By Glen Hansen

California’s eminent domain law permits acquisition of property only for a “proposed project” that is intended for public use. In City of Stockton v. Marina Towers, LLC (2009) 171 Cal.App.4th 93, ("Marina") the Court of Appeal, Third Appellate District held that the City of Stockton ("City") was unable to satisfy its burden of proving that it had the right to condemn property on its waterfront because the City’s resolution of necessity did not contain a sufficient project description.

Continue Reading Don’t “Condemn First, Decide What to do With the Property Later”

By Glen Hansen

When governmental agencies force owners of real property to remediate contaminated soil and groundwater, the owners will invariably attempt to recover the remediation costs from those persons or entities responsible for the contamination. That may include former owners of the property or former operators of facilities on the property. If the contamination has been present in the soil and groundwater for many years, a lawsuit to recover remediation costs from the responsible parties may be barred by the 3-year statute of limitations in Code of Civil Procedure section 338, subdivision (b). However, if the contamination is still migrating through the soil or groundwater, the plaintiff may be able to avoid the bar of the 3-year statute of limitations by alleging a continuing nuisance or trespass.

Continue Reading CLAIMS TO RECOVER REMEDIATION COSTS MAY BE BARRED AFTER 10 YEARS

By Cori Badgley

Sixells, LLC v. Cannery Business Park (2008) 170 Cal.App.4th 648 reminds buyers and sellers that when entering into a purchase agreement whereby the property must be subdivided, the Subdivision Map Act requires that a parcel map be filed prior to contracting for the sale or the sale must be expressly conditioned upon the approval and filing of a final map. The purchase and sale agreement between Sixells and Cannery Business Park failed to meet these requirements and was therefore void.

Continue Reading Using the Subdivision Map Act to Void an Unwanted Transaction

By William W. Abbott

We all are familiar with the State of California in its role in land planning and development as the uber regulator. But if you turn back the hands of time immediately before World War I, a different picture emerges; that of land developer.

Continue Reading An Historic Tale of Two Towns: The State of California as a Planner and Subdivider, Part I

By William W. Abbott

The Fourth Appellate District recently faced a similar CEQA timing question to that posed in Save Tara. Riverwatch v. Olivenhain Municipal Water District (Gregory Canyon Ltd) (2009) 170 Cal.App.4th 1186, (reissued and ordered published January 30). The case involved a landfill operator, who applied for and received County approval to operate a landfill. This approval was preceded by an EIR, which was challenged for adequacy by Riverwatch and the City of Oceanside. The trial court agreed with Riverwatch that the water supply analysis was insufficient, and that as the EIR recognized that recycled water from the water district might be used in the event that groundwater proved to be insufficient, that the EIR had to assess the potential impacts associated with the use of the offsite recycled water. The trial court ruled in favor of the opponents and ordered the County to set aside the EIR approval.

Continue Reading Appellate Court Directs Developer-District Recycled Water Agreement To Be Set Aside Based Upon CEQA Violation

By Cori M. Badgley and Nathan Jones

In Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, a developer asserted that a temporary regulatory taking occurred when the County of Santa Cruz (“County”) improperly and unlawfully delayed granting a ministerial permit for electricity. After extensively analyzing the various regulatory takings tests, the Court of Appeal, Sixth Appellate District, held that no regulatory taking had occurred.

Continue Reading Delay in Granting Ministerial Electrical Permit is Not a Regulatory Taking

By Leslie Z. Walker

According to a Ninth Circuit decision in Natural Resources Defense Council v. U.S. EPA  (9th Cir. 2008) 542 F.3d 1235, once the EPA has published a determination that a particular activity is a pollution source, The EPA has a mandatory duty to publish Effluent Limitation Guidelines (“ELGs”) within three years of that determination under section 304 of the CWA.

Continue Reading EPA May Not Delist Pollution Sources

Diane Kindermann Henderson, a partner at the firm, will be speaking at the Sacramento Professional Environmental Marketing Association (“SacPEMA”) on February 17, 2009, at The Firehouse in Sacramento. Diane will be presenting an overview of land use and environmental law updates for the past year in the areas of water rights and supply, water quality, SMARA, hazardous substance control and cleanup, and wetlands. For more information, including RSVP details, please visit the SacPEMA website.

By Katherine J. Hart and Leslie Z. Walker

On February 9, 2009, the California Supreme Court held the State Water Resources Control Board (“Board”) did not violate the due process rights of the recipients of a proposed license revocation by refusing to disqualify the enforcement team because one or more members had advised the Board on other, unrelated issues. (Morongo Band of Mission Indians v. State Water Resources Control Board 2009 Cal. LEXIS 1009.)

Continue Reading No Conflict Between Prosecutorial and Advisory Positions

The Seminar Group will be hosting their Third Annual Owning and Operating a Winery conference on February 25th and 26th at the Napa Valley Marriott. Abbott & Kindermann, LLP is a co-sponsor of this event that will guide you through the Legal, Regulatory, Technical and Operational Issues involved in the successful management of wineries big and small. For more information, including RSVP details, go to the Seminar Group website.