by William W. Abbott and Heather Gerken

Land use applicants frequently fail to appreciate the deference that a reviewing court must give a city council or board of supervisors. Disgruntled with an adverse decision, an adversely affected applicant often believes that they are entitled to re-argue the merits of their position. As the following cases illustrate, judicial review of controversial land use regulations does not start with a blank canvas. Continue Reading California Courts Reaffirm the Broad Discretion Held by Cities and Counties in Enacting Land Use Regulations and Setting Policy

by William W. Abbott and Robert T. Yamachika

California landowners frequently live under two sets of land use regulations: one public and one private. Private land use restrictions may be as simple as reciprocal easements, or increasingly, multi-page covenants, conditions and restrictions (“CC&Rs”). Common interest subdivisions, with extensive private land use restrictions are becoming more commonplace in the development landscape. With that growth comes the natural increase in legal issues triggered by private land use control disputes. Continue Reading California Supreme Court Affirms the Authority of Homeowner Associations to Amend CC&Rs and Apply New Use Restrictions to Existing Residents

by William W. Abbott

Readers of this firm’s publications likely remember the efforts of the Wilson administration to create an impetus in the 1998 CEQA Guidelines amendments for the use of thresholds of significance as a means of reducing EIRs. While well intentioned, this effort was tanked by the superior court, whose invalidation of a selection 1998 amendments was then largely affirmed by the Third District Court of Appeal in Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98. In the recent decision of Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099 (March 12, 2004, modified April 9, 2004), the same appellate court had another opportunity to weigh in on the use of thresholds of significance, this time focusing on Appendix G of the Guidelines. Continue Reading CEQA’s Thresholds of Significance v. Thresholds of Pain: Sometimes It’s Hard to Tell the Difference

by Robert T. Yamachika

The United States Supreme Court recently decided South Florida Water Management District v. Miccosukee Tribe of Indians 124 S. Ct. 1537 (2004), a case which has the potential to significantly affect the government’s authority to regulate discharges into the Nation’s waters. The case revolves around several elements of the South Florida Water Management District’s (“District”) Central and South Florida Flood Control Project (“Project”), consisting of a vast array of levees, canals, pumps and water impoundment areas in the land between south Florida’s coastal hills and the Everglades. A canal, referred to as the C-11 canal (“Canal”), collects groundwater and rainwater from a 104 square mile area which includes urban, agricultural and residential development. At the end of the Canal the District operates a pumping facility (“Pump”) that transfers water from the Canal into the largest of several “water conservation areas” (“WCA-3”) that are remnants of the original Everglades. The Canal and WCA-3 are separated by two levees. During periods of rain, water collects on the western side of the levees in the wetland ecosystem of WCA-3, while rainwater on the eastern side falls on agricultural, urban and residential land where it absorbs contaminants produced by human activities before it enters the Canal. In particular, the water in the Canal contains elevated levels of phosphorous from fertilizers used within the basin. As a result, when the water from the Canal is pumped across the levees, the phosphorous alters the balance of WCA-3’s ecosystem and stimulates growth of algae and plants. Continue Reading United States Supreme Court Mixes a New Water Quality Cocktail – Beware of Mental Confusion and Bitter Aftertaste

by Robert T. Yamachika

Richmond v. Shasta Community Services District (2004) 32 Cal.4th 409

The issue in this case was whether a water district’s increase of its two component water connection fees violated Proposition 218’s voter approval requirement. Proposition 218, the Right to Vote on Taxes Act, was approved by California voters in 1996 and added articles XIIIC and XIIID to the California Constitution. The Shasta Community Services District (“SCSD”) operates a water system for residential and commercial users and a volunteer fire department that provides fire suppression and emergency services. Continue Reading California Supreme Court Rules that Water Connection Fees for New Connections not Subject to Proposition 218’s Voter Approval Requirement

Admissibility of Extra Record Evidence and Two Edges of the Exhaustion of Administrative Remedies Doctrine Also Examined.

by William W. Abbott and Joel Ellinwood, AICP

Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, illustrates effective application of a tiering strategy off of a combined programmatic/project EIR. Continue Reading Combined Programmatic and Project EIR Supports Subsequent Negative Declaration for Expansion and Modification of Water Recycling Project

Ocean View Estates Homeowners Association, Inc. v. Montecito Water District (2004) 116 Cal.App.4th 396.

Failure to adequately address potential impacts of mitigation measures invalidates mitigated negative declaration.

Failure to address impacts on private and public views of four-acre, 15-foot tall reservoir cover invalidates mitigated negative declaration.

by Joel Ellinwood, AICP

It took only two swings for the Montecito Water District to strike out in its attempt to go to bat* for its adoption of a mitigated negative declaration (MND) as CEQA compliance for its plan to build a four-acre aluminum cover for the Ortega Reservoir in Summerland, Santa Barbara County. Perhaps it is understandable that one of the CEQA curve balls that flummoxed the District in a community that is locally known for its unofficial clothing-optional beach was failure to adequately address visual impacts. One might expect that concern over visual pollution and blocking of scenic vistas would be particularly acute there. Continue Reading The View From Here

by William W. Abbott and Robert T. Yamachika

Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916, reaffirms the California rule that the granting of a variance, even in a charter city, is the exception rather than the rule. The case involves a longstanding non-conforming use; a gas station located in a residential neighborhood. The station had been at the location in question since 1922. It became non-conforming in 1925 when the area was zoned and annexed to the City of Los Angeles. Continue Reading The Court of Appeal Affirms Once Again High Legal Standard Required for Variances

by William W. Abbott and Robert T. Yamachika

In a previous article, we noted that a disorganized administrative record could be fatal to project approval if the land use decision is challenged in court. As noted in Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, a court could set aside a project approval simply because the administrative record was poorly organized. In these circumstances, the developer and the lead agency share a mutual interest in investing in timely review and organizational efforts in the administrative record long before a CEQA challenge is filed. Once the parties recognize that record organization is critical, they then face the question of what should the preparers focus in on? You may not like the answer. Continue Reading Making (and Breaking) the Record

by Robert T. Yamachika

The extent of Clean Water Act (“CWA”) jurisdiction has been a hotly debated topic over the past few years ever since the United States Supreme Court decided Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC“). In SWANCC, a divided Supreme Court (5-4) invalidated the Migratory Bird Rule which the Army Corps of Engineers (“ACOE”) used to extend the CWA’s jurisdiction to non-navigable, isolated waters used as habitat by migratory birds. Although the Court struck down the Migratory Bird Rule, it failed to make clear what waters and wetlands are subject to the CWA’s jurisdiction. This has resulted in considerable confusion and the courts have continued to struggle with determining the extent of the CWA’s jurisdiction. Continue Reading Clean Water Act Update: Three Recent Wetland Cases Support Narrow Reading of SWANCC