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By William W. Abbott

City of San Diego v. Board of Trustees of the California State University, S199557, Supreme Court of California, 2015 Cal. LEXIS 5291, August 3, 2015

The California Supreme Court cleared the air over one of its earlier CEQA decisions concerning the responsibility of CSU to consider and mitigate for offsite impacts. In 2006, the Court determined that CSU Monterey was not precluded from mitigating for offsite impacts occurring in the City of Marina. City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341. In the Marina decision, the court stated “[A] state agency’s power to mitigate its project’s effects through voluntary mitigation payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.” The University system is directed by a Board of Trustees, who, in reliance upon the above quoted language in Marina, determined that the University was not authorized to engage in offsite mitigation absent a specific legislative appropriation.Continue Reading WILL CSU EVER GRADUATE FROM CEQA SCHOOL?

By Glen Hansen

Save Our Uniquely Rural Community Environment v. County Of San Bernardino (2015) 235 Cal.App.4th 1179

In Save Our Uniquely Rural Community Environment v. County Of San Bernardino (2015) 235 Cal.App.4th 1179, the Court of Appeal for the Fourth Appellate District held that a petitioner failed to show that a trial court abused its discretion when it awarded petitioner $19,176 in attorneys’ fees under Code of Civil Procedure section 1021.5 despite petitioner’s request for $231,098, because petitioner (a) prevailed on only one of its numerous claims under the California Environmental Quality Act (“CEQA”) and local zoning ordinances; (b) excessively billed the case; and (c) failed to demonstrate why it was entitled to out-of-area attorney fee rates.Continue Reading “Outrageous” CEQA Attorneys’ Fees – Anatomy Of A 91% Haircut On Fee Recovery

By William W. Abbott, Diane Kindermann, Glen Hansen, Brian Russell and Dan Cucchi

Welcome to Abbott & Kindermann’s 2015 2nd Quarter CEQA update. This summary provides links to more in depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts. Highlights include the first decision (Paulek) to address exemptions following Berkeley Hillside, with this new decision succeeding in muddying CEQA legal waters. Keep Our Mountain Quiet reminds CEQA practitioners once again of the challenges when using negative declarations and will make life more difficult in the agritourism industry. And in litigation, the court of appeal affirms that a trial court decision as to an award of attorneys’ fees is rarely disturbed on appeal (Save Our Uniquely Rural Environment).Continue Reading 2015 CEQA 2nd QUARTER REVIEW

NEGATIVE DECLARATION FOR RURAL WEDDING SITE VENUE SET ASIDE DUE TO POTENTIAL ROAD AND NOISE IMPACTS

By William W. Abbott

Keep Our Mountains Quiet v. County of Santa Clara (May 7, 2015, H039707) ___ Cal.App.4th ___.

The “Fair Argument” standard remains as the operative benchmark in assessing the validity of a negative declaration. The most recent decision involves approval by Santa Clara County of a wedding site venue located off of Summit Road, a state maintained facility in rural Santa Clara County. Existing uses on the property included a winery, llama and alpaca grazing lands, barns and a residence. Adjacent properties include park land owned by an open space district (with restricted access) and homes. In a not uncommon fact pattern, the property owner began hosting wedding events, some of which had up to 300 guests. Following complaints and direction from the County, the applicant filed for a use permit seeking 28 special events for up to 100 guests and 12 staff, during the hours of 2:00 p.m. to 10:00 p.m. The County studied the project for three years before issuing a mitigated negative declaration (MND). After taking testimony, the Planning Commission approved a revised MND in December 2011. The neighbors appealed the Board of Supervisors who denied the appeal, affirming the MND and conditional use permit. Conditions of approval included the following limitations: only one outdoor live event (to be monitored) orientation of speakers away from existing homes towards the open space preserve with specific placement approved by the planning department based upon a review by a noise consultant. CEQA litigation followed. The trial court found that an EIR was required due to potential noise and traffic impacts, declining to rule on the alleged violations of planning and zoning law deeming them moot. The court also awarded the petitioner attorney fees of $145,747, but declined to enhance the award as requested by the petitioner. Petitioner and real party in interest both appealed. The County did not.Continue Reading “Happily ever after?” Not according to the neighbors of rural wedding site venue.

By: Brian Russell

Save Our Uniquely Rural Community Environment v. County of San Bernardino (March 18, 2015, E059524) ___Cal.App.4th ___.

Plaintiff and appellant Save Our Uniquely Rural Community Environment (SOURCE) appealed an award of attorney fees in a case arising under CEQA. It contended that the trial court abused its discretion when it awarded $19,176, despite SOURCE’s request for $231,098.Continue Reading California Courts Are Provided Broad Discretion When Awarding “Reasonable” Legal Fees Under CEQA

By Katherine J. Hart

Charles Conway Jr v. State Water Resources Control Board (March 30, 2015, B252688) ___ Cal.App.4th ___.

Functionally equivalent CEQA documents can be tiered in a manner similar to a regular EIR. This new CEQA decision involved a basin plan amendment (BPA) establishing a total maximum daily load (TMDL) of pollutants allowed in McGrath Lake. The BPA/TMDL was adopted by the Regional Water Quality Control Board (Regional Board) and approved by the State Water Resources Control Board (State Board) and U.S. Environmental Protection Agency (EPA). Landowners who own a portion of the lake were allocated a load under the TMDL, which would make them responsible for remediation of the lake pollution. The landowners challenged the Boards’ adoption of the TMDL on two grounds: first, that the Regional Board improperly set load allocations for concentrations of pollutants contained in the lake bed sediment, and that a TMDL can only regulate the movement of pollutants in the water column; and (2) that the Regional Board failed to comply with CEQA. The trial court denied the plaintiffs’ claims and the appellate court affirmed.Continue Reading First Tier Functionally Equivalent CEQA Document Upheld for Adoption of Basin Plan Amendment and TMDL Standard

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

Welcome to Abbott & Kindermann’s 2015 1st Quarter CEQA update. This summary provides links to more in depth case discussions located on the firm’s blog.

While there were only five published decisions in the first quarter of 2015, it was certainly noteworthy for the California Supreme Court’s decision in Berkeley Hillside, a decision which clarifies and incrementally advances the use of exemptions. As explained in our article, the battle for the heights in Berkeley is far from over. However, the appellate courts in turn wrestled with setting the baseline after an emergency project (Creed 21), tiering for functionally equivalent documents (Conway) and EIR sufficiency for Sacramento’s downtown entertainment and sports complex (Saltonstall). Finally, the court upheld the level of detail and range of alternatives in the EIR prepared by the California Department of Fish and Wildlife on its stocking, fishery and urban fishing program (CBD). 

We also include a summary of all of the CEQA cases pending at the California Supreme Court. To review our 2014 CEQA Annual Summary click here.Continue Reading 2015 CEQA 1st QUARTER REVIEW

By William W. Abbott

Center for Biological Diversity v. Department of Fish and Wildlife (2015) 234 Cal.App.4th 214.

For over 100 years, the State of California has operated fish hatcheries. In the last twenty years, concerns have developed over the potential impacts of stocked fish on native and wild animals. Evidence suggested that amphibians in high altitude lakes were particularly vulnerable. Beginning in 2001, the then Department of Fish and Game begin performing surveys of high altitude lakes, completing over 16,000 surveys. The surveys formed the basis of management plans for 27 watershed areas. The Department also began working on hatchery genetic management plans, a planning tool under the Federal Endangered Species Act of 1973. (As of January 2010, none of these plans had been adopted.) In 2006, the Center for Biological Diversity (CBD) filed suit, claiming that the hatchery and stocking efforts were not exempt from CEQA review. In 2007, the court granted the writ of mandate compelling CEQA compliance, but did not suspend the hatchery and restocking program. The Department did not appeal, and proceeded with an EIR. In 2008, the Department moved to extend the deadline to complete the EIR, based in part that program funding was in part federal, and that the EIR would be combined with an EIS. In early 2010, the Department certified a program EIR, covering not only the state’s hatchery and stocking program, but Fishing in the City, Aquarium Education Project and fish stocking practices by private stocking companies working in private and public water. The EIR concluded that there were impacts to amphibians, and developed a new protocol requiring pre-stocking surveys. Based upon an evaluation by a biologist, if potential impacts could occur then no stocking could take place until the Department developed and implemented an aquatic biodiversity management plan. If no impacts were anticipated, then stocking could proceed, a decision valid for five years. The EIRs analysis was based upon a baseline of 2004-2008, which included hatchery and stocking practices. As mitigation for impacts to wild salmon and steelhead populations, the Department committed to the hatchery genetic management plans, including federal approval. Additional mitigation measures were developed and applied to private stocking permit operators.Continue Reading Appellate Court Affirms Programmatic EIR For Fish Hatchery And Stocking Program; Holds That Mitigation Measures Applicable To Private Parties Adopted By California Fish & Wildlife Must Be Adopted As Regulations