Abbott & Kindermann Adds Noted Guest Editor To Blog Staff

[For Immediate Release] Abbott & Kindermann announced today that noted television commentator Jon Stewart is joining Abbott & Kindermann’s blog team as a guest editor. “We are very pleased to have Mr. Stewart bring his writing talents to our blog. Mr. Stewart has graciously agreed to undertake an advisory role to our publication. As our long time readers will acknowledge, Bill Abbott’s humor tends to be so nuanced; that only a handful of readers really understand his jokes. Mr. Stewart is universally recognized as a skilled humorist. With Mr. Stewart’s help, we think we will reach a much broader audience, and our blogs will be immediately distinguishable from those of our peers” said partner Diane Kindermann. “I would like to add that Mr. Stewart has long sought to master the subtleties of the Latin phrases that judges and attorneys like to use, so professionally it is a win-win for Mr. Stewart and our firm.” Mr. Stewart volunteered, “While this is a pretty small assignment in the world of comedy, I am looking forward to mastering judicial humor. No one else has.” Mr. Abbott is away at a joke writing camp and is unavailable for comment.

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First Tier Functionally Equivalent CEQA Document Upheld for Adoption of Basin Plan Amendment and TMDL Standard

By Katherine J. Hart

Charles Conway Jr v. State Water Resources Control Board (March 30, 2015, B252688) ___ Cal.App.4th ___.

Functionally equivalent CEQA documents can be tiered in a manner similar to a regular EIR. This new CEQA decision involved a basin plan amendment (BPA) establishing a total maximum daily load (TMDL) of pollutants allowed in McGrath Lake. The BPA/TMDL was adopted by the Regional Water Quality Control Board (Regional Board) and approved by the State Water Resources Control Board (State Board) and U.S. Environmental Protection Agency (EPA). Landowners who own a portion of the lake were allocated a load under the TMDL, which would make them responsible for remediation of the lake pollution. The landowners challenged the Boards’ adoption of the TMDL on two grounds: first, that the Regional Board improperly set load allocations for concentrations of pollutants contained in the lake bed sediment, and that a TMDL can only regulate the movement of pollutants in the water column; and (2) that the Regional Board failed to comply with CEQA. The trial court denied the plaintiffs’ claims and the appellate court affirmed.

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2015 CEQA 1st QUARTER REVIEW

By William W. Abbott, Diane G. Kindermann, Katherine J. Hart, Glen Hansen and Brian Russell

Welcome to Abbott & Kindermann’s 2015 1st Quarter CEQA update. This summary provides links to more in depth case discussions located on the firm’s blog.

While there were only five published decisions in the first quarter of 2015, it was certainly noteworthy for the California Supreme Court’s decision in Berkeley Hillside, a decision which clarifies and incrementally advances the use of exemptions. As explained in our article, the battle for the heights in Berkeley is far from over. However, the appellate courts in turn wrestled with setting the baseline after an emergency project (Creed 21), tiering for functionally equivalent documents (Conway) and EIR sufficiency for Sacramento’s downtown entertainment and sports complex (Saltonstall). Finally, the court upheld the level of detail and range of alternatives in the EIR prepared by the California Department of Fish and Wildlife on its stocking, fishery and urban fishing program (CBD). 

We also include a summary of all of the CEQA cases pending at the California Supreme Court. To review our 2014 CEQA Annual Summary click here.

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Home Team Wins In Overtime CEQA Matchup

By William W. Abbott

Saltonstall v. City of Sacramento (2015) 234 Cal.App.4th 549 (Saltonstall II)

The court of appeal affirms sufficiency of EIR for downtown entertainment and sports complex and concludes that the city had not pre-committed itself through eminent domain proceedings prior to EIR certification.

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Appellate Court Affirms Programmatic EIR For Fish Hatchery And Stocking Program; Holds That Mitigation Measures Applicable To Private Parties Adopted By California Fish & Wildlife Must Be Adopted As Regulations

By William W. Abbott

Center for Biological Diversity v. Department of Fish and Wildlife (2015) 234 Cal.App.4th 214.

For over 100 years, the State of California has operated fish hatcheries. In the last twenty years, concerns have developed over the potential impacts of stocked fish on native and wild animals. Evidence suggested that amphibians in high altitude lakes were particularly vulnerable. Beginning in 2001, the then Department of Fish and Game begin performing surveys of high altitude lakes, completing over 16,000 surveys. The surveys formed the basis of management plans for 27 watershed areas. The Department also began working on hatchery genetic management plans, a planning tool under the Federal Endangered Species Act of 1973. (As of January 2010, none of these plans had been adopted.) In 2006, the Center for Biological Diversity (CBD) filed suit, claiming that the hatchery and stocking efforts were not exempt from CEQA review. In 2007, the court granted the writ of mandate compelling CEQA compliance, but did not suspend the hatchery and restocking program. The Department did not appeal, and proceeded with an EIR. In 2008, the Department moved to extend the deadline to complete the EIR, based in part that program funding was in part federal, and that the EIR would be combined with an EIS. In early 2010, the Department certified a program EIR, covering not only the state’s hatchery and stocking program, but Fishing in the City, Aquarium Education Project and fish stocking practices by private stocking companies working in private and public water. The EIR concluded that there were impacts to amphibians, and developed a new protocol requiring pre-stocking surveys. Based upon an evaluation by a biologist, if potential impacts could occur then no stocking could take place until the Department developed and implemented an aquatic biodiversity management plan. If no impacts were anticipated, then stocking could proceed, a decision valid for five years. The EIRs analysis was based upon a baseline of 2004-2008, which included hatchery and stocking practices. As mitigation for impacts to wild salmon and steelhead populations, the Department committed to the hatchery genetic management plans, including federal approval. Additional mitigation measures were developed and applied to private stocking permit operators.

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Appellate Court Harmonizes "Its All About That Bass" (Baseline That Is)

Court Upholds Use Of Post Emergency Construction Conditions As Baseline For Project Description

By William W. Abbott

CREED-21 v. City of San Diego (2015) 234 Cal. App.4th 488.

As reflected in the recent decision in CREED-21 v. City of San Diego, a lead agency can validly “reset” the baseline for CEQA analysis to the post-emergency condition, even in circumstances in which the lead agency had previously considered undertaking the construction and post-construction work in non-emergency conditions.

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Nonjudicial Sale Is Not Void Merely Because The Trustee Had Not Yet Been Substituted As The Trustee At The Time It Recorded The Notice Of Default

By Glen Hansen

Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1.

In Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, the Court of Appeal for the First Appellate District held that a nonjudicial sale of a residence was not void due to irregularities in the foreclosure proceedings, where the party executing and recording the notice of default as the “trustee” had not yet been substituted as the trustee by the lender’s assignee.

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The California Supreme Court Tackles CEQA's Gordian Knot: Unusual Circumstances and CEQA Exemptions

By William W. Abbott

Berkeley Hillside Preservation v. City of Berkeley, S201116, SUPREME COURT OF CALIFORNIA, 2015 Cal. LEXIS 1213, March 2, 2015, Filed.

While the long wait is over, issues remain for CEQA practitioners. The California Supreme Court finally issued its decision in Berkeley Hillside Preservation v. City of Berkeley, a case which addresses the application of the “unusual circumstances” limitation on the use of certain CEQA categorical exemptions. The decision is lengthy at 64 pages. Justice Chin authored the opinion, joined by four justices, one of whom is retired (J. Baxter) and one of whom was from the Court of Appeal sitting on assignment (J. Boren). Justice Liu and Wedegar concurred in one aspect of the majority’s decision, but disagreed as to the seminal legal question. Counting heads, it was a 3-2 decision by the sitting justices, with two new justices to fill out the court’s roster. With a 3-2 decision, apparently all sides can declare victory. Consider the views of project opponents as well as property rights advocates.

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Meet UrbanFootPrint - Free Webinar March 18th 12:30 pm - 1:30 pm

UC Davis Extension Land Use and Natural Resources is offering a free webinar next week on the long awaited new policy and planning tool: UrbanFootPrint. This webinar will be followed by a two day training on March 24-25th. Click here for a flyer with more information.

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Footloose in Newport Beach: City Councilmembers Lack The Inherent Right To Appeal A Planning Commission Decision Then Vote On The Appeal

By William W. Abbott

Woody’s Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012.

Woody%27s%20Wharf.jpgWhile formal court rules do not apply to local land use proceedings fundamental requirements for due process and fairness are part of land use decisionmaking as illustrated in Woody’s Group, Inc. v. City of Newport Beach. [Woody’s Wharf  -  www.woodyswharf.com] The planning commission had granted a use permit to the restaurant permitting a patio cover, approval to stay open until 2:00 a.m., and indoor dancing. Four days later, City Councilman Henn sent the city clerk an email making an “official request” for an appeal, indicating his belief that the use, as approved by the commission was inconsistent with existing and expected residential uses in the area and the City’s General Plan. The councilman did not file a formal appeal form and did not pay an appeal fee. The appeal went forward to the city council where the permit applicant challenged the informal appeal and the ability of the city councilman to act upon his own appeal. The councilman in question, based upon his previously prepared notes, led the charge to deny request permit. The council, with one member abstaining and one recusing themselves, voted on Henn’s motion to reverse the planning commission decision. The council’s action also reflected that there had previously been a number of appeals by councilmembers in the past which were acted upon by the city council, and these appeals followed similar informal steps as the appeal in Woody’s Wharf, and thus reflected city custom. Woody’s filed for a writ of mandate to set aside the appeal and alleged a civil rights violation. The city filed a cross complaint to enjoin operations after 11:00 p.m. or dancing. The trial court denied the writ and issued the preliminary injunction. Woody’s appealed.

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