January 2011

By Cori Badgley

As we previously learned in Building Industry Association of Central California v. City of Patterson (2009) 171 Cal.App.4th 886, the interpretation of development agreements is governed by contract law and not statutory interpretation principles. In the more recent case of Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (Dec. 30, 2010, No. C059239) __ Cal.App.4th __, we learned that the breach of a development agreement by a municipality can have a hefty price tag, and under contract law, there are no immunities protecting the municipality from having to pay up.

Continue Reading Town Forced to Pay $30 Million for Breach of a Development Agreement

By Cori Badgley

The long legal battle over Pacific Lumber Company’s logging of timberland in Humboldt County continues as the parties now fight over attorney’s fees. In Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2008) 44 Cal.4th 459, the Supreme Court finally resolved all of the substantive issues on the merits. In summary, the Supreme Court set aside the department’s approval of a sustained yield plan based on two of petitioner’s arguments, invalidated a portion of the incidental take permit, and upheld the department’s streambed alteration agreement and certification of the environmental impact report/environmental impact statement. Following the Supreme Court’s decision, the matter was remanded back to the appellate court, and the appellate court heard arguments on whether petitioner was entitled to attorney’s fees and in what amount. (Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2010) 190 Cal.App.4th 217.)

Continue Reading Money, Money, Money: Pacific Lumber Co. Litigation Ends in Battle over Attorney’s Fees

By Cori Badgley

In 2009, a three-judge panel for the Ninth Circuit Court of Appeals made a controversial determination that a rent control ordinance relating to mobilehome parks constituted a regulatory taking. (See “Take This! Wealth-Transfer under Rent Control Ordinance Constitutes a Regulatory Taking.”) In 2010 in Guggenheim v. City of Goleta (December 22, 2010, No. 06-56306) __ F.3d __ (“Guggenheim II”), the Ninth Circuit Court of Appeals sitting en banc reversed its previous decision, holding that the plaintiffs had no distinct investment-backed expectations when they purchased the property. Therefore, the rent control ordinance did not constitute a taking of their property.

Continue Reading You Get What You Pay For: Rent Control Ordinance Upheld by Ninth Circuit

By Kathrine J. Hart

In Azusa Land Partners v. Department of Industrial Relations, (Dec. 21, 2010, No. B218275) ____ Cal.App.4th ____, the Second Appellate District Court of Appeals upheld determinations by the Department of Industrial Relations (“DIR”) and trial court that (1) a master planned community project is a “public work” subject to prevailing wage laws applicable to public improvement work performed by private contractors where such work was a condition of project approval, (2) Mello-Roos proceeds are “public funds,” and (3) once a project is deemed a “public work” under Prevailing Wage Law, the entire project is subject to the law – including those improvements which are privately financed. This case is significant because it turns the historical interpretation of “public work” under the Prevailing Wage Law on its head; typically the analysis to ascertain whether each public improvement is a public work is based on whether any portion of the required public improvement work received a direct allocation of public funds. If this decision stands, developers will be subject to prevailing wages on all projects which include public improvements financed only partially by public funds.

Continue Reading Court Says Developers Must Pay Prevailing Wages on Privately-Financed Public Improvements

By Glen C. Hansen

In Vuki v. Superior Court (October 29, 2010) 189 Cal.App.4th 791, Lucy and Manatu Vuki filed an action against their mortgagee, HSBC Bank USA, initially seeking a temporary restraining order that would stay HSBC’s eviction of the Vukis after the Vukis lost their home to foreclosure. The Vukis alleged, among other things, that HSBC violated the requirements for a “comprehensive loan modification program” that are provided in Civil Code sections 2923.52 and 2923.53 (enacted in 2009). The trial court denied the application for a temporary restraining order and the Vukis filed a writ proceeding with the Court of Appeal for the Fourth Appellate District. The Court denied that writ petition on the grounds that neither section 2923.52 nor section 2923.53 provides any private right of action.

Continue Reading Mortgagors May Not Privately Enforce The Requirement Imposed On Lenders To Have A Comprehensive Loan Modification Program

By Leslie Z. Walker, Cori Badgley, Katherine J. Hart and William W. Abbott

Abbott & Kindermann, LLP’s annual California Environmental Quality Act (“CEQA”) review summarizes important developments over the past year. Among 2010’s highlights were three decisions from the California Supreme Court: two enforcing the abbreviated statutes of limitations set forth in Public Resources Code section 21167 subdivisions (d) and (e), and one holding the baseline for air quality emissions to existing physical conditions, not existing permitted conditions. The question of what constitutes the appropriate baseline for environmental review reverberated through the appellate courts as the Court of Appeal for the Fourth Appellate District held that adjudicated water rights, rather than actual water consumption, could serve as the baseline in a master plan; and the Sixth Appellate District held that the use of 2020 traffic conditions, as opposed to existing conditions, constituted an abuse of discretion.

Continue Reading 2010 CEQA UPDATE

By Kate J. Hart

The most recent California Environmental Quality Act (“CEQA”) case on selecting a project baseline is Sunnyvale West Neighborhood Assn., et al. v. City of Sunnyvale City Council (December 16, 2010, H035135). In this case, the City of Sunnyvale (“City”) proposed to construct the Mary Avenue Extension project, a four-lane northerly extension of Mary Avenue, including light rail transit tracks, over two freeways to Eleventh Avenue. The City’s environmental impact report (EIR) analyzed the project and its impacts based on 2020 conditions, as opposed to present day conditions. A neighborhood group sued to challenge the approval of the project. The superior court ruled in the neighbor’s favor and the City appealed. The Sixth Appellate District Court upheld the trial court’s decision holding that despite the City’s arguments the project was a traffic congestion-relief project, there is no provision of CEQA which allows a roadway infrastructure project to be evaluated differently than other projects. Further, even if the court was to assume the decision to use the projected 2020 conditions as a baseline was proper, it found the administrative record was devoid of any substantial evidence to support the decision to deviate from the norm of using current conditions as baseline for project analysis.

Continue Reading Project to Remedy Traffic Congestion not Exempt from Analysis of Current Baseline Conditions

By Katherine J. Hart

In Renee D. Nelson v. County of Kern (November 19, 2010, No. F059293), a mining company submitted an application to the County of Kern (“County”) to surface mine 250,000 cubic yards per year of calcite marble from a 40-acre foothill property on federal land over a period of 30 years, and for a reclamation plan to restore the land after the completion of the mining. The Bureau of Land Management conducted environmental review of the project under National Environmental Policy Act (“NEPA”), and the County conducted environmental review of only the reclamation plan under California Environmental Quality Act (“CEQA”). The County adopted a mitigated negative declaration and approved a conditional use permit for the reclamation plan. Petitioners sued the County arguing the County should have been the lead agency for the entire project – not just the reclamation plan – and that the failure to consider the entire mining project along with the reclamation plan violated CEQA. The Fifth Appellate District agreed with Petitioners and reversed the trial court’s decision.

Continue Reading County Dug Itself a Hole by Limiting its Scope of Review

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational 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, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. – 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.