By Janell M. Bogue

In the case of Sierra Club v. City of Orange (April 30, 2008) 2008 Cal.App.Lexis 814 (publication status changed from unpublished to published on May 30, 2008), the Court of Appeal, Fourth Appellate District upheld a combined supplemental environmental impact report (“SEIR”) and environmental impact report (“EIR”) for a large mixed use development. In its opinion, the court covered a wide range of CEQA issues, including timely filing of a lawsuit after a notice of determination, the exhaustion doctrine, project baselines, and alternatives. 

Continue Reading Appellate Court Reviews CEQA Compliance for Supplemental Environmental Impact Report

By William W. Abbott

The Delta, the confluence of the Sacramento and San Joaquin rivers, is ground zero in the debate over California water. It seems like everyone has a dog in the fight, including farmers inside and outside of the Delta, municipalities, water contractors, the sport fishing industry and environmentalists. It is a scenario in which it is improbable, if not impossible, to make everyone happy when it comes to the topic of water management. In 1994, CALFED was born as a consortium of 18 federal and state agencies. CALFED’s task was to develop a Delta water management strategy which would positively respond to the multiple competing interests and concerns. In 2000, CALFED certified a programmatic EIR/EIS. Following a timely legal challenge, the trial court in the case entitled In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2005) 133 Cal. App. 4th 154 upheld the adequacy of that environmental document. (See the Abbott & Kindermann Land Use Law Blog article on that opinion.) The Court of Appeal ruled otherwise, concluding that the EIR was inadequate because of the failure to evaluate an alternative with reduced water exports, the failure to identify future potential sources of water, and the lack of detail on the Environmental Water Account, a program within CALFED. The Supreme Court subsequently granted review and on June 5, 2008, issued an opinion. In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (June 5, 2008) 2008 Cal. LEXIS 6737. In this opinion, the Supreme Court affirmed the legal adequacy of the programmatic document.

Continue Reading California Supreme Court affirms the legal adequacy of the CALFED EIR; provides guidance on evaluation of alternatives and level of detail for first tier EIRs

Bill Abbott, a partner with the firm, will be speaking on the Subdivision Map Act for the City of Fortuna staff on June 20, 2008. This class will cover the Subdivision Map Act from exemptions to mergers and certificates of compliance. 

Bill Abbott will also be speaking at the Lorman Real Estate Development From Beginning To End seminar on July 21, 2008, in Sacramento CA. This class will provide updated information on all aspects of real estate development, including subdivision and title review. For more information, including RSVP details, visit the Lorman website.

By Janell M. Bogue

On March 31, 2008, the EPA and the Corps issued a new final rule on compensatory mitigation for impacts to waters of the United States under Section 404 of the Clean Water Act. This final rule was published in the Federal Register on April 10, 2008 at 73 Fed.Reg. 19,593. 

Continue Reading Army Corps of Engineers and EPA Issue Final Rule on Compensatory Mitigation

By Cori M. Badgley and Kate J. Hart

In an attempt to invalidate or, at a minimum, get damages for the California Coastal Commission’s (“Commission”) denial of a coastal development permit, Charles A. Pratt Construction Co., Inc. (“Pratt”) brought suit against the Commission, claiming that the Commission’s decision violated Pratt’s vested right to develop its property and, in the alternative, if the decision was valid, the Commission committed a regulatory taking by denying the coastal development permit. In Charles A. Pratt Construction Co., Inc. v. California Coastal Commission (2008) 162 Cal.App.4th 1068, the Court of Appeal, Second Appellate District upheld the Commission’s denial of the permit and dismissed Pratt’s regulatory takings claim for lack of ripeness.

Continue Reading The Development Blues: Property Lies Undeveloped for 30 Years and Counting

By Cori Badgley

After losing on its state takings claim in Montana state court, a mining company was then turned away by federal court on constitutional grounds. In federal court, the governor of Montana, who was the named defendant, argued that the governor and the state were immune from suit in federal court under the rarely referenced Eleventh Amendment of the United States Constitution. The Ninth Circuit Court of Appeals agreed with the governor and dismissed the mining company’s suit.

Continue Reading Governor of Montana Successfully Asserts Sovereign Immunity to Takings Claim

By Glen Hansen

Applicants don’t like being denied a local land use permit. It is equally frustrating for project opponents who fail to stop an approval by a local governmental board to understand why the decision makers didn’t endorse their arguments. Many believe that the failure to prevail before an agency is not due to the merits of the cause, but is the result of some unstated, nefarious plot or bias in the collective heads of the agency board that rejected the position. However, the Court of Appeal recently reminded us that digging into the thought process of administrative officials is generally out of bounds.

Continue Reading DON’T GO THERE! Inquiring into the Thought Processes of Government Officials

Every year the California American Planning Association (“APA”) gives a number of awards in various categories to individuals and projects exemplifying outstanding planning. Winners of the Sacramento Valley section will be submitted to the state for consideration for the statewide award.

Leslie Walker, an associate with Abbott & Kindermann, LLP is a member of this section’s awards committee, and will be responsible for the collection of the nominations for the 2008 planning awards. Nominations will be accepted until May 12, 2008. For more information on this program, including category details, qualifications, and nomination materials, go to the Sacramento Valley APA website.  

**Review was granted by the California Supreme Court on July 23, 2008 and this opinion was depublished.**

By Katherine J. Hart

This case addresses the issue of whether or not the legal effect of a notice of determination (“NOD”) in establishing a 30-day statute of limitations is absolute as to any and all CEQA based claims. In the opinion of the Court of Appeal, 6th appellate district, claims alleging that the agency failed to conduct environmental review but should have are governed by a separate 180-day limitation period.

Continue Reading Notice of Determination’s Thirty-Day Statute of Limitations May Not Apply to All CEQA Claims

By Cori Badgley

On April 16, 2008, the United States District Court for the Eastern District of California issued an opinion in Pacific Coast Federation of Fishermen’s Associations v. Gutierrez (Case No. 1:06-cv-00245) that invalidated portions of the 2004 biological opinion (“BiOp”) issued by the National Marine Fisheries Service (“NMFS”) for the Long-Term Central Valley Project and State Water Project Operations Criteria Plan (“2004 OCAP”). The Central Valley Project (“CVP”) supplies water to approximately 30 million people in 200 water districts. The State Water Project “is the largest State-built water project in the country.” Both projects share resources and facilities. The good news is that water suppliers will enjoy the status quo while a new biological opinion is drafted and approved.

Continue Reading California’s Water Supply Potentially Endangered by Invalid Biological Opinion