September 2011

By Glen C. Hansen

In Tafti v. County of Tulare (2011) 198 Cal.App.4th 891, the Court of Appeal for the Fifth Appellate District held that a local enforcement agency violated the due process rights of a property owner when it failed to provide adequate notice of the nature of an administrative appeal hearing where an administrative law judge recalculated a civil penalty in an amount that was over eight times the penalty amount stated in the original enforcement order that the owner appealed from.

Continue Reading Property Owner Hit With $137,778 Civil Penalty, Appeals, And (Without Adequate Notice) Ends Up A $1,148,200 Penalty! Court Reverses for Lack of Due Process.

By Cori Badgley

In Gutierrez v. County of San Bernardino (2011) 198 Cal.App.4th 831, the appellate court grappled with the application of the “reasonableness” takings test that applies to flood control projects. The court concluded that the county acted reasonably, and therefore, there was no taking.

Continue Reading A Series of Unfortunate Events… That are Not Compensable under Inverse Condemnation

By William W. Abbott

Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200

As the State’s public disclosure statute, CEQA directs lead agencies to disclose the likely impacts associated with agency approvals. While legal caution dictates that more disclosure is preferable to less disclosure, lead agencies have to recognize that there are two notable exceptions to this practice: resource specific information relating to cultural resources (Government Code section 6254, CEQA Guidelines section 15120(d) and trade secrets (CEQA Guidelines section 15120(d). A recent decision explores how a lead agency can properly navigate the conflicting requirements of disclosure and confidentiality.

Continue Reading Balancing CEQA’s Full Disclosure Requirements with the Protection of Cultural Resources

By William W. Abbott

Malibu Bay Company (“MDC”) owns the last undeveloped beach front parcel in Malibu, a 2.08 acre, 200 foot wide parcel. In order to accommodate its proposed division into four parcels, MDC proposed an amendment to the Local Implementation Plan of Malibu’s local coastal plan in order to create a new zoning district which would allow for lot widths of 45’, a decrease from the then existing standard of 80’. As the application advanced to the City Council, staff ultimately recommended that the required width for all parcels in same district as MDC’s property was located in, be reduced to the 45’ standard. Altogether, this would impact 733 parcels, although as staff noted, a majority of the existing parcels were already substandard to the 80 width standard. Staff further determined that only 5 parcels (including MDC’s) were capable of further division under the proposed 45’ lot width standard. Two of the five were subject to additional legal limitations precluding further re-division, leaving only two parcels in addition to MDCs. Staff concluded that with respect to the two with potential for re-division, that any further re-division would require a coastal development permit and CEQA review. Concluding that there would be negligible direct and cumulative effects on aesthetics, biological resources and land use and planning, staff recommended acceptance of a negative declaration. Due to the presence of a dune environmentally sensitive area, and based further upon a dune study submitted by the applicant’s biologist, mitigation for dune species was required. The City Council eventually approved a revised mitigated declaration, and conditionally granted the approvals, subject to Coastal Commission approval. Neighbors opposed the approval of the entitlements, and submitted a biologist study indicating potential impacts to sensitive species.

Continue Reading Coastal Commission Properly Resolved Conflicting City Development Standards; Negative Declaration Was Upheld

By Leslie Z. Walker

San Diego Association of Governments has prepared the first draft Regional Transportation Plan (“RTP”) to include a Sustainable Communities Strategy (“SCS”), as required by Senate Bill 375. As drafted, the SCS will achieve the California Air Resources Board’s (“CARB”) 2020 and 2035 greenhouse gas emission reduction targets. CARB staff reviewed the draft RTP/SCS and the quantification of the greenhouse gas reductions expected from implementation of the plan in an Informational Report. The report found that the RTP/SCS would meet the 2020 target of a 7 percent per capita reduction and would just meet the 2035 target of a 13 percent per capita reduction.

Continue Reading Attorney General Comments on Draft EIR for First SB 375 Sustainable Communities Strategy

Register Now! ~ Only $35

Two Locations to Choose From

November 9, 2011 – Lodi, CA and November 17, 2011 – Plymouth, CA

This seminar will guide winery and vineyard owners and operators through cost-effective strategies to address current environmental, legal and technical challenges.

More information, tentative agenda and registration click here.

By Cori Badgley

In City of Palmdale v. Palmdale Water District (Aug. 9, 2011, B224869) __ Cal.App.4th __, the appellate court confronted two constitutional mandates that were seemingly at odds with one another. The first constitutional mandate was Proposition 218, requiring that water service fees not exceed the proportional cost of providing the service. The second was Article X section 2 and the statutes adopted thereunder permitting allocation-based conservation water pricing whereby the price increases dramatically once a user surpasses the allocation amount. In the end, the court found that these two provisions could be harmonized because there could still be much higher fees imposed above a certain allocated amount that did not exceed the proportional cost of providing the service.

Continue Reading Water Conservation Does Not Trump Proportionality Requirement of Prop 218