January 2009

By Cori Badgley and Kate J. Hart

Water supply issues continue to plague California, and adequate water supply and analysis has become one of the main litigated issues when challenges are brought to development projects. The courts have already shown that water supply is not an issue to be ignored, whether it’s short-term supply or long-term. (See “California Supreme Court Weighs in Once Again on CEQA Compliance” for an analysis of the leading Supreme Court case on water supply.) More recently, petitioners have started to focus on the required water supply assessment under SB 610 (Water Code, §§ 10910, 10912), instead of only challenging the environmental impact report under the California Environmental Quality Act (“CEQA”).

Continue Reading Court Upholds City’s Water Supply Assessment

By Glen Hansen


Real estate buyers and sellers often draft very simple contracts to express their mutual intentions. Courts will enforce such contracts if the terms are certain enough for the court to know what to enforce. But what if important terms and conditions are missing in the written contract? What standard or customary conditions will a court read into such agreements? The Supreme Court addressed that issue in the recent case of Patel v. Liebermensch (2008) 45 Cal.4th 344, where the parties’ signed purchase contract was silent as to the length of the escrow period.

Continue Reading What Standard Escrow Terms Will A Court Imply In A Real Estate Purchase Contract?

By Nathan Jones and Cori Badgley

In Fairbanks North Star Borough v. U.S. Army Corps of Engineers (2008) 543 F.3d 586, the United States Court of Appeals, Ninth Circuit held that the U.S. Army Corps of Engineers; (“USACE”) determination that a Clean Water Act section 404 wetlands permit would be required is not a final agency decision. Consequently, the USACE’s jurisdictional determination (“JD”) cannot be reviewed by the courts under the Administrative Procedures Act (“APA”) (5 U.S.C. § 704), if the JD concludes waters are present.

Continue Reading Ninth Circuit Holds Assertion of Jurisdiction By USACE Not a Reviewable Agency Decision

By Glen Hansen

In Arcadia Development Co. v. City of Morgan Hill (2008) 169 Cal.App.4th 253, the California Court of Appeal, Sixth Appellate District, held that the extension of a temporary growth control ordinance restarts the running of the 90-day statute of limitations found in Government Code section 65009 to challenge the ordinance.

Continue Reading Extending A Temporary Growth Control Plan Reopens The Statute of Limitations To Legal Challenges

By Nathan Jones and Leslie Z. Walker

In May of 2006, the San Francisco Board of Supervisors approved an ordinance “Adopting the redevelopment plan for the Bayview Hunters Point Redevelopment Project” (“Ordinance”). The ordinance increased the size of redevelopment activity in Bayview-Hunter’s Point from 147 acres to 1,500 acres. Many in the community viewed the redevelopment project as an attempt to gentrify the area aimed at dispossessing working-class residents in the area.  The case of Defend Bayview Hunters Point Committee v. City and County of San Francisco (2008) 167 Cal.App.4th 846, illustrates a pitfall for organizers who fail to attach reference materials of substance to a petition challenging a local redevelopment ordinance.

Continue Reading Full Disclosure- Reference Documents Must be Attached to Referendum Petition to be Legally Sufficient Under State Elections Code

Reserve your seat for one of two seminars taking place next week. 

On January 21st and January 22nd, 2009, Abbott & Kindermann, LLP will presents it’s annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2009 will be discussed:

  • Global Warming
  • Water Supply and Water Quality
  • CEQA Litigation
  • Proposed Amendments to the CEQA Guidelines

For the first time, Abbott & Kindermann, LLP will be presenting its annual program at two locations, Sacramento and now Modesto. Details for both seminars are below. We look forward to seeing you there.  

First Ever – Modesto Conference

  • Date: Wednesday, January 21, 2009
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Thursday, January 22, 2009
  • Location: Sacramento Radisson, 500 Leisure Lane
  • Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. – 12:00 noon

There is no charge for the programs and MCLE credits are available.

An RSVP will be required as space is limited. To reserve a spot now, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

By Leslie Z. Walker

Six months after releasing its Technical Advisory CEQA and Climate Change: Addressing Climate Change Through California Environmental Quality Act Review (see OPR on CEQA and Climate Change: Local Agencies Continue to Bear the Heat), the Governor’s Office of Planning and Research issued Preliminary Draft CEQA Guideline Amendments for Greenhouse Gas Emissions on January 8, 2009.The Guideline amendments were developed in response to Senate Bill 97 (Chapter 185, Statutes 2007; Pub. Resources Code, § 21083.05) which directs OPR to develop draft CEQA Guidelines for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions by July 1, 2009.

Continue Reading No Surprises in Draft CEQA Guidelines for Greenhouse Gas Emissions

By Cori Badgley and Nathan Jones

Estoppel is a pervasive legal concept dating back to the common law of England. Though it takes many forms, its application revolves around a party’s action or inaction to the prejudice of the other side or to a decision maker. Estoppel is a legal doctrine that may be used in certain situations to prevent a person from relying upon certain rights, or upon a set of facts (e.g. words said or actions performed) which differs from an earlier set of facts.  Inquasi-judicial tribunals like the Coastal Commission, the agency may both oppose you and act in a judicial capacity. The case of Mt. Holyoke Homes, LP v. California Coastal Commission (2008) 167 Cal.App.4th illustrates that estoppel applies when a party continues to negotiate with the California Coastal Commission (“Commission”) even though the Coastal Commission has already lost jurisdiction over the disputed matter.

Continue Reading Peril for the Unwary: Use It or Lose It Against The Coastal Commission