June 2011

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

In the first six months of 2011, the appellate courts have issued eight opinions and the results are a mixed bag. On the one hand, the Sixth Appellate District gave cities and project proponents a strategy to deal with Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 (Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150); the First Appellate District gave more clarity on deferred mitigation in Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884; and the Fourth District held that petitioners failed to exhaust their administrative remedies when they did not fairly present evidence to the City (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 184 Cal.App.4th 1032). On the other hand however, the Fifth Appellate District held that project components not properly documented for CEQA purposes cannot be severed from the balance of the approval and a project found to partially violate CEQA, must be set aside in its entirety (Landvalue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675.)

Continue Reading 2011 CEQA MID-YEAR UPDATE

By Glen C. Hansen

Two Federal District Court opinions in California examined the sufficiency of pre-lawsuit notices that must be given to responsible parties and relevant agencies before citizen suits are filed either under the Clean Water Act (“CWA”), 33 U.S.C. § 1251, et seq. (“60-Day Notice”), and/or under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901, et seq. (“90-Day Notice”). In one case, the District Court held that the notices of CWA and RCRA claims were sufficient and did not have to be as specific as defendants suggested; in the other case, the pre-lawsuit notices of the RCRA claims were merely “boilerplate and conclusory” and therefore insufficient.

Continue Reading Two Instructive District Court Opinions on RCRA (90-Day) and CWA (60-Day) Pre-Lawsuit Notices: One “Boilerplate” Notice Was Insufficient; the Other Was Specific Enough

By Cori M. Badgley

In successful challenges under the California Environmental Quality Act (“CEQA”), the petitioner generally has a second bite at the apple by challenging the return of the writ. If a petitioner is successful in its challenge to an EIR, the trial court issues a writ of mandate that requires the agency to bring the EIR into compliance with CEQA. Once the agency has complied with the writ of mandate by “fixing” the EIR, the agency files a return of the writ with the court, and if the court finds that the city has satisfied the writ of mandate, the court discharges the writ.

Continue Reading Building Code Compliance Mitigation for Seismic Impacts Upheld

By William W. Abbott

California land use law, as we know it today, has evolved over a 40 year time period. One notable feature of this body of law is, when compared to the overall body of civil law, the relatively short filing period for bringing legal challenges. The California Environmental Quality Act ("CEQA") potentially has the shortest time period of 30 days, depending upon the fact pattern. For legal challenges alleging non compliance with provisions of the state Planning, Zoning and Development law, the relevant statutes are slightly longer at 90 days, however the Legislature has created an even longer filing period based upon challenges under the affordable housing laws. A recent decision of the Fourth Appellate District illustrates the overlapping and potentially conflicting application of the various statutes. Haro v. City of Solano Beach (2011) ____ Cal.App.4th ____.

Continue Reading Legal Challenges to Land Use Decisions Governed By Strict Statutes Of Limitation, Including Those Based Upon Non Compliance with the Housing Element Requirements

By Cori M. Badgley 

In City of Los Angeles v. Superior Court (2011) 194 Cal.App.4th 210, plaintiffs argued that the city’s actions of purchasing properties in areas near the LAX airport and then demolishing the buildings constituted inverse condemnation of adjacent properties owned by plaintiffs. The court, however, was not persuaded, and plaintiffs’ suit was dismissed.

Continue Reading That’s the Way the Buildings Crumble: City’s Purchase and Demolition of Adjacent Buildings is Not a Taking

By Leslie Z. Walker

In Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, Santa Monica Baykeeper (“Baykeeper”) challenged the City of Malibu’s adoption of an Environmental Impact Report (“EIR”) and approval of the Legacy Park project. Legacy Park is a clean water project located in Malibu, near Surfrider Beach. Baykeeper challenged the project alleging the EIR failed to analyze 1) construction related project impacts; 2) the impact of using treated effluent from the adjoining Malibu Lumber Yard; and 3) the cumulative groundwater impacts. The trial court denied the writ. On appeal, the City argued the case was moot because the project construction was completed during the pendency of the appeal. The Court of Appeal found the case was moot as to the first issue, construction related impacts, but not as to the second and third issues. The appellate court upheld the trial court’s denial of the writ as to the second and third issues, finding Baykeeper failed to demonstrate the City had abused its discretion.

Continue Reading No Discharge, No Cumulative Impact

By Glen C. Hansen

In Cedar Fair, L.P. v. City of Santa Clara (2011) ___ Cal.App.4th ___, 2011 Cal.App.LEXIS 506, the Court of Appeal for the Sixth Appellate District held that, when a city and its redevelopment agency entered into a long and detailed “term sheet” for the development of a professional football stadium development project, the public agencies did not “approve” the project for purposes of environmental review under the California Environmental Quality Act, because the term sheet did not commit the public agencies to a definite course of action with respect to the development of the stadium or effectively rule out any mitigation measure or alternative.

Continue Reading A Very Detailed Agreement In The Process Of Negotiating A Development Project May Not Constitute An Approval For CEQA Environmental Review Purposes