By Leslie Z. Walker and Janell M. Bogue

Admonishing appellant for 20 years of blatant disregard for the Army Corps of Engineers (“Corps”) and the Clean Water Act (“CWA”), the Ninth Circuit upheld the Idaho district court’s verdict finding appellant criminally liable for violations of the Clean Water Act in U.S. v. Moses (Aug. 3, 2007, No. 06-30379) ___U.S. ___ [2007 U.S.App.LEXIS 18483].

Continue Reading Ninth Circuit Upholds Criminal Penalties for Modification of Intermittent Stream

By Glen C. Hansen

Due to increasing regulatory complexity, development projects may require multiple approvals, issued over an extended time period. Lead and responsible agencies frequently, but not always, file separate notices of determination (“NOD”) for each approval. When that happens, interested parties are challenged as to the optimal time period to file suit. In a multiple NOD scenario, a later filed petition will be considered under a less favorable standard of judicial review, which could lead to a very different outcome in the litigation. Such a result is illustrated by the recent case of Citizens For A Megaplex-Free Alameda v. City of Alameda (“Megaplex”) (March 29, 2007) 149 Cal.App.4th 91, review denied (Cal., June 27, 2007) 2007 Cal.LEXIS 6959.

Continue Reading Multiple Sequential NODs: Weapons of mass confusion for applicants and project opponents

Abbott & Kindermann, LLP is pleased to announce the addition of a new senior associate, Glen Hansen. Mr. Hansen has over thirteen years experience in state and federal court litigation, including appeals. His practice areas include land use, real estate and commercial transactions, corporate and partnership dissolutions, elections, government and employment law. He adds significant new depth to the firm across a broad spectrum of land use, real estate, business and governmental litigation, and dispute resolution.

His litigation experience includes reported appellate cases concerning toxic substance contamination and land use law (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160); initiative measures (Costa v. Superior Court (2006) 37 Cal.4th 986 and Senate of the State of California v. Jones (1999) 21 Cal.4th 1142 ); and Strategic Litigation Against Public Participation (SLAPP) motions to dismiss (Miller v. Filter (2007) 150 Cal.App.4th 652 and Witte v. Kaufman (2006) 141 Cal.App.4th 1201) – all of which can come into play within land use, environmental and development litigation.

Mr. Hansen is admitted to practice before the state courts and U.S. District Courts in California, the U.S. Ninth Circuit Court of Appeals, and the U.S. Supreme Court. He serves as a Dispute Resolution Conference pro-tem judge for the El Dorado Superior Court. Glen graduated with distinction from McGeorge School of Law, University of the Pacific.

By Kate J. Hart and Brian Hoffman

On June 7, 2007, the California Supreme Court addressed head-on the issue of whether or not cities may use their planning and zoning powers to directly impact economic competition. The case is Adrian Hernandez v. City of Hanford (June 7, 2007) 2007 Cal.Lexis 5586. This case affirms the ability of cities to impact economic competition in a direct and intended manner because it allows just such an impact so long as the primary purpose of the zoning action is to achieve a valid public purpose and not simply to serve an impermissible anti-competitive private purpose.

Continue Reading Zoning, Business Competition and Public Purposes

By Janell M. Bogue and Diane G. Kindermann Henderson

On June 5, 2007, the EPA and the Army Corps of Engineers (“Corps”) jointly issued guidance consistent with the Supreme Court’s decision in Rapanos. This document is entitled “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States and Carabell v. United States (“Guidance”). The issue in Rapanos was whether a wetland or tributary can be defined as a “water of the U.S.” and thus be subject to jurisdiction under the Clean Water Act (“CWA”). (That case is discussed in depth in a previous Land Use Law Blog article “District Court Struggles with Rapanos in U.S. Pipeline v. Chevron Pipe Line.”) Because the Court issued five separate opinions, it was unclear whether certain types of waters were jurisdictional. The guidance document establishes several categories of waters and discusses whether or not the agencies may assert jurisdiction.

Continue Reading EPA and Corps Issue Rapanos Guidance

By William W. Abbott

When does an easement cross over and become a “division of land” for purposes of the Subdivision Map Act? Apparently, not as frequently as suggested by the California Attorney General and noted California authority.
 

In Blackmore v. Powell (2007) 150 Cal.App.4th 1593, the Second Appellate District ruled on the validity of an easement granted between adjacent owners, which provided the grantee with the right to an exclusive easement for ingress and egress as well as the right to construct a garage within the easement area. In Blackmore, a property owner (grantor) granted an exclusive easement to an adjacent owner (grantee). The scope of the easement was for driveway purposes, including the right to build a garage within the easement area. Title to both the benefited and burdened parcels passed to subsequent owners, who then initiated the dispute over the nature and scope of the easement, as it related to the ability to construct and exclusively occupy a garage.

Continue Reading Easements, Exclusive Occupancy and the Subdivision Map Act

By Leslie Walker and Joel Ellinwood, AICP

Establishing estoppel against the government in land use matters requires additional findings not required against a private party. In Feduniak v. California Coastal Commission (2007) 148 Cal.App.4th 1346, two Pebble Beach landowners found out exactly how difficult that task can be.

Continue Reading The Difficulty in Establishing Estoppel Against A Public Agency