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Center for Biological Diversity v. California Department of Fish and Game, et al. (2014) 224 Cal.App.4th 1105, review granted and depublished (July 9, 2014), 2014 Cal.LEXIS 5032.

The California Supreme Court granted review and depublished the Court of Appeal opinion. (2014 Cal.LEXIS 5032.) The court agreed to hear the following questions: (1) Does the…

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

Welcome to Abbott & Kindermann’s 2014 2nd Quarter CEQA update. Our thirst for guidance from the California Supreme Court remains unquenched as the court still has five CEQA cases under review. In terms of other interesting developments during the second quarter, two courts of appeal ground through three of highly detailed cases: California Clean Energy Committee v. City of Woodland, Center for Biological Diversity v. California Department of Fish and Game and Sierra Club v. County of Fresno. Read together, these cases cover much of CEQA’s fine parts. Thinking about impacts and mitigation is not the same as actual CEQA evaluation as the court observes in Lotus v. Department of Transportation. Finally, in terms of other developments the City of San Jose successfully defended its eighth addendum to the 1997 EIR for its airport master plan.Continue Reading 2014 CEQA 2nd QUARTER REVIEW

By William Abbott, Diane Kindermann, Katherine Hart, Glen Hansen, and Brian Russell

Welcome to Abbott & Kindermann’s 2014 1st Quarter CEQA update. It has been a quiet first quarter. One decision, Lotus v. Department of Transportation includes an interesting analysis on the use of construction commitments as part of the project description or as mitigation measures.Continue Reading 2014 CEQA 1st QUARTER REVIEW

By Diane G. Kindermann

In a lengthy and unanimous reversal of the trial court on ESA and CEQA issues in Center for Biological Diversity v. California Department of Fish and Game, et al. (March 20, 2014, BS131347) ___ Cal.App.4th ___, the second appellate district, Division Five, roundly upheld the Department of Fish and Wildlife’s (“department”) certification of an environmental impact report (“EIR”) assessing the effects of a resource management plan, conservation plan, streambed alteration agreement and two incidental take permits, in tandem with approval of each plan and issuance of the associated incidental take permits. The EIR related to general planning and conservation steps resulting from Los Angeles County’s prior approval of a 12,000 acre specific plan and neighboring 1500 acre conservation area in Ventura County. In its textured opinion, the appellate court relied heavily on facts in the trial court record to perforate all arguments raised by the Plaintiffs and Respondents Center for Biological Diversity, Friends of the Santa Clara River, Santa Clarita Organization for Planning and the Environment, California Native Plant Society, and Wishtoyo Foundation/Ventura Coastkeeper.Continue Reading Appellate Court Shuts Out Trial Court in CEQA/ESA Double Header under Deferential Standard of Review

By William W. Abbott

The California Supreme Court has a number of cases on its docket for consideration in 2014 that are of interest to planners, local government officials, developers and community interest groups. These cases include both CEQA and land use considerations. Here are the summaries from the Court’s website:Continue Reading 2014 Court Watch

By Katherine J. Hart

In Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192; 2013 Cal.App. LEXIS 893 (Latinos Unidos II), the Court of Appeals, First Appellate District, upheld the City of Napa’s (City) use of its 1998 Program EIR (prepared and certified for purposes of the City’s 2020 General Plan update) for the proposed 2009 Housing Element update, and related Land Use Element and zoning code amendments. More specifically, in updating its Housing Element, the City of Napa also amended its Land Use Element to (1) increase the minimum residential densities in seven areas zoned as mixed use or community commercial from 10 to 40 residential units per acre, (2) increase the permitted density for eight multi-family sites by a total of 88 units, as well as amended its zoning ordinance to comply with state laws regarding emergency shelters and various types of low-income housing, and to permit single-family detached homes at the same densities of single-family attached homes (the Project).Continue Reading NO NEW ENVIRONMENTAL REVIEW REQUIRED TO INCREASE HOUSING DENSITIES IN CITY’S GENERAL PLAN

By William W. Abbott

South County Citizens for Smart Growth v. County of Nevada (October 8, 2013, C067764) ___ Cal.App.4th ___.

Starting in 2005, KKP submitted an application for a mixed use commercial center to be located in Nevada County on a 20 acre site. The proposal included a 60,000 square foot grocery store anchor, two retail buildings, two drive through restaurants and nearly 500 parking stalls. Four parcels would be retained by the property owner, and the proposal accommodated roughly 42,000 square feet of light industrial and office uses on the owner’s retained land. The last parcel was restricted to wetland/open space uses. The County released the DEIR in November 2007, disclosing three significant unmitigated impacts; two traffic impacts and one cumulative air impact. After an extended public review process, including additional analysis submitted by the applicant, the Planning Commission conducted a hearing on the FEIR in January 2009. The staff report for this hearing included a staff recommendation for an approval, with a variation on alternative 4 in the DEIR. The commission voted to recommend certification of the EIR and the various approvals associated with the project to the Board of Supervisors, including the staff recommended plan (which capped the amount of commercial footage and increased the open space area.) KKP then developed two alternatives responsive to the Planning Commission recommendation of the staff’s alternative. Staff evaluated KKP’s two additional alternatives, and recommended that the Planning Commission formally recommend KPP’s second alternative to the Board of Supervisors.Continue Reading ADDITIONAL STAFF GENERATED PROJECT ALTERNATIVE DID NOT COMPEL RECIRCULATION OF THE DRAFT EIR NOR WERE ADDITIONAL FINDINGS OF INFEASIBILITY REQUIRED

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

Welcome to Abbott & Kindermann’s 2013 CEQA update. It is cumulative for the year, with the newest cases issued in the 3rd quarter are shown in italics and bold type face.

To review our prior annual summaries, click here: 2013…