August 2005

by William W. Abbott Most readers of this newsletter are already aware that the evidentiary threshold necessary to push a ND into an EIR is relatively low. In a June 2005 Abbott & Kindermann article, we discussed the decision of Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, a Third Appellate District decision. On the heels of Pocket Protectors now comes Mejia vs. City of Los Angeles (2005) 130 Cal.App.4th 322, another court of appeal decision, now from the Second Appellate District. Maria Mejia, a non-lawyer, beat both the City Attorney’s office and developer’s legal counsel twice, winning multiple arguments along the way. The project history, and her winning arguments, are as follows: Continue Reading Negative Declarations: Fair Argument, Qualitative and Quantitative Analysis

by William W. Abbott

In San Remo Hotel v. City and County of San Francisco (2005) 125 S.Ct. 2491, the United States Supreme Court ventured once again in the area of takings jurisprudence, addressing the circumstances in which property owners may be trapped in state court rather than federal district court. As disappointed property owners typically prefer federal court, the San Remo decision is important and overdue as a clarification as to litigation tactics. Continue Reading Hotel San Remo: You Can Check Out, But Can You Ever Leave?

The California Air Resources Board released an informational guide to air quality and land use issues. Among other suggestions, it recommends that planners avoid siting new sensitive land uses (residences, schools, daycare centers, playgrounds, or medical facilities) within 1,000 feet of major rail yards. For more information, download the handbook at http://www.arb.ca.gov/ch/landuse.htm.

Recently, Bill Abbott served as part of the development team with The Engineering Group for the recently approved Cielo Vista subdivision in Chico.

by William W. Abbott and Janell M. Bogue

A proposed Wal-Mart Supercenter was cause for controversy in Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173. In this case, the City of Anderson (“City”) approved a new shopping center fronted by I-5 and anchored by a Wal-Mart Supercenter. The City prepared and certified an EIR but citizens formed Anderson First Coalition (“Coalition”) to protest the project, asserting that it would cause urban decay, was inconsistent with the general plan and the zoning of the area, and did not provide proper traffic mitigation. At the trial court level, the EIR was found to be sufficient except for the project’s gas station. The trial court severed the gas station and allowed the rest of the project to proceed. The Coalition appealed and the appellate court reviewed both the adequacy of the EIR and the trial court’s decision to sever the gas station. Continue Reading Anderson First: Evaluation of Blight and Effective Mitigation

by Joel Ellinwood, AICP

California’s Court of Appeal buried the vested rights argument of a Los Angeles (“City”) business six feet under in upholding the City’s revocation of a building permit and denial of a certificate of occupancy. The court ruled for the City despite the purchaser’s purported reliance on the permit in acquiring the building and the expenditure of nearly a quarter million dollars on improvements in the six month period after the original issuance of the permit. The City pulled the permit after the applicant, doing business as “1-800-AUTOPSY,” applied for a sign permit which would prominently display the name. It was then, the City claimed, when it first realized the nature of the business and determined that it is a prohibited use within the applicable zone in the Foothill Boulevard Corridor Specific Plan area. The business, Autopsy/Post Services, Inc., (“APS”) applied for an exception to the use restrictions, but the Planning Commission denied it, ruling that an private autopsy business was the equivalent of a morgue or mortuary which are permitted uses only in an industrial zone. After administrative appeals within City government, APS filed a mandate action claiming vested rights. The trial court denied the writ and APS appealed. Continue Reading Vested Rights? Over My Dead Body!

by William W. Abbott In land use litigation, particularly CEQA cases, a successful petitioner can file a motion with the court seeking an award of attorneys fees. The award of fees is highly discretionary with the trial court, and occasionally, the trial court decisions are reversed by the appellate court. In a recent court decision, Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, the appellate court reversed a trial court’s decision refusing to award fees to a petitioner. In reversing the trial court decision, the appellate court established the threshold for what constitutes a “prevailing party” as a fairly low barrier. Continue Reading Paying the Piper in Land Use Litigation