by William W. Abbott

One person’s innovative, edgy infill development is another person’s significant impact. Or is it? This is the issue recently addressed in Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572. The developer in Bowman proposed an infill project in the City of Berkeley. The project involved an existing, single story vacant building of no architectural significance. The developer proposed to demolish the existing building and construct a four floor retail and a senior residential project of 40 units. The project went through multiple design changes as it proceeded with City review. In response to City and public review, the developer modified the building height where the site shared a property line with residential properties. City staff supported the project and recommended a negative declaration.
Continue Reading Design Review and CEQA Analysis: New Guidance

by William W. Abbott

A new court decision affirms the adequacy of an EIR prepare in response to an application by Pluto Development, Inc, the development arm of Wal-Mart. Pluto submitted an application to the Town of Apple Valley (long time home of Roy Rogers, Dale Evans and Trigger, Roy’s trusty horse, for those of you under the age of 50). After preparation of an EIR, the Town Council approved the project, based upon a statement of overriding considerations. The project approval was subsequently challenged in court by a desert environmental group and the California Attorney General. The appellate court decision wrestled with several common EIR problems, and resolved all of them in favor of the lead agency.
Continue Reading Men are from Mars, Women are from Venus, and Wal-Mart is from Pluto

by William W. Abbott

Despite what project critics may say, lead agencies do get it right every now and then. The recent decision of Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477 is such an illustration. As one would suspect, existing residents in coastal communities prize their views of the ocean, and can be counted on to be large in their criticism of any project which potentially interferes with what they rightfully see as their right to a view of the ocean.
Continue Reading Court of Appeal Affirms Dismissal of CEQA Challenge Alleging Inadequate Alternatives, Inadequate Consideration of View Impacts to Neighbors and Insufficient Evaluation of Mitigation to Coastal Sage Scrub

by William W. Abbott

Readers of this firm’s publications likely remember the efforts of the Wilson administration to create an impetus in the 1998 CEQA Guidelines amendments for the use of thresholds of significance as a means of reducing EIRs. While well intentioned, this effort was tanked by the superior court, whose invalidation of a selection 1998 amendments was then largely affirmed by the Third District Court of Appeal in Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98. In the recent decision of Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099 (March 12, 2004, modified April 9, 2004), the same appellate court had another opportunity to weigh in on the use of thresholds of significance, this time focusing on Appendix G of the Guidelines.
Continue Reading CEQA’s Thresholds of Significance v. Thresholds of Pain: Sometimes It’s Hard to Tell the Difference

Admissibility of Extra Record Evidence and Two Edges of the Exhaustion of Administrative Remedies Doctrine Also Examined.

by William W. Abbott and Joel Ellinwood, AICP

Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, illustrates effective application of a tiering strategy off of a combined programmatic/project EIR.
Continue Reading Combined Programmatic and Project EIR Supports Subsequent Negative Declaration for Expansion and Modification of Water Recycling Project

Ocean View Estates Homeowners Association, Inc. v. Montecito Water District (2004) 116 Cal.App.4th 396.

Failure to adequately address potential impacts of mitigation measures invalidates mitigated negative declaration.

Failure to address impacts on private and public views of four-acre, 15-foot tall reservoir cover invalidates mitigated negative declaration.

by Joel Ellinwood, AICP

It took only two swings for the Montecito Water District to strike out in its attempt to go to bat* for its adoption of a mitigated negative declaration (MND) as CEQA compliance for its plan to build a four-acre aluminum cover for the Ortega Reservoir in Summerland, Santa Barbara County. Perhaps it is understandable that one of the CEQA curve balls that flummoxed the District in a community that is locally known for its unofficial clothing-optional beach was failure to adequately address visual impacts. One might expect that concern over visual pollution and blocking of scenic vistas would be particularly acute there.
Continue Reading The View From Here

by William W. Abbott and Robert T. Yamachika

In a previous article, we noted that a disorganized administrative record could be fatal to project approval if the land use decision is challenged in court. As noted in Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, a court could set aside a project approval simply because the administrative record was poorly organized. In these circumstances, the developer and the lead agency share a mutual interest in investing in timely review and organizational efforts in the administrative record long before a CEQA challenge is filed. Once the parties recognize that record organization is critical, they then face the question of what should the preparers focus in on? You may not like the answer.
Continue Reading Making (and Breaking) the Record