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By Kate J. Hart and Brian Hoffman

On June 7, 2007, the California Supreme Court addressed head on the issue of whether or not cities may use their planning and zoning powers to directly impact economic competition. The case is Adrian Hernandez v. City of Hanford (June 7, 2007) 2007 Cal.Lexis 5586. This case affirms the ability of cities to impact economic competition in a direct and intended manner because it allows just such an impact so long as the primary purpose of the zoning action is to achieve a valid public purpose and not simply to serve an impermissible anticompetitive private purpose.
Continue Reading Zoning, Business Competition and Public Purposes

By Janell M. Bogue and Diane G. Kindermann Henderson

On June 5, 2007, the EPA and the Army Corps of Engineers (“Corps”) jointly issued guidance consistent with the Supreme Court’s decision in Rapanos. This document is entitled “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States and Carabell v. United States (“Guidance”). The issue in Rapanos was whether a wetland or tributary can be defined as a “water of the U.S.” and thus be subject to jurisdiction under the Clean Water Act (“CWA”). Because the Court issued five separate opinions, it was unclear whether certain types of waters were jurisdictional. The guidance document establishes several categories of waters and discusses whether or not the agencies may assert jurisdiction.
Continue Reading EPA and Corps Issue Rapanos Guidance

By Leslie Walker and Joel Ellinwood, AICP

Establishing estoppel against the government in land use matters requires additional findings not required against a private party. In Feduniak v. California Coastal Commission (2007) 148 Cal.App.4th 1346, two Pebble Beach landowners found out exactly how difficult that task can be.
Continue Reading The Difficulty in Establishing Estoppel Against A Public Agency

By Kate J. Hart

On May 10, 2007, the California Second District Court of Appeal issued a potentially significant decision concerning unfunded state mandates dictated by a Regional Board permit issued in 2001. The case is County of Los Angeles v. Commission on State Mandates and the Regional Water Quality Control Board (May 10, 2007) 2007 Cal.App.Lexis 711. This case goes to the heart of state enforced regulatory authority because it calls into question whether the Regional Boards can issue permits (or enforcement orders) that require local governments, special districts, cities and counties to comply with a “new program or [provide] higher level of service of any existing program” without providing reimbursement for additional program costs.
Continue Reading County of Los Angeles v. Commission on State Mandates and the Regional Water Quality Control Board

By Cori Badgley and William W. Abbott

After the passage of Proposition 13 in 1978, public entities shifted funding strategies to backfill for the loss of property tax revenue. Proposition 13, codified as article XIII A of the California Constitution, provided that state and local governments are prohibited from imposing special taxes unless the tax is approved by a “two-thirds vote of the qualified electors.” Article XIII A forced the courts to wrestle with the question of how to define special tax as compared to a regulatory fee. Early cases addressed section 4 of article XIII A, which concerned local governments. It was not until 1997 that the California Supreme Court had the opportunity to address the distinction between special taxes and regulatory fees in the context of state agencies. This article summarizes the evolution of the fine line between regulatory fees and special taxes.
Continue Reading Regulatory Fees After Proposition 13: An Update

By William W. Abbott

Unlike residential or commercial development projects with somewhat predictable levels of activity (and in turn, environmental effects), mining projects involving rock, sand and gravel can vary widely based upon local economic conditions. The recent case of San Joaquin Raptor v. County of Merced (April 10, 2007) 2007 Cal. App. LEXIS 516 examines the duty of the lead agency to also evaluate impacts associated with periodic or sustained peaks, and not just to rely upon historic averages. The decision also addresses deferred mitigation in the area of biological impacts.
Continue Reading Mine Games: CEQA documentation for mining projects with fluctuating production levels

By Kate J. Hart

In the recent case of San Francisco Baykeeper v. Cargill Salt Division (March 8, 2007) 2007 U.S.App.Lexis 5442, Baykeeper sued Cargill under the citizen suit provision of the Clean Water Act alleging that Cargill unlawfully discharged waste from its salt production operation into the “waters of the United States” without the proper permits. The body of water at issue was a non-navigable, intrastate pond (the “Pond”), which was not a wetland, but that was located adjacent to the Mowry Slough (“Slough”) which is a water of the U.S. Baykeeper never argued that the Pond was a wetland, but instead argued that the Pond’s adjacency to the Slough provided a basis for CWA coverage. There was no evidence that the CWA would otherwise apply. In this case, the Ninth Circuit held that the adjacency of a non-navigable water body to a water of the U.S. does not, by itself, trigger the application of the CWA.
Continue Reading Mere Adjacency STILL Does Not Constitute Clean Water Act Coverage

By William W. Abbott

One person’s misery can be someone else’s gain. This can also hold true when dealing with inter-jurisdictional disputes over impact fees. The recent case of Woodward Park Homeowners Association, Inc. v. City of Fresno (April 13, 2007) 2007 Cal.App.LEXIS 544 highlights a number of important CEQA practice issues. While these are not necessarily new concerns, the case daylights a key issue of first impression–namely, whose responsibility is it to calculate the nexus for impact fees to be set for impacts to state highway facilities? Is CalTrans responsible, or is it the responsibility of the city or county approving a development project which impacts state facilities? According to the Fifth Appellate District, the answer to the question is the lead agency.
Continue Reading Rough Road Ahead: Whose responsibility is it to perform a nexus study for mitigation fees for local project impacts to state highways?