By William W. Abbott, Diane Kindermann, Katherine J. Hart, Glen Hansen and Brian Russell
Welcome to Abbott & Kindermann’s 2014 Annual CEQA update, cumulative for the year. The 4th quarter decisions are highlighted in bold font. To read the prior year cumulative CEQA review, click here: 2013Continue Reading 2014 CEQA ANNUAL REVIEW
By William W. Abbott
Adam Nick v. City of Lake Forest (December 23, 2014, G047115) ___ Cal.App.4th ___.
Due to over concentration of liquor licenses, the Department of Alcoholic Beverage Control referred an application for a determination of public convenience or necessity to the City of Lake Forest. A competitor then sought to overturn a city council’s findings in support of the license based upon four arguments: the city’s failure to act timely; improper determination by the planning commission; failure of the operator to provide a unique goods; and improper advocacy by the planning director.Continue Reading Too Much Of A Good Thing? Court Upholds Findings Of Convenience/Necessity For A Liquor Sales Permit.
By Katherine J. Hart
Friends of the Kings River v. County of Fresno (2014) 232 Cal.App.4th 105.
In the most recent CEQA case out of California’s Fifth Appellate District, the court of appeal upheld an EIR certified by the County of Fresno (County) as well as the County’s approvals of a use permit, site plan and reclamation plan for a large mining project.Continue Reading County’s Approval of 100 Year Mining Project and EIR Upheld by Fifth DCA
By William W. Abbott
Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152.
As with many cities and counties updating their general plans, the County of San Diego committed to adopting a climate action strategy. This commitment was formulated in 2011 as part of the county’s general plan update, based upon a program EIR (PEIR). In 2012, county staff advanced a Climate Action Plan (CAP) along with suggested thresholds of significance which would apply to the processing of later projects. The county relied upon an addendum to its 2011 general plan PEIR. The Sierra Club sued. The trial court agreed that the county had violated CEQA. The county appealed and the appellate court affirmed that the county violated CEQA. Where did the county go wrong?Continue Reading Make No Grand (General) Plans
By William W. Abbott
Paulek v. Department of Water Resources (2014) 231 Cal.App.4th 35.
It is a subtle shade of grey which separates a generalized comment on a project from an objection sufficient to support a later CEQA lawsuit. The California Department of Water Resources crafted this distinction in a case involving a CEQA challenge to a dam remediation project at Perris Lake, located within the Lake Perris State Recreation Area. The project included the following components: remediation of structural deficiencies; replacement of the existing outlet tower; and construction of an emergency outlet extension. In response to comments on the DEIR, the lead agency separated out the emergency outlet extension for separate CEQA review. In response to the CEQA lawsuit, the state (as the lead agency) argued that petitioner Paulek had only posed questions regarding the project, but had not “objected” to the project as required by Public Resources Code section 21177 and therefore, lacked standing to pursue a CEQA claim. Reviewing the transcript and comments, the court of appeal concluded that a question could readily be understood as an objection, as would questioning of the lead agency which inquired as to whether a project would achieve its objectives. On the latter point, the appellate court held this was part of the CEQA process as CEQA requires a balancing of interests. [Comment: in practical terms, this case affirms the widely held belief that it is not difficult for a potential CEQA petitioner to satisfy the obligation to object to the project as a condition precedent to bringing a CEQA claim.]Continue Reading Objector’s Questioning Of Project Sufficient To Meet The Standing Requirement To Bring a CEQA Claim. Separating Out A Portion of the Original Project For Separate Environmental Review Did Not Result In Impermissible Project Splitting.
Cleveland National Forest Foundation v. San Diego Association of Governments (November 24, 2014, D063288) ___ Cal.App.4th ___.
By William W. Abbott
In the first published decision to review a metropolitan planning organization’s Sustainable Communities Strategy, the Fourth Appellate District invalidated the EIR. This is a decision with potentially significant ramifications for many other EIRs as well. Continue Reading Court Affirms Inadequacy Of Programmatic EIR for SANDAG’s Sustainable Communities Plan, rejecting Alternatives and Lack Of Meaningful Mitigation Measures
Reserve your seat for one of four seminars taking place in early 2015.
In January and February 2015 Abbott & Kindermann, LLP will present its 14th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining
By William W. Abbott
San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498
Are general plan policies adopted by the citizens through an initiative, entitled to special consideration for purposes of determining consistency of projects with the general plan? Faced with that question in the context of planning policies adopted nearly 30 years ago in San Francisco, the Court of Appeal, First Appellate District, declined to elevate the legal significance of citizen crafted measures as compared to other regulatory requirements adopted through traditional means. Approximately 30 years ago, the voters in San Francisco adopted new land use requirements. Jumping ahead three decades, the court of appeal had to resolve whether a major private redevelopment undertaking was consistent with the relevant city regulations and policies, including those adopted by the voters.Continue Reading Court Of Appeal Applies Traditional Deferential Standard Of Review To Questions Of General Plan And Consistency Determinations Including Requirements Enacted By The Local Voters
Join Diane G. Kindermann and Brian Russell of Abbott & Kindermann, LLP, in a new class which will provide the attendee with current issues and solutions to consider when analyzing the feasibility of a winery or vineyard property. This half day program will cover how local, state and federal laws could restrict or enhance your
By William W. Abbott
El Dorado Estates v. City of Fillmore,765 F.3d 1118(9th Cir. Cal.2014)
The Ninth Circuit has concluded that the improper handling of a subdivision application by a city can give rise to a claim of discrimination under the Fair Housing Act. The claim stems from city responses to an application to subdivide an existing mobilehome park. El Dorado Estates (“El Dorado”) is the owner of a mobilehome park for residents 55 and older, located in the City of Fillmore. In 2008, the city considered adopting a park rent control ordinance, and El Dorado publically discussed the opening of the park to families. El Dorado elected to pursue a different path, that being to exit as a park operator and to subdivide and sell the tenant spaces. The existing tenants were opposed, and El Dorado encountered obstacles in processing its subdivision application through the city. El Dorado sued the city twice in state court. El Dorado then filed in federal court, alleging that the city’s land use practices were discriminatory based upon family status (families with minor children). El Dorado alleged that it faced unreasonable delays and expenses as a result of the city’s allegedly discriminatory practices. The city successfully filed a motion to dismiss based upon El Dorado’s lack of standing. The district court agreed, dismissing the case, and El Dorado appealed.
The Ninth Circuit disagreed, finding that El Dorado met the minimum three elements to satisfy standing: injury in fact, causation and redressibility. The Ninth held that that El Dorado alleged sufficient injury: unreasonable delays and extralegal conditions imposed upon its land use requests. Satisfied with the allegations of injury, the court of appeals found the remaining two elements: causation could be linked back to the allegations pertaining to the city’s actions while processing the applications and redressibility in that the district could award monetary damages based upon the injuries suffered by El Dorado. Whether El Dorado can prove its claims at trial remains to be determined. More on the federal Fair Housing Act can be found here http://www.justice.gov/crt/about/hce/title8.php. Information concerning California’s Fair Employment and Housing Act can be viewed here http://www.dfeh.ca.gov/Publications_FEHADescr.htm.Continue Reading Local Land Use Permitting and Discrimination Under the Fair Housing Act
