Category Archives: Land Use and Entitlements

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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

Attorney Fees Award May Be Reevaluated When Claims Are Partially Reversed On Appeal

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 … Continue Reading

Local Air District Rule Requiring Development Sites to Reduce Amount of Pollutants Emitted Not Preempted by the Clean Air Act

National Association of Home Builders v. San Joaquin Valley Unified Air Pollution Control District, No. 08-17309, (9th Cir., December 7, 2010) 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 … Continue Reading

Court of Appeal Upholds Previous Decision, Finding That the Requirements for Exhausting Administrative Remedies Before Challenging CEQA Exemption Did Not Apply

Tomlinson v. County of Alameda, No. A125471 (1st Dist. Div. 5, October 6, 2010) By Misty L. Calder In Tomlinson v. County of Alameda, the First Appellate District reexamined its decision in Tomlinson v. County of Alameda (2010) 185 Cal.App.4th 1029, where the Court found that the County of Alameda ("County") abused its discretion in … Continue Reading

Governor Schwarzenegger Signs Two Bills Providing Moderate CEQA Improvements

By Misty L. Calder Senate Bill ("SB") 1456, authored by Senator Joe Simitian (D-Palo Alto), and Assembly Bill ("AB") 231, authored by Assembly Member Alyson Huber (D-El Dorado Hills), were signed by Governor Arnold Schwarzenegger on September 29, 2010. As urgency statutes, both bills became effective immediately, and both will sunset as of January 1, … Continue Reading
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