Land Use, Environmental, and Real Estate Law in California
By Katherine J. Hart
In San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Board, et al., (2010) ____ Cal. App.4th ____, a group of public agencies, water contractors, and farmers filed a petition for writ of mandate against the State Water Resources Control Board (“State Board”) under the Clean Water Act (33 U.S.C. § 1251 et seq.) and the California Environmental Quality Act (“CEQA”) (Pub. Resources Code, § 21000 et seq.)
By William W. Abbott
The shelf life of mitigation measures may readily outlast the lives of the projects to which they are attached, according to the First Appellate District. While the fact pattern is specific to timber harvesting and later conversion, the holding has application in the broader world of all CEQA practice.
By William W. Abbott
In 1986, the Legislature enacted the Mitigation Fee Act (“MFA”) (Government Code section 66000 et seq.) Supported by the building industry, this legislation was thought to operate as a limitation on the enactment of impact fees by local government, a practice which was gaining in momentum following the voter enacted Proposition 13 and the resulting chaos in local government funding. By providing express statutory recognition for impact fees, the Mitigation Fee Act, in this author’s opinion, inadvertently led to the significant expansion in the world of impact fees rather then operating as a brake. To the extent that a city or county was sitting on the fence as to whether or not it could adopt impact fees, that question was now clearly answered by the MFA. The result has been the widespread adoption of fees, with the creative juices of consultants testing the limits of what can be funded through fees (e.g. bullet proof vests for public safety staff.)
By Cori M. Badgley
The California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (“CEQA”) provides that the purpose of an environmental impact report (“EIR”) is “to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment.” (Pub. Resources Code, § 21061.) In Center for Biological Diversity v. County of San Bernardino (2010) __ Cal.App.4th __, the court found that an EIR for a proposed open-air composting facility did not satisfy the informational purposes of an EIR in relation to air quality alternatives and water supply.
Continue Reading Put a Lid on It: EIR for Open Air Human Waste Composting Facility Held Invalid
By William W. Abbott
As a black-mark on the history of progressive thought in California, the voters, in 1950, enacted Article XXXIV as part of the California Constitution. It had the effect of requiring voter approval of low rent housing projects. Over time, the legislature had codified various interpretations, excluding from the voter approval process, certain types of affordable projects. On a parallel path, the legislature has modified the redevelopment law to ensure that there are minimum expenditures for affordable housing. After all, how many automalls, big box retailers and movie theaters does California really need to fund through the redevelopment process?
By Leslie Z. Walker
The City of Richmond (“City”) and Chevron Products Company (“Chevron”) gave the First District Court of Appeals the opportunity to deliver the first ever appellate court decision on an Environmental Impact Report’s (“EIR”) treatment of greenhouse gas emissions (“GHG”). On April 26, 2010, the Appellate Court found in Communities for a Better Environment v. City of Richmond, (April 26, 2010, A125618) __Cal.App.4th__ the EIR prepared for the construction of an Energy and Hydrogen Renewal Project (“Project”) inadequate in its project description and mitigation of GHG. The factors that likely influenced the appellate court’s decision included: the deal struck between the applicant and the City whereby Chevron would pay the City $61 million dollars to fund civic improvement and the City would fast track the additional permits required for the project; the fact that the project as described in its Security and Exchange Commission documentation, made under oath, contradicted the Project description in the EIR; the City’s delay in concluding the Project’s GHG emissions would create a significant impact on the environment, and the plan for mitigating this contribution would not be developed until up to one year after the issuance of the conditional use permit for the Project.
By William W. Abbott
The facts in Watsonville Pilots Association v. City of Watsonville (2010) 183 Cal.App.4th 1059 involve the City of Watsonville and its airport, located on the edge of the City. The airport’s main runway accounted for a majority (82%) of airport operations, and its crosswind runway, accounted for the balance. In 2005, the City amended its airport master plan (“WAMP”), redesignating downward the crosswind, and modifying or eliminating existing land use restrictions. In October 2005, the City circulated a DEIR for its new general plan, and later in May 2006, certified the EIR, adopted a statement of overriding considerations, and adopted the new 2030 General Plan. The new general plan called for significant new growth around the airport, in an area called Buena Vista. As part of the general plan approval, the City identified three significant unmitigated impacts: increased population and housing, loss of prime farmland and the potential to impact groundwater supply.
One Day Seminar – Register Now! ~ Only $35
Featured Speaker: PAUL DOLAN, world-renowned winemaker, biodynamic grape grower, author, consultant and businessman is coming to the Motherlode Region on April 28, 2010, with a team of engineers and attorneys to strategize and help you balance economic and related business issues with environmentaland land use goals and obligations.
More information, agenda and registration click here.
One Day Seminar – Register Now! ~ Only $35
Featured Speaker: PAUL DOLAN, world-renowned winemaker, biodynamic grape grower, author, consultant and businessman is coming to the Motherlode Region on April 28, 2010, with a team of engineers and attorneys to strategize and help you balance economic and related business issues with environmentaland land use goals and obligations.
More information, agenda and registration click here.
By William W. Abbott
The Lawrence Berkeley National Laboratory (“LBNL”) is a federal facility, operated by the University of California Berkeley. Its primary facility is located in the hills above Berkeley, although it shares onsite campus facilities and leases offsite facilities in Berkeley, Oakland and Walnut Creek. In January, 2007, the Regents published a DEIR for a Long Range Development Plan (“LRDP”). The EIR was prepared as a program-level document, describing the likely improvements to the site through the year 2025. The LRDP called for an increase of roughly 600,000 square feet of new space, additional employees, parking, and development of a campus-like setting, “fostering interaction and informal encounters among lab staff…” The EIR addressed 5 alternatives: no project, reduced growth alternative 1, reduced growth alternative 2, preservation alternative with Non-LBNL use of Historical Resources and a partial offsite alternative. Petitioners filed a CEQA challenge, and after trial, the court ruled for the petitioners with respect an argument that the FEIR should have been recirculated due to new information raised for the first time in responses to comments, but otherwise ruled for the Regents. Both sides appealed.
