By Glen C. Hansen

In a 2-1 decision in Pacific Rivers Council v. United States Forest Service, ___ F.3d ___, 2012 U.S. App. LEXIS 12553 (9th Cir. 2012), rehearing and en banc rehearing denied, the Court of Appeals for the Ninth Circuit held that the final supplemental environmental impact statement issued by the United States Forest Service in 2004 for the eleven Forest Plans for the Sierra Nevada Mountains (“Forest Plans”) complied with the National Environmental Protection Act (“NEPA”) as to the analysis of environmental consequences on amphibians, but did not comply with NEPA as to environmental impacts on fish. The majority and minority on the panel sharply disagree as to the amount of analysis that is required for programmatic environmental impact statements under NEPA in the Ninth Circuit where an agency has not made a critical commitment of resources regarding any site-specific projects.

Continue Reading Did The Ninth Circuit Disregard Its Precedent And Impose A Higher Degree Of Analysis On Programmatic Environmental Impact Statements?

By William W. Abbott

In order to promote more logical urban development pattern, the extension of city services and to avoid underserved populations surrounded by more intense development typically with higher level of services, the legislature has periodically tinkered with the island annexation provisions. In 2000, the legislature created a streamlining provision for unincorporated islands of 75 acres or less, subsequently increased to 150 acres. Pursuant to Government Code section 56375.3, local agency formation commissions (LAFCos) may exercise a more streamlined annexation approval process and can waive the protest proceeding if an annexation is initiated by a city, and the property consists of an island of less than 150 areas. In 2010, Senator Gloria McLeod requested an opinion from the California Attorney General regarding administration of this code section. In July of 2012, the Attorney General weighed in with a formal opinion. While these opinions are not binding on courts or agencies, they are normally afforded great weight in terms of statutory interpretation. In other words, best to pay attention.

Continue Reading California Attorney General Opines On Streamlined Island Annexations

By Glen C. Hansen

In Glen Oaks Estates Homeowners Assn. v. Re/Max Premier Properties, Inc. (2012) 203 Cal.App.4th 913, the trial court sustained demurrers to a homeowners association’s (“HOA”) complaint against real estate brokers who acted as dual agents in the developers’ sale of properties in the development to HOA members. The HOA alleged in the complaint that the realtors had obtained inaccurate soil reports and had misled the members, resulting in defects of a common roadway and common area slopes. The Court of Appeal for the Second Appellate District reversed the trial court’s determination that the association did not have standing to assert claims on behalf of its members against the brokers under Civil Code section 1368.3.

Continue Reading Homeowners’ Association Has Standing To Sue Realtors Involved In Sale Of Properties To Association Members Where Alleged Injury Is To Common Area.

By Glen C. Hansen

In RealPro, Inc. v. Smith Residual Company, LLC(2012) 203 Cal.App.4th 1215, the Court of Appeal for the Fourth Appellate District upheld a trial court judgment sustaining a seller’s and their agent’s demurrer to a cooperating broker’s complaint to recover a real estate commission, where the cooperating broker presented a written offer of a buyer that was “ready, willing, and able to purchase the Property … on all material terms” contained in the listing, including an all cash purchase at the full listing price of $17 million, but where the seller did not accept the offer and a sale was never completed.

Continue Reading What Is The Meaning Of The Word “Or”: A Real Estate Broker Commission Is Not Owed Even Though An All-Cash Offer Meets The Full Price In The Listing Agreement

Vested Rights, Vesting Maps and Development Agreements

William Abbott & Steven Rudolph

121LUP154

Thursday, August 23, 2012, 9:00 a.m.-4:30 p.m.

Sutter Square Galleria

Sacramento, CA

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.

Continue Reading Join William Abbott & Steven Rudolph this summer at UC Davis Extension Land Use and Natural Resources Program:

By William W. Abbott

Neighborhood activists organized to defeat the proposed demolition of the Van De Kamp Bakery Building for the construction of a new commercial building. With the support of the activists, the Los Angeles Community College District acquired the site in 2001 with the idea of developing a satellite college facility. The District completed an EIR and two addenda for a reuse plan for the building, but due to budgetary constraints, the campus was not developed. In 2009, the District adopted an interim use plan, and authorized the execution of a lease with a private education service provider. The District determined that the lease did not require additional CEQA review as it served the same functionality that the site had been analyzed for under the EIR and related documents. Appellants filed a CEQA lawsuit (CEQA I) challenging the 2009 approvals. In 2010, while the CEQA I lawsuit was pending, the District took further actions to implement the 2009 resolutions. Appellants then filed a second CEQA action (CEQA II), challenging the 2010 actions on the basis that they violated CEQA. The District demurred to the CEQA II lawsuit on the basis that it was duplicative of the first lawsuit and time barred by the statute of limitations running from the 2009 resolutions. Appellants argued in part that the District did not commit itself to a particular course of action until such time as the 2010 approvals were granted. Applying the 180 day statute of limitations running from the 2009 resolutions, the trial court determined that the CEQA II claim was untimely. The court also concluded that the second lawsuit was duplicative. The court dismissed CEQA II, and in the separate CEQA action, granted the appellants partial relief.

Continue Reading Court Says No Second Servings in CEQA Case

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

Welcome to Abbott & Kindermann’s 2012 CEQA update. It is cumulative for the year, with the newest cases issued in the 2nd quarter bolded and referenced by asterisks (***).

The most notable decisions in the second quarter involves upholding an EIR which relied upon a future baseline (Neighbors for Smart Rail), a stark contrast to the Sunnyvale West case of 2010. The battle over the record of proceedings continues as the 3rd Appellate District specifies the proper legal procedure in the event of a dispute over the scope of the record (Citizens for Open Government) and the 5th provides continued clarification/elaboration on the scope of the record of proceedings in a CEQA writ (Consolidated Irrigation District v. Superior Court of Fresno County.)

In terms of pending developments, the California Supreme Court granted review in City of San Diego v. Board of Trustees of the California State University and in Berkeley Hillside Preservation v. City of Berkeley, two troublesome cases. On the administrative side, OPR is moving forward with the proposed CEQA Guideline amendments pertaining to infill projects (SB 226). For more information, see http://www.opr.ca.gov/s_sb226.php.

Continue Reading 2012 CEQA 2nd QUARTER REVIEW

By William W. Abbott

At this moment in time, there is some irony in writing an article about the demise of state affordable housing programs in circumstances in which residential values have taken a major haircut and interest rates are at record lows, the two factors together resulting in new levels of affordability. Nevertheless, over the long run, state programs have served a vital role in affordable housing and from a long term policy perspective, should remain funded and operational. The most recent decision in this area pertains to prevailing wage requirements and the specified exemptions to the obligation to pay prevailing wage on public projects, depending upon the funding source.

Continue Reading A Combination of Otherwise Exempt Funding Sources Causes a Seniors Project to be Subject to Prevailing Wage Requirements

By Katherine J. Hart and Daniel S. Cucchi

In Tomlinson v. County of Alameda (June 14, 2012, S188161) __Cal.4th __, a developer proposed to divide two existing ‘R-1’ zoned parcels totaling 1.89 acres into 11 lots to allow for the development of single-family homes. The project was located in the community of Fairview in unincorporated Alameda County, bordering the City of Hayward. The County sent out written notices to a number of agencies, neighbors, and other interested parties, including the Appellants, indicating the County’s intent to utilize the section 15332 (Infill Development) CEQA exemption.

Continue Reading Supreme Court Says Exhaustion Requirement Applies in CEQA Exemption Suit

By Katherine J. Hart

The Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, case involved the consolidation of three separate actions revolving around the City of Lodi’s (City) approval of a conditional use permit (CUP) for a shopping center to be anchored by a Wal-Mart Supercenter. The first action stemmed from the City’s petition to discharge the writ issued in the earlier lawsuit wherein the 2004 EIR for the Wal-Mart Supercenter was challenged and the City’s lodging of a supplemental administrative record. The second and third actions arose out of Appellants Citizens for Open Government’s (Citizens) and Lodi First’s challenge to the City’s certification of the 2008 revised EIR, and subsequent approval of the CUP and shopping center project. The trial court consolidated all three actions and issued one ruling.

Continue Reading Revised EIR for Wal-Mart Supercenter Is Upheld On Second Go-Around