Bright Line Rule: Collateral Estoppel Precludes Attacks on Quasi-Judicial Permit Decisions (But Stay Tuned: Rehearing Granted on the Court’s Own Motion)

Simply stated: “[a] collateral attack is not a substitute for an appeal” reasoned the Second Appellate District Court in Bowman v. California Coastal Commission (2nd Dist., Div. 6, 03/18/2014, B243015) ___Cal.App.2nd___, 2014).  This is a case where the Coastal Commission and environmental groups found common ground challenging a coastal development permit issued by the County of San Luis Obispo.  The case reiterates the importance of exhausting remedies during – not after – permit approval proceedings.  However, the rationale for the decision—collateral estoppel—because of the issuance of a prior coastal development permit at the same location for a similar project was unusual.  Perhaps too unusual, as the court on April 15, 2014 granted a rehearing on its own motion and indicated it contemplated further briefing.

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D.C.’s Less Charitable Approach to Property Tax Exemptions for Non-Profits

Under District of Columbia law, organizations that own buildings in D.C. used for purposes of public charity principally in the District are entitled to property tax exemptions.  (D.C. Code § 47‑1002(8)).  However, in light of recent actions by the District of Columbia Office of Tax and Revenue (OTR), non-profit organizations currently benefiting from the exemption should periodically evaluate how their buildings are being used to ensure that they continue to qualify for the exemption.

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CEQA Requires Separate Evaluation Of Mitigation Measures And Alternatives Even Where Mitigation Measures Are Incorporated Into Project Design

In Trisha Lee Lotus et al. v Department of Transportation et al. (1st Dist., Div. 4, 1/30/14 A137315) ___ Cal.App.___ ____, 2014, the court of appeal upheld a claim by the appellants that Caltrans failed to comply with CEQA because its EIR did not consider potential mitigation measures aimed at lessening the impact of the underlying highway construction project on old growth redwoods.  The court held that failing to separately identify and analyze the significance of impacts to root zones of old growth redwood trees before proposing mitigation measures for such impacts subverted the purpose of CEQA by omitting material necessary to informed decision-making and public participation.

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Changes To California Title 24 Energy Use Requirements Effective July 1, 2014

What You Need to Know:

On July 1, 2014, 2013 CALGreen, Part 11, Title 24, of the California Code of Regulations will go into effect. As a result, certain nonresidential additions and alterations will trigger compliance with more stringent energy-saving measures for plumbing, electrical, lighting and heating, ventilation and air conditioning systems. It is expected that the implementation of these updated Title 24 regulations will result in increased compliance costs in the completion of tenant improvements in commercial buildings. The implications for sellers, buyers, owners and tenants of commercial real estate include the need to update lease forms to take into account the practical impact of these regulations on each transaction and each material work of construction.

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Contaminated but Remediated Soil and Cortese Listing Does Not Compel Preparation of EIR

As 2013 came to a close, the California court of appeal in Parker Shattuck Neighbors v. Berkeley City Council (1st Dist., Div. 4, 12/30/13, A136873) ___Cal.App.1st___, 2013, upheld the City of Berkeley’s decision not to require an EIR in connection with a mixed use development project for two reasons: (1) appellants Parker Shattuck failed to identify substantial evidence to create a fair argument that the disturbance of contaminated soil would have a significant effect on the environment; and (2) the site’s inclusion on the Cortese list did not automatically trigger the preparation on an EIR.

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New California Statutes Potentially Increase Owners’ and Developers’ Exposure Under the Prevailing Wage Law

California has enacted several statutes, effective January 1, 2014, which will likely increase the exposure of contractors and subcontractors, and the developers and owners for whom they work, to claims for prevailing wage violations on public works projects.  Developers and owners would be well advised to review their construction contracts to ensure that the new requirements and risks outlined below are addressed in the construction contract, and the risks allocated appropriately.

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No Private Attorney General Fees for Homeowner

In Donald A. Norberg v. California Coastal Commission (4th Dist., Div. 3, 10/25/13, G047522) ___Cal.App.4th___, 2013, the court of appeal reversed the trial court’s award of private attorney general fees because the homeowner’s successful challenge of certain conditions imposed by the California Coastal Commission with respect to proposed improvements to his home did not confer a public benefit warranting an award of private attorney general fees. Norberg’s successful challenge benefited Norberg and no one else; and the possibility that his successful lawsuit might convey a cautionary message to the Commission about its conduct, or that it might cause the Commission to change its practices in the future, was insufficient to satisfy the significant public benefit requirement.

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New “Potentially Feasible” Alternative Does Not Trigger Draft EIR Recirculation Unless Considered “Significant New Information”; No Findings Needed to Reject Alternative As Infeasible

In South County Citizens for Smart Growth v. County of Nevada (3d Dist., 10/8/13 C067764) ____Cal.App.4th _____, 2013, the court of appeal rejected a claim that Nevada County violated CEQA by failing to recirculate an EIR when a project was modified after circulation of the draft EIR and a similar but competing alternative proposed by staff was not adopted.  The court held that recirculation was not required because the plaintiff had failed to show there was no substantial evidence that the staff alternative was not significant new information for, among other reasons, infeasibility.  The court also held that the County did not have to make findings setting forth the reasons the staff alternative was not feasible.

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Substantial Evidence Test Applies to Decision Not to Require Additional EIR

In Latinos Unidos de Napa v. City of Napa (1st Dist., Div. 1, 10/10/13, A134959), ___ Cal.App.4th ___, 2013, the court of appeal found no abuse of discretion in the City of Napa’s approval of revisions to the housing element of its general plan, and related general plan and zoning amendments, despite plaintiff’s argument that an environmental impact report was required.  The court determined that substantial evidence supported the City’s decision not to proceed with any additional environmental review as the plaintiff did not satisfactorily explain how the project’s impacts were so different from, or more severe than, the impacts identified in an earlier EIR so as to require further review.

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Supreme Court Grants Limited Review of GHG Emissions Regulations

On October 15, 2013, the United States Supreme Court granted certiorari to review six of the nine submitted petitions stemming from an appellate court ruling upholding Environmental Protection Agency (“EPA”) greenhouse gas (“GHG”) controls at utilities, factories and other facilities around the country.  Specifically, the challenged appellate ruling from the Court of Appeals for the District of Columbia Circuit unanimously upheld EPA’s GHG emission endangerment findings, rebuffed challenges to the EPA’s tailpipe rule for automobile emissions and its applicability to stationary sources, and determined the EPA was “unambiguously correct” in using existing federal law to address global warming.  However, the Supreme Court’s review will be more limited than some petitioners sought and should not jeopardize the Obama administration’s larger climate-change agenda.

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