Mahon v. County of San Mateo (2006) 139 Cal.App.4th 812 The “deemed approved” remedy for untimely processing must give heads up to neighbors — what may be “deemed” is not what it seemed. By Joel Ellinwood, AICP Recognizing that the often seemingly interminable delay by local agencies in development permit processing drives up costs of providing housing and other desirable projects, the development industry succeeded in persuading the legislature to impose what at first glance appear to be strict timelines for the agency to approve or disapprove projects. The timelines are given teeth by provisions which may result in projects being “deemed approved” if the agency fails to act within the time provided. However, as the recent case of Mahon v. County of San Mateo (2006) 139 Cal.App.4th 812 (modified June 19, 2006) illustrates, the teeth don’t seem to have much bite. This article will identify strategies for making the best use of what little bite is left to help manage the pace of development processing. Continue Reading Take Notice!

By Diane Kindermann Henderson and Elias E. Guzman

Two weeks after the United States Supreme Court rendered its opinion in Rapanos/Carabell, et al. v. United States (2006) 126 S.Ct. 2208, the United States District Court for the Northern District of Texas delivered an opinion in United States v. Chevron Pipe Line Co. (D. Tex. June 28, 2006) 2006 U.S. Dist. LEXIS 47210. The court in Chevron was the first federal district court to apply the Army Corps of Engineers’ jurisdictional authority standards enunciated in Rapanos. In granting summary judgment, the Chevron court opined that the connection of generally dry channels and creek beds does not create a “significant nexus” to a navigable water simply because one fed into the next during the rare times of actual flow. Continue Reading District Court Struggles with Rapanos in U.S. v. Chevron Pipe Line

By William W. Abbott

There is no middle of the road for Wal-Mart Stores. People are passionate on both sides, which includes the lawyers and consultants caught in the debate as it appears that Wal-Mart, as a single entity, generates more CEQA litigation than any other California applicant. Perhaps Wal-Mart will open up an EIR preparation service, sandwiched between the in-store optometrist and bank, as it continues its meteoric climb as the Nation’s number-one retailer. Continue Reading The Importance of the Mundane in CEQA Litigation: It’s All in the Details

By William W. Abbott

Feasibility, or its Bizarro World counterpart (fn1) infeasibility, is an integral part of CEQA analysis. Feasibility is defined by the Guidelines as follows: “. . . capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors.” (Guidelines, § 15364) A mitigation measure may be determined by the lead agency to be infeasible and on that basis, would not be required as a condition of project approval. Unlike other areas of CEQA practice, there has been less frequent and less critical analysis of what constitutes a valid finding of infeasibility. A recent court decision begins to shed light on what is likely to be a new chapter of CEQA challenges. Continue Reading Mitigation Infeasibility: New Thinking on an Old Issue

By William W. Abbott

So what happens if you host an election party, and not enough people vote for an assessment? According to the California Attorney General, a community service district is not obligated to provide road maintenance services and snow removal to an existing zone within the district if the voters reject an increase in the assessments necessary to provide the services. In addition to termination of services, the district may also dissolve the zone. On a related issue, the city, county or district does not have any continuing obligation to maintain the road as long as the road has never been formally accepted into the road system. (Sts. & Hy. Code, § 831.1; Opinions of the Attorney General, 05-710.)

William W. Abbott is a partner with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

By Janell M. Bogue

As cities and developers look inward for new development opportunities, the dark cloud of CEQA is never far away. The legislature has attempted to facilitate infill opportunities by narrowing CEQA’s application. This case illustrates how far this infill exemption can reach. In Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (May 8, 2006) 2006 Cal.App.Lexis 684, developers proposed an urban infill project in the City of San Diego (“City”) near the northwest corner of Balboa Park. The project, a fourteen-story, fourteen-unit multi-family residential building, was approved by the City and found to be exempt from CEQA pursuant to Guidelines section 15332. A neighborhood preservation group filed for a writ of mandate and after losing at the trial court level, the neighborhood group appealed, claiming that the project was not exempt from CEQA and that the City reviewed the project in a piecemeal fashion. Continue Reading More Infill, More Problems: The Categorical CEQA Exemption for Infill Developments

Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal. App. 4th 273 Filed April 4, 2006. By Joel Ellinwood, AICP and Kate Hart For those awaiting a court’s interpretation of the standards of review and to see a court analysis of Section 21083.3 (Guidelines Section 15183) providing for a conditional exemption from CEQA for projects that are consistent with an approved general plan, the time has come. For those hoping to take advantage of the rollback prices at a new Wal-Mart Superstore in Turlock, the chance is sprung. Wal-Mart wanted to build a new store in the City of Turlock (“City”). In early 2003, Wal-Mart representatives inquired with City staff about developing a Wal-Mart Supercenter, which would include a full-service grocery department. The City staff provided Wal-Mart with entitlement and fee information as requested. Continue Reading Will Turlock Ever Get Rollback Prices?

By Joel Ellinwood, AICP Although we are only entering the second quarter of 2006, it is safe to predict that the just published case of Branciforte Heights, LLC v. City of Santa Cruz (2006) 138 Cal.App.4th 914 will be one of the top ten land use cases for the year. The decision includes discussion of critical issues for litigation of cases involving the Subdivision Map Act (Gov. Code, § 66410 et seq.), the Quimby Act (the section of the Subdivision Map Act limiting park fees and dedications, Gov. Code, § 66477), the Mitigation Fee Act (Gov. Code, § 66000 et seq.), and the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.). Once again a court is required to parse the obtuse and conflicting statutory language adopted by the legislature to provide some semblance of clarity in these areas of California development law. Continue Reading Branciforte Heights – Strong Bet for 2006 Top Ten Land Use Cases