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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

Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916, reaffirms the California rule that the granting of a variance, even in a charter city, is the exception rather than the rule. The case involves a longstanding non-conforming use; a gas station located in a residential neighborhood. The station had been at the location in question since 1922. It became non-conforming in 1925 when the area was zoned and annexed to the City of Los Angeles.
Continue Reading The Court of Appeal Affirms Once Again High Legal Standard Required for Variances

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 Robert T. Yamachika

The extent of Clean Water Act (“CWA”) jurisdiction has been a hotly debated topic over the past few years ever since the United States Supreme Court decided Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC“). In SWANCC, a divided Supreme Court (5-4) invalidated the Migratory Bird Rule which the Army Corps of Engineers (“ACOE”) used to extend the CWA’s jurisdiction to non-navigable, isolated waters used as habitat by migratory birds. Although the Court struck down the Migratory Bird Rule, it failed to make clear what waters and wetlands are subject to the CWA’s jurisdiction. This has resulted in considerable confusion and the courts have continued to struggle with determining the extent of the CWA’s jurisdiction.
Continue Reading Clean Water Act Update: Three Recent Wetland Cases Support Narrow Reading of SWANCC

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…