Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

By Brian Russell 

North County Advocates v.City of Carlsbad (2015) 241 Cal.App.4th 94.

Westfield, the landowner and developer, (“Westfield”) proposed to renovate a 40‑year‑old shopping center located in the City of Carlsbad, California (“City”). In July 2013, the City approved Westfield’s request to renovate the former Robinsons-May store and other small portions of the shopping center (“Project”). North County Advocates (“Advocates”) challenged the City’s approval under the California Environmental Quality Act (“CEQA”), arguing that the Project’s environmental impact report (“EIR”) used an improper baseline in its traffic analysis because it treated the Robinsons-May store as fully occupied, even though it was vacated in 2006 and had been only periodically occupied since.

Advocates filed a petition for writ of mandate challenging the City’s approval of the project, and the trial court denied Advocates’ petition. Advocates appealed the trial court’s judgment to the Fourth District Court of Appeal.

Advocates contended that the EIR’s traffic baseline is “incorrect and misleading” because it did not follow the “‘normally’” applicable rule of measuring conditions as they actually existed when environmental review began. Advocates argued that the City instead “falsely inflated the existing traffic conditions” by “imputing over 5,000 daily trips” to the baseline premised on a fully occupied Robinsons-May building when, in fact, Robinsons-May vacated the space in 2006. By falsely inflating the existing traffic conditions, the baseline understates the Project’s true impact on the environment.

The EIR’s Transportation Study elaborated on the City’s determination of the traffic baseline:

“Westfield Plaza Camino Real is an existing super regional shopping center which is entitled for 1,151,092 square feet of retail commercial space. All of the currently entitled square footage is completely constructed. However, the nature of a shopping center is that tenants change and the amount of occupied space constantly fluctuates. Plaza Camino Real currently has unoccupied leasable space beyond the normal amount, mainly the 148,159 square foot Robinsons-May building. Since this space is currently vacant, traffic from this space is not included in the actual traffic counts conducted at the analyzed intersections and street segments. However, for the purposes of determining the Existing Baseline Conditions pursuant to CEQA Guidelines Section 15125, trips attributable to that currently unoccupied space are imputed. A full occupancy assumption is consistent with San Diego Association of Government’s regional traffic modeling methodology which assumes full occupancy of all entitled square footage. It is also consistent with the City of Carlsbad and City of Oceanside’s determination of existing baseline because the currently vacant space could be occupied at anytime without discretionary action. In fact, portions of that space are periodically occupied with temporary uses such as a Halloween store which leases the space in the month of October. For these reasons, full occupancy of all entitled square footage is assumed in determining the Existing Baseline Conditions.”

Using the baseline with the imputed Robinsons-May traffic, the Transportation Study concluded the “Project will not result in a significant impact at any of the analyzed intersections during either peak hour, or any of the analyzed street segments during either peak hour or daily conditions.”

The appellate court concluded that the City’s selection of a traffic baseline that assumed full occupancy of the Robinsons-May space was not merely hypothetical because it was not based solely on Westfield’s entitlement to reoccupy the Robinsons-May building “at anytime with discretionary action” but was also based on the actual historical operation of the space at full occupancy for more than 30 years up until 2006. Then, from 2007 to 2009, the Robinson-May space had a reduction in occupied square footage. The court viewed this fluctuating occupancy, “which is the nature of a shopping center,” to allow the agency to have the discretion to consider conditions over a range of time periods to account for a temporary lull or spike in operations. Further, the City’s decision to base the traffic baseline on historical occupancy rates is further supported by substantial evidence consisting of San Diego Association of Government data on such use levels. These factors together were substantial evidence which supported the City’s exercise of discretion in selecting a traffic baseline that assumed a fully occupied Robinsons‑May building.

Brian Russell is an associate attorney at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943. 

By William W. Abbott

The history of the controversial home in the Berkeley Hills is well documented. (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (The California Supreme Court Tackles CEQA’s Gordian Knot: Unusual Circumstances and CEQA Exemptions [http://blog.aklandlaw.com/2015/03/articles/ceqa/the-california-supreme-court-tackles-ceqas-gordian-knot-unusual-circumstances-and-ceqa-exemptions/] Admittedly, it is no ordinary residence: a two story home of 6,478 square feet with a 3,394 square foot 10-car garage, located on a hillside. The new home construction necessitated demolition of an existing dwelling. It is at the end of the day, a single family home nonetheless. The architect filed plans with the City in 2009, and the application was approved in early 2010. In approving the plans, the City relied upon a categorical exemption. The ensuing legal challenges eventually made it to the California Supreme Court, resulting in the Court’s decision addressing the required analysis for the use of CEQA exemptions, including the limitations of the “unusual circumstances” exception. Following the Supreme Court’s decision (BH1), the matter was remanded to apply the Supreme Court’s guidance to the remaining claims.

Although the appellate court had sided with the opponents in BH1, the appellate court rigorously followed the Supreme Court’s strictures on remand. In BH2, the court noted that the opponents had conceded that there was substantial evidence in the record to support the use of an exemption, so the legal debate on remand centered on the alleged unusual circumstances. In asserting unusual circumstances, the opponents focused on two issues: size of the home and the setting. The opponents also argued that the City had improperly mitigated its way into an exemption by using a traffic mitigation plan. As to home size, the evidence in support of the City’s decision was that the proposed home was not unusual when evaluated in the context of the surrounding homes.  As to the claim based upon setting, there was no evidence of a geological fault onsite, or that the house was visible from the public right of way (and therefore would have no effect on the aesthetic values of the neighborhood.) (The appellate court also concluded that any argument based upon geotechnical issues was foreclosed in BH1.) The final issue of note was the traffic mitigation plan. The opponents relied upon Salmon Protection & Watershed Network (2004) 125 Cal.App.4th 1098, in which the appellate court concluded that a lead agency could not mitigate its way into an exemption. In BH2, the court after reviewing the record agreed with the City that the traffic mitigation plan was a standard development condition and was not intended as specific mitigation. Therefore, Salmon Protection was not controlling and the use of the exemption was proper.

The applicants still have one more potential hurdle to cross. Will the Supreme Court take this case up? After six years, what is the hurry?

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

By Glen C. Hansen

In Honchariw v. County of Stanislaus (2015) 237 Cal.App.4th 388, the Court of Appeal for the Fifth Appellate District held that a landowner’s inverse condemnation claim for damages against the County of Stanislaus caused by an unconstitutional temporary taking was time-barred under Government Code section 66499.37. The owner previously had filed a successful petition for writ of mandate challenging the disapproval of a subdivision application, which resulted in the County’s reconsideration of the application and eventual approval of the project. However, the owner’s subsequent claim for compensation damages was time-barred under section 66499.37 because the mandamus proceeding had not established that there had been a compensable taking.

Continue Reading Do You Seek Compensation For An Unconstitutional Taking? Then Plead That With The Mandamus Action To Avoid The Potential Statute Of Limitations Bar!

Save Our Heritage Organisation v. City of San Diego (2015) 237 Cal.App.4th 163.

By Glen C. Hansen

Balboa Park, a large urban park in San Diego, includes the buildings and plazas constructed for the 1915 Panama-California Exposition and the adjoining buildings and improvements subsequently constructed for the 1935 California Pacific International Exposition (the Complex). Visitors enter the Complex via the Cabrillo Bridge (“Bridge”). The Bridge and the Complex are a National Historic Landmark and a National Historic Landmark District. A project was proposed to return the plazas to purely pedestrian zones. The project included a new “Centennial” bridge, reconfigured roadways and a new pay-parking structure. The City of San Diego (“City”) approved a site development plan for the project.

Continue Reading ‘It’s Good Enough For Government Work’: Project May Violate Some General Plan Policies So Long As It Is Consistent With A Majority Of The General Plan

By Brian Russell

Walnut Acres Neighborhood Assn. v. City of Los Angeles (2015) 235 Cal.App.4th 1303

The owners of the property and the developer Community MultiHousing, Inc. sought a permit under Los Angeles City code section 14.3.1 to build an eldercare facility at 6221 North Fallbrook Avenue in Woodland Hills. Section 14.3.1’s purpose is to “provide development standards for Alzheimer’s/Dementia Care Housing, Assisted Living Care Housing, Senior Independent Housing and Skilled Nursing Care Housing, create a single process for approvals and facilitate the processing of application of Eldercare Facilities. These facilities provide much needed services and housing for the growing senior population of the City of Los Angeles.” (§ 14.3.1, subd. A.) The proposed eldercare facility exceeded the maximum allowable density and floor area of the residential zone. Zoning regulations limited a structure to 12,600 square feet, and the proposed facility would contain 50,289 square feet, including over 20,000 square feet devoted to common areas. The proposed facility would have 60 guest rooms and 76 guest beds. Application of the zoning regulations would have limited the site to 16 guest rooms. Pursuant to section 14.3.1, subdivision E, to approve an eldercare facility, the zoning administrator is required to make several findings. “The Zoning Administrator shall not grant the approval unless he or she finds that the strict application of the land use regulations on the subject property would result in practical difficulties or unnecessary hardships inconsistent with the general purpose and intent of the zoning regulations.”

Continue Reading Local Zoning Laws Prevent an Eldercare Facility from Proceeding with Plans for Development

By Brian Russell

Nick v. Department of Alcoholic Beverage Control (2014) 233 Cal.App.4th 194.

This is a case of one convenience store owner attempting to prevent another convenience store, 7-Eleven, from selling beer and wine by using the powers of the Department of Alcoholic Beverage Control (ABC). The petitioners, Adam and Sherry Nick (Nick) claimed in its complaint that under the Alcoholic Beverage Control Act (Bus. and Prof Code, Section 23000 et seq. or the “Act”) it prohibits the ABC from issuing a license that would result in or add to an undue concentration of licenses unless the local governing body of the area where the applicant’s premises is located determines that issuing the license would serve a “public convenience or necessity.”

Continue Reading Did the California Alcoholic Beverage Control Cede its Authority?