July 2009

By Katherine J. Hart

The City of Los Angeles (“City”) adopted a Specific Plan containing a provision which imposes affordable housing requirements on residential and mixed use projects of more than 10 dwelling units (“DUs”) per lot.  At issue in this case was whether the Costa-Hawkins Act preempts the City’s affordable housing requirements. The superior court held that the Costa-Hawkins Act does preempt the affordable housing requirements in the City’s Plan.

Continue Reading Another Developer Win on Affordable Housing Regs: A Local Agency can be Preempted from Implementing Affordable Housing Requirements as a Condition of a Project Approval

By Katherine J. Hart

The Riverwatch, et al. v. County of San Diego Department of Environmental Health, et al. (1989) 214 Cal.App.3d 1438 case involves the battle over attorney fees awarded to Petitioners by the trial court pursuant to Code of Civil Procedure section 1021.5, and proves that the courts are continuing the trend in awarding fees even for partially prevailing parties.

Continue Reading Attorney’s Fees in CEQA Cases: Hardly a Gamble Anymore

By William W. Abbott

The Building Industry Association (“BIA”) scored a major success with AB 333, which protects many tentative maps by tacking on an additional statutory life jacket of 24 months. Chapter 18, Statutes of 2009 operates as follows.

 Tentative subdivision maps scheduled to expire before January 1, 2012, are statutorily extended by 24 months. The new extension authorization, Government Code section 66452.22 is in addition to those already provided for by law, listed below:  


Continue Reading How Many Lawyers Does it Take to Extend a Tentative Map?

By Leslie Z. Walker

On July 3, 2009, the Natural Resources Agency issued a notice of proposed action (“Notice”) for the adoption of CEQA guidelines addressing the evaluation and mitigation of greenhouse gas emissions.  Public Resources Code section 21083.05 requires that the Governor’s Office of Planning and Research (“OPR”) “prepare, develop, and transmit to the Resources Agency guidelines for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions,” by July 1, 2009. OPR transmitted these in April of 2009, ahead of schedule.  See OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency. The Resources Agency has noticed its intent to adopt the guidelines, as proposed by the OPR.  The Notice commenced the rulemaking process for the guidelines.

Continue Reading CEQA Guidelines on Greenhouse Gases One Step Closer to Law

“On July 8, 2009 senior associate Katherine Hart was unanimously confirmed by the Senate Rules Committee for reappointment by Governor Schwarzenegger to the Central Valley Regional Water Quality Control Board.  Kate currently serves as the Vice-Chair of the Board.  She was originally appointed by Governor Schwarzenegger in September 2005.  She was reappointed by Governor Schwarzenegger for her second four-year term in September 2008.  The Central Valley Regional Water Quality Control Board is one of the nine regional water quality control boards statewide.  The Central Valley Board’s region comprises 40 percent of the entire State and contains the Sacramento-San Joaquin Delta.  The Board makes critical water quality decisions for its region, including setting standards, issuing waste discharge requirements, determining compliance with those requirements, and taking appropriate enforcement actions.”

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 Leslie Z. Walker

More than three years after the State’s initial request, the United States Environmental Protection Agency (“US EPA”) granted California’s request for a waiver to allow the state to enforce its greenhouse gas (“GHG”) emission standards for new motor vehicles.  The waiver, coincidentally granted as the nation’s largest automaker works its way through bankruptcy court, allows the regulations developed by the California Air Resources Board (“CARB”) in response to Assembly Bill 1493 (Chapter 200, Statutes 2002) to take effect.  The regulations add four GHGs to California’s existing regulations and phase in emission standards for those gases.

Continue Reading US EPA Grants California Waiver to of Clean Air Act Preemption to Enforce Greenhouse Gas Emission Standards

By Katherine Hart

In the recent case of City of Irvine v. Southern California Association of Governments, the City of Irvine (“City”) sued the Southern California Association of Governments (“SCAG”) for allocating almost 43 percent of Orange County’s regional housing needs to the City. SCAG is charged with developing a regional housing need assessment (“RHNA”) for cities within its jurisdiction. SCAG delegated to the Orange County Council of Governments the responsibility for providing the data to be used by SCAG in applying the methodology used to determine the allocation of housing units to jurisdictions within Orange County.

Continue Reading California Appeals Court Says No Judicial Review of COG RHNA Allocations

By Leslie Z. Walker

In White Tanks v. Strock (9th Cir. 2009) 563 F.3d 1033, the Ninth Circuit held the Army Corps of Engineers (“USACE”) had improperly confined the geographic scope of its environmental analysis under the National Environmental Policy Act (42 U.S.C. § 4321 et seq.) (“NEPA”) in issuing a permit under Section 404 of the Clean Water Act (33 U.S.C. § 1251 et seq.) (“CWA”).  The Court held that because the feasibility of the whole project depends upon the Corps granting a Section 404 permit, the entire project is within the purview of the Corps and thus subject to environmental review under NEPA.

Continue Reading Geographic Scope of Environmental Study Depends on Feasibility of Project without Federal Action