By Katherine J. Hart and Leslie Z. Walker

In the second time in two months, the California Supreme Court announced that once a Notice of Exemption (“NOE”) for a project is filed, the applicable statute of limitations is 35 days – regardless of the circumstances surrounding the NOE. On April 1, 2010, the Court held that a citizens’ suit challenging a project under the California Environmental Quality Act was barred by the 35-day statute of limitations contained in Public Resources Code section 21167 subdivision (d) because the City of Stockton had filed a facially valid NOE. In Stockton Citizens for Sensible Planning v. City of Stockton (2010) _____ Cal.3d___ a citizens’ group challenged the approval of a Wal-Mart Supercenter (“Project”) found to be consistent with an approved master development plan (“MDP”) and thus exempt from further review under the California Environmental Quality Act (“CEQA”). The citizens’ group claimed that because the Community Development Director (“Director”) erred in approving the project, the statute of limitations for a challenge to the Notice of Exemption (“NOE”) was the 180-day period applicable when no NOE has been filed, not the shorter 35-day period applicable when public notice has been provided by means of an NOE. (Public Resources Code, § 21167, subd. (d); CEQA Guidelines, § 15112, subdivision (d)(2). ) Reversing the decisions of both the superior and appellate courts, the Supreme Court found that flaws in the decision-making process underlying a facially valid and properly filed NOE do not prevent the NOE from triggering the 35-day period to file a lawsuit challenging the agency’s approval of a CEQA-exempt project.

Continue Reading No Fooling: A Facially Valid NOE Triggers a 35-Day Statute of Limitations

Abbott & Kindermann, LLP launches California Settlements & Colonies, a blog chronicling California historic settlement stories, starting with San Bernardino, California 1851 – 1857 the Largest Latter-day Saint Colony Outside of Utah and the Largest Anglo-American Settlement in Southern California. Visit the California Settlements & Colonies by going directly to http://californialandsettlements.com/ or clicking on the Colonies and Settlements link at https://blog.aklandlaw.com/. Share your settlement story by clicking “submit your own story.”

By William Abbott

Must a CEQA document for a supercenter always address urban decay? The answer is no according to the Fifth Appellate District, the same court which rendered the earlier ruling on a supercenter in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184. The story begins in 2006 when the City of Madera certified an EIR for a retail center, consisting of 795,000 square feet of gross floor area. The conceptual site plan showed one anchor of 125,000 square feet. Following annexation approval in February, 2007 of the site to the City, the developer submitted to the City a refined site plan which now included an anchor tenant a “Super Target” of 194,484 square feet, excluding the garden outdoor sales area.   The total square footage for the retail center remained unchanged. The City’s Community Development Department approved the refined site plan in May, and in June, the Planning Commission considered an addendum to the EIR, and recommended approval of a development agreement. In turn, the City Council considered the addendum and approved the development agreement in August. The staff report and addendum both concluded that there were no new impacts, different from those considered in the previously certified EIR. No one testified in opposition. However, a lawsuit challenging approval of the revised site plan was filed the same day as the council was considering the development agreement. The trial court denied the writ petition.

Continue Reading Subsequent EIRs: It is Still a Matter of the Evidence in the Record

By Katherine J. Hart

In Communities for a Better Environment v. South Coast Air Quality Management District et al., the California Supreme Court determined that the air district issuing a new permit to a petroleum refinery seeking to introduce a new industrial process to its existing refinery, incorrectly determined the baseline upon which to analyze environmental impacts. Specifically, the Court concluded the baseline could not be based on the maximum permitted operating capacity of the existing equipment but rather had to be based on the physical conditions actually existing at the time of environmental analysis. The facts are as follows.

Continue Reading Baseline Depends Upon Whether You Have a New or Modified Project or Existing Project Without Significant Expansion of Use

By Leslie Z. Walker

Almost three years after Attorney General Edmund G. Brown, Jr. filed suit against the County of San Bernardino for failing to consider the impacts of the County’s General Plan on Global Warming, the Amendments to the CEQA Guidelines Addressing Greenhouse Gas Emissions mandated by Senate Bill 97 (Chapter 185, Statues 2007; Pub. Resources Code, § 21083.05), take effect today. The Amendments require the quantification and mitigation of greenhouse gas emissions. (For more information about the Amendments, see OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency and CEQA Guidelines on Greenhouse Gases One Step Closer to Law.) Lead agencies should consult Guidelines section 15007 to determine when the Amendments apply to the agency’s actions.

Leslie Z. Walker is an associate at Abbott & Kindermann, LLP.  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, nor 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: Katherine J. Hart

As determined by the California Supreme Court 27 years ago, local agencies may impose a fee for the filing of an appeal of a CEQA decision so long as that fee is reasonable.

In the case at hand, the planning commission of the City of Glendora adopted an addendum to a negative declaration (“Addendum”) and approved a project on February 12, 2008. Petitioner Erica Landmann-Johnsey (“Petitioner”) wanted to appeal the CEQA decision to the city council, but in order to do so, was required to pay a $2,000 appeal fee. Petitioner filed her appeal and paid the fee under protest.

Continue Reading Yes, Local Appeal Fees Apply to CEQA Appeals

By: Cori Badgley

In yet another CEQA case involving whether an agreement between a tribe and a city constitutes a project, the court held that CEQA did not apply to an agreement requiring the city’s formal support of a proposed casino and the tribe to pay for future, as of yet undefined, city services and improvements.

Continue Reading City Gambles and Wins on Agreement with Tribe Over Casino: CEQA Does Not Apply

By Kate Hart

In a decision filed on February 11, 2009, Committee for Green Foothills v. Santa Clara County Board of Supervisors, et al. (2010) __ Cal.2d ___, the California Supreme Court reversed the Sixth Appellate District Court of Appeal holding that the filing of a notice of determination (NOD) triggers a 30-day statute of limitations for all California Environmental Quality Act (CEQA) challenges to the decision announced in the notice regardless of the nature of the CEQA violation.

Continue Reading NODs Provide Bullet-Proof Protection 30 Days After Posting

By Leslie Z. Walker

Today, February 16, 2010, the Office of Administrative Law filed the Amendments to the CEQA Guidelines addressing greenhouse gas emissions (“Amendments”) with the Secretary of State. The Amendments require the quantification and mitigation of greenhouse gas emissions. (For more information about the Amendments, see OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency and CEQA Guidelines on Greenhouse Gases One Step Closer to Law.) The Amendments will become effective on March 18, 2010. Lead agencies should consult Guidelines section 15007 to determine when the Amendments apply to the agency’s actions.

 

Continue Reading 30 Days Left: CEQA Guideline Amendments for Greenhouse Gas Emissions to Become Law on March 18, 2010

By Katherine J. Hart

In the last quarter of 2009, three new California Environmental Quality Act (“CEQA”) cases were issued – two by the First Appellate District and one by the Second Appellate District – wherein developers claimed relief from agency inaction pursuant to Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215 (“Sunset”). In sum, both the First and Second Appellate District Courts noted that Sunset does not stand for the proposition that an agency has a mandatory duty to complete and consider an EIR: 1) at all, and 2) not necessarily within the one year time frame provided by CEQA. A brief synopsis of each of the cases follows.

Continue Reading Application Processing: The Sun Has Set on Sunset