September 2016

Boxer v. City of Beverly Hills (2016) 246 Cal.App.4th 1212

By Glen C. Hansen

In Boxer v. City of Beverly Hills (2016) 246 Cal.App.4th 1212, the Court of Appeal for the Second Appellate District held that the trial court properly sustained the City of Beverly Hills’ (“City”) demurrer to an inverse condemnation cause of action brought against the City by homeowners whose views of the Los Angeles Basin and surrounding hills, including the Hollywood sign, were blocked by the City’s planting and maintaining of coastal redwoods on a City park adjacent to the homeowners’ property. In an inverse condemnation action, the property owner must establish the first element that the public entity has “taken or damaged” his or her property, before the second element of just compensation is addressed. Property is “taken or damaged” within the meaning of article I, section 19 of the California Constitution when: (1) the property has been physically invaded in a tangible manner; (2) no physical invasion has occurred, but the property has been physically damaged; or (3) an intangible intrusion onto the property has occurred which has caused no damage to the property but places a burden on the property that is direct, substantial, and peculiar to the property itself.  In this case, the plaintiffs failed to establish any one of those three alternatives.

Plaintiffs did not allege that either the trees or anything associated with the trees physically invaded their property. Thus, plaintiffs failed to allege any physical intrusion, occupation, or invasion of their property or any physical damage to their property. Also, plaintiffs failed to show any “intangible intrusion” onto their property. When the conduct of a public entity results in an “intangible intrusion” onto the plaintiff’s property that does not physically damage the property, the plaintiff must allege that the intrusion has resulted in a burden on the property that is direct, substantial, and peculiar to the property itself. Here, plaintiffs argued that an “intangible intrusion” existed because the trees unobstructed their view of Los Angeles and its surrounding hillsides and prominent landmarks. However, under California law, plaintiffs had no right to an unobstructed view over adjoining property. The visual impairment from the City’s trees could not, itself, constitute an unconstitutional taking. Plaintiffs’ alternative argument regarding diminution in the value of their property from the obstructed view was also unavailing, because that argument failed to establish the first element of a compensable taking or damaging of their property. Diminution in value is a component of the second element of just compensation, which is not considered until after the first element of a “taking or damage” has already been proved. Accordingly, plaintiffs failed to allege an inverse condemnation cause of action, and the demurrer was properly sustained by the trial court.

Glen Hansen is Senior Counsel 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, or 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

California Public Records Research, Inc. v. County of Stanislaus (2016) 246 Cal.App.4th 1432.

In California Public Records Research, Inc. v. County of Stanislaus (2016) 246 Cal.App.4th 1432, plaintiff California Public Records Research, Inc., sought a writ of mandate to compel the County of Stanislaus to reduce the fees it charges for copies of official records. Plaintiff alleged the fees of $3 for the first page and $2 for each subsequent page exceeded County’s cost of providing the service. Plaintiff argued that such rates violated Government Code section 27366, which provides that copying fees “shall be set by the board of supervisors in an amount necessary to recover the direct and indirect costs of providing the product or service ….” The trial court denied the writ. Plaintiff appealed. The Court of Appeal reversed.

The evidence demonstrated that the County’s Board of Supervisors based its decision on a study that estimated the cost of a particular service by multiplying (1) the amount of staff time used to provide the service by (2) the cost to County of that staff time. The time figure included an estimate of the average number of minutes needed by staff to provide the service plus an allocation of general and support minutes. The study estimated it cost County an average of $2.97 to process a request for a copy of an official record. The study therefore recommended charging $3 for the first page copied and $2 for each subsequent page. However, the study and other evidence presented information on a per document basis, not a per page basis. The Court of Appeal concluded that the record lacked evidence showing that the fees charged per page reflect the County’s actual costs.

The court then explained how the fee determination should be made. Section 27366 requires an exercise of judgment and is not simply a matter of performing a mathematical calculation that produces a single correct answer. Thus, that section grants a board of supervisors some discretionary authority when setting copying fees, limited by the phrase “direct and indirect costs.” The term “direct costs” is unambiguous. The term “indirect costs” requires that such costs be “reasonably attributed to (i.e., reasonably related to) the service of providing copies and by excluding costs not reasonably attributed to the service of providing copies.” The choice of methodology for calculating a county’s cost of providing copying services is a matter committed to the discretion of the board of supervisors because there is no single legally correct methodology. The court therefore remanded the case for further proceedings consistent with this proper determination of the copying fees.

Glen C. Hansen is Senior Counsel 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.

 

Communities for a Better Environment v. Bay Area Air Quality Management District (2016) 1 Cal.App.5th 715

By Glen Hansen

In Communities for a Better Environment v. Bay Area Air Quality Management District (2016) 1 Cal.App.5th 715 (“Communities”), the Court of Appeal for the First Appellate District affirmed the dismissal of  an action under the California Environmental Quality Act (“CEQA”) that challenged an agency’s approval, made without a notice of exemption, of a permit for a rail-to-truck facility under a ministerial exemption, because the action was not filed within 180 days after the agency’s decision; and because the discovery rule did not apply in that context. 

In Communities, respondent Kinder Morgan Material Services, LLC (“Kinder Morgan”), began operating an ethanol rail-to-truck transloading facility in Richmond, California, around 2009. In February 2013, Kinder Morgan applied to the Bay Area Air Quality Management District (“BAAQMD”) for approval to alter the facility and begin transloading crude oil from the Bakken Formation in the Great Plains. According to petitioners Communities for a Better Environment, Asian Pacific Environmental Network, Sierra Club, and Natural Resources Defense Council (collectively, “CBE”), Bakken crude oil is “highly volatile and explosive” and “[t]he range of significant adverse environmental impacts of Kinder Morgan’s operation includes a high risk to public health and safety from derailment, significant increases in toxic air contaminants, potential contamination of California’s precious waterways (that support entire ecosystems), and significant increases in greenhouse gas emissions.” BAAQMD determined that the project was “ministerial” and not subject to CEQA review. BAAQMD authorized Kinder Morgan to begin transloading crude oil by issuing a permit in July 2013 called an authority to construct. BAAQMD never issued an optional notice of exemption (“NOE”) that would have publicly announced its determination that the project was exempt from CEQA review. Kinder Morgan began transloading crude oil in mid-September 2013. 

On March 27, 2014, CBE filed a petition for writ of mandate and complaint for declaratory relief on the grounds that BAAQMD’s approval of the operational change at the transloading facility was not ministerial and an environmental impact report (“EIR”) was required pursuant to CEQA because there was a fair argument that the change would have a significant impact on the environment. The trial court dismissed the petition and complaint without leave to amend, concluding that the suit was time-barred under Public Resources Code section 21167, subdivision (d). The Court of Appeal affirmed. 

The only issue on appeal was whether CBE could successfully amend its petition and complaint to allege that the action was timely by virtue of the discovery rule. CBE argued that it did not learn, and could not with reasonable diligence have learned, of the project any earlier, because BAAQMD “gave the public no notice of Kinder Morgan’s switch to … Bakken crude oil” and “Kinder Morgan’s transloading operation is entirely enclosed, making the transported commodity, and any change to it, invisible.”  In response, the court explained that an action to challenge such a determination accrues not at the time of the determination but instead on one of three alternative dates explicitly provided in section 21167(d). Those dates are: First, if the agency files an NOE under section 21152, subdivision (b), the action must be brought within 35 days of the NOE’s filing; second, if the NOE has not been filed, then the action must be brought within 180 days of the agency’s decision to carry out or approve the project; and third, if a project is undertaken without a formal decision by the agency, the action must be brought within 180 days of commencement of the project. Here, the action was not filed within 180 days after the agency’s formal approval of the project. Rejecting CBE’s argument, the court concluded that the discovery rule cannot be applied to postpone the running of those limitations periods in section 21167(d). A plaintiff is deemed to have constructive notice of a potential CEQA violation on all three alternative dates of accrual under section 21167(d). The court stated that “[t]he discovery rule has never been applied to postpone the accrual of an action beyond the date the plaintiff has constructive notice of an injury, and we decline to so apply it here.” As CBE offered no theory under which the operative events occurred less than 180 days before the lawsuit was filed, the court assumed that CBE could not amend its petition and complaint to allege that it lacked any actual or constructive notice in that timeframe. Therefore, applying the discovery rule in this case would not postpone accrual of the action. Accordingly, the court affirmed the dismissal of the action.

The ramifications of this decision were evident in the comments of BAAQMD’s district counsel: “These [permit] decisions are made hundreds or even thousands of times across all the government entities every day. … What the statute said is in those circumstances, you don’t have to give notice. … I think most agencies don’t [give notice] for very routine permits.”[1]

Glen Hansen is a Senior Counsel 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, or 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.


[1] Comments of Brian C. Bunger, quoted in Logan Noblin, “Environmental Groups Lose CEQA Appeal,” The Daily Recorder (July 21, 2016), p.2