2007

By Cori Badgley and Kate Hart

“When is a project consistent with a general plan?” continues to be a question faced by local governments, developers, environmental advocates, and of course, the courts. A recent case out of Solano County, Friends of Lagoon Valley v. City of Vacaville (August 28, 2007) 2007 Cal.App.LEXIS 1424, illustrates the important role the drafters of the general plan play in establishing the consistency parameters for the projects that follow.
Continue Reading Flexible General Plan Leads to Flexible Consistency

By Janell M. Bogue

In development, as in life, plans change. From a CEQA standpoint, problems emerge as projects are modified, as the triggers requiring new environmental review are less than precise. The recent case of Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385 (“Mani Brothers”) demonstrates that even the courts are unclear on the issue, as two appellate courts have come to two different conclusions. The court in Mani Brothers emphasized that the question is not whether the changes amount to a new project, but whether there is substantial evidence that the changes in the project would create new and significant environmental impacts.
Continue Reading Second Appellate District Clarifies Test for SEIR Preparation When Project is Modified

Bill Abbott has been recognized again by the publishers of Law & Politics and San Francisco Magazine as a leading practitioner of land use law in Northern California. Bill has been selected each year from 2004-2007 based upon peer review by northern California attorneys. More information can be found at www.superlawyers.com.

By Leslie Z. Walker and Janell M. Bogue

Admonishing appellant for 20 years of blatant disregard for the Army Corps of Engineers (“Corps”) and the Clean Water Act (“CWA”), the Ninth Circuit upheld the Idaho district court’s verdict finding appellant criminally liable for violations of the Clean Water Act in U.S. v. Moses (Aug. 3, 2007, No. 06-30379) ___U.S. ___ [2007 U.S.App.LEXIS 18483].
Continue Reading Ninth Circuit Upholds Criminal Penalties for Modification of Intermittent Stream

By Glen C. Hansen

Due to increasing regulatory complexity, development projects may require multiple approvals, issued over an extended time period. Lead and responsible agencies frequently, but not always, file separate notices of determination (“NOD”) for each approval. When that happens, interested parties are challenged as to the optimal time period to file suit. In a multiple NOD scenario, a later filed petition will be considered under a less favorable standard of judicial review, which could lead to a very different outcome in the litigation. Such a result is illustrated by the recent case of Citizens For A Megaplex-Free Alameda v. City of Alameda (“Megaplex”) (March 29, 2007) 149 Cal.App.4th 91, review denied (Cal., June 27, 2007) 2007 Cal.LEXIS 6959.
Continue Reading Multiple Sequential NODs: Weapons of mass confusion for applicants and project opponents

By Kate J. Hart and Brian Hoffman

On June 7, 2007, the California Supreme Court addressed head on the issue of whether or not cities may use their planning and zoning powers to directly impact economic competition. The case is Adrian Hernandez v. City of Hanford (June 7, 2007) 2007 Cal.Lexis 5586. This case affirms the ability of cities to impact economic competition in a direct and intended manner because it allows just such an impact so long as the primary purpose of the zoning action is to achieve a valid public purpose and not simply to serve an impermissible anticompetitive private purpose.
Continue Reading Zoning, Business Competition and Public Purposes

By Janell M. Bogue and Diane G. Kindermann Henderson

On June 5, 2007, the EPA and the Army Corps of Engineers (“Corps”) jointly issued guidance consistent with the Supreme Court’s decision in Rapanos. This document is entitled “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States and Carabell v. United States (“Guidance”). The issue in Rapanos was whether a wetland or tributary can be defined as a “water of the U.S.” and thus be subject to jurisdiction under the Clean Water Act (“CWA”). Because the Court issued five separate opinions, it was unclear whether certain types of waters were jurisdictional. The guidance document establishes several categories of waters and discusses whether or not the agencies may assert jurisdiction.
Continue Reading EPA and Corps Issue Rapanos Guidance