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by Joel Ellinwood, AICP

Peter Detwiler, chief consultant for the California State Senate’s Committee on Local Government and long-time legislative staffer on land use planning issues has a new theme. In talks at professional planning seminars around the state, he is warning of a potential new weapon in the litigation arsenal of those opposing development in areas being annexed to cities or special districts. Whether Detwiler is right, or merely singing another version of “the sky is falling,” his pitch is worth paying attention to. He recently presented it at the annual Land Use Conference sponsored by UCLA and at the Sacramento Chapter of the American Planning Association luncheon speaker series. It goes like this.
Continue Reading Legislative Leader Lilts, “LAFCo Litigation Looms.”

by Diane G. Kindermann Henderson

California’s legislature has implemented statutory requirements aiming to remedy the communication gap between water suppliers and municipalities when considering land use planning decisions. Senate Bill 610 and Senate Bill 221 require detailed information regarding water availability to be provided to local decision makers of cities and counties prior to approval of specified large development projects. In addition, both statutes require this information be included in the administrative record to serve as the evidentiary basis for an approval action by the city or county on such projects. The Guidebook for Implementation of Senate Bill 610 and Senate Bill 221 of 2001, prepared by the California Department of Water Resources, is a step-by-step manual providing direction on how to effectively complete a SB 610 water assessment and a SB 221 verification of sufficient water supply.
Continue Reading Attention Water Suppliers and Municipalities: A Step-By-Step Guide to Implementing SB 221 and SB 610 Has Arrived

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

by William W. Abbott and Heather Gerken

Land use applicants frequently fail to appreciate the deference that a reviewing court must give a city council or board of supervisors. Disgruntled with an adverse decision, an adversely affected applicant often believes that they are entitled to re-argue the merits of their position. As the following cases illustrate, judicial review of controversial land use regulations does not start with a blank canvas.
Continue Reading California Courts Reaffirm the Broad Discretion Held by Cities and Counties in Enacting Land Use Regulations and Setting Policy

by William W. Abbott and Robert T. Yamachika

California landowners frequently live under two sets of land use regulations: one public and one private. Private land use restrictions may be as simple as reciprocal easements, or increasingly, multi-page covenants, conditions and restrictions (“CC&Rs”). Common interest subdivisions, with extensive private land use restrictions are becoming more commonplace in the development landscape. With that growth comes the natural increase in legal issues triggered by private land use control disputes.
Continue Reading California Supreme Court Affirms the Authority of Homeowner Associations to Amend CC&Rs and Apply New Use Restrictions to Existing Residents

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

by Robert T. Yamachika

The United States Supreme Court recently decided South Florida Water Management District v. Miccosukee Tribe of Indians 124 S. Ct. 1537 (2004), a case which has the potential to significantly affect the government’s authority to regulate discharges into the Nation’s waters. The case revolves around several elements of the South Florida Water Management District’s (“District”) Central and South Florida Flood Control Project (“Project”), consisting of a vast array of levees, canals, pumps and water impoundment areas in the land between south Florida’s coastal hills and the Everglades. A canal, referred to as the C-11 canal (“Canal”), collects groundwater and rainwater from a 104 square mile area which includes urban, agricultural and residential development. At the end of the Canal the District operates a pumping facility (“Pump”) that transfers water from the Canal into the largest of several “water conservation areas” (“WCA-3”) that are remnants of the original Everglades. The Canal and WCA-3 are separated by two levees. During periods of rain, water collects on the western side of the levees in the wetland ecosystem of WCA-3, while rainwater on the eastern side falls on agricultural, urban and residential land where it absorbs contaminants produced by human activities before it enters the Canal. In particular, the water in the Canal contains elevated levels of phosphorous from fertilizers used within the basin. As a result, when the water from the Canal is pumped across the levees, the phosphorous alters the balance of WCA-3’s ecosystem and stimulates growth of algae and plants.
Continue Reading United States Supreme Court Mixes a New Water Quality Cocktail – Beware of Mental Confusion and Bitter Aftertaste

by Robert T. Yamachika

Richmond v. Shasta Community Services District (2004) 32 Cal.4th 409

The issue in this case was whether a water district’s increase of its two component water connection fees violated Proposition 218’s voter approval requirement. Proposition 218, the Right to Vote on Taxes Act, was approved by California voters in 1996 and added articles XIIIC and XIIID to the California Constitution. The Shasta Community Services District (“SCSD”) operates a water system for residential and commercial users and a volunteer fire department that provides fire suppression and emergency services.
Continue Reading California Supreme Court Rules that Water Connection Fees for New Connections not Subject to Proposition 218’s Voter Approval Requirement