By William W. Abbott, Diane Kindermann, Katherine J. Hart and Glen Hansen

It is hard to believe that after a tsunami of CEQA decisions in 2012 that there are only three published CEQA cases in the first quarter of 2013. Our advice is to rest up and enjoy the break as there are five cases pending before the California Supreme Court. These include the unusual circumstances limitation on exemptions (Berkeley Hillside Preservation v. City of Berkeley); setting the baseline (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority); application of CEQA to council enactment of measures which qualify as initiatives on local ballots (Tuolumne Jobs & Small Business Alliance v. Superior Court); and mitigation requirements (City of San Diego v. Board of Trustees, and City of Hayward v. Board of Trustees.)

Continue Reading 2013 CEQA 1st QUARTER REVIEW

By Katherine J. Hart

In Alliance for the Protection of the Auburn Community Environment v. County of Placer (April 2, 2013, C067961) ___Cal.App.4th ___, the Third District Appellate Court held that California Code of Civil Procedure section 473 does not provide relief from a petitioner’s mistake that resulted in the late filing of a CEQA petition. While the provisions of section 473 are to be liberally construed, the statute cannot be construed to offer relief from mandatory deadlines deemed jurisdictional in nature such as Public Resources Code section 21167.

Continue Reading CCP 473 Does Not Provide Relief For Late Filing Of CEQA Petition

By William W. Abbott

County of Los Angeles v. City of Los Angeles (March 14, 2013, B236732) ___Cal.App.4th ___. The latest illustration of intergovernmental non-cooperation examines the circumstances in which cities can route sewer lines through county rights of way, all without county approval. The facts involve the City of Los Angeles upgrading the capacity of its line to its Hyperion Treatment Plant in Playa Del Rey. Serving the coastal portions of the City, the existing 48 inch line was installed in 1958 but lacked the capacity to serve major storm events. The City studied various options for installing a new 54 inch diameter line. Most of the routing would take place in City streets, but one route involved use of public streets and a public parking lot located in the jurisdiction of the County. For environmental reasons, the City ultimately approved the alignment which involved County streets. The County filed a petition for writ of mandate, alleging violations of the Public Utilities Code and CEQA. The trial court rejected the CEQA claim, but granted relief pursuant to the Public Utilities Code claims, effectively holding that County approval was required. The City appealed. The appellate court reversed the trial court.

Continue Reading City May Install Sewer Line in County Right Of Way Without County Permission

By William W. Abbott

Local governments are stunned to learn that over the weekend they were thrown under the bus by the President and Speaker John Boehner. Hidden in the fine language of the new draft federal budget compromise was a presidential suspension of billboard regulation along federal interstate highways. “The result”, said a spokeswoman for the National Association of Counties, Cities and Towns, “is a advertising free fire zone snaking throughout the country on both sides of federally supported highways. The bottom line is that no agency will be able to control the size, type or number of billboard displays. It’s a disgrace. How many billboards does society really need which advertise hair implants for men going bald?”

Continue Reading Breaking Local Government Land Use News: Obama suspends billboard regulations along interstate highways.

On March 5, 2013, the voters of Calistoga approved Measure C, resulting in another victory for the Project. The City of Calistoga and its visitors will now be able to enjoy a new luxury resort just as the City Council intended. Truly, this was a rare referendum victory for the development community in California.

By William W. Abbott

Schmeer v. County of Los Angeles (February 2, 2013, B240592) ___Cal.App.4th ___. The County of Los Angeles enacted an ordinance prohibiting retail stores from providing plastic carryout bags and requiring the stores to charge customers 10 cents for each paper bag provided. Among other provisions, the ordinance provided that the money received by the store for recyclable paper carryout bags must be retained by the store and used only for (1) the costs of compliance with the ordinance; (2) the actual costs of providing recyclable paper bags; or (3) the costs of educational materials or other costs of promoting the use of reusable bags.

Continue Reading 10 Cent Per Bag Charge Included as Part of An Ordinance Encouraging Use of Recyclable Grocery Bags Was Not Subject to Proposition 26

By Glen C. Hansen

Lost Tree Village Corp. v. United States, ___ F.3d ___, 2013 U.S. App. LEXIS 690 (Fed.Cir. 2013). Between 1968 and 1974, Lost Tree Village Corporation (“Lost Tree”) purchased approximately 2,750 acres of property on Florida’s mid-Atlantic coast, which included a barrier island on the Atlantic Ocean. That property included 4.99 acres now known as Plat 57, which is part of the entire peninsula known as the Island of John’s Island. From 1969 through the mid-1990s, Lost Tree developed approximately 1,300 acres it purchased into the upscale gated residential community of John’s Island. The development was made in a piecemeal manner, and not as a master-planned community.

Continue Reading US Army Corps Denies A §404 Permit: Can A Takings Claim Be Based On Consideration Of The Economic Affect On the Wetlands Parcel Only?

By William W. Abbott

On February 15, 2013, OPR released its Technical Advisory on Senate Bill 244, a thoughtful discussion on how cities, counties and LAFCos can implement Senate Bill 244 (Wolk) of 2011. The purpose of this legislation is to recognize and facilitate improvements to disadvantaged communities. As with general plans, it is one thing to recognize a challenge, it is another to actually fix it. OPR’s Advisory provides a useful summary and links to state funding programs, the proceeds of which undoubtedly will be subject to a very competitive process.  Where the Advisory could stand more disclosure is in its treatment of local funding mechanisms. "Principal funding sources for local government infrastructure include taxes, benefit assessments, bonds and exactions (including impact fees)." (Advisory, p. 11)  On a theoretical level, the statement is completely accurate. On a practical level, it is not, as most local officials know. Getting local voters to assess or tax themselves has been an uphill battle following passage of Propositions 13, 218 and 62. Local officials are also well aware that new development cannot be required to cure existing facility deficiencies. Rohn v. City of Visailia (1989) 214 Cal.App.3d 1463; Bixel Associates v. City of Los Angeles (1989) 216 Cal.App.3d 1208. So exactly how, in the real world, is local government going to generate local revenues?

I am confident that local government will take OPR’s Advisory to heart. Lets hope that the Legislature does as well, and that it steps up to the plate on funding these necessary endeavors.

William W. Abbott is a partner 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 William W. Abbott

Reed v. Town of Gilbert, Arizona (9th Cir. Feb. 8, 2013, No. 11-15588) ___F.3d ___.

As part of its overall regulatory code, the City of Gilbert, Arizona enacted various sign regulations. The regulations generally require a City issued sign permit unless the sign qualifies under one of nineteen different exceptions. Three of the nineteen exceptions involved (1) temporary directional signs for a qualifying event, (2) political signs and (3) ideological signs. Temporary directional signs subject to the exemption were subject to specific limitations not applicable to political and ideological signs including size, location (excluded from public right of way), and duration (same day only).

Continue Reading Born (again) Under a Bad Sign: Ninth Circuit Upholds Ordinance Restricting Duration, Location, Quantity, And Size Of Directional Signs for Church Services