CEQA

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By Joel Ellinwood, AICP

As the battle of the big boxes continues on the fields of CEQA in the California courts, the Fifth District Court of Appeals reiterated (in an unpublished portion of the opinion) that it will carefully scrutinize evidence petitioners use to support a “fair argument” that a project approved with a Mitigated Negative Declaration (MND) is inadequate without the preparation of a full Environmental Impact Report (EIR). Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora…
Continue Reading The Road Not Studied

By Janell M. Bogue

A California appellate court recently addressed the approval of yet another Wal-Mart Superstore, this time in the City of Stockton (“City”). In Stockton Citizens for Sensible Planning v. City of Stockton (November 28, 2007) 2007 Cal.App.LEXIS 1960, the California Court of Appeal, Third Appellate District directed the trial court to set aside the approvals for a 200,000 plus square foot Wal-Mart, which would have been located in Spanos Park West (“Park”). The court held that a letter from the City’s Community Development Director (“Director”) was not an approval by a public agency. Since there was no approval by a public agency, the notice of exemption (“NOE”) was not valid and the short 35-day statute of limitations could not apply.
Continue Reading Invalid Approval Based on Lack of Legal Authority Leads to Invalid Notice of Exemption and Long Statute of Limitations for Challenged Wal-Mart

By Leslie Z. Walker

In Muzzy Ranch v. Solano County Airport Land Use Commission, 41 Cal.4th 372, decided on June 21, 2007 and modified on September 12, 2007, the Supreme Court upheld the common sense exemption as applied to an Airport Land Use Compatibility Plan (“ALUCP”), but found that development displaced by density limits is not too speculative of an impact to require CEQA analysis.
Continue Reading Displaced Development Not Too Speculative, Common Sense Exemption Upheld

By Janell M. Bogue

The California Supreme Court’s decision in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova addressed the sufficiency of future water supplies for a long-term, large scale development. In the case of Santa Clarita Organization for Planning the Environment v. County of Los Angeles, the Second Appellate District determined that an EIR for a long-term project met the requirements discussed in the Vineyard case.
Continue Reading Paper Water Revisited: Second Appellate District Applies the Principles of Vineyard

By Janell M. Bogue

In development, as in life, plans change. From a CEQA standpoint, problems emerge as projects are modified, as the triggers requiring new environmental review are less than precise. The recent case of Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385 (“Mani Brothers”) demonstrates that even the courts are unclear on the issue, as two appellate courts have come to two different conclusions. The court in Mani Brothers emphasized that the question is not whether the changes amount to a new project, but whether there is substantial evidence that the changes in the project would create new and significant environmental impacts.
Continue Reading Second Appellate District Clarifies Test for SEIR Preparation When Project is Modified

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

By William W. Abbott

Unlike residential or commercial development projects with somewhat predictable levels of activity (and in turn, environmental effects), mining projects involving rock, sand and gravel can vary widely based upon local economic conditions. The recent case of San Joaquin Raptor v. County of Merced (April 10, 2007) 2007 Cal. App. LEXIS 516 examines the duty of the lead agency to also evaluate impacts associated with periodic or sustained peaks, and not just to rely upon historic averages. The decision also addresses deferred mitigation in the area of biological impacts.
Continue Reading Mine Games: CEQA documentation for mining projects with fluctuating production levels

By William W. Abbott

One person’s misery can be someone else’s gain. This can also hold true when dealing with inter-jurisdictional disputes over impact fees. The recent case of Woodward Park Homeowners Association, Inc. v. City of Fresno (April 13, 2007) 2007 Cal.App.LEXIS 544 highlights a number of important CEQA practice issues. While these are not necessarily new concerns, the case daylights a key issue of first impression–namely, whose responsibility is it to calculate the nexus for impact fees to be set for impacts to state highway facilities? Is CalTrans responsible, or is it the responsibility of the city or county approving a development project which impacts state facilities? According to the Fifth Appellate District, the answer to the question is the lead agency.
Continue Reading Rough Road Ahead: Whose responsibility is it to perform a nexus study for mitigation fees for local project impacts to state highways?