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.
Continue Reading 2011 CEQA THIRD QUARTER UPDATE
Adjacent Landowners Can’t Use CEQA to Avoid Potential Nuisance Claims
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.
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California Supreme Court Rules Interlocutory Remand a Valid Remedy in Writ Petitions
The recent case of Voices of the Wetlands v. State Water Resources Control Board (August 15, 2011, S160211) 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, including whether the trial court improperly ordered an interlocutory remand. The appellate court affirmed and the trial court denied the writ.
Continue Reading California Supreme Court Rules Interlocutory Remand a Valid Remedy in Writ Petitions
Finding the Special in Special Benefits after Proposition 218
Agencies forming assessment districts must disclose basis for assessment of public and private properties; the required engineer’s report must provide and identify special and general benefits, and provide rationale for special benefits and corresponding benefits.
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Senate Committee Scolds SWRCB in Recent Hearing on Draft Statewide Permits
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.
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Code of Civil Procedure §1021.5 Authorizes a Prevailing Party to Recover Its Attorney Fees for Administrative Time As Well As in Litigation
In a CCP section 1021.5 fee award, the trial court has the discretion to award fees for the time spent in administrative proceedings.
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
Ninth Circuit Issues Mixed Ruling Re NEPA and NFMA Challenges to 2004 Sierra Nevada Forest Plan Amendment
In Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir. 2011), the Ninth Circuit Court of Appeals issued four separate opinions that, collectively, held that the U.S. District Court properly found that the 2004 Sierra Nevada Forest Plan Amendment and related Basis Project (“2004 Framework”) issued by the U.S. Forest Service did not violate the National Environmental Policy Act. However, when the District Court applied a 2007 amendment to the 2004 Framework retroactively, the District Court failed to properly determine whether the 2004 Framework violated the National Forest Management Act.
Continue Reading Ninth Circuit Issues Mixed Ruling Re NEPA and NFMA Challenges to 2004 Sierra Nevada Forest Plan Amendment
Not Every CEQA Notice Defect is Prejudicial; Not Every CEQA Violation Compels Setting Aside the Approval
CEQA notice error not necessarily prejudicial in every situation; trial court can fashion narrow relief.
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Property Owner Hit With $137,778 Civil Penalty, Appeals, And (Without Adequate Notice) Ends Up A $1,148,200 Penalty! Court Reverses for Lack of Due Process.
In Tafti v. County of Tulare (2011) 198 Cal.App.4th 891, the Court of Appeal for the Fifth Appellate District held that a local enforcement agency violated the due process rights of a property owner when it failed to provide adequate notice of the nature of an administrative appeal hearing, where an administrative law judge recalculated a civil penalty in the amount of $1,148,200, and where the penalty amount stated in the original enforcement order that the owner appealed from was $137,778. The enforcement order’s description of the appeal rights gave the misleading notion that the hearing, if requested, would be limited to the factual issues set forth in the enforcement order; and nothing in the order alerted the owner to the fact that if he requested a hearing, it would reopen the civil penalty issue and allow the administrative judge to determine anew, without any limitation to the amount set forth in the enforcement order, the total assessment of civil penalties.
Continue Reading Property Owner Hit With $137,778 Civil Penalty, Appeals, And (Without Adequate Notice) Ends Up A $1,148,200 Penalty! Court Reverses for Lack of Due Process.
A Series of Unfortunate Events… That are Not Compensable under Inverse Condemnation
This case involved the perfect storm of events resulting in the flooding of the plaintiffs’ properties. Plaintiffs sued the county in court claiming that the flooding was a result of county’s actions and constituted a taking. The appellate court disagreed and found in favor of the county.
Continue Reading A Series of Unfortunate Events… That are Not Compensable under Inverse Condemnation