October 2012

Half-Day Seminar – Register Now! ~ Only $35 (lunch included)

Wine Law Seminar

Motherlode Region

Solutions for the Wine and Grape Growing Industry:

Addressing Environmental, Business & Technical Challenges

Covering Motherlode counties of Amador, Calaveras, El Dorado, Mariposa, Nevada, Placer, Sacramento, San Joaquin, Stanislaus, Tuolumne & Yolo

Continue Reading Wine Law Seminar: Solutions to Reduce Your Regulatory Risks & Protect Your Business!

By Katherine J. Hart

Just short of one year from signing Senate Bill 436 into law, Governor Brown signed urgency measure Senate Bill 1094 into law in late September to clarify endowment requirements for lands held by public or private entities to mitigate impacts on natural resources.

Continue Reading GOVERNOR SIGNS URGENCY MEASURE TO CLARIFY 2011 LAW ON ENDOWMENT FUNDS FOR MITIGATION LANDS

By William W. Abbott

While perhaps not surprising news to LAFCo wonks like Peter Detwiler, two recent decisions illustrate the special role that local agency formation commissions play in influencing local government and special district activities. The first decision, Citizens Association of Sunset Beach v. Orange County Local Agency Formation Commission (October 5, 2012, G045878) ___ Cal.App.4th ___ , wrestles with the intersection of Proposition 218 voting requirements with LAFCo’s ability to order island annexations. (Government Code section 56375.3) Originally developed in 1904, Sunset Beach is a small, unincorporated enclave located adjacent to Huntington Beach. Confined to less than 134 acres, Sunset Beach is home to roughly 1200 permanent residents. As authorized by the Government Code, Orange County LAFCo (“OC LAFCo”), upon review of the location, size and status of Sunset Beach, concluded that the area met the qualification for an island annexation, and ordered it annexed to the agent city of Huntington Beach. At the time, existing property owners within the city limits of Huntington Beach paid two taxes that their adjacent neighbors in Sunset Beach did not pay: a five percent utility tax and a pre-Proposition 13 retirement property tax. LAFCos approval of the island annexation thus triggered the following question: did Proposition 218 give the Sunset Beach voters the right to vote on the taxes as a condition to the annexation going forward. Voters within Sunset Beach filed suit. The trial court decided that 218 voting requirements did not extend to LAFCo compelled island annexations completed under the authority of Government Code section 56375.3. The appellate court reached the same conclusion. In so deciding, the appellate court reviewed the history to voter enacted tax reform starting with Proposition 13 (1978). The appellate court reasoned that had the voters intended to apply the vote requirement to the then existing statutory scheme which authorized island annexations, the voters would have drafted the measure to expressly do so. Failing the ability to find that legislative objective in Proposition 218, the appellate court declined to read the proposition in a manner to reach a result not reasonably read into the adopted text.

Continue Reading Two Recent Decisions Highlight the Special Powers Held By LAFCo

By Katherine J. Hart

In Voices for Rural Living v. El Dorado Irrigation District, the Court of Appeal, Third Appellate District, affirmed the trial court’s determinations that (1) the small project categorical exemption in CEQA did not apply to exempt an agreement for water service from CEQA review due to the unusual circumstances surrounding the agreement, and (2) a local water district lacked authority to disregard or deem unconstitutional annexation conditions previously imposed by the local agency formation commission (LAFCo).

Continue Reading Class 3 CEQA Exemption: Unusual Circumstances Exception Becoming Less Unusual?

Sacramento-based law firm Abbott & Kindermann, LLP, in association

with CAWG, presents: “Wine Law Seminar – Motherlode Region”

 

November 6, 2012 – 8:00 am – 2:00 pm – Oak Ridge Winery, Lodi;

November 14, 2012 – 8:00 am – 2:00 pm –  Cielo Estates, Shingle Springs

Half-Day Seminar – Register Now! – Only $35 (lunch included)

 These seminars will provide solutions for the environmental, business and technical

challenges facing winery and vineyard owners and operators in the Motherlode counties

(Amador, Calaveras, El Dorado, Mariposa, Nevada, Placer, Sacramento, San Joaquin,

Stanislaus, Tuolumne & Yolo). Topics include:

·         Water Quality, Supply & Storage

·         Contracts

·         Use Permits/Zoning

·         Grapevine Viruses

·         Branding, Labeling & Copyright

·         Business Structuring & Transition Planning

·         Regulatory Trends & Strategies

·         Easements

Due to limited space these seminars require registration. Please call Debra at Abbott & Kindermann, LLP, (916) 456-9595 for seminar details visit www.winelawseminar.com.

By Glen Hansen

In American Electric Power Co. v. Connecticut, ___ U.S. ___, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011) (“AEP”), the United States Supreme Court held that the Clean Air Act (“CAA”) and any Environmental Protection Agency action authorized by the CAA displaces any federal common law of interstate nuisance seeking abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Following AEP, several federal courts in 2012 rejected lawsuits based on common law claims that sought to remedy climate change, either by way of damages or injunctive relief.

Continue Reading Federal Courts Continue To Reject Climate Change Lawsuits That Rely On Federal Common Law

By Sharon Buckenmeyer

The State’s Climate Action Team just released an Extreme Heat Adaptation Interim Guidance Document to provide direction to State agencies for the incorporation of extreme heat projections into planning and decision making. The guidance document focuses on the health aspects of increasing temperatures in California and provides recommendations to State agencies for strategies for cooling the built environment (buildings, roadways and paved surfaces) and mitigating the effects of urban heat islands. These recommendations include creating heat resilient and cooler communities by identifying opportunities to incorporate strategies to increase urban greening (trees, parks and green roofs), using lighter colored or cooler materials and stream restoration. While this document is prepared as a guideline for State agencies, it is visualized local governments will use it as well. To view the Extreme Heat Adaptation Interim Guidance Document, please click here. Comments on the draft document can be made by the general public online at: climatechange@calepa.ca.gov.

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 William W. Abbott, Diane Kindermann, Elizabeth Strahlstrom, Katherine J. Hart and Glen Hansen

We are pleased to present our cumulative Third Quarter CEQA Review for 2012. The newest decisions issued in the 3rd quarter are bolded and preceded by asterisks (***).

In terms of new developments, the Supreme Court has taken up the Neighbors for Smart Rail case, meaning that there are now three CEQA cases pending at the California Supreme Court: Neighbors for Smart Rail, Berkeley Hillside Preservationand City of San Diego v. Board of Trustees of the California State University. One common theme in the third quarter cases was judicial deference to the decisions of the lead agency. Particularly noteworthy were decisions which recognized the integration of lead agency CEQA practice with the independent substantive regulations and laws administered by other agencies such as USFWS, CDFG, state agencies and special districts (Rialto, Maywood), as well as rejection of alternatives (Rialto, Maywood).

Continue Reading 2012 CEQA 3rd QUARTER REVIEW