Land Use, Environmental, and Real Estate Law in California
By Glen C. Hansen
In Perlas v. GMAC Mortgage, LLC (August 11, 2010) 187 Cal.App.4th 429, the California Court of Appeal for the First Appellate District held that home loan borrowers could not state a cause of action for fraudulent misrepresentation or concealment against a lender, because a borrower is not entitled to rely upon a lender’s knowingly false determination that the borrower is qualified for a loan in order to decide if the borrower could afford the loan.
By William W. Abbott
Land use and California Environmental Quality Act (“CEQA”) litigation frequently involves a petitioner asking the court to second guess agency decision makers by reweighing the evidence, and to expansively interpret the statutory duties imposed by a particular statute. As illustrated in a recent appellate court decision upholding an urban water management plan, neither approach is appropriate. (Sonoma County Water Coalition v. Sonoma County Water Agency (2010) 189 Cal.App.4th 33.)
Continue Reading Court Upholds Agency’s Reasonable Assumptions in its Urban Water Management Plan
By Cori M. Badgley
In League of Wilderness Defenders-Blue Mountains Biodiversity Project v. Allen 615 F.3d 1122; 2010 U.S. App. LEXIS 16770; 40 ELR 20224, the Ninth Circuit Court of Appeals focused on two well-known principles of NEPA review: 1) cumulative impacts may be evaluated using an aggregate effects approach; and 2) an agency is only required to adequately acknowledge and respond to comments raised by opposing parties, including opposing expert analysis.
Continue Reading Commercial Logging on Forest Lands Upheld by Ninth Circuit
By Glen C. Hansen
In Holmes v. Summer (2010) 188 Cal.App.4th 1510, the Court of Appeal for the Fourth Appellate District held that when a real estate agent or broker for a seller is aware that the amount of existing monetary liens and encumbrances exceeds the sales price of a residential property, so as to require either the cooperation of the lender in a short sale or the ability of the seller to put a substantial amount of cash into the escrow in order to obtain the release of the monetary liens and encumbrances affecting title, the agent or broker has a duty to disclose this state of affairs to the buyer, so that the buyer can inquire further and evaluate whether to risk entering into a transaction with a substantial risk of failure.
By Emilio Camacho and Cori Badgley
In Western Watershed Project v. Kraayenbrink, (9th Cir. Sep. 1, 2010, No. 08-35360__F3d.__.), the Ninth Circuit Court of Appeals ruled that the Bureau of Land Management (“BLM”) violated the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”) in adopting the 2006 amendments to the BLM’s grazing regulations.
Continue Reading Grazing Cattle and the BLM’s Violation of NEPA and ESA
By Glen C. Hansen
Civil litigation involving boundary disputes often includes legal questions about whether one neighbor has the right to use the property of another neighbor for driveway, parking, landscaping or other purposes. While California courts may grant a prescriptive easement to a neighbor to use his or her neighbor’s property for a limited use, a prescriptive easement will not be granted for “exclusive” use of neighboring property. This article outlines the factors that courts consider when determining whether an intended use of neighboring property is “exclusive,” and therefore prohibited as a prescriptive easement.
Continue Reading Exclusive Prescriptive Easements “No”; Equitable Easements: “Maybe”
By Katherine J. Hart
On September 30, 2010, the Governor signed Senate Bill 1284 (Ducheny) into law (Chapter 645). Ever since their adoption, Mandatory Minimum Penalties or MMPs have created serious economic hardship for local wastewater agencies. While concerns remain about MMPs, the California Legislature and Governor granted some much needed relief to these local agencies.
Continue Reading Governor Schwarzenegger Signs Bill to Relieve POTWs of Some MMPs
By Cori M. Badgley
Attorneys’ fees under the private attorney general doctrine codified in Code of Civil Procedure section 1021.5 are treated as a birthright by petitioners after prevailing in a California Environmental Quality Act (CEQA) lawsuit. Two decisions in 2010 explore the limits of attorneys’ fees in CEQA cases, and the rulings illustrate both what it means to be a successful party for purposes of Section 1021.5 and the significant discretion given to the trial court in determining the amount awarded.
By Leslie Z. Walker
The alliances between homebuilders and conservation groups forged during the drafting of Senate Bill 375 unraveled around the Regional Greenhouse Gas Emission Reduction Targets for Automobiles and Light Trucks (“Targets”) adopted today by the California Air Resources Board ("CARB"). Despite the suffering building industry’s claims that the Targets are too ambitious, CARB unanimously voted to adopt the Targets. The Sustainable Communities and Climate Protection Act of 2008, Senate Bill 375, requires CARB to set targets for GHG reduction for 2020 and 2035 and further requires the 18 Metropolitan Planning Organizations (“MPOs”) include Sustainable Communities Strategies (“SCS”) to achieve these Targets in their Regional Transportation Plans.
Continue Reading CARB Adopts SB 375 Targets for GHG Reductions Despite Economic Concerns
By William W. Abbott
Whether you attribute the expression “the best defense is a good offense” to Vince Lombardi, Bear Bryant, General Carl Von Clausewitz (On War, 1873) or Sun Tzu (Art of War, 6th Century, B.C.), the same holds true in CEQA. The Cal Bears scored a well deserved win in a recent legal challenge to a Regent approved expansion of the school’s athletic facilities, to be located near the historic Berkeley football stadium. (California Oak Foundation v. The Regents of the University of California (September 3, 2010, Case No. A122511____ Cal.App.4th ____.) Appellants’ playbook included a near endless list of California Environmental Quality Act (CEQA) offenses (e.g. project description, project objectives, impact analysis, mitigation measures, alternatives and findings) against which the blue and gold defense successfully held the line. Along the way, there were some noteworthy plays, discussed below.
Continue Reading Go Bears! Court Approves Cal Bears Athletic Facility Expansion
