By Elias E. Guzman

Effective March 1, 2006, the San Joaquin Valley Air Pollution Control District implemented Rule 9510, the Indirect Source Review program, which will increase the cost of development in the San Joaquin Valley. The program is a one time assessment that seeks to reduce the emissions of NOx and PM10 caused by new development projects and applies to any project that have not yet gained discretionary approval for residential project consisting of 50 or more units, 2,000 square feet of commercial space, or other express thresholds.

Under the new program, project proponents must submit an application, together with a proposed mitigation and monitoring plan, no later than the date it applies for final discretionary approval with the public agency. Certain on-site emission reductions are required to be part of any permit conditions, developer agreements, or other legally binding instruments. Further, a residential developer could expect to pay $500 to $1,200 per unit for off-site mitigation, which must be paid prior to the issuance of building permits.

The rule will undoubtably have widespread impact on new developments in the San Joaquin Valley because the District’s nine county jurisdiction encompasses a widespread area that includes the counties of San Joaquin, Stanislaus, Merced, Madera, Fresno, Kings, Tulare, and (part of) Kern.

Elias E. Guzman is an associate 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 William W. Abbott and Janell M. Bogue

As development continues to occur in areas outside of urbanized metropolitan areas developers are encountering more threatened or endangered species issues in their environmental review process under the California Environmental Quality Act (“CEQA”). A fundamental question which must be addressed is whether there are threatened or endangered species present in the project area and whether the project will affect those species. This is not always a simple question to answer, as it is not clear what studies are necessary in order to adequately analyze biological resources under CEQA. What standards are appropriate to measure the significance of the effects on endangered species? Furthermore, once threatened or endangered species are determined to be affected by the project and potentially significant impacts to biological resources are identified, how does one provide for adequate mitigation in order to mitigate those impacts to a less than significant level? This paper discusses recent CEQA cases dealing with these questions and provide insight on how to address endangered species concerns in order to comply with CEQA. Continue Reading Analyzing and Mitigating Biological Resources and Endangered Species Impacts Under CEQA: An Update

by William W. Abbott and Janell M. Bogue

Properly administered impact fee programs can operate to streamline CEQA review of later development projects. At the same time, impact fee programs which are not implemented in accordance with the original expectations or which are founded upon unrealistic assumptions may offer the lead agency and affected applicant little or no real relief. Significant cases decided over the last five years illustrate how this can play out. Continue Reading Impact Fee Programs as Effective Tools for CEQA Mitigation: An Update

by Elias E. Guzman

In Connerly v. State Personnel Board (2006) 37 Cal.4th 1169, the California Supreme Court recently held that amicus curiae were not liable for private attorney general fees because they were not an “opposing party” under Code of Civil Procedure section 1021.5. This opinion provides significant protection to an amicus curiae from having to pay attorney’s fees under the private attorney general statute. Continue Reading Friends Don’t Let Friends Pay Attorney’s Fees

* Joel Ellinwood will be teaching a seminar on the Fundamentals of Real Estate Development on May 25, 2006. For more information, visit Sterling Education Services at http://www.sterlingeduation.com.

* Joel Ellinwood will also be teaching a seminar on the Framework for Success in Local Governmental Land Use Decisions in California on June 27, 2006. For more information, visit Lorman Education Services at http://www.lorman.com.

by Joel Ellinwood, AICP

The California Mitigation Fee Act, Government Code sections 66000, et seq. (“MFA”), affords some limitation on developer fees and exactions that is generally consistent with the constitutional principles enunciated in the United States and California Supreme Courts case law (Nollan fn1, Dolan fn2, Ehrlich fn3, and San Remo Hotel fn4). The MFA provides a “payment under protest” remedy for claims of excessive fees charged to a particular project, but case law has qualified this remedy for various types of fee claims. Some categories of fees may not have a refund remedy under the MFA. However, other statutes may provide independent authority for the “payment under protest” remedy. One example is water, drainage and sewer connection fees adopted under Health and Safety Code section 5471. Continue Reading Water & Sewer Connection Fee Payments Under Protest: Alternatives to Mitigation Fee Act, Government Code section 66020

Along with Sierra Engineering Limited, San Andreas, California as development consultant, Bill Abbott served as land use counsel to Castle & Cooke Calaveras, Inc. for the recently approved Copper Mill project, a mixed use project located in Copperopolis, California. Robert Klousner of Planning Partners served as the CEQA consultant to the applicant, and Quad Knopf acted as peer advisor for the County of Calaveras.

The Court of Appeal, 4th District, recently affirmed EIR certification and project approval by Mariposa County for the Silvertip resort project located in Fish Camp, California. Bill Abbott represented the Board of Supervisors and the County in the administrative hearings, as well as the trial and appellate courts. Gene Smith and Quad Knopf were responsible for EIR preparation.

The California Supreme Court has granted review in two important cases dealing with water supply and planning under CEQA. The first, Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (Case No. S132972) was covered in a June 2005 Abbott & Kindermann article. The second is In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (Case No. S138975) and was discussed in a November 2005 Abbott & Kindermann article. The Supreme Court’s opinions in these cases will likely affect all participants in the EIR process and we will update you when they are issued. 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 William W. Abbott Most developers are familiar with the use of development agreements (“DAs”) as a means of memorializing a land use agreement governing development. DAs are approved following traditional land use procedures of notice, hearing and environmental review. But what about deals made at the courthouse? The appellate court recently granted rehearing of Trancas Property Owners Association v. City of Malibu (2005) 132 Cal.App.4th 1245 (click here to read Abbott & Kindermann’s November 2005 article on the case). In Trancas, the appellate court defined the limits on settlement agreements, effectively precluding terms which would otherwise be required to follow a traditional land use approval procedure. Continue Reading Let’s Make a Deal!