July 2012

By Glen C. Hansen

As California seeks to reduce greenhouse gas (“GHG”) emissions in the state’s industries in order to implement provisions of California’s Global Warming Solutions Act of 2006 (i.e., AB 32), entities and trade groups both inside and outside the state have looked to the “dormant” Commerce Clause in the U.S. Constitution as a legal means to challenge those efforts. That constitutional argument could be potent. As Professor Deborah A. Sivas of Stanford Law School explains: “It could become impossible for states to do anything for regulating greenhouse gas emissions if there’s an invigorated dormant Commerce Clause, because states can’t really get their arms around emissions unless they look at what other states are doing.” To date, dormant Commerce Clause challenges to California’s GHG-reduction efforts have met with varied success in the federal courts.

Continue Reading The Commerce Clause As A Sword To Challenge California’s Efforts To Curb Greenhouse Gas Emissions

By William W. Abbott

California State University East Bay undertook a dual purpose EIR for its campus master plan and two construction projects, the latter consisting of a housing complex and a parking structure. The EIR included alternatives at both the master plan and construction project level. The City of Hayward and public interest groups filed suit challenging the sufficiency of the EIR. The trial court found the EIR to be deficient and issued an order granting the petition for writ. The University subsequently appealed.

Continue Reading Town Versus Gown Fight Continues Over State University EIR

By Sharon Buckenmeyer

On July 27, 2012, the California Natural Resources Agency gave notice of intent to adopt CEQA Guideline section 15183.3 pursuant to SB 226 (Simitian). Section 15183.3 is intended to streamline the environmental review process for eligible infill projects and reduce the time and cost of the environmental review. To be eligible the infill project must meet specific criteria and satisfy the performance standards as defined in the proposed addition. Public comments are due September 10, 2012. For more information go to: http://ceres.ca.gov/ceqa/sb226_guideline_updates.html.

Sharon Buckenmeyer is a paralegal at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

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 Glen C. Hansen

In Quail Lakes Owners Assn. v. Kozina (2012) 204 Cal.App.4th 1132, the Court of Appeal for the Third Appellate District affirmed a trial court’s decision to grant a verified petition by a homeowners’ association for an order under Civil Code section 1356 to modify the association’s governing laws to reduce a supermajority voting restriction.

Continue Reading Trial Court Did Not Abuse Its Discretion In Granting Verified Petition To Remove Supermajority Voting Restriction In CC&Rs.

Abbott & Kindermann, LLP is pleased to announce that two of its attorneys have been picked for the 2012 Northern California Super Lawyers list in the fields of land use and zoning: Kate Hart and William Abbott. More information is available at http://www.superlawyers.com/california-northern/. The firm is pleased to continue to serve private and public clients in Northern California on land use, environmental and real estate matters for more than 17 years.

By Glen C. Hansen

In a 2-1 decision in Pacific Rivers Council v. United States Forest Service, ___ F.3d ___, 2012 U.S. App. LEXIS 12553 (9th Cir. 2012), rehearing and en banc rehearing denied, the Court of Appeals for the Ninth Circuit held that the final supplemental environmental impact statement issued by the United States Forest Service in 2004 for the eleven Forest Plans for the Sierra Nevada Mountains (“Forest Plans”) complied with the National Environmental Protection Act (“NEPA”) as to the analysis of environmental consequences on amphibians, but did not comply with NEPA as to environmental impacts on fish. The majority and minority on the panel sharply disagree as to the amount of analysis that is required for programmatic environmental impact statements under NEPA in the Ninth Circuit where an agency has not made a critical commitment of resources regarding any site-specific projects.

Continue Reading Did The Ninth Circuit Disregard Its Precedent And Impose A Higher Degree Of Analysis On Programmatic Environmental Impact Statements?

By William W. Abbott

In order to promote more logical urban development pattern, the extension of city services and to avoid underserved populations surrounded by more intense development typically with higher level of services, the legislature has periodically tinkered with the island annexation provisions. In 2000, the legislature created a streamlining provision for unincorporated islands of 75 acres or less, subsequently increased to 150 acres. Pursuant to Government Code section 56375.3, local agency formation commissions (LAFCos) may exercise a more streamlined annexation approval process and can waive the protest proceeding if an annexation is initiated by a city, and the property consists of an island of less than 150 areas. In 2010, Senator Gloria McLeod requested an opinion from the California Attorney General regarding administration of this code section. In July of 2012, the Attorney General weighed in with a formal opinion. While these opinions are not binding on courts or agencies, they are normally afforded great weight in terms of statutory interpretation. In other words, best to pay attention.

Continue Reading California Attorney General Opines On Streamlined Island Annexations

By Glen C. Hansen

In Glen Oaks Estates Homeowners Assn. v. Re/Max Premier Properties, Inc. (2012) 203 Cal.App.4th 913, the trial court sustained demurrers to a homeowners association’s (“HOA”) complaint against real estate brokers who acted as dual agents in the developers’ sale of properties in the development to HOA members. The HOA alleged in the complaint that the realtors had obtained inaccurate soil reports and had misled the members, resulting in defects of a common roadway and common area slopes. The Court of Appeal for the Second Appellate District reversed the trial court’s determination that the association did not have standing to assert claims on behalf of its members against the brokers under Civil Code section 1368.3.

Continue Reading Homeowners’ Association Has Standing To Sue Realtors Involved In Sale Of Properties To Association Members Where Alleged Injury Is To Common Area.

By Glen C. Hansen

In RealPro, Inc. v. Smith Residual Company, LLC(2012) 203 Cal.App.4th 1215, the Court of Appeal for the Fourth Appellate District upheld a trial court judgment sustaining a seller’s and their agent’s demurrer to a cooperating broker’s complaint to recover a real estate commission, where the cooperating broker presented a written offer of a buyer that was “ready, willing, and able to purchase the Property … on all material terms” contained in the listing, including an all cash purchase at the full listing price of $17 million, but where the seller did not accept the offer and a sale was never completed.

Continue Reading What Is The Meaning Of The Word “Or”: A Real Estate Broker Commission Is Not Owed Even Though An All-Cash Offer Meets The Full Price In The Listing Agreement

Vested Rights, Vesting Maps and Development Agreements

William Abbott & Steven Rudolph

121LUP154

Thursday, August 23, 2012, 9:00 a.m.-4:30 p.m.

Sutter Square Galleria

Sacramento, CA

Development agreements are an effective avenue for a community and developer to come together and process a project. Both sides of the table need to carefully consider the terms of these contracts and explore questions of content and performance before completing such an agreement. Learn the legislative and judicial aspects of development agreements.

Continue Reading Join William Abbott & Steven Rudolph this summer at UC Davis Extension Land Use and Natural Resources Program: