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By William W. Abbott

Paulek v. Department of Water Resources (2014) 231 Cal.App.4th 35.

It is a subtle shade of grey which separates a generalized comment on a project from an objection sufficient to support a later CEQA lawsuit. The California Department of Water Resources crafted this distinction in a case involving a CEQA challenge to a dam remediation project at Perris Lake, located within the Lake Perris State Recreation Area. The project included the following components: remediation of structural deficiencies; replacement of the existing outlet tower; and construction of an emergency outlet extension. In response to comments on the DEIR, the lead agency separated out the emergency outlet extension for separate CEQA review. In response to the CEQA lawsuit, the state (as the lead agency) argued that petitioner Paulek had only posed questions regarding the project, but had not “objected” to the project as required by Public Resources Code section 21177 and therefore, lacked standing to pursue a CEQA claim. Reviewing the transcript and comments, the court of appeal concluded that a question could readily be understood as an objection, as would questioning of the lead agency which inquired as to whether a project would achieve its objectives. On the latter point, the appellate court held this was part of the CEQA process as CEQA requires a balancing of interests. [Comment: in practical terms, this case affirms the widely held belief that it is not difficult for a potential CEQA petitioner to satisfy the obligation to object to the project as a condition precedent to bringing a CEQA claim.]Continue Reading Objector’s Questioning Of Project Sufficient To Meet The Standing Requirement To Bring a CEQA Claim. Separating Out A Portion of the Original Project For Separate Environmental Review Did Not Result In Impermissible Project Splitting.

Cleveland National Forest Foundation v. San Diego Association of Governments (November 24, 2014, D063288) ___ Cal.App.4th ___.

By William W. Abbott

In the first published decision to review a metropolitan planning organization’s Sustainable Communities Strategy, the Fourth Appellate District invalidated the EIR. This is a decision with potentially significant ramifications for many other EIRs as well. Continue Reading Court Affirms Inadequacy Of Programmatic EIR for SANDAG’s Sustainable Communities Plan, rejecting Alternatives and Lack Of Meaningful Mitigation Measures

Reserve your seat for one of four seminars taking place in early 2015.

In January and February 2015 Abbott & Kindermann, LLP will present its 14th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining…

By William W. Abbott

San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498

Are general plan policies adopted by the citizens through an initiative, entitled to special consideration for purposes of determining consistency of projects with the general plan? Faced with that question in the context of planning policies adopted nearly 30 years ago in San Francisco, the Court of Appeal, First Appellate District, declined to elevate the legal significance of citizen crafted measures as compared to other regulatory requirements adopted through traditional means. Approximately 30 years ago, the voters in San Francisco adopted new land use requirements. Jumping ahead three decades, the court of appeal had to resolve whether a major private redevelopment undertaking was consistent with the relevant city regulations and policies, including those adopted by the voters.Continue Reading Court Of Appeal Applies Traditional Deferential Standard Of Review To Questions Of General Plan And Consistency Determinations Including Requirements Enacted By The Local Voters

Join Diane G. Kindermann and Brian Russell of Abbott & Kindermann, LLP, in a new class which will provide the attendee with current issues and solutions to consider when analyzing the feasibility of a winery or vineyard property. This half day program will cover how local, state and federal laws could restrict or enhance your…

By William W. Abbott

El Dorado Estates v. City of Fillmore,765 F.3d 1118(9th Cir. Cal.2014)

The Ninth Circuit has concluded that the improper handling of a subdivision application by a city can give rise to a claim of discrimination under the Fair Housing Act. The claim stems from city responses to an application to subdivide an existing mobilehome park. El Dorado Estates (“El Dorado”) is the owner of a mobilehome park for residents 55 and older, located in the City of Fillmore. In 2008, the city considered adopting a park rent control ordinance, and El Dorado publically discussed the opening of the park to families. El Dorado elected to pursue a different path, that being to exit as a park operator and to subdivide and sell the tenant spaces. The existing tenants were opposed, and El Dorado encountered obstacles in processing its subdivision application through the city. El Dorado sued the city twice in state court. El Dorado then filed in federal court, alleging that the city’s land use practices were discriminatory based upon family status (families with minor children). El Dorado alleged that it faced unreasonable delays and expenses as a result of the city’s allegedly discriminatory practices. The city successfully filed a motion to dismiss based upon El Dorado’s lack of standing. The district court agreed, dismissing the case, and El Dorado appealed.

The Ninth Circuit disagreed, finding that El Dorado met the minimum three elements to satisfy standing: injury in fact, causation and redressibility. The Ninth held that that El Dorado alleged sufficient injury: unreasonable delays and extralegal conditions imposed upon its land use requests. Satisfied with the allegations of injury, the court of appeals found the remaining two elements: causation could be linked back to the allegations pertaining to the city’s actions while processing the applications and redressibility in that the district could award monetary damages based upon the injuries suffered by El Dorado. Whether El Dorado can prove its claims at trial remains to be determined. More on the federal Fair Housing Act can be found here http://www.justice.gov/crt/about/hce/title8.php. Information concerning California’s Fair Employment and Housing Act can be viewed here http://www.dfeh.ca.gov/Publications_FEHADescr.htm.Continue Reading Local Land Use Permitting and Discrimination Under the Fair Housing Act

By Glen C. Hansen

On May 27, 2014, the State Water Resources Control Board (“Board”) issued curtailment notices to all post-1914 appropriative water right holders in the Sacramento-San Joaquin, Russian, and Eel River watersheds. On October 3, 2014, the Executive Director of the Board issued a letter to appropriate water rights holders that discussed the Board’s plan to temporarily lift such curtailments during future rainfall events. (The letter is found at http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/docs/curtail_lift.pdf.) Because the conditions in many of the State’s watersheds “continue to demonstrate that there is insufficient water available to meet reported demand,” the Board intends to “temporarily lift curtailments during significant storm events to capture new precipitation.” The Executive Director explained that policy as follows: 

Due to the possibility for prolonged dry conditions, the State Water Board does not want to limit the potential for water right holders in the curtailed watersheds to collect water to storage during near-term substantial precipitation events. If dry conditions persist, then it is in the public interest to maximize the amount of water diverted to storage for later beneficial use, particularly given the low storage levels at the outset of the water year. Until the time when curtailments are permanently lifted based on the water availability/demand analysis, the State Water Board plans to provide notice of periodic opportunities during storm events to divert water. Since such notices will be reactive to precipitation events, the State Water Board’s notices will be distributed on a real-time basis solely via email through the Drought email subscription available at: http://www.waterboards.ca.gov/resources/email_subscriptions/swrcb_subscribe.shtml (select Water Rights and then Drought Updates). Notices will not be mailed out. Should the State Water Board temporarily lift curtailments, you will be authorized to immediately divert water under your post-1914 right, provided your right authorizes diversion at that time and you comply with all other terms and conditions of your right. You are responsible for monitoring your email account and taking immediate action to cease diversion of water under your post-1914 rights should the State Water Board send a follow-up curtailment notice. Failure to cease diversions after that notice will be subject to enforcement.

The State Water Board considers implementation of this real-time early precipitation plan in the public interest because it increases water storage supplies at every opportunity. The State Water Board also considers the potential for injury to most senior water right holders to be minimal. The lifting of curtailment, however, does not release junior water right holders from the standard obligation to allow water to pass for senior diverters when they must do so to satisfy senior water rights. For this reason, water right holders should maintain a record of daily diversions in case a complaint by a senior right holder alleges injury resulting from the diversions. The State Water Board will request such records if complaints are received. Water right holders should monitor the State Water Board’s email notices and/or website to take advantage of these temporary actions. [Bold and italics added.]

Appropriative water rights holders are therefore urged to make sure the Board has their accurate email addresses, and to monitor all correspondence from the Board (or frequently check the Board’s website when there is the possibly of rain in the forecast).

Glen C. Hansen is senior counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Continue Reading State Water Resources Control Board Issues Notice Of Plan To Temporarily Lift Curtailments During Future Rainfall Events

The California Department of Water Resources (DWR) will host two informational webinar sessions on the recently released Guidance on General Plan Amendments for Addressing Flood Risk (September 2014). The Guidance document was developed to assist cities and counties within the Sacramento-San Joaquin Valley amend their general plans to address flood risk (Senate Bill 5 (2007) as amended in 2012). The Guidance includes a comprehensive reference with more than 50 sources of flood management data and information from government agencies about projects, programs, and databases that can benefit planners, floodplain managers, and public works professionals.Continue Reading DWR to Host Informational Webinar Sessions for Incorporating Flood Risk into Local General Plans

By William W. Abbott

Picayune Rancheria v. Brown (September 24, 2014, C074506) ___ Cal.App.4th ___.

Practitioners are familiar with the incredible breadth in the applicability of CEQA to numerous governmental agency actions. Agencies have been admonished by the California Supreme Court against early commitments to projects in advance of environmental review (Save Tara …