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By Nathan Jones and Cory Badgley

In Fairbanks North Star Borough v. U.S. Army Corps of Engineers (2008) 543 F.3d 586, the United States Court of Appeals, Ninth Circuit held that the U.S. Army Corps of Engineers; (“USACE”) determination that a Clean Water Act section 404 wetlands permit would be required is not a final agency decision. Consequently, the USACE’s jurisdictional determination (“JD”) cannot be reviewed by the courts under the Administrative Procedures Act (“APA”) (5 U.S.C. § 704), if the JD concludes waters are present.
Continue Reading Ninth Circuit Holds Assertion of Jurisdiction By USACE Not a Reviewable Agency Decision

By Glen Hansen

In Arcadia Development Co. v. City of Morgan Hill (2008) 169 Cal.App.4th 253, the California Court of Appeal, Sixth Appellate District, held that the extension of a temporary growth control ordinance restarts the running of the 90-day statute of limitations found in Government Code section 65009 to challenge the ordinance.
Continue Reading Extending A Temporary Growth Control Plan Reopens The Statute of Limitations To Legal Challenges

By Nathan Jones and Leslie Z. Walker

In May of 2006, the San Francisco Board of Supervisors approved an ordinance “Adopting the redevelopment plan for the Bayview Hunters Point Redevelopment Project” (“Ordinance”). The ordinance increased the size of redevelopment activity in Bayview-Hunter’s Point from 147 acres to 1,500 acres. Many in the community viewed the redevelopment project as an attempt to gentrify the area aimed at dispossessing working-class residents in the area. The case of Defend Bayview Hunters Point Committee v. City and County of San Francisco (2008) 167 Cal.App.4th 846, illustrates a pitfall for organizers who fail to attach reference materials of substance to a petition challenging a local redevelopment ordinance.
Continue Reading Full Disclosure- Reference Documents Must be Attached to Referendum Petition to be Legally Sufficient Under State Elections Code

By Leslie Z. Walker

Six months after releasing its Technical Advisory CEQA and Climate Change: Addressing Climate Change Through California Environmental Quality Act Review (see OPR on CEQA and Climate Change: Local Agencies Continue to Bear the Heat), the Governor’s Office of Planning and Research issued Preliminary Draft CEQA Guideline Amendments for Greenhouse Gas Emissions on January 8, 2009.The Guideline amendments were developed in response to Senate Bill 97 (Chapter 185, Statutes 2007; Pub. Resources Code, § 21083.05) which directs OPR to develop draft CEQA Guidelines for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions by July 1, 2009.
Continue Reading No Surprises in Draft CEQA Guidelines for Greenhouse Gas Emissions

By Cori Badgley and Nathan Jones

Estoppel is a pervasive legal concept dating back to the common law of England. Though it takes many forms, its application revolves around a party’s action or inaction to the prejudice of the other side or to a decision maker. Estoppel is a legal doctrine that may be used in certain situations to prevent a person from relying upon certain rights, or upon a set of facts (e.g. words said or actions performed) which differs from an earlier set of facts. Inquasi-judicial tribunals like the Coastal Commission, the agency may both oppose you and act in a judicial capacity. The case of Mt. Holyoke Homes, LP v. California Coastal Commission (2008) 167 Cal.App.4th illustrates that estoppel applies when a party continues to negotiate with the California Coastal Commission (“Commission”) even though the Coastal Commission has already lost jurisdiction over the disputed matter.
Continue Reading Peril for the Unwary: Use It or Lose It Against The Coastal Commission

By Glen Hansen

In Robert Ekstrom v. Marquesa at Monarch Beach Homeowners Association (2008) 168 Cal.App.4th 1111, the Court of Appeal, Fourth Appellate District, emphasized that boards of directors of homeowners associations do not have the discretion to ignore the express requirements of the conditions, covenants and restrictions (“CC&Rs”) for the development, despite the “judicial deference rule” adopted by the California Supreme Court in Lamden v. La Jolla Shores Clubdominium Homeowner’s Assn. (1999) 21 Cal.4th 249.
Continue Reading Court to Homeowner Association Board: No Judicial Deference Just Because You Like Palm Trees