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

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.

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.

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. Continue Reading Questions & comments

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.

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.

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.

Citizens for Responsible Equitable Environmental Development ("CREED") v. City of Chula Vista, Docket No. D05779

By Jeff Forrest and Ashley Hirano

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.

American Electric Power Co., Inc. v. Connecticut (June 20, 2011, No. 10-174) __ U.S. __

By Robyn Christo & Micah Bobo

In the battle over climate change, the Supreme Court once again set an important precedent in American Electric Power Co., Inc. v. Connecticut (“American Electric Power”). In an 8-0 decision written by Justice Ginsburg (Justice Sotomayor recused herself, presumably because she heard the matter while sitting on the Second Circuit), the Court held that Congress's delegation of the power to regulate greenhouse gasses to the Environmental Protection Agency (“EPA”), "displaces federal common law" relating to the abatement of carbon dioxide ("CO2") emissions.

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.

By Keith Garner

The U.S. Supreme Court recently decided to hear two environmental cases in its 2011-2012 term, which begins in October. The two cases will have consequences for waterbodies that may be subject to the public trust and for property owners and facilities operators who are given administrative compliance orders under federal environmental laws.

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”).

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.

By Randolph Visser and Whitney Hodges

Until recently, Association of Irritated Residents v. California Air Resources Board proceeded along the litigation path as smoothly as any environmental challenge might. However, things took an unexpected twist last week that has left unanswered questions and many spectators baffled.

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[1], 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.

Natural Resources Defense Council v. Los Angeles County, United States Court of Appeals for the Ninth Circuit, Case No. 10-56017 (March 10, 2011)

By Elizabeth Anderson

The Ninth Circuit Court of Appeals held that environmental groups were entitled to summary judgment after presenting evidence that the Los Angeles County Flood Control District ("District") had illegally discharged polluted stormwater into the Los Angeles River and San Gabriel River in violation of the federal Clean Water Act. The District has argued that the evidence did not show it was the source of the pollutants, only that it conveyed polluted stormwater. The Ninth Circuit rejected this argument and decided summary judgment was appropriate because monitoring stations located in a section of the municipal separate storm sewer system ("MS4") owned and operated by the District detected pollutants in excess of the limits set forth in the District's National Pollutant Discharge Elimination System permit ("Permit") and, after the polluted stormwater passes through these monitoring stations, it was discharged into the two rivers, causing or contributing to exceedances of water quality standards.

By Whitney Hodges

On March 18, 2011, Judge Ernest Goldsmith of the San Francisco County Superior Court suspended implementation of AB 32, California's landmark law to reduce greenhouse gas ("GHG") emissions. In Association of Irritated Residents v. California Air Resource Board, [Statement of Decision] the Court found the California Air Resource Board (the "ARB")'s adoption of AB 32's Climate Change Scoping Plan (the "Scoping Plan") to be in violation of the California Environmental Quality Act ("CEQA"). The ruling determined that the ARB abused its authority by not adequately analyzing potential alternatives to a carbon "cap-and-trade" program aimed at limiting GHG emissions.

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."

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.

Precon Development Corporation, Inc. v. U.S. Army Corps of Engineers, 2011 WL 213052 (C.A.4 (Va.))

By Greg Woodard

The Fourth Circuit Court of Appeal case, Precon Development Corporation, Inc. v. U.S. Army Corps of Engineers, 2011 WL 213052 (C.A.4 (Va.)), arises out of a determination by the Army Corps of Engineers ("Corps") that it has jurisdiction, under the Clean Water Act ("CWA"), over 4.8 acres of wetlands located on the appellant owner's property, approximately 7 miles from the nearest navigable water. The Corps denied the owner's application for a CWA permit to develop the property, and the owner appealed to federal district court. The district court granted summary judgment to the Corps, upholding both its jurisdictional determination, and its permit denial. The owner appealed the district court's jurisdictional determination, and the Fourth Circuit Court of Appeal reversed, holding that the Corps' administrative record was inadequate to support its conclusion that it had jurisdiction over the wetlands. However, the court's ruling will not likely have a large impact on future CWA permit applications given its limited holding.

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.

By Whitney Hodges

On January 21, a San Francisco Superior Court issued a proposed decision that could significantly delay the implementation of the Global Warming Solutions Act of 2006 ("AB 32"). In Association of Irritated Residents, et al. v. California Air Resources Board, Case No. CPF-09-509562, the Court held that the California Air Resources Board (CARB) failed to comply with the California Environmental Quality Act (CEQA). The Court found the CARB to have neglected to conduct a sufficient environmental impact review prior to adopting the State's AB 32 Scoping Plan (Plan).  Specifically, CARB failed to adequately analyze all potential alternatives and prematurely adopted the Plan prior to fully responding to public comment.

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.

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.

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.

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.

Pinnacle Museum Tower Association v. Pinnacle Market Development (US) LLC, No. D055422 (4th Dist. July 30, 2010)

By Michael Wilmar and Aaron Kleven

Homeowners and homeowner associations are not necessarily bound by arbitration provisions in a declaration of covenants, conditions and restrictions, or in a related purchase agreement, where the developer is the initial and only declarant. That is the implication of a July 30th ruling of the Fourth District of the California Court of Appeal. In Pinnacle Museum Tower Association v. Pinnacle Market Development (US) LLC, a homeowner association brought a construction defect suit on behalf of itself and its members for damage to common areas. The developer of the condominium project attempted to block the suit, claiming the plaintiff was bound to an arbitration provision recorded in the project CC&R's. It argued the provision committed the Association to resolve all construction disputes through arbitration and waived the Association’s right to a jury trial. The purchase and sale agreements signed by the individual condominium owners also contained a jury waiver and a provision compelling owners to comply with the arbitration provision in the CC&R's. But the court concluded that the provision in the CC&R’s did not constitute an agreement sufficient to wave the Association's constitutional right to a jury trial. And it found the corresponding provision in the purchase and sale agreement unconscionable and unenforceable against the individual owners.

Standard Pacific Corporation v. Superior Court of San Bernardino (Garlow) (2009) ___ Cal. App. 4th ____ (Aug. 14, 2009, No. E046844)

By James Pugh

The Fourth District Court of Appeal recently held that construction-defect plaintiffs must provide developers with notice and an opportunity to repair before filing suit. This holding in Standard Pacific Corporation v. Superior Court of San Bernardino (Garlow) confirms the procedural requirement of Senate Bill 800, which is also known as the “Fix It Law.”

The Fifth Day, LLC v. James P. Bolotin, et al., ___ Cal.App.4th ___(March 27, 2009, No KC047712)

By Jon E. Maki & Bram Hanono

The California Court of Appeal for the Second Appellate District determined that an entity which provided construction management services to a private owner developing commercial real property was not required to be licensed as a contractor pursuant to the Contractors' State License Law ("CSLL") (opinion by Acting Presiding Justice Armstrong, concurrence by Justice Krieger). In a lengthy dissent, Justice Mosk disagreed, highlighting that the intent of the CSLL is to protect consumers from unqualified and unlicensed contractors and predicted that the decision on a case of first impression creates a loophole in the license requirements by allowing unlicensed contractors to call themselves "construction managers."

By James Rusk

The Court of Federal Claims this month awarded more than $4.2 million to the estate of Wayne and Jean Hage as compensation for the federal government’s taking of the Hages’ water rights and rangeland improvements.  Hage v. United States, No. 91-1470L (Fed. Cl. June 6, 2008).  Hage V, the latest chapter in the long-running Hage case, affirms the principle that private parties do not have a compensable property interest in federal grazing permits.  But the decision nonetheless recognizes that government actions distinct from the cancellation of grazing permits may, under some circumstances, effect a Fifth Amendment taking of an individual’s vested right to water flowing from federal lands. 

Douda v. California Coastal Commission (February 6, 2008, B188210) ___ Cal.App.4th ___

By Aaron Foxworthy

The Second Appellate District affirmed a lower court decision that when acting as the issuing agency for a Coastal Development Permit (CDP) application, the California Coastal Commission may designate a portion of the subject property as an Environmentally Sensitive Habitat Area (ESHA) during consideration of the CDP application.  And, the Commission may then reject the CDP application based in part on potential impacts to the newly designated ESHA.  The decision is a cautionary tale for parties seeking to develop – or purchase for development – property in the Coastal Zone, that the Commission retains broad authority to designate ESHAs and restrict development.

Security National Guaranty, Inc. v. California Coastal Commission (January 25, 2008, A114647)  ___ Cal. App.4^th ___

The First Appellate District held that the California Coastal Commission does not have the authority to designate property an "environmentally sensitive habitat area" (ESHA) where a certified Local Coastal Program (LCP) is in place, and the LCP has neither designated the property as an ESHA, nor contains language anticipating later designation of the property as an ESHA through administrative action.  The decision stands to protect developers and local governments by recognizing the LCP as a bulwark against the uncertainty created by potential ESHA determinations rendered by the Coastal Commission in the appeals process.

Environmental Defense Project of Sierra County v. County of Sierra, et al. (January 9, 2008, C055448) __Cal. App. 4th

In a victory for public participation advocacy groups and a defeat to efforts to increase efficiency in the planning and development process, the California Court of Appeals for the Third District struck down Sierra County’s “streamlined zoning process,” which had permitted the county to provide notice of a legislative public hearing on a zoning ordinance or zoning ordinance amendment before the legislative body received a planning commission recommendation.  The court held that, under California Government Code sections 65854, 65856, 65090, and 65094, the local agency must give notice of the legislative body’s public hearing on a zoning ordinance or zoning ordinance amendment only after the planning commission has submitted its recommendation to the legislative body, and the public notice must contain the planning commission’s recommendation.