On July 11, 2013, Governor Brown signed Assembly Bill 116 (Bocanegra) automatically extending by 24 months the expiration date of any tentative map, vesting tentative map, or a parcel map which was approved on or after January 1, 2000, and that has not yet expired. It further specifies a process for the extension of tentative map, vesting tentative map, or a parcel map approved on or before December 31, 1999. Assembly Bill 116 (AB 116) amends Section 65961 of the Government Code.
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Unusual Circumstances: California Supreme Court Upholds Limited Use of Future Conditions Baseline Under CEQA
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Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, et al. (August 5, 2013, S202828) ____ Cal.4th ____
On August 5, 2013, the California Supreme Court issued a split decision in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, et al. The court held that a lead agency may choose to avoid using an existing conditions baseline only where (1) the departure is justified by “unusual aspects of the project or surrounding conditions”; and (2) where “an analysis based on existing conditions would be uninformative or because it would be misleading to decision makers and the public.” Neighbors for Smart Rail, at pg. 11 (lead opinion of Werdergar, J.). Thus, an agency may use a future conditions baseline for analyzing a project’s impacts in lieu of the conditions existing at the time a CEQA analysis is prepared, but only if it makes the specific determinations above and supports them with substantial evidence in the record.…
Failure To Separately Notice Consideration Of CEQA Document Violates Brown Act
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San Joaquin Raptor Rescue Center v. County of Merced, No. F064930 (5th Dist., May 31, 2013)
By Eric DiIulio
In San Joaquin Raptor Rescue Center v. County of Merced, the California Court of Appeal for the Fifth District held that the Merced County Planning Commission violated the Brown Act by adopting a CEQA mitigated negative declaration without specifically noticing it on the Commission’s agenda. The agenda had indicated consideration of a subdivision application, but the court found consideration of the MND accompanying the application to be a separate action requiring separate notice under the Brown Act. However, the court rejected the plaintiffs’ CEQA notice violation claims because plaintiffs had failed to exhaust their administrative remedies.…
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Bright Lights Not a Significant Impact; Lack of Parking May Be
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Taxpayers for Accountable School Bond Spending v. San Diego Unified School District, No. D060999 (4th Dist. Div. 1, April 25, 2013)
In Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (2013) __ Cal.App.4th __ (Case No. D060999) the Court of Appeal for the 4th District held that the San Diego Unified School District (the “District”) must prepare an environmental impact report (“EIR”) on installation of new stadium field lighting and other improvements at Hoover High School to permit nighttime events because there was a fair argument that impacts on neighborhood parking could be significant. The court specifically declined to follow earlier case law to the contrary. The court also held that the District was prohibited from using proceeds of a school bond other than for the purposes specifically listed.…
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EIR Not Needed Before Starting Eminent Domain Proceeding
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In Golden Gate Land Holdings, LLC v. East Bay Regional Park District, the California Court of Appeals considered whether an Environmental Impact Report (“EIR”) must be prepared where the California Environmental Quality Act (“CEQA”) and eminent domain law intersect. Golden Gate Land Holdings, LLC, the owner of the property in question, argued that the East Bay Regional Park District, tasked by the California Legislature to complete the Eastshore State Park (“Eastshore Park”), had to complete environmental review prior to taking any action, including adoption of the resolution of necessity for the condemnation of a portion of Golden Gate’s property. The court sided with the District holding that commencement of the eminent domain proceedings prior to completion of the EIR did not violate CEQA.…
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Déjà Vu All Over Again: Ninth Circuit Rejects Yet Another Challenge To Rent Control, Including “Private Takings” Argument
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In MHC Limited Financing v. City of San Rafael, the Court of Appeals for the 9th Circuit considered, among other things, whether the City of San Rafael’s mobilehome rent control ordinance (the “Ordinance”) constituted either a regulatory taking under Penn Central Transportation Co. v. New York City or an impermissible “private” taking in violation of the Fifth Amendment, which prohibits the taking of private property for public use without just compensation. With respect to Penn Central, the court held that economic impact, investment-backed expectations, and the character of the Ordinance all led to the conclusion that the Ordinance did not constitute a taking. The court also rejected plaintiff’s “private taking” theory, novel in this context, in which MHC argued that the Ordinance did not qualify as a “public” use and therefore the taking was prohibited, regardless of compensation.…
Can California Cap and Trade if Brussels Stumbles?
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Posted in Environmental, Global Climate Change
Last week, the European Parliament rejected a proposal to reduce the quantity of greenhouse gas (GHG) emissions allowances in order to fix a supply-demand imbalance in the European Union Emissions Trading System (EU ETS). Some view this as the beginning of the end of the European Union’s ten-year carbon cap-and-trade experiment. A high profile failure of the EU ETS is likely to provide ammunition to critics California’s cap-and-trade program.…
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No Relief Under CCP Section 473 For Missed Filing Deadline In CEQA Challenge
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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").…
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Utility Pole Not A Point Source Under The Clean Water Act
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Ecological Rights Foundation v. Pacific Gas & Electric Co. (9th Cir., Filed April 3, 2013)
By Robert Uram, Keith Garner, and Alex Merritt
Last week the Ninth Circuit held that utility poles are not “point sources” of stormwater discharge nor “associated with industrial activity,” and therefore do not require an NPDES permit to comply with the Clean Water Act.
Plaintiff environmental group brought a suit alleging that the defendant utility companies treated their utility poles with a wood preservative containing a biocide and other chemicals. Plaintiff further alleged that the utility poles discharge the wood preservative into the environment in violation of the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA). The Ninth Circuit rejected both claims in an unanimous decision.…
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Bill Introduced to Restore Cities’ Ability to Require Affordable Housing
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Posted in Fees & Exactions, New Rules and Legislation
On February 22, California State Assembly Member Toni Atkins, D-San Diego, introduced a bill, AB 1229, to restore the ability of California cities and counties to require affordable housing as part of market-rate housing developments. The bill would override a notable 2009 court decision, Palmer/Sixth Street Properties, L.P. v. City of Los Angeles, 175 Cal.App.4th 1396 (“Palmer”), that rendered many inclusionary housing requirements unenforceable under California law.…
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