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").Continue Reading Questions & comments
By James Rusk
A letter of approval finding a project consistent with a City’s Master Development Plan triggers the running of the 90-day statute of limitations under Government Code subsection 65009(c)(1)(E), the Third District Court of Appeal has held. Stockton Citizens for Sensible Planning v. City of Stockton involved the approval of a Wal-Mart store by the City of Stockton’s Community Development Department Director. Plaintiffs argued that the Director’s approval did not fall within the types of actions covered by section 65009 because it did not involve a “variance or permit” and was not made by a legislative body. The Court of Appeal disagreed, holding that section 65009’s short statute of limitations extends to land use approvals issued by zoning administrators and zoning boards exercising delegated authority.Continue Reading Questions & comments
City May Adopt Housing Element Revisions Inconsistent With General Plan If City Also Adopts Timeline To Correct Inconsistencies
Recently, the Fourth District Court of Appeal in Friends of Aviara v. City of Carlsbad affirmed the trial court’s judgment directing the City of Carlsbad to adopt a timeline for proposed changes to its general plan that would correct inconsistencies created by the City’s revision of its housing element. The appellate court interpreted Government Code section 65583 to create an exception to the requirement that general plans be facially consistent, as long as the municipality identifies a program with a timeline for resolving any inconsistencies arising from its adoption or revision of a housing element.Continue Reading Questions & comments
By James Pugh
The partially published opinion in Coalition for Clean Air v. City of Visalia brightened the line regarding when a California Environmental Quality Act Notice of Exemption (NOE) is valid. In a nutshell, the Fifth District Court of Appeal concluded that an NOE filed before the final approval of a proposed project is invalid and does not trigger the 35-day statute of limitations set forth in CEQA. This is not new law. However, it confirms the principle set forth in the recent California Supreme Court’s Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481 decision, which is that a petitioner has 35 days to challenge an NOE that is valid on its face.Continue Reading Questions & comments
By James Pugh
The recent Voices for Rural Living v. El Dorado Irrigation District case from the California Court of Appeal’s Third District applied the “unusual circumstances” exception to overturn a categorical exemption used to approve a water supply memorandum of understanding (MOU) for an existing Native American casino. As is typically the case, the court’s application of the “unusual circumstances” exception was highly fact-specific. This case demonstrates yet another way that potential plaintiffs may use the always amorphous “unusual circumstances” exception to attack a categorical exemption. The case also touches on the proper standard of review and annexation issues.Continue Reading Questions & comments
Appeals Court Reaffirms That Non-Prejudicial Planning And Zoning Code And CEQA Errors Cannot Serve As Basis For Overturning City Approval
By Phillip Tate
On July 31, 2012, the California Court of Appeal for the Fourth District held that the trial court erred in invalidating the City of Rialto’s (the “City”) approval of a 230,000 square foot commercial retail center to be anchored by a 24-hour Wal-Mart “Supercenter,” despite numerous procedural errors in the approval process because the plaintiff made no attempt to show, and the trial court did not find, that those errors resulted in prejudice or substantial injury, or that a different result was probable absent the errors.Continue Reading Questions & comments
United States of America v. 32.42 Acres of Land, et al., Case No. 10-56568 (9th Cir. 2012).
By Michael Wilmar and Nady Nikonova
The United States condemned tide and submerged lands leased by the Port of San Diego to the U.S. Navy. The Port held the lands under a trust grant from the State of California, and therefore defending the state’s sovereign interest in the lands was the responsibility of the California State Lands Commission (“Commission”). The complaint in the eminent domain action explicitly listed “any tidelands trust rights of the State of California” as part of the estate to be taken. The Commission did not dispute the federal government’s power to condemn the land. The issue was whether the state’s public trust rights are extinguishable by the power of eminent domain or whether they will “re-emerge” if the United States conveys the property to a private party. The Ninth Circuit unanimously upheld the district court’s decision, holding that neither the equal-footing doctrine nor the public trust doctrine prevents the federal government from fully extinguishing California’s public trust interest in the land through eminent domain.Continue Reading Questions & comments
City of Hayward et al. v. Board of Trustees of the California State University, A131412, A132424 (Cal. Ct. App., May 30, 2012) (certified for publication June 28, 2012).
By Deborah Rosenthal and Nady Nikonova
The Court of Appeal held that potential adverse impacts on required public services are not environmental impacts under CEQA requiring mitigation by the project proponent. This is contrary to the practice in many municipalities, which have treated the potential deterioration of public services based on applicable performance standards in the general plan or elsewhere (e.g., standards for fire, police, libraries and emergency services) as a significant impact requiring mitigation. While similar requirements may be defensible under a city's police power authority, this case holds they cannot be imposed under CEQA, at least insofar as the lead agency is otherwise required to provide such services.Continue Reading Questions & comments
Tomlinson v. County of Alameda et al., S188161 (Supreme Court, June 14, 2012)
The California Supreme Court recently reinforced the CEQA requirement that a party must exhaust administrative remedies even where the public agency finds a project exempt from CEQA, if the agency (a) gave notice of the grounds for its exemption determination; and (b) held a public hearing on the project at which the public had the opportunity to object to the exemption determination, even though CEQA does not require the filing of a notice of determination for exemption determinations. This decision reversed the appellate court, and it represents a departure from the majority of prior appellate and superior court decisions on this issue.Continue Reading Questions & comments
California Supreme Court Grants Hearing in Berkeley Hillside Preservation v. City of Berkeley
Vacated opinion at: http://www.courtinfo.ca.gov/opinions/documents/A131254.PDF; (modified on rehearing, no change in judgment) http://www.courtinfo.ca.gov/opinions/documents/A131254M.PDF
According to the Court, the case presents the following issue: Did the City of Berkeley properly conclude that a proposed project was exempt from the California Environmental Quality Act (Pub. Resources Code §§ 21000 et seq.) under the categorical exemptions set forth in California Code of Regulations, title 14, sections 15303, subdivision (a), and 15332, and that the "Significant Effects Exception" set forth in section 15300.2, subdivision (c), of the regulations did not operate to remove the project from the scope of those categorical exemptions?Questions & comments
Use of Projected Future Conditions Appropriate Baseline for Analyzing Impacts of Long-Term Infrastructure Projects
Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, et al., B232655 (2nd Dist. Div. 8, April 17, 2012)
By Daniel Bane
In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, et al. (“Neighbors for Smart Rail”), the California Court of Appeal for the Second District considered plaintiff and appellant Neighbors for Smart Rail’s (“Petitioner”) claim that defendants and respondents Exposition Metro Line Construction Authority, et al. (“Expo Authority”) abused their discretion in certifying the final environmental impact report (“EIR”) for the second phase of the construction of a light rail line along the Exposition Corridor connecting downtown Los Angeles with Santa Monica (the “Project”) because – in addition to other perceived deficiencies - the Expo Authority used an improper baseline for analyzing the impacts of the Project on traffic, air quality and greenhouse gas emissions. However, Petitioner’s claims were wholly rejected. Specifically, the Court of Appeal held that an agency’s use of a projected future baseline, when supported by substantial evidence, is an appropriate means to analyze the traffic and air quality effects of a long-term infrastructure project. In so holding, the California Court of Appeal for the Second District vehemently rejected the recent holdings of their colleagues in the Fifth and Sixth Districts in Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 90 (“Madera”) and Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, 1382-1383 (“Sunnyvale”) to the extent they eliminated a lead agency’s discretion under any circumstances to adopt a baseline that uses projected future conditions.Continue Reading Questions & comments
California Supreme Court Denies Review of Case Holding that CEQA Does Not Require Analysis of Effects on a Project Caused by the Environment
The California Supreme Court unanimously declined to hear a challenge to the revised environmental impact report for the Playa Vista development in Los Angeles in Ballona Wetlands Land Trust v. City of Los Angeles, resulting in a published decision in the Second District Court of Appeal holding that CEQA does not require analysis of the effects on a project caused by the environment. Some commentators have declared that because the Supreme Court declined to hear the case, the provision of the CEQA Guidelines at issue in the case (Section 15126.2(a)) is not enforceable until there is a legislative fix. A more cautious approach would be to treat the provision as enforceable.Continue Reading Questions & comments
River Segment Must Be Navigable In Fact For Commercial Purposes At Statehood For State To Obtain Title To Riverbed Under The Equal Footing Doctrine
PPL Montana, LLC v. Montana, 565 U.S. ____ (2012) (decided Feb. 22, 2012)
Two weeks ago, the United States Supreme Court issued its decision in PPL Montana v. Montana. The Court held that the Supreme Court of Montana had incorrectly determined that certain segments of the Upper Missouri, Madison, and Clark Fork Rivers were “navigable” at the time of statehood. The Court therefore set aside the Montana court’s determination that title to the beds of those rivers passed to the state upon statehood under the equal footing doctrine and remanded the case to the Montana Supreme Court for further proceedings consistent with the Court’s opinion.Continue Reading Questions & comments
General Development Co., L.P. v. City of Santa Maria, 2d Civil No. B228631 (Super. Ct. No. 1320579) (Cal. Ct. App. 2nd Dist., January 25, 2012)
An action challenging a legislative body’s decision to deny a zone change is subject to a 90-day limitation period set forth in section 65009(c) of the California Planning and Zoning Law (Cal. Gov. Code §§ 65000 et seq.). In June, 2009, General Development Co., L.P., filed for a zone change on property in the City of Santa Maria (the City). On February 16, 2010, the City Council denied the application. The developer challenged the City Council’s action 97 days after the City Council’s denial. The trial court ruled that the developer’s challenge was time-barred by section 65009(c)(1)(B) of the Government Code, which requires an action or proceeding “to attack, review, set aside, void, or annul [a] decision . . . to adopt or amend a zoning ordinance” to be filed and served within 90 days of such decision. The Court of Appeal agreed.Continue Reading Questions & comments
Tiered EIR Must Be Prepared Where Program EIR Provides Insufficient Guidance on Discretionary Choices
Center for Sierra Nevada Conservation et al. v. County of El Dorado, C064875 (Super. Ct. No. PC20080336) (Cal. Ct. App. 3rd Dist., January 20, 2012)
Plaintiffs and Appellants, led by the Center for Sierra Nevada Conservation (Sierra Nevada), challenged the County of El Dorado’s adoption of an oak woodland management plan and mitigation fee program (the Woodland Plan) without an environmental impact report. The County had completed a program environmental impact report in 2004 in connection with its general plan to deal with land use issues in the face of a growing population. The Woodland Plan, according to the County, was within the scope of the General Plan EIR, which adequately addressed the environmental impacts of the Woodland Plan. Consequently, asserted the County, the General Plan EIR obviated the need for a separate, or “tiered,” EIR before adoption of the Woodland Plan. The Court of the Appeal disagreed and held that the California Environmental Quality Act required the County to prepare a tiered EIR before it adopted the Woodland Plan. The court agreed that the General Plan EIR anticipated the development of the Woodland Plan. However, the General Plan EIR did not provide the County with guidance in making the discretionary choices that served as the basis for the Woodland Plan or adequately address the environmental impacts of the Woodland Plan.Continue Reading Questions & comments
The Flanders Foundation v. City of Carmel-by-the-Sea et al., No. H035818 (Cal. Ct. App. 6th Dist., January 4, 2012)
By Michael Gibson
A lead agency must consider and respond to all comments that raise significant environmental issues prior to certifying a final environmental impact report (FEIR) even if the required mitigation measures might have rendered the comment moot or modifying the project in response to the comments might have made the project infeasible. The City of Carmel-by-the-Sea (the City) wanted to sell the Flanders Mansion (listed on the National Register of Historic Places as an example of noted architect, Henry Higby Gutterson) which was surrounded on all sides by a City-owned park. The opponent in the City's effort to sell the Flanders Mansion was the Flanders Foundation (the Foundation) which raised several challenges to the FEIR but the two primarily taken up on appeal were that the FEIR did not adequately: (1) consider the potential environmental impacts associated with the application of the Surplus Land Act (Gov. Code § 54220, et seq.) and (2) the FEIR did not sufficiently respond to a comment that proposed selling a smaller piece of land than initially proposed by the City in order to reduce the loss of potential public parkland. The Foundation was successful on its second argument but not the first.
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.
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. Continue Reading Questions & comments
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.
Court Upholds Medical Campus Expansion, Provides Guidance on Using Future Traffic Projections to Analyze Traffic Impacts
Pfeiffer v. City of Sunnyvale, No. H036310 (Cal. Ct. App. 6th Dist; October 28, 2011)
By Maria Pracher and Alex Merritt
The 6th District Court of Appeal recently denied a challenge to the proposed expansion of a medical complex in the City of Sunnyvale. The decision reaffirms the standard for evaluating general plan consistency and, in the wake of Sunnyvale West Neighborhood Assn v. City of Sunnyvale City Council, 190 Cal.App.4th 1351 (2010), reaffirms the use of future baselines in analyzing traffic impacts.
By Alex Merritt and Michael Wilmar
Last week the 5th District Court of Appeal clarified that certain requirements of the Housing Accountability Act, Government Code Section 65589.5, are triggered by all housing developments, not just those that include affordable housing.
At issue in the case was Section 65589.5(j), which limits a local agency's ability to disapprove a proposed "housing development project" that complies with applicable general plan, zoning, and design review standards. To disapprove such a project, the local agency must first make written findings that the project would have a specific, adverse impact upon public health or safety, and that the impact could not be mitigated or avoided except by disapproving the project. Continue Reading Questions & comments
Promenade at Playa Vista Homeowners Association v. Western Pacific Housing, No. B225086 (2nd Dist. November 8, 2011)
By Alex Merritt and Michael Wilmar
This month the Second District Court of Appeal concluded that the developer of a condominium complex lacked standing to enforce the declaration of covenants, conditions, and restrictions (CC&R's) after it had sold all the units in the complex.
Western Pacific Housing and Playa Capital Company (the "Developers") constructed and sold a 90-unit condominium complex in Playa Vista, California. The homeowners association ("HOA") for the complex later filed suit against the Developers, alleging construction defects. The Developers sought to enforce a binding arbitration provision in the CC&R's.
The Second District Court of Appeal upheld the trial court's rejection of a motion to compel arbitration. It reasoned that the Developers could have enforced an arbitration provision in a contract. However, CC&R's are not contracts, but rather equitable servitudes, which may only be enforced by a property owner or an HOA.
Court Clarifies Mitigation Requirements for Impacts to Historical Resources, Reaffirms Use of Existing Conditions as Analytical Baseline
By James Rusk
The Court of Appeal for the Fifth Appellate District of California held this month that the Environmental Impact Report for the Tesoro Viejo mixed use development project in southeastern Madera County failed to comply with the California Environmental Quality Act. The court's opinion articulates a new standard for analysis and mitigation of impacts to archeological sites that are historical resources. It also adopts the Sixth Appellate District's recent holding that agencies do not have discretion to use predicted future conditions as the baseline for analysis of project impacts. Finally, the opinion reiterates that an EIR must contain a full disclosure of uncertainties affecting a project's water supply.
Arcadia Development Co. v. City of Morgan Hill et al., Case No. H035519 (CA Dist. 6 Ct. App., Aug. 5, 2011)
By Alexis Pelosi
Thirty years after Arcadia annexed almost 80 acres into the City of Morgan Hill urban service area, the Sixth District Court of Appeal upheld the City’s right to restrict development on 69 of those acres, finding, among other items, that the City’s goal of discouraging non-contiguous development and urban sprawl was a legitimate exercise of its police powers. In, the court held an ordinance restricting the density of development on lands in the City’s service area, but outside its core, did not give rise to spot zoning or violate Arcadia's right to equal protection of the law.
Clover Valley Foundation et al. v. City of Rocklin et al., C061808, 2011 WL 2671250 (Cal. Ct. App. July 8, 2011)
By James Pugh, Alexis Pelosi and Kira Teshima
In this case, the Third District Court of Appeal rejected claims raised by Clover Valley Foundation, the Sierra Club and the Town of Loomis that the City abused its discretion in certifying an environmental impact report on a residential project because the EIR failed to adequately analyze the project's impact on cultural, biological and visual resources and failed to adequately consider the project's growth-inducing impacts and water supply. The court also rejected opponents’ claims regarding the project's consistency with the City's General Plan, deciding in favor of the City and its analysis on all counts. The first line of the decision says it all: "This is a case where CEQA worked."
Del Cerro Mobile Estates v. City of Placentia (July 7, 2011, G043709)
By James Pugh & Shoshana Zimmerman
In this case, the Court of Appeal for the Fourth District held that a city may defend itself against a California Environmental Quality Act challenge by invoking a statutory exemption even if the city has prepared an EIR for the project. The court also rejected the argument that because the exemption was written in the singular, it could not apply to a project involving multiple railway crossings. Section 21080.13 exempts from CEQA “any railroad grade separation project which eliminates an existing grade crossing or which reconstructs an existing grade separation.” Finally, the petitioner’s non-CEQA claims that the City of Placentia (“City”) and Orange Country Transportation Authority (“OCTA”) were planning to possibly violate the City’s resolutions, were held not ripe for adjudication.
Save the Plastic Bag Coalition v. City of Manhattan Beach (July 14, 2011, S180720)
By James Pugh & Shoshana Zimmerman
Corporations now have the ability to file citizen suits to assert public interests without facing heightened scrutiny by the courts. The California Supreme Court ruled that a coalition of plastic bag manufacturers and distributors (“Plaintiff”) had standing to maintain a citizen suit to vindicate the asserted public interest in environmental quality. This means more generally that a corporation has greater freedom to bring a CEQA-based citizen suit to further the public interest in environmental quality. Additionally, the court ruled that any corporation or business interest whose operations are directly affected by a government project has standing in their own right to raise a CEQA challenge.
In this clean-tech era, Citizens for Responsible Equitable Environmental Development ("CREED") v. City of Chula Vista marks only the third time that a court has published a case addressing greenhouse gases in California. In CREED, the City of Chula Vista certified a mitigated negative declaration ("MND") and approved development permits for a project that would demolish an existing Target store, a smog check facility, and a small market, and construct in its place a larger Target store. CREED filed suit, claiming that CEQA required the City to certify a full environmental impact report because the project would have a significant environmental impact on hazardous materials, air quality, particulate matter and ozone, and greenhouse gas emissions. While the court held that an EIR was likely required for other reasons, the court also held that, to demonstrate the project’s consistency with the GHG emissions reduction goals established by California's "Global Warming Solutions Act" (AB 32), the City had properly relied upon evidence the project’s emissions were below the GHG threshold of significance. The City established this threshold of significance using what has become known as the "Business-As-Usual" ("BAU") method. The court also held that the City properly relied on the thresholds of significance in the South Coast Air Quality Management District's CEQA Air Quality Handbook to conclude that the project's air quality impacts (particulate matter and ozone) were not cumulatively considerable even though the San Diego air basin is in non‑attainment for particulate matter pollution.Continue Reading Questions & comments
Government Code Does not Require Analysis of Environmental Impacts Directly Related to School Facilities
Chawanakee Unified School District v. County of Madera (June 21, 2011, F059382) __ Cal.App.4th __ (certified for partial publication)
By Robyn Christo
In a partially published opinion, the Court of Appeal for the Fifth Appellate District, interpreted Government Code Section 65596(a) (as revised by the Leroy F. Greene School Facilities Act of 1998 [“Senate Bill 50”]), and examined the effect of language restricting the “methods of considering and mitigating [project-related] impacts on school facilities” (italics added) on an environmental impact report (“EIR”). In the published portion of its opinion, the court found that impacts directly related to school facilities do not require consideration under the California Environmental Quality Act (“CEQA”). On the other hand, the reasonably foreseeable non-school impacts caused by a project must be analyzed in an EIR.
Oakland Heritage Alliance v. City of Oakland (May 19, 2011, A126558) __ Cal.App.4th __
By Maria Pracher & Robyn Christo
In this case, the Court of Appeal for the First Appellate District rejected all of petitioner’s arguments regarding the adequacy of the seismic impact analysis and mitigation measures in a revised Environmental Impact Report (“EIR”) prepared for a project that proposed to convert 64 acres of maritime and industrial land along Oakland’s waterfront into residential, retail/commercial, open space and marina uses (“Project”).
Global Warming and Droughts Not New Information; Project Opponents Must Fairly Present Claims Before Filing CEQA Lawsuit
Citizens for Responsible Equitable Environmental Development v. City of San Diego (May 19, 2011, D057524) __ Cal.App.4th __
By Jeffrey Forrest & Robyn Christo
On May 19, 2011, the California Court of Appeal for the Fourth Appellate District upheld an Addendum to an Environmental Impact Report (“EIR Addendum”) over claims that the lead agency failed to follow statutory procedures for adopting a Water Supply Assessment (“WSA”) and that a supplemental EIR (“SEIR”) was required to analyze “new” environmental impacts related to drought and global warming.
Court Affirms CEQA Does Not Require Cumulative Impact Analysis Where Project Makes No Contribution to Groundwater Impacts
By Jeffrey Forrest
In Santa Monica Baykeeper v. City of Malibu, the Court of Appeal considered Santa Monica Baykeeper’s (“Plaintiff”) claim that the City of Malibu (“City”) abused its discretion in certifying the environmental impact report (“EIR”) for the City’s Legacy Park project (“Project”) because it failed to adequately analyze (1) construction-related water quality impacts; (2) the impact of using treated effluent from the adjoining Malibu Lumber Yard; and (3) cumulative groundwater impacts of the project. The appellate court concluded that the construction-related water quality impacts were moot since the Project had already been constructed during the pendency of the appeal, and that there was substantial evidence to support the City’s findings that the Project’s use of Lumber Yard wastewater effluent and stormwater did not create a cumulative groundwater impact within an area of the City known for significant groundwater problems.
Trinity Park, L.P., et al. v. City of Sunnyvale, 2011 WL 1054221, __ Cal.App.4th ___, (6th Dist. 2011)
By Dave Lanferman
A California appellate court has ruled that the "pay-or-perform under protest" procedures of Government Code sections 66020 and 66021 do not apply to all types of development exactions. In its opinion, the Sixth Appellate District narrowed the scope of the statutory pay under protest provisions, and held that they should be interpreted so as to be available for review of exactions imposed by a local agency as a condition of development approval only if the exaction is "for the purpose of defraying all or a portion of the cost of public facilities related to the development project."
State Policy Barring Development Seaward Of Most Landward Extension Of Historical Mean High Tide Line Invalid As Underground Regulation
Bollay v. Cal. Office of Admin. Law (Cal. State Lands Commission, Real Party in Interest) (March 1, 2011, C063268) __Cal.App.4th __
By Michael Wilmar
“’In the beginning God created the heaven and the earth.’ With this immortal sentence, the Bible memorialized the first and longest-running boundary dispute.” (Flushman, Water Boundaries (1st ed. 2002) p. xvii, quoting Genesis 1.1.) In the meantime, more earthly boundary disputes have also continued to flourish.
By Bram Hanono and Greg Woodard
Azusa Land Partners v. Department of Industrial Relations, 191 Cal.App.4th 1 (2010)
California Labor Code sections 1720 et seq. (the Prevailing Wage Law) ("PWL") require employers engaged in public works projects to pay the prevailing wage to their employees if the project is "paid for in whole or in part out of public funds." The Second Appellate District Court of Appeal recently ruled that private developers must pay prevailing wages for the construction of all public improvements in connection with a development project if public funds are used to finance any part of the public improvements, even if the remaining public improvements are paid for with private funds. The decision, if it stands, subjects developers to increased project costs not previously anticipated.
The Wilderness Society; Prairie Falcon Audubon, Inc. v. U.S. Forest Service, et al., No. 09-35200 (9th Cir. Jan. 14, 2011)
By Jessica Johnson
On January 14, 2011, the United States Court of Appeals for the Ninth Circuit filed its opinion upon review of a decision by the Idaho District Court to deny a motion to intervene in a case under the National Environmental Policy Act ("NEPA"). In The Wilderness Society; Prairie Falcon Audubon, Inc. v. U.S. Forest Service, et al., No. 09-35200 (9th Cir. Jan. 14, 2011) ("Wilderness Society"), the Ninth Circuit abandoned the "federal defendant rule," which categorically prohibited intervention on the merits, or liability phase, of NEPA actions.
Provisions in CC&R's Requiring Arbitration of Claims Against Developers by Homeowners Associations or Owners Are Not Enforceable
Villa Vicenza Homeowners Ass'n v. Nobel Court Dev., LLC, No. D054550 (4th Dist. Jan. 11, 2011)
By Jessica A. Johnson
In Villa Vicenza Homeowners Ass'n v. Nobel Court Dev., LLC, No. D054550 (4th Dist. Jan. 11, 2011, the Fourth District of the California Court of Appeal held that a provision in a declaration of covenants, conditions and restrictions (CC&R's) that required a homeowners association (HOA) and homeowners to arbitrate claims against the developer are not enforceable.
Court Invalidates EIR's Use of a Baseline Predicated On Future, Post-Approval Conditions For Analysis of Project's Impacts
Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council, No. H035135 (6th Dist., December 16, 2010)
By Kyndra Joy Casper
In Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council ("Sunnyvale"), the California Court of Appeal, Sixth District (the "Court") invalidated the use of a baseline consisting of future, post-project approval conditions to analyze a project's impacts in an Environmental Impact Report (“EIR”). This decision may have widespread effects because the use of a future baseline has become a widespread industry practice particularly for analysis of traffic and circulation impacts.
Cherry Valley Pass Acres and Neighbors, et al. v. City of Beaumont, E049651 (4th Dist. Div. 2, November 22, 2010)
By Daniel Bane
In Cherry Valley Pass Acres and Neighbors, et al. v. City of Beaumont, the Court of Appeal considered Plaintiffs Cherry Valley Pass Acres and Neighbors and Cherry Valley Environmental Planning Group (“Plaintiffs”) claim that the City of Beaumont (“City”) abused its discretion in certifying the environmental impact report (“EIR”) for the Sunny-Cal Specific Plan (“SCSP” or “Project”) because it failed to properly address the Project’s significant impacts on area water supplies and agricultural land uses. Both claims were rejected. The appellate court concluded that the use of existing entitlements for baseline conditions was legitimate when it corresponds to an conditions “on the ground” at the time environmental review commenced. It also concluded that there was substantial evidence to support the City’s findings related to agricultural impacts.
Environmental Protection Information Center, et al. v. California Department of Forestry and Fire Protection, et al., A108410 (1st Dist. Div. 5, November 19, 2010)
By Daniel Bane
In Environmental Protection Information Center, et al. v. California Department of Forestry and Fire Protection, et al., the Court of Appeal considered whether an attorneys' fees award issued by the trial court must be reevaluated in light of the final outcome of the underlying litigation in the California Supreme Court. The Court of Appeal concluded that the attorney fee awards may be warranted even if some of the environmental protections attained at trial are reversed on appeal if the plaintiff still prevailed on some key issues. The court also concluded that attorney fee awards may also depend on whether a reasonable settlement offer might have prevented a lawsuit. Finally, the appellate court held that the amount of fees may be reduced where plaintiffs are only partially successful, depending in part on whether the claims are related.
Local Air District Rule Requiring Development Sites to Reduce Amount of Pollutants Emitted Not Preempted by the Clean Air Act
National Association of Home Builders v. San Joaquin Valley Unified Air Pollution Control District, No. 08-17309, (9th Cir., December 7, 2010)
By Kyndra Joy Casper
In NAHB v. San Joaquin Valley UAPCD, the United States Court of Appeal for the Ninth Circuit held that Rule 9510, the San Joaquin Valley Unified Air Pollution Control District's (the “District”) rule requiring development sites to reduce the amount of air pollutants they emit, was not preempted by the Clean Air Act (the “CAA”). The Court found that Rule 9510 was a proper “indirect source review program” and thus, was not preempted.