By William W. Abbott

City of San Diego v. Board of Trustees of the California State University, S199557, Supreme Court of California, 2015 Cal. LEXIS 5291, August 3, 2015

The California Supreme Court cleared the air over one of its earlier CEQA decisions concerning the responsibility of CSU to consider and mitigate for offsite impacts. In 2006, the Court determined that CSU Monterey was not precluded from mitigating for offsite impacts occurring in the City of Marina. City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341. In the Marina decision, the court stated “[A] state agency’s power to mitigate its project’s effects through voluntary mitigation payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.” The University system is directed by a Board of Trustees, who, in reliance upon the above quoted language in Marina, determined that the University was not authorized to engage in offsite mitigation absent a specific legislative appropriation.

Continue Reading WILL CSU EVER GRADUATE FROM CEQA SCHOOL?

By Glen Hansen

In Shoen v. Zacarias (2015) 237 Cal.App.4th 16, the Court of Appeal for the Second Appellate District held that the hardship that a trespasser would have in removing her portable patio furniture from a neighbor’s property would not be “greatly disproportionate” to the hardship on the neighbor in losing the trespassed-upon portion of that neighbor’s property occupied by the furniture, and so the trespasser was not entitled to an equitable easement to maintain that furniture on the neighbor’s property.

Continue Reading An Equitable Easement To Keep Your Patio Furniture On Your Neighbor’s Property?

By William W. Abbott

Coppinger v. Rawlins (August 14, 2015, E060664) ___ Cal.App.4th ___.

County acceptance of a roadway dedication on a map does not assure acceptance of the roadway into the County maintained highway system.

In 1980, Robinson filed a parcel map, creating two numbered lots and 3 lettered lots: A, B and C. By certificate on the map, the County accepted the dedication offer on Lot A into the County maintained road system, and accepted Lots B and C on behalf of the public, but not into the County maintained system, specifying that acceptance would require a separate resolution by the Board of Supervisors.

Continue Reading Accepting Roadway Dedications On Behalf Of The Public As Compared To Accepting Roads Into The Publically Maintained Road System. Words Matter.

William W. Abbott has been selected by his peers for inclusion in the 22nd Edition of The Best Lawyers in America© in the practice areas of Land Use & Zoning Law and Litigation-Land Use & Zoning Law.

Mr. Abbott has also been included in Sacramento Magazine’s Top Lawyers List in the practice area of Land Use/Zoning.

By Daniel S. Cucchi

Banning Ranch Conservancy v. City of Newport Beach (2015) 236 Cal.App.4th 1341 (“Banning Ranch II”).

In the latest installment of the Banning Ranch saga, we are provided another great example of the importance of carefully chosen words and phrases in a jurisdiction’s general plan policies and action statements.  In Banning Ranch II (2015), the City of Newport Beach approved a residential and commercial project located on one quarter of the 400-acre, largely undeveloped coastal property known as Banning Ranch. As the city processed the application, staff engaged with the Coastal Commission (“Commission”) through: (1) notification that the city was processing the project; (2) meetings to discuss Commission staff’s concerns; and (3) responding to the Commission’s submitted comments on the DEIR. Not satisfied with the project as proposed, the Commission commented that the city was required to work with the Commission to decide the appropriate use of habitats prior to project approval. The city responded by simply making it clear in the EIR that the project would not go forward without a coastal development permit from the Commission. The City then proceeded to approve the project, as is. Banning Ranch Conservancy (“Petitioners”) filed suit, arguing that: (1) the City violated its own general plan by failing to adequately coordinate with the Commission; and (2) the city’s EIR failed to identify potential impacts to “environmentally sensitive habitat areas” (“ESHA”), defined by the California Coastal Act, as a result of the project. The trial court found the city violated its general plan, but upheld the adequacy of its EIR. Both parties appealed.

Continue Reading Return of Banning Ranch: The Spurned Responsible Agency

Diane G. Kindermann was selected in the practice areas of Environmental, Land Use/Zoning and Real Estate and William W. Abbott in the practice areas of Land Use/Zoning and Real Estate. More information is available at http://www.superlawyers.com/california-northern/. The firm is pleased to continue to serve private and public clients in Northern California on land use, environmental and real estate matters for more than 19 years.

On July 9, 2015, the California Department of Water Resources released the Bay Delta Conservation Plan/California WaterFix Partially Recirculated Draft Environmental Impact Report/Supplemental Draft Environmental Impact Statement for public review. The public comment period is July 10, 2015 through August 31, 2015. The BDCP’s new documents include a new sub-alternative-Alternative 4A (California WaterFix) – as the proposed project. Alternative 4A separates the conveyance facility and habitat restoration measures into two separate efforts: California WaterFix and California EcoRestore. Those significant changes were the result of the project’s abandonment of the goal to secure 50-year environmental permits from federal agencies. 

The new “WaterFix” part includes “water conveyance facilities (three new intakes along the Sacramento River and dual-bore tunnels to convey water to the existing state and federal pumping facilities).”  The location and design of the intakes were changed in the latest version to minimize the disruption and dislocation of Delta residents, and to reduce the environmental footprint of the project. Local farming groups and agencies in the Delta are concerned about the further degradation and salinity of the Delta waters caused by the project. Also, the reality that the federal environmental permits will be far less than 50 years in length is giving the water agency proponents great pause is deciding whether or not the revise project is financially viable, despite already spending about $235 million to get the proposal this far. 

The new “EcoRestore” portion of the project consists of a 5-year plan to purportedly “pursue more than 30,000 acres of critical Delta restoration under the EcoRestore program, and pursuant to pre-existing regulatory requirements and various enhancements to improve the overall health of the Delta.” However, 25,000 acres of that 30,000 number were already committed to by state and federal officials in agreements entered into in 2008 and 2009. Thus, the Natural Resources Agency confirmed on July 13 that the new BDCP project will actually commit to only 15,600 acres for habitat restoration to offset any environmental harm from construction of the tunnels. That is only one-sixth of the original 100,000 acres of habitat restoration that was promised in the original BDCP proposal. Thus, Sacramento County Supervisor Don Nottoli opines that the revised project “really doesn’t fix anything.” 

Meanwhile, Dean Cortopassi, a Stockton-area farmer and food processor, is seeking to place on the November 2016 ballot an initiative that would force large public works projects requiring revenue bonds costing more than $2 billion to go before the voters for approval. That initiative could impact the current BDCP project, depending upon how the project is financed. If that initiative passes and the current BDCP project is subject to voter approval, a former official of the Brown Administration opines that the project would be “very much in danger of failing,” and that project proponents therefore need to modify the project to avoid a public vote.

For More Information:

http://baydeltaconservationplan.com/2015news/15-04-30/DWR_Announces_Modified_Preferred_Alternative.aspx

http://baydeltaconservationplan.com/2015PublicReview.aspx

http://www.sacbee.com/news/state/california/water-and-drought/article26872906.html

http://www.sacbee.com/news/state/california/article27172270.html

Glen C. Hansen is Senior Counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

By Glen C. Hansen

In Honchariw v. County of Stanislaus (2015) 237 Cal.App.4th 388, the Court of Appeal for the Fifth Appellate District held that a landowner’s inverse condemnation claim for damages against the County of Stanislaus caused by an unconstitutional temporary taking was time-barred under Government Code section 66499.37. The owner previously had filed a successful petition for writ of mandate challenging the disapproval of a subdivision application, which resulted in the County’s reconsideration of the application and eventual approval of the project. However, the owner’s subsequent claim for compensation damages was time-barred under section 66499.37 because the mandamus proceeding had not established that there had been a compensable taking.

Continue Reading Do You Seek Compensation For An Unconstitutional Taking? Then Plead That With The Mandamus Action To Avoid The Potential Statute Of Limitations Bar!

Class Description:

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 the terms of these contracts and explore questions of content and performance before completing such an agreement. Learn the legislative and judicial aspects of development agreements.

Explore the legal basis for development agreements and the overlap between agreements and vesting subdivision maps. Examine the negotiating process, identify and discuss the range of options available when negotiating a development agreement, and review the theoretically possible agreement. Consider the key points of an agreement, learn ways to assist in understanding the needs of the other side and select the players to conduct the negotiation.

Topics include:

  • Common law vested rights
  • Legal review
  • Development agreements vs. vested maps
  • The Development Agreement Statute
  • Key terms and alternative approaches
  • Considerations in negotiating the agreement
  • Contents of an agreement
  • Testing the waters
  • Paper control–who drafts the document
  • Enforceability
  • How to implement agreements
  • What happens after the life of an agreement

Schedule:

August 20, 2015 – Thursday, 9:00 a.m. to 4:30 p.m.

Sacramento: Sutter Square Galleria, 2901 K Street

Instructors:

William Abbott and Steven Rudolph

For more info, or to enroll visit: https://extension.ucdavis.edu/section/vested-rights-vesting-maps-and-development-agreements

 

Save Our Heritage Organisation v. City of San Diego (2015) 237 Cal.App.4th 163.

By Glen C. Hansen

Balboa Park, a large urban park in San Diego, includes the buildings and plazas constructed for the 1915 Panama-California Exposition and the adjoining buildings and improvements subsequently constructed for the 1935 California Pacific International Exposition (the Complex). Visitors enter the Complex via the Cabrillo Bridge (“Bridge”). The Bridge and the Complex are a National Historic Landmark and a National Historic Landmark District. A project was proposed to return the plazas to purely pedestrian zones. The project included a new “Centennial” bridge, reconfigured roadways and a new pay-parking structure. The City of San Diego (“City”) approved a site development plan for the project.

Continue Reading ‘It’s Good Enough For Government Work’: Project May Violate Some General Plan Policies So Long As It Is Consistent With A Majority Of The General Plan