Category Archives: Land Use and Entitlements

Subscribe to Land Use and Entitlements RSS Feed

Federal Government’s Eminent Domain Power Trumps California’s Sovereign Public Trust Title

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 … Continue Reading

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) By Keith Garner, Michael Wilmar, and Alexander Merritt 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 … Continue Reading

Decision to Deny a Zoning Change Subject to 90-Day Statute of Limitation

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) By Katharine J. Mueller 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 … Continue Reading

CEQA Amendments from the 2011 Legislative Session

By Judy V. Davdoff & Alex Merritt In the 2011 session, the California Legislature and the Governor passed several bills to amend CEQA. As summarized below, these bills streamline the review process for green projects, environmental leadership projects, and a proposed football stadium; relax water supply assessment requirements for photovoltaic and wind energy projects; and … Continue Reading

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, … Continue Reading

Housing Accountability Act Applies to More Than Just Affordable Housing Developments

Honchariw v. County of Stanislaus, No. F060788 (5th Dist. November 14, 2011) 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 … Continue Reading

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 … Continue Reading

A Case Where CEQA Worked

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 … Continue Reading

Statutory Exemption Not Waived by Conducting EIR; Can be Invoked Even After Litigation Commences

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 … Continue Reading

We’re People Too: Corporations Have Standing To File CEQA Citizen Suits

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”) … Continue Reading

City’s “Business‑As‑Usual” Threshold OK For Evaluating Greenhouse Gas Emissions Under CEQA

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 … Continue Reading

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 … Continue Reading

Reliance on Statutory Requirements to Mitigate Environmental Impacts Proper Under CEQA

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 … Continue Reading

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 … Continue Reading

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; … Continue Reading

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, … Continue Reading

Nonconforming Uses: Part One & Two

By Deborah Rosenthal Nonconforming uses, the natural by-products of zoning, are created when zoning rules change over time and the old uses are grandfathered in under the original approvals. How the grandfathered uses are treated, how long they survive, and how much they are allowed to change are all decided, in the first instance, by … Continue Reading

Developer Must Pay Prevailing Wages for Privately Financed Public Improvements

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 … Continue Reading

Ninth Circuit Abandons Federal Defendant Rule Prohibiting Intervention Of Right In NEPA Cases

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 … Continue Reading

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, … Continue Reading

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) 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 … Continue Reading

Baseline Using Existing Entitlements Acceptable If It Corresponds To Conditions “On The Ground”

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”) … Continue Reading

By scrolling this page, clicking a link or continuing to browse our website, you consent to our use of cookies as described in our Cookie and Advertising Policy. If you do not wish to accept cookies from our website, or would like to stop cookies being stored on your device in the future, you can find out more and adjust your preferences here.