Category Archives: Recent Cases – Land Use and Entitlements

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High Court Upholds Long-Term GHG Emissions Analysis, But Warns Agencies to Keep Pace with Regulatory Advancements: Lessons from Cleveland National Forest Foundation v. SANDAG

Cleveland National Forest Foundation, et al. v. San Diego Association of Governments (2017) __ Cal. 5th __, Supreme Court Case No., S223603 Judicial deference to a lead agency’s determination regarding the proper greenhouse gas (“GHG”) threshold for a project California Environmental Quality Act (“CEQA”) remains a swinging pendulum.  The California Supreme Court recently upheld the San Diego … Continue Reading

Are You Sure You Want to Challenge That Permit Condition?

Barbara Lynch et al. v. California Coastal Commission, Case No. S221980 The California Supreme Court has drawn a deeper line in the sand by (a) refusing to expand the Mitigation Fee Act to cover “land use restrictions” in permit conditions of approval that are unrelated to the project’s construction, and (b) requiring applicants to litigate their … Continue Reading

Challenge to Ordinance Prohibiting Mobile Medical Marijuana Dispensaries Goes Up in Smoke

Union of Medical Marijuana Patients, Inc. v. City of Upland (3/25/16, D069293) In 2007, the City of Upland banned both fixed and mobile medical marijuana dispensaries from any zone within the City’s limits. Presumably this ban applied to mobile dispensaries delivering marijuana into the City from locations outside the City.  However, in 2013, the City … Continue Reading

Supreme Court Denies Certiorari in Challenge to San Jose’s Inclusionary Housing Ordinance; Justice Thomas Suggests The Issue is Far From Settled

California Building Industry Association, et al. v. City of San Jose, et al., (2016) On February 29, 2016, the Supreme Court of the United States denied the California Building Industry’s petition for writ of certiorari seeking review of the decision of the California Supreme Court in California Building Industry Assn. v. City of San Jose,(2015) … Continue Reading

State Agency’s Intentional Flooding for Environmental Protection Results in Physical Taking of Private Property – Strict Liability Applies

Pacific Shores Property Owners Association v. Department of Fish and Wildlife (1/20/16, C070201) On January 20, 2016, the Court of Appeal for the Second Appellate District of California ruled that where a state agency assumes control of a local flood control process, and it determines to provide less flood protection than historically provided by a … Continue Reading

State Lands Commission Land Exchanges Not Exempt from CEQA Review Absent a Title or Boundary Dispute; Actual Notice Doesn’t Satisfy CEQA Notice Requirements Under Public Resources Code Section 21177(e)

In Defend Our Waterfront v. California State Lands Commission (Sept. 17, 2015) __Cal.App.4th __, Case Nos. A141696 & A141697, the California Court of Appeal for the First District upheld the trial court’s grant of a petition for writ of mandate challenging a land exchange with the State Lands Commission in connection with the 8 Washington … Continue Reading

Changing Protected Status of Land Requires CEQA Compliance

Paulek v. Western Riverside County Regional Conservation Authority (Anheuser-Busch, LLC, Real Party in Interest) (6/19/2015, 4th Civil No. B253935) (opn. modified on denial of rehearing, http://www.courts.ca.gov/opinions/documents/E059133M.PDF.) In Paulek v. Western Riverside County Regional Conservation Authority, the California Court of Appeals, Fourth District, held that removal of the protected status from a parcel of land still needs to comply … Continue Reading

High Standard for Invoking Equitable Estoppel Against the Government Reaffirmed

Schafer v. City of Los Angeles; Triangle Center, LLC, Real Party in Interest (6/17/2015, 3d Civil No. E059133) The California Court of Appeal, Second District, recently re-affirmed the heightened standard for invoking equitable estoppel against the government.  In Schafer v. City of Los Angeles, the court rejected a claim that the City was estopped from … Continue Reading

California Supreme Court Upholds San Jose’s Inclusionary Housing Ordinance

In California Building Industry Association v. City of San Jose (Case No. S212072, filed June 15, 2015), the California Supreme Court upheld an inclusionary housing ordinance imposing affordable housing requirements as a valid exercise of a municipality’s police power, rather than an exaction subject to a constitutional takings analysis.… Continue Reading

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 … 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 … 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 … 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 … 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 … Continue Reading

County of San Diego’s Adopted Climate Action Plan Violates CEQA: Fails to Include Enforceable GHG Reduction Measures

Sierra Club v. County of San Diego (10/29/14, D064243) On October 29, 2014, the Fourth District California Court of Appeal unanimously affirmed the trial court’s decision in favor of Sierra Club, agreeing that the County of San Diego’s adopted Climate Action Plan (CAP) violated CEQA. First, the court held the County’s adopted CAP failed to provide … Continue Reading

Fourth District’s Split Decision Further Complicates CEQA Requirements Surrounding GHG Impact Analysis and Mitigation Measures – Dissent Warns Majority Opinion Will Weaken and Confuse the Law

Cleveland National Forest Foundation v. San Diego Association of Governments (11/24/14, D063288) In a split decision on November 24, 2014, the Fourth District California Court of Appeal invalidated the program EIR for San Diego Association of Governments’ (SANDAG) 2050 Regional Transportation Plan/Sustainable Communities Strategy (Regional Transportation Plan). The court found the EIR in violation of CEQA … Continue Reading

Legislature Can Amend CEQA to Expedite Construction of Sacramento Kings Arena

Saltonstall v. City of Sacramento (11/20/14, C077031) The NBA owns the right to acquire and relocate the Sacramento Kings if a new arena is not completed and open in downtown Sacramento by 2017.  The City and the Kings have targeted an October 2016 opening to avoid this outcome.  To facilitate construction, the California Legislature added Section … Continue Reading

Unlawful Development Permit Conditions Not Binding On Second Permit Applicant When Original Permit Expires Without Use – Second District Changes Mind On Changed Facts

A major fact correction on rehearing led the Second Appellate District to reverse its earlier ruling in Bowman v. California Coastal Commission (2nd Dist., Div. 6, 10/23/14, B243015 (on rehearing).  The court has now held that collateral estoppel does not prevent a landowner from letting a permit expire and then challenging imposition of the same conditions on … Continue Reading

Tribe’s Gamble That Casino Land Transfer Approval Not Subject to CEQA Pays Off

Picayune Rancheria of Chukchansi Indians v. Brown, C074506 (9/24/2014) In a recent Third District Court of Appeal published opinion, the court in Picayune Rancheria of Chukchansi Indians v. Edmund G. Brown, Jr. (3rd. Dist. 2014) strictly interpreted the California Environmental Quality Act’s definition of “public agency,” holding that it only applies to governmental bodies or … Continue Reading

Level of Detail Adequate in High Speed Rail Authority’s Program EIR for Central Valley to Bay Area Rail Corridor

Town of Atherton v. California High‑Speed Rail Authority (7/24/14, C070877) The appellate court upheld the California High‑Speed Rail Authority’s Program EIR for the Central Valley to Bay Area portion of the route, concluding that (1) the Authority properly limited its environmental analysis to a program level when it deferred site-specific analysis of the vertical profile options … Continue Reading

No CEQA Review Required For Initiative Measures, Whether Adopted By City Council Or Voters

Tuolumne Jobs & Small Business Alliance v. Wal-Mart Stores, Inc., et al. (8/7/14, S207173) The Supreme Court of California has held that CEQA review was not required before the Sonora City Council adopted an initiative measure approving a specific plan for expansion of a Wal-Mart store.  The court held that: (1) the Elections Code, which requires … Continue Reading

Collateral Estoppel Bars Copy-Cat Environmental Plaintiff in New Case After Judgment

Roberson v. City of Rialto (4th Dist., Div. 2, 5/21/2014, E058187) The Fourth District Court of Appeal affirmed a judgment denying a petition for writ of mandate to invalidate project approvals for the construction of a large commercial retail center in the City of Rialto (the “City”) to be anchored by a Wal-Mart Supercenter.  The court … Continue Reading

EIR Air Quality Analysis Insufficient: Lack of Specificity Regarding Human Health Impacts, Mitigation Measure Enforceability, and Evidence Supporting Measures’ Effectiveness in Substantially Reducing Air Quality Impacts Blamed

Sierra Club et al. v. County of Fresno et al., (Friant Ranch, L.P.) (5th Dist., 05/27/2014, F066798) Faced with an appeal of the Superior Court of Fresno’s approval of a controversial Environmental Impact Report, the Fifth District Court of Appeal reversed and found that the challenged EIR violated the California Environmental Quality Act by failing to … Continue Reading

CEQA Class 3 Categorical Exemptions Permitted for AT&T Installations

San Francisco Beautiful v. City & County of San Francisco (1st. Dist., Div. 4, 5/30/2014) The First District Court of Appeal held that AT&T’s proposed installation of new utility cabinets in the City of San Francisco fell within CEQA’s Class 3 categorical exemption for the “installation of small new equipment and facilities in small structures.”  The … Continue Reading
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