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In this case, the water district imposed a rate structure whereby “irrigation only” users paid disproportionately higher rates for the same amount of water use. The water district asserted that this was permitted under Article X section 2 of the Constitution, which promoted water conservation and allowed, through statute, allocation-based water rates. The appellate court disagreed that Article X section 2 gave the district a “pass” from the requirement in Proposition 218 that fees shall not exceed the proportional cost of providing the service. Therefore, the court held that the disproportionate rate structure was invalid.
Continue Reading Water Conservation Does Not Trump Proportionality Requirement of Prop 218

In Hill v. San Jose Family Housing Partners (2011) __Cal.App.4th __, 2011 Cal. App. LEXIS 1101, the Court of Appeal for the Sixth Appellate District held (1) that a written easement for a billboard was enforceable, even if the billboard was constructed in an illegal manner; and (2) the servient owners’ development that unreasonably interfered with the visibility of the billboard could be grounds for lost profits damages owed to the owners of the billboard.
Continue Reading Illegal Construction Of A Billboard Does Not Render Billboard Easement Unenforceable, Nor Does It Allow The Servient Owner To Block Visibility Of The Billboard

In Arcadia Development Co. v. City of Morgan Hill (August 5, 2011, H035519) ___ Cal.App.4th ___, the city did not spot zone Arcadia’s property and did not violate Arcadia’s equal protection rights by placing a measure on the ballot which amended the city’s zoning code to prohibit extensive development on Arcadia’s property.
Continue Reading Growth Measure Survives Spot Zoning and Equal Protection Challenge in an “As Applied” Challenge

By now, most CEQA practitioners have faced the problem of what to do when a project opponent submits the Attorney General’s 18-page list of potential greenhouse gas mitigation measures, suggesting the measures might be appropriate for the project at issue. On June 30, 2011, the Court of Appeal for the Second Appellate District held that the lead agency is not necessarily required to explain why each of the proposed measures is inappropriate for the specific project.
Continue Reading Lead Agencies Are Not Always Required to Explain Why Every Proposed Mitigation Measure is Infeasible

The Court of Appeal for the Fourth Appellate District found substantial evidence of a fair argument that a Target development project would have a significant environmental impact by disturbing contaminated soil, but rejected challenges based on air pollution and greenhouse gas impacts.
Continue Reading Implicit Approval of Using AB 32 Reduction Goals to Establish GHG Thresholds

By Katherine J. Hart

In the recent opinion of CREED v. City of San Diego (2011 Cal. App. LEXIS 720, Court of Appeal, Fourth Appellate District) petitioners are cautioned not to rely on massive, unorganized, last minute submittals of documents and data without clarifying and outlining their specific concerns in order to provide an agency with an opportunity to respond. The court of appeal also held that water supply assessments (WSAs) can be approved by a CEQA lead agency that also serves as the water supplier for the project area by including the WSA analysis in the environmental document and certifying that environmental document (e.g., no separate WSA approval is necessary).
Continue Reading Petitioners Be Forewarned: Massive Document “Dumps” May Not Suffice To Exhaust Administrative Remedies; Water Supply Assessments May Be Approved Via Certification Of An EIR.