May 2008

By Cori M. Badgley and Kate J. Hart

In an attempt to invalidate or, at a minimum, get damages for the California Coastal Commission’s (“Commission”) denial of a coastal development permit, Charles A. Pratt Construction Co., Inc. (“Pratt”) brought suit against the Commission, claiming that the Commission’s decision violated Pratt’s vested right to develop its property and, in the alternative, if the decision was valid, the Commission committed a regulatory taking by denying the coastal development permit. In Charles A. Pratt Construction Co., Inc. v. California Coastal Commission (2008) 162 Cal.App.4th 1068, the Court of Appeal, Second Appellate District upheld the Commission’s denial of the permit and dismissed Pratt’s regulatory takings claim for lack of ripeness.

Continue Reading The Development Blues: Property Lies Undeveloped for 30 Years and Counting

By Cori Badgley

After losing on its state takings claim in Montana state court, a mining company was then turned away by federal court on constitutional grounds. In federal court, the governor of Montana, who was the named defendant, argued that the governor and the state were immune from suit in federal court under the rarely referenced Eleventh Amendment of the United States Constitution. The Ninth Circuit Court of Appeals agreed with the governor and dismissed the mining company’s suit.

Continue Reading Governor of Montana Successfully Asserts Sovereign Immunity to Takings Claim

By Glen Hansen

Applicants don’t like being denied a local land use permit. It is equally frustrating for project opponents who fail to stop an approval by a local governmental board to understand why the decision makers didn’t endorse their arguments. Many believe that the failure to prevail before an agency is not due to the merits of the cause, but is the result of some unstated, nefarious plot or bias in the collective heads of the agency board that rejected the position. However, the Court of Appeal recently reminded us that digging into the thought process of administrative officials is generally out of bounds.

Continue Reading DON’T GO THERE! Inquiring into the Thought Processes of Government Officials

Every year the California American Planning Association (“APA”) gives a number of awards in various categories to individuals and projects exemplifying outstanding planning. Winners of the Sacramento Valley section will be submitted to the state for consideration for the statewide award.

Leslie Walker, an associate with Abbott & Kindermann, LLP is a member of this section’s awards committee, and will be responsible for the collection of the nominations for the 2008 planning awards. Nominations will be accepted until May 12, 2008. For more information on this program, including category details, qualifications, and nomination materials, go to the Sacramento Valley APA website.  

**Review was granted by the California Supreme Court on July 23, 2008 and this opinion was depublished.**

By Katherine J. Hart

This case addresses the issue of whether or not the legal effect of a notice of determination (“NOD”) in establishing a 30-day statute of limitations is absolute as to any and all CEQA based claims. In the opinion of the Court of Appeal, 6th appellate district, claims alleging that the agency failed to conduct environmental review but should have are governed by a separate 180-day limitation period.

Continue Reading Notice of Determination’s Thirty-Day Statute of Limitations May Not Apply to All CEQA Claims

By Cori Badgley

On April 16, 2008, the United States District Court for the Eastern District of California issued an opinion in Pacific Coast Federation of Fishermen’s Associations v. Gutierrez (Case No. 1:06-cv-00245) that invalidated portions of the 2004 biological opinion (“BiOp”) issued by the National Marine Fisheries Service (“NMFS”) for the Long-Term Central Valley Project and State Water Project Operations Criteria Plan (“2004 OCAP”). The Central Valley Project (“CVP”) supplies water to approximately 30 million people in 200 water districts. The State Water Project “is the largest State-built water project in the country.” Both projects share resources and facilities. The good news is that water suppliers will enjoy the status quo while a new biological opinion is drafted and approved.

Continue Reading California’s Water Supply Potentially Endangered by Invalid Biological Opinion