CEQA : Abbott & Kindermann Land Use Law Blog

Land Use Litigation Traps

Posted on August 5, 2010 by Abbott & Kindermann

By William W. Abbott

While land use litigation is not overly complex, it contains two procedural rules which occasionally trip up project opponents. First, CEQA requires that the petitioner request a hearing within 90 days. Public Resources Code section 21167.4 An oral request is insufficient. Second, if the challenge is to a tentative map approval, the petitioner must also obtain and serve a summons. Government Code section 66499.37. In Torrey Hills Community Coalition v. City of San Diego (2010) ___ Cal.App.4th ____, the appellate court affirmed the action of a trial court dismissing a writ petition on both grounds. With respect to the dismissal of the CEQA claim, the court held that an oral request was insufficient as it was non compliant with the statutory obligation to serve the request on all parties. The Map Act dismissal was more intriguing. Petitioner claimed impossibility as a form of relief, based upon declarations establishing that the San Diego superior court routinely declined to issue a summons in cases involving CEQA writs, a scenario we highlighted in an earlier write up. Notwithstanding the evidence that a summons would not have been issued in the case, the appellate court concluded that the petitioner failed to establish sufficient facts to claim impossibility. The appellate court followed its earlier reasoning as set forth in Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, wherein the same court dismissed the related CEQA causes of action, based upon the non compliance with the Subdivision Map Act service rules. While the holding in Friends was published on November 24, 2008, and the 90 day period in Torrey Hills expired on December 15, 2008, there was no evidence that the petitioner had requested a summons between the publication date and end of the 90 day service period and consequently made an inadequate showing of impossibility.

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.

Tags: CEQA, Subdivision Map Act

Appellate Court Post - Save Tara: Preliminary Exploration Does Not Constitute Project Commitment for CEQA

Posted on July 8, 2010 by Abbott & Kindermann

By Leslie Z. Walker

In City of Santee v. County of San Diego (June 7, 2010, D055310) __Cal.App.4th__ the Fourth District Court of Appeal held that an agreement between the County of San Diego and the Department of Corrections under which the County identified potential locations for a state prison reentry facility in exchange for preference in the awards of state financing of county jail facilities did not constitute a commitment to a definite course of action. As such, Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 did not require the County to conduct environmental review prior to entering into the agreement.

Tags: CEQA

2010 MID-YEAR CEQA UPDATE

Posted on June 29, 2010 by Abbott & Kindermann

By Leslie Z. Walker, Cori Badgley, Katherine J. Hart and William W. Abbott

Posted on March 25, 2010 by Abbott & Kindermann

By Katherine J. Hart

In Communities for a Better Environment v. South Coast Air Quality Management District et al., the California Supreme Court determined that the air district issuing a new permit to a petroleum refinery seeking to introduce a new industrial process to its existing refinery, incorrectly determined the baseline upon which to analyze environmental impacts. Specifically, the Court concluded the baseline could not be based on the maximum permitted operating capacity of the existing equipment but rather had to be based on the physical conditions actually existing at the time of environmental analysis. The facts are as follows.

Tags: Air Quality, CEQA, Local Government

CEQA Guidelines for Greenhouse Gas Emissions Become Law Today

Posted on March 18, 2010 by Abbott & Kindermann

By Leslie Z. Walker

Almost three years after Attorney General Edmund G. Brown, Jr. filed suit against the County of San Bernardino for failing to consider the impacts of the County’s General Plan on Global Warming, the Amendments to the CEQA Guidelines Addressing Greenhouse Gas Emissions mandated by Senate Bill 97 (Chapter 185, Statues 2007; Pub. Resources Code, § 21083.05), take effect today. The Amendments require the quantification and mitigation of greenhouse gas emissions. (For more information about the Amendments, see OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency and CEQA Guidelines on Greenhouse Gases One Step Closer to Law.) Lead agencies should consult Guidelines section 15007 to determine when the Amendments apply to the agency’s actions.

Leslie Z. Walker is an associate 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.

Tags: Air Quality, CEQA, Climate Change

Yes, Local Appeal Fees Apply to CEQA Appeals

Posted on March 4, 2010 by Abbott & Kindermann

Posted on January 13, 2010 by Abbott & Kindermann

By Leslie Z. Walker

In Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, the Castaic Water Agency (“Castaic”) succeeded in extracting its agreement with Kern County Water Agency (“Kern”), if only for a moment, from the tangles of the Department of Water Resources’ (“DWR”) Monterey Agreement.

Tags: CEQA, Water Quality, Wetlands, & Clean Water Act, Water Supply

Posted on January 5, 2010 by Abbott & Kindermann

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2010!

In January and February 2010 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining. In addition, the following hot topics for 2010 will be discussed:

Global Warming: CEQA Guidelines, Mandatory Reporting
Water Supply Legislation
CEQA Litigation: Alternative Analysis & Exhaustion of Administrative Remedies
Subdivision Map Extension
Interpreting Development Agreements
Endangered Species Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations: Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

Date: Thursday, January 21, 2010
Location: Double Tree Hotel Modesto, 1150 Ninth Street
Registration: 12:30 p.m. – 1:00 p.m.
Program: 1:00 p.m. – 4:00 p.m.

Redding Conference

Date: Thursday, January 28, 2010
Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
Registration: 12:30 p.m. – 1:00 p.m.
Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

Date: Friday, February 12, 2010
Location: Sacramento Hilton Arden West, 2200 Harvard Street
Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available.

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Tags: A&K News, Air Quality, Attorney's Fees, CEQA, Climate Change, Easements, Endangered Species , Exactions, Impact Fees & Service Charges, Planning, Zoning, & Development, Real Estate, Subdivision Map Act

Project Denial Means Project Denial, Regardless of the Consequences

Posted on December 29, 2009 by Abbott & Kindermann

By Cori Badgley

In Sunset Sky Ranch Pilots Association v. County of Sacramento (2009) ___ Cal.4th ___ the California Supreme Court reversed the decision of the appellate court, which held that the denial of a conditional use permit renewal was a project under CEQA. Although project denials are generally exempted from CEQA review, the appellate court reasoned that in this case the result of denying renewal of the permit constituted the whole of the action, and therefore, CEQA applied. (See “Court Holds that County Has Power to Deny Conditional Use Permit Renewal, but CEQA Applies”.) The California Supreme Court disagreed.

Tags: CEQA

Posted on December 2, 2009 by Abbott & Kindermann

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2010!

In January and February 2010 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining. In addition, the following hot topics for 2010 will be discussed:

Global Warming: CEQA Guidelines, Mandatory Reporting
Water Supply Legislation
CEQA Litigation: Alternative Analysis & Exhaustion of Administrative Remedies
Subdivision Map Extension
Interpreting Development Agreements
Endangered Species Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations: Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

Date: Thursday, January 21, 2010
Location: Double Tree Hotel Modesto, 1150 Ninth Street
Registration: 12:30 p.m. – 1:00 p.m.
Program: 1:00 p.m. – 4:00 p.m.

Redding Conference

Date: Thursday, January 28, 2010
Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
Registration: 12:30 p.m. – 1:00 p.m.
Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

Date: Friday, February 12, 2010
Location: Sacramento Hilton Arden West, 2200 Harvard Street
Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
Program: 9:00 a.m. - 12:00 noon

Generally, a lawsuit challenging an agency’s decision or environmental review must be brought within 30, 60 or 90 days, depending on the applicable statute of limitations. Often, an agency’s decision involves powers granted under different statutes, which can lead to conflicting statutes of limitations. In Strother v. California Coastal Commission (2009) 173 Cal.App.4th 873, the Court of Appeal for the Fourth Appellate District addressed such a conflict in a challenge to the granting of a coastal development permit. The conflict arose between the statute of limitations under the California Coastal Act (Pub. Resources Code § 30801) and the California Environmental Quality Act (“CEQA”) (Pub. Resources Code § 21080.5). The court held that as long as the challenges related to CEQA, CEQA’s statute of limitations applied.

Tags: CEQA

Posted on June 2, 2009 by Abbott & Kindermann

By Katherine J. Hart

The most recent CEQA/land use decision comes from the Court of Appeal, Third Appellate District and provides important guidance on issues of exhaustion of administrative remedies, CEQA mitigation measures, and general plan interpretation. In California Native Plant Society v. City of Rancho Cordova and Jaeger Road 530, LLC, filed March 24, 2009, the Court reviewed an Environmental Impact Report (“EIR”) for a project named The Preserve at Sunridge (“Preserve”). The Preserve involves the development of approximately 530 acres in Rancho Cordova, California ("City") as single and multi-family housing, commercial and office uses, a neighborhood park, an elementary school, detention basins, an open space and wetland preserve, bikeways and pedestrian and drainage corridors. The project lies within the Sunrise Douglas Community Plan, subject of challenge in the Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412. (See “Vineyard” blog article.)

The Court of Appeal addressed the following issues presented by the California Native Plant Society (“Society”).

I. Challenges to Offsite Mitigation Measures Not Exhausted

The Society asserted that four of its arguments pertaining to offsite mitigation were properly brought before the City for consideration. In reviewing the Society’s contentions, the Court of Appeal disagreed noting that that the Society’s arguments had not properly been exhausted and held that an agency must be “fairly apprised” of the issue being raised by opposition during the CEQA process to provide the jurisdiction with an opportunity to address the issues prior to project approval.

II. Deferral of Mitigation for Loss of Vernal Pools and Wetlands

The Society also alleged that the City failed to describe where offsite mitigation would occur and failed to analyze or disclose the impacts of that mitigation, thereby unlawfully deferring development and adoption of mitigation measures until after project approval. Despite the fact that the City did not identify any specific proposed mitigation site for the vernal pool/wetland impacts, the Court of Appeal found that the City did not improperly defer a determination of whether the project would have a significant impact on the vernal pools and seasonal wetlands or defer identification of the measures intended to mitigate those impacts. The Court of Appeal held that “the City did not have to identify exactly where any offsite mitigation site would be located” and further that “the agency was entitled to rely on the results of a future study to fix the exact details of the implementation of the mitigation measures the agency identified in the EIR.” The Court reasoned the City identified a mitigation measure (e.g., the study) and committed to mitigating the impact (e.g., loss of vernal pools/seasonal wetlands). The Court dismissed the Society’s arguments that the holding in the Vineyard case applied to the case before it on the grounds that the Society failed to show how the principles of deferred mitigation as applied to water supply (the issue before the Court in Vineyard) related to deferral of offsite mitigation for vernal pools and wetlands (the issue before the Court in this case).

III. Sufficiency of the Evidence Regarding Proposed Mitigation for Vernal Pools/Wetlands

The Society contended that the record did not support the City’s finding that the proposed mitigation on vernal pools and wetlands would reduce the project’s adverse environmental impacts to less than significant levels because the USFWS, CDFD, USACE, and USEPA did not believe the mitigation was sufficient to reduce the impacts to a less than significant level. The Court’s opinion reiterated the rule that the party challenging an EIR has the burden to show there is insufficient evidence. Thus, the Society was required to show there was no evidence to support the City’s finding, which it could not do. Significantly, the Court said, “Pointing to evidence of a disagreement with other agencies is not enough to carry the burden of showing a lack of substantial evidence to support the City’s finding.”

IV. Challenge to Water Supply Analysis Not Exhausted

The Society further claimed that the project EIR relied on and incorporated the discussion and analysis of the long-term water supply impacts from the Sunrise Douglas Community Plan EIR, which was invalidated by the Supreme Court in the Vineyard case. Here, the Court first found that just because an administrative record contains a copy of a certain document which would constitute substantial evidence of a certain allegation, does not mean that the legal claim was necessarily properly exhausted at the administrative level. Next, the Court found that the project EIR did not have to be invalidated merely because it incorporated by reference material from previous EIR, which was later found to be invalid. Interestingly, while not specifically noted, although clearly implied in the Court’s opinion, is the fact that the project EIR in this case did not tier from the Community Plan EIR in any manner.

V. Amendment of Mitigation Measures Post-Project Approval Not Exhausted

The Preserve project involved an amendment to two mitigation measures contained in the Sunrise Douglas Community Plan relating to wetland delineations and acquisition of permits. Specifically, the amendment to the two mitigation measures would allow required actions to be triggered upon approval of any improvement plans or grading permits, as opposed to prior to approval of other earlier entitlements such as tentative subdivision maps or development plans. The Society argued such amendments violated CEQA. The Court found that the Society had failed to exhaust its administrative remedies on this issue as well as on the grounds that the USEPA and USFWS comments upon which the Society relied did not specifically identify the mitigation measures being challenged.

VI. General Plan Consistency

The Court of Appeal examined a number of challenges to the project regarding consistency with the City’s General Plan. In particular, the Court found as follows:

The Society failed to meet its burden of showing that, based on all the evidence in the record, the City was unreasonable in determining the 90-acre offsite preserve was consistent with its General Plan. The Court reasoned that evidence other agencies thought mitigation was least preferable did not constitute evidence of unreasonableness.
The Society failed to meet its burden of showing that, based on all the evidence in the record, the City failed to consult with the USFWS. Soliciting and considering USFWS comments constituted sufficient “consultation.”
The Society failed to meet its burden of showing that, based on all the evidence in the Record, the City failed to properly mitigate for loss of habitat and species. Evidence that other agencies didn’t agree proposed mitigation was best didn’t constitute evidence that mitigation was inconsistent with the City’s General Plan, and further, did not show the City could not have reasonably determined the mitigation measure would prevent the project from impacting the viability of the fairy shrimp.
The Society did meet its burden of showing that the City failed to “coordinate” with USFWS. Saving the real kicker for last, the Court held that “coordination” did not equate to “consultation” under the City’s General Plan. The Court reasoned that if the City had meant only coordination with federal agencies was required, its General Plan would say just that. Coordination and consultation are two separate and distinct actions.

Lessons Learned

1. To all the cities and counties in California conducting general plan updates or considering general plan amendments: Courts grant agencies extensive deference in interpreting local plans, codes and policies most of the time, but not all of the time. In this case, the City’s general plan contained both the words “consultation” and “coordination” regarding wetlands, which have different meanings according to the Court. Special care should be taken to ensure the terms used in general plans, codes and policies are consistent, and if they are not, that the intent behind key words used is explained. As a practice tip, never use the very “coordinate” unless you really mean it.

2. To project proponents: Strict attention to the language contained in agency documents is required. If it appears the relevant language of an agency document requires more extensive duties or obligations, it may be interpreted that way and failure to comply could be problematic, as in the case here where the project proponent failed to “coordinate” with agencies on wetland permitting issues.

3. To project opponents: Be forewarned, the Third District Court of Appeals has now strictly held that there must be exhaustion as to the specific issue challenged. General and unrelated citations to near-issues in the record will not suffice to exhaust the issue – it must be assertively identified and presented to the reviewing agency prior to project approval.

Update

A Petition for Review or Request for Depublication of the case was filed with the Supreme Court by the Center for Biological Diversity on May 18, 2009. In its Petition, the Center provided the following ground for supporting review or depublication: 1) to prevent the erosion of public participation process in CEQA; and 2) to retain the importance of information disclosures in the CEQA process for analysis and mitigation of significant impacts.

Counsel for the Real Party in Interest and the City filed an Answer to Petition outlining the reasons the Petition should be denied and requesting such action. Namely, the City and Jaeger argue that 1) the Court of Appeal’s opinion is consistent with settled law regarding exhaustion of administrative remedies; 2) incorporation by reference of portions of the Community Plan EIR was not improper and does not make the project EIR inadequate under CEQA; 3) the adopted wetland mitigation measures satisfy CEQA requirements; and 4) the City was entitled to rely upon its own experts in the environmental review process.

Katherine J. Hart is a senior associate 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.

Tags: CEQA

OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency

Posted on April 20, 2009 by Abbott & Kindermann

By Leslie Z. Walker

Two months ahead of the deadline mandated by SB 97 (Chapter 185, Statutes 2007; Public Resources Code section 21083.05), the Governor’s Office of Planning and Research (“OPR”) proposed amendments to the CEQA Guidelines for the mitigation of greenhouse gas emissions (“Proposed Guidelines”) and transmitted them to the Resources Agency for rulemaking on Monday, April 13, 2009.

Tags: CEQA, Climate Change

Are the Days of Mitigating a Project's Significant Impacts with Impact Fees Gone?

Posted on April 1, 2009 by Abbott & Kindermann

By Katherine J. Hart

In California Native Plant Society v. County of El Dorado (2009) 170 Cal.App.4th 1026, the California Native Plant Society (“Society”) filed a CEQA lawsuit against El Dorado County (“County”) after the County approved a Mitigated Negative Declaration (“MND”) and Congregate Care Project (“Project”). The Project consists of two care units, cottages, and a clubhouse on 20 acres, and was part of a larger development area including a local medical center, a senior assisted living facility, medical office buildings and a local retail shopping center.

Tags: CEQA, Exactions, Impact Fees & Service Charges

District Offered Sufficient Justification to Apply CEQA Exemption to Rate Setting for Groundwater Extraction Charges

Posted on March 24, 2009 by Abbott & Kindermann

By William W. Abbott

In 2006, the Santa Clara Valley Water District (“District”) adopted higher rates for groundwater pumping. These charges were imposed on water districts and utilities which pumped their own groundwater, including the Great Oaks Water Company (“Great Oaks”). Great Oaks subsequently filed suit seeking to set aside the increases claiming that the District had failed to comply with CEQA by not specifying the factual or evidentiary basis for the rate increases and that exemptions from CEQA are invalid because the District’s budget included monies dedicated to system expansion.

Tags: CEQA

Appellate Court Directs Developer-District Recycled Water Agreement To Be Set Aside Based Upon CEQA Violation

Posted on March 2, 2009 by Abbott & Kindermann

By William W. Abbott

The Fourth Appellate District recently faced a similar CEQA timing question to that posed in Save Tara. Riverwatch v. Olivenhain Municipal Water District (Gregory Canyon Ltd) (2009) 170 Cal.App.4th 1186, (reissued and ordered published January 30). The case involved a landfill operator, who applied for and received County approval to operate a landfill. This approval was preceded by an EIR, which was challenged for adequacy by Riverwatch and the City of Oceanside. The trial court agreed with Riverwatch that the water supply analysis was insufficient, and that as the EIR recognized that recycled water from the water district might be used in the event that groundwater proved to be insufficient, that the EIR had to assess the potential impacts associated with the use of the offsite recycled water. The trial court ruled in favor of the opponents and ordered the County to set aside the EIR approval.

Tags: CEQA

CEQA Notice Postings and Review Periods Affected by State Agency Furloughs

Posted on February 11, 2009 by Abbott & Kindermann

The Governors Office of Planning and Research, State Clearinghouse and Planning Unit announced that they will not be accepting CEQA documents for review or processing on the first and third Fridays of each month, now through June 30, 2010. This notice is in response to the state agency furlough ordered by the Governor which has required the State Clearinghouse to close their doors two days per month for the next year and a half.

As a result, CEQA review periods will be delayed, however the review periods that would typically end on the first and third Fridays will be extended to the following Monday. For more information, visit the State Clearinghouse website.

Tags: CEQA, Local Government

No Surprises in Draft CEQA Guidelines for Greenhouse Gas Emissions

Posted on January 9, 2009 by Abbott & Kindermann

By Leslie Z. Walker

Six months after releasing its Technical Advisory CEQA and Climate Change: Addressing Climate Change Through California Environmental Quality Act Review (see OPR on CEQA and Climate Change: Local Agencies Continue to Bear the Heat), the Governor’s Office of Planning and Research issued Preliminary Draft CEQA Guideline Amendments for Greenhouse Gas Emissions on January 8, 2009.The Guideline amendments were developed in response to Senate Bill 97 (Chapter 185, Statutes 2007; Pub. Resources Code, § 21083.05) which directs OPR to develop draft CEQA Guidelines for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions by July 1, 2009.

Tags: CEQA, Climate Change

Posted on May 7, 2008 by Abbott & Kindermann

**Review was granted by the California Supreme Court on July 23, 2008 and this opinion was depublished.**

By Katherine J. Hart

This case addresses the issue of whether or not the legal effect of a notice of determination (“NOD”) in establishing a 30-day statute of limitations is absolute as to any and all CEQA based claims. In the opinion of the Court of Appeal, 6th appellate district, claims alleging that the agency failed to conduct environmental review but should have are governed by a separate 180-day limitation period.

Tags: CEQA

Good Fences Make Good Neighbors but Bad Fences Make Appellate Opinions

Posted on April 22, 2008 by Abbott & Kindermann

By Janell M. Bogue

You wouldn’t think that a simple, wooden fence would create enough controversy to fuel an extensive administrative process, a trial court case, and an appeal to the California Court of Appeal, Second Appellate District. However, in the case of Committee to Save the Hollywoodland Specific Plan and Hollywood Heritage v. City of Los Angeles (2008) 2008 Cal.App.Lexis 501, that is exactly what happened.

Tags: CEQA, Planning, Zoning, & Development

District's Water Supply Assessment is Not Subject to Third Party Lawsuit Except in a Legal Challenge to the EIR

Posted on April 21, 2008 by Abbott & Kindermann

By William W. Abbott

In the opinion of the California Court of Appeal, Second Appellate District, (California Water Impact Network v. Newhall County Water Dist., (2008) Cal.App.LEXIS 554) a Water Supply Assessment ("WSA") is like a traffic impact study: by itself it is not subject to legal review except in the context of a lawsuit challenging the CEQA document.

Tags: CEQA

Be Careful What You Ask For: The Costs Might be More Than You Can Bear

Posted on April 7, 2008 by Abbott & Kindermann

By Cori Badgley

In CEQA litigation, a petitioner may elect to create the administrative record or request that the respondent local agency assemble the record. When the local agency prepares the record, the petitioner pays for the costs of preparation. Petitioners sometimes elect to prepare the record in an effort to reduce costs. In St. Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 160 Cal.App.4th 1426, the appellate court struggled with the question:

does section 21167.6 [of the Public Resources Code] preclude an award of costs in favor of the prevailing [lead agency] if the plaintiff elects to prepare the record pursuant to section 21167.6, subdivision (b)(1)?

Posted on October 30, 2006 by Abbott & Kindermann

The opinion discussed in this article was modified on November 6, 2006. Please click here to read about the modified opinion.

By Janell M. Bogue

Recently, the Second Appellate District issued an opinion which may change how the nine Regional Water Quality Control Boards ("Boards" or "Regional Boards") issue National Pollution Discharge Elimination System ("NPDES") permits and comply with California Environmental Quality Act ("CEQA"). The case is County of Los Angeles v. California State Water Resources Control Board (2006) 143 Cal.App.4th 985.

Tags: CEQA, Water Quality, Wetlands, & Clean Water Act

Pedigrees Are Not Just For Dogs: CEQA Documents Deserve Them Also

Posted on September 25, 2006 by Abbott & Kindermann

By William W. Abbott

As noted in our recent article "The Importance of the Mundane: CEQA's Small Details are Important as Well", the Sixth Appellate District discussed how the lead agency thoroughly documented the genealogy of a later EIR from a series of prior CEQA documents. In Save our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288, the Third Appellate District recently made a similar observation when evaluating a legal challenge to an addendum which followed an earlier EIR. The court held that is important at the outset for the environmental document preparer to declare and document the pedigree relationship from earlier CEQA documents.

Tags: CEQA

California Supreme Court Schools CSU on Mitigation Infeasibility

Posted on August 28, 2006 by Abbott & Kindermann

By William W. Abbott & Janell M. Bogue

Closely following on the heels of County of San Diego, the California Supreme Court decided City of Marina v. Board of Trustees of the California State University (2006) 39 Cal.4th 341, which also involved issues of the appropriateness of mitigation expenditures, this time by the California State University system. Here, the state university (CSU) assumed the legal position that it was not authorized to mitigate for offsite impacts, and on that basis, the Trustees rejected the feasibility of mitigation measures sought by a local city (Marina) and a base reuse authority (Fort Ord Reuse Authority or "FORA").

Tags: CEQA, Exactions, Impact Fees & Service Charges

Take Notice!

Posted on August 11, 2006 by Abbott & Kindermann

Mahon v. County of San Mateo (2006) 139 Cal.App.4th 812
The "deemed approved" remedy for untimely processing must give heads up to neighbors -- what may be "deemed" is not what it seemed.

By Joel Ellinwood, AICP

Recognizing that the often seemingly interminable delay by local agencies in development permit processing drives up costs of providing housing and other desirable projects, the development industry succeeded in persuading the legislature to impose what at first glance appear to be strict timelines for the agency to approve or disapprove projects. The timelines are given teeth by provisions which may result in projects being "deemed approved" if the agency fails to act within the time provided. However, as the recent case of Mahon v. County of San Mateo (2006) 139 Cal.App.4th 812 (modified June 19, 2006) illustrates, the teeth don't seem to have much bite. This article will identify strategies for making the best use of what little bite is left to help manage the pace of development processing.

Tags: CEQA, Local Government, Planning, Zoning, & Development, Subdivision Map Act

The Importance of the Mundane in CEQA Litigation: It's All in the Details

Posted on July 25, 2006 by Abbott & Kindermann

By William W. Abbott

There is no middle of the road for Wal-Mart Stores. People are passionate on both sides, which includes the lawyers and consultants caught in the debate as it appears that Wal-Mart, as a single entity, generates more CEQA litigation than any other California applicant. Perhaps Wal-Mart will open up an EIR preparation service, sandwiched between the in-store optometrist and bank, as it continues its meteoric climb as the Nation's number-one retailer.

Tags: CEQA

Mitigation Infeasibility: New Thinking on an Old Issue

Posted on July 25, 2006 by Abbott & Kindermann

By William W. Abbott

Feasibility, or its Bizarro World counterpart (fn1) infeasibility, is an integral part of CEQA analysis. Feasibility is defined by the Guidelines as follows: ". . . capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors." (Guidelines, § 15364) A mitigation measure may be determined by the lead agency to be infeasible and on that basis, would not be required as a condition of project approval. Unlike other areas of CEQA practice, there has been less frequent and less critical analysis of what constitutes a valid finding of infeasibility. A recent court decision begins to shed light on what is likely to be a new chapter of CEQA challenges.

Tags: CEQA

More Infill, More Problems: The Categorical CEQA Exemption for Infill Developments

Posted on May 25, 2006 by Abbott & Kindermann

By Janell M. Bogue

As cities and developers look inward for new development opportunities, the dark cloud of CEQA is never far away. The legislature has attempted to facilitate infill opportunities by narrowing CEQA's application. This case illustrates how far this infill exemption can reach. In Banker's Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (May 8, 2006) 2006 Cal.App.Lexis 684, developers proposed an urban infill project in the City of San Diego ("City") near the northwest corner of Balboa Park. The project, a fourteen-story, fourteen-unit multi-family residential building, was approved by the City and found to be exempt from CEQA pursuant to Guidelines section 15332. A neighborhood preservation group filed for a writ of mandate and after losing at the trial court level, the neighborhood group appealed, claiming that the project was not exempt from CEQA and that the City reviewed the project in a piecemeal fashion.

Tags: CEQA

Will Turlock Ever Get Rollback Prices?

Posted on May 25, 2006 by Abbott & Kindermann

Wal-Mart Stores, Inc. v. City of Turlock
(2006) 138 Cal. App. 4th 273
Filed April 4, 2006.

Posted on November 1, 2005 by Janell Bogue

Posted on August 1, 2004 by Janell Bogue

by William W. Abbott

Despite what project critics may say, lead agencies do get it right every now and then. The recent decision of Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477 is such an illustration. As one would suspect, existing residents in coastal communities prize their views of the ocean, and can be counted on to be large in their criticism of any project which potentially interferes with what they rightfully see as their right to a view of the ocean.

Tags: CEQA

California Courts Reaffirm the Broad Discretion Held by Cities and Counties in Enacting Land Use Regulations and Setting Policy

Posted on August 1, 2004 by Janell Bogue

by William W. Abbott and Heather Gerken

Land use applicants frequently fail to appreciate the deference that a reviewing court must give a city council or board of supervisors. Disgruntled with an adverse decision, an adversely affected applicant often believes that they are entitled to re-argue the merits of their position. As the following cases illustrate, judicial review of controversial land use regulations does not start with a blank canvas.

Tags: CEQA, Local Government, Planning, Zoning, & Development

CEQA's Thresholds of Significance v. Thresholds of Pain: Sometimes It's Hard to Tell the Difference

Posted on July 1, 2004 by Janell Bogue

by William W. Abbott

Readers of this firm's publications likely remember the efforts of the Wilson administration to create an impetus in the 1998 CEQA Guidelines amendments for the use of thresholds of significance as a means of reducing EIRs. While well intentioned, this effort was tanked by the superior court, whose invalidation of a selection 1998 amendments was then largely affirmed by the Third District Court of Appeal in Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98. In the recent decision of Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099 (March 12, 2004, modified April 9, 2004), the same appellate court had another opportunity to weigh in on the use of thresholds of significance, this time focusing on Appendix G of the Guidelines.

Tags: CEQA

Combined Programmatic and Project EIR Supports Subsequent Negative Declaration for Expansion and Modification of Water Recycling Project

Posted on April 1, 2004 by Janell Bogue

Admissibility of Extra Record Evidence and Two Edges of the Exhaustion of Administrative Remedies Doctrine Also Examined.

by William W. Abbott and Joel Ellinwood, AICP

Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, illustrates effective application of a tiering strategy off of a combined programmatic/project EIR.

Tags: CEQA

The View From Here

Posted on March 1, 2004 by Janell Bogue

Ocean View Estates Homeowners Association, Inc. v. Montecito Water District (2004) 116 Cal.App.4th 396.

Failure to adequately address potential impacts of mitigation measures invalidates mitigated negative declaration.

Failure to address impacts on private and public views of four-acre, 15-foot tall reservoir cover invalidates mitigated negative declaration.

by Joel Ellinwood, AICP

It took only two swings for the Montecito Water District to strike out in its attempt to go to bat* for its adoption of a mitigated negative declaration (MND) as CEQA compliance for its plan to build a four-acre aluminum cover for the Ortega Reservoir in Summerland, Santa Barbara County. Perhaps it is understandable that one of the CEQA curve balls that flummoxed the District in a community that is locally known for its unofficial clothing-optional beach was failure to adequately address visual impacts. One might expect that concern over visual pollution and blocking of scenic vistas would be particularly acute there.

Tags: CEQA

Making (and Breaking) the Record

Posted on January 1, 2004 by Janell Bogue

by William W. Abbott and Robert T. Yamachika

In a previous article, we noted that a disorganized administrative record could be fatal to project approval if the land use decision is challenged in court. As noted in Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, a court could set aside a project approval simply because the administrative record was poorly organized. In these circumstances, the developer and the lead agency share a mutual interest in investing in timely review and organizational efforts in the administrative record long before a CEQA challenge is filed. Once the parties recognize that record organization is critical, they then face the question of what should the preparers focus in on? You may not like the answer.

Tags: CEQA

Got EIR? EIR Upheld For Major Dairy Facility; Local Agency Not Required To Follow Informal State Species Study Requirements

Posted on June 1, 2003 by Janell Bogue

by William W. Abbott

An unheralded side effect of urbanization in California has been its effect on the dairy industry. Over the years, established dairies have been forced to relocate to new pastures in order to avoid the conflict between farm and urban uses. In flight from southern California's Inland Empire and the pricey Bay Area, the new operations are settling into the Central Valley. As these operations relocate and expand in size, many face CEQA challenges. These challenges primarily focus on the side effects of air and water quality, along with odor and waste disposal. In Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, the Court of Appeal for the Fifth Appellate District recently affirmed the certification of an EIR for one of these new dairies.

Tags: CEQA

EIRs cannot routinely rely upon full state and federal water contract deliveries in evaluating adequacy of water supplies

Posted on March 1, 2003 by Janell Bogue

by William W. Abbott

On February 27, 2003, the Second District Court of Appeals issued another reminder that "paper water," a phrase used to describe theoretical supplies of contracted water from the state and federal water projects, cannot be assumed to be the same as real water. Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715. The facts involved the continued efforts of the Newhall Land Company to develop a portion of its vast holdings northwest of Los Angeles. The project, West Creek, involved 2,545 housing units, 180,000 square feet of commercial retail space, and 46 acres of community facilities. At issue was the EIR's assessment of water service impacts. Water for West Creek would come from different suppliers.

Tags: CEQA, Water Supply

Essential Steps in the Preparation of Negative Declarations

Posted on February 11, 2003 by Janell Bogue

by William W. Abbott

1. Describe and consider all project components, including offsite improvements (road work, utilities).

- Failure to look at offsite improvements invalidates negative declaration Santiago Water District v. County of Orange (1981) 118 Cal.App.3d 818. San Joaquin Raptor v. County of Stanislaus (SJR1) (1994) 27 Cal.App.4th 713.

- Description of related water diversion facilities held to be sufficient, although not designed or engineered. Dry Creek Citizens v. Tulare County (1999) 70 Cal.App.4th 20.

2. Use of the "naked checklist" for the initial study (e.g., conclusions without the supporting analysis) puts a negative declaration at risk.

- Appendix G (CEQA Guidelines)

- Citizens Association for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151.

3. When referring to independent documents, be specific in the references (e.g., page, section or code reference). Guidelines § 15063. The initial study (IS) should recite where these documents can be viewed by the public (preferably in the office of the preparer of the IS).

4. When referring to information received from other departments, it is highly preferable that this information be in writing.

5. Maintain written documentation of consultation with responsible agencies and trustee agencies responsible for resources affected by the project. For projects of statewide, regional or areawide significance, this includes transportation planning agencies. Guidelines § 15063(g).

6. Do not rely on vague standards as mitigation or failure to explain how existing regulations operate as mitigation. The use of performance standards is acceptable. Guidelines § 15064, Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296.

7. Do not bank on future studies to provide the critical environmental analysis and mitigation. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296.

8. The de minimis finding (Guidelines § 15064(i)(4)) to avoid an EIR based upon cumulative impacts is invalid. Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98.

9. Inadequate tiering off of an earlier environmental document. The correct approach to tiering requires recognition and disclosure of the reliance upon the earlier environmental document at the front end of the process, not as an after-the-fact thought. Gentry v. City of Murietta (1995) 36 Cal.App.4th 1359. Cumulative strategies include: § 15167 (staged EIR), § 15168 (program), § 15175 (Master EIR), § 15179.5 (residential less than 100 units, commercial less than 100K square feet, based upon prior EIR less than 5 years old), § 15180 (redevelopment), § 15181 (housing, neighborhood commercial in urbanized areas), § 15182 (residential projects pursuant to a specific plan), § 15183 (projects consistent with general plans, community plans or zoning); § 15332 (infill less than 5 acres); Gov. Code, § 66457 (residential projects consistent with specific plan). The ability to tier to a negative declaration is now limited by Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98.

10. Obtain the applicant's sign off on agency added mitigation measures before the document is sent out for public review. Guidelines § 15070 (b)(1).

11. Notify (the Notice of Intent ("NOI") with a copy of negative declaration) all trustee and responsible agencies of the intent to adopt a negative declaration. §§ 15072 and 15073. Fall River Wild Trout Foundation v. County of Shasta (1999) 70 Cal.App.4th 482. Maintain written records of distribution of NOI and proposed negative declaration (county clerk, agencies, individuals, organizations who request copies).

12. The NOI must include a brief description of the project including its location, the review period, the date, time and, place of any scheduled public meetings or hearings (when known), the address where the Negative Declaration can be reviewed, including all documents referenced in the negative declaration, and the presence, on site of hazardous materials. Guidelines § 15072(f)(2).Proof of posting of the NOI is critical. Burrtec Waste Industries, Inc. v. City of Colton (2002) 97 Cal.App.4th 1133.

13. When adopting a negative declaration, specify the location and custodian of the documents which constitute the record of proceedings. Guidelines § 15074(c).

14. Make a de minimis finding, or require payment of Fish and Game fees. Fish and Game Code, § 711.4.

15. File and post the NOD locally and with the state as appropriate. Remember, an NOD which does not "substantially comply" is an invalid NOD.

Bill Abbott is a partner with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann 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.

Tags: CEQA

Court Rejects Key 1998 CEQA Guidelines Amendments

Posted on February 1, 2003 by Janell Bogue

by William W. Abbott and Robert T. Yamachika

In 1998, the Wilson Administration adopted far reaching amendments to the CEQA Guidelines which narrowed environmental review and encouraged the use of negative declarations. In Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, environmental groups filed a writ of mandate to overturn these amendments as being inconsistent with state statute and case law. The trial court in large part agreed with the plaintiffs and granted the relief sought, that being a judicial determination that specified elements of the 1998 amendments were invalid. On October 28, 2002, the Third District Court of Appeal essentially agreed with the trial court. This article highlights the Court of Appeal decision and summarizes the remaining "safe harbor" CEQA provisions governing environmental streamlining.

Tags: CEQA

New Thresholds Are Established For Specific Plans; Late Comments Can Still Derail An EIR

Posted on August 1, 2002 by Janell Bogue

by William W. Abbott and Robert T. Yamachika

The 1st Appellate District recently decided a specific plan/CEQA case, Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342. While it involves a general law county and not a charter city, the legal principles as they relate to the specific plans provide good guidance for a city, and the CEQA holdings unquestionably apply.

Tags: CEQA