Court Clarifies CEQA Rules Regarding Infeasibility and Deferral of Mitigation
City of San Diego v. Board of Trustees of the California State University, No. D057446 (Cal. Ct. App. 4th Dist., December 13, 2011.)
By Michael Hansen
In 2005, the Board of Trustees of the California State University ("CSU") certified an environmental impact report ("EIR") and approved a project for the expansion of San Diego State University ("SDSU") to increase student enrollment from 25,000 students to 35,000 students by 2024. The 2005 EIR certification was challenged and in light of a California Supreme Court opinion that was issued during the pendency of the litigation affecting issues involved in the case, the trial court entered judgment against CSU. In 2007, CSU revised its master plan for expansion of SDSU and certified a new EIR and approved the revised project. CSU found that there were no feasible mitigation measures to reduce the project's off-site traffic impacts to below a level of significance because it might not obtain its "fair-share" mitigation funding from the Legislature and Governor. CSU also adopted a statement of overriding considerations concluding that the project's benefits outweighed its unavoidable significant environmental effects. The court determined, following the California Supreme Court decision in City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341 ("Marina"), that the CSU finding of infeasibility of off-site mitigation measures and its statement of overriding consolidations were both invalid.
Court of Appeal Rules that Denial of a Landowner's Application to Develop Property Can Be a Compensable Regulatory Taking
By Michael Hansen and Keith Garner
The Fourth Appellate District recently held that a local agency's denial of an application to develop a 2.85 acre parcel in the middle of a developed residential area can constitute a compensable regulatory taking under the Penn Central Transp. Co. v. City of New York (1978) 438 U.S. 104 ("Penn Central") case. Continue Reading Questions & comments
Map Act 90-Day Statute of Limitations Applies to Ordinances Adopted Under Authority of the Act
City and County of San Francisco v. Superior Court, No. A132908 (Cal. Ct. App. 1st Dist., December 15, 2011.)
By Michael Hansen
Plaintiffs were owners of condominium units designated "Below Market Rate" ("BMR") under the BMR Condominium Conversion Program created by the City and County of San Francisco ("City") under the authority of the Subdivision Map Act ("SMA"). Plaintiffs filed a challenge against a City ordinance adopted as part of the BMR Program, claiming that the Ordinance, which amended existing ordinances governing the BMR Program and added new provisions, constituted a regulatory taking, was preempted by state law, and violated their civil rights under 42 U.S.C. section 1983.
The City claimed that the trial court erred in issuing a preliminary injunction because there was no likelihood that plaintiffs could prevail at trial. The City contended that plaintiffs' claims were all barred by the 90-day statute of limitations period provided by SMA section 66499.37 (actions challenging the decision of a legislative body "concerning a subdivision") and section 65009, subdivision (c)(1) (actions challenging either the adoption or amendment of a zoning ordinance or the validity of conditions attached to variances, conditional use permits, or other permits). The court agreed with the City because the claim was not filed within the 90 day timeframe provided for under section 66499.37. Continue Reading Questions & comments
CEQA Does Not Require Identification of Significant Effects of the Environment (Sea Level Rise) on a Project; Assertion of New Claims Barred in EIR Required to be Revised by Judgment in a Prior Case
Ballona Wetlands Land Trust v. City of Los Angeles and Ballona Ecosystem Education Project v. City of Los Angeles, No. B231965 (Cal. Ct. App. 2d Dist., November 9, 2011)
By Michael Hansen
The Second Appellate District recently held that CEQA does not require identification of significant effects of the environment on a project, only significant effects of a project on the environment. The court also held that plaintiffs are barred from alleging new CEQA inadequacies in challenge to an EIR that is being revised pursuant to a judgment in a prior case.
Statements of Intent to Condemn Do Not Give Rise to Inverse Condemnation Claim
Ashley Joffe v. City of Huntington Park, No. B222880 (Cal Ct. App. 2d Dist., November 11, 2011)
By Michael Hansen
The Second Appellate District recently held that public statements and other actions indicating an intent to condemn must clearly meet the criteria set out in the landmark California Supreme Court decision Klopping v. City of Whittier (1972) 8 Cal.3d 39 (Klopping) in order for inverse condemnation liability to arise. In 1972, the California Supreme Court, in Klopping, held that a valid claim for inverse condemnation could be based on governmental actions preceding an actual, or even a de facto, taking of property. The plaintiffs Ashley Joffe and Plycraft Industries owned a furniture manufacturing business at a location where the defendants City of Huntington Park and a developer expressed intent to acquire and develop a proposed retail project. Plaintiffs alleged that the City's announced intent to condemn made it impossible to enter into long-term furniture contracts and consequently forced Plycraft out of business at that location. The property was never acquired by the defendants, and the plaintiffs filed a claim for inverse condemnation under Klopping.
Plaintiffs claimed recovery for unreasonable delay because (1) the actions of the defendants, including erecting large signs announcing the project and stating that plaintiffs' property would be acquired either voluntarily or involuntarily, were sufficient to constitute an "announcement of intent to condemn," under Klopping; or (2) the City acted unreasonably; or (3) the actions of the City constituted equitable or promissory estoppel. The City successfully demurred to these allegations because they were not sufficient to satisfy the requirement of Klopping that there be an "announcement of intent to condemn." Plaintiffs appealed and the Second Appellate District affirmed.
Enforcement of California Low-Carbon Fuel Standard Blocked
California's effort to reduce the carbon footprint of producers and refiners of fuel has hit a snag. Shortly after the passage of the Global Warming Solutions Act (AB32), requiring reduction of greenhouse gases to 1990 levels by 2020, former California Governor Arnold Schwarzenegger signed an Executive Order setting a statewide goal of reducing "the carbon intensity of California's transportation fuels by at least 10 percent by 2020." Pursuant to this Executive Order, the California Air Resource Board (ARB) adopted the Low Carbon Fuel Standard (LCFS) in June 2007 as an early action measure under AB32. In April 2010, the regulation was formally adopted. On December 29, 2011, District Judge Lawrence O’Neill in the Eastern District of California issued a preliminary injunction blocking ARB from implementing LCFS. Continue Reading Questions & comments
Superior Court Strikes Down Numeric Effluent Limits in California's Construction General Permit
By Keith Garner and Alex Merritt
On December 2, 2011, the Sacramento Superior Court invalidated the numeric limits on turbidity and pH in California's Construction General Permit (CGP) because the limits were not supported by substantial evidence. The State Water Resources Control Board (State Board) has 60 days to decide whether to appeal the decision.
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State Cancellation of Redevelopment Agencies May Affect You!
On December 29, 2011, legislation to dissolve all redevelopment agencies became effective when the California Supreme Court released its opinion in California Redevelopment Association v. Matosantos, challenging the Legislature's adoption of AB 1X 26, providing for elimination of California redevelopment agencies (RDAs), and AB 1X 27, exempting from elimination any RDA that makes a voluntary contribution of its revenues. The Court has upheld the constitutionality of AB 1X 26 and struck down AB 1X 27. Continue Reading Questions & comments
Update On Redevelopment Law: The Supreme Court Makes it Official - Redevelopment Is Dead In California
By Michael Kiely and Phillip Tate
The California Supreme Court released its opinion today in California Redevelopment Association v. Matosantos, challenging the Legislature's adoption of AB 1X 26, providing for elimination of California redevelopment agencies (RDAs), and AB 1X 27, exempting from elimination any RDA that agrees to make its share of a $1.7 billion voluntary contribution of its revenues to other local government needs[1].
Continue Reading Questions & commentsSupreme Court Ruling on Redevelopment Fate Expected Tomorrow
The California Supreme Court has posted a Notice of Forthcoming Filing indicating that their opinion on CRA v. Matosantos will be posted on their website at 10:00 a.m. Thursday, December 29, 2011.
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