Posted on July 22, 2008 by Abbott & Kindermann
By Cori M. Badgley
In St. Vincent’s School for Boys v. City of San Rafael (2008) 161 Cal.App.4th 989, the court addressed various issues relating to the City of San Rafael’s (“City”) approval of a new general plan. The court also addressed a claim brought by the City against St. Vincent’s School for Boys (“St. Vincent’s”) regarding obtaining reasonable costs for record preparation. (This counter-claim was published prior to the rest of the opinion and discussed in a previous article, Be Careful What You Ask For: The Costs Might Be More Than You Can Bear, on our blog.) This article focuses on St. Vincent’s claims concerning the approval of the general plan. The message consistently sent by the court was no matter how much St. Vincent’s would prefer that the general plan amendments be struck down; St. Vincent’s preferences do not matter.
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Posted on July 21, 2008 by Abbott & Kindermann
By Leslie Z. Walker
In Muzzy Ranch Co. v. Solano County Land Use Commission (2008) 164 Cal.App.4th 1, decided on June 19, 2008, the appellate court resolved the issues not addressed the first time it reviewed the case. (Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2005) 125 Cal.App.4th 810, reversed by Muzzy Ranch Co. v. Solano County Airport Land Use Commission, (2007) 41 Cal.4th 372.) In this case, the Court of Appeal for the First Appellate District found that the Travis Airport Land Use Compatibility Plan (“TALUP”) was not inconsistent with the Air Force Installation Compatible Use Zone (“AICUZ”) and that the Solano County Airport Land Use Commission (“Commission”) did not abuse its discretion in adopting the TALUP.
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Posted on July 9, 2008 by Abbott & Kindermann
By Leslie Z. Walker
On June 26, 2008, the California Air Resources Board (“ARB”) released a draft of the scoping plan required under Assembly Bill 32 (Chapter 488, Statutes 2006), the Global Warming Solutions Act of 2006 (“AB 32”). AB 32 requires greenhouse gas (“GHG”) emissions be reduced to 1990 levels by 2020. (Health & Saf. Code, § 38550.) In order to accomplish this, ARB had to determine, by January 1, 2008, what the statewide greenhouse gas emission level was in 1990. (Id.) By January 1, 2009, ARB must prepare and adopt a scoping plan which achieves required reductions in greenhouse gas emissions by 2020. (Health & Saf. Code, § 38561.) A draft of this scoping plan was released on June 26, 2006.
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Posted on June 30, 2008 by Abbott & Kindermann
By Katherine J. Hart
In Moss v. County of Humboldt, et al (2008) 162 Cal.App.4th 1041, the Court of Appeal (1st Appellate District) held that a project previously studied under CEQA need not undergo supplemental CEQA review upon reapplication of the same project unless new information (supported by substantial evidence in the record) indicates there will be potential environmental impacts.
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Posted on June 24, 2008 by Abbott & Kindermann
By Janell M. Bogue
In the case of Ebbetts Pass Forest Watch v. California Department of Forestry and Fire Protection (May 22, 2008) 2008 Cal.Lexis 6207, the California Supreme Court discussed several issues important to those who deal with CEQA. The Court held that the Department of Forestry and Fire Protection (“Department”) properly approved several timber harvest plans (“THPs”) for land located in Tuolumne County. In doing so, the Court examined the requirements for cumulative impacts analysis and the analysis of foreseeable actions.
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Posted on June 23, 2008 by Abbott & Kindermann
By Leslie Z. Walker
CEQA practitioners have spent the last year anxiously anticipating the Governor’s Office of Planning and Research (OPR) advice to local agencies on the evaluation of greenhouse gas (GHG) emissions and their effect on climate change in the CEQA process. On June 19, 2008, OPR offered a peek at its perspective by issuing the Technical Advisory CEQA and Climate Change: Addressing Climate Change Through California Environmental Quality Act Review.
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Posted on June 16, 2008 by Abbott & Kindermann
By Janell M. Bogue
In the case of Sierra Club v. City of Orange (April 30, 2008) 2008 Cal.App.Lexis 814 (publication status changed from unpublished to published on May 30, 2008), the Court of Appeal, Fourth Appellate District upheld a combined supplemental environmental impact report (“SEIR”) and environmental impact report (“EIR”) for a large mixed use development. In its opinion, the court covered a wide range of CEQA issues, including timely filing of a lawsuit after a notice of determination, the exhaustion doctrine, project baselines, and alternatives.
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Posted on June 9, 2008 by Abbott & Kindermann
By William W. Abbott
The Delta, the confluence of the Sacramento and San Joaquin rivers, is ground zero in the debate over California water. It seems like everyone has a dog in the fight, including farmers inside and outside of the Delta, municipalities, water contractors, the sport fishing industry and environmentalists. It is a scenario in which it is improbable, if not impossible, to make everyone happy when it comes to the topic of water management. In 1994, CALFED was born as a consortium of 18 federal and state agencies. CALFED’s task was to develop a Delta water management strategy which would positively responsive to the multiple competing interests and concerns. In 2000, CALFED certified a programmatic EIR/EIS. Following a timely legal challenge, the trial court in the case entitled In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2005) 133 Cal. App. 4th 154 upheld the adequacy of that environmental document. (See the Abbott & Kindermann Land Use Law Blog article on that opinion.) The Court of Appeal ruled otherwise, concluding that the EIR was inadequate because of the failure to evaluate an alternative with reduced water exports, the failure to identify future potential sources of water, and the lack of detail on the Environmental Water Account, a program within CALFED. The Supreme Court subsequently granted review and on June 5, 2008, issued an opinion. In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (June 5, 2008) 2008 Cal. LEXIS 6737. In this opinion, the Supreme Court affirmed the legal adequacy of the programmatic document.
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Posted on May 7, 2008 by Abbott & Kindermann
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.
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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.
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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.
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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)?
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Posted on March 26, 2008 by Abbott & Kindermann
By Leslie Z. Walker
The California Attorney General and the Local Government Commission hosted the first of five statewide workshops, CEQA and Climate Change: Partnering with Local Agencies to Combat Global Warming, on Thursday, March 20, 2008. In his invitation to cities and counties across the state, the Attorney General explained that planning for Climate Change should not await the 2012 implementation of binding Greenhouse Gas (“GHG”) emission limits and emission reduction measures required by AB 32. At the workshop, the Attorney General reiterated his position that CEQA requires GHG analysis. The line-up of morning speakers, who discussed thresholds, modeling emissions and mitigation measures, suggested that since tools exist to measure and mitigate GHGs, agencies are required to do so.
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Posted on March 25, 2008 by Abbott & Kindermann
By Janell M. Bogue
In the case of Citizens for Responsible and Open Government v. City of Grand Terrace (February 21, 2008) 2008 Cal.App.Lexis 359 the California Court of Appeal, Fourth Appellate District held that a mitigated negative declaration (“MND”) approved for a senior residential project was inadequate under CEQA. In doing so, the court discussed density calculations and the weighing of evidence under the fair argument test.
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Posted on February 25, 2008 by Abbott & Kindermann
By Cori Badgley
Under the California Environmental Quality Act (“CEQA”), the definition of “environment” includes historical resources. If a project has the potential to affect historical resources, it is subject to environmental review. In Valley Advocates v. City of Fresno (2008) No. F050952, the appellate court held that the inquiry of whether a resource should be listed in the local register cannot be relied upon for purposes of CEQA to determine whether a resource is historic. Additionally, the court held that the fair argument standard does not apply to the question of whether a resource is a discretionary historical resource under CEQA.
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Posted on February 12, 2008 by Abbott & Kindermann
By Leslie Z. Walker
On January 29, 2008, Judge Thomas Cahraman of the Riverside Superior Court ruled that CEQA did not require the Banning City Council to consider the Global Warming impacts of a project approved prior to the enactment of AB 32.
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Posted on January 8, 2008 by Abbott & Kindermann
By Janell M. Bogue
A recent opinion from the Court of Appeal, Fourth Appellate District, Division Two discusses two important CEQA topics: certainty in project descriptions and an EIR’s discussion of alternatives. Save Round Valley Alliance v. County of Inyo (December 17, 2007) 2007 Cal.App.LEXIS 2045. In this case, the developer proposed a rural large-lot subdivision located on 74 acres on the road to the trailhead to Mount Whitney in Inyo County (“County”). The lots, used for single family homes, would be a minimum of 2.5 acres in size. The proposed use of the property was consistent with the County General Plan and the zoning code. Further, the subdivision would be governed by CC&Rs restricting the use of the lots. The County determined that an EIR was necessary for the project and the EIR concluded that there would be substantial adverse effects on the scenic vistas. The Planning Commission certified the EIR, adopted a statement of overriding considerations, and approved the project. A local citizens’ group called Save Round Valley Alliance (“SRVA”) appealed the Planning Commission’s approval and following a public hearing, the Board of Supervisors denied the appeal, certified the EIR, and approved the project. SRVA petitioned for a writ of mandate, which was denied by the Inyo County Superior Court. SRVA appealed.
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Posted on December 17, 2007 by Abbott & Kindermann
By Joel Ellinwood, AICP
As the battle of the big boxes continues on the fields of CEQA in the California courts, the Fifth District Court of Appeals reiterated (in an unpublished portion of the opinion) that it will carefully scrutinize evidence petitioners use to support a “fair argument” that a project approved with a Mitigated Negative Declaration (MND) is inadequate without the preparation of a full Environmental Impact Report (EIR).
Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora (California Gold Development Corp. – Lowe’s, Inc.) 155 Cal.App.4th 1214 (filed 10/2/07, modified 10/31/07).
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Posted on December 17, 2007 by Abbott & Kindermann
By Janell M. Bogue
A California appellate court recently addressed the approval of yet another Wal-Mart Superstore, this time in the City of Stockton (“City”). In Stockton Citizens for Sensible Planning v. City of Stockton (November 28, 2007) 2007 Cal.App.LEXIS 1960, the California Court of Appeal, Third Appellate District directed the trial court to set aside the approvals for a 200,000 plus square foot Wal-Mart, which would have been located in Spanos Park West (“Park”). The court held that a letter from the City’s Community Development Director (“Director”) was not an approval by a public agency. Since there was no approval by a public agency, the notice of exemption (“NOE”) was not valid and the short 35-day statute of limitations could not apply.
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Posted on November 6, 2007 by Abbott & Kindermann
By Leslie Z. Walker
In Muzzy Ranch v. Solano County Airport Land Use Commission, 41 Cal.4th 372, decided on June 21, 2007 and modified on September 12, 2007, the Supreme Court upheld the common sense exemption as applied to an Airport Land Use Compatibility Plan (“ALUCP”), but found that development displaced by density limits is not too speculative of an impact to require CEQA analysis.
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Posted on October 29, 2007 by Abbott & Kindermann
By Janell M. Bogue
The California Supreme Court’s decision in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 addressed the sufficiency of future water supplies for a long-term, large scale development. (See the Vineyard blog article.) In the case of Santa Clarita Organization for Planning the Environment v. County of Los Angeles (November 26, 2007) 2007 Cal.App.LEXIS 1938 (“SCOPE”), the Second Appellate District determined that an EIR for a long-term project met the requirements discussed in the Vineyard case.
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Posted on September 11, 2007 by Abbott & Kindermann
By Leslie Z. Walker
Governor Schwarzenegger signed SB 97 (Chapter 185, Statutes 2007) Senator Dutton’s CEQA and greenhouse gas emission bill, into law on August 24. The legislation provides partial guidance on how greenhouse gases (“GHGs”) should be addressed in certain CEQA documents.
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Posted on September 5, 2007 by Abbott & Kindermann
By Janell M. Bogue
In development, as in life, plans change. From a CEQA standpoint, problems emerge as projects are modified, as the triggers requiring new environmental review are less than precise. The recent case of Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385 (“Mani Brothers”) demonstrates that even the courts are unclear on the issue, as two appellate courts have come to two different conclusions. The court in Mani Brothers emphasized that the question is not whether the changes amount to a new project, but whether there is substantial evidence that the changes in the project would create new and significant environmental impacts.
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Posted on August 27, 2007 by Abbott & Kindermann
By Leslie Z. Walker
Attorney General Jerry Brown and the County of San Bernardino have reached a landmark settlement in the state’s global warming suit against the County.
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Posted on August 13, 2007 by Abbott & Kindermann
By Glen C. Hansen
Due to increasing regulatory complexity, development projects may require multiple approvals, issued over an extended time period. Lead and responsible agencies frequently, but not always, file separate notices of determination (“NOD”) for each approval. When that happens, interested parties are challenged as to the optimal time period to file suit. In a multiple NOD scenario, a later filed petition will be considered under a less favorable standard of judicial review, which could lead to a very different outcome in the litigation. Such a result is illustrated by the recent case of Citizens For A Megaplex-Free Alameda v. City of Alameda (“Megaplex”) (March 29, 2007) 149 Cal.App.4th 91, review denied (Cal., June 27, 2007) 2007 Cal.LEXIS 6959.
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Posted on April 24, 2007 by Abbott & Kindermann
By William W. Abbott
Unlike residential or commercial development projects with somewhat predictable levels of activity (and in turn, environmental effects), mining projects involving rock, sand and gravel can vary widely based upon local economic conditions. The recent case of San Joaquin Raptor v. County of Merced (April 10, 2007) 2007 Cal. App. LEXIS 516 examines the duty of the lead agency to also evaluate impacts associated with periodic or sustained peaks, and not just to rely upon historic averages. The decision also addresses deferred mitigation in the area of biological impacts.
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Posted on April 17, 2007 by Abbott & Kindermann
By William W. Abbott
One person’s misery can be someone else’s gain. This can also hold true when dealing with inter-jurisdictional disputes over impact fees. The recent case of Woodward Park Homeowners Association, Inc. v. City of Fresno (April 13, 2007) 2007 Cal.App.LEXIS 544 highlights a number of important CEQA practice issues. While these are not necessarily new concerns, the case daylights a key issue of first impression--namely, whose responsibility is it to calculate the nexus for impact fees to be set for impacts to state highway facilities? Is CalTrans responsible, or is it the responsibility of the city or county approving a development project which impacts state facilities? According to the Fifth Appellate District, the answer to the question is the lead agency.
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Posted on March 19, 2007 by Abbott & Kindermann
By William W. Abbott
For many discretionary actions, lead agencies struggle with the question of CEQA timing. While many court decisions have criticized cities and counties with delaying the CEQA process, there are rare occasions in which the lead agency concludes that meaningful CEQA review is too speculative and therefore premature. Two new cases provide the bookends to this discussion.
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Posted on February 6, 2007 by Abbott & Kindermann
By William W. Abbott & Janell M. Bogue
Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (February 1, 2007, S132972) __ Cal.4th __ [2007 Cal.Lexis 748]
Few CEQA cases reach the California Supreme Court. Accordingly, it is noteworthy that the court has issued two decisions on CEQA issues in the past eight months. The most recent decision in Vineyard Area Citizens, provides added extensive guidance on the interface between water supply and CEQA. The case also provides a more limited analysis on EIR recirculation.
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Posted on January 8, 2007 by Abbott & Kindermann
By Kate J. Hart
California's Fifth Appellate District recently decided the case of Wagner Farms, Inc. v. Modesto Irrigation District (December 6, 2006) 2006 Cal.App.Lexis 1923, which involves the awarding of costs for preparation of the record of proceeding (“ROP”) arising out of a CEQA suit. Plaintiffs filed the suit against the Modesto Irrigation District (“MID”), and requested that MID prepare the ROP. MID won in both the superior court and appellate court. MID then filed a memorandum of costs totaling $34,077.95 for preparing and filing the ROP. (All but $3,680 for copying costs went to the consultants’ preparation of the ROP.) Plaintiffs filed a motion to tax costs. As argued in Hayward Area Planning Assn. v. City of Hayward (2006) 128 Cal.App.4th 176 (see previous Abbott & Kindermann Land Use Law Blog article), the plaintiffs claimed that 1) MID impermissibly delegated the preparation of the ROP to its consultants; 2) the amounts requested for the preparation of the ROP were not adequately supported by the record; and 3) the amounts spent were not necessary or reasonable. MID provided only a declaration by counsel in support of its opposition to plaintiffs’ motion.
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Posted on December 5, 2006 by Abbott & Kindermann
By Janell M. Bogue
Recently, the Third Appellate District held that the Natomas Basin Habitat Conservation Plan (“HCP”) was properly certified by the City of Sacramento and Sutter County (“City and County”) under CEQA and that the Department of Fish and Game (“DFG”) complied with the California Endangered Species Act (“CESA”) in issuing its incidental take permits. The case is Environmental Council of Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 1018.
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Posted on December 4, 2006 by Abbott & Kindermann
By William W. Abbott
When it comes to administrative appeals of land use decisions, state law largely delegates to cities and counties the choice of being flexible or rigid on administrative appeals (e.g. tentative subdivision map approvals, conditional use permits, CEQA documents). Most cities and counties opt for a de novo review by the appellate body. This means that the appellate body effectively starts over on the decision, and it is empowered to make any decision it deems to be appropriate under the circumstances. As illustrated by the recent decision of Citizens for Open Government v. City of Lodi (Browman Development Co., real party in interest) 2006 Cal. App. LEXIS 1764, de novo review may permit a project opponent to challenge in court the adequacy of the CEQA document, even though the appeal to the city council was on non-CEQA grounds.
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Posted on November 13, 2006 by Abbott & Kindermann
By Janell M. Bogue
In a victory for the Regional Water Quality Control Boards and State Water Resources Control Board, the Second Appellate District revised its opinion in County of Los Angeles v. California State Water Resources Board (2006) 2006 Cal.App.LEXIS 1744 on November 6, 2006. Though several parties submitted petitions for rehearing, the court modified its previous October 5, 2006 opinion on its own and denied all the rehearing petitions. Click here to read about the court’s previous, unmodified opinion.
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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.
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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.
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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").
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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.
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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.
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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.
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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.
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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.
By Joel Ellinwood, AICP and Kate Hart
For those awaiting a court's interpretation of the standards of review and to see a court analysis of Section 21083.3 (Guidelines Section 15183) providing for a conditional exemption from CEQA for projects that are consistent with an approved general plan, the time has come. For those hoping to take advantage of the rollback prices at a new Wal-Mart Superstore in Turlock, the chance is sprung.
Wal-Mart wanted to build a new store in the City of Turlock ("City"). In early 2003, Wal-Mart representatives inquired with City staff about developing a Wal-Mart Supercenter, which would include a full-service grocery department. The City staff provided Wal-Mart with entitlement and fee information as requested.
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Posted on May 10, 2006 by Janell Bogue
by William W. Abbott and Janell M. Bogue
As development continues to occur in areas outside of urbanized metropolitan areas developers are encountering more threatened or endangered species issues in their environmental review process under the California Environmental Quality Act ("CEQA"). A fundamental question which must be addressed is whether there are threatened or endangered species present in the project area and whether the project will affect those species. This is not always a simple question to answer, as it is not clear what studies are necessary in order to adequately analyze biological resources under CEQA. What standards are appropriate to measure the significance of the effects on endangered species? Furthermore, once threatened or endangered species are determined to be affected by the project and potentially significant impacts to biological resources are identified, how does one provide for adequate mitigation in order to mitigate those impacts to a less than significant level? This paper discusses recent CEQA cases dealing with these questions and provide insight on how to address endangered species concerns in order to comply with CEQA.
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Posted on May 10, 2006 by Janell Bogue
by William W. Abbott and Janell M. Bogue
Properly administered impact fee programs can operate to streamline CEQA review of later development projects. At the same time, impact fee programs which are not implemented in accordance with the original expectations or which are founded upon unrealistic assumptions may offer the lead agency and affected applicant little or no real relief. Significant cases decided over the last five years illustrate how this can play out.
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Posted on February 15, 2006 by Janell Bogue
by Joel Ellinwood, AICP
A recently published case illustrates that there is danger in investing too much in a sense of righteous indignation about the perceived abuse of CEQA in delaying public projects. Ramona Unified School District v. Tsinkas (2005) 135 Cal.App.4th 510.
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Posted on February 15, 2006 by Janell Bogue
The California Supreme Court has granted review in two important cases dealing with water supply and planning under CEQA. The first, Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (Case No. S132972) was covered in a June 2005 Abbott & Kindermann article. The second is In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (Case No. S138975) and was discussed in a November 2005 Abbott & Kindermann article. The Supreme Court's opinions in these cases will likely affect all participants in the EIR process and we will update you when they are issued.
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.
Posted on February 15, 2006 by Janell Bogue
by William W. Abbott
CEQA justice grinds on, even between the Thanksgiving and the new year. The following are summaries of the most recent decisions.
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Posted on February 15, 2006 by Janell Bogue
by Elias E. Guzman
In a San Diego court, a petitioner recently argued that it failed to file its opening brief because the City held the administrative record for "ransom." Yes, ransom. Well, in the world of administrative writ actions, there are two absolutes regarding the preparation of the administrative record. Someone has to prepare it and someone has to pay for it.
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Posted on December 1, 2005 by Janell Bogue
by William W. Abbott
Although never verified as the source, Mark Twain is considered the originator of the quote "whiskey is for drinking and water is for fighting." Had he lived until the enactment of CEQA, perhaps he would have added something to his saying. As land use practitioners know, the water supply/CEQA/Subdivision Map Act interface has raised the bar in terms of what it takes for large development projects to move forward. A repeated challenge in this area is the dichotomy between theoretical water deliveries by the state and federal water contractors and actual deliveries, the difference commonly referred to as "paper water." As readers of this newsletter may remember, a development project EIR analysis of water supply which concludes that adequate water exists based upon paper water is likely to be set aside by a reviewing court (see the March 2003 Abbott & Kindermann article on Santa Clarita Organization for Planning the Environment v. County of Los Angeles). This has been the trend in a number of court decisions going back to at least the year 2000. Jump forward to 2005, and the water supply challenge is neither fixed nor improving, and EIRs are still being successfully challenged.
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Posted on November 1, 2005 by Janell Bogue
by Elias E. Guzman and Janell M. Bogue
CALFED is an unprecedented collaboration among 18 state and federal agencies and the state's leading urban, agricultural, and environmental interests. The ultimate goal is to develop a long-term, comprehensive plan that will restore ecological health and improve water management for beneficial uses of the Bay-Delta system, the intricate waterways created at the junction of the San Francisco Bay and the Sacramento and San Joaquin rivers and the watersheds that feed them. After many years of study and analysis, CALFED adopted a program to be administered over the next 30 years. The program includes measures designed to improve the Bay-Delta ecosystem, water quality and quantity, and Delta levee stability. On August 28, 2000, the final Programmatic Environmental Impact Statement/Environmental Impact Report (PEIS/R) was certified and CALFED adopted the Record of Decision (ROD) for the Program in accordance with NEPA and CEQA.
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Posted on October 1, 2005 by Janell Bogue
On the bright side, we have learned that there is one more local agency action exempt from CEQA. In Citizens to Enforce CEQA v. City of Rohnert Park (2005) 131 Cal.App.4th 1594, an MOU entered into between the City of Rohnert Park and a local tribe, the subject of which was a funding agreement to mitigate impacts on a gaming facility to be located in the County, was not subject to CEQA. The MOU did not commit the City to any course of action, and recognized that later City actions taken in response to the gaming facility impacts would be subject to environmental review. The court relied upon the exclusion from the definition of a project "the creation of government funding mechanisms or other government fiscal activities, which do not involve a commitment to any specific project which may result in a potentially significant physical impact on the environment." Guidelines section 15378. See also Kaufman & Broad-South Bay Inc. v. Morgan Hill Unified School District (1992) 9 Cal.App.4th 464.
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.
Posted on September 1, 2005 by Janell Bogue
by Elias E. Guzman
In Endangered Habitats League v. County of Orange (2005) 131 Cal.App.4th 777, an appellate court determined that project approvals and findings must be consistent with a county's general plan. The court also found that an environmental impact report ("EIR") must provide sufficient information to the lead agency in order to make an informed decision.
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Posted on September 1, 2005 by Janell Bogue
by William W. Abbott and Janell M. Bogue
It can safely be said that CEQA has gone to the dogs. In Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, we learn that failure to document the possibilities for changes in what most of us understand to be normal canine behavior may be the basis to invalidate an initial study, and in turn, a negative declaration.
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Posted on August 1, 2005 by Janell Bogue
by William W. Abbott
Most readers of this newsletter are already aware that the evidentiary threshold necessary to push a ND into an EIR is relatively low. In a June 2005 Abbott & Kindermann article, we discussed the decision of Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, a Third Appellate District decision. On the heels of Pocket Protectors now comes Mejia vs. City of Los Angeles (2005) 130 Cal.App.4th 322, another court of appeal decision, now from the Second Appellate District. Maria Mejia, a non-lawyer, beat both the City Attorney's office and developer's legal counsel twice, winning multiple arguments along the way. The project history, and her winning arguments, are as follows:
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Posted on August 1, 2005 by Janell Bogue
by William W. Abbott and Janell M. Bogue
A proposed Wal-Mart Supercenter was cause for controversy in Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173. In this case, the City of Anderson ("City") approved a new shopping center fronted by I-5 and anchored by a Wal-Mart Supercenter. The City prepared and certified an EIR but citizens formed Anderson First Coalition ("Coalition") to protest the project, asserting that it would cause urban decay, was inconsistent with the general plan and the zoning of the area, and did not provide proper traffic mitigation. At the trial court level, the EIR was found to be sufficient except for the project's gas station. The trial court severed the gas station and allowed the rest of the project to proceed. The Coalition appealed and the appellate court reviewed both the adequacy of the EIR and the trial court's decision to sever the gas station.
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Posted on August 1, 2005 by Janell Bogue
by William W. Abbott
In land use litigation, particularly CEQA cases, a successful petitioner can file a motion with the court seeking an award of attorneys fees. The award of fees is highly discretionary with the trial court, and occasionally, the trial court decisions are reversed by the appellate court. In a recent court decision, Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, the appellate court reversed a trial court's decision refusing to award fees to a petitioner. In reversing the trial court decision, the appellate court established the threshold for what constitutes a "prevailing party" as a fairly low barrier.
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