Stockton Citizens for Sensible Planning v. City of Stockton, Super. Ct. No. CV024375 (Nov. 13, 2012)

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 Zoning Director Approval Triggers Section 65009 Statute of Limitations

Friends of Aviara v. City of Carlsbad (November 1, 2012, Case No. D060167)

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 City May Adopt Housing Element Revisions Inconsistent With General Plan If City Also Adopts Timeline To Correct Inconsistencies

Coalition for Clean Air v. City of Visalia (Oct. 4, 2012, No. F062983M)

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 Further Confirmation Notice of Exemption Filed Before Project Approval is Void

Voices for Rural Living v. El Dorado Irrigation District, Super. Ct. No. PC20080398, (Oct. 4, 2012) 

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 The Amorphous “Unusual Circumstances” Exception to CEQA’s Categorical Exemption Strikes Again

By Miriam Montesinos

While ground up development has dried up in many sectors, off-campus student housing is one commercial real estate sector where development is booming. Unlike what other sectors are experiencing, there is both demand and capital for off-campus student housing developments, particularly ground-up development. These market conditions have led many developers to enter the student housing development arena in hopes of catching the wave before it is too late. Before getting in too deep, though, developers should consider various factors that drive the market in order to try and ensure a successful venture. Below are some items to consider when deciding whether to enter into off-campus student housing development.

Continue Reading Avoiding Things That Can Make You Go Bust In The Student Housing Boom

By Phillip Tate and Michael Kiely

Two cases filed in Sacramento County, City of Cerritos v. State of California and Syncora Guarantee Inc. v. State of California, have challenged the constitutionality of AB 1X 26, the 2011 bill that provided for the elimination of redevelopment in California. While the California Supreme Court previously upheld the constitutionality of AB 1X 26 in California Redevelopment Association vs. Matosantos, the new cases raise an issue not raised in Matosantos: whether AB 1X 26 violates the provisions of both the California and United States constitutions prohibiting legislation impairing existing contracts. A previous post on this blog discussed a potential challenge to AB 1X 26 based on unconstitutional impairment of contracts.

Continue Reading Redevelopment: Rising From The Ashes Or Final Death Rattle?

By Olivier Theard and Whitney Hodges

I. Background

The California Air Resources Board (“ARB”) recently commenced development of a new regulation targeting emissions from “off-road” agricultural equipment, such as tractors and combines. The “In-Use Self-Propelled Off-Road Mobile Agricultural Equipment Regulation” is intended to help the State attain federal air quality standards. ARB officials claim the rule is a necessary tool in employing the upcoming ozone and particulate matter state implementation plans (“SIPs”), initiated in 2007.

Continue Reading ARB Initiates Potentially Controversial Agricultural Equipment Regulation

Friends of Blackwater, et al. v. Kenneth Lee Salazar, No. 11-5128 (D.C Cir. Aug. 17, 2012)

By Phillip Tate

On August 17, 2012, the DC Circuit Court overturned a district court ruling that the Fish and Wildlife Service violated the Endangered Species Act (16 U.S.C. §1531 et seq.) by delisting the West Virginia Northern Flying Squirrel when several criteria in the squirrel’s recovery plan remained unfulfilled. The court instead held that a recovery plan adopted pursuant to the ESA is not binding on the Secretary of the Interior when making delisting decisions.

Continue Reading Recovery Plan Not Binding on Delisting Decisions

Rialto Citizens for Responsible Growth v. City of Rialto ___ Cal.App. ___ (July 31, 2012, No. E052253)

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 Appeals Court Reaffirms That Non-Prejudicial Planning And Zoning Code And CEQA Errors Cannot Serve As Basis For Overturning City Approval

By Keith Garner and Maggie Brennan

The Supreme Court has agreed to review two Ninth Circuit Court of Appeals Clean Water Act (“CWA”) cases. Both cases involve the extent to which certain releases are properly categorized as point source discharges and must accordingly be regulated by NPDES (National Pollutant Discharge Elimination System) permits under the CWA.

Continue Reading Supreme Court to Hear Two Significant Clean Water Cases