September 2014

By William W. Abbott

A continuing reoccurring question for CEQA practitioners is: when is it appropriate to rely upon the regulatory scheme and permitting steps of independent regulatory agencies? The most ready criticism of that practice is that it involves deferred mitigation. That criticism has to be balanced against the recognition that subsequent to the enactment of CEQA, that there now exists a myriad number of local, state and federal regulatory agencies with special regulations and expertise and CEQA should integrate with existing regulatory practices where issues overlap. As the decision in Citizens Opposing a Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th 360 illustrates, perhaps an easier case can be made for regulatory reliance when a CEQA lead agency relies upon a federal agency with exclusive regulatory authority.

Continue Reading Permissible CEQA Mitigation Includes Reliance Independent Agency Regulatory Review

By Glen Hansen

In Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, the Court of Appeal for the First Appellate District held that the environmental impact report for the comprehensive plan to redevelop Treasure Island and Yerba Buena Island in the San Francisco Bay, which was labeled a “project EIR” (a) satisfied the substantial evidence standard of review as to all of the required elements of an EIR; (b) addressed the environmental impacts of the proposed project to a degree of specificity consistent with the underlying activity being approved; and (c) properly allows for supplemental review that may be necessary in the future.

Continue Reading It Says It’s A “Project” EIR. You Say It Should Be A “Program” EIR. Does The Label Even Matter?

 By William W. Abbott

The courts have been clear: the decisionmaking body has to consider the CEQA document before taking action to granting a discretionary approval. A recent court decision examines a variation on that practice when the approving body approved the CEQA document, but lacked the authority under the local code to do. How does the legislative body cure that error?

Continue Reading An Appeal To The City Council Fails To Wash Away All CEQA Sins. Consideration Of Historical Resources In A Negative Declaration Falls Under The Substantial Evidence Test, Not The Fair Argument Test.

By Katherine J. Hart

In Coalition for Adequate Review v. City and County of San Francisco (September 15, 2014, A135512) ___Cal.App.4th ___, the Court of Appeal, First Appellate District, reversed in part and remanded in part, a trial court’s denial of the City’s ability to recover costs for the record of proceedings where the Coalition failed to include all relevant documents in the record the Coalition elected to prepare, despite the trial court’s denial of the petition for writ of mandate.

Continue Reading Appellate Court Clarifies Costs Recovery Rules In CEQA Litigation

Join Glen C. Hansen of Abbott & Kindermann, LLP, in a new class which discusses recent developments in resolving easement and boundary disputes in California.  This is an advanced class aimed primarily at land surveyors, civil engineers, attorneys, and property owners. This intense, three‑hour class interprets and applies: 

  • Easement Creation and Termination
  • Determining the Scope of an Easement
  • Locating and Maintaining Boundary Dividers
  • Resolving Conflicting Surveys
  • Recently Enacted and Pending Legislation

Continue Reading NEW CLASS – Update on Easement Law and Boundary Disputes

The following article by Diane Kindermann was published by the Orange County Lawyer Magazine in its August 2014 issue.  It encapsulates the State of California’s response to the drought through state legislation, local regulation, litigation, and new technical guidance addressing both surface and groundwater.  To read the entire article click here.

Since the original publication of this article, on September 16 to be exact, Governor Jerry Brown signed into law Senate Bill 1168, Senate Bill 1319 and Assembly Bill 1739. This historic package of legislation establishes the framework for groundwater regulation for the first time in the State’s history. For Abbott & Kindermann’s analysis of these bills click here.

By Glen Hansen

Roberson v. City of Rialto (2014) 226 Cal.App.4th 1499.

On July 15, 2008, the City of Rialto approved development of a commercial retail center to be anchored by a Wal-Mart Supercenter. The notice of the initial, July 1, 2008, public hearing before the city council on the project approvals was legally defective because the notice did not indicate that the planning commission had recommended the city council adopt the project approvals. (See Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 890–893.) In August 2008, Rialto Citizens for Responsible Growth, a nonprofit mutual benefit corporation (“Rialto Citizens”), petitioned the trial court to invalidate and set aside the project approvals based in part on the defect in the notice of the July 1 city council hearing. On appeal, the court ruled against Rialto Citizens, holding that the petitioner made no attempt to show in the trial court, and the trial court did not find, that the defect in the notice was prejudicial, caused substantial injury to any of Rialto Citizens’ members, or that a different result was probable absent the defect. (See Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 916–921.)

Continue Reading CEQA Case Barred: Petitioners Seeking Vindication of Same Public Interest as Prior Unsuccessful Claimant

By Glen Hansen 

In Brandt Trust v. United States, ___ U.S. ___, 134 S. Ct. 1257, 188 L.Ed.2d 272 (2014), the U.S. Supreme Court held that rights of way granted by the U.S. Government to railroads under the General Railroad Right-of-Way Act of 1875 constituted easements, and not reversionary interests held by the U.S. Government, such that when a right of way granted in 1908 under the 1875 Act was abandoned in 2004, the servient property for that right of way became unburdened by the easement and all property rights were then held by the patentee of the underlying land.

Continue Reading Supreme Court Holds That U.S. Government Does Not Have A Reversionary Interest To Abandoned Railroad Right Of Ways Under 1875 Statute

By William W. Abbott

Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314.

Programmatic EIRs invariably invoke the uneasy question, of “how much information is enough?” This question is reminiscent of the challenge to the United States Supreme Court in defining obscenity and Justice Potter Stewart’s concurring opinion when he acknowledged the difficulty of articulating a standard, writing “I know it when I see it”, and then concluding that the movie in question was not obscene. The Third District Court of Appeal recently wrestled with CEQA’s equivalent to defining the undefinable, concluding that the level of detail on a programmatic EIR was sufficient.

Continue Reading Third District Court of Appeal Upholds Level Of Detail In Programmatic EIR for Rail Corridor