February 2006

Along with Sierra Engineering Limited, San Andreas, California as development consultant, Bill Abbott served as land use counsel to Castle & Cooke Calaveras, Inc. for the recently approved Copper Mill project, a mixed use project located in Copperopolis, California. Robert Klousner of Planning Partners served as the CEQA consultant to the applicant, and Quad Knopf acted as peer advisor for the County of Calaveras.

The Court of Appeal, 4th District, recently affirmed EIR certification and project approval by Mariposa County for the Silvertip resort project located in Fish Camp, California. Bill Abbott represented the Board of Supervisors and the County in the administrative hearings, as well as the trial and appellate courts. Gene Smith and Quad Knopf were responsible for EIR preparation.

The California Supreme Court has granted review in two important cases dealing with water supply and planning under CEQA. The first, Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (Case No. S132972) was covered in a June 2005 Abbott & Kindermann article. The second is In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (Case No. S138975) and was discussed in a November 2005 Abbott & Kindermann article. The Supreme Court’s opinions in these cases will likely affect all participants in the EIR process and we will update you when they are issued. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann 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.

by William W. Abbott Most developers are familiar with the use of development agreements (“DAs”) as a means of memorializing a land use agreement governing development. DAs are approved following traditional land use procedures of notice, hearing and environmental review. But what about deals made at the courthouse? The appellate court recently granted rehearing of Trancas Property Owners Association v. City of Malibu (2005) 132 Cal.App.4th 1245 (click here to read Abbott & Kindermann’s November 2005 article on the case). In Trancas, the appellate court defined the limits on settlement agreements, effectively precluding terms which would otherwise be required to follow a traditional land use approval procedure. Continue Reading Let’s Make a Deal!

by William W. Abbott and Janell M. Bogue

In Dunn v. County of Santa Barbara (2006) 2006 Cal.App.Lexis 74, David Dunn submitted a subdivision application for his six acre parcel located in the unincorporated Summerland area of Santa Barbara County. His land had some unique characteristics: it was located on a sea cliff and was bisected diagonally by an earthquake fault. He wanted to divide it into two equal size parcels, as there were two possible building envelopes on the land and the area was zoned for a minimum sized lot of three acres. The property, because of its proximity to the coast, is under the jurisdiction of the California Coastal Commission and is subject to the County’s Local Coastal Plan (“LCP”). Continue Reading Subdivision Woes: A fault line, a sea cliff, and two wetlands…so what’s the problem here?

by Joel Ellinwood, AICP Ninth Circuit Prohibits Aesthetic Regulation of Cell Towers in Public Rights-of-Way Based on California Public Utilities Code In a unique twist to the preemption argument based on conflicts between the federal Telecommunications Act of 1999 (“TCA”) and state and local land use powers, the United States Court of Appeals for the 9th Circuit held that California Public Utilities Code section 7901 permitting installation of telephone facilities in public rights-of-way bans local governments from denying applications for cell phone facilities based on aesthetic considerations. Sprint PCS Assets LCC v. City of La Ca�ada-Flintridge, 2006 U.S.App.Lexis 1032 (9th Cir. 2006). The TCA explicitly allows local governments to apply traditional land use powers in regulating wireless telecommunications facilities. In applying those powers, local governments may not use health effect concerns about radio signals if the applicant demonstrates that the facility complies with Federal Communications Commission safety standards, discriminate between functionally equivalent service providers, or effectively frustrate provision of telecommunications services. The various Circuit Courts of Appeals have applied the TCA limitations inconsistently, but all apply the generally deferential “substantial evidence” standard of review. The 9th Circuit recently adopted a pragmatic but fact-intensive approach in MetroPCS v. City & County of San Francisco, 400 F3d 715 (2005) (click here to read Abbott & Kindermann’s July 2005 article on the case). Continue Reading Can You Hear (er, See) Me Now?

by Elias E. Guzman

In a San Diego court, a petitioner recently argued that it failed to file its opening brief because the City held the administrative record for “ransom.” Yes, ransom. Well, in the world of administrative writ actions, there are two absolutes regarding the preparation of the administrative record. Someone has to prepare it and someone has to pay for it. Continue Reading City Holds Administrative Record for Ransom?