July 2013

By Katherine J. Hart

In reversing the U.S. District Court, the U.S. Court of Appeal for the Ninth Circuit held in California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., ___ F.3d ___, 2013 U.S. App. LEXIS 14777 (9th Cir., No. 11-16959, July 22, 2013), that where the state of California had not brought either a court action to require compliance with the Clean Water Act (“CWA”), or commenced an administrative penalty action comparable to one under the CWA, neither 33 U.S.C. section 1365(b)(1)(B) nor section 1319(g)(6)(A)(ii) barred a citizen suit to enforce California’s storm water general NPDES permit.

Continue Reading Citizen Suit Under The Clean Water Act Is Not Barred Where State Of California Had Not Brought Either A Court Action To Enforce Compliance With The Act, Or Commenced An Administrative Penalty Action Comparable To One Under The Act.

By William W. Abbott

The last market downturn has resulted in Subdivision Map Act (“SMA”) cases involving circumstances in which the parties to a purchase or option agreement pertaining to a portion of a legal parcel failed to include express language as a contingency requiring compliance with the SMA. Depending upon whether the real estate market is rising or falling, both buyers and sellers have taken advantage of the limitations of Government Code section 64499.30. To date, these cases include Black Hills Investments, Inc. v. Albertson’s, Inc. (2007) 146 Cal.App.4th 883 and Sixells, LLC v. Cannery Business Park (2008) 170 Cal.App.4th 648.

Continue Reading Buyer And Seller Can Cure A SMA Violation Under Black Hills Through Subsequent Agreement Modification

Vested Rights, Vesting Maps and Development Agreements (131LUP154)

 When: August 16, 2013: Fri., 9 a.m.-4:30 p.m.

Where: Sutter Square Galleria, 2901 K St, Sacramento, CA

Development agreements are an effective avenue for a community and developer to come together and process a project. Both sides of the table need to carefully consider the terms of these contracts and explore questions of content and performance before completing such an agreement. Learn the legislative and judicial aspects of development agreements.

Examine the legal basis for development agreements and the overlap between agreements and vesting subdivision maps. Examine the negotiating process, identify and discuss the range of options available when negotiating a development agreement, and review the theoretically possible agreement. Consider the key points of an agreement, learn ways to assist in understanding the needs of the other side and select the players to conduct the negotiation.

Topics include:

– Common law vested rights

– Legal review

– Development agreements vs. vested maps

– Considerations in negotiating the agreement

– Contents of an agreement

– How to implement agreements

– What happens after the life of an agreement

For more information visit: http://extension.ucdavis.edu/unit/land_use_and_natural_resources/course/description/?type=A&unit=LUNR&SectionID=167593&course_title=Vested%20Rights,%20Vesting%20Maps%20and%20Development%20Agreements&prgList=LUP&AreaName=Land+Use

By Katherine J. Hart

In Citizens for Ceres v. Superior Court (July 8, 2013) ___ Cal.App.4th ___ (Citizens for Ceres), the Fifth Appellate District considered a writ from the trial court’s order denying the Citizens’ motion to augment the administrative record with various communications and documents excluded by the City. In overruling the trial court’s order, the Court of Appeal held that while Public Resources Code section 21167.6(e)(10) does not abrogate the attorney-client and attorney work-product privileges, “the common interest privilege does not protect otherwise privileged communications disclosed by the developer to the city or by the city to the developer prior to project approval.” Such a ruling conflicts with the implied holding of the California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th1217 (California Oak) ruling on this issue.

Continue Reading Fifth Appellate District Says There Is No Common Interest Privilege In California Pre-Project Approval

By William W. Abbott

Not surprisingly, the building industry was able to convince the Legislature to keep pending maps alive for another two years. AB 116, Chap. 62 Stats. 2013. Fortunately, the Legislature abandoned its existing complicated statutory formula for determining winners and losers, opting for much simpler protocols. If the TSM was approved after January 1, 2000 and the map was pending on July 11, 2013, the tentative map is extended by 24 months. This extension occurs automatically.

Continue Reading California Legislature Breathes Life Into Tentative Maps One More Time

By William W. Abbott

Save Panoche Valley v. San Benito County (June 25, 2013, H037599) ___ Cal.App.4th ___.

Famous for its bird sitings (http://www.audublog.org/?p=4155), Panoche Valley sits nestled between Interstate 5 and Highway 101 (http://www.cosb.us/Solargen/). I wager that few Californians have passed through this quiet terrain, and but for this court decision, would not know that this valley exists. Besides its limited number of residents and great diversity in bird species, Panoche Valley is also notable in that (1) it is exposed to high levels of solar radiation, and (2) it is bisected by a 230 kV transmission line. Just as no-good-deed-goes-unpunished, neither do conflicting environmental values resolve themselves without a CEQA lawsuit.

Continue Reading Williamson Act Contract Cancellation For Solar Project Upheld Along With Companion Environmental Impact Report

Welcome to Abbott & Kindermann’s 2013 CEQA update. It is cumulative for the year, with the newest cases issued in the 2nd quarter shown in italics and bold type face.

To review our prior annual reviews, click here: 2012; 2011; 2010; 2009; 2008.

The pace of published CEQA cases remains relaxed for the first half of 2013. However, five cases are pending at the California Supreme Court. These include the unusual circumstances limitation on exemptions (Berkeley Hillside Preservation v. City of Berkeley); setting the baseline (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority); application of CEQA to council enactment of measures which qualify as initiatives on local ballots (Tuolumne Jobs & Small Business Alliance v. Superior Court); and mitigation requirements (City of San Diego v. Board of Trustees and City of Hayward v. Board of Trustees.)

Continue Reading 2013 CEQA 2ND QUARTER REVIEW

By Diane Kindermann, William W. Abbott, Glen Hansen and Katherine J. Hart

Welcome to Abbott & Kindermann’s 2013 Mid-Year Environmental update. This update discusses selected litigation, regulations / administrative guidance and pending legislation, on both the federal and state levels, in the following general areas of environmental law: (A) Water Supply, (B) Water Quality, (C) Wetlands, (D) Air Quality, (E) Endangered Species, (F) NEPA, (G) Mining / Oil & Gas, and (H) Cultural Resources.


By Glen C. Hansen

For nearly twenty years, Fifth Amendment takings challenges to adjudicative land-use exactions and permit conditions have been governed by the dual Supreme Court cases of Nollan v. California Coastal Commission, 483 U.S. 825 (1987),and Dolan v. City of Tigard, 512 U.S. 374 (1994). In Nollan, the Court held that a government could, without paying the compensation, demand the easement as a condition for granting a development permit the government was entitled to deny, provided that the exaction would substantially advance the same government interest that would furnish a valid ground for denial of the permit. The Court further refined that requirement in Dolan, holding that an adjudicative exaction requiring dedication of private property must also be “‘roughly proportional’ . . . both in nature and extent to the impact of the proposed development.” However, Nollan and Dolan involved the dedication of real property interests. In Koontz v. St. Johns River Water Management District, ___ U.S. ___, 2013 U.S. Lexis 4918 (2013), the Court held in a 5-4 decision that “the government’s demand for property from a land-use permit applicant must satisfy the requirements of Nollan and Dolan even when the government denies the permit and even when its demand is for money.” 

Continue Reading The U.S. Supreme Court’s Nollan/Dolan Jurisprudence Is Catching Up With The California Supreme Court in Ehrlich v. Culver City