October 2011

By Glen C. Hansen

In DeCicco v. California Coastal Commission (2011) 199 Cal.App.4th 947, Franco and Sonia DeCicco owned four contiguous lots in the coastal zone in San Luis Obispo County (County). They applied to the County for a permit that would allow them to subdivide their parcels into five parcels and construct four townhouses and a motel. Under the local coastal plan, the principal permitted uses for the DeCicco property were the type of residential multifamily and commercial retail proposed by the DeCiccos. The County approved the DeCiccos’ permit application and sent notice of the approval to the California Coastal Commission (“Commission”). The County and the Commission disagreed as to whether the permit was appealable to the Commission. The Commission made a determination that, although the DeCicco’s project involved principal permitted uses, it also required approval for a subdivision, which conferred appellate jurisdiction on the Commission under Public Resources Code section 30603, subdivision (a)(4). The DeCiccos filed a petition for writ of mandate challenging the Commission’s determination of jurisdiction of the matter. The Commission demurred to the petition on the ground that the DeCiccos failed to allege they exhausted administrative remedies. The trial court sustained the demurrer without leave to amend. Plaintiffs appealed. The Court of Appeal affirmed. 

Continue Reading Coastal Commission Has Appellate Jurisdiction Over A Project That Needs Subdivision Approval, Even If The Project’s Use Complies With The Local Coastal Plan

By Glen C. Hansen

Previously, this author explored how, under the doctrine of “equitable easements” (also known as “relative hardship”), courts may refuse to grant an injunction to a property owner to remove from his or her property an encroachment that is created or maintained by a neighboring owner. (See Glen C. Hansen, “‘The Court Let Me Keep My Fence On Your Land’: Neighborhood Boundary Encroachments and Exclusive Easements,” 29 Calif. Real Property Journal 10 (May 2011).) “Establishing the necessity for an equitable easement requires the owner [who built and/or maintains the encroachment] to prove that (a) the owner is innocent; (b) the neighbors’ injury caused by the encroaching structure is less than irreparable; and (c) the owner’s cost in removing the structure is greatly disproportionate to the neighbor’s injury caused by the structure.” (Id. at p. 14.) With no reported case law on point, this author suggested that “there is no ‘sword’ that the [encroaching] owner can wield to establish the right to maintain the encroaching structure [on neighboring property].” (Ibid.) Indeed, the Court of Appeal for the Sixth Appellate District held in unreported decision: “[W]e observe that the doctrine of relative hardship has only been invoked as a shield to defend against an injunction requiring the removal of an unlawful encroachment.” (Cobb v. Gabriele (2007) 2007 Cal.App. Unpub. LEXIS 3448, at *44 (emphasis added).)

Continue Reading Court Recognizes That A Property Owner May Be Able To Wield A “Sword” To Establish A Right To Maintain An Encroachment On Neighboring Property.

By Cori M. Badgley, William W. Abbott, Katherine J. Hart and Leslie Z. Walker

In the third quarter of 2011, the California Supreme Court issued two CEQA opinions and the California Appellate Courts issued 12 CEQA opinions. Many of the cases deal with procedural issues such as when the violation of a notice requirement is prejudicial (Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949); the appropriateness of an interlocutory remedy in administrative mandamus (Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499); and the prevailing party’s recovery of attorneys fees for administrative time under Code of Civil Procedure section 1021.5 (Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312). The most notable opinion issued in the third quarter was the Supreme Court’s reversal of the appellate court in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155. Not only did the Supreme Court determine that an EIR was not required for an ordinance banning plastic bags, but it also overturned prior precedent requiring corporations to make a heightened showing to demonstrate public interest standing.


By Katherine J. Hart

In the case of South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal. App. 4th 1604 (“South Orange”), the Court of Appeal for the Fourth Appellate District was asked to order an environmental impact report (“EIR”) be prepared to assess the impact of the environment on a proposed project pursuant to the California Environmental Quality Act (“CEQA”). The Court of Appeal declined to order such an EIR. The Court of Appeal also addressed whether the adopted project was inconsistent with the city’s general plan and zoning ordinance, and found that the project was consistent.

Continue Reading Adjacent Landowners Can’t Use CEQA to Avoid Potential Nuisance Claims

By Katherine J. Hart

The recent case of Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499, involves the issuance of an NPDES permit by the Central Coast Regional Water Quality Control Board (“Regional Board”) authorizing the Moss Landing Power Plant (then owned by Duke Energy, now owned by Dynegy) to draw cooling water from Moss Landing Harbor and Elkhorn Slough. Plaintiff Voices of the Wetlands challenged the permit raising a number of legal issues, but only the following three issues were addressed by the California Supreme Court:

(1)   Did the superior court have jurisdiction to consider the administrative mandamus petition at issue?

(2)   Did the trial court improperly order an interlocutory remand after finding insufficient evidence to support the Regional Board’s best technology available (BTA) finding?

(3)   Does section 316(b) of the Clean Water Act (CWA) permit a cost-benefit analysis in determining best technology available?

The court left unresolved the issue of whether compensatory mitigation and habitat restoration measures can be a component of BTA.

Continue Reading California Supreme Court Rules Interlocutory Remand a Valid Remedy in Writ Petitions

By William W. Abbott

Recent polls suggest that Proposition XIII remains as popular today as when it was enacted. Yet, at the same time, residents demand a high level of services which exceed the ability of local officials to fund absent innovation in developing new funding strategies. This innovation in turn has generated a series of voter enacted limitations designed to further restrict new revenue measures, absent voter approval. Part of this voter legacy is Proposition 218, enacted in 1996 (California Constitution Art XIIID).

Continue Reading Finding the Special in Special Benefits after Proposition 218

By Cori M. Badgley

In early 2011, the State Water Resources Control Board (“SWRCB”) released three draft statewide NPDES permits for public review and comment. To say that these permits were not well-received by the regulated community (i.e., small municipalities, CalTrans and industrial business owners) is an understatement. In a rare intervention by members of the state legislature into the realm of state agencies, the Senate Select Committee on California Job Creation and Retention held an informational hearing on the draft permits on October 6, 2011. The message from the hearing came across loud and clear: time for a do-over.

Continue Reading Senate Committee Scolds SWRCB in Recent Hearing on Draft Statewide Permits

By William W. Abbott

In CEQA and land use litigation, project opponents who prevail in court will seek attorneys’ fees as authorized by Code of Civil Procedure section 1021.5. This code section grants a trial court the discretion to award fees in appropriate situations. In circumstances in which the opponents must first exhaust administrative remedies before filing suit, can the successful party also recover fees for the administrative time? A recent appellate decision answers the question with a "yes".

Continue Reading Code of Civil Procedure §1021.5 Authorizes a Prevailing Party to Recover Its Attorney Fees for Administrative Time As Well As in Litigation

By Glen C. Hansen

In Sierra Forest Legacy v. Sherman (9th Cir. 2011) 646 F.3d 1161, the United States Forest Service established management guidelines under the 2004 Sierra Nevada Forest Plan Amendment (“2004 Framework”) that govern 11.5 million acres of federal land in the Sierra Nevada region. Environmental groups and the State of California filed separate actions challenging the 2004 Framework under the National Environmental Policy Act (“NEPA”), and the environmental groups also challenged the 2004 Framework under the National Forest Management Act (“NFMA”). The parties cross-moved for summary judgment. The U.S. District Court (a) issued a summary judgment that was largely unfavorable to the plaintiffs; (b) issued a limited remedial order in favor of plaintiffs that required the Forest Service to prepare a supplemental environmental impact statement to remedy a NEPA error; and (c) denied plaintiffs’ request to enjoin implementation of the 2004 Framework in the interim.

Continue Reading Ninth Circuit Issues Mixed Ruling Re NEPA and NFMA Challenges to 2004 Sierra Nevada Forest Plan Amendment

By William W. Abbott

How many mitigated negative declarations are required to avoid an EIR? In the recent decision of Schenck v. County of Sonoma (August 26, 2011, SCV-244017) ___Cal.App.4th ___, the answer is five. One can speculate that after five negative declarations, an EIR perhaps would have been a quicker route (and perhaps less expensive option) to reach the finish line. While the portion of this case devoted to the “fair argument” analysis remains unpublished, the court’s published ruling that certain procedural errors are not prejudicial is helpful, as well as the appellate court’s affirmation that the trial court can fashion a tailored remedy to cure a CEQA error, and is not compelled to reverse project approval.

Continue Reading Not Every CEQA Notice Defect is Prejudicial; Not Every CEQA Violation Compels Setting Aside the Approval