CEQA

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by William W. Abbott

Readers of this firm’s publications likely remember the efforts of the Wilson administration to create an impetus in the 1998 CEQA Guidelines amendments for the use of thresholds of significance as a means of reducing EIRs. While well intentioned, this effort was tanked by the superior court, whose invalidation of a selection 1998 amendments was then largely affirmed by the Third District Court of Appeal in Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98. In the recent decision of Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099 (March 12, 2004, modified April 9, 2004), the same appellate court had another opportunity to weigh in on the use of thresholds of significance, this time focusing on Appendix G of the Guidelines.
Continue Reading CEQA’s Thresholds of Significance v. Thresholds of Pain: Sometimes It’s Hard to Tell the Difference

Admissibility of Extra Record Evidence and Two Edges of the Exhaustion of Administrative Remedies Doctrine Also Examined.

by William W. Abbott and Joel Ellinwood, AICP

Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, illustrates effective application of a tiering strategy off of a combined programmatic/project EIR.
Continue Reading Combined Programmatic and Project EIR Supports Subsequent Negative Declaration for Expansion and Modification of Water Recycling Project

Ocean View Estates Homeowners Association, Inc. v. Montecito Water District (2004) 116 Cal.App.4th 396.

Failure to adequately address potential impacts of mitigation measures invalidates mitigated negative declaration.

Failure to address impacts on private and public views of four-acre, 15-foot tall reservoir cover invalidates mitigated negative declaration.

by Joel Ellinwood, AICP

It took only two swings for the Montecito Water District to strike out in its attempt to go to bat* for its adoption of a mitigated negative declaration (MND) as CEQA compliance for its plan to build a four-acre aluminum cover for the Ortega Reservoir in Summerland, Santa Barbara County. Perhaps it is understandable that one of the CEQA curve balls that flummoxed the District in a community that is locally known for its unofficial clothing-optional beach was failure to adequately address visual impacts. One might expect that concern over visual pollution and blocking of scenic vistas would be particularly acute there.
Continue Reading The View From Here

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 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 1st Appellate District recently decided a specific plan/CEQA case, Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342. While it involves a general law county and not a charter city, the legal principles as they relate to the specific plans provide good guidance for a city, and the CEQA holdings unquestionably apply.
Continue Reading New Thresholds Are Established For Specific Plans; Late Comments Can Still Derail An EIR