Real Estate, Land Use and Environmental Law Blog - Up-to-date information on Real Estate, Land Use and Environmental Law

San Joaquin Raptor Rescue Center v. County of Merced, No. F064930 (5th Dist., May 31, 2013)

By Eric DiIulio

In San Joaquin Raptor Rescue Center v. County of Merced, the California Court of Appeal for the Fifth District held that the Merced County Planning Commission violated the Brown Act by adopting a CEQA mitigated negative declaration without specifically noticing it on the Commission’s agenda. The agenda had indicated consideration of a subdivision application, but the court found consideration of the MND accompanying the application to be a separate action requiring separate notice under the Brown Act. However, the court rejected the plaintiffs’ CEQA notice violation claims because plaintiffs had failed to exhaust their administrative remedies.

Taxpayers for Accountable School Bond Spending v. San Diego Unified School District, No. D060999 (4th Dist. Div. 1, April 25, 2013) 

By Claudia Gutierrez 

In Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (2013) __ Cal.App.4th __ (Case No. D060999) the Court of Appeal for the 4th District held that the San Diego Unified School District (the “District”) must prepare an environmental impact report (“EIR”) on installation of new stadium field lighting and other improvements at Hoover High School to permit nighttime events because there was a fair argument that impacts on neighborhood parking could be significant. The court specifically declined to follow earlier case law to the contrary. The court also held that the District was prohibited from using proceeds of a school bond other than for the purposes specifically listed.

By Pamela Westhoff and Lydia Lake

Who must sign?
Does whether an entity is in “good standing” really matter?

Leases are often not given the same attention as other types of contracts with respect to issues of corporate authority and enforceability. Proof of authority is often an issue in the context of leases and related documents. What you need to know.

By Claudia Gutierrez

In Golden Gate Land Holdings, LLC v. East Bay Regional Park District, the California Court of Appeals considered whether an Environmental Impact Report (“EIR”) must be prepared where the California Environmental Quality Act (“CEQA”) and eminent domain law intersect. Golden Gate Land Holdings, LLC, the owner of the property in question, argued that the East Bay Regional Park District, tasked by the California Legislature to complete the Eastshore State Park (“Eastshore Park”), had to complete environmental review prior to taking any action, including adoption of the resolution of necessity for the condemnation of a portion of Golden Gate’s property. The court sided with the District holding that commencement of the eminent domain proceedings prior to completion of the EIR did not violate CEQA.

By Claudia Gutierrez

In MHC Limited Financing v. City of San Rafael, the Court of Appeals for the 9th Circuit considered, among other things, whether the City of San Rafael’s mobilehome rent control ordinance (the “Ordinance”) constituted either a regulatory taking under Penn Central Transportation Co. v. New York City or an impermissible “private” taking in violation of the Fifth Amendment, which prohibits the taking of private property for public use without just compensation. With respect to Penn Central, the court held that economic impact, investment-backed expectations, and the character of the Ordinance all led to the conclusion that the Ordinance did not constitute a taking. The court also rejected plaintiff’s “private taking” theory, novel in this context, in which MHC argued that the Ordinance did not qualify as a “public” use and therefore the taking was prohibited, regardless of compensation.

By Pamela Westhoff and Lydia Lake

What you need to know:

The long-awaited energy use disclosure requirements, first enacted as AB 1103 (Saldana) in 2007 (codified as California Public Resources Code, §25402.10), are finally effective. Commencing July 1, 2013, owners of commercial, non-residential buildings in excess of 50,000 square feet will be required to track and disclose detailed information regarding energy consumption at each building. The reporting requirements will be extended to buildings in excess of 10,000 square feet commencing on January 1, 2014; and to buildings in excess of 5,000 square feet on July 1, 2014.

By Jeffrey Rector 

Last week, the European Parliament rejected a proposal to reduce the quantity of greenhouse gas (GHG) emissions allowances in order to fix a supply-demand imbalance in the European Union Emissions Trading System (EU ETS). Some view this as the beginning of the end of the European Union’s ten-year carbon cap-and-trade experiment. A high profile failure of the EU ETS is likely to provide ammunition to critics California’s cap-and-trade program.

By Daniel Bane 

Alliance for the Protection of the Auburn Community Environment, et al. v. County of Placer, SCV0028200 (3rd Dist., February 18, 2013)

In Alliance for the Protection of the Auburn Community Environment v. County of Placer, the California Court of Appeal for the Third District considered plaintiff and appellant Alliance for the Protection of the Auburn Community Environment's ("Alliance") appeal from trial court's granting of real party in interest Bohemia Properties, LLC's ("Bohemia") demurrer, which was sustained without leave to amend, and the trial court's concurrent denial of Alliance's motion seeking relief on the grounds of mistake or excusable neglect under Code of Civil Procedure ("CCP") Section 473, subdivision (b) ("Section 473").

By Pamela Westhoff and Lydia Lake

What you need to know:

On July 1, 2013, pursuant to newly enacted California Civil Code Section 1938, owners of commercial real property must state on every lease form or rental agreement whether the property leased has undergone inspection by a Certified Access Specialist (commonly referred to as a “CASp”) and, if so, whether the property has or has not been determined to meet all applicable construction- related accessibility standards pursuant to California Civil Code Section 55.53.

If a commercial property has not been inspected by a CASp, the new statute does not require such an inspection; it merely requires disclosure of whether or not an inspection has been performed and the results of any such inspection. As discussed in more detail below, the intent appears to be to provide an incentive for commercial property owners to reduce their exposure to liability in ADA lawsuits by encouraging owners to obtain a CASp inspection.

Owners of property in San Francisco of 7,500 square feet or less (5,000 square feet or less after June 1, 2013), must also comply with Chapter 38 of the San Francisco Administrative Code. These requirements will be the subject of a separate posting shortly.

Ecological Rights Foundation v. Pacific Gas & Electric Co. (9th Cir., Filed April 3, 2013)

By Robert Uram, Keith Garner, and Alex Merritt 

Last week the Ninth Circuit held that utility poles are not “point sources” of stormwater discharge nor “associated with industrial activity,” and therefore do not require an NPDES permit to comply with the Clean Water Act.

Plaintiff environmental group brought a suit alleging that the defendant utility companies treated their utility poles with a wood preservative containing a biocide and other chemicals. Plaintiff further alleged that the utility poles discharge the wood preservative into the environment in violation of the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA). The Ninth Circuit rejected both claims in an unanimous decision.