Welcome to Abbott & Kindermann, Inc.’s May Environmental Action News. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2021.

  1. PREVIOUS MONTH’S UPDATE

To read the March 2021 Environmental Action News post, click here:  https://blog.aklandlaw.com/2021/03/articles/ak-news/march-environmental-action-news/

  1. SUPREME COURT

There is one case pending at the California Supreme Court. The case and the Court’s summary is as follows:

County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate.  This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project?  (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?

  1. UPDATE

A. WATER RIGHTS AND SUPPLY

  1. Santa Ana Regional Water Quality Control Board Approves Permit For Huntington Beach Desalinization Project In 4-3 Vote.

In late April of 2021, the Santa Ana Regional Water Quality Control Board (“Board”) approved the discharge permit for Poseidon Water’s proposed Huntington Beach Desalinization Project. Against Poseidon’s objections, the Board included a prohibition on plant operation until the Board has signed off on 60% of design plans, cost estimates, and timelines for mitigation work. Environmental requirements include the dredging of an ocean inlet to the Bolsa Chica wetlands, restoration of Bolsa Chica cordgrass marsh and creation of artificial reef habitat off the Palos Verdes Peninsula. Some critics have questioned the need for the project because the projected cost of water from Poseidon’s plant is twice as expensive as the current imported supplies. Before any water leaves the ocean, Poseidon still needs a construction permit from the California Coastal Commission to build on the proposed site and a binding deal with a public agency to buy 50 million gallons a day of purified seawater.

For more information see:

https://www.latimes.com/environment/story/2021-04-29/poseidon-wins-key-seawater-desalination-permit

  1. California Water Futures Are Trading Daily On The Chicago Mercantile Exchange.

California water futures began trading on the Chicago Mercantile Exchange in December of 2020 and are now traded daily. Water futures are distinct from other commodity futures because they do not increase the supply of water nor can the purchase of water futures facilitate moving water between locations. Proponents say that the purpose is to allow farmers to buy water futures to hedge against water price hikes that could occur in drought conditions. Supporters also claim that the market will even out supply and demand problems that accompany California’s increasing scarcity of freshwater. Opponents worry that trading water futures sets a dangerous precedent by allowing financial markets to determine the price of water, a product with no alternatives when it comes to agriculture. The impacts from the decision to trade water futures will start to become apparent with increased trading.

For more information see:

https://news.miami.edu/stories/2021/03/should-water-be-traded-as-a-commodity.html

https://www.latimes.com/business/story/2021-01-03/wall-street-california-water-futures

B. WATER QUALITY

  1. Clarke v. Pac. Gas & Elec. Co., 2021 U.S. Dist. LEXIS 77731 (N.D. Cal. April 22, 2021).

The district court denied Pacific Gas and Electric’s (“PG&E”) motion to dismiss plaintiff Dan Clark’s Clean Water Act (“CWA”) claim. Clarke alleged that PG&E and its predecessors left behind hazardous waste created by the Cannery manufactured gas plant (“Cannery MGP”) along the northern waterfront of San Francisco. PG&E’s motion to dismiss alleged that Clarke’s claim is barred by the statute of limitations and is insufficiently pleaded to establish subject matter jurisdiction because Clarke (i) failed to allege an ongoing discharge by a “person”; (ii) failed to allege on ongoing discharge from a “point source”; (iii) and did not provide adequate notice of the claim. In a prior proceeding, the Court denied PG&E’s motion to dismiss Clarke’s Resource Conservation and Recovery Act claims and granted PG&E’s motion to dismiss Clarke’s claims under the CWA with leave to amend. Clarke’s amended complaint alleged a series of discrete discharges into the Bay including discharges within the five-year statute of limitations. Although PG&E argued that the discharges in question from Cannery MGP constituted one single CWA violation that occurred more than five years before the claim, the Court found that the complaint contained sufficient allegations to plausibly show that each discharge could each constitute a separate CWA violation. The Court also found that Clarke properly alleged discharges were by a “person” (PG&E), from a “point source” (Cannery MGP), and that he provided adequate notice of the CWA claim in his Notice of Intent to Sue.

  1. Proposed “California Clean Water Act” (AB 377) Would Prohibit Water Quality Control Plans From Including Compliance Schedules In Water Quality Permits.

The “California Clean Water Act” (“AB 377”), introduced by Assemblymember Rivas in February 2021, would prohibit water quality control plans from including schedules for entities to come into compliance with current standards starting on January 1, 2030. AB 377 would also prohibit the State Water Resources Control Board (“Water Board”) from issuing compliance schedules (aside from those for physical construction time) for new or more stringent water quality standards adopted after January 1, 2021. The bill’s purpose is to eliminate all impaired waterways and make all waters in California suitable for drinking, swimming, and fishing by 2050. AB 377 additionally requires the Water Board to form an Impaired Waterways Enforcement Program by January 1, 2030, which would enforce any remaining water quality permit violations that cause or contribute to an exceedance of a water quality standard. As currently written, this bill will have significant impacts on entities regulated by National Pollutant Discharge Elimination System (“NPDES”) permits, Waste Discharge Requirements (“WDRs”), or waivers of WDRs. On May 20, 2021, the Assembly Appropriations Committee voted to hold the bill on the suspense file as a two-year bill.

For more information see:

https://www.jdsupra.com/legalnews/proposed-california-clean-water-act-ab-7917154/

  1. EPA Proposes Delay To Effective Date Of The National Primary Drinking Water Regulations: Lead and Copper Rule Revisions.

The Environmental Protection Agency (“EPA”) proposed to delay the effective date of the National Primary Drinking Water Regulations: Lead and Copper Rule Revisions (“LCRR”) until December 16, 2021. The EPA also proposed a delay of the LCRR compliance date from January 16, 2024, to September 16, 2024. The proposed delay comes after a January 2021 executive order by President Biden entitled “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (86 FR 7037, January 25, 2021) directing heads of Federal agencies to review certain regulations, including the LCRR. Additionally, the LCRR has been challenged in court by the Natural Resources Defense Council, Newburgh Clean Water Project, NAACP, Sierra Club, United Parents Against Lead and the Attorneys General of New York, California, Illinois, Maryland, Minnesota, New Jersey, Oregon, Pennsylvania, Wisconsin, and the District of Columbia. The stated improvements under the LCRR include using science-based testing protocols to find more sources of lead in drinking water, establishing a trigger level to jumpstart mitigation earlier and in more communities, driving more and complete lead service line replacements, requiring testing in schools and childcare facilities, and requiring water systems to identify and make public the locations of lead service lines.

For more information see:

https://www.regulations.gov/document/EPA-HQ-OW-2017-0300-1836

https://www.epa.gov/ground-water-and-drinking-water/revised-lead-and-copper-rule

  1. Biden Environmental Protection Agency To Review Trump Administration’s Section 401 Water Quality Certification Rule.

The Environmental Protection Agency (“EPA”) under Biden is reviewing the Trump administration’s Clean Water Act Section 401 Certification Rule (“Certification Rule”) that limited the scope of state authority over water quality certification. In January of 2021, President Biden issued Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis” (“Executive Order”) that directed all Federal agencies to review regulations promulgated under the Trump administration to determine whether they need to be revised or rescinded. To facilitate the review process, the Acting General Counsel for the EPA instructed the Department of Justice to seek stays or abeyances in the five lawsuits currently facing the EPA over the new rule. The Certification Rule limits (i) the timeframe for certification analysis and decisions, (ii) the scope of a section 401 certification to only discharges as opposed to the broader term “activities”, and (iii) the ability of states and tribes to impose requirements only on point source discharges into the Waters of the United States.

For more information see:

https://eelp.law.harvard.edu/2019/10/section-401-water-quality-certification/

https://eelp.law.harvard.edu/2021/01/section-401-of-the-clean-water-act-from-trump-to-biden/

C. WETLANDS

  1. The Ballona Wetlands Ecological Reserve Project Moves Forward After California Department Of Fish And Wildlife Certifies Final Environmental Impact Report.

The Ballona Wetlands Ecological Reserve Project (“Project”) aims to restore the Ballona Wetlands by removing invasive plants and leftover fill from the development of Marina Del Rey, re-establish a functioning floodplain, and create natural levees for flood protection against sea level rise. The Project will also add walking paths and bike trails to make the area into more of a park. Supporters, including the director of the California Department of Fish and Wildlife (“DFW”) and groups like Friends of Ballona and Heal the Bay, say that the Project will create park space for communities without much green space and will rival Griffith Park in ecology and size. Opposition groups, like the LA Audubon Society, say the Project goes beyond restoration and will harm species that currently use the Ballona Wetlands. The Project approval by DFW has been challenged in court by the Grassroots Coalition over an allegedly incomplete environmental analysis, including the failure to include certain geotechnical issues.

For more information see:

https://www.kcrw.com/news/shows/greater-la/los-angeles-environment-ecology/ballona-wetlands-restoration

  1. Fifteen State Attorneys General Filed Amicus Brief Supporting Environmental Groups Challenging The Trump Administration’s “Navigational Waters Protection Rule.”

Led by California and Massachusetts, fifteen states filed an amicus brief in support of a coalition of environmental group’s motion for summary judgement in their lawsuit against the Environmental Protection Agency (“EPA”) over the Trump Administration’s “Navigational Waters Protection Rule” (“Rule”). The Rule narrowed the meaning of the Clean Water Act (“CWA”) term “Waters of the United States” from the Obama administration’s 2015 rule which included waters with a “significant nexus” to jurisdictional waters in the definition. The amicus brief argues that the Rule will result in significant harms to the states—especially downstream states—due to reduced nationwide water quality protection. The fifteen states also argue that the Rule is contrary to the CWA’s text, structure, and purpose to maintain and restore the integrity of the Nation’s waters.

For more information see:

https://stateimpactcenter.org/ag-actions/fifteen-ags-filed-amicus-brief-support-environmental-groups

https://oag.ca.gov/sites/default/files/Stamped%20WOTUS%20Amicus%20Brief.pdf

https://oag.ca.gov/news/press-releases/attorney-general-becerra-continues-challenge-trump-administration%E2%80%99s-unlawful

https://www.environmentallawandpolicy.com/2020/04/trump-administration-publishes-final-navigable-waters-protection-rule/

  1. Tenth Circuit Reverses Lower Court’s Ruling And Reinstates Trump Era Navigable Waters Protection Rule Redefining “Waters Of The United States” In Colorado; Rule Faces Increased Opposition Under Biden Administration.

On March 2, 2021, the Tenth Circuit rejected a federal judge’s decision to halt implementation of the Navigational Waters Protection Rule (“Rule”) in Colorado (Colorado v. United States EPA (10th Cir. 2021) 989 F.3d 874), meaning the rule is now in effect nationwide. In June of 2020, a federal judge in Colorado granted a motion made by state agencies asking for a stay in the implementation of the Rule because the conflict between Colorado’s clean water statutes and the Rule would leave portions of state waters without any permitting mechanisms. The Tenth Circuit held that Colorado failed to show it would “suffer irreparable injury” without the preliminary injunction. (Colorado, 989 F.3d at 885). The Rule became effective in all other states on June 22, 2020, although other lawsuits challenging the rule are still ongoing. The Rule was published in April of 2020 and redefined the Clean Water Act (“CWA”) term “Waters of the United States” to reduce the number of waterways and wetlands protected by the CWA. The Army Corps of Engineers and the Environmental Protection Agency (“EPA”) will review the Rule pursuant to President Biden’s Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis.” At the end of March 2021, the EPA’s Office of the Inspector General released a report finding that the EPA failed to comply with important process “milestones” when crafting the Rule.

For more information see:

https://eelp.law.harvard.edu/2017/09/defining-waters-of-the-united-states-clean-water-rule/

https://www.epa.gov/sites/production/files/2021-03/documents/_epoig_20210331-21-p-0115.pdf

D. AIR QUALITY AND CLIMATE CHANGE

  1. City of Torrance v. Southern California Edison Co. (2021) 61 Cal.App.5th 1071.

On appeal, the district court reversed the trial court’s decision and found that clean energy credits for electricity payments do not reduce the consumer’s tax base. Torrance, a charter city, imposes several utility-related taxes on its residents including taxes on telephone communication services, natural gas, water, cable television, and electricity. Edison is the investor-owned utility serving electricity customers in Torrance and is therefore required to collect the electricity users’ tax and remit all amounts collected to Torrance. The clean energy credits at issue are Industry Assistance (“IA”) credits and are part of the California Air Resource Board’s financial assistance programs for electric utility customers affected by greenhouse gas emission reduction programs such as the California Cap-and-Trade Program. The California Public Utilities Commission (“Commission”) determines the amount of the IA credit. For purposes of administrative convenience, Edison disburses the IA credit as a credit on an electricity consumer’s bill, as directed by the Commission. Under Torrance’s view, a user’s IA credit, if any, would not affect the tax base because it is unrelated to the charge for the electricity used by the consumer. Edison contends the tax base is equal to the net amount it bills electricity consumers and therefore the consumer’s electricity users’ tax base (and, ultimately, the amount of the tax) will necessarily be reduced whenever a consumer receives an IA credit.

The City of Torrance’s complaint sought declaratory relief concerning the interpretation and application of the electricity tax ordinance and asserted that Edison failed to comply with the ordinance by not collecting the proper amount of electricity users’ tax from consumers. Torrance also sought to recover the unpaid taxes, together with penalties and interest, from Edison. The trial court sustained Edison’s demurrer to Torrance’s original complaint without leave to amend and entered a judgment of dismissal. The trial court found Edison had calculated the electricity users’ tax properly and, in addition, Torrance’s claim to recover unpaid taxes from Edison (as opposed to electricity consumers) failed as a matter of law. The district court reversed and agreed with Torrance that the electricity tax ordinance cannot reasonably be construed to reduce Torrance’s electricity users’ tax base by the value of IA credits distributed by Edison. However, the district court adopted Edison’s position that Torrance cannot recover unpaid taxes from Edison and must instead amend its complaint to include electricity consumers as defendants.

  1. Twenty-One State Attorneys General Petition for Review of the Environmental Protection Agency’s Greenhouse Gas Regulation Threshold Rule.

Led by California, twenty-one state attorneys general and six local governments filed a lawsuit challenging the Environmental Protection Agency’s (“EPA”) final rule that will set a sector-by-sector threshold for the regulation of greenhouse gas (“GHG”) emissions from stationary sources under the Clean Air Act (“CAA”). The lawsuit argues that the EPA established an arbitrary test without providing adequate notice to the public and an opportunity to comment, which is not allowed under the CAA. The rule, titled “Pollutant-Specific Significant Contribution Finding for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, and Process for Determining Significance of Other New Source Performance Standards Source Categories,” states that industries that emit less than 3% of total U.S. GHG emissions, the industry cannot be regulated under the CAA. This rule would effectively remove three-quarters of the country’s GHG emitters from regulation under the CAA.

For more information see:

https://stateimpactcenter.org/ag-actions/eighteen-ags-filed-petition-review-epas-ghg-regulation-threshold

https://oag.ca.gov/system/files/attachments/press-docs/Petition%20for%20Review%20NSPS%20GHG%20significance%20filed%201-19-21.pdf

https://oag.ca.gov/news/press-releases/attorney-general-becerra-leads-challenge-trump-administration-rule-blocking

  1. Sixteen State Attorneys General Filed Comments Urging the Environmental Protection Agency To Reopen Review of Particulate Matter NAAQS.

Led by New York, sixteen state attorneys general filed comments urging the Environmental Protection Agency (“EPA”) to change its decision to leave the existing National Ambient Air Quality Standards (“NAAQS”) in place. The comments state that a significant and growing body of scientific evidence shows that the existing NAAQS are inadequately protective of public health. The comments cite three recently published scientific studies that provide further evidence of “both the immediate harms of exposure to particulate matter during a respiratory disease pandemic and the long-term cognitive impacts” of exposure to fine particulate matter (PM2.5). The comments are similar to concerns raised by comments submitted by state attorneys general in July of 2020.

For more information see:

https://stateimpactcenter.org/ag-actions/sixteen-ags-filed-comments-urging-epa-reopen-review-particulate

https://oag.ca.gov/sites/default/files/2020%2011%2020%20PM%20supplemental%20comments%20with%20studies.pdf

  1. Biden Administration Announces Greenhouse Gas Pollution Reduction Targets After Rejoining The Paris Climate Agreement.

President Biden announced new greenhouse gas (“GHG”) emission reduction targets for the year 2030 to fulfill Paris Climate Agreement goals. Principally, Biden set a goal to reach 100% carbon pollution-free electricity by the year 2035. To reach this goal, the administration proposed retrofitting power plants with carbon capture and using existing nuclear energy plants. Other goals include promoting carbon capture and new sources of hydrogen to power industrial facilities. The administration also promises significant investments in clean energy sectors, technologies to reduce emissions associated with construction, and transportation infrastructure.

For more information see:

https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/22/fact-sheet-president-biden-sets-2030-greenhouse-gas-pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-and-securing-u-s-leadership-on-clean-energy-technologies/

E. RENEWABLE ENERGY

  1. Biden Administration Initiates Review Of Energy Conservation Standards For Consumer Products.

President Biden issued Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis” (“Executive Order”), which requires the Department of Energy (“DOE”) to consider suspending, revising, or rescinding Trump-era appliance- and building-efficiency standards. President Biden instructed DOE to propose major revisions to the rule on energy conservation standards for consumer products and commercial/industrial equipment by March 2021; propose major revisions to the rule on energy conservation program appliance standards by March 2021; review DOE’s notice on energy efficiency improvements in the 2018 IECC by May 2021; and review DOE’s notice on building energy efficiency standards by May 2021. DOE has begun to publish notices in the Federal Register for proposed and final rules pursuant to the Executive Order.

The Energy Policy and Conservation Act (“Act”) directs the DOE to establish energy conservation standards for most major household appliances and many types of commercial equipment. DOE’s energy conservation program includes testing, labeling, and enacting energy conservation standards, as well as product certification and enforcement. These standards are meant to reduce energy demand and increase energy efficiency to reduce greenhouse gas emissions. DOE under the Trump Administration declined to set compliance dates for certain standards, modified other standards, and proposed changes to its process for developing standards and testing equipment. The Trump DOE additionally finalized a new rule, known as the “economic justification rule” that changes the way costs are considered during the standard development process. Previously, DOE would set standards that provide maximum energy savings and adjust them as needed to arrive at a level where costs to manufacturers and consumers could be justified. Now, DOE will simultaneously consider costs as it sets the standards. On April 12, 2021, DOE published a notice of proposed rulemaking to reverse the changes to the process rule.

For more information see:

https://eelp.law.harvard.edu/2017/09/energy-conservation-standards-for-consumer-products/

https://www.federalregister.gov/documents/2021/04/12/2021-06853/energy-conservation-program-for-appliance-standards-procedures-interpretations-and-policies-for

https://www.federalregister.gov/documents/2021/05/27/2021-10882/energy-conservation-program-energy-conservation-standards-and-test-procedures-for-ceiling-fans

https://www.federalregister.gov/documents/2021/05/26/2021-10883/energy-conservation-program-test-procedure-and-energy-conservation-standards-for-circulator-pumps

https://www.federalregister.gov/documents/2021/04/12/2021-06853/energy-conservation-program-for-appliance-standards-procedures-interpretations-and-policies-for

https://www.federalregister.gov/documents/2021/03/29/2021-05415/energy-conservation-program-test-procedure-for-room-air-conditioners

https://www.federalregister.gov/documents/2021/04/16/2021-07137/energy-conservation-program-test-procedure-for-direct-heating-equipment

https://www.federalregister.gov/documents/2021/05/20/2021-09695/energy-conservation-program-test-procedures-for-water-closets-and-urinals

https://www.federalregister.gov/documents/2021/05/19/2021-10448/energy-conservation-program-test-procedures-for-certain-commercial-and-industrial-equipment-early

https://www.federalregister.gov/documents/2021/05/27/2021-10882/energy-conservation-program-energy-conservation-standards-and-test-procedures-for-ceiling-fans

F. ENDANGERED SPECIES ACT

  1. Twelve Attorneys General Urge Department Of The Interior To Reverse Trump Era Rollback Of Migratory Bird Treaty Act Protections.

Led by New York, a coalition of twelve attorneys general submitted comments to the Department of the Interior (“DOI”) in support of restoring protections under the Migratory Birds Treaty Act (“MBTA”). The comments focus on a rule promulgated by DOI under the Trump Administration that interpreted the MBTA as not prohibiting the incidental take of protected bird species. The AGs contend that the rule is invalid because it is not represented in the MBTA’s text, purpose, and history and is contrary to federal courts upholding MBTA prosecutions for incidental take. The AGs also reference previous comments and ongoing litigation based on the rule. The comments urge DOI to further delay the effective date of the rule and ultimately a reversal of the rule entirely.

For more information see:

https://stateimpactcenter.org/ag-actions/twelve-ags-filed-comments-urging-interior-department-reverse

https://www.law.nyu.edu/sites/default/files/FWS-HQ-MB-2018-0090-18792_attachment_1.pdf

  1. Eighteen Attorneys General File Lawsuit Against U.S. Fish And Wildlife Service And National Marine Fisheries Service Challenging Two Rules Concerning The Endangered Species Act Habitat Designations.

Led by California and Massachusetts, eighteen attorneys general filed a lawsuit against the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) over newly promulgated rules that limit habitat protections under the Endangered Species Act (“ESA”). The lawsuit targets two rules, the first that created a narrow definition of “habitat” for

purposes of making critical habitat designations under Section 4 of the ESA. The lawsuit argues that this definition “fails to account for species’ need to expand their current ranges or to migrate to currently unoccupied habitat in response to existential threats such as climate change and habitat destruction to ensure species recovery and survival as mandated by the ESA.” The second rule was promulgated just by FWS and created a new process for excluding areas of critical habitat when making such designations. The AGs contend that the second rule gives developers and extractive industry inappropriate influence over Endangered Species Act critical habitat designation processes.

For more information see:

https://stateimpactcenter.org/ag-actions/eighteen-ags-filed-lawsuit-challenging-restrictive-habitat

https://www.mass.gov/doc/esa-complaint/download

  1. Amicus Brief Filed By Twelve Attorneys General In Support Of District Court’s Decision To Vacate Nationwide Permit 12, Against U.S. Army Corps of Engineers’ Opposition.

California led a coalition of twelve attorneys general in filing an amicus brief to the U.S. Court of Appeals for the Ninth Circuit to uphold the district court’s ruling that the U.S. Army Corps of Engineers (“USACE”) improperly reauthorized the Nationwide Permit 12. The district court held that reauthorization should be vacated because USACE did not engage in Endangered Species Act (“ESA”) mandated consultation with the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”). Nationwide Permit 12 relies on programmatic consultation between USACE, FWS, and NMFS to prevent harm to endangered and threatened species while allowing qualifying infrastructure projects to proceed without obtaining project-specific Clean Water Act (“CWA”) permits, which would require project-specific ESA consultation. USACE contends “because it will be consulting with the Services on individual projects where warranted, it need not consult with the Services regarding the reissuance of NWP 12 as a whole,” and thus its actions were proper. In their brief, the AGs emphasized that the ESA “does not permit an ‘incremental-step’ consultation approach as a substitute for consultation on the overall agency action,” and warned that allowing such an approach would “essentially [read] the requirement of programmatic consultation out of the regulations.”

For more information see:

https://stateimpactcenter.org/ag-actions/twelve-ags-filed-amicus-brief-support-challenge-nationwide-permit

https://oag.ca.gov/sites/default/files/FILED%20Brief%20Amici%20Curiae.pdf

G. CULTURAL RESOURCES MANAGEMENT

  1. Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277.

The appellate court reversed the trial court’s ruling and directed the City of Berkeley to grant plaintiffs Ruegg & Ellsworth and Frank Spenger Company’s development application. Plaintiffs applied to the City of Berkeley for approval of a mixed-use development pursuant to Government Code section 65913.4, which was created by Senate Bill 35 (“SB 35”) and provides for streamlined, ministerial approval of affordable housing projects meeting specified requirements and conditions. Berkeley denied the application stating that SB 35 does not apply to the project because the law does not apply to sites where the development would require the demolition of a historic structure that was placed on a national, state, or local historic register. The proposed site is part of a three-block area the Berkeley Landmarks Preservation Commission designated a City of Berkeley landmark in 2000, as the location of the West Berkeley Shellmound (“Shellmound”). Shellmounds were “sacred burial sites for the average deceased mound-dweller,” slowly constructed over thousands of years from daily debris and artifacts left by the tribelet communities that lived on the site. The Shellmound is listed in the California Register of Historical Resources and was built in 3,700 B.C., although nothing remains of the Shellmound above ground. The appellate court therefore found that the Shellmound is not a “structure” within the meaning of SB 35 and therefore the project does qualify for streamlined, ministerial approval.

William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys 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

Large Lot Vesting Tentative Subdivision Map

There is still space available! Please join William Abbott as he teaches a virtual course with pre-recorded material available from May 4-6, 2021, and a virtual live session on May 5, 2021, learning key provisions of the Subdivision Map Act. This seminar is hosted by UC Davis Extension.

Joining Bill this year will be Timothy Denham, AICP, LEED AP, and Dennis Barber, PLS, two guest speakers with extensive Subdivision Map Act experience. Mr. Denham is a Principal and Vice President for Urban Planning and Design at Wood Rogers, Inc. Mr. Barber is a Principal Land Surveyor for the Sacramento Survey Department of Wood Rogers. Mr. Denham and Mr. Barber will share their insights concerning the applicant’s perspective on the Subdivision Map Act.

Wood Rogers, Inc., is a Northern California engineering and planning firm headquartered in Sacramento with extensive experience in land development. Wood Rogers has offices in Sacramento, Roseville, Oakland, Reno, Las Vegas, Pleasanton, San Diego and San Dimas.

Class Description:

Learn key provisions of the Map Act, how it is applied in planning and development processes, recent legislative changes and new legal interpretations from court decisions and attorney general opinions. Explore both local agency and subdivider viewpoints and discuss legal and practical solutions.

Topics include:

  • Map Act scope, purpose and history
  • Relationship of the Map Act to planning, zoning and development laws, including CEQA
  • When the Map Act does and does not apply
  • Certificates of compliance and lot line adjustments
  • Map Act exemptions and exceptions
  • What type of map is required
  • Procedures and actions applicable to maps
  • The role of vested rights, including vesting maps, development agreements and common law vesting
  • Constitutional and statutory limitations on conditions of approval (exactions/dedications/fees)
  • Grounds for approval and denial of maps
  • Rules and procedures regarding final maps
  • Corrections and amendments to maps
  • Exclusions and reversions
  • Mergers and alternatives to mergers
  • Antiquated subdivisions (old maps) and troubled conveyances
  • Enforcement, local appeals and judicial review
  • Best practices for the private sector

When: Pre-recorded materials on Canvas May 4-6, 2021, live session May 5, 2021 from 1:00- 3:00 PST

Where: Online Class

Cost: $360

Register with the following link: https://extension.ucdavis.edu/section/subdivision-map-act

Questions, please contact UC Davis Extension at 530-757-8777 or cpeinfo@ucdavis.edu   

William W. Abbott is Of 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.

Welcome to Abbott & Kindermann, Inc.’s April Real Estate Law Action News. This summary provides brief updates on recent real estate cases, legislation, and administrative actions in 2021. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.

  1. PREVIOUS MONTH’S UPDATE

To read the March 2021 Real Estate Action News post, click here:  https://blog.aklandlaw.com/2021/03/articles/easements/march-monthly-real-estate-law-action-news/ .

  1. CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are no cases pending at the California Supreme Court at this time.

  1. UPDATE

A. TAKINGS

  1. Felkay v. City of Santa Barbara (2021) 62 Cal.App.5th 30.

The Court of Appeal affirmed a jury verdict awarding property owner, Felkay, damages for inverse condemnation deriving from the City of Santa Barbara (“City”) denying Felkay’s coastal development permit. In the City’s defense, the City alleged that Felkay’s suit was not ripe because he failed to exhaust administrative remedies related to his coastal development permit because the owner was required to submit multiple permit applications seeking zoning variances and reduction of environmental impacts under the City Code. The trial court ruled that Felkay was not required to submit more than one coastal development permit addressing his different zoning variance requests and compliance with environmental impacts. In the trial court’s statement of decision the court held: “(1) Felkay’s claims were ripe, (2) he sought a variance or modification pursuant to Public Resources Code section 30010, (3) he was not required to pursue futile applications, (4) denial of the permit rendered the property unbuildable and deprived Felkay of all economic benefit of the property, and (5) the denial constituted a total taking of the property.” The trial court further held that a de facto taking occurred because the only remaining use of the property was as vacant land for recreation, parking, or to preserve views. The jury awarded Felkay damages at fair market value of $2.4 million plus $1M in attorneys fees.

The Court of Appeal affirmed the trial court’s ruling. On the inverse condemnation claim, the Court held that because of the City’s finding that the project would violate the City’s Local Coastal Plan Policy 8.2 regarding certain developments on coastal bluffs, the City had only two choices: (i) deny the permit and pay just compensation for inverse condemnation, or (ii) approve the permit. Since the City chose to deny the permit, Felkay was entitled to just compensation for inverse condemnation. On the ripeness defense, the Court held that the case was ripe for adjudication. The Court found that there was substantial evidence to establish that the City would have denied the permit anyway regardless of multiple applications. The Court further held that exhaustion was properly determined by the trial court because the City declined to issue a permit or review further permitting administratively and elected to move to trial proceedings. As such, the Court affirmed the trial courts proceedings and further awarded costs on appeal to Felkay.

  1. Kagan v. City of Los Angeles, 2021 U.S. Dist. LEXIS 27851 (C.D. CA., February 11, 2021).

Plaintiffs brought suit against the City of Los Angeles and Los Angeles Housing and Community Investment Department (“The City”) under alleged Takings and Due Process claims related to the City passing a Rent Stabilization Ordinance (“RSO”) that impacted Plaintiffs’ rental of an owned and operated duplex. The City filed a motion to dismiss in response to Plaintiffs’ claims. The RSO passed by the City was an ordinance intended to safeguard protected tenants from “excessive rental increases.” Protected tenants are those who are at least 62 years old or considered disabled or handicapped as defined under the state and federal code. Plaintiffs attempted to evict a tenant from their duplex who fell into the “protected tenant” classification. Thereafter, Plaintiffs sued the City to recover damages for Takings and Due Process claims. On the Takings claims, the Court held that Plaintiffs were aware of the RSO and had the option to withdraw the Property from rental housing use provided they give the Tenant one year’s notice, but they elected not to do so. As such, the Court granted the City’s motion to dismiss on the Takings claim. The Court then broke down the Due Process claims under both substantive due process and procedural due process analyses. The Court stated that the ordinance was rationally related to a legitimate government interest in protecting vulnerable tenants and therefore Plaintiffs’ substantive due process claims were dismissed. On the procedural due process claim, the Court stated that because Plaintiffs had adequate “post-deprivation remedies available” the motion to dismiss the procedural due process claim was granted.

B. GENERAL REAL ESTATE

*There are no new cases in this section at this time.*

C. COMMON INTEREST DEVELOPMENTS

*There are no new cases in this section at this time.*

D. REAL ESTATE CONTRACTS & TRANSACTIONS

*There are no new cases in this section at this time.*

E. EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES

  1. Husain v. California Pacific Bank (2021) 61 Cal.App.5th 717.

The Court of Appeal affirmed a decision by the trial court to grant a prescriptive easement to California Pacific Bank (“Bank”) over portions of Husain’s property. Husain acquired the property and shortly after filed an action against the Bank for quiet title. The trial court held that the Bank held prescriptive easements over the driveway, garbage area, garden, and parking spaces on Husain’s property. The Court of Appeal affirmed. The Court held that the record established that the Bank’s use of the property was “open, notorious, continuous, and adverse for an uninterrupted period of five years.” The Court further found that there was clear and convincing evidence that the Bank held several prescriptive easements over the property. It also concluded that Husain was fully aware of the prescriptive easement claims on the property through the initial disclosures to the property transaction, and he signed an indemnity agreement evidencing as such. Accordingly, the Court rejected the notion that it would be unfair for Husain to be subject to the easements obtained when he purchased the property. The Court of Appeal affirmed the lower court’s ruling and held that the Bank should recover its costs on appeal.

  1. Village Communities v. County of San Diego, 2021 U.S. Dist. LEXIS 20794 (S.D. CA., February 3, 2021).

Plaintiff, a real estate development company, filed suit against the County of San Diego (“Defendant or County”) for denying Plaintiff’s modifications to its proposed development project located in an unincorporated area of San Diego County. The County denied Plaintiff’s modified proposal after the County Planning Department determined that the modifications “substantially revised the proposed project and that staff had various concerns about its scope.” The area is in a high wildfire risk area and the modifications to the project proposal were over whether or not the County had legal authority to require fuel modification easement rights to allow for entry onto properties and control vegetation on 50 adjacent lots.

Plaintiff sought an administrative mandamus action against the County alleging four causes of action: (1) Takings; (2) Due Process; (3) Equal Protection; and (4) an Administrative Mandamus claim directing the County to approve the Project. The County moved to dismiss each claim. On the Takings claims, the Court found that Plaintiff’s claims, “plausibly state prima facie inverse condemnation and temporary takings claims based on the unconstitutional conditions doctrine.” As such, the Court denied the County’s attempt to dismiss the Takings Claims. On the Due Process claim, the Court held that Plaintiff had a viable claim for substantive due process because Plaintiff presented a reasonable claim as to whether the easements were “needless and redundant under existing authority.” The Court then held that Plaintiff had a viable Equal Protection claim because Plaintiff provided the Court with a list of other projects the County approved where there were no additional easements requested. On the Administrative Mandamus claim, the Court granted the County’s request for dismissal. The Court held that recently the Supreme Court held that a plaintiff no longer has an obligation to also seek mandamus relief in order to prosecute its takings claim. The Court further reasoned that because the sought after mandamus would infringe on the separation of powers by directing the County on how to exercise its discretion over the Project, the Court must deny the request for an administrative mandamus.

  1. Self v. Cher-Ae Heights Indian Community of Trinidad Rancheria, 2021 Cal. App. LEXIS 67 (January 26, 2021).

In a case involving tribal sovereign immunity to establish a public easement for coastal access, The Court of Appeal affirmed the trial court’s dismissal of the tribe’s quiet title action to establish a public easement for coastal access. The question before the Court was whether sovereign immunity barred quiet title actions for public easements pertaining to coastal rights of access on properties owned by Indian tribes. The Court of Appeal held that Congress did not extend the common law exception for state sovereign immunity to tribal immunity for land acquisition. As such, the Court found that tribal sovereign immunity bars quiet title actions such as those found in the facts of this case. The Court held that Plaintiffs’ arguments for a common law exception for “immovable property” was unmoving and unpersuasive. The Court stated that consistent with the decades of Supreme Court precedent before this Court, the Panel will defer to Congress to determine the limits of sovereign immunity. The Court found that Congress did not extend such a limit to tribal communities for the purposes of land acquisition under federal tribal policy. As such, the Court of Appeal affirmed the trial court’s dismissal of the tribe’s quiet title action.

William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys 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.

William Abbott will teach a virtual course with pre-recorded material available from May 4-6, 2021, and a virtual live session on May 5, 2021, learning key provisions of the Subdivision Map Act. This seminar is hosted by UC Davis Extension.

Joining Bill this year will be Timothy Denham, AICP, LEED AP, and Dennis Barber, PLS, two guest speakers with extensive Subdivision Map Act experience. Mr. Denham is a Principal and Vice President for Urban Planning and Design at Wood Rogers, Inc. Mr. Barber is a Principal Land Surveyor for the Sacramento Survey Department of Wood Rogers. Mr. Denham and Mr. Barber will share their insights concerning the applicant’s perspective on the Subdivision Map Act.

Wood Rogers, Inc., is a Northern California engineering and planning firm headquartered in Sacramento with extensive experience in land development. Wood Rogers has offices in Sacramento, Roseville, Oakland, Reno, Las Vegas, Pleasanton, San Diego and San Dimas.

Class Description:

Learn key provisions of the Map Act, how it is applied in planning and development processes, recent legislative changes and new legal interpretations from court decisions and attorney general opinions. Explore both local agency and subdivider viewpoints and discuss legal and practical solutions.

Topics include:

  • Map Act scope, purpose and history
  • Relationship of the Map Act to planning, zoning and development laws, including CEQA
  • When the Map Act does and does not apply
  • Certificates of compliance and lot line adjustments
  • Map Act exemptions and exceptions
  • What type of map is required
  • Procedures and actions applicable to maps
  • The role of vested rights, including vesting maps, development agreements and common law vesting
  • Constitutional and statutory limitations on conditions of approval (exactions/dedications/fees)
  • Grounds for approval and denial of maps
  • Rules and procedures regarding final maps
  • Corrections and amendments to maps
  • Exclusions and reversions
  • Mergers and alternatives to mergers
  • Antiquated subdivisions (old maps) and troubled conveyances
  • Enforcement, local appeals and judicial review
  • Best practices for the private sector

When: Pre-recorded materials on Canvas May 4-6, 2021, live session May 5, 2021, from 1:00-3:00 PST

Where: Online Class

Cost: $360

Register with the following link: https://extension.ucdavis.edu/section/subdivision-map-act

Questions, please contact UC Davis Extension at 530-757-8777 or cpeinfo@ucdavis.edu   

William W. Abbott is Of 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.

Welcome to Abbott & Kindermann’s 2021 1st 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.

2020 CEQA UPDATE

 To read the 2020 cumulative CEQA review, click here: https://blog.aklandlaw.com/2021/01/articles/ceqa/2020-ceqa-4th-quarter-review/

CASES PENDING AT THE CALIFORNIA SUPREME COURT

There is 1 CEQA case pending at the California Supreme Court. The case and the Court’s summary is as follows:

County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate. This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project? (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?

UPDATE

Environmental Impact Reports

Santa Clara Valley Water Dist. v. San Francisco Bay Reg’l Water Quality Control Bd. (2020) 59 Cal.App.5th 199.

Petitioner, Santa Clara Valley Water District (“District”), filed suit challenging the San Francisco Bay Regional Water Quality Board’s (the “Board”) addition of new mitigation requirements when issuing an order adopting Waste Discharge Requirements (“WDRs”) for the District’s flood control project. The District argued the Board’s action was unlawful, because the District had already completed CEQA review with its approval, and the Board had been an active participant as a responsible agency. As a responsible agency, the District argued CEQA Guidelines section 15096, subdivision (e), required the Board to either accept the adequacy of the EIR as-is, or take one of three actions: (i) file suit challenging the EIR, (ii) prepare a subsequent EIR, if allowed under CEQA Guidelines section 15162, or (iii) assume the lead agency role of the original EIR. The First District Court of Appeal upheld the Board’s imposition of additional mitigation requirements under the WDR. It reasoned that despite the limitations imposed on responsible agencies under CEQA Guidelines section 15096, the Savings Clause in Public Resources Code section 21174 (“No provision of this division is a limitation or restriction on the power or authority of any public agency in the enforcement or administration of any provision of law which it is specifically permitted or required to enforce or administer….”), supported its conclusion that “nothing in CEQA, including CEQA Guidelines section 15096, subdivision (e), or the statutes on which it is based, bars the Board from fulfilling its independent obligation to enforce the Porter-Cologne Act.”

CEQA Litigation

Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470.

In a case that hinged on the fine line between issue exhaustion and administrative exhaustion, Plaintiffs filed suit challenging the San Francisco (“City”) Historic Preservation Commission’s (“HPC”) decision to authorize the removal of an 1894 monument called “Early Days” and place it in storage, finding the removal was categorically exempt from the California Environmental Quality Act (“CEQA”). Plaintiffs challenged the decision on several grounds, including CEQA. At the trial court, the City filed for demurrer arguing the Plaintiffs had failed to exhaust their administrative remedies when they only appealed the HPC decision to the City’s Board of Appeals, which had no jurisdiction under CEQA, and not to the Board of Supervisors, which did have CEQA jurisdiction. The trial court granted the motion without leave to amend and Plaintiffs appealed.

The appellate court affirmed. Plaintiffs argued that the exhaustion requirement was excused when the HPC’s hearing notice failed to mention CEQA. Public Resources Code section 21177 requires litigants to raise CEQA issues during the administrative process before filing suit, but that requirement is waived where notice of the hearing is defective. The Court of Appeal agreed the notice was defective, finding that the City failed to provide adequate notice of the HPC hearing as to CEQA, and Plaintiffs’ obligation under section 21177 was waived. However, the Court, relying on Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, drew the distinction between exhaustion of the CEQA issues and the judicially created doctrine requiring litigants to exhaust all administrative procedural options available. Here, the Court held that Plaintiffs did not fully exhaust their administrative remedies when they failed to appeal to the Board of Supervisors. It reasoned that an appeal to the Board of Supervisors was required because: (i) Plaintiffs had actual notice of the CEQA determination and even raised it at the Board of Appeals hearing; and (ii) the Board of Supervisors was the final arbiter over CEQA determinations.

Organizacion Comunidad de Alviso v. City of San Jose (2021) 60 Cal.App.5th 783.

Petitioners challenged the City of San Jose’s (“City”) certification of an environmental impact report (“EIR”) for a project to rezone fallow farmland to allow light industrial uses. Petitioners had requested from staff to receive notice of all project activities including hearing notices and the notice of determination (“NOD”) for the EIR. During the processing of the application, the original applicant sold the property to Microsoft, which took over as the applicant. The EIR was ultimately certified, and the project was approved. The City issued an NOD and sent a copy to Petitioners, though it incorrectly identified the prior owner as the real party in interest. Five days later, a second corrected NOD was properly filed, but no copy was provided to Petitioners. Petitioners timely filed suit, naming the prior owner as the real party in interest rather than Microsoft. About two weeks after the 30-day statute of limitations had run, the original owners’ attorney notified Petitioners that Microsoft was the actual real party and a second NOD had been filed. Approximately a month later, Petitioners filed an amended petition naming Microsoft, more than 70 days after the second NOD was filed. City and Microsoft filed a demurrer arguing the claims were time-barred. The trial court granted the demurrer and dismissed the suit with prejudice. Petitioners appealed.

The appellate court affirmed. Petitioners argued that the City’s failure to provide a copy of the second NOD rendered the filing defective which would extend the statute of limitations to 180 days. The Court held that though the City had failed to comply with its obligation to provide notice to Petitioners as required under CEQA, Public Resources Code section 21167, subdivision (f), only extends the statute of limitations when an NOD is materially defective which was not the case, thus, the 30-day deadline was applicable here. Petitioners also argued that the City’s filing of the NOD did not provide actual or constructive notice when it failed to provide a copy to Petitioners as requested. The Court rejected this argument as well, noting that Petitioners had attended the hearings where Microsoft was properly identified as the real applicant and had, therefore, already received actual notice.

Petitioners next sought to apply the relation back doctrine which would allow the replacement of a doe defendant named in the petition to be replaced with Microsoft, but the Court rejected that claim as well. It reasoned that the relation back doctrine requires Petitioners to be genuinely ignorant of the identity of the defendant, which was not the case here because the second NOD, by law, provided Petitioners with notice of the defendant’s identity. Furthermore, the Court reasoned that Petitioners had actual notice from attending the hearings, and they had delayed filing the amended petition for a period of time longer than the initial limitations period after being notified of the second NOD. Finally, Petitioners argued that Court should apply equitable estoppel principles to allow for the untimely filing due to the failures of the City in providing notice to Petitioners, but the Court rejected that claim as well because the second NOD was filed properly thereby providing Petitioners with constructive notice as a matter of law.

William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys 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.

 

This blog is devoted to the non-urban areas of California which, thanks to the internet and Covid-19, are experiencing the effects of a relocating work force from California’s urban centers to its exurbs and rural communities. The resulting changes go well beyond the obvious like the increased demand for more electric vehicle charging stations. They also include a seismic shift at how local governments, even very rural communities, relate to its citizens.

Until now, many rural communities have taken a “less is better” approach to regulating the citizenry. As chronicled by noted planner and sociologist Dr. E. Ambler, these are communities where open carry is the rule, mandatory masks are a function of fake news, and log hauling trucks rely on a noisy ‘jake brake’ and no one complains. Dr. Ambler explains: “It’s not just that these new residents are pricing the locals out of the housing market. I am also predicting a significant shift in planning and political values as well.”

Sociologists and planners call it the RYPTIDE Effect, otherwise known as “Relocating Young Professionals with Transformative Ideas and Democratic Evolvement.” As these young professionals are appointed to planning commissions or are elected to local office, they look at life through an new lens that is often foreign to longtime residents of these communities. These young professionals are the source for what is viewed by legacy locals as “radical thinking” that tests the boundaries of local political norms. Dr. Ambler cites to a handful of real-world examples to make his case for the pending seismic shift that is fundamentally altering these locals’ way of life:

  • A central valley community’s proposed ordinance which defines and restricts “filter” coffee to describe “coffee created through the use of a filter suitable only for a single 6 oz cup of coffee.” This ordinance resulted in the wholesale disposal of hundreds of restaurant coffee pots and coffee makers. Urban archaeologists studying landfills two thousand years from now will likely describe this gastronomic shift as the end of the “Coffee Pot” period.
  • A north coast county’s ordinance mandating all cell towers be designed to represent a majestic redwood or oak, as appropriate for the locale, as well as the mandatory co-location of electric vehicle charging stations at the base of every cell tower.
  • Numerous public comment periods during city council meetings all over the state have repeatedly been devoted to complaints over the difficultly of obtaining appropriately ripened avocados in local grocery stores.
  • Several north state communities have adopted general plan policies designed to “promote upscale retail” by prohibiting dollar discount stores and requiring stores selling hard goods to devote 35% of its shelf space to goods manufactured and directly imported from Europe (e.g., Italian shoes, Paris fashions, and Irish whiskey.)
  • One southern desert community located within an hour from Coachella has amended its general plan and zoning code to create the first ever “luxury car dealership zone,” where the only allowed uses are new car dealerships for BMW, Land Rover and Tesla. A Lexus dealership is also allowed with the approval of a conditional use permit when supported by special findings. Two other communities have since followed suit, with a third establishing an ad hoc committee to consider whether its ordinance should also include an option for an administrative use permit for Mercedes Benz.

Planners really do not know how long RYPTIDE will last. Will these new residents simply pick up and migrate out of state or return to their urban roots after a year of remote living? Will they assimilate with the locals by wearing plaid and driving a Subaru Outback? Dr. Ambler notes that our society may now be experiencing another effect of technological advancement, something akin to a societal version of Moore’s Law. “Societal changes normally evolve over decades, but we may now be witnessing the conversion into ever increasing, time-compressed periods of upheaval that are unlike anything that western civilization has ever previously experienced,” he said. “If the speed of change continues as is predicted, locals may not even recognize their hometown in as little as twenty-four months from now. I shudder to think what could come to fruition by 2030.”

When he is not playing the guitar or mandolin, or frustrating himself to no end with learning the banjo, William W. Abbott is Of 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.

 

 

Welcome to Abbott & Kindermann, Inc.’s March Environmental Action News. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2021.

PREVIOUS MONTH’S UPDATE

To read the December 2020 Environmental Action News post, click here:

https://blog.aklandlaw.com/2021/01/articles/ak-news/abbott-kindermanns-20th-annual-land-use-real-estate-and-environmental-law-update-5/

SUPREME COURT

There is one case pending at the California Supreme Court. The case and the Court’s summary is as follows:

 County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate.  This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project?  (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?

UPDATE

WATER QUALITY

  1. City of Duarte v. State of Water Resources Control Board (2021) 60 Cal.App.5th 258.

The Court of Appeal reversed and remanded the trial court’s ruling by holding that water quality control boards could consider economic factors in satisfaction of Water Code section 13241 for a NPDES permit. The Court further stated that the water control boards gave well supported reasoning to comply with the statutory requirements. The appeal arose when a permit issued by state and local water boards required 86 Southern California municipalities to reduce effluent discharge pollutants in stormwater sewage systems. The trial court ruled that the water boards and state did not sufficiently consider factors outlined in Section 13241 of the Water Code before issuing a permit, and this failure invalidated portions of the permits that were issued. The Court of Appeal disagreed. It held that the numeric effluent limitations in the Permit issued was no more stringent than the requirements outlined in the CWA.  The Court reviewed the factual findings under the substantial evidence standards and held that the Water control boards had sufficiently considered the necessary factors under Water Code Section 13241, including the need to consider “economic considerations” under subsection (d).

The Court held that the water boards had significant discretion when considering the factors, so long as they are supported by evidence in the record and factual findings. As for the “economic considerations” factor at issue, the Court reasoned that this discretion should be left with the water boards because in exceptional financial downturns like those resulting from the COVID-19 pandemic, the water boards must retain control so that they can account for these economic context when determining compliance with the permit requirements. The reversed judgment was and remanded with instructions to the trial court.

WETLANDS

  1. United States v. Lucero, 2021 U.S.App.LEXIS 6307 (9th Cir. March 4, 2021). 

The Ninth Circuit reversed a conviction of Defendant Lucero for discharging a pollutant in violation of the Clean Water Act (“CWA”), because the jury instruction failed to clearly indicate that: (i) Mr. Lucero must have knowingly discharged; and (ii) the error was not harmless. The Ninth Circuit further held that the jurisdictional waters were clearly defined at the time of defendant’s trial, and that the courts could not rely on the 2020 regulatory changes in the law to retroactively apply standards for conviction. Mr. Lucero was executing a dumping scheme whereby in 2014, during a particularly drought heavy year, he was dumping debris on sites in the San Francisco Bay Area that would have been inundated with water and subject to protection under the Waters of the United States (“WOTUS”) definition of the CWA. A jury convicted Mr. Lucero on three counts of violating the CWA for illegal discharges into navigable waters without a permit. Upon conviction, Mr. Lucero filed the subsequent appeal. Mr. Lucero’s defense included three main arguments: (1) the jury instruction omitted the CWA’s knowledge element, (2) the WOTUS definition is unconstitutionally vague; and (3) the 2020 WOTUS rule adoption should apply retroactively.

Regarding the knowledge element, the Ninth Circuit declined to further improve on what is “into water” and what is “to waters of the United States.” Instead, the panel focused on the knowledge element itself and stated that the burden is merely to prove that the defendant knowingly discharged “into water.” It then held that since the facts presented did not convey that Mr. Lucero knowingly discharged into water, the jury instruction was not properly read. The Court further reasoned that because the jury instruction was vague, and the panel could not say whether the jury would have properly reached the same guilty verdict, it reversed the conviction and remanded the case for a new trial with clear jury instructions.

As to Mr. Lucero’s second argument that the WOTUS definition is unconstitutionally vague, the Panel disagreed. It held that it is not unconstitutional simply by being difficult to determine how it applies. Instead, it must be proven to be unreasonable to the point where no standard of conduct could apply at all. The Court noted that while the WOTUS rule is complex it provides ascertainable standards to protect jurisdictional waters.

Lastly, Mr. Lucero called on the Court to apply the 2020 WOTUS rule retroactively to conviction, but the Court rejected that argument. It held that generally legislative actions lack retroactive effect unless so indicated by Congress expressly. As the Panel indicated, the 2020 WOTUS rule was intended to be applied prospectively since the executive branch did not expressly indicate that enforcement would apply retroactively. The Court reversed the conviction and remanded the case for a new trial with clear jury instructions.

RENEWABLE ENERGY

  1. Cabatit v. Sunnova Energy Corporation (2020) 60 Cal.App.5th 317.

In a suit arising out of the careful examination of a residential solar contract, the Court of Appeal stated that in narrow contexts a mandatory arbitration clause can be invalid. The Court held that a mandatory arbitration clause is unconscionable when the clause is not called to the signatory’s attention at the time of signing and the clause is clearly one-sided. The case before the Court arose when plaintiffs, the Cabatits, entered into a solar power lease agreement with Sunnova Energy Corporation. After the unit was installed, leaking occurred around the solar panels leading to roof damage. At the time the parties entered into the contract, the Sunnova salesperson made a presentation at the Cabatit home telling the family to initial certain provisions of the contract and did not explain or have them read them through carefully. The family lacked internet access and a computer, and Mrs. Cabatit did not speak English well enough to understand the complexity of the contract she signed.

After the Cabatits filed their lawsuit, Sunnova responded stating that the arbitration clause required the case to proceed through arbitration first. Plaintiffs argued that the arbitration clause  should be stricken because the contract was both procedurally and substantively unconscionable. Finding for Plaintiffs, the Court held that the contract was procedurally unconscionable for several reasons: (i) the Cabatits had no opportunity to “bargain over its terms”; (ii) the arbitration clause was not called to the attention of the Cabatits; (iii) the Cabatits were not given a copy of the contract; and (iv) the contract was presented as a standardized agreement thus “supporting a finding of a high degree of procedural unconscionability.” The Court further held that the contract was substantively unconscionable because of the “breadth of the term ‘default’ favoring Sunnova, and the limitations imposed on the Cabatits regarding their own available court relief.” The Court affirmed the trial court’s ruling that the contract was in fact unjustifiably one-sided and held that the arbitration clause was unenforceable.

ENDANGERED SPECIES ACT

  1. United States Fish & Wildlife Service v. Sierra Club, Inc. (2021) 209 L.Ed.2d 78.

The United States Supreme Court held that the deliberative process privilege applies to in-house drafts of an agencies’ last word on a proposal to list a potentially endangered or listed species. As the High Court held, when agencies deliberate about the potential threats to foreseeable listed species through the biological opinion process, those internal draft deliberations shall be protected by the “deliberative process privilege” under Exemption 5 to the Freedom of Information Act (“FOIA”). FOIA mandates that a federal agency disclose all documents generated by an agency when making a biological assessment on a potential listing of a species unless the documents fall into one of nine exemptions to FOIA. Exemption 5 is the inter-agency or intra-agency exemption which incorporates the deliberative process privilege shielding the agencies from disclosing “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” (NLRB v. Sears, Roebuck & Co., 95 S.Ct. 1504, 1544 (1975).) The Court concluded that so long as the document does not have “real operative effect” or reflect the “consummation’ of the agency’s decision-making process” it is protected by the deliberative process privilege. It, thus, held that “if the evidence establishes that an agency has hidden a functionally final decision in draft form, the deliberative process privilege will not apply.” The Court concluded by stating that draft biological opinions are both prejudicial and deliberative and therefore should be protected.

HAZARDOUS MATERIALS AND REMEDIATION

  1. Vincent v. Mayhew Center, LLC, 2021 U.S.Dist.LEXIS 31529 (N.D. Cal. February 19, 2021).

A U.S. District Court for the Northern District of California dismissed a lawsuit between parties over a property in Walnut Creek, California, that was environmentally contaminated and the contamination was spreading into neighboring properties. In 2007, Mayhew Center was held liable and ordered to clean up the neighbor’s property as well as its own pursuant to CERCLA. In 2017, Mayhew Center defaulted on its mortgage, failed to fulfill its obligations to cleanup both properties, and the property was foreclosed on. In the foreclosure sale, plaintiff Vincent, entered into an agreement with the Regional Water Quality Control Board (“Regional Board”) to assume remediation obligations under the purchase and sale agreement. Vincent then sued Mayhew Center, Beards, and Etch-Tek for liability to remediate the property under CERCLA. Beards and Etch-Tek moved to dismiss claims against them on res judicata grounds to which the U.S. District Court agreed. The Court held that Vincent could not hold Beards or Etch-Tek liable under CERCLA because liability arose out of the same nucleus of facts and that a judgment had already been rendered against Mayhew Center who was obligated to clean up the property. Vincent argued that cost recovery under CERCLA was substantially different from the prior case because Vincent sought recovery under a different section of the CERCLA statute. The Court held that while recovery was in fact sought under a different section of CERCLA, this would not allow for plaintiffs to use different procedural CERCLA vehicles to accomplish the same ends. As such, the Court dismissed the case against defendants Beards and Etch-Tek with prejudice.

William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys 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.

Welcome to Abbott & Kindermann, Inc.’s March Real Estate Law Action News. This summary provides brief updates on recent real estate cases, legislation, and administrative actions in 2021. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.

PREVIOUS MONTH’S UPDATE

To read the December 2020 Real Estate Action News post, click here:  https://blog.aklandlaw.com/2020/12/articles/ak-news/december-monthly-real-estate-law-action-news/ .

CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are no cases pending at the California Supreme Court at this time.

UPDATE

A. TAKINGS

  1.  Kagan v. City of Los Angeles, 2021 U.S. Dist. LEXIS 27851 (C.D. CA., February 11, 2021).

 Plaintiffs brought suit against the City of Los Angeles and Los Angeles Housing and Community Investment Department (“The City”) under alleged Takings and Due Process claims related to the City passing a Rent Stabilization Ordinance (“RSO”) that impacted Plaintiffs’ rental of an owned and operated duplex. The City filed a motion to dismiss in response to Plaintiffs’ claims. The RSO passed by the City was an ordinance intended to safeguard protected tenants from “excessive rental increases.” Protected tenants are those who are at least 62 years old or considered disabled or handicapped as defined under the state and federal code. Plaintiffs attempted to evict a tenant from their duplex who fell into the “protected tenant” classification. Thereafter, Plaintiffs sued the City to recover damages for Takings and Due Process claims. On the Takings claims, the Court held that Plaintiffs were aware of the RSO and had the option to withdraw the Property from rental housing use provided they give the Tenant one year’s notice, but they elected not to do so. As such, the Court granted the City’s motion to dismiss on the Takings claim. The Court then broke down the Due Process claims under both substantive due process and procedural due process analyses. The Court stated that the ordinance was rationally related to a legitimate government interest in protecting vulnerable tenants and therefore Plaintiffs’ substantive due process claims were dismissed. On the procedural due process claim, the Court stated that because Plaintiffs had adequate “post-deprivation remedies available” the motion to dismiss the procedural due process claim was granted.

 B. GENERAL REAL ESTATE

*There are no new cases in this section at this time.*

C. COMMON INTEREST DEVELOPMENTS

*There are no new cases in this section at this time.*

D. REAL ESTATE CONTRACTS & TRANSACTIONS

*There are no new cases in this section at this time.*

E. EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES

  1. Village Communities v. County of San Diego, 2021 U.S. Dist. LEXIS 20794 (S.D. CA., February 3, 2021).

Plaintiff, a real estate development company, filed suit against the County of San Diego (“Defendant or County”) for denying Plaintiff’s modifications to its proposed development project located in an unincorporated area of San Diego County. The County denied Plaintiff’s modified proposal after the County Planning Department determined that the modifications “substantially revised the proposed project and that staff had various concerns about its scope.” The area is in a high wildfire risk area and the modifications to the project proposal were over whether or not the County had legal authority to require fuel modification easement rights to allow for entry onto properties and control vegetation on 50 adjacent lots.

Plaintiff sought an administrative mandamus action against the County alleging four causes of action: (1) Takings; (2) Due Process; (3) Equal Protection; and (4) an Administrative Mandamus claim directing the County to approve the Project. The County moved to dismiss each claim. On the Takings claims, the Court found that Plaintiff’s claims, “plausibly state prima facie inverse condemnation and temporary takings claims based on the unconstitutional conditions doctrine.” As such, the Court denied the County’s attempt to dismiss the Takings Claims. On the Due Process claim, the Court held that Plaintiff had a viable claim for substantive due process because Plaintiff presented a reasonable claim as to whether the easements were “needless and redundant under existing authority.” The Court then held that Plaintiff had a viable Equal Protection claim because Plaintiff provided the Court with a list of other projects the County approved where there were no additional easements requested. On the Administrative Mandamus claim, the Court granted the County’s request for dismissal. The Court noted that the U.S. Supreme Court recently held that a plaintiff no longer has an obligation to also seek mandamus relief in order to prosecute its takings claim. The Court further reasoned that because the sought after mandamus would infringe on the separation of powers by directing the County how to exercise its discretion over the Project, the Court must deny the request for an administrative mandamus.

  1. Self v. Cher-Ae Heights Indian Community of Trinidad Rancheria, 2021 Cal. App. LEXIS 67 (January 26, 2021).

In a case involving tribal sovereign immunity to establish a public easement for coastal access, The Court of Appeal affirmed the trial court’s dismissal of the tribe’s quiet title action seeking to establish a public easement for coastal access. The question before the Court was whether sovereign immunity barred quiet title actions for public easements pertaining to coastal rights of access on properties owned by Indian tribes. The Court of Appeal held that Congress did not extend the common law exception for state sovereign immunity to tribal immunity for land acquisition. As such, the Court found that tribal sovereign immunity bars quiet title actions such as those found in the facts of this case. The Court held that Plaintiffs’ arguments for a common law exception for “immovable property” was unmoving and unpersuasive. The Court stated that consistent with the decades of Supreme Court precedent before this Court, the Panel would defer to Congress to determine the limits of sovereign immunity. The Court found that Congress did not extend such a limit to tribal communities for the purposes of land acquisition under federal tribal policy. As such, the Court of Appeal affirmed the trial court’s dismissal of the tribe’s quiet title action.

William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys 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.

San Luis Obispo Local Agency Formation Commission v. City of Pismo Beach, (March 3, 2021) 2021 Cal.App. LEXIS 181

It is now common for a local agency to require defense and indemnity as a result of subsequent litigation concerning an application. This obligation is created either as part of the application process or as a condition of a subsequent approval. A local agency formation commission took this to the next step when the San Luis Obispo Local Agency Formation Commission (“LAFCo”) required an applicant whose annexation application was denied to also indemnify LAFCo when the applicant sued LAFCo over the denial and lost in court. LAFCo’s indemnity demand was rejected by both the trial court and the Court of Appeal.

The facts before the Court of Appeal involved a proposed annexation to the City of Pismo Beach (“City”). The property was located within the City’s sphere of influence. The City and developer were both the applicants to LAFCo. The LAFCo application included a defense and indemnity provision, which included claims brought against LAFCo by the applicants. LAFCo denied the annexation request, the developer sued and lost. LAFCo then submitted a demand to be reimbursed for its legal fees ($400,000.00) which the City and developer rejected. LAFCo’s liability carrier reimbursed LAFCo and based upon an assignment of LAFCo’s claim, sued the City and developer. Notwithstanding the express provision in the agreement, the trial court and Court of Appeal both rejected LAFCo’s right to demand indemnity.

LAFCo argued that it had both express authority (the right to charge fees), as well as the implied authority to impose such a requirement. The Court of Appeal disagreed, concluding that the statutory authority to charge a fee did not extend to post-processing obligations. The Court also rejected the implied authority argument based in part on the provisions of the Code of Civil Procedure which provides as a general rule that in litigation each party bears its own litigation costs unless a statute provides an exception to the general rule. In those circumstances, it would be incorrect to imply a power which otherwise had to be codified by statute.

William Abbott is Of 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.

Reminder! Daniel Cucchi, Matthew Gray, and Garrett Colli will teach a joint virtual course on March 12, 2021 (Pre-recorded lectures available from March 11th through March 15th), titled, “Annual Land Use Law Review and Update.The seminar is hosted by UC Davis Extension.

Class Description:

Stay up-to-date on recent developments in California law affecting land use, planning and environmental compliance. Experts from the field provide succinct and practical analysis on recent case law and significant legislative and administrative changes that took effect this year.

Topics include:

  • General Plans, Specific Plans and Zoning
  • The Subdivision Map Act
  • CEQA
  • Affordable Housing
  • Takings, Exactions and Dedications
  • Greenhouse Gas Regulation and Environmental Analysis
  • School Fees
  • Wetlands and Protected Species
  • Land Use Litigation

Participate in discussions and get answers to your questions. Take home the most recent edition of California Land Use and Planning Law, co-authored by Cecily Barclay and Matthew Gray, and a legal syllabus of cases discussed and prepared by the law firm of Perkins Coie, LLP.

When: Friday, March 12, 2021 (Live Session) (Pre-recorded lectures available from March 11th through March 15th)

Where: Online Class

Cost: $360

Register with the following link: https://cpe.ucdavis.edu/section/annual-land-use-law-review-and-update

*To date a few spots remain available. Do not miss out on this continuing education opportunity!*

Questions, please contact UC Davis Extension at 530-757-8777 or cpeinfo@ucdavis.edu   

 

Daniel S. Cucchi is a Senior 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.