By Kate J. Hart

The most recent California Environmental Quality Act (“CEQA”) case on selecting a project baseline is Sunnyvale West Neighborhood Assn., et al. v. City of Sunnyvale City Council (December 16, 2010, H035135). In this case, the City of Sunnyvale (“City”) proposed to construct the Mary Avenue Extension project, a four-lane northerly extension of Mary Avenue, including light rail transit tracks, over two freeways to Eleventh Avenue. The City’s environmental impact report (EIR) analyzed the project and its impacts based on 2020 conditions, as opposed to present day conditions. A neighborhood group sued to challenge the approval of the project. The superior court ruled in the neighbor’s favor and the City appealed. The Sixth Appellate District Court upheld the trial court’s decision holding that despite the City’s arguments the project was a traffic congestion-relief project, there is no provision of CEQA which allows a roadway infrastructure project to be evaluated differently than other projects. Further, even if the court was to assume the decision to use the projected 2020 conditions as a baseline was proper, it found the administrative record was devoid of any substantial evidence to support the decision to deviate from the norm of using current conditions as baseline for project analysis.

Continue Reading Project to Remedy Traffic Congestion not Exempt from Analysis of Current Baseline Conditions

By Katherine J. Hart

In Renee D. Nelson v. County of Kern (November 19, 2010, No. F059293), a mining company submitted an application to the County of Kern (“County”) to surface mine 250,000 cubic yards per year of calcite marble from a 40-acre foothill property on federal land over a period of 30 years, and for a reclamation plan to restore the land after the completion of the mining. The Bureau of Land Management conducted environmental review of the project under National Environmental Policy Act (“NEPA”), and the County conducted environmental review of only the reclamation plan under California Environmental Quality Act (“CEQA”). The County adopted a mitigated negative declaration and approved a conditional use permit for the reclamation plan. Petitioners sued the County arguing the County should have been the lead agency for the entire project – not just the reclamation plan – and that the failure to consider the entire mining project along with the reclamation plan violated CEQA. The Fifth Appellate District agreed with Petitioners and reversed the trial court’s decision.

Continue Reading County Dug Itself a Hole by Limiting its Scope of Review

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. – 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

California Air Resources Board is Expected to Adopt the California Cap and Trade Program at today’s hearing.

According to the Air Resources Board, the Program:

  • Limits emissions from sources responsible for 85 percent of California’s Green House Gas emissions;
  • Establishes the price signal needed to drive long-term investment in cleaner fuels and more efficient use of energy; and
  • Affords covered entities flexibility to seek out and implement the lowest-cost options to reduce emissions.

For more details see the Initial Statement of Reason at http://www.arb.ca.gov/regact/2010/capandtrade10/capisor.pdf

By Leslie Z. Walker

In Juana Briones House v. City of Palo Alto (October 27, 2010, H033275) ___ Cal.App.___the Sixth District Court of Appeal found the provision of the Palo Alto municipal code requiring a 60 day delay prior to the issuance of a demolition permit did not render the act discretionary. The City properly treated the demolition permit as ministerial and exempt from environmental review under CEQA.

Continue Reading Authority to Delay a Project Does Not Make the Project Discretionary

By Katherine J. Hart

For those of us who assist jurisdictions with their land use planning, general plan updates often raise enormous policy issues which undoubtedly turn to legal issues – some of which have never been addressed by the courts. The controversy surrounding the conversion of agricultural land – especially in rural counties – has been brewing for some time now. And, as most know, there have been no cases addressing whether Section 815.3(b) of the Civil Code applies to agricultural conservation easements mandated by a city or county’s general plan policies . . . until now.

Continue Reading Appellate Court Upholds 1:1 Agricultural Lands Mitigation

By William W. Abbott

The Court of Appeal, Fourth Appellate District, in a very fact-rich decision, addressed three common areas of California Environmental Quality Act (“CEQA”) litigation: water supply analysis/assessment; agricultural lands mitigation; and statements of overriding considerations. In Cherry Valley Pass Acres and Neighbors v. City of Beaumont  (Nov. 22, 2010, No. E049651) ____ Cal.App.4th ____, the facts involve a proposed specific plan considered by the City of Beaumont. Project opponents filed a CEQA challenge, and the trial court ruled for the City and the applicant. The core of the specific plan included property (“Sunny-Cal”) which had been an active egg production facility from the 1960’s to 2005. After that date, the declining economics of the egg industry resulted in the egg farm closing and the intensity of the agricultural operations declined. The Beaumont environs is a rapidly urbanizing area, and has been for a number of years, the result of which is that historic agricultural activities continue to be subject to constant pressure.

Continue Reading Alternative Baseline Considered a Good Egg

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. – 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

By William W. Abbott

Divine purposes are not a free pass from local zoning regulations. In County of Los Angeles v. Sahag-Mesrob Armenian Christian School (2010) 188 Cal.App.4th 85, the Sahag-Mesrob Armenian Church owned two parcels zoned R-1, and on May 28, 2008, filed an application for a conditional use permit to operate an 800 student school. In September of the same year, the County received complaints that the school was operating in advance of the issuance of the conditional use permit. The County conducted an inspection, verified that the school was operating, and issued a Notice of Violation, giving the school 15 days to cease operation. Within this 15 day period, the Church applied for a “clean hands waiver” from the County, which would allow it to operate during the pendency of the use permit review and processing. The County denied the waiver request. The County then issued a final code enforcement order directing that the school cease operating within 15 days. This order was appealed and denied. Following subsequent verification that the school was still operating, the County filed a code enforcement action, and sought a preliminary injunction against the Church for operating the school illegally. The trial court granted the preliminary injunction and the church appealed.

Continue Reading Forgive Me Father, for I Have Violated the Zoning Ordinance

By William W. Abbott

I am old enough to remember when tattoos or “tats,” were a sign of rebellion, not a sign of conformity, much less the subject of television advertisement for what brand of beer to buy. But as an attorney, even I miss the point as I view someone with an upper torso or a bald head full of ink that they are in fact, a walking manifestation of my First Amendment rights. As they say, the freedom of bad taste is the most important freedom of all. Fortunately, the significance of the First Amendment is not lost on the Ninth Circuit.

Continue Reading Got Ink?