By William W. Abbott

Save the Plastic Bag Coalition v. County of Marin (July 25, 2013, A133868) ___Cal.App.4th ___.

In January 2011, the Board of Supervisors for the County of Marin enacted an ordinance generally banning the use of single use plastic bags and adopting a fee for paper bags. The ordinance also required retailers covered by the ordinance to offer reusable bags for purchase. This ordinance came about after some period of County study. A trade group, Save the Plastic Bag Coalition, submitted comments in opposition to the proposed ordinance, including a demand for an EIR. Initially, the Board continued the hearing. At the continued hearing, the Board considered, among other items, a letter from the County Counsel’s office suggesting that the Board should complete the hearing and could act based upon a categorical exemption (classes 7 and 8; maintenance and restoration of a natural resource and maintenance, restoration, enhancement or protection of the environment, respectively.) Relying upon the two exemptions, the Board approved the use of the two exemptions and approved the ordinance. The Coalition sued. The trial court upheld the Board’s decision and the Coalition appealed.Continue Reading Appellate court upholds ordinance restricting single use plastic bags and adopting a fee for paper bags based upon a categorical exemption in CEQA.

By Katherine J. Hart

In Citizens for Ceres v. Superior Court (July 8, 2013) ___ Cal.App.4th ___ (Citizens for Ceres), the Fifth Appellate District considered a writ from the trial court’s order denying the Citizens’ motion to augment the administrative record with various communications and documents excluded by the City. In overruling the trial court’s order, the Court of Appeal held that while Public Resources Code section 21167.6(e)(10) does not abrogate the attorney-client and attorney work-product privileges, “the common interest privilege does not protect otherwise privileged communications disclosed by the developer to the city or by the city to the developer prior to project approval.” Such a ruling conflicts with the implied holding of the California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th1217 (California Oak) ruling on this issue.Continue Reading Fifth Appellate District Says There Is No Common Interest Privilege In California Pre-Project Approval

Welcome to Abbott & Kindermann’s 2013 CEQA update. It is cumulative for the year, with the newest cases issued in the 2^nd quarter shown in italics and bold type face.

To review our prior annual reviews, click here: 2012; 2011; 2010; 2009; 2008.

The pace of published CEQA cases remains relaxed for the first half of 2013. However, five cases are pending at the California Supreme Court. These include the unusual circumstances limitation on exemptions (Berkeley Hillside Preservation v. City of Berkeley); setting the baseline (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority); application of CEQA to council enactment of measures which qualify as initiatives on local ballots (Tuolumne Jobs & Small Business Alliance v. Superior Court); and mitigation requirements (City of San Diego v. Board of Trustees and City of Hayward v. Board of Trustees.)Continue Reading 2013 CEQA 2ND QUARTER REVIEW

By Katherine J. Hart

The Marin Municipal Water District (District) proposed to construct a desalination plant in Marin County, and certified an environmental impact report (EIR) for the project. The North Coast Rivers Alliance (Alliance) challenged the EIR on the grounds that the EIR failed to properly analyze various impact categories, including aesthetics, land use and planning, seismology, hydrology and water quality, biological resources, and greenhouse gases. The Alliance further claimed that a number of mitigation measures were improperly deferred, and that a feasible green energy alternative was not considered in violation of CEQA. The trial court granted the writ, but on appeal, the Court of Appeal, First Appellate District, reversed and ordered the trial court to issue a new judgment denying the writ petition. North Coast Rivers Alliance Et Al. v. Marin Municipal Water District Board of Directors (May 21, 2013, A133821, A135626) ___Cal.App.4th ___.Continue Reading EIR For Desalination Plant Upheld

By William W. Abbott

Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (April 25, 2013, D060999) ___ Cal.App.4th ___.

The voters within the San Diego Unified School District passed a school bond measure to school facilities upgrades. The school board voted to use bond proceeds to install field lighting at Hoover High School. Neighbors, concerned with the increased traffic and parking conflicts resulting from nighttime events filed suit challenging the approval as an unauthorized use of bond proceeds and for improper reliance upon a negative declaration, among other claims. The trial court ruled for the District, and the neighbors (“Taxpayers”) appealed. The court of appeal reversed on the bond authorization claim, and reversed in part on the CEQA claim.Continue Reading Court Gives Failing Grade For School Bond Expenditure For Field Lights; Returns Neg Dec. As Incomplete

By William W. Abbott, Diane Kindermann, Katherine J. Hart and Glen Hansen

It is hard to believe that after a tsunami of CEQA decisions in 2012 that there are only three published CEQA cases in the first quarter of 2013. Our advice is to rest up and enjoy the break as there are five cases pending before the California Supreme Court. These include the unusual circumstances limitation on exemptions (Berkeley Hillside Preservation v. City of Berkeley); setting the baseline (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority); application of CEQA to council enactment of measures which qualify as initiatives on local ballots (Tuolumne Jobs & Small Business Alliance v. Superior Court); and mitigation requirements (City of San Diego v. Board of Trustees, and City of Hayward v. Board of Trustees.)Continue Reading 2013 CEQA 1st QUARTER REVIEW