November 2009

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

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.

Designing a Public Project? Avoid Future Dangerous Condition Liabilities by Anticipating Changed Conditions

Government Code section 830.6 grants public entities immunity from liability for dangerous conditions on public property if those conditions arise because of improvement projects for which the plan or design was reasonably adopted or approved. A recent opinion by the California Appellate Court's Second District has reaffirmed that this immunity holds even if an improvement project becomes dangerous because of changed conditions -- as long as the public entity can demonstrate that it anticipated the changed conditions, whether or not it modified its plan or design because of the anticipated changed conditions.

The Second District's opinion highlights how important it is for public entities to consider future changed conditions in their planning or design of public works improvements.

The opinion, Alvis v. County of Ventura, held that where a public entity approves a design that contemplates a specific change of physical condition(s) that may affect a public work, the public entity will retain its design immunity if change of condition occurs and causes injury. In Alvis, the evidence showed that the Defendant County's designers had been warned by consultants that soil build-up would occur behind a retaining wall to be constructed by County, but had rejected the need for design changes to improve drainage. The County did not lose its design immunity when the wall failed and caused a landslide because the soil build-up was a changed condition that related directly to the factors the County considered in making its design choices, and the design immunity of Government Code section 830.6 is intended to prevent judicial second-guessing of a public entity's design choices. Read the entire opinion here.

Latest Court Decision in Palmer/Sixth Street Properties v. City of LA May Affect Inclusionary Housing Ordinances

Following a decision by the California Supreme Court to not review or depublish the appellate court decision in Palmer/Sixth Street Properties v. City of Los Angeles, cities and counties should evaluate their inclusionary housing ordinances with respect to rental properties. The Palmer decision calls into question whether inclusionary housing ordinances which require developers to offer a portion of rental units as low-income units or pay an in-lieu fee may be in violation of California's Costa-Hawkins Act. Unless and until the Legislature amends the Costa Hawkins Act, local agencies should consider how to revise their existing inclusionary requirements in accordance with Costa-Hawkins and the Palmer decision. Click here to read more analysis of the court's decision. Click here to read our previous post on Palmer.