusing to set aside the resolution of necessity because CEQA compliance after the approval of a resolution of necessity is unlawful.