In December 2011, we posted an article reviewing the Second Appellate District’s determination in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455.

The petitioner, Ballona Wetlands Land Trust filed a petition for review on January 12, 2012. On February 2, 2012, the Natural Resources Defense Council filed a request for depublication. On March 21, 2012, the California Supreme Court denied both the petition for review and depublication requests [2012 Cal. LEXIS 3142.] resulting in a decisive conflict between the reported cases on Guidelines section 15126.2, subdivision (a) and the text of Section 15126.2, subdivision (a) itself.

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, or 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

It is refreshing when a court lays it on the line. And, that is exactly what Division Eight of the Second Appellate District did in addressing CEQA’s requirements for baseline selection for projects with future implementation dates. The case, Neighbors for Smart Rail v. Exposition Metro Line Construction (April 17, 2012, B232655) __Cal.App.4th __ (“Neighbors”) provides a counterweight to recent decisions from the Fifth and Sixth Appellate Districts, setting a possible stage for California Supreme Court review.

Continue Reading A Judicial Throwdown on CEQA’s Baseline Requirements

By William W. Abbott

On March 15, 2012, California Department of Fish and Game announced it was suspending work on new proposals for mitigation banks, due to state budgetary constraints. http://www.dfg.ca.gov/habcon/conplan/mitbank/

Despite the state’s own recognition of the benefits of mitigation or conservation banks, that recognition only goes so far. This poses a challenge to agencies and developers operating in areas in which the banks are limited or closing. It may be that acquiring remaining credits will take on a new priority while projects are being re-positioned during the market slump. Another implication is that it may become imperative to challenge a CEQA characterization of habitat loss or impairment given that options for satisfying compensation may be more limited in the future. Here is the state’s list of approved banks as of January, 2012. http://www.dfg.ca.gov/habcon/conplan/mitbank/catalogue/catalogue.html

Continue Reading A Run on the Banks? (Mitigation banks that is.)

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

The first quarter cases largely hone or refine established CEQA concepts. Not surprisingly, two decisions reaffirm that the fair argument test (whether for exemptions or negative declarations) remains a relatively low threshold for an opponent to cross (Berkeley Hillside and Consolidated Irrigation.) The Flanders court clarified that feasibility is based upon a “reasonably prudent” test, not what the applicant can afford. The Fifth Appellate District applied the traditional appellate substantial evidence test to a trial court order augmenting a CEQA record (Consolidated Irrigation District.) Finally, the most interesting case comes from El Dorado which discusses the CEQA transition from a general plan EIR to an implementing action (Center for Sierra Nevada Conservation). Enjoy!

Continue Reading 2012 CEQA 1st QUARTER REVIEW

By William W. Abbott

Fraternity defeats City injunction request by reorganizing as a religious order.

In a surprising turn of events for City officials, the Delta Tau Chi fraternity, the single largest source of noise complaints in the City of Fresno, reorganized itself as a religious order last February. This conversion came about as a result of City officials filing a nuisance complaint and seeking a preliminary injunction. The fraternity quickly reorganized itself as a religious brotherhood, albeit one with unconventional practices. At the hearing on the preliminary injunction, the trial court judge, the Honorable Douglas Neidermeyer, expressed sympathy for the City’s concerns. However, the judge declined the City’s preliminary injunction request, ruling that under the federal Religious Land Use and Institutionalized Persons Act, the City was not likely to succeed on the merits. The judge’s order stated: “The law requires this court to have an open mind as to what constitutes bona fide religious practices. As the defendants have demonstrated in their opposition papers, the wilder side of Lutherans and the Amish, while not well known, are nevertheless well documented. This court cannot discriminate in favor of established more popular religions over those that are not.” Trial is set in August while the students are on summer break.

Continue Reading Local Government Land Use News Update

By William W. Abbott

No one ever said planning was easy. In 2002, the City of Redondo Beach approved a coastal zone ordinance for the significant revitalization and intensification for its harbor area, a plan proposal known as “Heart of the City”. Residents opposed to the proposal, qualified a referendum and the city council repealed the coastal ordinance and reinstated the prior harbor plan. From 2005 to 2008, the council adopted updated planning documents for this area, however, the amendments were subject to review and approval by the Coastal Commission pursuant to the Coastal Act. Concurrently, the voters were circulating an initiative measure which would have required voter approval for major land use changes. This measure was eventually placed on the ballot and approved by the voters in November 2008. The city had submitted its harbor area coastal planning documents to the Commission in May 2008, and Commission, after review, indicated that the city documents, subject to conforming amendments identified by the Commission, could be found to conform to the Coastal Act and certified. In 2010, the city adopted the conforming amendments, determined that only certain elements were subject to voter approval, and committed to an election at a future unspecified date. Building a Better Redondo Beach, Inc. (“BBR”) filed suit to compel the city to place the full measure on the ballot for voter approval. After a trial, the court order the matter be placed on the ballot. Following entry of judgment, the city promptly filed a notice of appeal, but then the city council took action to order the Planning Department onto the ballot, where it was approved by the voters three months later. Following entry of judgment, BBR moved for an award of attorneys’ fees as permitted by Code of Civil Procedure section 1021.5. The court awarded BBR $313,000 in attorneys’ fees. The city appealed the award.

Continue Reading Compliance with Trial Court Writ Renders Moot an Appeal on the Merits

By William W. Abbott

The adjective “short” best describes California’s land use and CEQA statutes of limitation. From CEQA’s 30/35 day limitation periods, to the 90 day limits for the planning and zoning matters (Government Code section 65009), to the Subdivision Map Act (Government Code section 66499.37), time waits for no litigant. The most recent case addressing the Planning and Zoning law wrestles with the interface of the ninety day statute in Government Code section 65009, with the time line found in Code of Civil Procedure section 1094.6. These later timelines call for an extension of time periods in circumstances in which the petitioner has requested the agency to prepare the administrative record, in which case, the statute extends to 30 days from the delivery of the record. (Section 1094.6(d))

Continue Reading The Ninety Day Period to Challenge a Land Use Approval is Not Extended by More General Rules Governing Administrative Mandamus

By William W. Abbott

Property owners in Berkeley applied for use permits to demolish an existing home on a 29,714 square foot lot and to construct a 6,478 square foot home along with an attached 3,394 square foot, 10 car garage. The lot is a hillside lot with an approximately 50% grade. Based upon CEQA exemptions for infill and for construction of new small structures, the Board of Zoning Adjustment approved the permits. The proposed construction was supported by neighbors, but other interested parties appealed the approvals to the city council. A geotechnical engineer, Karp, submitted a letter indicating that he had reviewed the building plans, and that he was familiar with the site based upon his work on other building sites in Berkeley. The letter reflected his belief that additional benching would be required, that this was not reflected on the plans, and that the site potentially had some exposure to seismic risk. Karp also indicated that additional vegetation removal was required that was not otherwise reflected on the plans. Karp concluded by indicating his opinion that the project would likely have significant impacts during construction and operationally due to seismic risk. Two engineers submitted letters on behalf of the applicants’ (at least one was a geotechnical engineer) submitted responses to Karp’s comments, which argued in part that Karp misread the plans, and that the project was otherwise appropriate for the site. The council was presented with conflicting evidence as to relative size of the proposed structure to other homes in Berkeley. The city council denied the appeal, and the opponents filed suit. The trial court ruled for the city and applicant, and the neighbors appealed.

Continue Reading Applying CEQA’s Unusual Circumstances Exception to an Otherwise Exempt Activity Results in an EIR for a Single Family Residence

By Glen C. Hansen

In Guatay Christian Fellowship v. County of San Diego (December 23, 2011, 09-56541) ___ F.3d ___, the Ninth Circuit Court of Appeals held that a church’s claim that a land use permit regulation violated the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (“RLUIPA”) was not ripe for judicial review because the church had not completed the requirements for the use permit, and therefore the courts could not determine the particular burden that the church would have to shoulder under the challenged regulation.

Continue Reading Ninth Circuit Applies Ripeness Requirement To RLUIPA Claims