March 2010

By William Abbott

Must a CEQA document for a supercenter always address urban decay? The answer is no according to the Fifth Appellate District, the same court which rendered the earlier ruling on a supercenter in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184. The story begins in 2006 when the City of Madera certified an EIR for a retail center, consisting of 795,000 square feet of gross floor area. The conceptual site plan showed one anchor of 125,000 square feet. Following annexation approval in February, 2007 of the site to the City, the developer submitted to the City a refined site plan which now included an anchor tenant a “Super Target” of 194,484 square feet, excluding the garden outdoor sales area.   The total square footage for the retail center remained unchanged. The City’s Community Development Department approved the refined site plan in May, and in June, the Planning Commission considered an addendum to the EIR, and recommended approval of a development agreement. In turn, the City Council considered the addendum and approved the development agreement in August. The staff report and addendum both concluded that there were no new impacts, different from those considered in the previously certified EIR. No one testified in opposition. However, a lawsuit challenging approval of the revised site plan was filed the same day as the council was considering the development agreement. The trial court denied the writ petition.

Continue Reading Subsequent EIRs: It is Still a Matter of the Evidence in the Record

By Katherine J. Hart

In Communities for a Better Environment v. South Coast Air Quality Management District et al., the California Supreme Court determined that the air district issuing a new permit to a petroleum refinery seeking to introduce a new industrial process to its existing refinery, incorrectly determined the baseline upon which to analyze environmental impacts. Specifically, the Court concluded the baseline could not be based on the maximum permitted operating capacity of the existing equipment but rather had to be based on the physical conditions actually existing at the time of environmental analysis. The facts are as follows.

Continue Reading Baseline Depends Upon Whether You Have a New or Modified Project or Existing Project Without Significant Expansion of Use

By Leslie Z. Walker

Almost three years after Attorney General Edmund G. Brown, Jr. filed suit against the County of San Bernardino for failing to consider the impacts of the County’s General Plan on Global Warming, the Amendments to the CEQA Guidelines Addressing Greenhouse Gas Emissions mandated by Senate Bill 97 (Chapter 185, Statues 2007; Pub. Resources Code, § 21083.05), take effect today. The Amendments require the quantification and mitigation of greenhouse gas emissions. (For more information about the Amendments, see OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency and CEQA Guidelines on Greenhouse Gases One Step Closer to Law.) Lead agencies should consult Guidelines section 15007 to determine when the Amendments apply to the agency’s actions.

Leslie Z. Walker is an associate 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.

By: Katherine J. Hart

As determined by the California Supreme Court 27 years ago, local agencies may impose a fee for the filing of an appeal of a CEQA decision so long as that fee is reasonable.

In the case at hand, the planning commission of the City of Glendora adopted an addendum to a negative declaration (“Addendum”) and approved a project on February 12, 2008. Petitioner Erica Landmann-Johnsey (“Petitioner”) wanted to appeal the CEQA decision to the city council, but in order to do so, was required to pay a $2,000 appeal fee. Petitioner filed her appeal and paid the fee under protest.

Continue Reading Yes, Local Appeal Fees Apply to CEQA Appeals

By: Cori Badgley

In yet another CEQA case involving whether an agreement between a tribe and a city constitutes a project, the court held that CEQA did not apply to an agreement requiring the city’s formal support of a proposed casino and the tribe to pay for future, as of yet undefined, city services and improvements.

Continue Reading City Gambles and Wins on Agreement with Tribe Over Casino: CEQA Does Not Apply