The Supreme Court granted review in this case on January 25, 2006, and the opinion below is no longer citable. See Abbott & Kindermann Land Use Law Blog article for a discussion of the Supreme Court opinion. by Elias E. Guzman and Janell M. Bogue CALFED is an unprecedented collaboration among 18 state and federal agencies and the state’s leading urban, agricultural, and environmental interests. The ultimate goal is to develop a long-term, comprehensive plan that will restore ecological health and improve water management for beneficial uses of the Bay-Delta system, the intricate waterways created at the junction of the San Francisco Bay and the Sacramento and San Joaquin rivers and the watersheds that feed them. After many years of study and analysis, CALFED adopted a program to be administered over the next 30 years. The program includes measures designed to improve the Bay-Delta ecosystem, water quality and quantity, and Delta levee stability. On August 28, 2000, the final Programmatic Environmental Impact Statement/Environmental Impact Report (PEIS/R) was certified and CALFED adopted the Record of Decision (ROD) for the Program in accordance with NEPA and CEQA.
Continue Reading Programmatic EIRs Still Require Details and Analysis to be Found Sufficient

On the bright side, we have learned that there is one more local agency action exempt from CEQA. In Citizens to Enforce CEQA v. City of Rohnert Park (2005) 131 Cal.App.4th 1594, an MOU entered into between the City of Rohnert Park and a local tribe, the subject of which was a funding agreement to…

by William W. Abbott and Janell M. Bogue

It can safely be said that CEQA has gone to the dogs. In Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, we learn that failure to document the possibilities for changes in what most of us understand to be normal canine behavior may be the basis to invalidate an initial study, and in turn, a negative declaration.
Continue Reading See Spot Write an Expanded Initial Study

by William W. Abbott Most readers of this newsletter are already aware that the evidentiary threshold necessary to push a ND into an EIR is relatively low. In a June 2005 Abbott & Kindermann article, we discussed the decision of Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, a Third Appellate District decision. On the heels of Pocket Protectors now comes Mejia vs. City of Los Angeles (2005) 130 Cal.App.4th 322, another court of appeal decision, now from the Second Appellate District. Maria Mejia, a non-lawyer, beat both the City Attorney’s office and developer’s legal counsel twice, winning multiple arguments along the way. The project history, and her winning arguments, are as follows:
Continue Reading Negative Declarations: Fair Argument, Qualitative and Quantitative Analysis

by William W. Abbott and Janell M. Bogue

A proposed Wal-Mart Supercenter was cause for controversy in Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173. In this case, the City of Anderson (“City”) approved a new shopping center fronted by I-5 and anchored by a Wal-Mart Supercenter. The City prepared and certified an EIR but citizens formed Anderson First Coalition (“Coalition”) to protest the project, asserting that it would cause urban decay, was inconsistent with the general plan and the zoning of the area, and did not provide proper traffic mitigation. At the trial court level, the EIR was found to be sufficient except for the project’s gas station. The trial court severed the gas station and allowed the rest of the project to proceed. The Coalition appealed and the appellate court reviewed both the adequacy of the EIR and the trial court’s decision to sever the gas station.
Continue Reading Anderson First: Evaluation of Blight and Effective Mitigation

by William W. Abbott In land use litigation, particularly CEQA cases, a successful petitioner can file a motion with the court seeking an award of attorneys fees. The award of fees is highly discretionary with the trial court, and occasionally, the trial court decisions are reversed by the appellate court. In a recent court decision, Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, the appellate court reversed a trial court’s decision refusing to award fees to a petitioner. In reversing the trial court decision, the appellate court established the threshold for what constitutes a “prevailing party” as a fairly low barrier.
Continue Reading Paying the Piper in Land Use Litigation

by William W. Abbott and Janell M. Bogue Lately, infill projects have become a hot-topic development strategy, especially in established neighborhoods. In Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, the developer proposed an infill project on a long, narrow strip of vacant land subject to a PUD zoning designation. The PUD called for the construction of townhouses in the project area, but the developer instead wanted to build a double row of single-family homes along a private street. Initially, the City was supportive. But even before preparation of the draft Mitigated Negative Declaration (MND), neighbors began to complain. They organized a group called “Pocket Protectors” and gathered signatures for a petition in opposition of the new project. Their complaints centered on the project’s inconsistencies with the PUD and city land use policies, which many of them had allegedly relied upon to control growth and development in the area. Pocket Protectors also complained about the aesthetic impacts of the project because it provided minimal setbacks from adjacent landowners, only planned nominal landscaping, and created a “canyon” effect due to the lining of the narrow street with closely placed homes of similar sizes. Subsequently, the Planning Commission denied approval citing many of the same complaints of the Pocket Protectors.
Continue Reading Pocket Protectors Protest Proposed Project; Prevail