The following is an overview of CEQA court decisions issued in 2008 along with links to more detailed analyses of each decision prepared by the attorneys at Abbott & Kindermann, LLP.
Peril for the Unwary: Use It or Lose It Against The Coastal Commission
By Cori Badgley and Nathan Jones
Estoppel is a pervasive legal concept dating back to the common law of England. Though it takes many forms, its application revolves around a party’s action or inaction to the prejudice of the other side or to a decision maker. Estoppel is a legal doctrine that may be used in certain situations to prevent a person from relying upon certain rights, or upon a set of facts (e.g. words said or actions performed) which differs from an earlier set of facts. Inquasi-judicial tribunals like the Coastal Commission, the agency may both oppose you and act in a judicial capacity. The case of Mt. Holyoke Homes, LP v. California Coastal Commission (2008) 167 Cal.App.4th illustrates that estoppel applies when a party continues to negotiate with the California Coastal Commission (“Commission”) even though the Coastal Commission has already lost jurisdiction over the disputed matter.
Continue Reading Peril for the Unwary: Use It or Lose It Against The Coastal Commission
Bill Abbott Listed on Peer-Review Publication for Outstanding Attorneys
Bill Abbott has been selected, on a peer-review basis, as one of the Best Lawyers® In America in the field of Land Use and Zoning law for the year 2009. More information is available at the Best Lawyers® website.
Court to Homeowner Association Board: No Judicial Deference Just Because You Like Palm Trees
By Glen Hansen
In Robert Ekstrom v. Marquesa at Monarch Beach Homeowners Association (2008) 168 Cal.App.4th 1111, the Court of Appeal, Fourth Appellate District, emphasized that boards of directors of homeowners associations do not have the discretion to ignore the express requirements of the conditions, covenants and restrictions (“CC&Rs”) for the development, despite the “judicial deference rule” adopted by the California Supreme Court in Lamden v. La Jolla Shores Clubdominium Homeowner’s Assn. (1999) 21 Cal.4th 249.
Happy Holidays!
Keep Your Hooves off My Easement! Exclusive Easement Prevents Servient Landowner from Using Driveway
By Cori Badgley and Nathan Jones
Easement disputes between neighboring property owners are easy fuel for lawsuits. Generally, an easement is a right to use another’s property, for a specific purpose. For the most part, easements are non-exclusive, meaning that so long as the underlying property owner does not interfere with the easement-holder’s right of use, he can continue to use the easement property. While this is the general rule, Gray v. McCormick (2008) 167 Cal.App.4th 1019 is an easement dispute case where the easement holder (“Gray”) claimed that the servient property owners (“McCormick”) had no right to use a connecting driveway that ran across their property because Gray held an exclusive easement over McCormick’s land.
CEQA Practioners Beware: Your Petition Challenging Approval Of A Subdivision Under CEQA May Be Summarily Dismissed If You Don’t Comply With The Subdivision Map Act
By Glen Hansen
In Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, the Court of Appeal, Fourth Appellate District addressed some of procedural traps that can befall unwary litigants who seek to bring CEQA challenges to local land use decisions including subdivision approval.
ARB Adopts Scoping Plan Implementing AB 32
By William Abbott
Not one to shy away from controversy, the Air Resources Board (“ARB” or “Board”), finally launched California into a new era of thinking by adopting the Climate Change Scoping Plan (“Plan”). The sacred cows were not spared as the Board took swift action to push forward the implementation of Greenhouse Gas (“GHG”) reduction strategies called for in AB 32.
Update on ARB Guidance on CEQA Thresholds: One Plan, Many Voices, Dissidents Abound
By Michelle Engel
The Air Resources Board (“ARB” or “Board”) has their hands full. A question and answer session, with more questions than answers, commenced on December 9, when the ARB Staff Project Team held their second public meeting to discuss the development of recommended approaches for setting thresholds for greenhouse gases (“GHG”) under the California Environmental Quality Act (“CEQA”). The task assigned to ARB has been criticized as being “impossible to achieve” given the lack of experience the ARB Staff has with local government and in dealing with CEQA.
Continue Reading Update on ARB Guidance on CEQA Thresholds: One Plan, Many Voices, Dissidents Abound
ARB in the Hot Seat on Climate Change: On Thursday, December 11, the Board is Scheduled to Take Action on the Climate Change Proposed Scoping Plan
By Michelle Engel
The Air Resources Board (“ARB” or “Board”) finds itself at ground zero of California’s strategy to address climate change. The Climate Change Proposed Scoping Plan (“Plan”), dated October 2008, has been praised and panned and with the guiding philosophy that you haven’t done your job unless you make everyone unhappy, perhaps the Plan is close to the mark.