December 2007

By Joel Ellinwood, AICP

The Court of Appeal, Fifth Appellate District, continues this year’s deluge of land use and environmental law decisions by revisiting the first principles of planning and zoning law in Neighbors in Support of Appropriate Land Use v. Tuolumne County (2007) 2007 Cal.App.Lexis 2004, filed and certified for publication on December 7, 2007. The court held that a development agreement between the property owner and the County to authorize a use otherwise prohibited in the same zoning district throughout the County violates the uniformity requirement of Government Code section 65852 and is invalid.

Continue Reading If the Zoning Isn’t Uniform, the Court Won’t Salute

By Cori Badgley

While compensation for regulatory takings remains elusive for California landowners, recovery of monetary damages for physical takings is established jurisprudence. In a stunning reminder of the physical/regulatory taking dichotomy, a federal court recently awarded over $36 million dollars in damages against the City of Half Moon Bay (“City”) whose assessment district project created wetlands on private property. The plaintiff’s case was based on theories of inverse condemnation, trespass and nuisance. Further, the court granted injunctive relief against the City from collecting assessments from the plaintiff. Not surprisingly, the City just announced that it will appeal the decision.  We will see if they have more luck with the Ninth Circuit Court of Appeals.

Continue Reading City’s Accidental Creation of Wetlands Leads to Finding of Physical Taking and a $36.8 million Judgment Against City

By Joel Ellinwood, AICP

As the battle of the big boxes continues on the fields of CEQA in the California courts, the Fifth District Court of Appeals reiterated (in an unpublished portion of the opinion) that it will carefully scrutinize evidence petitioners use to support a “fair argument” that a project approved with a Mitigated Negative Declaration (MND) is inadequate without the preparation of a full Environmental Impact Report (EIR). Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora (California Gold Development Corp. – Lowe’s, Inc.) 155 Cal.App.4th 1214 (filed 10/2/07, modified 10/31/07). Continue Reading The Road Not Studied

By Janell M. Bogue

A California appellate court recently addressed the approval of yet another Wal-Mart Superstore, this time in the City of Stockton (“City”). In Stockton Citizens for Sensible Planning v. City of Stockton (November 28, 2007) 2007 Cal.App.LEXIS 1960, the California Court of Appeal, Third Appellate District directed the trial court to set aside the approvals for a 200,000 plus square foot Wal-Mart, which would have been located in Spanos Park West (“Park”). The court held that a letter from the City’s Community Development Director (“Director”) was not an approval by a public agency. Since there was no approval by a public agency, the notice of exemption (“NOE”) was not valid and the short 35-day statute of limitations could not apply. 

Continue Reading Invalid Approval Based on Lack of Legal Authority Leads to Invalid Notice of Exemption and Long Statute of Limitations for Challenged Wal-Mart

By Leslie Z. Walker

On November 30, 2007 the San Diego Association of Governments (“SANDAG”) adopted its 2030 Regional Transportation Plan (“RTP”) over Attorney General Jerry Brown’s criticism that the Environmental Impact Report (“EIR”) for the RTP “does not fully address the impacts on global warming of the project.” 

Continue Reading Attorney General Criticizes San Diego’s Smart Growth Strategy for Failure to Fully Address Global Warming Impacts

Abbott & Kindermann, LLP again presents their annual program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, vineyard and winery development, and mining. Water quality and wetlands issues will also be covered. The focus will be on recent developments in case law, statutes and administrative regulations, and how these changes impact your daily business practices. Handouts will be available and there will be ample opportunity for questions.

Date: Thursday, January 24, 2008

Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast

Program: 9:00 a.m. – 12:00 noon

Location: Sacramento Radisson, 500 Leisure Lane

There is no charge for this program and MCLE credit is available.

An RSVP will be required as space is limited. To reserve a spot now, call our office at (916) 456-9595

Abbott & Kindermann, LLP again presents their annual program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, vineyard and winery development, and mining. Water quality and wetlands issues will also be covered. The focus will be on recent developments in case law, statutes and administrative regulations, and how these changes impact your daily business practices. Handouts will be available and there will be ample opportunity for questions.

Date: Thursday, January 24, 2008

Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast

Program: 9:00 a.m. – 12:00 noon

Location: Sacramento Radisson, 500 Leisure Lane

There is no charge for this program and MCLE credit is available.

An RSVP will be required as space is limited. To reserve a spot now, call our office at (916) 456-9595.

Congratulations to Abbott & Kindermann’s newest associates, Leslie Z. Walker and Cori Badgley. Ms. Walker and Ms. Badgley both previously worked as a law clerks at the firm and we are delighted that they will be joining the firm as associates.

Additionally, we welcome Michelle Engel in her new role as a paralegal.  Ms. Engel previously worked as a legal secretary for Diane Kindermann Henderson, and we are pleased that she will continue with Abbott & Kindermann.

By Cori Badgley

In the recent case of California Forestry Association v. California Fish & Game Commission (2007) 2007 Cal. App. LEXIS 1896, the Court of Appeal for the Third Appellate District wrestled with the treatment of subspecies and species range in the California Endangered Species Act (“CESA”). 

Continue Reading Blood Brothers or Distant Cousins: Fishing for Distinctions

Bill Abbott, a partner with Abbott & Kindermann, LLP, will present an update entitled "The Economy, The Environment, The Equity: Cases and Bills Affecting Planning, Zoning, and Development Laws (PZDL)" at the UCLA Extension Land Use Law and Planning Conference.  This annual event will be held on Friday, January 25, 2008.  For more information, visit the program website.