Abbott & Kindermann Is Pleased To Announce That William W. Abbott Has Been Included In The 22nd Edition Of The Best Lawyers In America©

William W. Abbott has been selected by his peers for inclusion in the 22nd Edition of The Best Lawyers in America© in the practice areas of Land Use & Zoning Law and Litigation-Land Use & Zoning Law.

Mr. Abbott has also been included in Sacramento Magazine's Top Lawyers List in the practice area of Land Use/Zoning.

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Return of Banning Ranch: The Spurned Responsible Agency

By Daniel S. Cucchi

Banning Ranch Conservancy v. City of Newport Beach
(2015) 236 Cal.App.4th 1341 (“Banning Ranch II”).

In the latest installment of the Banning Ranch saga, we are provided another great example of the importance of carefully chosen words and phrases in a jurisdiction’s general plan policies and action statements.  In Banning Ranch II (2015), the City of Newport Beach approved a residential and commercial project located on one quarter of the 400-acre, largely undeveloped coastal property known as Banning Ranch. As the city processed the application, staff engaged with the Coastal Commission (“Commission”) through: (1) notification that the city was processing the project; (2) meetings to discuss Commission staff’s concerns; and (3) responding to the Commission’s submitted comments on the DEIR. Not satisfied with the project as proposed, the Commission commented that the city was required to work with the Commission to decide the appropriate use of habitats prior to project approval. The city responded by simply making it clear in the EIR that the project would not go forward without a coastal development permit from the Commission. The City then proceeded to approve the project, as is. Banning Ranch Conservancy (“Petitioners”) filed suit, arguing that: (1) the City violated its own general plan by failing to adequately coordinate with the Commission; and (2) the city’s EIR failed to identify potential impacts to “environmentally sensitive habitat areas” (“ESHA”), defined by the California Coastal Act, as a result of the project. The trial court found the city violated its general plan, but upheld the adequacy of its EIR. Both parties appealed.

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Abbott & Kindermann, LLP Is Pleased To Announce That Two Of Its Attorneys Have Been Chosen For The 2015 Northern California Super Lawyers List

Diane G. Kindermann was selected in the practice areas of Environmental, Land Use/Zoning and Real Estate and William W. Abbott in the practice areas of Land Use/Zoning and Real Estate. More information is available at http://www.superlawyers.com/california-northern/. The firm is pleased to continue to serve private and public clients in Northern California on land use, environmental and real estate matters for more than 19 years.

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Recirculated Draft Bay Delta Conservation Plan Is Issued For Public Comment Until August 31, 2015, In The Face Of Significant Opposition.

On July 9, 2015, the California Department of Water Resources released the Bay Delta Conservation Plan/California WaterFix Partially Recirculated Draft Environmental Impact Report/Supplemental Draft Environmental Impact Statement for public review. The public comment period is July 10, 2015 through August 31, 2015. The BDCP’s new documents include a new sub-alternative-Alternative 4A (California WaterFix) - as the proposed project. Alternative 4A separates the conveyance facility and habitat restoration measures into two separate efforts: California WaterFix and California EcoRestore. Those significant changes were the result of the project’s abandonment of the goal to secure 50-year environmental permits from federal agencies. 

The new “WaterFix” part includes “water conveyance facilities (three new intakes along the Sacramento River and dual-bore tunnels to convey water to the existing state and federal pumping facilities).”  The location and design of the intakes were changed in the latest version to minimize the disruption and dislocation of Delta residents, and to reduce the environmental footprint of the project. Local farming groups and agencies in the Delta are concerned about the further degradation and salinity of the Delta waters caused by the project. Also, the reality that the federal environmental permits will be far less than 50 years in length is giving the water agency proponents great pause is deciding whether or not the revise project is financially viable, despite already spending about $235 million to get the proposal this far. 

The new “EcoRestore” portion of the project consists of a 5-year plan to purportedly “pursue more than 30,000 acres of critical Delta restoration under the EcoRestore program, and pursuant to pre-existing regulatory requirements and various enhancements to improve the overall health of the Delta.” However, 25,000 acres of that 30,000 number were already committed to by state and federal officials in agreements entered into in 2008 and 2009. Thus, the Natural Resources Agency confirmed on July 13 that the new BDCP project will actually commit to only 15,600 acres for habitat restoration to offset any environmental harm from construction of the tunnels. That is only one-sixth of the original 100,000 acres of habitat restoration that was promised in the original BDCP proposal. Thus, Sacramento County Supervisor Don Nottoli opines that the revised project “really doesn’t fix anything.” 

Meanwhile, Dean Cortopassi, a Stockton-area farmer and food processor, is seeking to place on the November 2016 ballot an initiative that would force large public works projects requiring revenue bonds costing more than $2 billion to go before the voters for approval. That initiative could impact the current BDCP project, depending upon how the project is financed. If that initiative passes and the current BDCP project is subject to voter approval, a former official of the Brown Administration opines that the project would be “very much in danger of failing,” and that project proponents therefore need to modify the project to avoid a public vote.

For More Information:

http://baydeltaconservationplan.com/2015news/15-04-30/DWR_Announces_Modified_Preferred_Alternative.aspx

http://baydeltaconservationplan.com/2015PublicReview.aspx

http://www.sacbee.com/news/state/california/water-and-drought/article26872906.html

http://www.sacbee.com/news/state/california/article27172270.html

Glen C. 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, nor 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.

 

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Do You Seek Compensation For An Unconstitutional Taking? Then Plead That With The Mandamus Action To Avoid The Potential Statute Of Limitations Bar!

By Glen C. Hansen

In Honchariw v. County of Stanislaus (2015) 237 Cal.App.4th 388, the Court of Appeal for the Fifth Appellate District held that a landowner's inverse condemnation claim for damages against the County of Stanislaus caused by an unconstitutional temporary taking was time-barred under Government Code section 66499.37. The owner previously had filed a successful petition for writ of mandate challenging the disapproval of a subdivision application, which resulted in the County’s reconsideration of the application and eventual approval of the project. However, the owner’s subsequent claim for compensation damages was time-barred under section 66499.37 because the mandamus proceeding had not established that there had been a compensable taking.

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Join William Abbott on August 20, 2015 for UC Davis Extension's Vested Rights, Vesting Maps and Development Agreements Class.

Class Description:

Development agreements are an effective avenue for a community and developer to come together and process a project. Both sides of the table need to carefully consider the terms of these contracts and explore questions of content and performance before completing such an agreement. Learn the legislative and judicial aspects of development agreements.

Explore the legal basis for development agreements and the overlap between agreements and vesting subdivision maps. Examine the negotiating process, identify and discuss the range of options available when negotiating a development agreement, and review the theoretically possible agreement. Consider the key points of an agreement, learn ways to assist in understanding the needs of the other side and select the players to conduct the negotiation.

Topics include:

  • Common law vested rights
  • Legal review
  • Development agreements vs. vested maps
  • The Development Agreement Statute
  • Key terms and alternative approaches
  • Considerations in negotiating the agreement
  • Contents of an agreement
  • Testing the waters
  • Paper control--who drafts the document
  • Enforceability
  • How to implement agreements
  • What happens after the life of an agreement

Schedule:

August 20, 2015 – Thursday, 9:00 a.m. to 4:30 p.m.

Sacramento: Sutter Square Galleria, 2901 K Street

Instructors:

William Abbott and Steven Rudolph

For more info, or to enroll visit: https://extension.ucdavis.edu/section/vested-rights-vesting-maps-and-development-agreements

 

'It's Good Enough For Government Work': Project May Violate Some General Plan Policies So Long As It Is Consistent With A Majority Of The General Plan

Save Our Heritage Organisation v. City of San Diego (2015) 237 Cal.App.4th 163.

By Glen C. Hansen

Balboa Park, a large urban park in San Diego, includes the buildings and plazas constructed for the 1915 Panama-California Exposition and the adjoining buildings and improvements subsequently constructed for the 1935 California Pacific International Exposition (the Complex). Visitors enter the Complex via the Cabrillo Bridge (“Bridge”). The Bridge and the Complex are a National Historic Landmark and a National Historic Landmark District. A project was proposed to return the plazas to purely pedestrian zones. The project included a new “Centennial” bridge, reconfigured roadways and a new pay-parking structure. The City of San Diego (“City”) approved a site development plan for the project.

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SAVE THE DATE! Abbott & Kindermann's 2nd Annual Update on Easement Law and Boundary Disputes

Glen C. Hansen of Abbott & Kindermann, LLP, will present the 2nd annual update on recent developments in resolving easement and boundary disputes in California. This is an advanced class aimed primarily at land surveyors, civil engineers, attorneys, and property owners. This intense, three-hour class examines recent case law about:

  • Creating and Terminating Easements
  • Accommodating Neighbors vs. Creating Prescriptive Easements
  • Determining the Scope of an Easement
  • Interfering with Easement Rights
  • Locating and Maintaining Boundary Dividers
  • Using Historical Evidence in Boundary Disputes
  • Resolving Conflicting Surveys

MCLE and American Planning Association continuing education credits offered, pending approval.

MCLE 3.0       CM 3.0

Glen C. Hansen is Senior Counsel at Abbott & Kindermann, LLP, and a long-time practitioner in real estate and land use law.

Cost $85.00 

Locations and Times

Roseville – October 23, 2015, 8:00 a.m.-11:45 a.m.  (To Register for the Roseville Location Click Here)

Holiday Inn Express – Roseville, 1398 East Roseville Parkway, Roseville, CA 95661

Registration:   8:00 a.m.

Class:              8:30 a.m. – 11:45 a.m.

Break:             10:00 a.m. – 10:15 a.m.

 

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"Outrageous" CEQA Attorneys' Fees - Anatomy Of A 91% Haircut On Fee Recovery

By Glen Hansen

Save Our Uniquely Rural Community Environment v. County Of San Bernardino (2015) 235 Cal.App.4th 1179

In Save Our Uniquely Rural Community Environment v. County Of San Bernardino (2015) 235 Cal.App.4th 1179, the Court of Appeal for the Fourth Appellate District held that a petitioner failed to show that a trial court abused its discretion when it awarded petitioner $19,176 in attorneys’ fees under Code of Civil Procedure section 1021.5 despite petitioner’s request for $231,098, because petitioner (a) prevailed on only one of its numerous claims under the California Environmental Quality Act (“CEQA”) and local zoning ordinances; (b) excessively billed the case; and (c) failed to demonstrate why it was entitled to out-of-area attorney fee rates.

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2015 CEQA 2nd QUARTER REVIEW

By William W. Abbott, Diane Kindermann, Glen Hansen, Brian Russell and Dan Cucchi

Welcome to Abbott & Kindermann’s 2015 2nd Quarter CEQA update. This summary provides links to more in depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts. Highlights include the first decision (Paulek) to address exemptions following Berkeley Hillside, with this new decision succeeding in muddying CEQA legal waters. Keep Our Mountain Quiet reminds CEQA practitioners once again of the challenges when using negative declarations and will make life more difficult in the agritourism industry. And in litigation, the court of appeal affirms that a trial court decision as to an award of attorneys’ fees is rarely disturbed on appeal (Save Our Uniquely Rural Environment).

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