Land Use

First District Re-Affirms Public Agency's Ability to Recover Administrative Record Preparation Costs Even Where the Petitioner Elects to Prepare the Record

On September 16, in Coalition for Adequate Review v. City and County of San Francisco, the First District held that a public agency is not automatically barred from recovering administrative record preparation costs under the California Environmental Quality Act ("CEQA") even though the Petitioner has elected to prepare the administrative record.  The Court rejected arguments by the petitioners that their election to prepare the record immunized them from San Francisco's record preparation costs and the argument that high agency record preparation costs would "chill" the filing of CEQA petitions.

Regulatory Scope of "Waters of the United States" to be Clarified

Last week, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers ("Agencies") jointly released a proposed rule that further defines the scope of waters protected under the Clean Water Act ("CWA"). The proposed rule revises the definition of "waters of the United States" and also adds new definitions for the terms "neighboring," "riparian area," "floodplain," "tributary," and "significant nexus." The impetus behind this rule is an attempt to reduce the confusion and uncertainty generated in the wake of two U.S. Supreme Court decisions that added complexity, rather than clarity, to the determination of whether a water body was a jurisdictional "Water of the United States" regulated under the CWA. See Solid Waste Agency of N. Cook County (SWANCC) v. U.S. Army Corps of Eng'rs., 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006).  

Court of Appeal Issues Narrow Opinion on Subvention for Municipal Stormwater Permit Requirements

The California Court of Appeal recently issued the first published decision that adjudicates a municipal stormwater test claim on the merits.  In State Department of Finance et al. v. Commission on State Mandates, the Court of Appeal held that municipal stormwater requirements in a Los Angeles County National Pollutant Discharge Elimination System ("NPDES") permit to install trash receptacles at transit stops and to conduct inspections of commercial, industrial, and construction sites are not unfunded state mandates as a matter of law.  The Los Angeles County permittees, therefore, are not entitled to reimbursement for implementing these specific requirements under the California Constitution, article XIII B, section 6.   The Court of Appeal largely relied on the "highly flexible" "maximum extent practicable" standard of the Clean Water Act in ruling that these requirements are federal mandates, but limited its ruling to the specific mandates at issue.  As a result, public agencies that own and operate municipal separate storm sewer systems in California may still seek subvention for other NPDES permits with requirements that exceed the "maximum extent practicable" standard.

Please click here for more information on this case.

The Supreme Court Expands the Nollan/Dolan Standard

Attorney Authors: 

The United States Supreme Court’s recent decision in Koontz v. St. Johns River Water Management Dist. has broad implications for state and local governments attempting to work with developers to find mutually agreeable solutions that will mitigate the impacts of development projects.  The decision expands the application of the unconstitutional conditions doctrine articulated in Nollan v. California Coastal Commission and Dolan v. City of Tigard (“the Nollan/Dolan standard”) to a broader range of land use permitting decisions while providing little guidance as to how reviewing courts will actually apply the expanded doctrine.  This standard was previously applied only in limited circumstances where an adjudicative land use permitting decision required a dedication of property to offset impacts on the public from a particular project to ensure that the requisite property dedication had a reasonable nexus to the public impact of the proposed project and was roughly proportional to the size of the impact of the project.  If these two prongs were not satisfied, the dedication was found to be a taking of private property requiring payment of just compensation under the Fifth Amendment. 

Bay Area Air District CEQA Significance Thresholds Survive Legal Challenge

Attorney Authors: 

The Court of Appeal upheld the Bay Area Air Quality Management District's (BAAQMD) 2010 adoption of thresholds of significance for air quality impacts under the California Environmental Quality Act (CEQA) (California Building Industry Association v. BAAQMD).  The Thresholds establish levels of emissions for air pollutants that would be considered a significant impact under CEQA.

A trial court decision last year invalidated the Thresholds based on BAAQMD's failure to comply with CEQA in the adoption process.  The Court of Appeal reversed the trial court decision finding that an agency adoption of significance thresholds was not a project under CEQA.  The Court ruled that the public process for adoption of significance thresholds in CEQA Guidelines section 15064.7 does not require formal environmental review.  The Court also ruled that the alleged indirect environmental impact of the Thresholds on future projects was too speculative and not reasonably foreseeable.

Fifth District Court of Appeal Holds That Privileged Documents Shared Between Applicants and Agencies During The CEQA Administrative Process Are Not Protected From Disclosure and Inclusion In The Administrative Record

In an opinion with potentially significant consequences for the preparation of EIRs and other environmental review documents under CEQA, the Fifth District Court of Appeal (Fresno) has ruled in Citizens for Ceres v. City of Ceres that any attorney-client privilege or work product protection which initially attaches to a document is waived if that document is shared, prior to project approval, between a project applicant and the agency conducting CEQA review.  This would mean that otherwise privileged documents that concern the project at issue or compliance with CEQA generally, if shared among applicant and agency prior to project approval, are subject to disclosure and must be included in the administrative record which the court reviews in CEQA litigation.     

CEQA generally requires that any document in the lead agency's files that is relevant to the proposed project or compliance with CEQA must be included in the administrative record.  In the past, however, some agencies had relied on the so-called "common interest" doctrine of non-waiver of privilege to exclude from the record otherwise relevant documents prepared by or for attorneys for either the applicant or the agency, even if those documents had been communicated between the applicant and the agency considering the project. 

California Supreme Court Holds Local Governments May Ban Medical Marijuana Dispensaries

Attorney Authors: 

On May 6, 2013, the California Supreme Court issued the long awaited decision in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. et al., (S198638) upholding the ban by the City of Riverside ("City") on medical marijuana collectives, cooperatives and dispensaries ("dispensaries").  The Court held that the City's ban on medical marijuana dispensaries was not preempted by California law, as set forth in the Compassionate Use Act ("CUA") or the Medical Marijuana Program Act ("MMPA"), and thus the ban was valid.  Local regulation of dispensaries does not duplicate or contradict state law, nor does such regulation enter an area or field fully occupied by state law; consequently, local governments may choose to regulate or ban medical marijuana dispensaries.

Appellate Court Holds that Due Process Prevents Partners From the Same Law Firm From Serving as Adviser and Advocate on Contested Hearings

Attorney Authors: 

The Second District Court of Appeal, in Sabey v. City of Pomona (B239916), remanded a decision related to discipline of a police officer on the basis that his due process rights were violated  when one partner from a law firm represented the Police Department in the officer's arbitration matter, and a different partner from the same firm represented the city council in the officer's appeal of his termination.  Even though there was no evidence of bias, the court believed the risk of bias, when two partners from the same firm were involved in different levels of the contested hearing, "too high to be acceptable under constitutional principles."  As explained by the court, "[t]he rule we announce is simple.  Agencies are barred from using a partner in a law firm as an advocate in a contested matter and another partner from the same law firm as an advisor to the decision maker in the same matter."

Due process requires impartiality in administrative hearings, and prevents an attorney from performing dual roles in contested quasi-judicial hearings such as administrative, disciplinary or code enforcement hearings.  Based on that principle, agencies have used one attorney to represent the agency in an administrative hearing, while allowing another attorney to represent the board that reviews the  decision stemming from that hearing.  This approach was permissible as long as there existed "assurances that the adviser for the decision maker is screened from any inappropriate contact with the advocate."  (Howitt v. Superior Court (1992) 3 Cal.App.4th 1575.)  "Ethical walls" were set up by law firms in order to comply with Howitt and to ensure an attorney did not communicate about the matter or access the files of the other attorney participating in the matter.

Resolution of Necessity Maintained Even When Further CEQA Review Required

The generally accepted rule has been a public entity must comply with CEQA prior to adopting a resolution of necessity to condemn land needed for a public project.  Last Friday, a California Court of Appeal decision reviewing the California Environmental Quality Act (“CEQA”), Public Resources Code section 21168.9(a), upheld a trial court’s writ decision not to set aside an adopted resolution of necessity in its entirety when it found non-compliance with CEQA and instead allowed the eminent domain action to proceed before CEQA review was completed. 

In the decision Golden Gate Land Holdings, LLC v. East Bay Regional Park District (2013 Cal.App. LEXIS 283, April 12, 2013), the merits of the trial court’s ruling on CEQA project approval was not before the appellate court and its review of the District’s compliance with eminent domain law was not certified for publication.  The trial court held that the District had not complied with CEQA and that further CEQA review was required, but it did not vacate the District’s adopted Resolution of Necessity in its entirety.  Golden Gate’s limited argument on appeal was that the trial court erred in refusing to set aside the resolution of necessity because CEQA compliance after the approval of a resolution of necessity is unlawful. 

Superior Court Finds CEQA's Fast-Track Provisions Unconstitutional

On April 9, 2013, the Superior Court for the County of Alameda, the Honorable Judge Frank Roesch presiding, issued a statement of decision in Planning and Conservation League et al., v. State of California and the California State Controller, Case No.

First Amendment “Content-based” Sign Analyses Get a Little Trickier

The law regarding sign regulations is a murky, fact specific and dynamic area and the latest Ninth Circuit decision, Reed v. Town of Gilbert, Arizona (Reed II), 2013 U.S. App. LEXIS 2715 (9thCir. 2013), does not disappoint.  On a previous appeal in the same case, Reed v. Town of Gilbert, Arizona (Reed I), 587 F.3d 966 (9thCir. 2009), the Court of Appeal upheld the Town’s sign ordinance against a variety of constitutional challenges raised by plaintiffs Clyde Reed and the Good News Community Church, but remanded for the district court to consider whether the ordinance’s treatment of different categories of non-commercial speech was an improper content-based restriction.  The Court warned that municipalities may distinguish between the relative value of different categories of commercial speech, but do not have the same latitude with regard to non-commercial speech, citing Metromedia v. City of San Diego, 453 U.S. 490 (1981).

State Supreme Court to Consider Whether Ballot Initiative Process Can Bypass CEQA

Attorney Authors: 

The California Supreme Court has unanimously decided to accept review of Tuolumne Jobs & Small Business Alliance v. Superior Court. The plaintiff alleges that the City of Sonora violated CEQA when it adopted a voter-sponsored initiative as an ordinance to approve expansion of a Wal-Mart into a 24-hour "supercenter" without submitting the measure to a popular vote and without completing environmental review. 

Global Climate Change: Finally, a 'Trust' Worthy Solution?

Environmental groups may have developed a way to repurpose a legal theory traditionally implemented to protect water resources, the “public trust doctrine,” to push forward legal measures to combat climate change and reduce greenhouse gas emissions. 

CEQA Reform Bill Tabled for Now

Attorney Authors: 

The last minute scramble for a CEQA reform bill has ended for this legislative session.  Senate President Pro Tem Steinberg said the Senate would not take up the bill before the current session ends next week.  The bill’s author Senator Rubio acquiesced.  However, the proposed reform is deferred, not dead.  The bill will be made public and is expected to be formally introduced in the next legislative session.  There is a coalescing of interests to support significantly amending CEQA to prevent what are seen as obstacles to development through delays and litigation.  So, although the mad dash for immediate passage has abated, this issue will be prominently debated in the future.  It appears a big legislative battle is looming on the future of CEQA.  It is a long-standing issue whose time may have finally come.

Last Minute Significant CEQA Reform Bill Emerges

Attorney Authors: 

A business and labor coalition group is proposing a new law to significantly reform CEQA before the current State Legislative session ends next week.  The terms of the bill are expected to be made part of SB 317 (an unrelated bill) through what is called a “gut and amend” process.  Although the proposed law may be further amended, the draft focuses on the following: (1) limiting analysis of environmental impacts in CEQA documents to compliance with State and Federal environmental regulations; (2) limiting mitigation measures to requirements under existing law; and (3) prohibiting certain types of legal challenges to CEQA environmental documents.  Overall, the bill would significantly narrow the scope of environmental impacts analyzed  and the mitigation measures available to address impacts.  The proposal also would restrict the types of legal challenges that can be made to CEQA documents.  An initial draft of the proposal has been posted online

Some newspaper editorials have criticized the proposal as an end of the session rush job and have urged the Legislature to follow a procedure that would allow more review and debate.  Last year, the Legislature passed some CEQA reform bills formulated at the very end of the session relating to new exemptions and the Los Angeles football stadium proposal.  We will see what happens this year.

Governor’s Proposal May Ease CEQA Standards For High-Speed Rail

Earlier in June, Governor Brown’s office proposed new legislation that would restrict the ability of opponents to California’s $69 billion high-speed rail project to stop the project through CEQA litigation, in addition to other CEQA changes.   The proposal would require the courts to consider additional employment and economic factors in weighing whether to grant an injunction halting construction of the project.  Absent a finding that the value of the Project’s potential environmental damage would exceed the potential loss of more than $2 billion in federal funds secured for the project, judges would be prohibited from enjoining construction.  The proposal would also ease other CEQA rules for the project.  Several groups and municipalities have already filed suit in the Central Valley challenging the Project (some to stop the project, others to realign the project into their city).  Currently, the proposal is included in a trailer bill which has yet to be included in the Governor’s draft budget, but has been circulated among environmental groups and others.  Not surprisingly, these environmental groups have expressed vehement opposition to the proposal.  Its fate remains to be seen.

The Supreme Court Grants Review of the Controversial CEQA Decision Berkeley Hillside Preservation v. City of Berkeley

The Supreme Court has voted unanimously to grant review of the First District Court of Appeal's controversial decision in Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656. The case involved the application of an exception to the use of categorical exemptions under CEQA for projects that could result in significant environmental impacts due to "unusual circumstances."  The First District held that because a "fair argument" could be made that a residential project in the Berkeley hills could create significant environmental impacts based on evidence submitted by the project's opponents, the City of Berkeley could not rely upon a categorical exemption under CEQA regardless of whether those impacts were in fact due to "unusual circumstances."  This holding cast substantial doubt on the ability of agencies to continue to rely upon categorical exemptions any time a project opponent submits evidence of potentially significant impacts.  The First District also ignored well-settled precedent which requires both a finding that there is a reasonable possibility of significant environmental impacts and that the impacts would be due to unusual circumstances associated with the project. Now that the Supreme Court has granted review, the decision has been superseded which should come as welcome news for both public agencies and private developers alike.

Amrit Kulkarni and Julia Bond of Meyers Nave represent the Real Party in Interest in this case and were responsible for drafting the successful petition for review.

Court Holds That CEQA Does Not Require Analysis Of The Environment's Impacts On A Proposed Project

Attorney Authors: 

In Ballona Wetlands Land Trust v. City of Los Angeles, the Court addressed an apparent inconsistency between the CEQA Guidelines and the statute.  The Court held the CEQA does not require analysis of the impacts of the existing environment on a proposed project (as distinguished from the impacts of the project on the environment), and sharply criticized the CEQA guidelines that suggest otherwise.  The opinion also upheld the EIR's discussion of mitigation for impacts to archeological resources, provides useful guidance on return to writ proceedings, and held that Respondents were prevailing parties for the purpose of awarding costs on the return to the writ, even though they lost the first round of CEQA litigation that led to initial issuance of the writ. 

This case potentially eliminates the need for agencies to determine the significance of certain types of impacts -- including some seismic risk, flood hazard, and climate change impacts -- to the extent that those impacts would be caused by the existing environment and would be experienced by the proposed project or its users.  Nevertheless, CEQA review likely still needs to analyze whether the proposed project would significantly exacerbate seismic risks, flood hazards, and climate change impacts on the environment.  This distinction will not always be easy to identify, and agencies should obtain legal advice before deciding to eliminate review of impacts traditionally considered in CEQA documents.

Go here for the full analysis of the Ballona Wetlands Land Trust v. City of Los Angeles case.

Options for the Ownership and Management of Mitigation Lands - Beginning January 1, 2012

Senate Bill 436, a bill signed into law in October of this year, changes definitions and adds Section 65967 to the mitigation lands section of the State Planning and Zoning Laws located in the Government Code. Current State Planning and Zoning laws allow a state or local agency to require mitigation land that is provided by an applicant to be transferred to that agency or a non-profit. Beginning January 1, 2012, local and state agencies will have additional options for the transfer and management of this mitigation land.

CARB Adopts Final GHG Cap-and-Trade Program

Attorney Authors: 

After surviving a highly publicized ballot box challenge and lawsuit, the California Air Resources Board ("CARB") unanimously adopted a final greenhouse gas ("GHG") cap-and-trade program regulation.  The cap-and-trade program is considered to be the cornerstone of CARB's implementation of California's landmark Global Warming Solutions Act of 2006, Assembly Bill 32 ("AB 32").  The first of CARB's cap-and-trade program auctions for allowances for use in 2013 will be held August 15 and November 14, 2012. 

Major industrial sources and electric utilities must begin compliance with the cap-and-trade program in 2013.  By 2015, distributors of transportation fuel and natural gas also become obligated to comply with cap-and-trade program requirements.   In addition, the cap-and-trade program will likely create a market for CARB-certified offset projects in areas of livestock management, elimination of ozone depleting substances, urban forest projects, and U.S. Forest projects.

To view the full summary of the program, follow this link.

Significant CEQA Streamlining Reform Bills Enacted

Attorney Authors: 

Three important reform bills designed to streamline California Environmental Quality Act (CEQA) processing and review for certain classes of projects have been enacted and will take effect January 1, 2012.  SB 226 creates a new exemption for urban infill and renewable energy projects.  It also makes a variety of amendments to both CEQA and SB 375, the landmark 2008 legislation designed to integrate California's land use, transportation and greenhouse gas (GHG) reduction policies.   AB 900 shortens the Court review for CEQA challenges to certified "leadership projects" by authorizing lawsuits to be brought directly in the Court of Appeal on an expedited schedule.  "Leadership projects" must be certified LEED silver or higher, be carbon neutral, create "high-wage, highly skilled" jobs, and result in an investment of at least $100 million in California's economy (among other requirements).  SB 292 is a narrow bill designed to accommodate a new sports stadium and convention center in downtown Los Angeles by  streamlining judicial review in exchange for reductions in GHG emissions and traffic impacts.

SB 226 is likely to have the broadest effects for public agencies and private developers by facilitating urban infill projects.  It will likely reduce the time and expense for CEQA review for infill projects.  SB 226 expands the definition of urban infill projects, strengthens CEQA's tiering provisions, and provides that impacts from greenhouse gas emissions will not defeat the urban infill exemption under certain conditions.

Click here for a more detailed analysis of these recent CEQA amendments.   

Ninth Circuit Finds Anti-Solicitation Ordinance Aimed at Day Laborers Violates First Amendment 

Attorney Authors: 

The Ninth Circuit invalidated a City of Redondo Beach ordinance that prohibits solicitation between day laborers and occupants of motor vehicles on streets and highways. In Comite De Jornaleros De Redondo Beach v. City of Redondo Beach, Ninth Circuit Case No. 06-55750, No. 06-56869, the Ninth Circuit en banc opinion reversed the prior panel decision that held the Redondo Beach ordinance constitutional. The Court held that the Redondo Beach ordinance is not narrowly tailored to the City's objective and that the City could use less restrictive means to ensure traffic flow and safety.

California Supreme Court Clarifies Requirements for CEQA Lawsuits in Upholding Environmental Review of Plastic Bag Bans

In Save the Plastic Bag Coalition v. City of Manhattan Beach, the California Supreme Court clarified and, potentially, expanded the rights of corporations to bring CEQA lawsuits and sought to inject “common sense” into the CEQA process.

Court Rejects CEQA Challenge to GHG and Water Analysis in Addendum to 1994 EIR

Attorney Authors: 

Questions often arise as to whether an agency can rely on an "old" certified environmental impact report to approve a revision to a project that was never built.  In Citizens for Responsible Equitable Environmental Development (CREED) v. City of San Diego, the Court upheld the use of a 2008 Addendum to a 1994 environmental impact report (EIR) to approve a revised project.  The Court rejected arguments that the Addendum was insufficient because it failed to analyze greenhouse gas (GHG) impacts which were not addressed in the 1994 EIR.   A GHG analysis was not required because it was not new information that could not have been known in 1994 when the EIR was certified.  The Court found that GHG impacts were known as early as the 1970s.  The Court also found that the City properly incorporated and approved a new water supply assessment in the Addendum.  The opinion also provides good guidance on the requirement to present issues with specificity before the agency as a prerequisite for raising the issues in court (the exhaustion of administrative remedies doctrine).  Click here for a more detailed analysis of the case.

EPA Has Exclusive Authority to Regulate Greenhouse Gas Emissions

Attorney Authors: 

On June 20, 2011, in American Electric Power Co., Inc. v. Connecticut, the U.S. Supreme Court held that federal common law public nuisance claims for abatement of carbon dioxide emissions are barred because the Clean Air Act authorizes the U.S. Environmental Protection Agency to set greenhouse gas emission standards. 

City Approval Of Preliminary Terms for New Football Stadium Was Not A Project Approval And Did Not Violate CEQA

Cedar Fair, L.P. v. City of Santa Clara

In the latest case interpreting Save Tara, the Sixth District Court of Appeal found that the City of Santa Clara did not violate CEQA when it approved preliminary terms for a new football stadium. The City had adopted a 39-page Stadium Term Sheet which detailed proposed construction, financing and other provisions for development of a stadium for the 49ers National Football League team. Despite the detailed description of the proposed stadium project and supportive statements by City officials, the court determined that the term sheet did not commit the City to approve the stadium project and did not rule out consideration of mitigation measures or alternatives in later CEQA reviews.

This case confirms the Save Tara principles that determining whether a development-related agreement constitutes a project approval under CEQA is highly factual. In addition to extensive discussion of Save Tara, the analysis sets forth the relevant facts from the stadium term sheet and "surrounding circumstances" and shows how they balance in favor of the City's action in this instance. The recent Parchester Village Neighborhood Council case cited in the decision also balanced the relevant facts in favor of a city action, finding that approval of a municipal services agreement was not a project approval. By contrast, the Riverwatch case cited in the decision determined that a water district agreement to provide recycled water to a landfill operator was invalid because it committed the agency to action without benefit of CEQA compliance. Through Cedar Fair and other recent cases, the courts are providing useful guidance on how the facts of a particular situation may weigh one way or the other in the Save Tara balance.

Go here for the full analysis of the Cedar Fair case.

Mobile Home Rent Control Ordinances Still a Viable Option in California

On May 17, 2011, the U.S. Supreme Court refused to hear a developer’s challenge to the City of Goleta’s mobile home rent control ordinance, ending a long court battle over the future of the high value real estate and the validity of rent control regulations for mobile home parks in California.  (See Guggenheim, et al. v. City of Goleta, 598 F.3d 1061 (9th Cir.(Cal.) Mar 12, 2010), cert denied --- S.Ct. ----, 2011 WL 884881, 79 USLW 3554 (U.S. May 16, 2011).)  In December, an en banc panel of the Ninth Circuit upheld the ordinance, rejecting the Guggenheim’s regulatory takings claim finding that none of the three factors for establishing a regulatory taking, set forth Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), were satisfied.  (Click here to read prior post on Ninth Circuit ruling.)  This decision affirms the validity of rent control regulations as a tool for municipalities to provide housing options for lower income residents. 

Mobilehome Park Rent Control – the Battle Continues

The battle between private property owners and municipalities over the constitutionality of rent control ordinances for mobile home parks wages on. Owners of a mobilehome park in the City of Goleta, the Guggenheims, have filed a petition for certiorari seeking U.S. Supreme Court review of the Ninth Circuit’s rejection of their Fifth Amendment takings claims in July 2010. Their petition asks the Supreme Court to reverse the Ninth Circuit’s decision and find that the City’s ordinance caused a taking of their property. (Click here to see the Guggenheim v. City of Goleta petition for certiorari.)

In 1997, the Guggenheims purchased the mobilehome park subject to rent control under a County ordinance. The ordinance was adopted by the City of Goleta when it incorporated in 2002. The Guggenheims promptly sued the City claiming the rent control ordinance caused a taking of their property without payment of just compensation. The trial court granted summary judgment for the City, but a three judge panel of the Ninth Circuit reversed in a controversial decision. The Ninth Circuit granted the City’s request for a rehearing en banc and affirmed the trial court decision in favor of the City.

The Guggenheims’ argue that the Ninth Circuit’s en banc decision conflicts with the Supreme Court’s holding in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), conflicts with decisions from other federal and state appellate courts and is “a major blow to private property rights.” In essence, the Guggenheims seek to restrict the authority of local governments to adopt land use regulations affecting private property unless the government compensates the property owner, and/or any subsequent owner, for any economic impact of the regulation either at the time of adoption or at any time in the future.

Appellate Court Finds that Inclusionary Housing Requirement is Not an Exaction, Therefore Challenge is Time-Barred

Trinity Park v. City of Sunnyvale

In a decision supportive of local inclusionary housing ordinances, the Sixth District Court of Appeal ruled that a subdivider's challenge to a development condition requiring below market rate housing was not governed by the AB 1600 Mitigation Fee Act statute of limitations. The case is primarily analyzed as a statute of limitations issue, but in the course of the analysis, the court finds that Sunnyvale's affordable housing requirements were imposed as land use restrictions, and were not subject to AB 1600, the Mitigation Fee Act. Accordingly, the applicable limitations period was 90 days based on the Subdivision Map Act and Government Code section 65009(c)(1)(E). Since the developer did not file its challenge within the 90 day limitations period, the complaint was time-barred (Trinity Park v. City of Sunnyvale, ___ Cal.App.4th ___, March 24, 2011).

This is a good decision for local inclusionary housing ordinances. The court's ruling that the inclusionary requirements were not subject to the Mitigation Fee Act eliminates the Act as a potential source of challenge for similar local ordinances that are not imposed to defray the costs of public facilities for a development project pursuant to section 66020. The decision does not insulate inclusionary ordinances from other sources of challenge, but it does limit the potential for challenge based on the Mitigation Fee Act definition of an exaction. Apart from the inclusionary housing issue, the court reminds land use practitioners of the general rule that "the applicable statute of limitations depends on the nature of the cause of action...". Especially in today's complex entitlement processes where there may be multiple types and layers of land use approvals, there may also be the potential for multiple statutes of limitations. Determining the correct statute(s) of limitations requires a careful examination of the nature of the approval and the particular action being challenged.

Go here for the full analysis of Trinity Park v. City of Sunnyvale.

Solar Development Promoted By Department of Conservation for Williamson Act Land

The California Department of Conservation just issued the opinion "Considerations in Siting Solar Facilities on Land Enrolled in the Williamson Act" ("Opinion"), which provides suggestions to cities and counties for permitting solar development on property under contract of the California Land Conservation Act ("Act"). While the Opinion discusses nonrenewal and cancelling Act contracts as options to permit solar development, the critical part of the Opinion discuses how to determine if solar development is a compatible use for agricultural land under the Act. It provides guidelines and suggestions on the criteria that counties should follow in determining if solar development is a compatible use and suggests that solar development should be approved even if inconsistent with principles of compatibility, so long as certain criteria are met. Ultimately, it opines that the Act should not be an impediment to solar development.

As background, the Act promotes land conservation, with an emphasis on agricultural conservation. (California Government Code Section 51200 et seq.). It provides property tax relief to owners in exchange for an agreement that the land will not be developed or otherwise converted to another use for periods of 9 or 20 years. Currently, approximately 17 percent of California’s total acreage (or approximately 16.6 million acres) is restricted by Williamson Act contracts.

For the full opinion, click here.

Apply Now: EPA is Selecting Communities for Sustainability Technical Assistance

The EPA recently announced the Building Blocks Program, designed to help interested communities adopt sustainable planning methods and a collaborative effort between the U.S. Department of Housing and Urban Development, the U.S. Department of Transportation, and the U.S. Environmental Protection Agency (EPA). Chosen communities will receive technical assistance for the implementation of development approaches that “protect the environment, improve public health, create jobs, expand economic opportunity, and improve overall quality of life.” Technical assistance may include a memorandum including specific steps for the community to take towards sustainable development approaches, public engagement through a workshop, and/or consultation with city decisionmakers. The knowledge gained through the program may assist cities in implementing general plan updates or local climate action plans. Interested communities should submit a letter of interest that requests one of the listed technical tools by February 23, 2011.

Ninth Circuit Expounds on Burden Shifting Framework Established by the Supreme Court in City of Los Angeles v. Alameda Books

In the second published decision by the Ninth Circuit in this case, the Court addresses the new framework and burden shifting standard put in place by the United States Supreme Court when addressing constitutional challenges to ordinances aimed at reducing the secondary effects of adult entertainment businesses. (See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) [“Alameda Books”].)

The burden-shifting framework provides that after a municipality supplies evidence supporting its rationale for passing an ordinance, the plaintiffs may attempt to “cast doubt” on the City’s evidence and rationale, after which the City may attempt to rehabilitate its rationale. (Alameda Books, 535 U.S. at 438-39.) Further, a municipality’s justification must not be that its regulation will reduce secondary effects simply by reducing speech proportionately. (Id. at 450, Justice Kennedy’s concurrence.)

The District Court, on remand several years after the Supreme Court’s ruling, employed the new framework and found that two expert declarations submitted by plaintiffs were sufficient to “cast doubt” on the City’s rationale for the ordinance. The declarations suggested that the City’s intent in passing the ordinance was to reduce secondary effects by closing arcades and therefore, proportionately reducing speech.

The Court found this testimony sufficient to shift the burden back to the City to rehabilitate its rationale, but then struck the primary evidence offered by the City for this purpose and granted summary judgment for plaintiffs.

The Ninth Circuit reversed. The Court explained that the District Court erred when it found the two declarations submitted by plaintiffs sufficient to “cast doubt” on the City’s rationale. The Court, in line with all of the key appellate decisions which have applied the Alameda Books framework, found that in order to successfully “cast doubt” on a municipality’s rationale for its adult ordinance, a plaintiff must offer not merely some evidence, but “actual and convincing” evidence. Such evidence must do more than challenge the government’s rationale; it must convincingly discredit the foundation upon which the government’s justification rests. If the City has multiple rationales in support of its regulation, a plaintiff must convincingly discredit all of the offered bases.

The Ninth Circuit found that plaintiffs’ declarations did not satisfy this standard because both declarants were biased, having a financial stake in the outcome of the decision, and neither offered any empirical evidence in support of their conclusions. The Court held that the frailty of such expert evidence must be examined at trial to determine whether it satisfies the heavy burden of “actual and convincing” evidence required under Alameda Books; such a determination is not appropriate on summary judgment.

This opinion reaffirms the holding in Alameda Books that an adult business bears a heavy evidentiary burden when challenging municipal regulations designed to ameliorate secondary effects of such businesses. If either an adult business or a City intends to rely on expert testimony in the second and third phases of the burden-shifting framework, either to “cast doubt” on the City’s grounds for the ordinance or to rehabilitate the ordinance, it must ensure that the expert testimony is sufficiently credible to meet the evidentiary burdens for summary judgment. For an adult business, expert testimony alone, without corroborating empirical evidence, may not do the trick on summary judgment and may require a full blown trial.

For more information on this case or other First Amendment matters, contact Dawn McIntosh or Deborah Fox at 800.464.3559.

Court Invalidates EIR’s Use of Post-Approval “Future” Baseline For Analysis of Project Impacts

The California Environmental Quality Act, or CEQA, requires agencies to compare the potentially significant impacts of proposed projects to an “environmental baseline” – which CEQA provides shall “normally” consist of environmental conditions as they exist when environmental review is commenced. The California Court of Appeal, Sixth District, has ruled that an Environmental Impact Report (“EIR”) may not compare impacts to a baseline consisting of projected future conditions when the project is expected to be complete. The ruling, in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council, is important, since comparison to a “future” baseline had become a widespread “industry practice,” particularly for analysis of traffic and circulation impacts.

The City of Sunnyvale prepared an EIR for the proposed Mary Avenue Extension, consisting of a new bridge to be constructed over two freeways and light rail tracks. The EIR compared traffic impacts of the project, and noise and air quality impacts associated with traffic, to a baseline consisting of forecasted traffic conditions -- without the project -- in the year 2020, the year in which the City expected the project to be complete and in use. The EIR’s baseline included future traffic levels based on build-out under the City general plan, along with numerous roadway improvements planned to be in place by 2020. In response to comments criticizing the traffic analysis, city staff reported that it had been prepared consistent with impact-analysis guidelines of the Santa Clara Valley Transportation Authority, as part of that Authority’s responsibilities under the state’s Congestion Management Law.

In court, the petitioners attacked use of a future baseline. The petitioners cited CEQA Guideline section 15125, which requires an EIR to describe physical environmental conditions in the vicinity of a project “as they exist at the time the notice of preparation [of the EIR] is published or . . . , at the time environmental analysis is commenced, . . .” and which further provides that “[t]his environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.”

In defense of its future baseline, the City cited Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99, which the City argued gave it discretion to use a future baseline. In Save Our Peninsula, the court had stated that “. . . where the issue involves an impact on traffic levels, the EIR might necessarily take into account the normal increase in traffic over time. Since the environmental review process can take a number of years, traffic levels as of the time the project is approved may be a more accurate representation of the existing baseline against which to measure the impact of the project.” (Id. at 125 – 126.) Some agencies and legal practitioners had interpreted Save Our Peninsula to allow an agency with knowledge that environmental conditions would either improve or degrade by the time a project is constructed to select a future baseline, so long as the agency was careful to summarize the evidence supporting its selection of the future baseline.

Sunnyvale West Neighborhood Assn significantly narrows that interpretation. The decision acknowledges that the California Supreme Court, in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, endorsed Save Our Peninsula’s holding. But Sunnyvale West Neighborhood Assn further notes that the Supreme Court “never sanctioned the use of predicted conditions on a date subsequent to EIR certification or project approval as the ‘baseline’ for assessing a project’s environmental consequences.” Therefore, Sunnyvale West Neighborhood Assn. invalidated the EIR’s use of a future baseline consisting of projected conditions in 2020 -- more than a decade after proposed project approval.

Sunnyvale West Neighborhood further holds that use of a post-approval future baseline is a “failure to proceed in a manner required by law,” and that agencies lack discretion to select such a baseline, regardless of whether they determine that a post-approval future baseline is supported by “substantial evidence.” The decision alternatively holds that, even if the City had possessed discretion to select a post-approval future baseline, the Santa Clara Valley Transportation Authority guidelines for traffic impact analysis under the Congestion Management Act would not provide an adequate basis for selecting a post-approval future baseline under CEQA. Finally, the court rejected an argument that the EIR’s use of a future baseline consisting of traffic conditions expected to be much worse than presently exist resulted in a “more conservative and realistic” impact assessment and was, therefore, not reversible “prejudicial” error. The court, after acknowledging that this argument had “some surface appeal,” held that use of a post-approval future baseline improperly “obscures the existence and severity of adverse impacts that would be attributable solely to the project under the existing conditions without the other assumed roadway improvements.”

Sunnyvale West Neighborhood does not rule out discussion of foreseeable changes and future conditions in an EIR, and notes that such discussion may be necessary to compliance with CEQA – for example, in discussion of cumulative impacts or the “no project” alternative. Nevertheless, the decision emphasizes the primacy of comparison to an “existing conditions” baseline. “Once a specific roadway project is proposed and becomes the subject of an EIR under CEQA, . . . a straightforward assessment of the impacts produced by the project alone on the existing environment is the foundational information of an EIR even where secondary analyses are included.”

County’s Farmland Mitigation Program Requiring Purchase of Conservation Easement is Valid

Attorney Authors: 

In Building Industry Association of Central California (BIA) v. County of Stanislaus, the court of appeal rejected a challenge brought by the BIA against the county’s Farmland Mitigation Program (FMP). The FMP guidelines, to mitigate the loss of farmland, require each developer to acquire a conservation easement equal in size to the area of farmland to be converted to residential use.

Requiring Religious Institutions to Comply with Neutral Conditional Use Permit Process is Not a Substantial Burden under RLUIPA

Attorney Authors: 

In County of Los Angeles v. Sahag-Mesrob Armenian Christian School, a California Court of Appeal affirmed a grant of preliminary injunction enjoining the religious school from operating in a residential zone until it obtained a conditional use permit. The school had first removed the case to federal court, but the district court remanded to the state court; the district court lacked subject matter jurisdiction because federal law was raised only as a defense.

Affordable Housing Regulations Survive Another Challenge

The City of Cotati has defeated the Pacific Legal Foundation ("PLF") in a challenge to the City’s affordable housing regulations and protections for the endangered California Tiger Salamander. (Click link to read the opinion in Mead v. City of Cotati, Ninth Circuit Case No. 09-15005.) In 2008, PLF sued the City and state and federal wildlife agencies on behalf of a housing developer alleging various constitutional claims resulting from two conditions included in the Cotati Planning Commission’s decision to issue a permit for his project – comply with the City’s affordable housing regulations and comply with guidance issued by the wildlife agencies for the protection of the endangered California Tiger Salamander ("CTS"). On PLF’s website they announced that the lawsuit against the City was ground zero in their national campaign to eradicate affordable housing regulations and to change takings law in favor of property owners. On July 22, in an unpublished opinion, the Ninth Circuit affirmed the dismissal of the case by the District Court for failure to state a viable claim and rejected PLF’s entreaties to soften the takings standards for property owners. Not surprisingly, this case no longer appears as the poster child on PLF's website.

Home on the Range: Ninth Circuit Affirms U.S. Fish and Wildlife Service’s Significant Discretion in Designating Critical Habitat for Endangered Species

The U.S. Fish and Wildlife Service ("Service") is often beset with litigation when it designates critical habitat for a species listed as endangered or threatened under the Endangered Species Act (“ESA”)--by environmentalists who feel the designation is insufficient, and by industry representatives who argue that it is too broad. In Arizona Cattle Growers' Association v.

Protected Delta Fish Relieved That State Agencies are People Too

The Department of Water Resources ("DWR"), a state agency, operates a pumping system in the Sacramento -San Joaquin Delta that results in the taking of three fish species listed as threatened or endangered under the California Endangered Species Act ("CESA"). DWR was sued by Watershed Enforcers, a nonprofit corporation, to stop DWR from pumping unless and until it obtained a permit authorizing the take of the listed fish species under CESA. Three local water agencies intervened in the lawsuit arguing that DWR is not a "person" as that term is defined in CESA.

Cities Can Prohibit Solicitions of Employment Between Day Laborers and Drivers to Protect Traffic Flow and Public Safety

The Ninth Circuit has upheld an ordinance adopted by the City of Redondo Beach which prohibits solicitations of employment (as well as business and contributions) between day laborers and occupents of motor vehicles on streets or highways. Both the trial court and the Ninth Circuit in Comite De Jornaleros De Redondo Beach v. City of Redondo Beach, No.

Will the Vacancy Control Provisions in Goleta's Rent Control Ordinance for Mobile Home Parks be Upheld in the Latest Court Battle?

The Ninth Circuit is poised to reconsider its controversial decision that a vacancy control provision in a rent control ordinance for mobile home parks in the City of Goleta caused a taking of private property under the Fifth Amendment. The split decision by a three judge panel in Guggenheim v.

CA Court of Appeal Issues First Decision on CEQA and Greenhouse Gas Emissions

The California Court of Appeal issued its first decision on the analysis and mitigation of greenhouse gas emissions (GHGs) under the California Environmental Quality Act (CEQA). The Court ruled that the mitigation of GHGs for a large refinery project was inadequate under CEQA and set aside the environmental impact report (EIR) prepared for the project. In Communities For A Better Environment v. City of Richmond, several environmental groups challenged the City's adoption of a mitigation measure which required the development of a mitigation plan, within one year after the Project approval, to completely reduce the refinery project's new GHG emissions. The Court ruled the mitigation violated CEQA because no specific measures were required, and there was no evidence of the amount of GHG reductions that would result from the proposed measures. The Court found that, in situations where the feasibility of mitigations is not known, the mitigations must be reviewed and analyzed as part of the CEQA public process, not deferred to the future. In addition, the Court was critical of the analysis of GHGs in the EIR which did not articulate a clear standard for determining the significance of Project impacts. The Court also ruled that the EIR's project description violated CEQA, but rejected a challenge based on "piecemealing" of the Project.

The most important aspect of this case is that it establishes legal authority on CEQA requirements for the analysis of GHGs. The Court stated that new recent scientific information on GHGs and their cumulative impact on climate change should be analyzed in the revised EIR. Specific mitigations and an analysis of their efficacy should be included in the revised EIR and subject to public comment and review. The Court acknowledged the difficulties presented by "evolving technologies and scientific protocols" regarding GHGs, but found that these did not excuse the City from its obligation under CEQA to analyze and mitigate environmental impacts. The combination of this case and the recent adoption of the new CEQA Guidelines requiring the analysis of GHGs, makes clear that GHGs must be addressed in CEQA documents. The one important area that awaits further legal guidance is the proper standard for determining whether a project's GHG emissions are a significant cumulative impact. Local air districts are providing guidance on this issue, but the legal adequacy of a significance threshold has not yet been addressed by the courts.

Go here to read the full analysis of this court decision.

City's General Plan Update Violates State Aeronautics Act

The State Aeronautics Act is not commonly the subject of land use lawsuits, but it was for the Sixth District Court of Appeal in the case of Watsonville Pilots Association v. City of Watsonville. The court upheld a challenge to the City of Watsonville 2030 General Plan update, finding that the plan did not reflect statutorily required elements and standards for airport safety. The related EIR fared little better as it failed to adequately analyze airport compatibility issues and a reduced development alternative; however, the court upheld the EIR water supply analysis based on the factors in Vineyard Area Citizens v. City of Rancho Cordova.

This decision provides a useful summary of the Airport Land Use Commission statute and processes. It is particularly useful guidance for integrating long-term land use planning and airport planning through the general plan process and related CEQA review. The decision also provides an example of a successful water supply analysis that satisfies the California Supreme Court's direction in the Vineyard case.

Read more here.

EIR Not Required to Evaluate Off-Site Alternative Which Does Not Meet Project Objectives

The Lawrence Berkeley National Laboratory ("Lab") is a special research facility which, though located primarily in the Berkeley hills on land owned by the Regents of the University of California, is financed by the federal government. In Jones v. Regents of the University of California, the Court of Appeal has upheld an Environmental Impact Report for the Lab's Long Range Development Plan. Under the LRDP, buildings at the Lab's main "hill site" would increase to 2.4 million square feet, from an existing 1.7 million square feet. The Court held that (1) the EIR was not required to evaluate an alternative which would not meet the agency's stated objectives for the project, and (2) plaintiffs were barred from challenging the EIR's methodology for analyzing certain impacts by failure to raise that issue during the administrative approval process. Read more here.

Counties Should Consider Adopting Wind Ordinances Before Significant Restrictions Take Effect

Counties that have not done so should consider adopting wind energy system ordinances before Dec. 31, 2010, when restrictions on wind ordinance regulations will take effect pursuant to Assembly Bill No. 45 (“AB 45”). AB 45 encourages counties to adopt ordinances that provides for the installation of small wind energy systems and declare s it to be the policy of the state to promote and encourage the use of distributed renewable energy systems and to limit obstacles to their permitting and use, including minimization of permitting costs. (See Govt.

Filing a Notice of Exemption Triggers a 35-day Statute of Limitations for CEQA-Based Challenge to the Project Approval

The California Supreme Court ruled last week that filing a Notice of Exemption triggers CEQA’s 35-day statute of limitations and that plaintiffs cannot avoid the limitations period by claiming defects in the underlying project approval process. In a lengthy opinion for Stockton Citizens for Sensible Planning v. City of Stockton, the Court’s comprehensive discussion led to a simple, straightforward conclusion – where a lead agency files a Notice of Exemption, the statute of limitations is 35 days for all CEQA challenges to the exemption determination. Read more here.

Is Mobile Home Park Rent Control a Taking?

On March 12, 2010, the U.S. Ninth Circuit Court of Appeals granted the City of Goleta’s request for an en banc hearing in the case of Guggenheim v. City of Goleta 582 F.3d 996 (9th Cir. 2009). The wrangling surrounding this case has been closely watched by both sides of the debate on the regulatory takings front since the Court issued its split decision in September 2009. In this 2-1 decision by Judge Bybee, the Court found that Goleta’s mobile home rent control ordinance caused a facial regulatory taking for which compensation must be paid (under Penn Central Transportation Co. v. New York City 438 U.S. 104 (1978)). The mobile home park owners brought suit after the City imposed the already existing county rent control ordinance when it incorporated in 2002. The opinion was immediately controversial – assailed by many, including low-income housing advocates, as a vast departure from existing jurisprudence and hailed and applauded by property owners advocates. Goleta promised to seek a full panel hearing the from the Court, and that requested was granted. Oral arguments are tentatively scheduled for June 21, 2010.

For an in depth review of the opinion, click here.

California Supreme Court Holds LAX Solicitation Regulations Are Valid

In International Society for Krishna v. City of Los Angeles the California Supreme Court ruled that the solicitation regulations at the Los Angeles International Airport (LAX) are valid as reasonable time, place and manner restrictions under state law. (2010 WL 1071387 (Cal.)) While this ruling will provide additional authority to support solicitation regulations, municipalities should be aware of the relatively narrow contours of the ruling. Read more here.

CEQA Greenhouse Gas Guidelines Effective Today

Today the Greenhouse Gas Amendments to the CEQA Guidelines, which were mandated by Senate Bill 97 and codified in Public Resources Code section 21083.05, are effective. The Natural Resources Agency adopted Amendments to the CEQA Guidelines for greenhouse gas emissions back in December of 2009. These Amendments require the quantification and mitigation of greenhouse gas emissions. For more information click here.

City Ordered to Disregard Voter Approved Housing Cap

In a first of its kind ruling, an Alameda County judge has ruled that the City of Pleasanton's voter-approved cap on the number of residences in the city (a measure intended to limit growth and congestion in the Tri-Valley town), violates a state law requiring all cities to take on their share of regional housing needs. The ruling, which the City may appeal, orders the city to change its zoning to accommodate new housing, about 4,000 new units by 2014, three-quarters of which must be affordable for low-to-moderate-income residents. The ballot measure, passed in 1996 and reaffirmed by voters in 2008, allows no more than 29,000 units in the city, the city currently has more than 27,000.

The Urban Habitat Program and a schoolteacher seeking affordable housing filed the suit in 2006. It was joined by Attorney General Jerry Brown last year, who said Pleasanton's housing limits added to urban sprawl, and led to increased vehicle use, air pollution and greenhouse gas emissions. The city argued that the housing limit is a valid exercise of municipal land-use authority. The court noted that the Association of Bay Area Governments ("ABAG"), the organization that decides each city's housing allotment, assigned specific housing unit figures to Pleasanton which it had failed to meet in 2007 and would fail to meet in 2014 if its housing limits remained in effect.

CEQA Analyses of New Projects and Projects that Significantly Expand Existing Operations Need to Use Actual Physical Conditions as Environmental Baseline, Not Maximum Permitted Conditions

In Communities for a Better Environment v. South Coast Air Quality Management District, the California Supreme Court held that the California Environmental Quality Act (Pub. Resources Code, §§ 21000, et seq. (“CEQA”) requires an agency analyzing the “worst case” emission impacts of a new refinery project to analyze emission impacts of a new refinery project against the existing facility’s actual current emissions, and not with the facility’s maximum permitted emission levels. The Court reasoned that the refinery project differed from proposals in past cases that simply modified a previously analyzed project or continued operation without significant expansion. The Court’s decision is an important clarification of CEQA baseline principles. Projects that involve more than a mere modification of a previously analyzed project, or involve significant expansion of existing operations, need to be analyzed against actual physical conditions, not maximum permitted conditions.

Defendant South Coast Air Quality Management District (“District”) had prepared a negative declaration analyzing the impacts of ConocoPhillips’s proposal for an ultra-low-sulfur diesel fuel project, and concluded that the project would not adversely affect the environment. The District acknowledged that, in a “worst-case scenario,” the project would create hundreds of pounds of additional nitrogen oxide (NOx) emissions per day (in excess of the District’s 55 pounds per day standard). However the District did not consider the emissions to be part of the project because the emissions did not exceed the maximum levels allowed under existing permits. The Court found this to be an improper application of the general rule that the “physical environmental conditions,” as they exist at the time environmental analysis begins, “will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.” (CEQA Guidelines, § 15125(a).) Accordingly, the Court concluded that it was inconsistent with established CEQA principles to compare the proposed project to what could lawfully happen under the existing permits, rather than to what was actually happening.

The Supreme Court distinguished the matter from a line of cases that relied on maximum operational levels allowed under existing permits. In each case, the Court noted, the subject project was “merely a modification of a previously analyzed project and hence requiring only limited CEQA review ... or as merely the continued operation of an existing facility without significant expansion of use and hence exempt from CEQA review.” The same could not be said for the ultra-low-sulfur diesel fuel project, as it was adding a new refinery to the facility and would require increase operation of other equipment. Finally, the Court concluded that the record—specifically the data in the negative declaration—supported a fair argument that the project will have a significant adverse effect on the environment. The Court thus affirmed the Court of Appeal’s direction to prepare an EIR.

Federal Government Stalls Clean Air Act Greenhouse Gas Regulation While California Forges Forward

California has been forging ahead with many types of climate change regulations that address Greenhouse Gas (GHG) emissions from land uses, vehicle use, construction and stationary sources. For example, the State has regulated GHGs through California Environmental Quality Act (CEQA) in accordance with SB 97, and regulated the interaction between vehicle use and land use development in accordance with SB 375. Most of these State regulations originate from AB 32, which requires the State to reduce GHG emissions to 1990 levels by no later than 2002. AB 32 also required the creation of a GHG registry for stationary sources (industry). Recently, the Bay Area Air Quality Management District issued mandatory GHG requirements in an air pollution permit for a local power plant.

In contrast to the State, federal regulation of GHGs emissions from stationary sources through the Clean Air Act (CAA) has stalled. You may recall that over two years ago the Supreme Court ruled that carbon dioxide is a pollutant subject to Environmental Protection Agency (EPA) regulation under the Clean Air Act. Environmental advocates have been criticizing the EPA for delaying GHG regulations of stationary sources at the federal level, according to the New York Times. Now, federal legislators are also attempting to delay EPA regulations for a set amount of time. Both Senator Jay Rockefeller (D, W. Va.) and Representative Nick Randall (D, Wa.) have introduced legislation in the Senate and the House, respectively, that would delay the EPA from regulating GHGs emitted from stationary sources (such as coal-fired power plants) for two years. But not all legislators are in support of such bills. The Washington Post recently reported that Robert C. Byrd, a democrat of West Virginia and colleague of Jay Rockefeller, will not support Rockefeller’s proposed bill. Byrd believes that EPA Administrator Lisa Jackson's recent letter stating that the EPA will delay, for a year, the application of stronger standards requiring increased efficiency or reduced pollution at large power plants and factories is enough. The proposed Senate and House bills are likely an attempt to delay EPA regulations that would require major GHG stationary sources to implement "best available control technology” pollution control measures, even if these measures would render construction of new plants cost-prohibitive.

Despite California's progress in regulating GHGs, it also faces a potential suspension of GHG regulation through an initiative measure to suspend AB 32, as we discussed in this post. Proponents of the legislation stalling GHG regulation at the Federal level and the initiative stalling it at the state level both cite to economic concerns as the purpose of these delays.

Agreement for City Services to Proposed Tribal Casino is Not a Project under CEQA

The First District Court of Appeal ruled that the City of Richmond did not violate CEQA when it entered into a municipal services agreement (MSA) for a tribal casino proposed on unincorporated lands adjacent to the City. In Parchester Village Neighborhood Council v. City of Richmond, the court reversed a trial court decision and agreed with the City that the MSA was not a project under CEQA.

Consistent with Save Tara, this case analyzed the various factors surrounding the MSA to determine if it constituted a project approval requiring CEQA review. Local agencies should continue to examine development-related agreements in a larger context to ensure that CEQA review occurs at an appropriate stage of the overall development process and before the agency has committed to activities that could have a physical effect on the environment.

Read more.

CEQA Guidelines on Greenhouse Gas Impacts Take Effect in March

On March 18, 2010, amendments to CEQA guidelines will take effect, requiring the analysis of greenhouse gas (GHG) impacts.

So, any remaining questions on whether CEQA requires GHG analysis have been eliminated. The issue now is how to perform the analysis. The State CEQA Guidelines left discretion to public agencies to determine the methodology and standards of significance for evaluating GHG impacts. Some air quality districts are providing some guidance for how agencies may address this issue, but the approaches are not uniform. Agencies need to decide how they are going to perform this analysis, considering issues such as a quantified versus qualitative standard and the use of a programmatic analysis based on adoption of a GHG reduction or climate action plan.

These challenging issues are addressed in an article by our firm, Meyers Nave, published this week. The article describes the applicable regulations and evaluates the issues and risks presented by different approaches. Click here to read the article.

Even Where No Environmental Review Was Undertaken, 30-Day Statute of Limitations for CEQA Challenge Applies Whenever NOD is Filed

Earlier this month, in Committee for Green Foothills v. County of Santa Clara, the California Supreme Court considered the question, if a notice of determination ("NOD") has been filed, but an action alleges that no environmental review was undertaken, which statute of limitations applies: (1) the general 30-day limit on challenges following a notice, or (2) the longer 180-day period provided for a case alleging that no environmental determination was made (§ 21167, subd. (a)). The Court held that the filing of an NOD triggers a 30-day statute of limitations for all CEQA challenges to the decision announced in the notice. Read more here.

EIR Required for Ordinance Banning Plastic Bags

In Save the Plastic Bag Coalition v. City of Manhattan Beach, the Second District Court of Appeal (Los Angeles) has held that the California Environmental Quality Act (CEQA) required the City of Manhattan Beach to prepare a full Environmental Impact Report (EIR) before approving an ordinance to ban stores and other retail outlets from distributing plastic bags. The case illustrates the breadth of agency approvals which may qualify as “projects” requiring environmental review under CEQA, and the low threshold for CEQA’s requirement that a project be studied in an EIR if there is a “fair argument” that it could cause a significant environmental impact. However, perhaps the more significant ruling is that the petitioner, an association of plastic bag manufacturers, was granted standing to oppose the City’s compliance with CEQA. Read more here.

CEQA Petitioner Must File and Serve Written Request For Hearing Within 90 Days Of Filing Petition

It has long been established that a petitioner challenging a local agency's compliance with the California Environmental Quality Act (CEQA) must "request" a court hearing within 90 days of filing the petition, or face mandatory dismissal. A new case, County of Sacramento v. Superior Court (Forster-Gill, Inc.) clarifies that the request for a hearing must be filed in writing, and that an oral request will not suffice to avoid dismissal.

Click here to read a full analysis of County of Sacramento v. Superior Court (Forster-Gill, Inc.).

CEQA Doesn't Apply When Agency Declines to Renew Use Permit for Private Applicant

The California Supreme Court has clarified that a local agency’s decision to deny renewal of a private party’s existing, time-limited land use permit is not a “project” to which the California Environmental Quality Act (“CEQA”) applies. This decision applies only to private facilities; agency decisions to close existing public facilities have been held previously by the Courts to be "projects" that require environmental review under CEQA. Read more here.

Metropolitan Transportation Commission (MTC) Announces Funding for Innovative Transportation Plans, Including Climate Action Plans

As the new year approaches, my colleagues and I are reflecting on what this year brought to climate change law and looking ahead for upcoming regulations. For example, this month the Environmental Protection Agency (EPA) issued a final finding that greenhouse gas emissions pose a danger to human health and the environment. We at Meyers Nave are particularly focused on the struggle of cities and counties to access the funds needed to implement recent climate change laws in a poor economy. To this end, we welcome the Metropolitan Transportation Commission's announcement that it has established a pool of funding to be used locally for innovative transportation projects.

MTC is a nine-county Bay Area regional transportation planning body and its funding will be focused on at least four components. The first, and most remarkable for cities, is the funding of climate action plans that contain innovative parking campaigns such as SFPark. Other programs that may receive funding include Safe Route to Schools programs, educational outreach for the link between climate change and transportation choices, and evaluation models to ensure that all regional projects have consistent metrics.

This program is one step towards the reductions required in climate legislation such as AB 32 and SB 375, and a step away from historical transportation planning which focuses on increasing capacity for cars.

For more information regarding the funding program, see San Francisco Streetsblog report of MTC’s funding announcement.

CEQA’s One-Year Rule for Certifying an EIR Not Mandatory, Says First Appellate District

On December 2, the First Appellate District issued an important decision in Schellinger Brothers v. City of Sebastopol, rejecting a developer's ability to challenge a lead agency's decision to continue processing an environmental impact report (EIR) under the California Environmental Quality Act (CEQA) even after the expiration of the one-year period for certification of an EIR set forth in CEQA section 21151.5. Read more here.

Should Local Agencies Consider Proposed High Speed Rail in CEQA Analyses of Local Projects?

With the California High Speed Rail Authority moving forward on the Northern-Southern California high-speed rail (HSR) project, local agencies should be aware that they may be required to consider the HSR in analyses of the environmental impacts of their local projects.

The California Environmental Quality Act (CEQA) requires a lead agency to identify and mitigate significant environmental impacts of a project, including cumulative impacts that result from local projects and projects outside the local agency's jurisdiction. A lead agency has a duty to use reasonable efforts to discover, disclose and discuss related projects which are under the administrative jurisdiction of other city, state, and federal agencies. (See id. § 15130(b)(1)(A); San Franciscans for Reasonable Growth v. City & County of San Francisco (1984) 151 Cal.App.3d 61, 74, n.13.)

These cumulative impacts include impacts from other "past, present, and reasonably foreseeable probable future projects." (CEQA Guidelines, §§ 15126.4, 15355.) The HSR may be considered a reasonably foreseeable probable future project for CEQA purposes, as the Authority certified a programmatic EIR/EIS for the project in November 2005 and is now preparing to evaluate project-level environmental impacts.

The degree to which a lead agency must analyze the impacts of the HSR in conjunction with its own local projects depends on several factors, such as the status of the design and project-level environmental review of the individual route segment that may impact the local project and whether the project impacts are related. Read Meyers Nave's full article here.

Owners and Operators of Municipal Sewer Systems May Be Liable Under CERCLA for Contamination Caused by Third Parties

A recent decision by the U.S. District Court for the Eastern District of California may re-energize plaintiffs who hope to recover contamination clean-up costs from public agency sewer system owners. In Adobe Lumber, Inc. v. Hellman (2009 WL 2913415), the court held that the City of Woodland may be found liable under CERCLA for contamination resulting from the discharge of the solvent perchloroethylene (PCE) into the sanitary sewer by a dry cleaning business located in the City. Read More

Court of Appeal Holds Developer Cannot Sue City for Violations of CEQA and Constitutional Law Where City Rejects Project Before Completing EIR

In a significant published CEQA and land use decision, the Court of Appeal, Second Appellate District, rejected a developer’s challenge to the City of Los Angeles’ decision to reject the annexation and approval of a large development project without completing CEQA review.

The City had spent several years preparing an EIR under CEQA before the City made a policy decision to reject the project. The developer sued the City, alleging that the City was prohibited from making this policy determination and rejecting the project until it completed the EIR. The developer also alleged claims for violation of procedural and substantive due process and equal protection under the State and Federal Constitutions and sought $100 million in damages. The trial court sustained the City’s demurrer.

Read more

U.S. Environmental Protection Agency (EPA) Accepting Applications for Brownfield Grants

This week the EPA announced that it is accepting proposals for Brownfield grants. Agencies may apply for the Brownfields Assessment, Cleanup, and Revolving Loan Fund programs. Grant money may go towards brownfields contaminated by petroleum, other contaminants and/or hazardous substances. The EPA also announced new guidelines for this proposal process, which may be found here. Note that applicants must now own the site at the time they submit the grant proposal, which is different from previous requirements.

The deadline for proposals is Oct. 16, 2009.

Legislature Extends Lives of Tentative Subdivision Maps for Two Years

In response to the economic downturn, the Legislature adopted Assembly Bill (AB) 333, which extends the lives of approved tentative subdivision maps by two years. In order to qualify for the extension, tentative maps must have been valid on July 15, 2009 and must otherwise have expired by January 1, 2012. AB 333 is an emergency bill and is applicable immediately. The extension provided by AB 333 may be added on to all previous extensions under the Subdivision Map Act and local ordinances.

Latest OPR CEQA Guidelines Emphasize Local Greenhouse Gas Reduction Plans in CEQA Review

Senate Bill 97 directed the Office of Planning and Research (OPR) to develop regulations for the analysis and mitigation of greenhouse gases under the California Environmental Quality Act (CEQA). OPR has issued a final draft of these regulations as amendments to the CEQA Guidelines. For the Guidelines to become law, the Natural Resources Agency must approve them by January 1, 2010. Read more here.

Agencies Must Either First Complete CEQA Review or Retain Discretion to Modify or Cancel Contracts Subject to CEQA Until Environmental Review is Complete

The Fourth District Court of Appeal ("Court") recently set aside a water supply agreement between a water district and a developer because the agreement improperly committed the water district to a definite course of action without adequate review under the California Environmental Quality Act (CEQA) in the case Riverwatch et. at. v. Olivenhain Municipal Water District. Click here to read on.

In the Absence of CEQA Review, In-Lieu Fee Programs Cannot Presumptively Establish Full Mitigation of Environmental Impacts

The Third Appellate District Court of California held in the case California Native Plant Society v. County of El Dorado, that the payment of a rare plant impact in-lieu fee, which was not reviewed under the California Environmental Quality Act (CEQA), does not presumptively establish that the environmental impacts to rare plants for all projects are fully mitigated such that a developer is entitled to a mitigated negative declaration.

If you are interested in learning more, please view the full Meyers Nave legal alert.

California Supreme Court Provides Guidance on Agreements for Development Made Contingent upon Subsequent CEQA Review in Save Tara v. City of West Hollywood

In a decision relevant to redevelopment agencies and other public entities involved in the disposition of land for development, the California Supreme Court held in Save Tara v. City of West Hollywood, that conditional agreements to sell land for private development can, for CEQA purposes, constitute an approval of a project that must be preceded by preparation of an environmental impact report (EIR). The court declined to adopt a bright line test for determining when prior CEQA review is mandated, but instead described a standard for "commitment" and "defined project" that is fact-specific and will have to be applied on a case-by-case basis.

SB 375 - Landmark Land Use and Greenhouse Gas State Law Adopted

Governor Arnold Schwarzenegger has signed SB 375, a sweeping change in land use, housing and environmental law. The law aims to reduce greenhouse gas (GHG) emissions by discouraging sprawl development and dependence on car travel. As the Governor's press release states, the law will promote, "more environmentally-friendly communities, more sustainable developments, less time people spend in their cars, [and] more alternative transportation options". SB 375 helps implement AB 32's GHG reduction goals by integrating land use, regional transportation and housing planning.

Ninth Circuit Narrows Federal Telecommunications Act's Preemption Standard for Local Regulation

Overturning recent decisions regarding local regulation of telecommunication facilities, the Ninth Circuit, in Sprint Telephony PCS, L.P. v. County of San Diego, recently reversed course in finding that enforcement of San Diego's wireless telecommunications ordinance was not preempted by the federal Telecommunications Act of 1996. Section 253(a) of the Telecommunications Act provides that "[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate telecommunications service." Similarly, § 332(c)(7) of the Act states that local regulations: "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." In 2003, the County of San Diego enacted a Wireless Telecommunications Facilities Ordinance, which established permit requirements and additional restrictions on the placement and construction of wireless telecommunication facilities. Sprint challenged the County's Ordinance arguing that it violated § 253(a) of the Act because the Ordinance prohibited, or had the effect of prohibiting, the provision of wireless telecommunication services. The County argued that § 253(a) was inapplicable because § 332(c)(7) of the Act was the exclusive authority on wireless regulations.

Appellate Court Finds that Property Owners are Bound by Previous Property Owners’ Williamson Act Contract and Revisions to the Williamson Act Guidelines

In County of Humboldt v. McKee, the First District Court of Appeal found a property owner liable for sales of parcels that violated the previous owners’ Williamson Act contract, including violations of revisions to the Act’s guidelines that were adopted after execution of the initial contract. Under the Williamson Act, property owners may voluntarily adopt restrictions limiting their land to agricultural uses in exchange for favorable tax rates. A Williamson Act contract must have an initial term of ten years, and each year is automatically extended for an additional year, unless notice of nonrenewal is given by one of the parties. The McKee property had been the subject of a 1977 Williamson Act contract, which, in accordance with the Williamson Act guidelines in effect at the time, prohibited division of the property into parcels of less than 160 acres. The year after execution of the contract, the guidelines were revised to prohibit division of Williamson Act property into parcels of less than 600 acres (“1978 Guidelines”). In 2002, the McKees began subdividing and selling parcels, some of which were smaller than 600 acres. The County sued alleging violation of the Williamson Act and breach of contract.

California Supreme Court Clarifies Proposition 218’s Provisions for Funding Open Space Acquisition through Special Assessments

In Silicon Valley Taxpayers Association, Inc. v. Santa Clara County Open Space Authority, California Supreme Court Case No. S136468 (July 14, 2008), a unanimous Court decided two key points concerning Prop. 218 assessments. First, the Court held that legal challenges to special assessments are subject to independent judicial review, thus reversing a line of pre-Prop. 218 cases which gave more deference to the public agency's determinations. The Silicon Valley Court noted that Proposition 218 “was intended to make it more difficult for an assessment to be validated in a court proceeding.” The Court’s decision makes it easier for individuals and organizations to challenge the validity of special assessments.

High Cost of Gas Prompting Smart Growth

With gasoline prices above $4 per gallon, communities are focusing their attention on whether smart growth planning can alleviate the financial burden of high gas costs and reduce air pollution. The Sacramento Area Council of Governments has actively promoted the "Blueprint," which sets forth smart growth planning principals such as higher densities, transportation choices, mixed-use development and conservation of natural resources. To read an article about the Blueprint and smart growth development in the Sacramento region, click here.

To read more about the Blueprint and smart growth planning, visit the Blueprint website by clicking here.

Superior Court Finds City's EIR for Downtown Precise Plan Improperly Mitigated Impacts to Historical Resources and Excluded Required Shadow Analysis

The San Mateo County Superior court granted a petition for writ of mandate, setting aside Redwood City’s certification of a final environmental impact report for its Downtown Precise Plan on the grounds that the EIR inadequately described and mitigated impacts to historical resources, and incorrectly determined that CEQA does not require analysis of shadow impacts. The court rejected mitigation of historical resources that would have allowed the City to document or install a plaque prior to demolition of an historical resource. The court also concluded that the City had improperly omitted analysis of shadow impacts of the project, which proposed construction of substantially taller buildings than currently exist in the downtown area. While Redwood City had determined that CEQA did not require analysis of such impacts, the court found that an EIR must consider shadow impacts “if a project will substantially degrade the existing visual character or quality of the site and its surroundings, and the lead agency has exercised its discretion to determine to classify the impact as significant.”

While the decision is not yet final, and lacks the precedential value of an appellate opinion, its treatment of shadow impacts in particular, addresses an unsettled area of CEQA law.

For more information on the unpublished decision, see this recent article in the Redwood City Daily News.

California Air Resources Board Developing Protocols for Local Government Reporting of Greenhouse Gas Emissions

The California Air Resources Board, (ARB) is partnering with the California Climate Action Registry (CCAR), The Climate Registry (TCR), and Local Governments for Sustainability (ICLEI) to develop local government protocols for Greenhouse Gas (GHG) assessment. Though reporting of emissions under these protocols is voluntary, the protocols may serve as the basis for future mandatory emissions reporting under AB 32.

City’s Failure to Exercise CEQA Discretion in Properly Designating a Potentially Historic Resource Constitutes Reversible Error

Valley Advocates v. City of Fresno, --- Cal.Rptr.3d ---, 2008 WL 400245

In Valley Advocates v. City of Fresno, a local organization challenged the City of Fresno’s approval of demolition of an apartment building on the basis that the City improperly determined that the building was not an “historical resource” for CEQA purposes. The project application was reviewed by the local Historic Preservation Commission who recommended that the building be listed on the local register of historical places. However, at a public hearing the City Council denied listing the building on the local register. Staff subsequently found the project to be exempt from CEQA. On appeal of staff’s decision to the City Council, the Council was advised that their previous decision to deny listing of the building on the local register was conclusive as to the building’s historical significance under CEQA, and, therefore, that the project would not impact an historical resource. Accordingly, the City Council denied the appeal. Valley Advocates filed a petition for writ of mandamus challenging the City’s determination that the subject building was not an historical resource.

Attorney General Announces Workshops to Assist Local Agencies in Addressing Global Warming Impacts in CEQA Analysis

On February 19, 2008, Attorney General Brown sent letters to all 58 counties and over 200 cities announcing five workshops statewide in which the AG will discuss the interplay between CEQA and Global Warming impacts.

SWRCB Issues Executive Order Requiring Discharges to be Reported within Two Hours

The State Water Resources Control Board recently issued an Executive Order requiring that within two hours of becoming aware of a discharge of sewage into a drainage channel or surface water, the discharger notify the State Office of Emergency Services, the local health officer, or the local directors of environmental health, as well as the appropriate Regional Water Quality Control Board. The Executive Order further requires that within 24 hours of the discharge, the discharger certify to the Regional Water Quality Control Board that the State Office of Emergency Services, the local health officer, or the local directors of environmental health have been notified of the discharge. The new notification requirements went into effect upon signature on February 20, 2008.

Court Rules Coastal Commission Has the Power to Unilaterally Designate Environmentally Sensitive Habitat Areas and to Regulate Inland to the Boundary of the Costal Zone

On February 6, 2008, the California Court of Appeal, Second District ruled in Douda v. California Coastal Commission 2008 SOS 936, that an "issuing agency," whether that be the California Coastal Commission or a local government, can unilaterally designate "environmentally sensitive habitat areas" prior to the certification of a local coastal program ("LCP"). While the Court found that an issuing agency cannot deviate from a certified local coastal program and designate additional ESHA," it held that if an LCP has not been certified, then "allowing the issuing agency to protect natural resources for the benefit of the public by designating new areas when they meet the definition of environmentally sensitive…more closely comports with the declared and salutary purposes of the Coastal Act."

Appellate Court Finds Proper CEQA Baseline to be Existing Environmental Setting—Not Permitted Limit

In Communities for a Better Environment v. South Coast Air Quality Management District the court clarified the appropriate baseline for environmental review, finding that the appropriate baseline for a refinery modification project was actual, not permitted, emissions. Communities for a Better Environment (CBE) challenged South Coast Air Quality Management District’s (SCAQMD) approval of modifications to an oil refinery. The refinery’s permit allowed it to emit a certain level of NOx, however, as of 2003, actual NOx emissions from the plant had declined such that the plant was emitting less than 50% of its initial permitted limit. SCAQMD acknowledged that the project could generate an increase in emissions that exceeded the CEQA threshold; however, using the permitted level of emissions as the baseline, SCAQMD reasoned that the increased emissions that could be generated by the project would still be less than the baseline level and, thus would not result in a significant impact to the environment.

Infill Infrastructure Bond Application Workshops Scheduled for February

Housing and Community Development (HCD) has scheduled application workshops in February for the Infill Incentive Grant Program.

Proposition 1C (2006) included $850 million in bonds for housing. The FY 2007-08 budget appropriated $300 million of the funds. HCD is appropriating $240 million and the other $60 million is being appropriated by the CALReUSE program for brownfield cleanup.

HCD’s February workshops will address the appropriation of the $240 million (an additional $550 million in this account remains to be appropriated in future years).

For information, follow this link.

Trial Court Rules Global Warming Analysis Not Required Under CEQA

A Riverside County Superior Court judge ruled that there was no legal requirement to analyze greenhouse gases (GHGs) and global warming impacts under the California Environmental Quality Act (CEQA) (Highland Springs v. City of Banning, Case No. 460950 (Riverside County Superior Court, January 29, 2008)).

Court Rejects Streamlined Public Notice for Zoning Ordinance Action

A legislative body may not notice its public hearing on a proposed zoning ordinance or amendment before it has received the Planning Commission’s recommendation. In County v. County of Sierra (January 9, 2008, C055448) _____ Cal.App.4th _____ the court interpreted Government Code section 65856 to mean that the legislative body must provide notice after it has received the Planning Commission recommendation and that the recommendation must be included in the notice as the “general explanation of the matter to be considered” by the legislative body. (Gov’t. Code § 65094.)

Legal Analyses of the California Property Owners and Farmland Protection Act Shows Negative Impacts to Communities

In December, the California League of Conservation Voters Education Fund (CLCV Education Fund) and the Western Center on Law and Poverty (WCLP) released legal reports analyzing the impact of the California Property Owners and Farmland Protection Act (Act); an initiative which is expected to be on the June 2008 California ballot.

The report by the CLCV Education Fund contends that the Act will restrict a broad range of environmental and land use laws allowed under current California law, including laws and regulations that are designed to limit global climate change, protect coastal and agricultural lands as well as cultural and historical sites, promote "smart growth" and "livability" in communities, and restrict the locations of businesses such as industry and adult businesses. To read CLCV Education Fund's report, click here.

The report by the WCLP warns that the Act will abolish rent control measures established by local governments or voters, as well as invalidate local inclusionary housing ordinances that assist the creation of affordable housing. In addition, WCLP's report contends that the Act will abolish or threaten laws intended to protect tenants and home buyers. To read WCLP's report, click here.

Non-Religious Commercial Activities Not Protected as “Religious Exercise” Under RLUIPA

A recent appellate decision held that Federal Religious Land Use and Institutionalized Persons Act (RLUIPA) did not protect commercial activities conducted by the Scottish Rite Cathedral Association of Los Angeles (SRCALA) and its lessee, Los Angeles Scottish Rite Center, LLC (LASRC). The court reached this decision despite the fact that the activities were held at the Scottish Rite Cathedral, and SRCALA’s affiliation with Freemasonry, an organization that the court found to “foster[] principles and practices that resemble religious exercise.”

Ninth Circuit Court of Appeals Upholds County of San Diego Ordinance Regulating the Location of Adult Entertainment Businesses

In Tollis Inc. v. County of San Diego, the Ninth Circuit Court of Appeals upheld a zoning ordinance adopted by the County of San Diego ("County") restricting the location of adult entertainment business to selected industrial zones. The ordinance was adopted to minimize the negative secondary effects associated with adult entertainment businesses.

Appellants challenged the ordinance alleging that the County did not provide sufficient evidence to show how the sexual and pornographic speech associated with the regulations will not be impacted by them. The Court of Appeals rejected this argument and held that the County’s reliance on 68 suitable relocation sites for adult entertainment businesses in industrial zones—on which eight to 10 could operate simultaneously—was adequate for the County to assume that, given the demand for sexual and pornographic speech, the quantity and accessibility of the speech would not be substantially diminished.

Appellants also argued that because the industrial zones identified by the County were not expressly zoned for commercial use they had not been afforded a reasonable opportunity to relocate. Again, the Court of Appeals rejected this argument, holding that the issue is not whether an industrial zone permits commercial uses within its boundaries; rather, the issue is whether the relocation sites identified within the industrial zone are reasonably accessible to the public and have adequate infrastructure.

Federal Court Says States Can Regulate Vehicular Emissions to Reduce Greenhouse Gases

The state of Vermont can regulate greenhouse gas emissions by requiring a 30% reduction in emissions from cars and light trucks by 2016. Automobile manufacturers and dealers challenged the Vermont regulations, modeled on an identical California statute, on grounds of federal preemption, technological and economic difficulties and safety. In a lengthy, and often technical, opinion, the court rejected the challenge on all counts.

The automakers' major challenge was that the Vermont statute indirectly established fuel economy standards, and thus was preempted since only the federal government can regulate such standards. The court disagreed, ruling that while the required emissions reductions might affect fuel economy, they were not so draconian as to usurp the federal role in establishing fuel economy standards. Furthermore, noted the court, the required emissions reductions could be achieved by methods other than improved fuel economy, including use of alternative fuels and other technologies.

Attorney General Settles Greenhouse Gas and CEQA Dispute on Refinery Project

The California Attorney General and ConocoPhillips reached an agreement on a greenhouse gas reduction plan to settle the Attorney General's appeal of a refinery expansion plan to the Contra Costa Board of Supervisors. The Attorney General's appeal challenged the adequacy of the analysis and mitigation of greenhouse gas emissions and climate change in the environmental impact report (EIR) for the project. Under the settlement, ConocoPhillips agreed to significantly offset the greenhouse gas emissions from the project. This is the second settlement by the Attorney General in the past month of a challenge to the adequacy of greenhouse gas analysis under CEQA for a project. In August, the Attorney General settled its dispute with San Bernardino County on greenhouse gas emissions from its General Plan.

AB 32 - ARB Announces Additional Early Action Measures to Reduce Greenhouse Gases

The California Air Resources Board (ARB) staff has proposed additional Early Action Measures to reduce greenhouse gas emissions under AB 32. The revised list adds measures to those originally approved by ARB in June 2007. The Board will consider approval of these Early Action Measures at its October 25-26, 2007 hearing.

New Developments in Global Warming and CEQA - SB 97 and Attorney General Settlement of CEQA Lawsuit

There have been two recent significant developments concerning the analysis of global warming and greenhouse gas (GHG) emissions under the California Environmental Quality Act (CEQA).

First, as part of the state budget agreement, SB 97 was adopted, which addresses GHG analysis under CEQA. The bill states that the failure to adequately analyze GHG emissions is not a CEQA violation for two types of projects: (1) transportation projects funded under the Highway Safety, Traffic Reduction, Air Quality and Port Security Bond Act of 2006, and (2) projects funded under the Disaster Preparedness and Flood Prevention Bond Act of 2006. So, the bill essentially creates a CEQA exemption for analysis of GHGs for these projects. The provision applies retroactively to any CEQA document that has not become final.

Court Denies Standing Under CEQA for Sole Purpose of Furthering Petitioner’s Commercial and Competitive Interests

In Regency Outdoor Advertising v. City of West Hollywood,  the court of appeal held that Regency Outdoor Advertising (“Regency”) did not have standing to assert a CEQA challenge to amendments to the city’s Sunset Boulevard Specific Plan because Regency could only demonstrate commercial and competitive interests in the litigation. The appellate court, affirming the trial court’s conclusion, found that Regency lacked standing because it had not suffered any environmental injury. The court determined that Regency challenged the amendment regarding permissible outdoor wall signs, simply to “promote its commercial or competitive interests.” Relying on Waste Management of Alameda County v. County of Alameda (2000) 79 Cal.App.4th 1223, the court determined that CEQA does not create standing to pursue these interests. CEQA petitioners must demonstrate an environmental injury over and above the injury to the general public. Regency could demonstrate no such injury here.

U.S. Supreme Court Restricts Endangered Species Act, Section 7, Consultation Requirements to “Discretionary” Actions of Federal Agencies

The U.S. Supreme Court's decision in National Association of Homebuilders v. Defenders of Wildlife, addressed "a problem of conflicting 'shalls.'" Clean Water Act § 402(b) provides that the EPA “shall approve” transfer of National Pollution Discharge Elimination System (NPDES) permitting authority to a state upon application and a showing that the state has met nine specified criteria. Section 7(a)(2) of the Endangered Species Act requires federal agencies to consult with other designated agencies (such as the Fish and Wildlife Service) to “insure” that a proposed agency action is unlikely to jeopardize an endangered or threatened species. Thus, the case presented a question as to whether EPA, in reviewing an application for the transfer of permitting authority which met the nine specified criteria, must also consult with designated agencies regarding the transfer’s effect on endangered and threatened species.

The Supreme Court interpreted the language of CWA § 402(b) as establishing “a ceiling as well as a floor.” A literal interpretation of § 7(a)(2) “raises that floor and alters § 402(b)’s statutory command.” The Court resolved the conflict by looking to the implementing regulations for § 7(a)(2) promulgated by the Fish and Wildlife Service and National Marine Fisheries Service. The Court noted that the regulations stated that § 7 applied to “all actions in which there is discretionary Federal involvement or control” (emphasis added by Court). The Court concluded that this interpretation of the statute meant that the consultation requirements would not apply to “actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain specified triggering events have occurred.”

Justice Stevens filed a dissent, in which he argued that in TVA v. Hill, 437 U.S. 153 (1978), the Supreme Court had found that protection of endangered species was to be given “priority over the primary missions of federal agencies,” and that § 7 “admits of no exception.” In any case, the dissent argued that a determination to transfer authority under the CWA was the type of discretionary action to which § 7 applied. The majority’s decision, argued Justice Stevens, “fails to give the [ESA] its intended effect.”

California Supreme Court Finds Adoption of Airport Land Use Plan That Incorporates Existing General Plan Development Standards Exempt from CEQA Review

A unanimous California Supreme Court held in Muzzy Ranch Co. v. Solano County Airport Land Use Commission, that the Solano County Airport Land Use Commission’s adoption of an airport land use plan was exempt from review under CEQA. The Commission had first determined that the approval of the Travis Air Force Base Land Use Compatibility Plan (“TALUP”) was not a project subject to CEQA, but then, filed a notice of exemption based on the “common sense” exemption to CEQA, which states that the approval had “[n]o possibility of significant effect on the environment.”  Muzzy Ranch challenged this decision, alleging that the Commission should have considered the impacts that would result from “displaced housing” caused by the TALUP.

The Court first held that the adoption of an airport land use compatibility plan was analogous to the enactment or amendment of a general plan and, therefore, was a project subject to CEQA. The Court, however, accepted the Commission’s argument that the adoption of the TALUP was exempt under the common sense exemption. The Court ultimately determined that because the TALUP simply incorporated existing general plan and zoning law restrictions on residential housing density, any displacement of housing would have already occurred.

California Supreme Court Clarifies Constitutionality of Zoning Impacts on Economic Competition

In Hernandez v. City of Hanford, the California Supreme Court reversed the appellate court’s decision, and held that the City of Hanford’s zoning ordinance prohibiting furniture sales in the City’s Planned Commercial (PC) district, with a limited exception for large department stores, did not violate the State or Federal Equal Protection Clause. The Court clarified language in a line of cases beginning with Van Sicklen v. Browne (1971) 15 Cal.App.3d 122, which addressed the impacts of local zoning regulation on economic competition. The Court agreed with the appellate court that a general prohibition on furniture sales within a particular zoning district was not unconstitutional. The Court reversed the appellate decision, however, with respect to the ordinance's limited exception, allowing for furniture sales by large department stores. The Court concluded that the exception was rationally related to a legitimate public purpose that had been overlooked by the appellate court: the objective of attracting and retaining large department stores in the City's PC district. Therefore, the City's disparate treatment of department stores and other retail establishments within the PC district was not unconstitutional.

Court Affirms "Fair Argument" Standard in Review of City's CEQA Determination

The court in Sierra Club v. Cal. Dept. of Forestry and Fire Protection affirmed that the standard to be applied in reviewing an agency's decision to prepare a mitigated negative declaration, rather than an environmental impact report (EIR), is the "fair argument" standard. An EIR must be prepared where, "after examining the entire record, there is substantial evidence to support a fair argument that a project may have a significant effect on the environment." Citing a comment letter from a plant ecologist and botanist describing specific, non-speculative effects of the project, including increased sediment, reduction in groundwater discharges, and loss of spotted owl habitat, the court found substantial evidence on the record supported a fair argument that the project could have a significant effect on the environment. Therefore, the Department of Forestry and Fire Protection should have prepared an EIR prior to issuing a Timber Conversion Permit. (The decision was filed on March 29, 2007, but not certified for publication until April 30, 2007, following a request for publication.)

Certification of EIR Overturned for Failure to Mitigate Significant Impacts and Use of Improper Baseline

The Court of Appeal reversed the trial court’s denial of a writ in Woodward Park Homeowners Assn. v. City of Fresno, finding that the City violated CEQA in certifying an EIR while failing to impose mitigation measures for significant freeway impacts. The EIR was further inadequate for using, as the baseline for environmental review, a hypothetical development that could be approved under the current zoning, rather than the existing physical conditions of the site.

Court Rejects Certification of EIR for Inadequate Project Description, Baseline Assumptions, and Improperly Deferred Mitigation

In San Joaquin Raptor Rescue Center v. County of Merced, the Court of Appeal ordered that the County’s certification of an EIR for expansion of mine operations be vacated, finding that the EIR’s project description and baseline assumptions were inadequate, and that the EIR improperly deferred mitigation by allowing for the future development of a land management plan to address biological impacts.

U.S. Supreme Court Rules EPA May Regulate Greenhouse Gas Emissions

In a 5–4 decision in Massachusetts v. EPA, the United States Supreme Court ruled that the Environmental Protection Agency (EPA) has the authority to promulgate regulations of greenhouse gas emissions, including carbon dioxide from vehicles. The Court further held that that EPA’s failure to do so in response to a rulemaking petition, without providing sufficient explanation, was arbitrary and capricious, and in violation of law.

Court Rejects "Untimely" Challenge to City's Approval of DDA and Adoption of a Negative Declaration

In Citizens for a MegaPlex-Free Alameda v. City of Alameda, the court affirmed CEQA principles that once a CEQA document (here, a negative declaration) has been adopted, a notice of determination filed, and the statute of limitations has expired, subsequent discretionary approvals, such as design review, do not reopen the initial document to challenge. The Court further affirmed that a "project" for CEQA purposes refers to the underlying activity which may be subject to approval, not subsequent approvals that may be necessary for actual construction of the project.

California Cities Publishes Legal Advocacy Report

The League of California Cities published its litigation update on April 18, 2007. The report summarizes the cases reviewed by the legal advocacy committee, which engages in advocacy on behalf of California cities in the courts and in the legislature. Click on this link to review the full report: Litigation Update

For more information, please contact Ben Reyes or Steve Meyers


On March 8, 2007 the California Court of Appeal, Second Appellate District, issued a unanimous decision upholding the Santa Monica Mountains Grading and Significant Ridgeline Ordinance enacted by the Los Angeles County Board of Supervisors in 2004. The “Ridgeline Ordinance,” as it is sometimes known, imposes special permit requirements on grading projects in the Santa Monica Mountains. It was adopted to provide additional protection to the Santa Monica Mountains after a spate of unregulated grading projects caused significant environmental damage.

The Court of Appeal decision, Land Use Preservation Defense Fund v. County of Los Angeles, No. B190846, puts an end to efforts by objecting landowners to overturn the ordinance on legal grounds. The plaintiffs specifically contended that the Ridgeline Ordinance conflicts with a so-called “Grandfather Clause” in the County’s Santa Monica Mountains North Area Plan, a section of the County’s general plan. According to the plaintiffs, the “Grandfather Clause” exempted all existing legal lots in the mountains from new regulations such as the Ridgeline Ordinance. The Court of Appeal found the plaintiffs’ interpretation of the Grandfather Clause “unreasonable,” noting that plaintiffs’ interpretation would effectively nullify many policies in the North Area Plan calling for more stringent regulation of grading and ridgeline development. The Court of Appeal also rejected arguments that the intent of the Grandfather Clause could be distilled from an ambiguous  conversation between several supervisors at the time of enactment, rather than by reading the clause in the overall context of the Plan.

The Court of Appeal also rejected the plaintiffs’ claims that the County should have prepared a new or supplemental environmental impact report rather than rely on a previous EIR certified at the time the North Area Plan was adopted. The Court found that substantial evidence supported the County’s conclusion that the Ridgeline Ordinance would not have any environmental impacts that had not already been fully evaluated in the previous EIR.

Attorney Deborah Fox of Meyers, Nave, Riback, Silver & Wilson is optimistic that the appellate decision will end the litigation saga that began in 2005.

Court of Appeal Finds Public Agency’s Approval of Contract Was Not Subject to CEQA

In Concerned McCloud Citizens v. McCloud Community Services District, the Court of Appeal rejected a citizen group's claim that the District violated CEQA by approving a contract with a water bottling company to develop and sell the District's mountain spring water without conducting environmental review.

The contract was subject to numerous contingencies, including a provision that the actual water bottling project would be reviewed under CEQA and the agreement could be modified as a result. In addition, the agreement did not give the water bottler any vested rights, or commit the District to a definite course of action, or limit the District's discretion to consider mitigation measures and alternatives under CEQA.   In light of these facts, the Court held the District was not required to conduct a CEQA review before approving the contract.

California Supreme Court Requires More Extensive Environmental Review to Adequately Analyze Long-Term Water Supply for Long-Range Development Project

In Vineyard Area Citizens v. City of Rancho Cordova, the California Supreme Court Case held an EIR failed to adequately analyze the impacts of a long-term water supply for a long-range plan to develop 6,000 acres with approximately 22,000 residential units.

The Court identified the principal disputed issue as “how firmly future water supplies for a proposed project must be identified or, to put the question in reverse, what level of uncertainty regarding the availability of water supplies can be tolerated in an EIR for a land use plan.”  The Court emphasized that “CEQA should not be understood to require assurances of certainty regarding long-term future water supplies at an early phase of planning for large land development projects.”  However, “[i]f the uncertainties inherent in long-term land use and water planning make it impossible to confidently identify the future water sources, an EIR may satisfy CEQA if it acknowledges the degree of uncertainty involved, discusses the reasonably foreseeable alternatives—including alternative water sources and the option of curtailing the development if sufficient water is not available for later phases—and discloses the significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact.”

As applied to the Project, the Court held that the EIR adequately evaluated the near-term water supply for the Project. Although much uncertainty still remained, the Court held that there was substantial evidence in the record demonstrating a reasonable likelihood that the near-term groundwater supplies would be available at least in substantial part to apply to the Project’s near-term needs. However, the Court held that the EIR did not adequately analyze the long-term water supply for the Project. The Court found that there were factual inconsistencies and lack of clarity in the EIR that made it unclear whether sufficient water would be available for the Project at full build out. The Court also held that the EIR for the Project did not properly tier off of or incorporate a prior EIR’s analysis of water sources.

The Court also held that the EIR should have been recirculated on the impact of the groundwater extraction on the Cosumnes River salmon. The Court held that the County’s response in the Final EIR that this impact was insignificant was not supported by substantial evidence.

City of Encinitas Prevails in Decision Regarding "Adult Business" Definition

In City of Encinitas v. F Street, the Court of Appeal affirmed a judgment in favor of the City of Encinitas, declaring the F Street adult retail store in Encinitas to be a public nuisance because it was operating in violation of the City’s zoning code and in close proximity to residential neighborhoods and a daycare facility. Encinitas’ adult business definition employs the defining term of "regular and substantial." The adult retail operator insisted that Encinitas had to specify a set percentage of inventory or floor space area devoted to adult materials. The Court rejected F Street’s position and found that the City’s definition of an adult business was constitutionally sound. The Court relied on the California Supreme Court’s decision in People v. Superior Court (Lucero) (1989) 49 Cal.3d 14, 26, where the high court specifically rejected the premise that a local agency must utilize a mathematical standard to determine whether a business is an "adult business" subject to the agency’s adult ordinances.

The Court also rejected F Street’s argument that adult materials could not be considered to be a "substantial" portion of the business if they only constituted 12% of the store’s floor space and inventory. The Court recognized that floor space and inventory figures are both subject to significant manipulation and found it compelling that sales and rentals of adult videos and DVDs made up well over 25% of the store’s gross revenue in the first several months, even though they constituted a fraction of the adult inventory and were displayed on wall racks, thereby occupying a miniscule amount of floor area. The Court upheld the trial court’s conclusion that the F Street store in Encinitas was an "adult business" within the meaning of the City’s ordinances.

The Court summarily rejected F Street’s claim that the City violated its right to equal protection as being completely unsupported by the evidence. The Court then remanded the opinion to the trial court for the limited purpose of re-crafting the permanent injunction in keeping with the decision and the City’s adult ordinance.

Contracts for the Sale of Unsubdivided Parcels Violated the Subdivision Map Act Absent the Contracts Being Expressly Conditioned Upon the Approval and Recordation of the Final Parcel Map

In Black Hills Investments, Inc. v. Albertson's, Inc. the Court of Appeal for the Fourth Appellate District, Division One, held that two contracts to sell unsubdivided parcels of real property before the seller recorded a parcel map in compliance with the Subdivision Map Act ("SMA") were void because the contracts violated California Government Code section 66499.30(b). The court also held that the contracts did not comply with the exception set forth in section 66499.30(e)--allowing for a contract for the sale of land to be expressly conditioned upon the approval and filing of a parcel map--because the contracts merely permitted the seller to waive the condition that a parcel map be recorded prior to the closing date and did not expressly condition the contract on the approval and filing of the parcel map.

Albertson's, Inc. ("Albertson's") entered into two contracts to sell two parcels of unsubdivided real property to Black Hills, Investments, Inc. ("Black Hills"). The contracts obligated Albertson's to obtain and record a parcel map legally subdividing the property prior to the agreed-upon closing date; however, this contractual obligation was subject to the express condition that gave Albertson's the right to terminate the contracts in the event Albertson's failed to satisfy the requirements of California Government Code section 66499.30(b) which prohibits the sale of unsubdivided parcels of real property before the seller records a parcel map in compliance with the SMA. Albertson's recorded a parcel map that subdivided the property before the closing date. One day before the closing date Black Hills stated its intent to terminate the contracts and requested that Albertson's return the deposit money. Among other allegations, Black Hills asserted that they had not received its preliminary title report for the two parcels which prevented Black Hills from performing due diligence on the parcels it contracted to buy.

California Supreme Court Agrees with Meyers Nave Amicus Brief; Holds Newly Incorporated City Not Estopped from Disapproving Final Subdivision Map

Attorney Authors: 

In City of Goleta v. Superior Court (December 21, 2006), the California Supreme Court upheld the discretion of the newly incorporated City of Goleta to deny a "final" subdivision map that complied with a "tentative" map which was previously approved by the County out of which the City was formed. The Court held the new City was not barred from exercising that discretion by its interim adoption of a County subdivision ordinance that mandated approval of final map in conformity with a tentative map previously approved by "the County" – because the City had amended the interim ordinance to refer to maps previously approved by "the City."

The Court also emphasized the difficulty of holding local agencies to be "estopped," on grounds of alleged unfairness, from acting in compliance with their laws. The Court refused to apply estoppel in this case, where there was no evidence that the City expressly promised approval of the final map, and City officials had -- both before and after incorporation -- made public their concerns about the project. Peter Hayes and Amrit Kulkarni of the Meyers Nave Land Use Group, along with Kyle La Londe, supported the City’s estoppel arguments in an amicus brief, filed on behalf of the League of California Cities and the City of Laguna Woods.

For more information, please contact Peter Hayes at

To view the full text of the opinion, please click here.

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