Reserve your seat for one of four annual seminars taking place in early 2018 in Sacramento, Napa, Redding and Modesto.

In January 2018 Abbott & Kindermann, Inc. will present its 17th 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 2017 case law and legislative updates includes the following hot topics for 2018:

  • Air Quality and Climate Change – Including CEQA Guidelines, Cap-And-Trade
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands – Including New State Wetlands Programs
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Water Rights and Supply
  • Cultural Resources
  • Mining, Oil and Gas
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • Real Estate Acquisition and Development
  • Subdivision Map Act

Details for each of the seminars is 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: Friday, January 19, 2018

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 26, 2018

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, February 2, 2018

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: Wednesday, February 7, 2018

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 annual seminars taking place in early 2018 in Sacramento, Napa, Redding and Modesto.

In January 2018 Abbott & Kindermann, Inc. will present its 17th 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 2017 case law and legislative updates includes the following hot topics for 2018:

  • Air Quality and Climate Change – Including CEQA Guidelines, Cap-And-Trade
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands – Including New State Wetlands Programs
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Water Rights and Supply
  • Cultural Resources
  • Mining, Oil and Gas
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • Real Estate Acquisition and Development
  • Subdivision Map Act

Details for each of the seminars is 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: Friday, January 19, 2018

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 26, 2018

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, February 2, 2018

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: Wednesday, February 7, 2018

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.

 


 

 

 

Welcome to Abbott & Kindermann’s 2017 Third Quarter Environmental update. This update discusses selected litigation, regulations / administrative guidance and pending legislation, on both the federal and state levels, in the following general areas of environmental law: (A) Water Rights and Supply, (B) Water Quality, (C) Wetlands, (D) Air Quality and Climate Change, (E) Endangered Species, (F) Renewable Energy, (G) Hazardous Substance Control and Cleanup, (H) National Environmental Protection Act, and (I) Mining / Oil & Gas, (J) Streambed Alteration Agreements, (K) Cultural Resources Protection, and (L) Environmental Enforcement.

Click Here to read the complete update.

 If you have any questions about these court decisions, contact Diane Kindermann, William Abbott, Glen Hansen, or Daniel S. Cucchi. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.

Respect Life South San Francisco v. City of South San Francisco (2017) 15 Cal.App.5th 449.

Perhaps we have entered a new era in CEQA history. It no longer matters whether you seek to protect the environment, so long as you can plausibly “greenwash” your ulterior motives in CEQA terminology. Some might say this happened years ago, but Respect Life South San Francisco feels like peak-absurdum.

The City of South San Francisco (the “City”) considered approval of a conditional use permit (“CUP”) for a proposed Planned Parenthood clinic at an existing office building in the City’s downtown (the “Project”). To comply with the California Environmental Quality Act (“CEQA”), the City cited several categorical exemptions, including: (1) Existing Facilities (CEQA Guidelines §15301); (2) Conversion of Small Structures (Id. §15303); and (3) the Infill Exemption (Id. §15332). Respect Life of South San Francisco (“Respect Life” or “Petitioner”) argued that an Environmental Impact Report (“EIR”) was required, because there were unusual circumstances that precluded use of the categorical exemptions. Specifically, Respect Life asserted that due to “the inherently noxious and controversial nature of a portion of Planned Parenthood’s services,” protests that would occur as a result would cause significant environmental impacts to traffic, parking, public health and safety, and noise. Planned Parenthood countered the claims with additional testimony about protests at similar facilities elsewhere in the Bay Area which indicated future protests were likely to be small and manageable.  The City approved the Project finding it exempt from CEQA and Respect Life filed suit. The trial court rejected petitioner’s claims and upheld the City’s determination that the Project was exempt from CEQA. Respect Life appealed.

The appellate court first considered whether Respect Life had proper standing, finding that Respect Life had adequately pled it had a beneficial interest in the litigation, by alleging in the verified complaint that members of the unincorporated association “reside in the vicinity of the Project and are affected by the proposed Project’s environmental impacts.” Moving to the underlying substantive CEQA matters, the court applied the standards in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, to find that Respect Life failed to present “substantial evidence of a fair argument of a reasonable possibility of a significant environmental effect” resulting from an unusual circumstance. First, the court looked to the administrative record to note that the City had not made specific findings that there was not an unusual circumstance. Thus, the court reasoned that it therefore must: (1) assume the City found that the project involved unusual circumstances; and (2) despite this fact, conclude the City’s CEQA decision implied that the unusual circumstances exception was nonetheless inapplicable. As a result, the court determined that it must look to the record to determine whether there is substantial evidence to support either: (1) that an unusual circumstance exists; or (2) that a fair argument of a reasonable possibility that any purported unusual circumstances identified will have a significant effect on the environment.

Focusing on the second option, the court concluded that Respect Life failed to meet its burden to identify substantial evidence of a possibility of a significant effect resulting from the Project. Specifically, the court reasoned that the claims of impacts from protests at the facility did not amount to substantial evidence. It concluded that without specific evidence indicating the number of protesters, or the specific traffic, noise, or other disruptive impacts that could occur, the statements were nothing more than vague and speculative assertions of indirect or secondary effects of the protests. It further reasoned that testimony from Planned Parenthood representatives and others about their experience of “small and manageable” protests at other similar facilities in the region reflected “the presence of evidence supporting a determination that there is no reasonable possibility of a significant effect on the environment.” Thus, the court held that there was no substantial evidence supporting a fair argument of a reasonable possibility that impacts resulting from the protests will have a significant effect on the environment and affirmed the trial court judgment.

The case was utterly fascinating, as it raises serious issues worth exploring. First, the more practical take-away is it is now clear that an agency’s failure to specifically find that no unusual circumstances exist can significantly undermine the deferential standard of review offered by the CEQA exemption. Agencies and applicants should insist on including this finding when using categorical exemptions whenever possible, particularly when a potential opponent has raised a concern that could be construed as unusual circumstances.

There is a second and more provocative issue here. A project opponent was asserting potentially significant effects that would result from approval of a project that would be the direct result of actions that the opponent threatened (at least impliedly) to take against the project once it was operating. Normally, even when one strongly suspects an opponent does not actually care about the environmental concerns raised, it is never a certainty because it is not possible to truly know another person’s motives. This case is fundamentally different. The significant effects asserted by the petitioners were largely within their own control—meaning if there was truly a concern about the environmental impacts, the petitioners were the ones in a position to eliminate or at least reduce those impacts. While some may dismiss the arguments as absurd, the court was obligated to, and did, treat it seriously. Given the standard that applied in this case, it is possible to see how things could have turned out differently if the petitioners had presented evidence of the specific impacts from those protests. Is this a one-off? Or, could it be the beginning of a new form of opposition?

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.

How You Can Help Communities Affected by Wildfires

Our hearts go out to all of those who have been affected by the recent wildfires that have devastated our state. We are grateful to all the firefighters, responders and individuals helping with this tragedy. Abbott & Kindermann, Inc. would like to reach out to all of our friends, colleagues, and communities by identifying resources available for those who need it and ways for others who want to contribute.

Here are some resources for northern California:

  • American Red Cross

http://www.redcross.org/get-help/how-to-prepare-for-emergencies/types-of-emergencies/fire/home-fire-recovery

  • Salvation Army Napa Corps

http://napa.salvationarmy.org/

  • The California Department of Aging

http://www.aging.ca.gov/

  • State Supplemental Grant Program

http://www.dss.cahwnet.gov/dis/PG238.htm

  • Food Pantry Napa

https://www.foodpantries.org/ci/ca-napa

  • Food Pantry Sonoma

http://sonoma.networkofcare.org/mh/services/subcategory.aspx?tax=BD-1800.2000

  • Food Pantry, Sutter & Yuba Counties

http://sutter.networkofcare.org/mh/services/subcategory.aspx?tax=BD-1800.2000

  • Humane Society

http://sonomahumane.org/

  • California Association of Winegrape Growers

https://www.cawg.org/

  • Napa Valley Community Foundation

http://napavalleycf.org/fire-donation-page/

  • Community Foundation of Mendocino County

http://www.communityfound.org/for-donors/donate-today/community-funds/disaster-fund-for-mendocino-county/

  • California Northwest – American Red Cross

http://www.redcross.org/local/california/northern-california-coastal/chapters/california-northwest

  • United States Department of Agriculture

https://www.usda.gov/

  • California Department of Insurance

https://www.insurance.ca.gov/

  • Airbnb

http://www.sfgate.com/technology/article/Airbnb-opens-program-to-coordinate-emergency-12264485.php

  • NBC Drop off locations

http://www.nbcbayarea.com/news/local/How-To-Help-North-Bay-Fire-Relief-Efforts-450142573.html

  • Napa Valley Community Disaster

http://www.napavalleycf.org/fire-donation-page/

  • Humane Society of Napa County

https://napahumane.org/

 

 

 

Welcome to Abbott & Kindermann’s 2017 3rd Quarter cumulative CEQA update. This summary provides links to more in depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.

1.              2016 CEQA UPDATE

To read the 2016 cumulative CEQA review, click here:

 2.            CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are 2 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:

Union of Medical Marijuana Patients, Inc. v. City of San Diego, S238563. (D068185; 4 Cal.App.5th 103; San Diego County Superior Court; 37-2014-00013481- CU-TT-CTL.) Petition for review after the Court of Appeal affirmed the judgment in an action for administrative mandate. This case presents the following issues: (1) Is the enactment of a zoning ordinance categorically a “project” within the meaning of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? (2) Is the enactment of a zoning ordinance allowing the operation of medical marijuana cooperatives in certain areas the type of activity that may cause a reasonably foreseeable indirect physical change to the environment?

Sierra Club v. County of Fresno, S219783. (F066798, 226 Cal.App.4th 704; Fresno County Superior Court; 11CECG00706, 11CECG00709, 11CECG00726.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. This case presents issues concerning the standard and scope of judicial review under the California Environmental Quality Act. (CEQA; Pub. Resources Code, § 21000 et seq.)

3.          UPDATE

             A. Ministerial v. Discretionary

 Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11.

The County issued an erosion-control permit to allow the establishment of a vineyard on land currently used for grazing. Petitioners challenged the issuance of the permit arguing it was a discretionary decision which triggered compliance with the California Environmental Quality Act (“CEQA”). The County argued the permit was ministerial and was, thus, exempt from CEQA. The dispute centered on the interpretation of the County Code and how much discretion the County Agricultural Commissioner can exercise when approving the permits.

The petitioners argued that the relevant provisions of the County Code were broad and vague, thereby allowing the Commissioner to exercise significant discretion. The court found petitioner’s claims unpersuasive, because most of the provisions that provide the Commissioner with considerable latitude were inapplicable to the issuance of the challenged permit. The court reasoned that even if the contested provisions could overcome the County’s position, the discretion arguably conferred to the Commissioner is only relevant when those discretionary provisions are applied to the approval of a specific permit.

The court then turned to petitioner’s argument that three provisions that did apply conferred additional discretion, namely provisions requiring: (1) a 50-foot setback from wetlands, “unless a wetlands biologist recommends a different setback”; (2) stormwater to be diverted “to the nearest practicable disposal location”; and (3) incorporation “of natural drainage features…whenever possible.” The court rejected these claims, reasoning that in contrast to prior seminal cases involving discretionary approvals, such as Friends of Westwood, Inc. v. City of Los Angeles, 191 Cal.App.3d 259 (1987), these provisions did not confer the ability to mitigate environmental impacts in a meaningful way. It further reasoned that in each instance petitioners failed to cite to any evidence in the record that demonstrated that the County had discretion or that any discretion found would mitigate potential environmental impacts to any meaningful degree.

Lastly, the court turned to petitioner’s claims that the Commissioner’s ability to request additional voluntary actions rendered the permit discretionary. The Court held the requests did not establish the exercise of discretion. It reasoned that despite the inclusion of several mitigation measures in the permit’s conditions of approval, because the ordinance does not require the requested measures, the Commissioner had no authority to require them and the applicant’s acceptance of the voluntary request is insufficient to transform an otherwise ministerial permit into a discretionary one.

B.             Piecemealing

Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266.

The County of Santa Cruz, as part of its plan to overhaul its zoning ordinance, adopted three separate ordinance amendments to: (1) expand the minor exceptions to the zoning site standards; (2) alter the height, density, and parking requirements for hotels in its commercial districts; and (3) adopted an administrative approval process for some minor exceptions to the sign ordinance. The County relied on a negative declaration for each of the first two amendments and found the third amendment was exempt. In each case, the County considered them separate and distinct projects under CEQA. The Aptos Council challenged the approvals, arguing the County had improperly “piecemealed” the CEQA evaluation for the projects by failing to consider them as a single project. In addition, the Council challenged the negative declaration for the hotel amendment, arguing the CEQA analysis failed to consider the impacts of future development that would be permitted by the ordinance.

Affirming the trial court, the appellate court denied the Council’s petition. It rejected the Council’s claim that the County improperly piecemealed the CEQA analyses for each amendment, because, as stated in Banning Ranch Conservancy v. City of Newport Beach, 211 Cal.App.4th 1209 (2012), each amendment could be “implemented independently.” As to the hotel amendment, the court found that the County’s analysis properly considered some potential impacts of future development, but concluded that additional impacts described by the Council were speculative and, thus, were not a reasonably foreseeable consequence of the amendment.

 C.            Exemptions

Respect Life South San Francisco v. City of South San Francisco (September 18, 2017) 2017 Cal. App. LEXIS 801.

Respect Life of South San Francisco (“Petitioners”) challenged the City of South San Francisco’s approval of a conditional use permit (“CUP”) for a proposed Planned Parenthood clinic at an existing office building in the city’s downtown. The approval relied upon several categorical exemptions under CEQA. The petitioners argued that there were unusual circumstances due to “the inherently noxious and controversial nature of a portion of Planned Parenthood’s services” which would cause significant environmental impacts (traffic, parking, public health and safety, noise, etc.) due to protests that would occur as a result of the approval. Affirming the trial court, the First District Court of Appeal held that the petitioners failed to provide substantial evidence of a fair argument of a reasonable possibility of a significant environmental effect as a result of the stated unusual circumstance.  It reasoned that the claimed effects that would result were not reasonably foreseeable. But even if they were, the petitioners merely asserted that these impacts would occur with nothing more, in contrast to evidence in the record showing that protests at similar facilities elsewhere in the Bay Area failed to create the petitioners’ asserted environmental impacts.

 D.            Subsequent Environmental Review

 Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2017) 11 Cal.App.5th 596.

In the follow up decision to the Supreme Court’s decision in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937, the appellate court invalidated the District’s reliance upon the addendum to the previously adopted mitigated negative declaration. In the facts of San Mateo Gardens, the District proposed to modify a previously approved 2006 master plan calling for the demolition of up to 16 buildings and the renovation of several others at the campus. It later adopted an addendum to address the modifications to the master plan which included the removal of a portion of the gardens surrounding a building newly designated for demolition and the renovation of two other buildings that were previously slated for demolition.

First, the appellate court applied the substantial evidence test to review the agency’s decision to rely upon the prior mitigated negative declaration and use CEQA’s subsequent review provisions. The court found there was sufficient evidence to support the lead agency’s decision, because the project’s changes did not affect the 2006 decision and MND to demolish the other 14 buildings nor the previously established mitigation measures. Thus, the agency’s determination that there was continuing utility to the 2006 decision and related environmental analysis was proper.

Moving to the second question, however, the appellate court found the use of an addendum was inadequate under CEQA. Given the agency’s reliance upon a mitigated negative declaration in the first instance, the court held that the use of an addendum was improper when “the proposed modification may produce a significant environmental effect that had not previously been studied.” Based upon the testimony of students and faculty about the aesthetic impacts on the campus gardens, the appellate court concluded there was sufficient evidence to support a fair argument of a new aesthetic impact not previously analyzed and set aside the use of an addendum. The court, thus, affirmed the lower court judgment in favor of the petitioner.  But, rather than directing the agency to prepare an EIR, the court concluded that the agency could “choose to prepare a subsequent MND if it determines that the possibly significant environmental effects will ‘be reduced to insignificance’ through the implementation of mitigation measures.”

 E.            Functional Equivalent Documents

 Living Rivers Council v. State Water Resources Board (September 28, 2017) 2017 Cal. App. LEXIS 854.

In 2010, the State Water Resources Control Board (the “SWRCB”) approved a policy to maintain instream flows in specified Northern California coastal streams. In compliance with its certified regulatory program pursuant to CEQA, SWRCB certified a substitute environmental document (“SED”) to analyze the environmental impacts of the program. The decision was challenged by petitioners for failure to comply with CEQA, where the trial court rejected most of petitioners’ CEQA claims, but finding that the SED failed to disclose: (1) Subterranean Stream Delineations as a potential mitigation measure for increased groundwater pumping that would result from the program; and (2) the likelihood that increased pumping would largely avoid further CEQA review since SWRCB lacked permitting authority over percolating groundwater and many local jurisdictions lacked any permitting requirements. In response to the writ issued by the court, SWRCB prepared a Revised SED to address the issues identified by the court. In late 2013, SWRCB certified the Revised SED, adopted new CEQA findings and a Statement of Overriding Considerations, and readopted the policy.

Petitioners again filed suit, challenging the adequacy of the Revised SED’s analysis of impacts from increased groundwater pumping and the Board’s decision not to adopt the Subterranean Stream Delineations as a mitigation measure. The trial court rejected both claims and petitioners appealed. The First District Court of Appeal affirmed. First, petitioners claimed the analysis of groundwater pumping impacts was inadequate, because they asserted that SWRCB’s analysis was conflicting because it found the impacts both significant and “uncertain or unlikely.” The court rejected the claim, reasoning that the analysis in the Revised SED sufficiently explained “in some detail” the logistical challenges, groundwater availability issues, and the lack of connectivity involved in evaluating the potential effects of groundwater pumping.  Regarding petitioners’ claim that SWRCB improperly rejected the Subterranean Stream Delineations as a mitigation measure, the court also held in favor of SWRCB. It reasoned that it was within SWRCB’s discretion to reject a potential mitigation measure as infeasible, since it found that: (1) the measure would have only a limited impact within certain mapped areas; (2) the measure would require additional field review to implement and would likely take several years and millions of dollars to complete; (3) there was a high risk of legal challenge if the measure was formally adopted as policy; and (4) SWRCB already had the authority to address impacts from increased groundwater pumping.

 Pesticide Action Network North America v. California Dept. of Pesticide Regulation (September 19, 2017) 2017 Cal. App. LEXIS 803.

The Department of Pesticide Regulation (the “Department”) approved amended labels for two previously registered pesticides, which allowed both to be used on additional crops and one to also be used in increased quantities. The Department also prepared an environmental document that found that there were no significant environmental effects that could not be mitigated. Pesticide Action Network North America (“PANNA”) filed a petition for writ of mandate asserting several violations of CEQA, including: (1) an abuse of discretion for finding no significant environmental effects; (2) failure to analyze direct, indirect and cumulative impacts of the new labels; (3) failed to address proper baseline conditions; and (4) failure to analyze project alternatives. The trial court held in favor of the Department and PANNA appealed.

Addressing the standard of review, the appellate court held that despite the Department’s use of a certified regulatory program as an alternative to CEQA compliance, the use of that alternative does not excuse the Department from ensuring that its process complies with the substantive portions of CEQA. Applying this more substantive compliance standard, the court found the Department violated CEQA because it failed to address any feasible alternatives to the proposed new uses for the previously registered pesticides. Regarding the analysis of potentially significant effects, the court held that the fair argument standard applied to the Department’s evaluation of impacts, and based on the information that could be found in the record, the Department was obligated to prepare a much more robust analysis and evidentiary support for its conclusions than the record showed. The court also found that the Department failed to provide adequate baseline information, concluding that the substantive standards of CEQA necessitate the identification of a proper baseline to allow the public to be able “to ascertain the significant effects of a proposed project.” The court next held that the Department’s failure to evaluate cumulative impacts violated CEQA, reasoning that even though neither the CEQA statutes nor the certified regulatory program documentation refer to a cumulative analysis, case law evaluating other certified regulatory programs shows that such an analysis is “an integral part of a program’s evaluation process.” Finally, the court found that due to the deficiencies already identified, recirculation was required to allow for meaningful public comment on its decision, and directed the superior court to issue a writ of mandate directing the Department to rescind its approval of the amended labels.

 F.            Environmental Impact Reports

 Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677.

The North Coast Rail Authority (“NCRA”) prepared an Environmental Impact Report (“EIR”) in support of its decision to improve a dilapidated section of an existing rail line and resume freight service on the rail line. In 2011, the petitioners filed suit challenging the adequacy of the EIR. In response, NCRA defended the challenge arguing that despite completion of the environmental document, CEQA did not apply because the law was preempted by the federal Interstate Commerce Commission Termination Act of 1995 (“ICCTA”) for projects like that proposed by the NCRA. Thus, NCRA argued, the case should be dismissed because CEQA compliance is not actually required. The trial court entered judgment in favor of the NCRA and the appellate court affirmed. The California Supreme Court granted the petitioners’ petition for review regarding the question of preemption.

The California Supreme Court held that the ICCTA did not preempt the application of CEQA to the project. It reasoned that there was a distinction between the intersection of the domains of federal and state regulation and the self-governance of a sovereign state within our federal system. Here, the court concluded that the state was acting in the role of a private owner that can apply its own means of internal governance, so long as it does not conflict with the ICCTA or the role of other federal regulatory agencies. Thus, relying on U.S. Supreme Court case law establishing the manner of interpreting the preemptive nature of federal statutes, the court applied the rule that the statute must include “unmistakably clear language” to overcome the presumption that Congress did not wish to impede the state’s exercise of its own internal, sovereign concerns. Applying these principles to the ICCTA, the court held nothing in the statutory language of the ICCTA expressly preempts the state from adopting laws that govern its own process for making land use decisions, so long as those actions remain within “a regulatory hole which owners are free to exploit to their own advantage” under the ICCTA.

Cleveland Nat’l Forest Foundation v. San Diego Association of Governments (2017) 3 Cal.5th 497.

In a case brought by the Cleveland National Forest Foundation (the “Foundation”) against the San Diego Association of Governments’ (“SANDAG”) 2011 approval of its 2050 Regional Transportation Plan / Sustainable Communities Strategy (“RTP/SCS”), the issue before the California Supreme Court was whether SANDAG adequately analyzed greenhouse gas (“GHG”) emissions and climate change impacts as expressed in the Governor Schwarzenegger’s Executive Order setting a GHG emissions reductions goal of 80 percent below 1990 levels by 2050. In its EIR, SANDAG projected that under the plan GHG emissions will fall through 2020, but rise on an upward trajectory through 2050. The analysis did not explicitly project consistency with the goals established in the executive order.

The California Supreme Court, in a 6-1 decision, held that SANDAG was not required to explicitly analyze consistency with the 2050 goal in the executive order. The majority reasoned that although impacts resulting from GHG emissions in 2050 call for an analysis that “reasonably describe[s] the nature and magnitude of the adverse effect,” SANDAG was not legally required to use of the 2050 GHG reduction target, because the executive order is insufficient to create a binding effect on SANDAG’s preparation of an EIR. It further found the EIR’s discussion and analysis adopted by SANDAG was sufficient under CEQA, because it adequately described the contextual significance of the executive order and thoroughly explained why the 2050 goal was not used as a significance threshold, thus meeting its burden to “adequately inform the public and decision makers, who may not be previously familiar with the details of the project.” However, though the majority found the analysis was adequate when it was prepared in 2011, the court also cautioned agencies against concluding that this case could serve as a template for future EIRs, noting that as more and better data become available future, analyses will likely need to improve and account for the “additional certainty about the regulatory environment, including future projections of renewable energy, building energy efficiency, water conservation programs, and solid waste diversion.”

Poet, LLC v. State Air Resources Board (2017) 12 Cal.App.5th 52.

In 2013, the Fifth District Court of Appeal issued a writ of mandate compelling CARB to revise its environmental document in support of its 2009 adoption of the Low Carbon Fuel Standards (“LCFS”) to ensure compliance with CEQA. (See POET, LLC v. State Air Resources Board (2013) 218 Cal.App.4th 681.) After CARB adopted the revised environmental document, Poet, LLC (“Poet”), challenged whether the analysis adequately evaluated the project’s impacts on biodiesel consumption and the related increases in NOx emissions that would result. Specifically, Poet challenged CARB’s use of a 2014 NOx emissions baseline to evaluate the impacts of the regulations. CARB argued the 2014 baseline was appropriate under these circumstances, because the changes in biodiesel use and technology in the years after the 2009 LCFS adoption, and the modified LCFS regulations and new Alternative Diesel Fuel (“ADF”) regulations adopted in 2015, made it “impossible to determine what portion of the increase in use is attributable to the original LCFS,” and, thus, would not yield any environmentally meaningful information.

The appellate court was unpersuaded and held that CARB was required to set the baseline at 2009 levels. It reasoned that CEQA’s requirement that environmental review must consider “the whole of the action,” as well as the explicit requirements under the writ of mandate, necessitated that the analysis consider not only the original LCFS regulations, but also the 2015 LCFS and ADF regulations, in order to fully inform the decision makers and the public of any significant environmental impacts of their adoption. The court then issued a revised writ directing CARB to freeze into place the 2017 standards for diesel fuel and its substitutes adopted under the 2015 LCFS until a CEQA-compliant environmental document using the proper baseline is completed.

Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918.

Petitioners sued the City of Newport Beach over the approval of a residential and commercial project on one quarter of a 400-acre, largely undeveloped coastal property.  The petitioners objected to the City’s EIR, arguing it failed to identify potential impacts to “environmentally sensitive habitat areas” (“ESHA”), defined by the California Coastal Act, as a result of the project. The Coastal Commission had not yet determined whether ESHAs were present at the site and the site was explicitly excluded from the City’s coastal land use plan. Petitioners also challenged the project on general plan consistency grounds, asserting that the County had failed to adequately “work with” the Coastal Commission to identify wetlands and habitats. The appellate court held that the City was not required to speculate as to the presence of ESHAs at the site in its EIR, because it is a legal conclusion to be made by the Coastal Commission. Instead, the City’s EIR analysis was sufficient because it included all of the necessary data and analysis regarding biological resources and habitat. The court also found the project was consistent with the City’s general plan because the City could work with the Commission post-approval when it obtains the necessary coastal development permit. Petitioners appealed and the California Supreme Court granted the petition for review.

The California Supreme Court reversed. It held that CEQA’s requirement to concurrently integrate CEQA compliance with other related review procedures “required by law or by local practice” (CEQA Guidelines §15080), obligated the City to include at least some analysis of the impacts to known and potential ESHAs present on the site. It found the City’s reasoning for deferring the analysis was not persuasive, given the “ample evidence that ESHA are present on Banning Ranch.” As for the general plan consistency claim, the court decided it need not address the issue, holding it was unnecessary as sufficient relief was already granted under CEQA.

Residents Against Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941.

Riverside County approved a specific plan and related regulations for a mixed-use project located on 200 acres. The specific plan, as modified by the Board of Supervisors prior to its approval, included seven planning areas with different allocations of allowed land uses. The EIR analyzed a project consisting of eight planning areas with different land use allocations across the project site than the adopted specific plan. Among other commenters, the air district and a nearby city both suggested mitigation measures to reduce air quality impacts in comments on the Draft EIR. Additional noise mitigation measures were also proposed during the final hearing before the Board. The Final EIR included responses to comments, including those of the air district and nearby city, but as to those comments concluded that the proposed mitigation measures were infeasible. The petitioners filed suit and the trial court denied the claims. The petitioners appealed.

The appellate court denied the appeal, rejecting the arguments of multiple CEQA claims, finding: (1) there were no procedural errors concerning the County’s practice of passing a motion of intent to approve and the later final approval; (2) EIR recirculation was not required because the decision not to recirculate due to the changes in the project was supported by substantial evidence; (3) errors in the notice of determination were not prejudicial; (4) there was sufficient evidence in the record to support rejection of suggested mitigation measures; and (5) the County had no duty to formally respond to late comments.

G.            Litigation

Bridges v. Mt. San Jacinto Community College Dist. (2017) 14 Cal.App.5th 104.

The Mt. San Jacinto Community College District (the “District”), considered whether to enter into a land purchase agreement with a regional park district for property that the District was considering for a potential new campus (the “Agreement”). The Agreement was conditioned upon the completion of an Environmental Impact Report (“EIR”). The District Board’s consideration of the Agreement was added to the Board agenda, and at the meeting trustees discussed the future use of the property as a new campus. No objections were presented and the Agreement was approved. The petitioners later filed suit, arguing the District violated CEQA by failing to: (1) prepare an EIR prior to approval of the agreement; and (2) adopt local CEQA implementing procedures. The trial court ruled in favor of the District on both claims and the petitioners appealed.

The Fourth District Court of Appeal affirmed the trial court decision on both procedural and substantive grounds. First, the court held that petitioners failed to exhaust their administrative remedies when they failed to object to the District’s approval of the Agreement at the Board meeting. It held that petitioners bore the burden of demonstrating exhaustion and failed to provide substantial evidence in support their position of lack of notice. The court reasoned that the District’s Board meeting to take action to approve the Agreement provided constructive notice to petitioners, and absent evidence to the contrary, the court must presume the District complied with the Brown Act’s 72-hour agenda notice requirements. Consequently, it found that petitioners had an opportunity to raise their objections, but failed to take advantage of it. Thus, the CEQA claims were procedurally barred.

Moving to the substantive claims, the court rejected petitioners’ claim that an EIR was necessary prior to entering into the Agreement. It reasoned that the Agreement provided for conditions that required CEQA compliance prior to opening escrow to formally purchase the property. Petitioners argued the District had already committed itself to “a definite course of action” similar to Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, citing the District’s use of a consultant prepare a powerpoint presentation describing the future use of the site as the “Wildomar Campus,” and statements in the college newsletter of the District’s hopes to develop STEM program facilities at the new location. The court rejected these arguments, reasoning they fall far short of commitments and are nothing more than “discussion about the possibility of building a campus” at the site. The court also rejected claims that the District failed to adopt CEQA implementing procedures, finding that Public Resources Code section 21082 authorizes the District to utilize the county’s CEQA procedures where the property is located and is not obligated to adopt its own.

Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883.

The Highway 68 Coalition (the “Coalition”), filed a petition for writ of mandate challenging the County’s approval of a shopping center project citing various violations of CEQA. The trial court denied the petition on all CEQA claims, but issued an order of interlocutory remand to allow the County to determine whether the project is consistent with a general plan policy requiring projects to have a long-term, sustainable water supply. On remand, the County complied and the trial court subsequently denied the writ and entered judgment in favor of the County and the applicant. The Coalition appealed, claiming, among other things not addressed in the published portion of the opinion, that (1) the inadequacy of the general plan consistency analysis violated CEQA; and (2) the interlocutory remand was improper and violated the Coalition procedural due process rights. The Sixth District Court of Appeal rejected the claims, finding that the general plan consistency determination was a single, discrete, non-CEQA issue necessary to be clarified before the county’s approval could be upheld, making it a proper use of the interlocutory remand procedures. The court reasoned that because CEQA Guidelines section 15125(d) only requires an environmental document to identify and discuss inconsistencies with plans, no discussion in the EIR of a project’s consistency with the general plan was required. Thus, the mandate procedures provided under Public Resources Code section 21168.9 were inapplicable, and the court was free to order an interlocutory remand of the general plan consistency issue under its traditional mandamus powers.

The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993.

Urban Wildlands Group, Inc. (“UWG”) filed a petition for writ of mandate challenging the City’s use of a California Environmental Quality Act (“CEQA”) exemption for the replacement of street lamp bulbs with new light emitting diodes (“LEDs”). The City certified the Administrative Record, and UWG was ordered to lodge the administrative record pursuant to an agreement. UWG filed its opening and reply briefs, and the City filed its opposition brief, but UWG’s attorney did not lodge the administrative record. The court found in favor of the City, finding that UWG could not support its arguments because the administrative record was not lodged with the court. UWG subsequently filed a motion to vacate the judgment arguing they were entitled to relief under both the discretionary and mandatory relief provisions in Code of Civil Procedure section 473. The court granted relief under the mandatory provisions due to UWG’s attorney’s affidavit attesting to a “mistake, inadvertence, surprise, or neglect resulting in a default or dismissal.” The City appealed, and the appellate court reversed. Disapproving of prior case law which took a more expansive meaning of “default judgment” (In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438; Avila v. Chula (1997) 57 Cal.App.4th 860), the appellate court held that the trial court ruling was not “a default, default judgment, or dismissal,” because the failure to lodge the administrative record was akin to the failure to provide sufficient supporting evidence to meets its burden of proof in a trial on the merits.

Friends of Outlet Creek v. Mendocino County Air Quality Management District (2017) 11 Cal.App.5th 1235.

The operator of a proposed asphalt plant, after receiving approval from the Mendocino County Board of Supervisors, applied for an Authority to Construct permit (“ATC”) from the District. The District air pollution control officer relied on the County’s prior environmental review to conclude that issuance of the ATC did not require any additional environmental review to comply with CEQA. The petitioner filed an administrative appeal to the District Board challenging the officer’s decision. The District Board denied the appeal, citing the prior land use decisions and environmental review, and the petitioner filed suit on the ground that the District did not comply with CEQA. The District demurred, arguing the petitioner was only entitled to a claim under Health & Safety Code section 40864, which they maintained did not support a CEQA challenge. The trial court sustained the demurrer and the petitioner appealed.

The First District Court of Appeal overruled the trial court. It found no case law supporting the District’s position that only Health & Safety Code section 40864 can be invoked to challenge the issuance of an air quality permit. Instead, it reasoned that not only do several cases support a petitioner’s right to challenge ATCs on CEQA grounds, but as an administrative proceeding, a suit challenging the ATC issuance proceeds under Code of Civil Procedure section 1094.5. Thus, the appellate court held that the petitioner could advance claims against the District under Health & Safety Code section 40864, CEQA, or both. The District also raised an additional defense—that the ATC issuance was ministerial—but the court held that the record was too lacking to evaluate the District’s determination and held that it could not dismiss the appeal on that basis.

Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202.

Petitioners challenged the Department’s issuance of permits for 214 new oil wells in Kern County, arguing that the Division of Oil, Gas, and Geothermal Resources (“DOGGR”) failed to comply with CEQA because no CEQA exemption applied to the permit and DOGGR did not conduct any other environmental review. DOGGR demurred, arguing the claims were res judicata, or barred, as a result of a similar prior action filed in Alameda County. The Department argued that the Alameda County action was a final judgment on the merits which rejected similar claims against DOGGR’s issuance of oil well permits. Petitioners argued the prior decision was found to be moot due to the passage of Senate Bill 4 in 2013, and was not on the merits. The trial court agreed with the Department and sustained the demurrer, and petitioners appealed. The Fifth District Court of Appeal ruled in favor of petitioners. The Department argued that the trial court had reached the merits of the case when it analyzed relevant provisions with Senate Bill 4 which required DOGGR to issue permits within a certain time period when the permit applications met the statutory conditions for issuance. The Department argued that this analysis was on the merits, because it showed how the new process rendered the claims moot. The court rejected the argument, however, reasoning that the review was limited to supporting the court’s position that the prior process was changing and, thus, petitioner’s arguments about past practices were no longer relevant to rule on future activities. Therefore, the appellate court remanded the case back to the trial court for further proceedings.

 If you have any questions about these court decisions, contact William Abbott, Diane Kindermann or Daniel Cucchi. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc. 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.

San Bruno Committee for Economic Justice v. City of San Bruno 2017 Cal.App. LEXIS 807

California land use nerds know well the origin of the right of initiative and referendum. A function of the national reform movement at the beginning of the twentieth century, California voters took matters into their own hands and inserted the right of initiative and referendum into the California Constitution.   It has been used for good and bad depending upon one’s perspective. When the Legislature proved inept at addressing Coastal zone planning, the voters stepped in and adopted coastal regulations.  When the Legislature failed to deal with property tax reform, Howard Jarvis and Paul Gann upended property tax law.  Sacramento utility voters closed the local nuclear reactor. Development project approvals have been set aside by the voters or on rare occasion, streamlined. The courts have stayed on the sideline, accepting the responsibility to protect the exercise of these constitutional rights.

Not every governmental action earns a spot before the voters: only legislative decisions.  In the land use world, that means general plans, area plans, specific plans and the like are fair game. Quasi-adjudicatory decisions such as tentative maps and use permits are off limits.  Because agency action takes many forms, there is room to debate the extent to which these constitutional powers apply to other government actions.  As a recent case on point, the City of San Bruno sold property to a developer to develop a hotel project. The city had previously approved a specific plan for the site for the purpose of encouraging redevelopment. Following City Council approval of a resolution approving the sale of the land, local voters with the support of a labor union (the latter perhaps seeking a labor agreement), qualified a referendum measure.  Given the particular history of the project and the prior planning efforts, the trial and appellate court concluded that the property sale was not a legislative act, but was an administrative act in furtherance of the prior legislative actions. The court’s holding is not to suggest that every property sale is immune from a referendum, but when the transaction is in furtherance of documented planning efforts, it may be protected.

Which brings me to the 2017 legislative session.  Apparently offended that the initiative process may be used to facilitate a land use decision, AB 890  forecloses attempts by voters to approve certain general plan amendments and zoning changes (for example, converting discretionary approvals into ministerial approvals or intensifying development intensity) by initiative.   Development agreements could similarly only be approved by the city council or board of supervisors.  There are a number of exceptions but those require the Court to determine what the “primary purpose” is of the initiative effort, which as many attorneys know, is a challenge for a reviewing court to ascertain given the lack of formal legislative history.  Given that the legislature is touting its efforts this year to break the housing backlog, this bill which recognizes that ability of voters to turn projects down or make development more difficult but creates barriers for voters to take the initiative (so to speak) is backwards, plain and simple.  To paraphrase Animal Farm, this legislation embraces the idea that some voter ideas are more equal than others.  If this becomes law, the courts will have to go back to the origins of initiative law in California and ask itself: is this what the voters had mind in 1911? That the legislature has the power to selectively dictate when the voters can act on their own?  Personally, my money is on the voter’s side.

Either way, let the Governor know what you think.

Glen C. Hansen of Abbott & Kindermann, Inc., will present an update on recent developments in resolving easement, boundary, and implied public dedication disputes in California. This is an advanced class aimed primarily at land surveyors, civil engineers, attorneys, and property owners. This intense, three-hour class examines recent case law about:

  • Creating, Interpreting, and Terminating Easements
  • Accommodating Neighbors vs. Creating Prescriptive Easements
  • Establishing Equitable Easements
  • When Implied Dedications of Public Easements Exist, and When They Don’t.

MCLE and American Planning Association continuing education credits offered. (Pending)

MCLE 3.0       CM 3.0

Glen C. Hansen is Senior Counsel at Abbott & Kindermann, Inc., and a long-time practitioner in real estate and land use law.

Cost $85.00

Location and Time

Roseville – October 13, 2017, 8:00 a.m.-11:45 a.m.  (To Register CLICK HERE)

Holiday Inn Express – Roseville, 1398 East Roseville Parkway, Roseville, CA 95661

Registration:   8:00 a.m.

Class:              8:30 a.m. – 11:45 a.m.

Break:             10:00 a.m. – 10:15 a.m.

Glen C. Hansen of Abbott & Kindermann, Inc., will present an update on recent developments in resolving easement, boundary, and implied public dedication disputes in California. This is an advanced class aimed primarily at land surveyors, civil engineers, attorneys, and property owners. This intense, three-hour class examines recent case law about:

  • Creating, Interpreting, and Terminating Easements
  • Accommodating Neighbors vs. Creating Prescriptive Easements
  • Establishing Equitable Easements
  • When Implied Dedications of Public Easements Exist, and When They Don’t.

MCLE and American Planning Association continuing education credits offered. (Pending)

MCLE 3.0       CM 3.0

Glen C. Hansen is Senior Counsel at Abbott & Kindermann, Inc., and a long-time practitioner in real estate and land use law.

Cost $85.00

Location and Time

Roseville – October 13, 2017, 8:00 a.m.-11:45 a.m.  (To Register CLICK HERE)

Holiday Inn Express – Roseville, 1398 East Roseville Parkway, Roseville, CA 95661

Registration:   8:00 a.m.

Class:              8:30 a.m. – 11:45 a.m.

Break:             10:00 a.m. – 10:15 a.m.

PRIVATE LAND USE SETTLEMENTS: The potential fallout when a private side settlement agreement fails to settle your legal woes.

In 2010, the County of San Benito granted a conditional use permit for a solar project to the Panoche Valley Solar, LLC.  The project was a 3,200 acre, 399-megawatt solar electric generation facility involving up to 4 million solar panels in the Panoche Valley, a semiarid open space and range land west of Interstate 5 in San Benito County.  The approved project would have become one of the largest solar farms in the world and could have powered over 100,000 homes.  The project would have given the County $5.4 million in sales tax from the purchase of the solar panels.  In August 2011, the San Benito County Superior Court denied a legal challenge under the California Environmental Quality Act and the Williamson Act.  The trial court’s judgment was affirmed by the Court of Appeal (Save Panoche Valley v. San Benito County (2013) 217 Cal.App.4th 503.)

In 2014, the project applicant sought to modify the conditional use permit.  The revised project was for a 2,506-acre, 247-megawatt solar generation facility, including an additional 24,176 acres for habitat conservation (which is more than the original project.)  The County expected to receive approximately $2.5 million in sales tax revenue from that revised project.  The County approved a revised use permit and certified the Final Supplemental Environmental Impact Report (SEIR) in 2015.  The SEIR addressed the project’s impact and mitigation measures for the certain animal and plant species, including the San Joaquin kit fox, giant kangaroo rat, and blunt-nosed leopard lizard, and numerous bird species.  However, the Sierra Club and Santa Clara Valley Audubon Society again filed a writ of mandate action and challenged the Final SEIR. The trial court rejected that challenge as well.  This year, in an unpublished opinion, the Court of Appeal for the Sixth District affirmed the trial court’s judgment.  (Sierra Club v. County of San Benito (March 22, 2017, case no. H042915), unreported decision, 2017 Cal.App.Unpub.LEXIS 1987.)

The project construction already began in the Fall of 2016 and is scheduled to be completed in 2018.  But those two fully litigated lawsuits, and that ongoing construction, are not the end of the story.

In a special public hearing about the project’s statute before the County Board of Supervisors on April 18, 2017 (less than a month after they prevailed on the second appeal), one Supervisor asked if the rumor that the project was being downsized was true.  An official of ConEdison Development, the company that acquired the project admitted that the office of Governor Brown wanted to reduce the size of the project.  However, the ConEdison official also stated:  “We have all of our permits for the project signed and we are building 100 percent of the Panoche Valley Solar project at this time.”  That led one County resident to exclaim to the Board of Supervisors: “…the rat people went to the governor to cut the project in half. If you guys take that sitting down you’re idiots because it affects every project in this county.”

But the rumor proved true.  In July 2017, ConEdison reached an agreement with Sierra Club, Santa Clara Valley Audubon Society, Defenders of Wildlife and the California State Department of Fish and Wildlife that dramatically reduced the project to 130 megawatts, about 1/3 the size of the original project.  According to a ConEdison official, the company signed the agreement because, even though the environmental groups had repeatedly lost in court, they purportedly still had cases they could appeal that could have slowed or killed the project.  The environmental groups are hailing the agreement as a “win-win.”  A Sierra Club spokesperson stated:  “As we work toward lowering carbon pollution, it’s critical that new clean energy development is not done at the expense of endangered animals and their habitat.”

The agreement essentially shifts 100-117 megawatts of the Panoche Valley project to another ConEdison solar project that is proposed for Imperial County in Southern California.  Not surprisingly, the environmental groups have indicated that they will not oppose that other project.  The Sierra Club announced: “Initially, 247 MW of solar generation was planned for development in the Panoche Valley, but now approximately 100 MW is instead proposed for development at a site in Imperial County, California. Development at the Imperial County site will have less impact on threatened and endangered species and their habitat. The relocation of that portion of the project is subject to approval by Southern California Edison (SCE) and the California Public Utilities Commission (CPUC). The settlement will also resolve several legal challenges commenced against the project by the Environmental Groups.”

The County Board of Supervisors, which approved the original and then the modified project, and which was the prevailing party in both lawsuits, was never included in those settlement talks or made a party to that agreement.  The Supervisors are furious because the County will lose out on millions of dollars in taxes that they were promised by the project developer.  According to the County’s clerk-auditor-recorder, the County will not be receiving any sales tax from the project now because ConEdison had purchased the panels in a way that made San Francisco the recipient of the sales tax rather than San Benito County. One Supervisor said:  “I can barely speak because I’m so angry.  This would have generated much-needed revenue. All you have to do is drive down there and see the conditions of our roads. We have minimal amounts of public safety. This was going to be a big thing, but the rug was pulled out from under us. And it was all done in secret.”  Another Supervisor exclaimed:  “[the developer] basically raped and pillaged us.”

The County is now considering filing a lawsuit against ConEdison, on the grounds that the company violated the project’s original 2010 development agreement with the county.  An official with PV2 Energy, the company that owned the project from 2011 to 2015, and then sold the project to ConEdison, said:  “By diverting half of the project’s value to a different project outside the county, ConEdison is clearly violating their commitments to the county and to PV2 Energy.” As to the sale tax issue, a ConEdison official said:  “We’re looking into that.  We understand we have obligations under the development agreement. We’re going to live up to them.” In short, there are still unresolved legal issues, even as the project is being built.

So here is an interesting legal question:  If the new settlement agreement constitutes a breach of the original development agreement, could the State of California be liable to the County of San Benito for the torts of intentional interference with contractual relations or intentional interference with prospective economic advantage?  The Director of DFW appears to concede such involvement:  “Con Edison Development’s leadership and the environmental groups deserve a lot of credit for opening a dialogue with the Department and asking whether it was better to negotiate and collaborate than litigate.”

This cautionary tale is not over yet.

Glen Hansen is a 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.