Category Archives: Recent Cases – Land Use and Entitlements

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No Students? No Problem, Developer Still Pays

In Tanimura & Antle Fresh Foods, Inc. v. Salinas Union High School District, the Sixth District Court of Appeal considered whether the Salinas Union High School District (“District”) acted reasonably in imposing a school impact fee on a new 100-unit residential development intended to only house adult seasonal farmworkers without dependents (the “Project”) employed by … Continue Reading

EIR for Downtown San Francisco Mixed-Use Project Upheld Under Supreme Court’s Newly Articulated Standard of Review

The belatedly published South of Market Community Action Network v. City and County of San Francisco (2019) ___ Cal.App.5th ___ (“South of Market”), is the first published decision in which the court applies the principles articulated by the California Supreme Court in the recent Sierra Club v. County of Fresno decision (commonly referred to as … Continue Reading

CDP Applicant May Not Challenge Local Agency’s CEQA Decision on Coastal Development Permit While CDP Appeal to Coastal Commission Is Pending

In Fudge v. City of Laguna (G055711), published on February 13, 2019, the Fourth District Court of Appeal joined the First and Sixth Districts by reaffirming the need for a litigant to wait for the California Coastal Commission’s (“Commission”) determination on the appeal of a coastal development permit (“CDP”) prior to initiating litigation. The key … Continue Reading

California Supreme Court Clarifies Scope of De Novo and Substantial Evidence Standards Of Review In CEQA Cases

In Sierra Club v. County of Fresno (S219783), the California Supreme Court unanimously reaffirmed that the substantial evidence standard of review does not always apply when a lead agency prepares an environmental impact report (“EIR”) for a development project. Rather, the court determined that the less deferential de novo standard applies if the EIR’s discussion … Continue Reading

Tenth Circuit Holds Bureau of Land Management Improperly Relied On Unsupported and Irrational Assumption in Analyzing Environmental Impacts of Coal Mining Leases

WildEarth Guardians v. United States Bureau of Land Management, et al., 870 F.3d 1222 (10th Cir. 2017). WildEarth Guardians and the Sierra Club (collectively, “Plaintiffs”) brought a claim under the Administrative Procedure Act (the “Act”) against the Bureau of Land Management’s (BLM), challenging the BLM’s decision to grant four coal leases in Wyoming’s Powder River … Continue Reading

Tenth Circuit Takes Expansive View of the Definition of the Term “Mining,” Holding Wind Farm Project Needs Permit Prior to Commencement of Excavation in Tribal Mineral Estate

United States of America v. Osage Wind, LLC et al., 871 F.3d 1078 2017 WL 4109940 (10th Cir. Sept. 18, 2017). Causing heartburn for project applicants developing on tribal land, the Tenth Circuit reversed the District Court for the Northern District of Oklahoma’s grant of summary judgment and determined that the defendants’ large-scale excavation project, involving … Continue Reading

Faceoff with Federal Government Possibly Looming Following California Supreme Court CEQA Ruling; Cal High Speed Rail Project Also Vulnerable

In July 2017, the California Supreme Court determined the federal Interstate Commerce Commission Termination Act of 1995 (49 U.S.C. § 10101 et seq.) (“ICCTA”) does not preempt the application of the California Environmental Quality Act of 1970 (Pub. Res. Code § 21000 et seq.) (“CEQA”), a state statute, to a state public entity railroad project … Continue Reading

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
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