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by William W. Abbott and Robert T. Yamachika

In a previous article, we noted that a disorganized administrative record could be fatal to project approval if the land use decision is challenged in court. As noted in Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, a court could set aside a project approval simply because the administrative record was poorly organized. In these circumstances, the developer and the lead agency share a mutual interest in investing in timely review and organizational efforts in the administrative record long before a CEQA challenge is filed. Once the parties recognize that record organization is critical, they then face the question of what should the preparers focus in on? You may not like the answer.
Continue Reading Making (and Breaking) the Record

by Robert T. Yamachika

The extent of Clean Water Act (“CWA”) jurisdiction has been a hotly debated topic over the past few years ever since the United States Supreme Court decided Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC“). In SWANCC, a divided Supreme Court (5-4) invalidated the Migratory Bird Rule which the Army Corps of Engineers (“ACOE”) used to extend the CWA’s jurisdiction to non-navigable, isolated waters used as habitat by migratory birds. Although the Court struck down the Migratory Bird Rule, it failed to make clear what waters and wetlands are subject to the CWA’s jurisdiction. This has resulted in considerable confusion and the courts have continued to struggle with determining the extent of the CWA’s jurisdiction.
Continue Reading Clean Water Act Update: Three Recent Wetland Cases Support Narrow Reading of SWANCC

by William W. Abbott

An unheralded side effect of urbanization in California has been its effect on the dairy industry. Over the years, established dairies have been forced to relocate to new pastures in order to avoid the conflict between farm and urban uses. In flight from southern California’s Inland Empire and the pricey Bay Area, the new operations are settling into the Central Valley. As these operations relocate and expand in size, many face CEQA challenges. These challenges primarily focus on the side effects of air and water quality, along with odor and waste disposal. In Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, the Court of Appeal for the Fifth Appellate District recently affirmed the certification of an EIR for one of these new dairies.
Continue Reading Got EIR? EIR Upheld For Major Dairy Facility; Local Agency Not Required To Follow Informal State Species Study Requirements

by William W. Abbott

On February 27, 2003, the Second District Court of Appeals issued another reminder that “paper water,” a phrase used to describe theoretical supplies of contracted water from the state and federal water projects, cannot be assumed to be the same as real water. Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715. The facts involved the continued efforts of the Newhall Land Company to develop a portion of its vast holdings northwest of Los Angeles. The project, West Creek, involved 2,545 housing units, 180,000 square feet of commercial retail space, and 46 acres of community facilities. At issue was the EIR’s assessment of water service impacts. Water for West Creek would come from different suppliers.
Continue Reading EIRs cannot routinely rely upon full state and federal water contract deliveries in evaluating adequacy of water supplies

by William W. Abbott

1. Describe and consider all project components, including offsite improvements (road work, utilities).

– Failure to look at offsite improvements invalidates negative declaration Santiago Water District v. County of Orange (1981) 118 Cal.App.3d 818. San Joaquin Raptor v. County of Stanislaus (SJR1) (1994) 27 Cal.App.4th 713.

– Description of related water…

by William W. Abbott and Robert T. Yamachika

In 1998, the Wilson Administration adopted far reaching amendments to the CEQA Guidelines which narrowed environmental review and encouraged the use of negative declarations. In Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, environmental groups filed a writ of mandate to overturn these amendments as being inconsistent with state statute and case law. The trial court in large part agreed with the plaintiffs and granted the relief sought, that being a judicial determination that specified elements of the 1998 amendments were invalid. On October 28, 2002, the Third District Court of Appeal essentially agreed with the trial court. This article highlights the Court of Appeal decision and summarizes the remaining “safe harbor” CEQA provisions governing environmental streamlining.
Continue Reading Court Rejects Key 1998 CEQA Guidelines Amendments

by William W. Abbott and Robert T. Yamachika

The Governor recently signed AB 2370 which amends portions of the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 (“LAFCo law”). This legislation takes effect on January 1, 2003, but does not apply to changes of organization or reorganization initiated prior to January 1, 2003. In a nutshell, AB 2370 prohibits local agency formation commissions (“LAFCos”) from approving a change of organization or reorganization or a change in the sphere of influence of a local government agency that would result in the annexation to cities or special districts, land that is subject to a farmland security zone (“FSZ”) contract or Williamson Act contract except under specified conditions. Thus, the net effect of the legislation is to further protect contracted lands from conversion to urban type uses.
Continue Reading Analysis of AB 2370 New Legislation Regarding LAFCos and Williamson Act Lands (Chap. 614, Stats. 2002)

by William W. Abbott and William V.W. Moore

In 2002 the Legislature amended the state zoning law in furtherance of its stated interest in creating housing opportunities. The first (AB 2292, Dutra) adds Government Code section 65863 and deals with “no-net-loss” of residential densities while the second (AB 1866, Wright) refines the state density bonus law. (Gov. Code § 65915.)
Continue Reading State Housing Objectives Move Forward in Year 2002 Revisions to the State Zoning Law