In March 2012, we posted an article reviewing the First Appellate District’s determination in Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656.
By William W. Abbott
Salmon Protection and Watershed Network v. County of Marin (April 20, 2012, A133109) ___Cal.App.4th ___.
It is not uncommon in CEQA cases for the opponents and the lead agency to extend the statute of limitations through a tolling agreement. The use of such agreements puts the litigation on hold, and can help facilitate settlement by taking the pressure of litigation off the front burner. In a case involving the use of a tolling agreement to extend the time lines for a CEQA challenge to a general plan update, a demurrer was sustained to a complaint in intervention later brought by property owners potentially affected by the CEQA lawsuit. As the settlement discussions were undertaken (ultimately unsuccessful), the property owners were left in a indeterminate state as to what to do with their property. The property owners’ complaint in intervention, following the filing of the under lying CEQA action, alleged that the underlying CEQA lawsuit was barred due to the passage of the statute of limitations, and that any extension between the petitioner and the County was contrary to public policy. Relying in part on the policy favoring settlement of litigation, the court of appeal upheld the dismissal of the complaint in intervention.
While CEQA predominates many local government discussions of climate change, the state has taken a longer view as well, seeking input on strategies for local adaption to climate change. The draft handbook can be found at http://resources.ca.gov/climate_adaptation/docs/APG_-_PUBLIC_DRAFT_4.9.12_small.pdf. A state sponsored webinar will take place on May 15, and comments can be submitted electronically at http://resources.ca.gov/climate_adaptation/local_government/adaptation_policy_guide.html
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.
By William W. Abbott
James Abatti v. Imperial Irrigation District (April 26, 2012, D058329) ___ Cal.App.4th ___.
In November 2006, the Imperial Irrigation District, based upon a negative declaration, adopted an Equitable Distribution Plan (“EDP”). The plan was designed to provide for the equitable apportionment of water in the event of a supply/demand imbalance. The governing board approved the plan which provided for a straight-line method of allocation among agricultural users during shortfall periods. Agricultural users were the largest users within the district, with industrial users making up a small percentage of the remainder. In 2007, the District adopted regulations implementing the EDP which provided more detail on allocations to non-residential users, including industrial. In adopting these regulations, the District relied upon the 2006 Negative Declaration. In 2008, the District adopted amended regulations, further refining the regulations. Language was added pertaining to new industrial water contracts. The District again relied upon the prior negative declaration, and relying in part on CEQA Guidelines 15162, concluded that no new environmental review was required. The petitioners then filed a CEQA challenge. The trial court denied the petition, determining that Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467 was controlling, and under the traditional substantial evidence test (as compared to the fair argument test), ample evidence supported the District’s decision to rely upon the prior CEQA document. Petitioners dismissed their other claims without prejudice, then appealed.
By Katherine J. Hart
In the most recent fee mitigation case, Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156, the Third District Appellate Court held that a county was required to prepare a tiered EIR before adopting its oak woodland management plan and mitigation fee program.
The Association of Environmental Professionals will be holding an MCLE as part of its Statewide Conference (May 6-9). Panelists include: Chris Butcher, Thomas Law Group; Braiden Chadwick, Downey Brand, LLP; Diane Kindermann, Abbott & Kindermann, LLP; and Tiffany Wright, Remy Moose Manley, LLP.
Navigating Projects through CEQA and Local Government Biological and Regulatory Policies (2 hours of MCLE Credit Approval Pending)
Wednesday, May 9, 10-11:30 a.m., Sheraton Grand Hotel, Sacramento, CA
Cost $50.00 at the door
To RSVP, please email firstname.lastname@example.org; for more information about this, and other AEP Statewide Conference events, visit http://conference.califaep.org/.
Solano Press releases the third edition of Exactions and Impact Fees in California, co-authored by Bill Abbott, Harriet Steiner, Tom Jacobson, Peter Detwiler and Margaret Sohagi. This edition covers the next generation of impact fee practice and legal issues, including Proposition 218. For more information, click here: http://solano.com/processxml.asp?tid=EX12&StyleSheet=title.xsl
By William W. Abbott
Duea v. County of San Diego (2012) 204 Cal.App.4th 691
Proposition 13 changed the property tax rules in California in 1978. One of its many key features was the rolling back of the taxes, and limiting annual increases. A change in ownership was treated as a triggering event for purposes of establishing property valuation, and in turn, the recalculated property tax liability. Overtime, one of the important considerations in applying tax liability was whether a transfer took place. Subsequent to Proposition 13, the Legislature enacted legislation for purposes of defining certain transfers as not constituting a triggering event. Exemptions include acquisition through eminent domain, acquisition by a public entity, or governmental action resulting in a judgment of inverse condemnation.
Yesterday, OPR announced the new draft CEQA Guidelines on SB 226’s infill provisions. As always, the devil is in the details, and OPR does an admirable job explaining the basis for its intended direction. Notably, OPR stakes out the position that the traditional substantial evidence test applies, not the less deferential fair argument standard. It is hard to believe that this position will go unchallenged (think back to Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98.) Check out the draft Guidelines at http://opr.ca.gov/s_sb226.php.