February 2013

By William W. Abbott

On February 15, 2013, OPR released its Technical Advisory on Senate Bill 244, a thoughtful discussion on how cities, counties and LAFCos can implement Senate Bill 244 (Wolk) of 2011. The purpose of this legislation is to recognize and facilitate improvements to disadvantaged communities. As with general plans, it is one thing to recognize a challenge, it is another to actually fix it. OPR’s Advisory provides a useful summary and links to state funding programs, the proceeds of which undoubtedly will be subject to a very competitive process.  Where the Advisory could stand more disclosure is in its treatment of local funding mechanisms. "Principal funding sources for local government infrastructure include taxes, benefit assessments, bonds and exactions (including impact fees)." (Advisory, p. 11)  On a theoretical level, the statement is completely accurate. On a practical level, it is not, as most local officials know. Getting local voters to assess or tax themselves has been an uphill battle following passage of Propositions 13, 218 and 62. Local officials are also well aware that new development cannot be required to cure existing facility deficiencies. Rohn v. City of Visailia (1989) 214 Cal.App.3d 1463; Bixel Associates v. City of Los Angeles (1989) 216 Cal.App.3d 1208. So exactly how, in the real world, is local government going to generate local revenues?

I am confident that local government will take OPR’s Advisory to heart. Lets hope that the Legislature does as well, and that it steps up to the plate on funding these necessary endeavors.

William W. Abbott is a partner 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

Reed v. Town of Gilbert, Arizona (9th Cir. Feb. 8, 2013, No. 11-15588) ___F.3d ___.

As part of its overall regulatory code, the City of Gilbert, Arizona enacted various sign regulations. The regulations generally require a City issued sign permit unless the sign qualifies under one of nineteen different exceptions. Three of the nineteen exceptions involved (1) temporary directional signs for a qualifying event, (2) political signs and (3) ideological signs. Temporary directional signs subject to the exemption were subject to specific limitations not applicable to political and ideological signs including size, location (excluded from public right of way), and duration (same day only).

Continue Reading Born (again) Under a Bad Sign: Ninth Circuit Upholds Ordinance Restricting Duration, Location, Quantity, And Size Of Directional Signs for Church Services

The State Water Resources Control Board is poised to release a final draft of the Industrial General Permit by April 2013. Public comments will be received for 45 days, and a formal workshop will be held on May 8, 2013.

For more details visit: http://www.waterboards.ca.gov/water_issues/programs/stormwater/

By William W. Abbott

Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal. App. 4th 1059. Troesh Materials, Inc. submitted an application to the County of Santa Barbara (“County”) to operate a new mine within the dry bed of the Cuyama River. The mine would be positioned way from the active streambed, and roughly 1500 feet upstream from an existing, active mine. Potential excavation could proceed to a maximum depth of 90 feet, with an average production of 500,000 cubic yards per year. Petitioner filed a CEQA petition for writ of mandate which was denied by the trial court. The ensuing appeal involved two topical areas: hydrological and water resource (supply/quality) impacts.

Continue Reading Court Affirms EIR for 30 Year Mining Operation; erroneous impact conclusion did not invalidate the EIR

By Glen C. Hansen

In Windsor Pacific LLC v. Samwood Co. (January 30,2013, B233514) ___ Cal.App.4th ____, the Court of Appeal for the Second Appellate District held (1) that a prescriptive easement could not be established over two roads, where the facts in the case demonstrate that the party alleging the prescriptive use was equitably estopped from denying that its use of the roads was by permission; and (2) that a proceeding to interpret a written easement agreement in order to determine whether a party to the agreement is equitably estopped from claiming that its use of the subject property was permissive is an action to ‘enforce or interpret’ the agreement, for which an attorneys’ fees provision in the agreement applies, regardless of whether that interpretation was sought by the allegations of the complaint or by affirmative defenses in the answer.

Continue Reading Court Strongly Reaffirms That No Prescriptive Easement Exists Where The Facts Demonstrate That The Use Of The Property Was By Permission