Peter Detwiler, the long time LAFCo policy wonk at the state capitol, has prepared a history of local agency formation commissions and has generously agreed to share it with the readers of this blog. Thank you Peter.
Abbott & Kindermann’s 13th Annual Land Use, Real Estate, and Environmental Law Update
Reserve your seat for one of four seminars taking place in 2014.
In February 2014 Abbott & Kindermann, LLP will present its 13th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.
A summary of 2013 case law and legislative updates includes the following hot topics for 2014:
- Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
- Subdivision Map Extensions
- Interpreting Development Agreements
- Endangered Species
- Water Quality and Wetlands
- Water Rights and Supply
- Cultural Resources
- Renewable Energy
- Environmental Enforcement
- Hazardous Substance Control and Cleanup
- Timber Resources
- CEQA Litigation: Baseline, Alternatives Analysis, Exhaustion of Administrative Remedies and SB 226 Update
By Katherine J. Hart
In Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192; 2013 Cal.App. LEXIS 893 (Latinos Unidos II), the Court of Appeals, First Appellate District, upheld the City of Napa’s (City) use of its 1998 Program EIR (prepared and certified for purposes of the City’s 2020 General Plan update) for the proposed 2009 Housing Element update, and related Land Use Element and zoning code amendments. More specifically, in updating its Housing Element, the City of Napa also amended its Land Use Element to (1) increase the minimum residential densities in seven areas zoned as mixed use or community commercial from 10 to 40 residential units per acre, (2) increase the permitted density for eight multi-family sites by a total of 88 units, as well as amended its zoning ordinance to comply with state laws regarding emergency shelters and various types of low-income housing, and to permit single-family detached homes at the same densities of single-family attached homes (the Project).Continue Reading...
By William W. Abbott
If you were hoping for an insightful article on human relationships, you are out of luck and clearly, you are reading the wrong blog. But if you are interested in bonding as it relates to subdivisions and improvement agreements, read on. With a frequency slightly ahead of locusts appearing every seventeen years, cases involving subdivision improvement bonds are cyclical, trailing serious downturns in the real estate development market. Two cases this year illustrate interesting features of this practice area.Continue Reading...
ADDITIONAL STAFF GENERATED PROJECT ALTERNATIVE DID NOT COMPEL RECIRCULATION OF THE DRAFT EIR NOR WERE ADDITIONAL FINDINGS OF INFEASIBILITY REQUIRED
By William W. Abbott
South County Citizens for Smart Growth v. County of Nevada (October 8, 2013, C067764) ___ Cal.App.4th ___.
Starting in 2005, KKP submitted an application for a mixed use commercial center to be located in Nevada County on a 20 acre site. The proposal included a 60,000 square foot grocery store anchor, two retail buildings, two drive through restaurants and nearly 500 parking stalls. Four parcels would be retained by the property owner, and the proposal accommodated roughly 42,000 square feet of light industrial and office uses on the owner’s retained land. The last parcel was restricted to wetland/open space uses. The County released the DEIR in November 2007, disclosing three significant unmitigated impacts; two traffic impacts and one cumulative air impact. After an extended public review process, including additional analysis submitted by the applicant, the Planning Commission conducted a hearing on the FEIR in January 2009. The staff report for this hearing included a staff recommendation for an approval, with a variation on alternative 4 in the DEIR. The commission voted to recommend certification of the EIR and the various approvals associated with the project to the Board of Supervisors, including the staff recommended plan (which capped the amount of commercial footage and increased the open space area.) KKP then developed two alternatives responsive to the Planning Commission recommendation of the staff’s alternative. Staff evaluated KKP’s two additional alternatives, and recommended that the Planning Commission formally recommend KPP’s second alternative to the Board of Supervisors.Continue Reading...
A Petitioner Is Entitled To Attorneys' Fees Under The Public Records Act If The Petitioner Succeeds On Any Significant Issue And Achieves Some Of The Benefit Sought In The Litigation
By Glen Hansen
In Garcia v. Governing Board of Bellflower Unified School District (October 24, 2013, B247320) ___ Cal.App.4th ___ a former employee of the Bellflower Unified School District (“District”) filed an extraordinary writ petition against the District relating to her alleged exposure to mold. Her counsel later served on the District’s counsel in that proceeding a request for records from the District pursuant to the California Public Records Act (Gov. Code, § 6250 et seq.) (“PRA”). The letter listed eight (8) categories of records that were requested pursuant to the PRA. During the next month, the former employee’s counsel sent several additional letters and an email to the District’s counsel because the District did not respond to the original letter request. The District's general counsel finally responded with a letter stating that there were no documents responsive to four of the requests, that two of the requests were overly broad and vague, and that documents responsive to two of the requests were exempt from disclosure. The former employee’s counsel then sent a ‘meet and confer’ letter to the District’s general counsel disputing the District's objections and responses. But when the District did not respond to that letter, the former employee commenced mandamus proceeding seeking to compel the District to comply with the PRA.Continue Reading...
By William W. Abbott
Griffith v. Pajaro Valley Water Mgt. Agency (October 14, 2013) ___ Cal.App.4th ___.
The long saga of the groundwater augmentation strategy for Pajaro Valley in Santa Cruz County has reached its next, and possibly final stopping point. The underlying saga is a telltale forecast of what lies ahead for California, with the inevitable conflicts generated by resource allocation and management. In Griffith, the specific conflict stems from the intersection of groundwater management strategies designed in part to better manage water resources and to reduce saltwater intrusion with the citizen rights created by Proposition 218.Continue Reading...
EPA Submits Draft Rule and Supporting "Connectivity" In Efforts To Develop Regulatory Definition of "Waters of the United States."
By Glen Hansen
In September 2013, the United States Environmental Protection Agency and the U.S. Army Corps of Engineers sent a draft rule to clarify the jurisdiction of the Clean Water Act to the Office of Management and Budget for interagency review. The proposed rule is designed to provide greater consistency, certainty, and predictability nationwide in determining what are “Waters of the United States” under the Clean Water Act. The proposed rule includes exclusions from Clean Water Act jurisdiction for:
• Non-tidal drainage, including tiles, and irrigation ditches excavated on dry land.
• Artificially irrigated areas that would be dry if irrigation stops.
• Artificial lakes or ponds used for purposes such as stock watering or irrigation.
• Areas artificially flooded for rice growing.
• Artificial ornamental waters created for primarily aesthetic reasons.
• Water-filled depressions created as a result of construction activity.
• Pits excavated in uplands for fill, sand, or gravel that fill with water.
The draft rule takes into consideration the draft science report titled “Connectivity of Streams and Wetlands to Downstream Waters,” which presents a review and synthesis of peer reviewed scientific literature. EPA's independent Science Advisory Board is soliciting public comment and will hold a public peer review meeting later this year. That report will eventually provide a scientific basis needed to clarify Clean Water Act jurisdiction, including a description of the factors that influence connectivity and the mechanisms by which connected waters affect downstream waters.
For more information:
Glen Hansen is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.
Please Join Diane Kindermann On November 19, 2013 For A Seminar On Proactive Subdivision Map Entitlement Strategies Post-Recession In California.
Abbott & Kindermann, LLP is pleased to announce an upcoming seminar at which Diane Kindermann Henderson will be speaking. As Ms. Kindermann’s guest, you are eligible for 20% off the registration fee!
Proactive Subdivision Map and Entitlement Strategies Post-Recession
November 19, 2013
Crowne Plaza Sacramento, 5321 Date Avenue
Register online: http://www.lorman.com/392308
Discount code: W5788086
Priority code: 15999
The Central Valley Regional Water Quality Control Board (“CVRWQCB”) adopted new waste discharge requirements within the Tulare Lake Basin area on September 19, 2013, in order to protect ground and surface water from irrigated agricultural discharges. The area impacted by the new requirements includes farmland in Fresno, Tulare, Kings and Kern counties. The requirements apply to farmers in the region who join an approved third-party group or coalition. (Those growers who do not join a coalition will be directly regulated by the CVRWQCB, and will be subject to higher costs.) Under the new rules, farmers will be required to report their water quality protection practices to their respective coalition. Growers who have not already implemented practices that protect water quality will be required to improve their practices. All growers will be required to prepare nitrogen management plans. Farmers whose land lies above the most vulnerable groundwater aquifers must submit information to the coalition on their nitrogen use efficiency. The coalition will prepare technical reports, conduct required studies and monitoring, and submit reports to the Central Valley Water Board on behalf of the growers.
For more information: