by William W. Abbott and Janell M. Bogue

A proposed Wal-Mart Supercenter was cause for controversy in Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173. In this case, the City of Anderson (“City”) approved a new shopping center fronted by I-5 and anchored by a Wal-Mart Supercenter. The City prepared and certified an EIR but citizens formed Anderson First Coalition (“Coalition”) to protest the project, asserting that it would cause urban decay, was inconsistent with the general plan and the zoning of the area, and did not provide proper traffic mitigation. At the trial court level, the EIR was found to be sufficient except for the project’s gas station. The trial court severed the gas station and allowed the rest of the project to proceed. The Coalition appealed and the appellate court reviewed both the adequacy of the EIR and the trial court’s decision to sever the gas station.
Continue Reading Anderson First: Evaluation of Blight and Effective Mitigation

by William W. Abbott In land use litigation, particularly CEQA cases, a successful petitioner can file a motion with the court seeking an award of attorneys fees. The award of fees is highly discretionary with the trial court, and occasionally, the trial court decisions are reversed by the appellate court. In a recent court decision, Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, the appellate court reversed a trial court’s decision refusing to award fees to a petitioner. In reversing the trial court decision, the appellate court established the threshold for what constitutes a “prevailing party” as a fairly low barrier.
Continue Reading Paying the Piper in Land Use Litigation

by William W. Abbott and Janell M. Bogue Lately, infill projects have become a hot-topic development strategy, especially in established neighborhoods. In Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, the developer proposed an infill project on a long, narrow strip of vacant land subject to a PUD zoning designation. The PUD called for the construction of townhouses in the project area, but the developer instead wanted to build a double row of single-family homes along a private street. Initially, the City was supportive. But even before preparation of the draft Mitigated Negative Declaration (MND), neighbors began to complain. They organized a group called “Pocket Protectors” and gathered signatures for a petition in opposition of the new project. Their complaints centered on the project’s inconsistencies with the PUD and city land use policies, which many of them had allegedly relied upon to control growth and development in the area. Pocket Protectors also complained about the aesthetic impacts of the project because it provided minimal setbacks from adjacent landowners, only planned nominal landscaping, and created a “canyon” effect due to the lining of the narrow street with closely placed homes of similar sizes. Subsequently, the Planning Commission denied approval citing many of the same complaints of the Pocket Protectors.
Continue Reading Pocket Protectors Protest Proposed Project; Prevail

by William W. Abbott and Janell M. Bogue

The recent case of Hayward Area Planning Association v. City of Hayward (2005) Cal.App.4th 176 illustrates the importance of proper trial court record preparation in CEQA cases. Plaintiffs, community groups opposed to a proposed project, filed suit against the City of Hayward (City) and alleged that the City had not complied with CEQA. The developer, Hayward 1900, was identified as the real party in interest.
Continue Reading Cost Recovery for Record Preparation in CEQA Litigation

by William W. Abbott

One person’s innovative, edgy infill development is another person’s significant impact. Or is it? This is the issue recently addressed in Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572. The developer in Bowman proposed an infill project in the City of Berkeley. The project involved an existing, single story vacant building of no architectural significance. The developer proposed to demolish the existing building and construct a four floor retail and a senior residential project of 40 units. The project went through multiple design changes as it proceeded with City review. In response to City and public review, the developer modified the building height where the site shared a property line with residential properties. City staff supported the project and recommended a negative declaration.
Continue Reading Design Review and CEQA Analysis: New Guidance

by William W. Abbott

A new court decision affirms the adequacy of an EIR prepare in response to an application by Pluto Development, Inc, the development arm of Wal-Mart. Pluto submitted an application to the Town of Apple Valley (long time home of Roy Rogers, Dale Evans and Trigger, Roy’s trusty horse, for those of you under the age of 50). After preparation of an EIR, the Town Council approved the project, based upon a statement of overriding considerations. The project approval was subsequently challenged in court by a desert environmental group and the California Attorney General. The appellate court decision wrestled with several common EIR problems, and resolved all of them in favor of the lead agency.
Continue Reading Men are from Mars, Women are from Venus, and Wal-Mart is from Pluto

by William W. Abbott

Despite what project critics may say, lead agencies do get it right every now and then. The recent decision of Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477 is such an illustration. As one would suspect, existing residents in coastal communities prize their views of the ocean, and can be counted on to be large in their criticism of any project which potentially interferes with what they rightfully see as their right to a view of the ocean.
Continue Reading Court of Appeal Affirms Dismissal of CEQA Challenge Alleging Inadequate Alternatives, Inadequate Consideration of View Impacts to Neighbors and Insufficient Evaluation of Mitigation to Coastal Sage Scrub