Land Use, Environmental, and Real Estate Law in California
By Leslie Z. Walker
On January 29, 2008, Judge Thomas Cahraman of the Riverside Superior Court ruled that CEQA did not require the Banning City Council to consider the Global Warming impacts of a project approved prior to the enactment of AB 32.
Continue Reading Trial Court Rules CEQA Did Not Require Global Warming Analysis
By Cori M. Badgley
Exhaustion of local remedies is a well-known doctrine among those who have attempted to appeal an administrative decision. The doctrine requires that a petitioner appealing a governmental agency’s determination or order must exhaust all of the remedies available through that agency before appealing to the courts. The Court of Appeal, Fourth Appellate District has now made it easier for petitioners appealing a determination of a regional water quality control board (“regional board”) to exhaust their local remedies. In Schutte & Koerting v. Regional Water Quality Control Board, San Diego Region (2007) Cal.App.LEXIS 2146, the appellate court held that anyone appealing the determination or order of a regional board must only request a hearing before the State Water Resources Control Board (“State Board”) in order to exhaust his or her local remedies.
Diane Kindermann Henderson, a partner with the firm, along with Glen Hansen, a senior associate with Abbott & Kindermann, will be speaking at the Sacramento Legal Secretaries Association regarding CEQA Part II: Litigation, on March 5, 2008. This “lunch lesson” seminar will be held at Downey Brand, 555 Capitol Mall, 10th Floor, in Sacramento. For more information including RSVP details, go to the SLSA website.
Diane Kindermann Henderson will also be speaking at the Northstate Building Industry Association Seminar regarding the Clean Water Act: 404 permitting Workshop on March 25, 2008. The seminar will be held at the Maidu Community Center, 1550 Maidu Drive, in Roseville, CA. For more information including RSVP details, go to the Lorman website.
Bill Abbott, a partner at the firm, will be speaking at the 22nd Annual UCLA Extension Land Use Law and Planning Conference at the Millennium Hotel in Los Angeles on January 25, 2008. RSVP by calling (310) 825-7885 or go to www.uclaextension.edu/index.cfm
Bill Abbott will also be speaking at the County Planning Conference "Abbott’s Annual Planning Law Update," on February 8, 2008. Members of the California County Planning Director’s Association can RSVP with the Association via Charles Gardner at (559) 591-2991. For hotel reservations call Embassy Suites, Sacramento, California, at (916) 326-5000.
Diane Kindermann, Kate Hart and Janell Bogue will be speaking at the Lorman Development Approval Process Seminar on February 13, 2008. This seminar will include a discussion on entitlements, application and development process, Subdivision Map Act and CEQA. For more information, including RSVP details visit the Lorman website.
By Joel Ellinwood, AICP
A July 1, 2005 article posted on this blog termed the Supreme Court’s ruling in Lingle v. Chevron U.S.A., Inc. (2005) 544 U.S. 528 a “sea change” in 5th Amendment regulatory takings claim analysis by striking the “substantially advances a legitimate state interest” test. Now the fallout from Lingle from the Ninth Circuit makes it clear that the test survives to form the basis for 14th Amendment substantive due process challenges to land use regulations. However, the ultimate viability of such claims remains to be seen. Continue Reading A Dim Light at the End of a Long Tunnel: Municipal Land Use Decisions and Substantive Due Process
January 29, 2008
This seminar addresses integrated issues in storm water, wetlands, and associated water quality regulations. Compliance guidance for both the storm water and wetlands programs will be provided while underscoring the relationship between the two programs.
You will hear the latest trends, case studies and policies related to storm water, wetlands and associated water quality regulations to enable you to proactively address and plan in lieu of reacting to regulatory changes and trends as they evolve.
Written materials for the class be accessed here and the presentation can be downloaded in two parts: part one and part two.
By Janell M. Bogue
A recent opinion from the Court of Appeal, Fourth Appellate District, Division Two discusses two important CEQA topics: certainty in project descriptions and an EIR’s discussion of alternatives. Save Round Valley Alliance v. County of Inyo (December 17, 2007) 2007 Cal.App.LEXIS 2045. In this case, the developer proposed a rural large-lot subdivision located on 74 acres on the road to the trailhead to Mount Whitney in Inyo County (“County”). The lots, used for single family homes, would be a minimum of 2.5 acres in size. The proposed use of the property was consistent with the County General Plan and the zoning code. Further, the subdivision would be governed by CC&Rs restricting the use of the lots. The County determined that an EIR was necessary for the project and the EIR concluded that there would be substantial adverse effects on the scenic vistas. The Planning Commission certified the EIR, adopted a statement of overriding considerations, and approved the project. A local citizens’ group called Save Round Valley Alliance (“SRVA”) appealed the Planning Commission’s approval and following a public hearing, the Board of Supervisors denied the appeal, certified the EIR, and approved the project. SRVA petitioned for a writ of mandate, which was denied by the Inyo County Superior Court. SRVA appealed.
By Cori M. Badgley
On January 3, 2008, the Ninth Circuit Court of Appeals in Bering Strait Citizens for Responsible Resource Development v. United States Army Corps of Engineers, No. 07-35506 addressed alleged violations of the Clean Water Act (“CWA”) and the National Environmental Policy Act (“NEPA”) by the United States Army Corps of Engineers (“USACE”). Specifically, the plaintiffs alleged that USACE unlawfully granted a Section 404 permit to the Alaska Gold Company (“AGC”) allowing AGC to fill or dredge wetlands and that there were legal deficiencies in the accompanying environmental assessment (“EA”).
By Joel Ellinwood, AICP
The Court of Appeal, Fifth Appellate District, continues this year’s deluge of land use and environmental law decisions by revisiting the first principles of planning and zoning law in Neighbors in Support of Appropriate Land Use v. Tuolumne County (2007) 2007 Cal.App.Lexis 2004, filed and certified for publication on December 7, 2007. The court held that a development agreement between the property owner and the County to authorize a use otherwise prohibited in the same zoning district throughout the County violates the uniformity requirement of Government Code section 65852 and is invalid.
Continue Reading If the Zoning Isn’t Uniform, the Court Won’t Salute
By Cori Badgley
While compensation for regulatory takings remains elusive for California landowners, recovery of monetary damages for physical takings is established jurisprudence. In a stunning reminder of the physical/regulatory taking dichotomy, a federal court recently awarded over $36 million dollars in damages against the City of Half Moon Bay (“City”) whose assessment district project created wetlands on private property. The plaintiff’s case was based on theories of inverse condemnation, trespass and nuisance. Further, the court granted injunctive relief against the City from collecting assessments from the plaintiff. Not surprisingly, the City just announced that it will appeal the decision. We will see if they have more luck with the Ninth Circuit Court of Appeals.
