Abuse of Discretion Not Shown By Court’s Failure To “Show Its Arithmetic” in Significantly Reducing Claimed Attorney Fees in CEQA Litigation

In Save Our Uniquely Rural Community Environment v. County of San Bernardino, __  Cal.App.4th ___, 2015 WL 1259781 (4th Dist., Div. 2, 2015) (SOURCE) , the Fourth District Court of Appeal affirmed the trial court’s decision to significantly reduce plaintiff Save Our Rural Community Environment’s (SOURCE) claim for attorney fees[1] from $231,098 to $19,176.  The Fourth District found that the court’s failure to provide an explicit analysis of its decision was not enough to indicate an abuse of discretion by the trial court.  The court determined reversal of the attorney fees award would require that the record contain some indication that the trial court had considered improper factors, or some evidence that the award had been snatched from “thin air.” Continue Reading

CEQA “Common Sense” Exemption Upheld; Environmental Baseline for Project Following Improvements Pursuant to an Emergency Exemption Clarified

CREED-21 v. City of San Diego (2/18/2015, 4th Civil No. D064186)

The Fourth District Court of Appeal upheld a CEQA exemption related to the City of San Diego’s approval of a project comprising emergency storm drainage repair and site revegetation. The decision addressed various CEQA issues, including the environmental baseline determination, the “common sense” exemption, and the “unusual circumstances” exception. Continue Reading

Sacramento Kings Win Again; Second CEQA Challenge Rejected

Saltonstall v. City of Sacramento (2/18/2015, 3d Civil No. C077772). For prior post on a related case, see here.

The Court of Appeal for the Third Appellate District of California has ruled in favor of the City of Sacramento with regard to a series of challenges brought under CEQA to certification of an EIR and approval of a project to build a new arena in downtown Sacramento. The project involves a partnership between the City and Sacramento Basketball Holdings LLC to build a downtown arena at which the Sacramento Kings will play. To facilitate the timely opening of a new downtown arena, the Legislature modified several deadlines under CEQA by adding section 21168.6.6 to the Public Resources Code. Section 21168.6.6 also allows the City to exercise limited eminent domain powers to acquire property for the project before its environmental review, but does not substantively alter other CEQA requirements. The court held that the City had not prematurely committed itself to the project; the EIR was not deficient for failing to address the remodel of the existing Sleep Train arena; the traffic analysis was not deficient; the failure to study “crowd safety” did not implicate CEQA; and trial court orders may be reviewed only by writ petition, not direct appeal. Continue Reading

California Supreme Court Announces New Test for CEQA “Unusual Circumstances” Exception

Berkeley Hillside Preservation v. City of Berkeley (2015) ___ Cal.4th ___, Case No. S201116

This week the California Supreme Court issued its long-awaited decision in the Berkeley Hillside case, which considered whether the City of Berkeley properly exempted a large single-family home on a hillside lot from CEQA review. The court’s lengthy opinion announced a new two-part test for the “unusual circumstances exception” to CEQA exemptions and the applicable standards of review. In doing so, the court not only reversed the First District Court of Appeal, but also resolved several other conflicting interpretations of the unusual circumstances exception. The case is important for agencies and developers because the new test will apply generally to categorical exemptions, and as discussed below, it suggests a strategy for defending against potential challenges to exemptions. Continue Reading

Important Alert for Commercial Owners/Landlords and Brokers/Agents: Changes to California Dual Agency Disclosure Laws Effective January 1, 2015

Effective January 1, 2015, California law requires real estate brokers and agents to provide their clients and prospective clients with specific new disclosures, including (1) an initial disclosure form regarding the nature of agency relationships, which is typically provided at the time a listing agreement is entered into; and (2) an additional disclosure form to be presented in connection with a specific lease or purchase transaction.  Owners/landlords may elect at their option not to execute the initial disclosure form. Continue Reading

Undisclosed Change in Building Height Requires Supplemental EIR

Ventura Foothill Neighbors v. County of Ventura (12/15/14, 2d Civil No. B254120)

The Court of Appeal for the Second Appellate District of California has ruled that (i) a 20% increase in the actual height of a building over the stated height in the certified EIR required Ventura County to prepare a supplemental EIR rather than an addendum; and (ii) the County’s failure to prepare a supplemental EIR including the taller height of the building made the County susceptible to a valid claim beyond the standard 30-day statute of limitations on CEQA claims.   The court’s conclusion highlights the need for EIRs and notices of decision (“NODs”) to more completely describe a project, with all its details, to avoid potential claims.

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Corps Issues New Compensatory Mitigation Guidelines for California

The U.S. Army Corps of Engineers, South Pacific Division, has issued its “Final 2015 Regional Compensatory Mitigation and Monitoring Guidelines.”

The Guidelines will apply in the Corps’ San Francisco, Sacramento, Los Angeles, and Albuquerque districts, which together cover California, Nevada, Utah, New Mexico, and parts of Colorado and Texas.

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New Legislative Requirements For Electric Vehicle Charging Stations At California Commercial Properties

Effective January 1, 2015, commercial landlords are prohibited from entering into leases or other occupancy agreements that include any unreasonable restriction or prohibition on the installation or use of an electric vehicle charging station (“EV Station”) in a parking space associated with the commercial property.  AB 2265 was enacted in an effort to promote, encourage and remove obstacles to the use of EV Stations, and effective January 1, 2015, the bill became law with the addition of Section 1952.7 to the California Civil Code.  This new law invalidates any term in a commercial lease or lease amendment which adversely affects the installation of EV Stations.

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City of Los Angeles Outsources Defense of CEQA/Land Use Lawsuits To Private Law Firms – Developers To Foot The Bill

On December 16, the Los Angeles City Council unanimously authorized the City Attorney to establish a Land Use/CEQA Panel, which will consist of five municipal law firms, to defend the City in CEQA and land use lawsuits that challenge the entitlements for private development projects, and to require that the project applicant reimburse the City for its legal costs and fees.

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LA Mayor Proposes Mandatory Earthquake Retrofitting for Commercial and Residential Buildings

Capping a year-long partnership between the City of Los Angeles and Dr. Lucy Jones, a well-known seismologist with the United States Geological Survey, Mayor Eric Garcetti released  “Resilience by Design” last week, a plan that includes an ambitious set of proposed seismic regulations.  The plan proposes a series of ordinances to be reviewed by the City Council in the coming months, requiring, among other things, mandatory seismic retrofitting of soft-first-story buildings within five years and non-ductile concrete buildings within thirty years.  These buildings have been identified in the plan as the buildings most at risk of collapse or structural failure in a large earthquake.  In the past, the inability to identify funding for large scale retrofitting has scuppered any efforts address the danger.  Perhaps unsurprisingly, the proposal is short on details about assistance to building owners for the costs of retrofitting.  Below is a brief summary of what you need to know.

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