September 2012

Half Day Seminar – Register Now! – Only $35

Two Locations to Choose From

November 6, 2012 – Lodi, CA and November 14, 2012 – Shingle Springs, CA

This seminar will guide winery, vineyard owners, operators and wine industry professionals through cost-effective strategies to address current environmental, business and technical challenges unique to the state’s Motherlode counties. Topics will include, Land Divisions, Zoning, Williamson Act, CEQA, Water Quality & Availability, Regulatory Trends, Branding, Copyright, Business Transition Planning, Contracts and Related Litigation.

For more information, tentative agenda and registration click here.

The development team of RCH Group in Roseville (David Cook), Grass Valley’s King Engineering, Inc. (Russell King, P.E.) and Bill Abbott of Abbott & Kindermann, LLP recently secured key approvals for the Amazing Facts Ministry campus to be located in Granite Bay in Placer County. This Facility consists of approximately 120,000 square feet of religious facilities, including the Ministry’s production facilities for web, television, video and publication outreach. The Planning Commission approved the EIR and entitlements. No appeal was filed.

 

By Glen Hansen

In Martin v. Van Bergen (September 6, 2012, B232570) ___ Cal.App.4th ___, the Court of Appeal for the Second Appellate District held that a property owner who unknowingly had raised almond trees up to a common fence located on a neighboring parcel could not raise the doctrine of boundary by agreement as a defense to the neighbor’s quiet title action, because there was no evidence of an actual agreement to locate the fence as the boundary between the parcels.

Continue Reading When Neighbors Fight Over Whether A Fence Is On The Property Line, The Doctrine Of Boundary By Agreement Requires … An Actual Agreement.

By William W. Abbott

City of Maywood v. Los Angeles Unified School District (2012) 208 Cal.App.4th 362. Los Angeles Unified School District ("LAUSD") proposed construction of a new high school in the City of Maywood. LAUSD was interested in a two block site consisting of 8.37 acres, then bisected by a major street. The original concept, called for the street to be abandoned and incorporated into the overall campus design. In response to the Notice of Preparation for the EIR, LAUSD received comments including questions concerning the infeasibility of street abandonment. The District modified the design as part of the Draft EIR, leaving the road in place but adding a pedestrian overcrossing of the existing street to provide connectivity between the two project site areas. Following certification of the EIR, the District approved the project. The City filed a CEQA challenge, and the trial court agreed that the District had committed several CEQA errors, and in response to a subsequent motion filed by the City, awarded attorneys’ fees of $670,000 to the City under the authority of California’s private attorney general statute, Code of Civil Procedure 1021.5. The District appealed. In a lengthy and painstaking decision, the Second Appellate District largely agreed with LAUSD, reversing the trial court of 4 of 5 CEQA issues and reversing and remanding the award of attorneys’ fees for further consideration. The appellate decision provides guidance as to a number of key CEQA subjects: cumulative effects, alternatives, mitigation deferral and growth assumptions.

Continue Reading Appellate Court Re-grades EIR Exam and Gives L.A.U.S.D. High Marks; Assigns More Homework to Address Pedestrian Safety for High School Project.

By Glen Hansen

The Clean Air Act (“CAA”) charges the United States Environmental Protection Agency (“EPA”) with setting National Ambient Air Quality Standards (“NAAQS”), which prescribe the maximum permissible levels of common pollutants in the ambient air. EPA designates “nonattainment” areas — that is, areas within each State where the level of the pollutant exceeds the NAAQS. Once EPA sets a NAAQS and designates nonattainment areas within the States, the lead role shifts to the States. The States implement the NAAQS within their borders through State Implementation Plans (“SIPs”). In their SIPs, States choose which individual sources within the State must reduce emissions, and by how much. States must submit SIPs to EPA within three years of each new or revised NAAQS. One of the required elements of a SIP submission is the “good neighbor” provision, which recognizes that emissions from “upwind” regions may pollute “downwind” regions. The good neighbor provision requires upwind States to bear responsibility for their fair share of the nonattainment in downwind States. EPA plays the critical role in gathering information about air quality in the downwind States, calculating each upwind State’s good neighbor obligation, and transmitting that information to the upwind State. With that information, the upwind State can then determine how to meet its good neighbor obligation in a new SIP or SIP revision. If a State does not timely submit an adequate SIP (or an adequate SIP revision) to take account of the good neighbor obligation as defined by EPA, responsibility shifts back to the Federal Government. Within two years of disapproving a State’s SIP submission or SIP revision, or determining that a State has failed to submit a SIP, EPA must promulgate a Federal Implementation Plan (“FIP”) to implement the NAAQS within that State.

Continue Reading In Striking Down EPA’s “Transport Rule” Under The Clean Air Act, Federal Court Is Struck With EPA’s Refusal To Acknowledge Any Textual Limits On Its Authority

By Glen Hansen

In Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, the California Supreme Court held that a defendant developer who recorded a declaration of covenants, conditions, and restrictions (“CC&Rs”) could enforce an arbitration provision in those CC&Rs in a construction defect action filed against the developer by a condominium association governed by those CC&Rs, even though the association did not exist as a separate entity when the CC&Rs was drafted and recorded. The Court resolved a split of opinion in the appellate courts

Continue Reading Arbitration Provision In A CC&Rs Applies To Condominium Association Construction Defects Claims Against Developer.

By William W. Abbott

On April 6, 2009, T-Mobile applied to the Planning Department of the City and County of San Francisco for a determination on the installation of 40 wireless telecommunications facilities on existing utility poles throughout San Francisco. On August 7, 2009, T-Mobile applied for a permit from the Department of Public Works for an installation on Randall Street, marking the application that the installation was exempt from CEQA. Prior to the Planning Department completing its CEQA review, Public Works granted the permit on August 10. Roughly a month later, the Planning Department granted a certificate of CEQA exemption. Two months later, T-Mobile completed the Randall Street installation. A neighbor, Robinson, then filed suit, claiming that the City violated CEQA and its own approval procedures. The trial court ruled for the City and T-Mobile. Robinson appealed.

Continue Reading Lead Agency Correctly Applied CEQA Categorical Exemption To Permits For Wireless Equipment To Be Added To Existing Utility Poles