October 2011

Under Public Resources Code section 30603, subdivision (a)(4), the California Coastal Commission has appellate jurisdiction over a project within the coastal zone that needs subdivision approval, even if the project involves the construction of a principal permitted use under the local coastal plan.
Continue Reading Coastal Commission Has Appellate Jurisdiction Over A Project That Needs Subdivision Approval, Even If The Project’s Use Complies With The Local Coastal Plan

It was previously thought that the doctrine of “equitable easements” (also known as “relative hardship”) could only be invoked by a property owner as a ‘shield’ to defend against an injunction sought by a neighbor requiring the removal of an unlawful encroachment maintained by the owner on the neighbor’s property. However, in Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, rev. denied, 2011 Cal. LEXIS 9814, the Court of Appeal for the Second Appellate District held that a trial court did not abuse its discretion, under a cause of action for declaratory relief, in creating an equitable easement for plaintiff property owners for ingress and egress over a driveway on defendants’ neighboring property. That case essentially opens the door for plaintiffs to use the doctrine of equitable easements as a ‘sword’ to obtain an order to maintain the encroachment.
Continue Reading Court Recognizes That A Property Owner May Be Able To Wield A “Sword” To Establish A Right To Maintain An Encroachment On Neighboring Property.

In the third quarter of 2011, the California Supreme Court issued two CEQA opinions and the California Appellate Courts issued 12 CEQA opinions. Many of the cases deal with procedural issues such as when the violation of a notice requirement is prejudicial (Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949); the appropriateness of an interlocutory remedy in administrative mandamus (Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499); and the prevailing party’s recovery of attorneys fees for administrative time under Code of Civil Procedure section 1021.5 (Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312). The most notable opinion issued in the third quarter was the Supreme Court’s reversal of the appellate court in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155. Not only did the Supreme Court determine that an EIR was not required for an ordinance banning plastic bags, but it also overturned prior precedent requiring corporations to make a heightened showing to demonstrate public interest standing.
Continue Reading 2011 CEQA THIRD QUARTER UPDATE

In the case of South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal. App. 4th 1604 (“South Orange”), the Court of Appeal for the Fourth Appellate District was asked to order an environmental impact report (EIR) be prepared to assess the impact of the environment on a proposed project pursuant to the California Environmental Quality Act (CEQA). The court of appeal declined to order such an EIR. The court of appeal also addressed whether the adopted project was inconsistent with the city’s general plan and zoning ordinance, and found that the project was consistent.
Continue Reading Adjacent Landowners Can’t Use CEQA to Avoid Potential Nuisance Claims

The recent case of Voices of the Wetlands v. State Water Resources Control Board (August 15, 2011, S160211) 52 Cal.4th 499, involves the issuance of an NPDES permit by the Central Coast Regional Water Quality Control Board (“Regional Board”) authorizing the Moss Landing Power Plant (then owned by Duke Energy, now owned by Dynegy) to draw cooling water from Moss Landing Harbor and Elkhorn Slough. Plaintiff Voices of the Wetlands challenged the permit raising a number of legal issues, including whether the trial court improperly ordered an interlocutory remand. The appellate court affirmed and the trial court denied the writ.
Continue Reading California Supreme Court Rules Interlocutory Remand a Valid Remedy in Writ Petitions

Agencies forming assessment districts must disclose basis for assessment of public and private properties; the required engineer’s report must provide and identify special and general benefits, and provide rationale for special benefits and corresponding benefits.
Continue Reading Finding the Special in Special Benefits after Proposition 218

In early 2011, the State Water Resources Control Board (“SWRCB”) released three draft statewide NPDES permits for public review and comment. To say that these permits were not well-received by the regulated community (i.e., small municipalities, CalTrans and industrial business owners) is an understatement. In a rare intervention by members of the state legislature into the realm of state agencies, the Senate Select Committee on California Job Creation and Retention held an informational hearing on the draft permits on October 6, 2011. The message from the hearing came across loud and clear: time for a do-over.
Continue Reading Senate Committee Scolds SWRCB in Recent Hearing on Draft Statewide Permits

In a CCP section 1021.5 fee award, the trial court has the discretion to award fees for the time spent in administrative proceedings.
Continue Reading Code of Civil Procedure §1021.5 Authorizes a Prevailing Party to Recover Its Attorney Fees for Administrative Time As Well As in Litigation

In Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir. 2011), the Ninth Circuit Court of Appeals issued four separate opinions that, collectively, held that the U.S. District Court properly found that the 2004 Sierra Nevada Forest Plan Amendment and related Basis Project (“2004 Framework”) issued by the U.S. Forest Service did not violate the National Environmental Policy Act. However, when the District Court applied a 2007 amendment to the 2004 Framework retroactively, the District Court failed to properly determine whether the 2004 Framework violated the National Forest Management Act.
Continue Reading Ninth Circuit Issues Mixed Ruling Re NEPA and NFMA Challenges to 2004 Sierra Nevada Forest Plan Amendment