January 2012

By Leslie Z. Walker

On January 9, 2012, the Alameda Superior Court heard and issued a ruling in a lawsuit filed by the California Building Industry Association (CBIA) challenging the Bay Area Air Quality Management District’s (“Air District”) CEQA thresholds of significance. (California Building Industry Association v. Bay Area Air Quality Management District, Alameda County Superior Court Case No. RG10548693.) The Air District adopted the first (and only) numeric greenhouse gas numeric thresholds in the State in June of 2010. The CBIA challenged those thresholds, claiming that the Air District violated CEQA by failing to treat the thresholds as a project under CEQA and to conduct the requisite environmental review for the project. The court ruled that the adoption of the thresholds was a project under CEQA and made no further findings or rulings.

Continue Reading CEQA Thresholds Require CEQA Review

By Glen C. Hansen

The City of San Clemente (“City”) imposed an “RVL” or “Residential, Very Low” set of land use restrictions on an undeveloped 2.85-acre parcel in the middle of a residential tract otherwise zoned “Residential, Low Density Zone” (“RL”). The RVL designation limited parcels to one dwelling per 20 acres. The RL designation, by contrast, allowed at least four dwellings per acre. According to the court of appeal, the property looked like “a small RVL spot surrounded by denser land uses” on the City’s general plan map, and was a “one-house-per-20-acre island in a two-to-six house-per-acre sea.” The property owners applied to develop four houses on the property, and the City denied that application. The owners petitioned the superior court for a writ of mandate. There were two phases of trial. In phase one, the trial court concluded that the application of the RVL restrictions in this case constituted spot zoning. It issued a writ of mandate that ordered the City to vacate the resolution denying the owners’ application. In the second phase of the trial on the owners’ request for damages, the trial court found a compensable taking. The trial court then entered a conditional judgment in favor of the owners, giving the City the choice of either (1) complying with the court’s writ of mandate that declared the resolution denying the owners’ application to develop four houses on the property null and void and that ordered the city to adopt a new resolution vacating the resolution denying the owners’ application, or (2) paying $1.3 million in damages for the value of the property taken by the RVL restrictions. The City appealed the conditional judgment.

Continue Reading Compensable Taking Found Where City’s Spot Zoning Created “A One-House-Per-20-Acre Island In A Two-To-Six-House-Per-Acre Sea”

By William W. Abbott

There is always a certain level of satisfaction at the end of the holidays when you find the last present, and for CEQA practitioners, the same holds true. On December 30, 2011, the First Appellate District issued a solid decision on baseline: Citizens for East Shore Parks v. California State Lands Commission (December 30, 2011, A129896) ___Cal.App.4th ___. The facts involve a lease extension between Chevron and the State Lands Commission for a marine terminal. Originally built in 1902, the terminal had been periodically upgraded. In 1947, the Lands Commission entered into a 50 year lease with Chevron’s predecessor. Starting in 1998 with the NOP, the Commission eventually certified the EIR for the lease extension, nine years later. The CEQA litigation followed.

Continue Reading The Lead Agency Correctly Utilized Existing Conditions As The Baseline For Environmental Assessment When Acting Upon A Lease Extension Request

By William W. Abbott

There are times during which CEQA practitioners feel a close kinship with Sisyphus, the Greek king of legend condemned to push a large boulder up a hill and upon nearly reaching the top, lose his grasp on the rock to have it roll to the bottom where he is compelled to repeat the exercise endlessly. This is today’s metaphor for where we find ourselves in the CEQA process, wherein at the moment in time at which we believe we have reached the summit, we in fact discover ourselves at the bottom of the hill, only to repeat our past efforts. A recent decision involving a determination of infeasibility by the state university at San Diego (“CSU”), which after the Supreme Court issued its decision in City of Marina v. Board of Trustees of California State (2006) 39 Cal.4th 341, was directed to set aside an earlier EIR and to revise it consistent with Marina. The second time around, the University rejected offsite traffic mitigation on the basis that the Legislature refused to appropriate money for that purpose. On the basis that the University was required to adopt all feasible mitigation measures, CSU’s rejection for lack of appropriation was held to be insufficient, thus sending CSU back to lift the rock another time and climb the CEQA hill.

Continue Reading Lack of Appropriation of Funds by the Legislature for Mitigation of Offsite Traffic Impacts Did Not Discharge the State University from Considering Other Feasible Strategies for Mitigation

By Katherine J. Hart

Summary: In Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, the Court of Appeal, Sixth Appellate District, upheld the city’s certification of an EIR and approval of an expansion of the Palo Alto Medical Foundation’s medical campus finding that the city properly deemed the project consistent with its general plan; used the correct baseline for the traffic analysis in the EIR; used the correct baseline for the traffic noise analysis in the EIR; and contained a sufficient discussion of traffic noise impacts in the EIR.

Continue Reading Sunnyvale West Baseline Issue Revisited? Not Exactly.

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

All in all, 2011 reflected a significant year in terms of the sheer number of published appellate decisions. While many decisions followed the parameters of past precedent, a handful of cases may be read as slightly pushing the law in a manner which adds additional steps, time and cost to successful completion of CEQA review. Notable decisions which supported the lead agency’s interpretation of CEQA practice included treating a “term sheet” for negotiations as not a project subject to CEQA review (Cedar Fair, L.P. v. City of Santa Clara); application of the density bonus statute (Wollmer v. City of Berkeley); reliance upon seismic safety codes as mitigation (Oakland Heritage Alliance v. City of Oakland); and the Supreme Court’s recognition of common sense as a tool in CEQA administration (Save the Plastic Bag Coalition v. City of Manhattan Beach). Continuing debate surrounds the following riddles: 1) is it the impact of the project on the environment or the environment on the project (South Orange County Wastewater Authority v. City of Dana Point) and 2) what is the baseline (Pfeiffer v. City of Sunnyvale City Council, Madera Oversight Coalition, Inc. v. County of Madera and Citizens for East Shore Parks v. California State Lands Commission)? Two cases tackled cultural resource analysis (Clover Valley Foundation v. City of Rocklin and Madera Oversight Coalition, Inc. v. County of Madera) while a number of cases dealt with the intricacies of litigation including: posting the notice of determination for the required time period (Latinos Unidos de Napa v. City of Napa); standing (Save the Plastic Bag Coalition v. City of Manhattan Beach); augmentation of the record and requests for judicial notice (Madera Oversight Coalition, Inc. v. County of Madera); and appropriate remedies in circumstances in which the court finds CEQA error (Land Value 77, LLC v. Board of Trustees of California State University). Finally, 2011 began the unveiling of published appellate decisions dealing with the interface of global warming and CEQA analysis (Citizens for Responsible Equitable Environmental Development v. City of San Diego, Citizens for Responsible Equitable Environmental Development v. City of Chula Vista and Santa Clarita Organization for Planning the Environment v. City of Santa Clarita), with more decisions predictably to follow in 2012.

Continue Reading 2011 CEQA ANNUAL UPDATE

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

Reserve your seat for one of three seminars taking place in 2012.

In January and February 2012 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 2012 will be discussed:

Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
CEQA Litigation: Alternatives Analysis & Exhaustion of Administrative Remedies
Subdivision Map Extension
Interpreting Development Agreements
Endangered Species Act
Water Quality and Wetlands
Water Rights and Supply
Cultural Resources
Renewable Energy
Environmental Enforcement
Hazardous Substance Control and Cleanup

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 19, 2012
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: Wednesday, February 1, 2012
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 10, 2012
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.