May 2006

By Janell M. Bogue

As cities and developers look inward for new development opportunities, the dark cloud of CEQA is never far away. The legislature has attempted to facilitate infill opportunities by narrowing CEQA’s application. This case illustrates how far this infill exemption can reach. In Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (May 8, 2006) 2006 Cal.App.Lexis 684, developers proposed an urban infill project in the City of San Diego (“City”) near the northwest corner of Balboa Park. The project, a fourteen-story, fourteen-unit multi-family residential building, was approved by the City and found to be exempt from CEQA pursuant to Guidelines section 15332. A neighborhood preservation group filed for a writ of mandate and after losing at the trial court level, the neighborhood group appealed, claiming that the project was not exempt from CEQA and that the City reviewed the project in a piecemeal fashion. Continue Reading More Infill, More Problems: The Categorical CEQA Exemption for Infill Developments

Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal. App. 4th 273 Filed April 4, 2006. By Joel Ellinwood, AICP and Kate Hart For those awaiting a court’s interpretation of the standards of review and to see a court analysis of Section 21083.3 (Guidelines Section 15183) providing for a conditional exemption from CEQA for projects that are consistent with an approved general plan, the time has come. For those hoping to take advantage of the rollback prices at a new Wal-Mart Superstore in Turlock, the chance is sprung. Wal-Mart wanted to build a new store in the City of Turlock (“City”). In early 2003, Wal-Mart representatives inquired with City staff about developing a Wal-Mart Supercenter, which would include a full-service grocery department. The City staff provided Wal-Mart with entitlement and fee information as requested. Continue Reading Will Turlock Ever Get Rollback Prices?

By Joel Ellinwood, AICP Although we are only entering the second quarter of 2006, it is safe to predict that the just published case of Branciforte Heights, LLC v. City of Santa Cruz (2006) 138 Cal.App.4th 914 will be one of the top ten land use cases for the year. The decision includes discussion of critical issues for litigation of cases involving the Subdivision Map Act (Gov. Code, § 66410 et seq.), the Quimby Act (the section of the Subdivision Map Act limiting park fees and dedications, Gov. Code, § 66477), the Mitigation Fee Act (Gov. Code, § 66000 et seq.), and the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.). Once again a court is required to parse the obtuse and conflicting statutory language adopted by the legislature to provide some semblance of clarity in these areas of California development law. Continue Reading Branciforte Heights – Strong Bet for 2006 Top Ten Land Use Cases

By Elias E. Guzman

Effective March 1, 2006, the San Joaquin Valley Air Pollution Control District implemented Rule 9510, the Indirect Source Review program, which will increase the cost of development in the San Joaquin Valley. The program is a one time assessment that seeks to reduce the emissions of NOx and PM10 caused by new development projects and applies to any project that have not yet gained discretionary approval for residential project consisting of 50 or more units, 2,000 square feet of commercial space, or other express thresholds.

Under the new program, project proponents must submit an application, together with a proposed mitigation and monitoring plan, no later than the date it applies for final discretionary approval with the public agency. Certain on-site emission reductions are required to be part of any permit conditions, developer agreements, or other legally binding instruments. Further, a residential developer could expect to pay $500 to $1,200 per unit for off-site mitigation, which must be paid prior to the issuance of building permits.

The rule will undoubtably have widespread impact on new developments in the San Joaquin Valley because the District’s nine county jurisdiction encompasses a widespread area that includes the counties of San Joaquin, Stanislaus, Merced, Madera, Fresno, Kings, Tulare, and (part of) Kern.

Elias E. Guzman is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

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

by William W. Abbott and Janell M. Bogue

As development continues to occur in areas outside of urbanized metropolitan areas developers are encountering more threatened or endangered species issues in their environmental review process under the California Environmental Quality Act (“CEQA”). A fundamental question which must be addressed is whether there are threatened or endangered species present in the project area and whether the project will affect those species. This is not always a simple question to answer, as it is not clear what studies are necessary in order to adequately analyze biological resources under CEQA. What standards are appropriate to measure the significance of the effects on endangered species? Furthermore, once threatened or endangered species are determined to be affected by the project and potentially significant impacts to biological resources are identified, how does one provide for adequate mitigation in order to mitigate those impacts to a less than significant level? This paper discusses recent CEQA cases dealing with these questions and provide insight on how to address endangered species concerns in order to comply with CEQA. Continue Reading Analyzing and Mitigating Biological Resources and Endangered Species Impacts Under CEQA: An Update

by William W. Abbott and Janell M. Bogue

Properly administered impact fee programs can operate to streamline CEQA review of later development projects. At the same time, impact fee programs which are not implemented in accordance with the original expectations or which are founded upon unrealistic assumptions may offer the lead agency and affected applicant little or no real relief. Significant cases decided over the last five years illustrate how this can play out. Continue Reading Impact Fee Programs as Effective Tools for CEQA Mitigation: An Update

by Elias E. Guzman

In Connerly v. State Personnel Board (2006) 37 Cal.4th 1169, the California Supreme Court recently held that amicus curiae were not liable for private attorney general fees because they were not an “opposing party” under Code of Civil Procedure section 1021.5. This opinion provides significant protection to an amicus curiae from having to pay attorney’s fees under the private attorney general statute. Continue Reading Friends Don’t Let Friends Pay Attorney’s Fees

* Joel Ellinwood will be teaching a seminar on the Fundamentals of Real Estate Development on May 25, 2006. For more information, visit Sterling Education Services at

* Joel Ellinwood will also be teaching a seminar on the Framework for Success in Local Governmental Land Use Decisions in California on June 27, 2006. For more information, visit Lorman Education Services at

by Joel Ellinwood, AICP

The California Mitigation Fee Act, Government Code sections 66000, et seq. (“MFA”), affords some limitation on developer fees and exactions that is generally consistent with the constitutional principles enunciated in the United States and California Supreme Courts case law (Nollan fn1, Dolan fn2, Ehrlich fn3, and San Remo Hotel fn4). The MFA provides a “payment under protest” remedy for claims of excessive fees charged to a particular project, but case law has qualified this remedy for various types of fee claims. Some categories of fees may not have a refund remedy under the MFA. However, other statutes may provide independent authority for the “payment under protest” remedy. One example is water, drainage and sewer connection fees adopted under Health and Safety Code section 5471. Continue Reading Water & Sewer Connection Fee Payments Under Protest: Alternatives to Mitigation Fee Act, Government Code section 66020