In 2016, U.S. Supreme Court Justice Clarence Thomas issued this warning about legislative exactions: “Until we decide this issue, property owners and local governments are left uncertain about what legal standard governs legislative ordinances and whether cities can legislatively impose exactions that would not pass muster if done administratively.” He stated there are “compelling reasons for resolving this conflict at the earliest practicable opportunity.” Abbott & Kindermann Inc.’s Senior Counsel, Glen Hansen, proposes a resolution to that conflict in his recently-published article, Let’s Be Reasonable: Why Neither Nollan/Dolan nor Penn Central Should Govern Generally-Applied Legislative Exactions After Koontz, 34 Pace Envtl. L. Rev. 237 (2017).

In that article, Mr. Hansen explains why the level of constitutional scrutiny that was developed by the U.S. Supreme Court in Nollan v. California Coastal Commission, and Dolan v. City of Tigard, should not apply to legislatively imposed exactions, provided that such exactions satisfy two key criteria: (1) The exaction is generally-applied; and (2) the exaction is applied based on a set legislative formula without any meaningful administrative discretion in that application. He argues that legislative exactions that fail to meet those two criteria should be governed by the Nollan/Dolan standard of review in the same manner as the ad hoc adjudicative exaction in Koontz v. St. Johns River Water Management District. Mr. Hansen then argues that legislative exactions that satisfy those two criteria also should not be governed by the ad hoc factored analysis in Penn Central Transportation Co. v. New York City. Instead, Mr. Hansen argues, a “reasonable relationship” test should be applied to legislative exactions that satisfy those two criteria.

The issue addressed in the article is timely and in need of resolution by the courts. In early 2016, Supreme Court Justice Clarence Thomas explained: “For at least two decades, however, lower courts have divided over whether the Nollan/Dolan test applies in cases where the alleged taking arises from a legislatively imposed condition rather than an administrative one. That division shows no signs of abating.” Justice Elena Kagan similarly opined that, following the Koontz decision, there is now a “cloud on every decision by every local government” that requires a person seeking a permit to pay or spend money. Mr. Hansen’s article offers a practical resolution of that constitutional conflict based on the majority and dissenting opinions in Koontz, as well as the various rationales presented in lower court decisions that have squarely addressed the issue.

Mr. Hansen’s article can be found online at http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1803&context=pelr .

Glen Hansen is Senior Counsel at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

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

By Daniel S. Cucchi

City of San Jose v. Superior Court (March 2, 2017, S218066) ___ Cal.5th ___.

Citing the need to broaden the definition of “public records” to address the “evolving methods of electronic communication,” a unanimous California Supreme Court reversed the Sixth District Court of Appeal, holding that communications related to the “conduct of the public’s business” by agency officials and employees on their personal accounts are subject to disclosure under the California Public Records Act (“CPRA”).

In June 2009, the petitioner filed a CPRA request with the City of San Jose (the “City”), which included the City’s redevelopment agency, certain elected officials and staff, for all documents related to redevelopment efforts in the City’s downtown.  The request for documents included “emails and text messages ‘sent or received on private electronic devices used by’ the mayor, two city council members, and their staff.”  The City refused to provide the information on private electronic devices, stating that they were not public records, because the emails and texts were not within the City’s custody or control.  Petitioner filed suit and the trial court ordered disclosure.  The City appealed and the appellate court reversed.  The California Supreme Court granted the petition for review.

Seeking to balance the public’s right to know enshrined within the CPRA and the California Constitution against an individual’s right to privacy, the Court outlined a standard intended to avoid an interpretation that “would allow evasion of the CPRA simply by the use of a personal account,” while limiting disclosure of private communications to only those that involve substantive discussions of public matters.  While recognizing the standard cited in San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 774, which normally excludes only communications “totally void of reference to governmental activities” under the CPRA, the Court distinguished the context of communications sent through personal accounts, reasoning that this broad standard would likely sweep up more than necessary to comply with the CPRA.  Instead, the Court laid out a less exacting standard that these communications “must relate in some substantive way to the conduct of the public’s business” before they become a public record.  Thus, incidental mentions of a public matter would normally be insufficient to trigger disclosure.

The City also claimed that the private communications were not a public record because they were not “prepared, owned, used, or retained” by the City, nor were they accessible to, or retained by, the City.  The Court rejected this interpretation of the statute, reasoning that (1) agencies, much like corporations, can only act through its officials, and (2) the City still had constructive control over the records because its own officials and employees had access to those records.  It further noted that to conclude otherwise would allow an agency to avoid disclosure by transferring custody to a third party, or even its own employees.  The Court concluded by reviewing the various exemptions available to protect the privacy of officials and employees, including preliminary and draft notes and memoranda (Gov. Code §6254(a)), personal financial data (Id. §6254(n)), as well as the “catchall” exemption when the public interest in withholding “clearly outweighs” the public interest in disclosure (Id. §6255(a)).

In the age of technology and instant communications, it can be easy for agency officials to grab their phone to send that text or email, particularly when they do not have a device issued by the agency. Whether or not such communications were ever intended to avoid disclosure, the Court’s decision puts to rest any question that substantive communications about public matters will be considered a public record. Agencies can best avoid these complex and costly issues by establishing clear technology policies strongly discouraging use of private communication systems for public matters and, at a minimum, issuing phones and/or other similar devices to those agency officials that are most likely to generate electronic communications for agency business outside of the office.  And of course, there are always the very old school options of simply picking up the telephone or a face-to-face conversation.

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

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

 

By Daniel S. Cucchi

Hernandez v. Town of Apple Valley (2017) 7 Cal.App.5th 194

In 2011, the Town of Apple Valley (the “Town”) circulated a local initiative called the “Wal-Mart Initiative Measure,” or in some cases the “Wal-Mart Supercenter Ballot Initiative,” which was subsequently declared null and void. Two years later, the Town noticed a city council agenda item for a “Wal-Mart Initiative Measure” with a recommended action to “provide direction to staff.”  Petitioner did not attend the council meeting believing the matter was follow-up activities related to the 2011 measure.  He later learned that the Town council had adopted two resolutions for a new voter initiative for a proposed 30-acre commercial development that included a new Wal-Mart Supercenter, as well as a Memorandum of Understanding (“MOU”) to accept a gift from Wal-Mart to pay for the special election. After filing a request with the Town to cure the alleged agenda defect, which the Town rejected, Petitioner filed suit arguing the Town violated the Ralph M. Brown Act and that the initiative measure itself violated California Constitution, article II, section 12’s prohibition against specifically naming any individual or corporation to “perform any function or to have any power or duty….”  The trial court granted petitioner’s Motion for Summary Judgment on both claims, finding the MOU and the initiative were void and invalid.  The Town and Wal-Mart appealed.

The appellate court first considered the Brown Act claim, finding that while the resolutions calling for the special election were properly noticed, the Town’s adoption of the MOU was not, creating a fatal flaw in the approval of all of the resolutions. The Town argued that the agenda packet included all of the relevant information regarding the proposed initiative, but the court was not persuaded. While choosing not to rule on the question of whether information in an agenda packet can be used to bring an agency into compliance with the Brown Act, it noted that the record showed that the MOU resolution was added to the agenda item after release of the agenda.  This was fatal, the court reasoned, because it was reasonable to conclude the MOU was “a major factor in the decision to send the matter to the electorate.”  Thus, since the MOU resolution was improperly noticed, the resolutions to place the initiative measure on the ballot were null and void as a result.

Anticipating the likelihood that the initiative measure would likely return to the ballot, the court next turned to the question of whether the measure violated the California Constitution. Petitioner argued that although Wal-Mart was not specifically named in the initiative text, the ballot measure materials clearly established that approval would grant powers to the owner and developer, Wal-Mart.  The court disagreed.  It held that the initiative was properly drafted, even though it ultimately benefitted Wal-Mart, because the text of the initiative did not specifically name Wal-Mart.  It reasoned that the use of the words “developer” and “owner” in the initiative meant that if Wal-Mart were to sell the property, it would retain no superior rights in the property over the subsequent owner.  Thus, Wal-Mart’s current beneficial position was granted by ownership of the subject property and not by the initiative itself.

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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 2017.

In January 2017 Abbott & Kindermann, Inc. will present its 16th 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 2016 case law and legislative updates includes the following hot topics for 2017:

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

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

Date: Wednesday, January 11, 2017

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  (To Register for the Sacramento Location Click Here)

Date: Friday, January 20, 2017

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

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

Date: Friday, January 27, 2017

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.

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

Date: Tuesday, January 31, 2017

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 2017.

In January 2017 Abbott & Kindermann, LLP will present its 16th 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 2016 case law and legislative updates includes the following hot topics for 2017:

  • 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, Sacramento, Modesto, and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

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

Date: Wednesday, January 11, 2017

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  (To Register for the Sacramento Location Click Here)

Date: Friday, January 20, 2017

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

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

Date: Friday, January 27, 2017

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.

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

Date: Tuesday, January 31, 2017

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.

 

Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809.

By Brian Russell

Auto-Spa applied for a conditional use permit to build a car wash and coffee shop in Redondo Beach, California. The property is zoned commercial. The project consisted of a 90-foot car wash tunnel and an attached coffee shop totaling 4,080 square feet. The rest of the property would be used for drying and parking cars. Entry to the car wash was from a residential street, just off of a major street. From 1965 to 2001, there was a car wash on the property.

The Planning Commission approved the project under a categorical exemption in CEQA Guidelines section 15303(c).  That provided an exemption from CEQA review for commercial buildings not exceeding 10,000 square feet in floor area on sites zoned for such use if not involving the use of significant amounts of hazardous substances, where all necessary public services and facilities are available and the surrounding area is not environmentally sensitive.

After an appeal and approval by city council, Appellants filed a petition challenging the CEQA exemption. The trial court ruled in favor of the city.

On appeal, the initial issue was whether the project qualified as a commercial structure and met the square footage limitations of the CEQA exemption. In reviewing the determination of whether a project fits within an exemption, the court applied the substantial evidence test and agreed with the city that the exemption embraced a broad range of commercial projects. The appellant also urged that the use of hazardous materials was not allowed in conjunction with the exemption. However, the evidence did not support this argument, and that the argument was based upon speculation.

Appellants then argued that even if the exemption applies, it should not apply for this project because “there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”  Under the Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (“Berkeley Hillside”), a challenger must prove both the unusual circumstances and a significant environmental effect that is due to those circumstances. If unusual circumstances are found, agencies apply the fair argument standard in determining whether there is a reasonable possibility of a significant effect on the environment due to unusual circumstances. Alternatively, under Berkeley Hillside, a challenger may establish an unusual circumstance with evidence that the project will have a significant environmental effect, applying the traditional substantial evidence test. Here, the court explained that a party can show an unusual circumstance by demonstrating that the project has some characteristic or feature that distinguishes it from others in the exempt class, such as its size or location. But the court concluded that there is nothing particularly unusual about the proposed car wash and coffee shop. The evidence establishes that there are many other car washes in the surrounding area, plus the site itself was a car wash and snack bar for nearly 40 years, which suggests that this project is not an unusual circumstance.

The court further analyzed whether the plaintiffs had established that the unusual circumstances will have a significant environmental effect. The plaintiffs argued that the operation of the car wash would violate the city’s interior and exterior noise limits at the abutting property line. However, the court rejected that argument, and found that the exceedance will not occur, because the project was conditioned upon the car wash’s adherence to the city’s noise standards. Furthermore there was an additional condition that provides that compliance with the noise requirements “shall be tested and documented prior to the final inspection and opening of the car wash operation.” Given those conditions and assurances, plaintiffs failed to meet their burden of showing that the project will actually have a significant environmental effect.

Plaintiffs then argue that the project will have a significant impact on traffic. They argued that the design of the car wash is inefficient and will cause back ups within the project property. However, the court held that plaintiffs’ argument was speculative and was contradicted by both the plaintiffs’ expert and the city’s findings that any such backup could be avoided by managing the flow of cars through the car wash. The court found that, at best, plaintiffs provided evidence that suggests that the project possibly could have a periodic impact on traffic. That was insufficient. The court held that plaintiffs failed to provide evidence that the project will actually have a significant impact on the environment by causing a substantial adverse change in the physical conditions that exist in the area.

With that holding, the court concluded that plaintiffs failed to establish the unusual circumstances exception under the Berkeley Hillside alternative analysis. Therefore, the city properly determined that the car wash project is categorically exempt under the CEQA Guidelines.

Brian Russell is an 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.

 

Mark your calendar – registration for Abbott & Kindermann’s 16th Annual Land Use, Real Estate, and Environmental Law Update will open on October 18, 2016.

In January 2017 Abbott & Kindermann, LLP will present its 16th 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 2016 case law and legislative updates includes the following hot topics for 2017:

  • 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, Sacramento, Modesto and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Redding Conference 

Date: Wednesday, January 11, 2017

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, January 20, 2017

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

Modesto Conference 

Date: Friday, January 27, 2017

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.

Napa Conference 

Date: Tuesday, January 31, 2017

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. MCLE and AICP CM credits are available (approval pending).

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

 

By Glen C. Hansen

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

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

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

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

Glen C. Hansen is Senior Counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

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

 

Friends of the Willow Glen Trestle v. City of San Jose (2016) ___ Cal.App.5th ___.

By Daniel S. Cucchi

As part of its plan to upgrade its trail system, the City of San Jose (the “City”) proposed to demolish the Willow Glen Railroad Trestle (the “Trestle”), a wooden bridge built in 1922 as part of a rail line accessing the canning districts near downtown, and replace it with a new steel pedestrian bridge.  The City prepared a mitigated negative declaration (“MND”) in support of the project, which found that because the Trestle design was common and was likely largely rebuilt within the last 30-40 years, it was not a historical resource, and, thus, there was no significant impact on the environment.  The Friends of the Willow Glen Trestle (“Friends”) challenged that determination and filed a writ of mandate challenging the MND, arguing that there was a “fair argument” that the Trestle was an historical resource and an environmental impact report (“EIR”) was required.  The trial court agreed with Friends, asserting that the standard of review applied in Architectural Heritage Assn. v. County of Monterey, 122 Cal.App.4th 1095 (2004), was the correct standard.  The City appealed and the appellate court reversed.

The appellate court first dismissed the argument that it was required to follow the holding in Valley Advocates v. City of Fresno, 160 Cal.App.4th 1039 (2008), concluding that it could complete its own determination of the proper legal standard.  It reasoned that, while the case held that the substantial evidence review standard applied to an agency’s determination of whether a resource was historical, the California Supreme Court’s discussion of Valley Advocates in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (2015), was limited to the question of whether a bifurcated standard could apply to a multi-part agency decision and avoided the question that was now before the court. 

The court next turned to the applicable language in Public Resources Code section 21084.1, noting that local agencies have the power to determine that a “presumed” historical resource (see Pub. Res. Code §§ 5020.1(k), 5024.1(g)), is not historic when supported by the preponderance of the evidence.  Thus, it reasoned, that application of the fair argument standard to that decision would directly contradict the statutory language. 

The court completed its analysis by reviewing the line of cases involving the review of agency decisions involving historical resources, concluding that the only cases specifically addressing the issue, Valley Advocates and Citizens for Restoration of L Street v. City of Fresno, 229 Cal.App.4th 340 (2014), were in alignment with the court’s reading of the applicable statutes.  It, therefore, held that the City’s determination of whether the Trestle was an historical resource must be reviewed under the substantial evidence standard and remanded the case back to the trial court to make that determination.      

Daniel S. Cucchi 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, 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.

 

People for Proper Planning v. City of Palm Springs (April 22, 2016, E062725) ____ Cal.App.4th ____. 

By William W. Abbott

In 2013, the City of Palm Springs amended its general plan to remove any mention of minimum densities in the residential land districts. The text of the general plan in some residential districts provided for a range of densities, in others an average density or one stated density. The general plan also provided that the stated densities at the upper end were maximums, but the lower end reflected “the minimum amount of development anticipated, provided that all other required conditions can be met.” The City Council’s resolution adopting the amendment provided in part that “the current and past practice of the city… is to consider only the maximum density allowed within each land category and consider and approve lower density projects.” The Council passed the resolution relying upon a categorical exemption (Class 5; “minor alterations in land use limitations in areas of average slope of less than 20%, which do not result in any changes in land use or density….”). A citizens group filed suit, challenging the amendment on CEQA grounds as well as violations of the state planning and zoning law. The trial court ruled in favor of the city and the petitioners appealed. In the published portion of the decision, the appellate court reversed the City’s use of an exemption.

Surprisingly, the appellate court did not cite the Supreme Court’s decision in Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943, on judicial review of CEQA exemptions. The appellate court’s first point was that the amendment facially conflicted with the terms of the exemption in that that it resulted in change in densities. Accepting for the sake of argument the City’s position that the amendment simply reflected actual city practices, the appellate court noted that the petitioner had presented sufficient evidence of a fair argument (without elaborating on that evidence) and that the general plan amendment was capable of significant cumulative effects to the supply of high density, low and moderate income housing. To this latter point, the court noted that the 2007 General Plan EIR discussed the role of high density housing to meet its housing needs and to avoid unnecessary conversion of surrounding desert lands. The Court then questioned the City’s ability to meet its fair share of housing as a basis to overturn the use of the CEQA exemption.

The court went on to address the City’s argument that the baseline had not changed, asserting that as the City had not interpreted its general plan in a manner which dictated minimum densities, there was therefore no change from the baseline as a result of the general plan amendment. The Court concluded that once the general plan was adopted, it became the new baseline. Since the general plan relied upon the anticipated densities to meet housing needs, the question remained as to the City’s ability to meet its fair share housing needs. Although the published decision lacks critical analysis, the inference is that this unanswered question defeated the use of the categorical exemption.

Comment: The court’s characterization of the general plan as the new baseline while in many circumstances this would be an ideal approach in reducing CEQA burdens, this court’s approach is at variance with a number other long standing CEQA decisions, and lead agencies should be cautious about uncritical reliance upon this approach. The decision is best viewed as an unusual analysis of a CEQA exemption and left at that.

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.