August 2006

By William W. Abbott & Janell M. Bogue Closely following on the heels of County of San Diego, the California Supreme Court decided City of Marina v. Board of Trustees of the California State University (2006) 39 Cal.4th 341, which also involved issues of the appropriateness of mitigation expenditures, this time by the California State University system. Here, the state university (CSU) assumed the legal position that it was not authorized to mitigate for offsite impacts, and on that basis, the Trustees rejected the feasibility of mitigation measures sought by a local city (Marina) and a base reuse authority (Fort Ord Reuse Authority or “FORA”). Continue Reading California Supreme Court Schools CSU on Mitigation Infeasibility

The court interpreted the reduction in super-majority voting requirements narrowly

By Elias E. Guzman

A court recently held in Peak Investments v. South Peak Homeowners Association, Inc. (2006) 140 Cal.App.4th 1363, that a proposed amendment to CC&Rs which serves to reduce a super-majority voting requirement must be approved by at least 50 percent of all owners. Continue Reading Court Shuts Off Civil Code §1356 Safety Valve…Well, Halfway At Least

Mahon v. County of San Mateo (2006) 139 Cal.App.4th 812 The “deemed approved” remedy for untimely processing must give heads up to neighbors — what may be “deemed” is not what it seemed. By Joel Ellinwood, AICP Recognizing that the often seemingly interminable delay by local agencies in development permit processing drives up costs of providing housing and other desirable projects, the development industry succeeded in persuading the legislature to impose what at first glance appear to be strict timelines for the agency to approve or disapprove projects. The timelines are given teeth by provisions which may result in projects being “deemed approved” if the agency fails to act within the time provided. However, as the recent case of Mahon v. County of San Mateo (2006) 139 Cal.App.4th 812 (modified June 19, 2006) illustrates, the teeth don’t seem to have much bite. This article will identify strategies for making the best use of what little bite is left to help manage the pace of development processing. Continue Reading Take Notice!

Bill Abbott was once again selected as a “Super Lawyer” by the Law & Politics publication 2006 Northern California Super Lawyers for his work as a land use attorney. Only five percent of Northern California attorneys are selected for this honor using a nomination system and rigorous peer review.

By Diane Kindermann Henderson and Elias E. Guzman

Two weeks after the United States Supreme Court rendered its opinion in Rapanos/Carabell, et al. v. United States (2006) 126 S.Ct. 2208, the United States District Court for the Northern District of Texas delivered an opinion in United States v. Chevron Pipe Line Co. (D. Tex. June 28, 2006) 2006 U.S. Dist. LEXIS 47210. The court in Chevron was the first federal district court to apply the Army Corps of Engineers’ jurisdictional authority standards enunciated in Rapanos. In granting summary judgment, the Chevron court opined that the connection of generally dry channels and creek beds does not create a “significant nexus” to a navigable water simply because one fed into the next during the rare times of actual flow. Continue Reading District Court Struggles with Rapanos in U.S. v. Chevron Pipe Line

Joel Ellinwood recently published an article in the July/August 2006 issue of Cal Planner, the publication of the California Chapter of the American Planning Association. His article discusses CEQA streamlining and the recent case Wal-Mart Stores, Inc. v. City of Turlock. Download the article.