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By Glen Hansen

The Court of Appeal for the Third Appellate District held in Cottonwood Duplexes, LLC v. Barlow(November 13, 2012, C069564) ___ Cal.App.4th ___, that a trial court may not order a partial extinguishment of an express easement based on a finding that the reasonable use requirements of the dominant tenement do not require the full size and scope of the original easement.Continue Reading An Express Easement Cannot Be Extinguished Merely Because A Court Thinks That The Holder No Longer Has Any Reasonable Need To Use The Easement

By William W. Abbott

Within the Subdivision Map Act (Map Act), the processing of a mobilehome park conversion (from rental to individual ownership) invokes some of the more complex procedures, and from a local government perspective, potentially involves an application with a lot of emotional baggage. Unlike other Map Act related applications, park conversions involve a tenant survey, the results of which have been the subject of a several appellate court decisions. The recent appellate opinion in Chino MHC, LP v. City of Chino (October 31, 2012, E053467) ___ Cal.App.4th ___, provides guidance in two areas: what is the effect under the Permit Streamlining Act of a city determination that an application is complete when later reviewing the mandated tenant survey form, and, are the results of the tenant survey the basis to deny a conversion request?Continue Reading Appellate Court Applies Permit Streamlining Act to Affirm Effect of City Acknowledging Completeness of Application; Restricts Consideration of Tenant Survey in Mobilehome Park Conversion Application

By William W. Abbott

In case you missed the recent legal tremor, be advised that land use practitioners are looking at two appellate districts in conflict with one another over the application of CEQA to a citizen sponsored land use measure. In Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores, Inc.) (October 30, 2012, F063849) ___Cal.App.4th ___, the facts involve the efforts of Wal-Mart to seek an expansion of an existing store in the City of Sonora. An EIR was prepared by the City, and the Planning Commission recommended approval. Before the matter was considered by the City Council, an initiative was filed, the effect of which would change the land use regulations on the Wal-Mart parcel, and dispense with the need for a discretionary permit. Once the city determined that the initiative petition contained the requisite number of signatures, the City Council had two basic choices: enact the measure as its own without modification or place it on the ballot. With the belief that CEQA did not apply, the City Council chose the former option and enacted the initiative measure as its own. Litigation challenging the approval ensued, including a claim that the City Council was required to complete the CEQA process first. The City and Wal-Mart demurred to the petition/complaint, which the trial court sustained. Petitioners then filed a writ petition with the Fifth Appellate District which granted the writ as to the CEQA claim, effectively reinstating the claim at the trial court.Continue Reading Appellate Court Draws Line In Sand Requiring CEQA Review Before City Council Enactment of Land Use Measure

By Katherine J. Hart

In addressing their fair share regional housing needs, cities are required to include in their housing elements, site inventory for parcels able to be developed with multifamily housing for seniors and low income residents. However, when surrounding parcels have been built out, existing homeowners may object to the inclusion of such housing in their neighborhood.Continue Reading General Plan Inconsistencies Created By Revisions To Housing Element Can Be Remedied Through Timely Implementation Plan To Conform Inconsistent Elements

By William W. Abbott

Roseburg Forest Products Co. operates a wood veneer processing facility in Weed, California. In 2008, the County of Siskiyou approved a permit for the purpose of installing a biomass-fueled cogeneration power plant. The project included a steam-driven cogeneration system, turbine, cooling tower and substation (communications tower and building.) Source fuel included waste wood from the veneer plant operation, along with fuel from forest management activities. The County processed an EIR. In September 2008, the Siskiyou County Planning Commission certified an EIR and approved the use permit. Mount Shasta Bioregional Ecology Center (“MSBEC”) and others appealed the Commission’s decision. The Board upheld the permit in November of 2008. MSBEC and another organization then filed a CEQA challenge. In March, 2010, the trial court denied the writ petition.Continue Reading Co-Gen EIR With Limited Range Of Alternatives Upheld

In Chung v. City of Monterey Park (October 23, 2012, B233859) ___Cal.App.4th ___, the City Council directed staff to prepare a ballot measure that would require the City to seek competitive bids for trash service when the current contractor’s contract was complete in 2017, and provide a new bidding opportunity every five years thereafter. Chung, a resident of the City and signatory to the ballot arguments against the measure, filed suit to remove the measure from the ballot arguing the City violated the California Environmental Quality Act (CEQA) by failing to perform environmental review and because the Council “had deemed Measure BB a voter ‘initiative,’” but failed to follow the initiative measure requirements for a petition and thus, unconstitutionally restricted the actions of future City Councils.Continue Reading No Commitment, No “Project”

By William W. Abbott

The City of Santee certified an EIR, a water supply assessment and entitlements for a mixed use project on 970 acres of a 2,600 acre real estate holding. The approved land uses included 1,380 single family dwellings, 230 acres of a pedestrian oriented village, and a 10 acre lake. About half the area, 1,400 acres, would be approved as an open space preserve. Opponents challenged the EIR, and the trial court found a CEQA error pertaining to fire safety. The trial court declined the opponents request to set aside all of the approvals, opting for limited relief as contemplated by Public Resources Code section 21168.9. The trial court also awarded attorneys fees to the opponents under the authority of Code of Civil Procedure 1021.5. Both sides appealed.Continue Reading EIR Set Aside For Failure To Explain Discrepancy Between EIR And WSA In Water Demand Number And To Analyze Groundwater Impacts Resulting From Filling A Lake