City Elimination Of Minimum Densities Not Exempt From CEQA Review

People for Proper Planning v. City of Palm Springs (April 22, 2016, E062725) ____ Cal.App.4th ____. 

By William W. Abbott

In 2013, the City of Palm Springs amended its general plan to remove any mention of minimum densities in the residential land districts. The text of the general plan in some residential districts provided for a range of densities, in others an average density or one stated density. The general plan also provided that the stated densities at the upper end were maximums, but the lower end reflected “the minimum amount of development anticipated, provided that all other required conditions can be met.” The City Council’s resolution adopting the amendment provided in part that “the current and past practice of the city… is to consider only the maximum density allowed within each land category and consider and approve lower density projects.” The Council passed the resolution relying upon a categorical exemption (Class 5; “minor alterations in land use limitations in areas of average slope of less than 20%, which do not result in any changes in land use or density….”). A citizens group filed suit, challenging the amendment on CEQA grounds as well as violations of the state planning and zoning law. The trial court ruled in favor of the city and the petitioners appealed. In the published portion of the decision, the appellate court reversed the City’s use of an exemption.

Surprisingly, the appellate court did not cite the Supreme Court’s decision in Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943, on judicial review of CEQA exemptions. The appellate court’s first point was that the amendment facially conflicted with the terms of the exemption in that that it resulted in change in densities. Accepting for the sake of argument the City’s position that the amendment simply reflected actual city practices, the appellate court noted that the petitioner had presented sufficient evidence of a fair argument (without elaborating on that evidence) and that the general plan amendment was capable of significant cumulative effects to the supply of high density, low and moderate income housing. To this latter point, the court noted that the 2007 General Plan EIR discussed the role of high density housing to meet its housing needs and to avoid unnecessary conversion of surrounding desert lands. The Court then questioned the City’s ability to meet its fair share of housing as a basis to overturn the use of the CEQA exemption.

The court went on to address the City’s argument that the baseline had not changed, asserting that as the City had not interpreted its general plan in a manner which dictated minimum densities, there was therefore no change from the baseline as a result of the general plan amendment. The Court concluded that once the general plan was adopted, it became the new baseline. Since the general plan relied upon the anticipated densities to meet housing needs, the question remained as to the City’s ability to meet its fair share housing needs. Although the published decision lacks critical analysis, the inference is that this unanswered question defeated the use of the categorical exemption.

Comment: The court’s characterization of the general plan as the new baseline while in many circumstances this would be an ideal approach in reducing CEQA burdens, this court’s approach is at variance with a number other long standing CEQA decisions, and lead agencies should be cautious about uncritical reliance upon this approach. The decision is best viewed as an unusual analysis of a CEQA exemption and left at that.

William W. Abbott is a partner 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.

 

Court Of Appeal Holds That, While The California Constitution Does Not Guarantee A Right of Access To Martin's Beach, The Public May Have An Access Right Under The Theory Of Common Law Public Dedication.

By Glen Hansen

Friends Of Martin's Beach v. Martin's Beach 1, LLC (2016) 246 Cal.App.4th 1312

In a dispute between a plaintiff unincorporated association asserting public rights and defendant property owners over the use of a road, parking area and the inland dry sand of a popular beach that were owned by defendants, the Court of Appeal for the First Appellate District in Friends Of Martin’s Beach v. Martin’s Beach 1, LLC (2016) 246 Cal.App.4th 1312, 2016 Cal.App.LEXIS 341, held: (1) that the trial court properly granted summary adjudication as to plaintiff’s claim that Article X, section 4, of the California Constitution, confers on the public a right of access over private property to tidelands; and (2) that the trial court erred in granting summary adjudication as to plaintiff’s claim that, under the theory of common law dedication, the owner’s predecessors dedicated such access to the public through their words and acts, and that the public accepted that offer by using those parts of defendants’ property.

The Martin’s Beach case involved two parcels of land bounded on the east by Highway 1 and on the west by the Pacific Ocean (“Property”). At the western edge of the Property is a crescent-shaped strip of land known as “Martin’s Beach.” The only land access to Martin’s Beach is via a road that runs across the Property from Highway 1 to the beach. The Property was once part of a larger tract of land that was provisionally granted by the Mexican Governor of California in 1838 (“Rancho”).  The grant was not finalized by the time war broke out between Mexico and the United States in 1848. The Treaty of Guadalupe Hidalgo ended the war, and in 1851, Congress passed legislation to implement the Treaty. The 1851 Act established the process to address pre-war land claims.  Claims that were confirmed in those proceedings resulted in a federal patent, which is the equivalent of a deed from the federal government conveying fee simple ownership.  A patent claim for the Rancho was eventually confirmed in such patent proceedings, and by the United States Supreme Court on appeal.  Over time, the Rancho was divided into smaller parcels, including the Property, and conveyed to various persons. 

The Property was eventually acquired by the Deeney family.  The Complaint in this case alleged that, from the 1930s or earlier, the Deeney family invited the public to use the beach and the road to the beach both by words and conduct, specifically by posting a large billboard on the highway inviting the public to come to the beach by way of the road, by “welcom[ing] all ‘with open arms,’” and by constructing public toilets, a parking area and a convenience store catering to those who visited the beach.  For some of that time they charged a 25ȼ parking fee.  The Complaint also alleged: “Postcards from the ‘50s show hundreds of people enjoying idyllic days at a beach that at times had the feel of a Mediterranean escape.” “In more recent years, surfers, in particular, enjoyed what the website Surfpulse refers to as a ‘mystical and multi-faceted playground’ and what Save the Waves’ program director called ‘a natural theme park with sand.’”  The Deeney family sold the Property to defendants Martin’s Beach 1, LLC and Martin’s Beach 2, LLC (“Owners”) in 2008.  In 2009, the Owners locked a gate barring the entrance to the road, placed “No Trespassing” signs there and otherwise prevented the public from using the road or the beach.

Plaintiff Friends of Martin’s Beach, an unincorporated association (“Plaintiff”), filed a complaint against the Owners “on behalf of the general public,” citing numerous legal theories and causes of action in order to assert “nonexclusive rights and interests acquired by the general public in the beach to high tide at Martin’s Beach, the dry sand inland, an inland area historically used for parking and access along Martin’s Beach Road.”  In response to the parties’ cross-motions for summary adjudication, the trial court ruled in favor of Owners on all of the public access issues.  Plaintiff appealed.  The Court of Appeal affirmed in part, reversed in part, and remanded the case to the trial court on the public dedication claim. 

Plaintiff’s Constitutional Claims For Public Access

Plaintiff argued that Article X, section 4, which was adopted by the People as part of the Constitution of 1879, entitled the public to an easement to use the road across the Property for the purpose of gaining access to the tidelands.  That section 4 provides:

 

No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof. 

However, the Court of Appeal affirmed the trial court’s conclusion that, whatever public rights exist under section 4 (that issue was not decided), do not override the federal land patent title in the Owner in light of Summa Corp. ex rel. Lands Commission v. California (1984) 466 U.S. 198.   In Summa, the U.S. Supreme Court held that the State of California acquired no public trust interest in lands to which title was confirmed under the federal Act of 1851 patent process based on a Mexican land grant, unless such interest was asserted by the State in the patent proceedings.  Here, Plaintiff's cause of action based on section 4 was barred under Summa because California did not acquire a public interest in the Property.  That was so because the State did not assert any such interest during the patent proceedings for the Rancho in the 1850s.  In response to Plaintiff’s attempts to distinguish Summa, the Court further held (1) that the provisional nature of the Mexican land grant for the Rancho did not alter the conclusive application of Summa; (2) that section 4 is, at least in part, a codification of the public trust doctrine; and (3) that section 4 is not a mere regulation of an “incident of ownership.”  Thus, Plaintiff’s constitutional claim based on section 4 was barred under Summa.  The Court also explicitly rejected Plaintiff’s alternative argument that section 4 is retroactive and burdens lands held in private ownership before its enactment. Not surprisingly, counsel for the owner called the Court of Appeal’s ruling on the section 4 claim, which ruling rejected the idea of a guaranteed right of beach access under the California Constitution, “a win for our client and for all coastal property owners.”

Plaintiff’s Common Law Dedication Claim For Public Access

The Court of Appeal held that the trial court erred in granting summary adjudication as to Plaintiff’s common law dedication claim.  A common law dedication is a “grant and a gift” of land or an interest in land to the public for a public use.  A claim for dedication has two elements: “intention to dedicate by the owner, and acceptance by the public.” To constitute a dedication at common law no particular formality of either word or act is required. All that is necessary is sufficient evidence that the property owner either expressly or impliedly manifested an unequivocal intention to offer the property for a public purpose and that there was an acceptance of the offer by the public. Such intent may be demonstrated in any conceivable way that a person’s intention can be shown.  Similarly, the acceptance element may be formal, as by resolution or ordinance, or by use.  Here, the Court rejected the Owner’s singular focus on the “express” dedication label that was used in Plaintiff’s Complaint. The elements are the same for either an implied or an express dedication; the only difference is in the mode of proof of the intent element. Contrary to the Owners’ argument, the “intent to dedicate” element in an express dedication may be established by words or overt conduct of an owner other than a grant deed to a public agency or similar formal writing.  Also contrary to the Owners’ argument, an express dedication does not need to be accepted in a formal way or by a public entity. Here, the Court of Appeal held that “there can be little doubt that the facts [Plaintiff] alleged are sufficient to establish the elements of common law dedication, if they can be proven at trial. The complaint alleged a number of acts on the part of the owners that could manifest an intent to dedicate to the public, coupled with public use over many decades that could establish acceptance.” 

Furthermore, it was error for the trial court to conclude, as a matter of law, that the fact that the Deeneys “at some point charged a fee” to the public negated any intent to dedicate.  Evidence of such permissive use may tend to show the owner intended to control or qualify other parties’ access to the property and thereby rebut a finding of dedicative intent.  But that was a triable issue of fact.  Also, the Court held that the trial court erred when it inferred that the Deeneys’ commercial purpose for inviting the public to use the road and beach negated the intent to dedicate the road or beach, as a matter of law.  In fact, such commercial purpose may support a finding of intent to dedicate.

Accordingly, the Court held that Plaintiff alleged facts sufficient to state a common law dedication claim, and the Owners failed to show, as a matter of law, that they are entitled to judgment on this cause of action. The Court remanded the case to the trial court to adjudicate Plaintiff’s common law public dedication claim.  After the Court of Appeal opinion was issued, counsel for Plaintiff stated the ruling “gave us a road map to how to win at trial.”  However, that remains to be seen in this very public lawsuit.

Glen Hansen is a 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.

 

Homeowners' Association Receives $6,620 Judgment For Fines, Dues and Fees Against Property Owner; Then Association Obtains $101,803 Award Of Attorneys' Fees And Costs Against Owner As The "Prevailing Party."

By Glen C. Hansen

Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761

In an action by a homeowners’ association to enforce $54,000 in dues, fees, fines and interest imposed on property owners under the applicable CC&Rs, the Court of Appeal for the Sixth Appellate District held in Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 2016 Cal.App LEXIS 301 that (1) the trial court properly issued a judgment that concluded that only $6,620 of the fines were valid against the owners; (2) the trial court did not abuse its discretion in determining that the association achieved its main enforcement objectives and was therefore the prevailing party under the Davis-Stirling Common Interest Development Act (“ Act,” Civ. Code §§4000 et. seq.); and (3) the trial court’s award in favor of the association of its full attorneys’ fees and costs in the amount of $101,803.15 was not unreasonable.

In Almanor, the plaintiff was a homeowners association (“Association”) under the Act for the Almanor Lakeside Villa development (“Development”) on Lake Almanor in Plumas County.  Defendants and cross-complainants James and Kimberly Carson owned a lodge and two chalets (the “Properties”) within the Development.  The Properties are among only a few lots in Development that accommodate commercial use, partially due to the preexisting use of the lodge. The Properties were subject to the CC&Rs of the Development.  Among other things, section 4.09 of the CC&Rs prohibited owners from using their lots “for transient or hotel purposes” or renting for “any period less than 30 days.” From 2010 through 2012 the Association’s Board developed rules to enforce the CC&Rs, including enforcement of the section 4.09 restriction on short-term rentals if a copy of any rental agreement is provided to the Association seven days before the rental period.  Other rules were adopted that affected the Properties, such as parking, trash storage, use of common areas, and issuing decals for any boats using the Association’s boat slips. The Carsons did not believe that such rules applied to their Properties because of section 4.01 of the CC&Rs and the long-established commercial status of the Properties.  The Association sought to impose fines and related fees of $19,979.97 on the Carsons for alleged rule violations related to the Carsons’ leasing of their properties in the development as short-term vacation rentals. The Carsons viewed the rules as unlawful and unfair use restrictions on their commercially zoned properties. Also, the Carsons argued that the Association improperly applied $1,160 of the Carson’s payment for dues toward the fines imposed by the Association.

The Association sued to enforce its rules and recover the fines it imposed, estimating that the total owed by the Carsons was $54,000.  The Carsons cross-complained for breach of contract, private nuisance, and intentional interference with prospective economic advantage. The trial court found that the 30-day minimum rental restriction imposed by section 4.09 of the CC&Rs presented an “obvious conflict” with section 4.01, which “expressly allow[ed] the Carsons to use their lots for commercial purposes (presumably including lodging, since the properties are, in fact, lodges).” The trial court concluded only $6,620 in fines pertaining to the nonuse of the Association’s boat decals were reasonable.  The trial court also concluded that, even assuming the Association had breached the CC&Rs, the Carsons had not proven any damages and so they received nothing on their cross-complaint.  On the parties’ competing motions for attorneys’ fees, the trial court determined the Association to be the prevailing party and awarded the Association its full $101,803.15 in attorneys’ fees and costs.  The Carsons appealed. The Court of Appeal affirmed the judgment.

On appeal, the Court addressed three issues.  First, the Carsons challenged the trial court’s determination that they failed to prove damages for their breach of contract cause of action in their cross-complaint. The Court held that, while the trial court’s statement of decision did not specifically reference the Carson’s $1,160 damages claim asserted on appeal, the trial court’s finding that the Carsons failed to establish damages by competent evidence was sound.

Second, the Court addressed the Carsons’ argument that the trial court abused its discretion when it found that the Association was the prevailing party despite having disallowed a majority of the fines the Association sought to have imposed.  The Court explained that Civil Code section 5975 of the Act provides that, in an action to enforce CC&Rs “the prevailing party shall be awarded reasonable attorney's fees and costs.” Thus, “‘“the trial court is therefore obligated to award attorney fees whenever the statutory conditions have been satisfied.”’” The test for prevailing party “is a pragmatic one, namely whether a party prevailed on a practical level by achieving its main litigation objectives.” That test involves a comparison of “the relief awarded on the contract claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources.” Thus, the court must compare “‘the extent to which each party ha[s] succeeded and failed to succeed in its contentions’” and “the practical effect of the relief attained by each.”

Here, the trial court did not abuse its discretion in determining that the Association was the prevailing party.  Of the 88 fines that the Association sought to enforce at trial, the trial court upheld only eight. The Carsons’ success at trial substantially lowered their liability for damages and supported their position that the CC&Rs and associated rules could not impose an unreasonable burden on the properties.  However, by upholding a subset of the fines, the trial court “ruled more broadly” that the Association could impose reasonable use restrictions on the Carsons’ properties. That ruling “echoed [the Association’s] stated objective at trial that the Association sought to counter the Carsons’ position that ‘because their lot is zoned “Commercial,” they are not bound by the rules.  “The fractional damages award does not negate the broader, practical effect of the court’s ruling, which on the one hand narrowed the universe of restrictions that [the Association] could impose on the properties, but on the other hand cemented [the Association’s] authority to promulgate and enforce rules pursuant to the CC&Rs so long as they are not unreasonable.” The court also ruled entirely in favor of the Association on the Carsons’ cross-complaint by finding that the Carsons’ alleged damages were unsupported by competent evidence and too speculative. Thus, the trial court did not abuse its discretion in determining the Association to be the prevailing party.

The Carsons made the public policy argument that, by granting attorneys’ fees to the Association, “the Court is stating that the Carsons should have paid the $54,000.00 that Respondent claimed was owed … , even though only $6,620.00 was actually owed, because they would be penalized for defending themselves and, in the end, owe an additional $101,803.15 in attorney's fees for defending themselves.” The Court rejected that argument because the Act mandates the award of attorneys’ fees to the prevailing party, and so the trial court had no discretion to deny attorney's fees once it determined who was the prevailing party.

Third, the Court addressed the Carsons’ argument that the amount of the attorneys’ fees that the trial court awarded was unreasonable (“grossly disproportionate”) in light of the Association’s limited success at trial.   That is an issue committed to the discretion of the trial court. The Carsons argued that Code of Civil Procedure section 1033, subdivision (a), provides that the court has the discretion to disallow attorney's fees if a party obtains less than the statutory minimum to be classified as an unlimited civil matter.  But the Court rejected that argument because the discretionary provisions of section 1033, subdivision (a), are irreconcilable with the mandatory fees award under section 5975 of the Act.  The Court recognized that “degree of success” may be considered in determining reasonable attorney's fees under Civil Code section 5975 of the Act, and to the extent a trial court is concerned that a particular award is excessive, “‘it has broad discretion to adjust the fee downward.’” In this case, however, the record did not show that trial court committed a manifest abuse of discretion by awarding the full attorney’s fees sought.  Also, the Carsons did not request a statement of decision with regard to the fee award, and so all intendments and presumptions are indulged to support the judgment. Furthermore, the trial court’s decision is supported by the fact that the minor subset of the fines that formed the basis for the Association’s monetary award requested was sufficient to satisfy the statutory criteria of an action to enforce the governing documents. “In practical effect, [the Association’s] limited success established a baseline from which it can continue to adopt and enforce reasonable use restrictions under the CC&Rs.” Thus, the Court did not find that the award of attorney's fees, compared to the overall relief obtained by the Association was so disproportionate as to constitute an abuse of discretion.

Glen Hansen is a 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.

 

WHO NEEDS THE LEGISLATURE WHEN YOU CAN ISSUE AN EXECUTIVE ORDER?

By William W. Abbott

Well, it has been a long time since I took my high school civics class. While I have forgotten far more than I remember, the distinct responsibilities allocated between the legislative branch and the executive branch remain deeply embedded in my memory. In the recent debate concerning the State’s attempt to curb greenhouse gas emissions, legal practitioners have voiced questions concerning how far governors can go in pushing the state forward and reigning in greenhouse gas emissions. That concern was recently addressed by the Legislature’s chief lawyer who expressed the office’s opinion that Governor Brown has gone too far. (link to opinion http://cssrc.us/sites/default/files/160422_LegCounselOpinion_GGRF.pdf)  Unsurprisingly, the Air Resources Board dismissed the analysis (link http://hosted2.ap.org/CAANR/CA/Article_2016-04-21-CA--Greenhouse%20Gases-California/id-831c8307e6ea42acb7453b39d71e7312). Draw your own conclusion, but I prefer to take my legal advice from a lawyer.

William W. Abbott is a partner 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.

 

2016 CEQA 1st QUARTER REVIEW

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

Welcome to Abbott & Kindermann’s 2016 1st 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.

1.         2015 CEQA UPDATE 

To read the 2015 cumulative CEQA review, click here: 

2.         CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are 5 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:

Banning Ranch Conservancy v. City of Newport Beach, S227473. (G049691; 236 Cal.App.4th 1341; Orange County Superior Court; 30-2012-00593557.) Petition for review after the Court of Appeal reversed the judgment in an action for writ of administrative mandate. This case presents the following issues: (1) Did the City's approval of the project at issue comport with the directives in its general plan to "coordinate with" and "work with" the California Coastal Commission to identify habitats for preservation, restoration, or development prior to project approval? (2) What standard of review should apply to a city's interpretation of its general plan? (3) Was the city required to identify environmentally sensitive habitat areas - as defined in the California Coastal Act of 1976 (Pub. Resources Code, § 3000, et seq.) - in the environmental impact report for the project?

Cleveland National Forest Foundation v. San Diego Assn. of Governments,

S223603. (D063288; 231 Cal.App.4th 1056, mod. 231 Cal.App.4th 1437a; San Diego County Superior Court; 37-2011-00101593-CU-TT-CTL, 37-2011-00101660-CU-TTCTL.) Petition for review after the court of appeal affirmed the judgment in a civil action. The court limited review to the following issue: Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05, so as to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? 

Friends of the Eel River v. North Coast Railroad Authority, S222472. (A139222; 230 Cal.App.4th 85; Marin County Superior Court; CV1103591, CV1103605.) Petition for review after the court of appeal affirmed the judgments in actions for writ of administrative mandate. This case includes the following issues: (1) Does the Interstate Commerce Commission Termination Act [ICCTA] (49 U.S.C. § 10101 et seq.) preempt the application of the California Environmental Quality Act [CEQA] (Pub. Resources Code, § 21050 et seq.) to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine (see Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314)? (2) Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state owned rail line and/or leasing state-owned property?

Sierra Club v. County of Fresno, S219783 (F066798, 226 Cal.App.4th 704); Fresno County Superior Court; 11CECG00706, 11CECG00709, 11CECG00726.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. This case presents issues concerning the standard and scope of judicial review under the California Environmental Quality Act. (CEQA; Pub. Resources Code, § 21000 et seq.)

Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist., S214061. (A135892; nonpublished opinion; San Mateo County Superior Court; CIV508656.) Petition for review after the court of appeal affirmed the judgment in an action for writ of administrative mandate. This case presents the following issue: When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385)? Or, is the agency’s decision subject to a threshold determination of whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)?

3.         UPDATE

A.              Exempt From CEQA Review 

Union of Medical Marijuana Patients, Inc. v. City of Upland (March 25, 2016) 2016 Cal. App. LEXIS 223

In 2007, the City of Upland adopted an ordinance banning both “fixed or mobile” medical marijuana dispensaries within the city limits. In reaction to the likely operation of marijuana delivery services within the city limits, the council adopted a new ordinance in 2013 that explicitly banned mobile dispensaries.  The Union of Medical Marijuana Patients (“UMMP”) filed a petition for writ of mandate, arguing that adoption of the ordinance was a “project” subject to the California Environmental Quality Act and the trial court denied.  The 4th appellate district court affirmed, holding that the ordinance was not a project under CEQA.  It reasoned that the 2013 ordinance was nothing more than a ratification of the previous existing ordinance which banned mobile dispensaries. It then further found that even if the 2013 did not restate existing law, the potential environmental effects raised by UMMP through studies evaluating industrial-scale indoor growing operations—increases in electrical and water, waste plant material and odors, hazardous waste materials, increased traffic—were speculative and, thus, not reasonably foreseeable environmental effects.  It reasoned that these concerns “rest on layers of assumptions” about the similarity of the potential acts and consequences of small-scale medical marijuana patients and those on an industrial-scale if the mobile delivery service ban is upheld.  

B.              Negative Declarations 

Preserve Poway v. City of Poway (2106) 245 Cal.App.4th 560.

It is no surprise that people dislike change. California’s near constant state of evolvement is fertile ground for localized conflict between those fostering growth and those seeking to protect the status quo. While the fear or opposition to community change may well be the motivating factor in many CEQA disputes, is community change by itself an impact which must be addressed. According to Division One of the Fourth Appellate District, the answer is no. 

The underlying facts are neither remarkable nor unusual. The setting is the City of Poway, known as “The City in the Country.” A property owner, Harry Rogers, had operated a horse boarding facility for twenty years, located across the street from the polo/rodeo grounds of the Poway Valley Riders Association (which did not offer horse boarding.) Seeking greener pastures, Rogers proposed to close the boarding facility and subdivide his property into equestrian residential lots. The proposed subdivision conformed to the zoning and was unanimously approved by the City Council based upon a negative declaration. Horse enthusiasts filed a CEQA challenge over the conversion of use. The CEQA challenge raised a number of issues, noteworthy among which involved the loss of the facility and its potential implications to the character of the community. Equestrian activities were well thought of and helped define the community of Poway. The trial court found that most of the issues in the CEQA writ petition had not been raised administratively and could not be pursued at trial for failure to exhaust administrative remedies. Reviewing the issue of community character, the trial court concluded that a fair argument had been made and directed that the Negative Declaration and project approval be set aside. As to the remaining issues, the trial court ruled for the City. The applicant timely appealed. The petitioners did not appeal the adverse ruling on the remaining claims. 

The appellate court reversed, concluding that community character was not the type of issue that CEQA was concerned with, as the impacts of closing the facility were social in character. The residents’ concerns were expressed in terms of childhood activities, life’s lessons while learned apparently on the back of a horse, the benefits to horse owners of not having to haul their horses around, and that the community would lose its country feel. While courts have recognized land use changes may affect a community through aesthetic impacts, in this particular case the impacts were to the psyche of the residents and were not the basis for requiring an environmental impact report. From the court’s perspective, these concerns were “psychological, social, and economic—not environmental.” 

The project opponents further argued that the existing rodeo/polo facility could cause impacts to the future subdivision. The appellate court rejected this argument, following the Supreme Court’s recent decision in California Building Industry Association v. Bay Ara Air Quality Management Dist. (2015) 62 Cal.4th 369, finding that CEQA’s focus was on the impacts of the project on the environment, not the other way around. As to traffic impacts, there was no “fair argument” from the court’s perspective. 

On appeal, the project opponents also argued that the trial court committed error in not requiring an EIR on other grounds. However, the opponents had failed to cross appeal these aspects of the lower court judgment, and could not now raise them in response to the appeal by the real party in interest. 

            C.        Environmental Impact Report

North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647. (Unpublished to Published January 4, 2016.)

               EIR found to be invalid for inadequate range of alternatives.

The Third Appellate District found an EIR to be inadequate for lack of a particular alternative. While this suggests a potential micromanagement of the EIR process, the decision involves an unusual fact pattern. The lead agency was California Department of Food and Agriculture, proposing a seven year program to eradicate an invasive insect, the light brown apple moth (“LBAM”)[1]. Found in select northern California counties, this insect had spread rapidly notwithstanding State efforts to control the pest. The State proposed a program to eliminate the insect (as compared to managing its population) and prepared an EIR. At the end of the EIR process, the State approved a seven year program to control LBAMs based upon new information that eradication was not deemed to be attainable. “Control,” as compared to eradication, was not considered in the EIR as a reasonable alternative. Rather, the alternatives section examined seven techniques for management (five of which were approved as part of the project.) Opponents filed suit, arguing primarily project segmentation (after all, the pest was only to be controlled, not eradicated, within seven years), unstable project description and inadequate project alternatives. 

The project objective was defined as “eradication,” an objective determined by the appellate court to be too narrow. Eradication was used as a screening tool that prevented the consideration of control, which in the end is what the State approved. The fact that the State approved control in the end did not salvage the EIR as the error was deemed to be prejudicial. While late project adjustments might be allowable if insignificant, the court viewed the administrative record as lacking in supporting an insignificance conclusion because of the omission of any consideration of control in the EIR. The court also observed that the record supported the inference that impacts associated with control might be greater than eradication because of the potentially indefinite duration. 

Petitioners also argued other technical defects in specific impact analyses, but these were all rejected by the appellate court. The court considered but rejected an argument that the EIR was defective for failure to consider site specific impacts.  Finally, the court addressed a cumulative impacts argument stating that the new EIR take into consideration the long term (post seven year effects and treatment) in the evaluation of cumulative impacts.

If you have any questions about these court decisions, contact William Abbott or Diane Kindermann. 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.



[1] From Australia, which has also brought us Mad Max, Crocodile Dundee, and shrimp-on-the-barbie.

 

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State Of California To Redirect Infrastructure Dollars To Areas Free From Climate Change Risk.

By William W. Abbott

Citing the need for planning for the long term, Assemblyman Elwood Mead unveiled his new legislation promoting the planning and development of new urban centers in California, planned and financially underwritten by the State. With a tag line of “Five High and Dry”, this legislation calls for five new urban centers, located above projected climate change impact zones (“high”), developed to the highest standards of water use and reuse efficiency (“dry”). A new state commission would approve and fund these new communities unrestricted by local general plans and zoning regulations. The legislation calls for redirecting state capital investment away from areas which cannot be reasonably saved towards new communities which are truly sustainable measured against all metrics. The Assemblyman’s press release stated: “We are all talking about climate change and water conservation, but no one is really doing anything about it except writing environmental impact reports. This is an opportunity for the State to show some real leadership and innovative thinking by developing safe, sustainable communities.  It is time to walk the walk and talk the talk.” A spokesperson for the Assemblyman went on to say: “This is nothing new.  Around World War I, the State sponsored two agricultural communities (Delhi and Durham) and we can learn from those experiences.  During the first Jerry Brown administration, the legislature passed a new cities bill which the Governor vetoed [https://news.google.com/newspapers?nid=2245&dat=19811001&id=fGczAAAAIBAJ&sjid=SDIHAAAAIBAJ&pg=7171,3533411&hl=en]. Given what lies in store from climate change, I think that the time has come again to revisit the concept and to prioritize the State’s investment capital. Undoubtedly local governments will be opposed, but let’s face it, it is not as if they have done such a great job.”

William W. Abbott is a partner 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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Community Character Is Not Within The Scope Of Required CEQA Analysis

Preserve Poway v. City of Poway (March 9, 2016, D066635) ___ Cal.App.4th ___.

By William W. Abbott

It is no surprise that people dislike change. California’s near constant state of evolvement is fertile ground for localized conflict between those fostering growth and those seeking to protect the status quo. While the fear or opposition to community change may well be the motivating factor in many CEQA disputes, is community change by itself an impact which must be addressed. According to Division One of the Fourth Appellate District, the answer is no.

The underlying facts are neither remarkable nor unusual. The setting is the City of Poway, known as “The City in the Country.” A property owner, Harry Rogers, had operated a horse boarding facility for twenty years, located across the street from the polo/rodeo grounds of the Poway Valley Riders Association (which did not offer horse boarding.) Seeking greener pastures, Rogers proposed to close the boarding facility and subdivide his property into equestrian residential lots. The proposed subdivision conformed to the zoning and was unanimously approved by the City Council based upon a negative declaration. Horse enthusiasts filed a CEQA challenge over the conversion of use. The CEQA challenge raised a number of issues, noteworthy among which involved the loss of the facility and its potential implications to the character of the community. Equestrian activities were well thought of and helped define the community of Poway. The trial court found that most of the issues in the CEQA writ petition had not been raised administratively and could not be pursued at trial for failure to exhaust administrative remedies. Reviewing the issue of community character, the trial court concluded that a fair argument had been made and directed that the Negative Declaration and project approval be set aside. As to the remaining issues, the trial court ruled for the City. The applicant timely appealed. The petitioners did not appeal the adverse ruling on the remaining claims.

The appellate court reversed, concluding that community character was not the type of issue that CEQA was concerned with, as the impacts of closing the facility were social in character. The residents’ concerns were expressed in terms of childhood activities, life’s lessons while learned apparently on the back of a horse, the benefits to horse owners of not having to haul their horses around, and that the community would lose its country feel. While courts have recognized land use changes may affect a community through aesthetic impacts, in this particular case the impacts were to the psyche of the residents and were not the basis for requiring an environmental impact report. From the court’s perspective, these concerns were “psychological, social, and economic—not environmental.”

The project opponents further argued that the existing rodeo/polo facility could cause impacts to the future subdivision. The appellate court rejected followed the Supreme Court’s recent decision in California Building Industry Association v. Bay Ara Air Quality Management Dist. (2015) 62 Cal.4th 369 and rejected the argument, finding that CEQA’s focus was on the impacts of the project on the environment, not the other way around. As to traffic impacts, there was no “fair argument” from the court’s perspective.

On appeal, the project opponents also argued that the trial court committed error in not requiring an EIR on other grounds. However, the opponents had failed to cross appeal these aspects of the lower court judgment, and could not now raise them in response to the appeal by the real party in interest. 

William W. Abbott is a partner 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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REGISTER TODAY! WETLANDS: NEW ISSUES - NEW CONTROVERSIES -OLD AND NEW SOLUTIONS

Reserve your seat for this seminar taking place on March 15, 2016

This seminar addresses wetlands and associated endangered species challenges, the latest statutory and regulatory guidance, plus valuable strategies for addressing each. Compliance guidance for wetlands programs will be provided while underscoring the issues and solutions specific to the agricultural and development community.

You will hear the latest trends, case studies and policies related to wetlands and associated ESA regulations to enable you to proactively address and plan in lieu of reacting to regulatory changes and trends as they evolve. To view the class outline click here.

Speakers

Diane G. Kindermann is a founding partner of Abbott & Kindermann, LLP a land use, environmental and real estate firm representing clients throughout California. Since 1989, she has been practicing in the areas of environmental, land use, and real estate law representing numerous private and public agency clients, development, agricultural, industrial, mining and other landowner interests in matters concerning environmental, land use, planning and zoning laws, CEQA, Federal and State Endangered Species Acts, wetlands, water rights and water quality, mineral rights, timber and forestry resources, NEPA and hazardous waste matters, including CERCLA. She provides legal guidance on permit acquisition and compliance at the regulatory agency level and litigation services at the Federal, State and local levels.

Diane S. Moore, M.S. is the Principal Biologist of Moore Biological Consultants, a biology-based firm specializing in compliance with Clean Water Act (CWA) and State and Federal Endangered Species Acts.  She has over 25 years experience in the management of biological resources including due-diligence, baseline inventory, impact assessment, permitting, and preparation of various environmental documents and has secured wetland permits and associated approvals from the U.S. Army Corps of Engineers and other agencies for a variety of public works, development, recreation, agriculture, mining, and restoration projects, primarily in the Central Valley.

(To Register Click Here)

  • Date: Tuesday, March 15, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available. (Approval pending.) 

 

 

REGISTER TODAY! WETLANDS: NEW ISSUES - NEW CONTROVERSIES -OLD AND NEW SOLUTIONS

Reserve your seat for this seminar taking place on March 15, 2016

This seminar addresses wetlands and associated endangered species challenges, the latest statutory and regulatory guidance, plus valuable strategies for addressing each. Compliance guidance for wetlands programs will be provided while underscoring the issues and solutions specific to the agricultural and development community.

You will hear the latest trends, case studies and policies related to wetlands and associated ESA regulations to enable you to proactively address and plan in lieu of reacting to regulatory changes and trends as they evolve. To view the class outline click here.

Speakers

Diane G. Kindermann is a founding partner of Abbott & Kindermann, LLP a land use, environmental and real estate firm representing clients throughout California. Since 1989, she has been practicing in the areas of environmental, land use, and real estate law representing numerous private and public agency clients, development, agricultural, industrial, mining and other landowner interests in matters concerning environmental, land use, planning and zoning laws, CEQA, Federal and State Endangered Species Acts, wetlands, water rights and water quality, mineral rights, timber and forestry resources, NEPA and hazardous waste matters, including CERCLA. She provides legal guidance on permit acquisition and compliance at the regulatory agency level and litigation services at the Federal, State and local levels.

Diane S. Moore, M.S. is the Principal Biologist of Moore Biological Consultants, a biology-based firm specializing in compliance with Clean Water Act (CWA) and State and Federal Endangered Species Acts.  She has over 25 years experience in the management of biological resources including due-diligence, baseline inventory, impact assessment, permitting, and preparation of various environmental documents and has secured wetland permits and associated approvals from the U.S. Army Corps of Engineers and other agencies for a variety of public works, development, recreation, agriculture, mining, and restoration projects, primarily in the Central Valley.

(To Register Click Here)

  • Date: Tuesday, March 15, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available. (Approval pending.) 

 

Seminar on Boundary Disputes, Adverse Possession, Easements and Conflicting Surveys

Glen Hansen will be speaking at the “Boundaries and Easements” seminar on March 10, 2016, in Sacramento, California, hosted by HalfMoon Education Inc.  For more information, please click here to view the brochure.