Land Use, Environmental, and Real Estate Law in California
Vested Rights, Vesting Maps and Development Agreements (131LUP154)
When: August 16, 2013: Fri., 9 a.m.-4:30 p.m.
Where: Sutter Square Galleria, 2901 K St, Sacramento, CA
Development agreements are an effective avenue for a community and developer to come together and process a project. Both sides of the table need to carefully consider …
By Katherine J. Hart
In Citizens for Ceres v. Superior Court (July 8, 2013) ___ Cal.App.4th ___ (Citizens for Ceres), the Fifth Appellate District considered a writ from the trial court’s order denying the Citizens’ motion to augment the administrative record with various communications and documents excluded by the City. In overruling the trial court’s order, the Court of Appeal held that while Public Resources Code section 21167.6(e)(10) does not abrogate the attorney-client and attorney work-product privileges, “the common interest privilege does not protect otherwise privileged communications disclosed by the developer to the city or by the city to the developer prior to project approval.” Such a ruling conflicts with the implied holding of the California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th1217 (California Oak) ruling on this issue.Continue Reading Fifth Appellate District Says There Is No Common Interest Privilege In California Pre-Project Approval
By William W. Abbott
Not surprisingly, the building industry was able to convince the Legislature to keep pending maps alive for another two years. AB 116, Chap. 62 Stats. 2013. Fortunately, the Legislature abandoned its existing complicated statutory formula for determining winners and losers, opting for much simpler protocols. If the TSM was approved after January 1, 2000 and the map was pending on July 11, 2013, the tentative map is extended by 24 months. This extension occurs automatically.Continue Reading California Legislature Breathes Life Into Tentative Maps One More Time
By William W. Abbott
Save Panoche Valley v. San Benito County (June 25, 2013, H037599) ___ Cal.App.4th ___.
Famous for its bird sitings (http://www.audublog.org/?p=4155), Panoche Valley sits nestled between Interstate 5 and Highway 101 (http://www.cosb.us/Solargen/). I wager that few Californians have passed through this quiet terrain, and but for this court decision, would not know that this valley exists. Besides its limited number of residents and great diversity in bird species, Panoche Valley is also notable in that (1) it is exposed to high levels of solar radiation, and (2) it is bisected by a 230 kV transmission line. Just as no-good-deed-goes-unpunished, neither do conflicting environmental values resolve themselves without a CEQA lawsuit.Continue Reading Williamson Act Contract Cancellation For Solar Project Upheld Along With Companion Environmental Impact Report
Welcome to Abbott & Kindermann’s 2013 CEQA update. It is cumulative for the year, with the newest cases issued in the 2nd quarter shown in italics and bold type face.
To review our prior annual reviews, click here: 2012; 2011; 2010; 2009; 2008.
The pace of published CEQA cases remains relaxed for the first half of 2013. However, five cases are pending at the California Supreme Court. These include the unusual circumstances limitation on exemptions (Berkeley Hillside Preservation v. City of Berkeley); setting the baseline (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority); application of CEQA to council enactment of measures which qualify as initiatives on local ballots (Tuolumne Jobs & Small Business Alliance v. Superior Court); and mitigation requirements (City of San Diego v. Board of Trustees and City of Hayward v. Board of Trustees.)Continue Reading 2013 CEQA 2ND QUARTER REVIEW
By Diane Kindermann, William W. Abbott, Glen Hansen and Katherine J. Hart
Welcome to Abbott & Kindermann’s 2013 Mid-Year Environmental update. This update discusses selected litigation, regulations / administrative guidance and pending legislation, on both the federal and state levels, in the following general areas of environmental law: (A) Water Supply, (B) Water Quality, (C) Wetlands, (D) Air Quality, (E) Endangered Species, (F) NEPA, (G) Mining / Oil & Gas, and (H) Cultural Resources.Continue Reading 2013 MID-YEAR ENVIRONMENTAL LAW UPDATE
By Glen C. Hansen
For nearly twenty years, Fifth Amendment takings challenges to adjudicative land-use exactions and permit conditions have been governed by the dual Supreme Court cases of Nollan v. California Coastal Commission, 483 U.S. 825 (1987),and Dolan v. City of Tigard, 512 U.S. 374 (1994). In Nollan, the Court held that a government could, without paying the compensation, demand the easement as a condition for granting a development permit the government was entitled to deny, provided that the exaction would substantially advance the same government interest that would furnish a valid ground for denial of the permit. The Court further refined that requirement in Dolan, holding that an adjudicative exaction requiring dedication of private property must also be “‘roughly proportional’ . . . both in nature and extent to the impact of the proposed development.” However, Nollan and Dolan involved the dedication of real property interests. In Koontz v. St. Johns River Water Management District, ___ U.S. ___, 2013 U.S. Lexis 4918 (2013), the Court held in a 5-4 decision that “the government’s demand for property from a land-use permit applicant must satisfy the requirements of Nollan and Dolan even when the government denies the permit and even when its demand is for money.” Continue Reading The U.S. Supreme Court’s Nollan/Dolan Jurisprudence Is Catching Up With The California Supreme Court in Ehrlich v. Culver City
Diane G. Kindermann Henderson will be teaching an advanced CEQA class for Lorman Education Services on CEQA. This California Environmental Quality Act Seminar will be held on June 26, 2013, in Sacramento, California. It will provide a foundation in CEQA and then move on to the latest case law plus statutory and policy updates, evolving…
By William W. Abbott
In California Building Industry Assn. v. City of San Jose (June 6, 2013, H038563) ___ Cal.App.4th ___, the City of San Jose adopted an inclusionary ordinance, requiring that new residential projects include units affordable to specified income ranges. Alternatively, the ordinance permitted the developer to pay an in lieu fee or dedicate land. The California Building Industry Association (“CBIA”) filed suit, challenging the validity of the ordinance on its face on the basis that the ordinance lacked any nexus to the deleterious effects of new residential development. CBIA did not allege that a compensable takings had occurred, but rather argued that the City lacked sufficient justification for the ordinance. The trial court agreed with CBIA and invalidated the ordinance. The City appealed.Continue Reading Appellate Court Reverses Trial Court Invalidation Of Local Inclusionary Ordinance; Remanded For Further Review
By Glen Hansen
In Freeny v. City of San Buenaventura (June 4, 2013, B240893) ___ Cal.App.4th ___, the Court of Appeal for the Second Appellate District held, in an action against a city and five city council members for compensatory and punitive damages for voting against an application for building permits and variances, that public employees’ tort immunity for legislative decision-making under Government Code sections 820.2, 821 and 821.2 applies even when that decision-making is also alleged to involve the making of misrepresentations motivated by actual fraud, corruption or actual malice.Continue Reading Public Officials Are Immune From Tort Liability For Legislative Actions Involving Misrepresentations That Are Motivated By Fraud, Corruption Or Actual Malice.
