Abbott & Kindermann Land Use Law Blog

Tolling agreement for CEQA Lawsuit Challenging a General Plan Update is Upheld Against Property Owner Challenge

Abbott & Kindermann — Wed, 16 May 2012 10:41:41 -0800

By William W. Abbott

Salmon Protection and Watershed Network v. County of Marin (April 20, 2012, A133109) ___Cal.App.4th ___.

It is not uncommon in CEQA cases for the opponents and the lead agency to extend the statute of limitations through a tolling agreement. The use of such agreements puts the litigation on hold, and can help facilitate settlement by taking the pressure of litigation off the front burner. In a case involving the use of a tolling agreement to extend the time lines for a CEQA challenge to a general plan update, a demurrer was sustained to a complaint in intervention later brought by property owners potentially affected by the CEQA lawsuit. As the settlement discussions were undertaken (ultimately unsuccessful), the property owners were left in a indeterminate state as to what to do with their property. The property owners’ complaint in intervention, following the filing of the under lying CEQA action, alleged that the underlying CEQA lawsuit was barred due to the passage of the statute of limitations, and that any extension between the petitioner and the County was contrary to public policy. Relying in part on the policy favoring settlement of litigation, the court of appeal upheld the dismissal of the complaint in intervention.

The appellate court recognized that the fact pattern was one in which no private party was involved as there would be in the situation of a lawsuit challenging approval of a private project. Given that the interests of property owners potentially affected by the litigation were only “incidental”, their concurrence was not required as a condition to the validity of the tolling agreement.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Climate Change: a new perspective on long range planning.

Abbott & Kindermann — Thu, 10 May 2012 07:30:24 -0800

While CEQA predominates many local government discussions of climate change, the state has taken a longer view as well, seeking input on strategies for local adaption to climate change. The draft handbook can be found at http://resources.ca.gov/climate_adaptation/docs/APG_-_PUBLIC_DRAFT_4.9.12_small.pdf. A state sponsored webinar will take place on May 15, and comments can be submitted electronically at http://resources.ca.gov/climate_adaptation/local_government/adaptation_policy_guide.html

Court Affirms Use of Substantial Evidence Test in CEQA Challenge to Annual Adjustment in Water Allocation Regulations

Abbott & Kindermann — Tue, 08 May 2012 14:25:09 -0800

By William W. Abbott

James Abatti v. Imperial Irrigation District (April 26, 2012, D058329) ___ Cal.App.4th ___.

In November 2006, the Imperial Irrigation District, based upon a negative declaration, adopted an Equitable Distribution Plan (“EDP”). The plan was designed to provide for the equitable apportionment of water in the event of a supply/demand imbalance. The governing board approved the plan which provided for a straight-line method of allocation among agricultural users during shortfall periods. Agricultural users were the largest users within the district, with industrial users making up a small percentage of the remainder. In 2007, the District adopted regulations implementing the EDP which provided more detail on allocations to non-residential users, including industrial. In adopting these regulations, the District relied upon the 2006 Negative Declaration. In 2008, the District adopted amended regulations, further refining the regulations. Language was added pertaining to new industrial water contracts. The District again relied upon the prior negative declaration, and relying in part on CEQA Guidelines 15162, concluded that no new environmental review was required. The petitioners then filed a CEQA challenge. The trial court denied the petition, determining that Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467 was controlling, and under the traditional substantial evidence test (as compared to the fair argument test), ample evidence supported the District’s decision to rely upon the prior CEQA document. Petitioners dismissed their other claims without prejudice, then appealed.

At the outset, the appellate court wrestled with the effect of the dismissal without prejudice of the remaining claims, asking whether or not there was a final judgment subject to appeal. Concluding that there were no remaining claims, the appellate court would treat the judgment as final and proceeded to consider the merits of the appeal. On the merits, the plaintiffs/ appellants first argued that Guideline Section 15162 was invalid as it facially applied to both EIRs and negative declarations, whereas the enabling statute, Public Resources Code section 21166 only pertains to EIRs. Relying on Benton, the appellate court rejected this challenge. Shifting next to the substantive CEQA claims, the appellate court applied the substantial evidence in assessing the District’s determination that there had not been a substantial change in the project requiring additional CEQA review. This is a factually intensive inquiry, and the appellate court compared the 2008 revisions to the regulations adopted in 2007. The primary area of legal debate centered on whether the 2008 amendments changed the priority of industrial users to the detriment of agricultural users. As a matter of regulatory interpretation, the appellate court concluded that the 2008 changes did not materially affect the priorities established in 2007. Pointing to the allocation of water to an industrial (geothermal) project in 2008, the opponents also argued that there had been a change in circumstances surrounding the project, necessitating an EIR. As framed by the opponents, the granting of the contract for a 6000+ AF user, in conjunction with the alteration in priorities, constituted the type of changed circumstances under CEQA necessitating an EIR. Having determined that there was no material change in allocation priority between 2007 and 2008, the court rejected this argument as well.

Comment: Picking the right second (or third) generation CEQA document requires a thorough understanding of the initial action along with the relationship of the second action to the first, and probably a little bit of luck. Abatti involved the evolution of a policy to an implementing regulation followed by a later regulation. The passage of the statute of limitations on the intermediate regulation positioned the district to take full advantage of Guidelines Section 15162. In contrast, consider the very recent scenario in Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156, where the lead agency was challenged in its transition from a general plan policy to an implementing regulation, and the appellate court rejected the use of a negative declaration following the earlier EIR.

Approval of Oak Woodland Management Plan and Mitigation Fee Program Based on a Negative Declaration is Overturned by Third District Appellate

Abbott & Kindermann — Mon, 07 May 2012 13:23:38 -0800

By Katherine J. Hart

In the most recent fee mitigation case, Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156, the Third District Appellate Court held that a county was required to prepare a tiered EIR before adopting its oak woodland management plan and mitigation fee program.

Factual Background

In 2004, the El Dorado County (County) Board of Supervisors successfully adopted a general plan. With that plan, the County adopted a programmatic environmental impact report (Program EIR). The Program EIR indicated that the development contemplated under the County’s new general plan would have significant and unavoidable impacts on the County’s oak woodland habitat and wildlife. As mitigation, the 2004 general plan identified two policies to assist in mitigating the impacts to oak woodland habitat. The first policy contained Option A, which required that all projects impacting 10 acres or more of oak woodlands to replace lost habitat onsite at a one to one ratio. The second policy contained Option B, which required the development and implementation of an integrated natural resources management plan on or before 2009. The purpose of Option B was to provide an alternative to the 1:1 onsite mitigation required under Option A, and would allow developers to pay a conservation fee to mitigate impacts to oak woodland habitat.

The County adopted an oak woodland management plan (a portion of the integrated management plan) and Option B fee program in 2008 based on a negative declaration. The County tiered the negative declaration off its 2004 Program EIR, finding that there would be no significant environmental impacts that had not been previously analyzed in the 2004 Program EIR and that the oak woodland management plan was consistent with the County’s 2004 general plan.

Petitioner, Center for Sierra Nevada Conservation, filed a writ of mandate challenging the Board’s approval of the oak woodland management plan and mitigation fee as a violation of CEQA and the County’s 2004 general plan. The trial court denied the petition and the Center appealed.

Discussion

The Third District Court of Appeal considered whether CEQA required an EIR to be prepared before the County adopted its oak woodland management plan and corresponding Option B mitigation fee program.

In reversing the trial court and granting the petition, the appellate court held that a tiered EIR was required because the 2004 Program EIR did not adequately study the potential impacts of the oak woodland management plan and fee program. Specifically, the court held that “the 2004 program EIR did not assess how any mitigation measures other than Option A could lessen the impacts of development on the County’s oak woodlands.” (Id. at p. 1175.) The court noted that “[a]lthough the 2004 program EIR called for an Option B to be developed, it provided no guidance as to the fee rate or use to be made of the fees collected.” (Id.)

The court also noted that it appears that in conceiving its oak woodlands plan, the County arbitrarily selected certain oak woodlands for protection and excluded others. For instance, the management plan focused on valley oak woodlands (3,400 acres), but not woodlands comprised of value of blue oaks (42,000 acres) or interior live oaks. However, the 2004 Program EIR did not differentiate between oak species; it merely stated that all oak woodland habitats in El Dorado County are important. Thus, adopting the oak woodland plan focusing only on valley oaks had the effect of excluding a majority of oak woodlands in the County from the mitigation measures to be funded by the Option B fee. As such, the appellate court concluded that “such discretionary action required an EIR to inform the County for the environmental consequences before it adopted the oak woodland management plan.” (Id. at p. 1177.)

Second the appellate court found the 2004 Program EIR never determined which measurement metric for the conservation of oak woodlands should be used. Would the woodlands be measured by tree canopy cover or by total area (including the space between the canopies)? The County’s selection of the canopy measurement method (identified in its initial study) would undoubtedly result in a significant difference in the amount of habitat to be preserved depending on whether the woodland being measured was open savannah or dense forest. Furthermore, the methodology would impact the amount of the fee to be paid under Option B to mitigate the loss of the oaks on their properties. In sum, the court said the measurement methodology should have been reviewed by an EIR.

Third, the appellate court discussed the Option B fee rate and usage for conservation purposes. It noted that the 2004 Program EIR never set a fee rate or ascertained the type of parcel that would be required to pay the fee prior to development. Moreover, the record reflected different scenarios for the use of Option B funds (e.g., easement acquisition, fee/easement mix, and purchase of fee title to oak woodlands for preservation), the impacts of which were never studied in the Program EIR. Additionally, while the 2004 Program EIR highlighted the importance of connectivity among preserved oak woodlands, the County deferred the issue until the other components of the integrated plan were developed. Therefore, in acknowledging that Option B funds would not be spent on connectivity corridors (e.g., Highway 50 corridor), the oak woodland management plan was inconsistent with the 2004 Program EIR and its emphasis on protecting connectivity of habitat.

Fourth, the appellate court addressed whether the County could defer environmental review of the oak woodlands management plan until such time as the entire integrated management plan is adopted. As expected the appellate court held that environment review must precede project approval. “The County’s approval of the oak woodland management plan had the effect of allowing developers to pay a mitigation fee instead of preserving a substantial population of trees onsite.”

Finally, the appellate court held that the County’s adoption of the negative declaration violated CEQA because evidence in the record supported a fair argument that significant effects will occur due to the oak woodland management plan and fee program. The 2004 Program EIR concluded that even with mitigation measures (e.g., Options A and B), impacts on oak woodlands would be significant and unavoidable. The County argued that precisely because the 2004 Program EIR contemplated impacts to oak woodlands as significant and unavoidable, the adoption of the oak woodland management plan would have no greater adverse environmental impact, and thus, no EIR was required to be prepared. In what was no doubt a déjà vu moment, the appellate court recounted its holding in Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 354 – mainly, that CEQA calls for an evaluation of a project’s impacts on the environment based on existing physical conditions, not on an existing general plan. Because the 2004 Program EIR did not discuss details of the Option B mitigation fee program (e.g., the fee rates, collection, usage, etc.), the court held that CEQA required the County to prepare a tiered EIR for its oak woodland management plan that includes a fee program prior to adoption of the plan.

Katherine J. Hart is an attorney at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Please join Diane Kindermann and her co-panelists on May 9, 2012 for an MCLE: California Land Use and Environmental Law Update presented by AEP

Abbott & Kindermann — Mon, 07 May 2012 10:15:38 -0800

The Association of Environmental Professionals will be holding an MCLE as part of its Statewide Conference (May 6-9). Panelists include: Chris Butcher, Thomas Law Group; Braiden Chadwick, Downey Brand, LLP; Diane Kindermann, Abbott & Kindermann, LLP; and Tiffany Wright, Remy Moose Manley, LLP.

Navigating Projects through CEQA and Local Government Biological and Regulatory Policies (2 hours of MCLE Credit Approval Pending)

Wednesday, May 9, 10-11:30 a.m., Sheraton Grand Hotel, Sacramento, CA

Cost $50.00 at the door

To RSVP, please email amcintire@brandman.com; for more information about this, and other AEP Statewide Conference events, visit http://conference.califaep.org/.

Solano Press releases new book on impact fees.

Abbott & Kindermann — Mon, 07 May 2012 07:32:15 -0800

Solano Press releases the third edition of Exactions and Impact Fees in California, co-authored by Bill Abbott, Harriet Steiner, Tom Jacobson, Peter Detwiler and Margaret Sohagi. This edition covers the next generation of impact fee practice and legal issues, including Proposition 218. For more information, click here: http://solano.com/processxml.asp?tid=EX12&StyleSheet=title.xsl

Property Owner Fails to Establish Basis For Maintaining Older Property Tax Assessment Following Property Transfer

Abbott & Kindermann — Wed, 02 May 2012 09:22:24 -0800

By William W. Abbott

Duea v. County of San Diego (2012) 204 Cal.App.4th 691

Proposition 13 changed the property tax rules in California in 1978. One of its many key features was the rolling back of the taxes, and limiting annual increases. A change in ownership was treated as a triggering event for purposes of establishing property valuation, and in turn, the recalculated property tax liability. Overtime, one of the important considerations in applying tax liability was whether a transfer took place. Subsequent to Proposition 13, the Legislature enacted legislation for purposes of defining certain transfers as not constituting a triggering event. Exemptions include acquisition through eminent domain, acquisition by a public entity, or governmental action resulting in a judgment of inverse condemnation.

David Duea, as trustee for a revocable trust, sold property to a private developer active in the development/redevelopment of San Diego’s baseball complex. Following the sale of the property, Duea acquired replacement property. Duea then filed a request with the County tax assessor to have the tax base from the sold property transferred to the acquired property. The assessor rejected the request on the basis that the property was not acquired by a public entity. Duea appealed to the Board of Equalization, arguing that the acquisition was the functional equivalent to an eminent domain proceeding (which would be a basis for base transfer.) The city’s development corporation, responsible for the ballpark and related projects, issued a letter to Duea indicating that had he not sold, the City would have condemned the property. The Board of Equalization affirmed the decision of the assessor.

Duea filed a superior court action. At trial, Duea argued that the developer-buyer was acting as an agent for the city, but the trial court rejected this argument on the basis that Duea had not presented this issue to the Board of Equalization, thereby failing to exhaust administrative remedies. The court of appeal affirmed, concluding that Duea had administratively pursued the “eminent domain” argument, but not the acquisition by agency legal theory and that the trial court was not obligated to consider the alternative theory. Recognizing the long line of cases which vest the primary legal proceeding with the local board of equalization, the appellate court declined to broaden the authority of the trial court.

SB 226 draft CEQA Guidelines now available for review.

Abbott & Kindermann — Wed, 02 May 2012 07:39:42 -0800

Yesterday, OPR announced the new draft CEQA Guidelines on SB 226’s infill provisions. As always, the devil is in the details, and OPR does an admirable job explaining the basis for its intended direction. Notably, OPR stakes out the position that the traditional substantial evidence test applies, not the less deferential fair argument standard. It is hard to believe that this position will go unchallenged (think back to Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98.) Check out the draft Guidelines at http://opr.ca.gov/s_sb226.php.

Court Upholds Processing of Sequential Boundary Line Adjustments

Abbott & Kindermann — Mon, 30 Apr 2012 07:52:51 -0800

By William W. Abbott

Sierra Club v. Napa County Board of Supervisors (April 20, 2012, A130980) ___Cal.App.4th ___.

In 1991, the California Legislature amended the Subdivision Map Act to restrict the use of boundary line adjustments by limiting their use to four or fewer adjacent parcels. Government Code Section 66412(d). While intended to deal with the reconfiguration of large ranches without going through the subdivision process, the 1991 amendment made the process of making minor technical adjustments between contiguous parcels unnecessarily more cumbersome then what was really necessary. (Essentially, the use of a nail gun to put in a thumbtack.) Local governments and engineers developed different strategies for working around the amendments. One of those was processing multiple sequential adjustments.

Napa County addressed this issue in 2009 when the Napa County Board of Supervisors adopted an amendment to its code permitting sequential processing of lot line adjustments where the same parcels were involved, in circumstances in which the prior adjustment was approved and recorded. The County also concluded that such adjustments would be categorically exempt from CEQA.

The Sierra Club filed suit, alleging inconsistency with the Subdivision Map Act and a violation of CEQA. As the litigation moved forward, the County agreed to an extension of the time period for the preparation of the administrative record. The County then filed a demurrer, arguing that the petitioner had failed to serve a summons within the 90 days required by the Subdivision Map Act. The trial court rejected the demurrer on the grounds that the County’s grant of an extension constituted a general appearance. The trial court then ruled in favor of the County.

The Sierra Club appealed. Addressing first the County’s statute of limitations defense, the appellate court first affirmed the lower court ruling that the lawsuit was timely filed, concluding that the general appearance satisfied the service of summons requirement. Turning to the merits, the appellate court concluded that the multiple sequential processing was not an “end around” of the Map Act. Relying in part on the legislative history, the appellate court, in critically examining the adopted language, could not agree with the Sierra Club’s argument that the legislature intended to ban later adjustments of the same parcels. The appellate court also affirmed the County’s conclusion that such adjustments were ministerial, and therefore not subject to CEQA. Building upon earlier cases, the court concluded that although the County may enjoy some elements of discretion when processing a lot line adjustment, the discretion which could be exercised to shape the proposal was not sufficiently meaningful to justify the application of CEQA.

Update on Ballona Wetlands Land Trust v. City of Los Angeles

Abbott & Kindermann — Wed, 25 Apr 2012 08:27:44 -0800

In December 2011, we posted an article reviewing the Second Appellate District’s determination in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455.

The petitioner, Ballona Wetlands Land Trust filed a petition for review on January 12, 2012. On February 2, 2012, the Natural Resources Defense Council filed a request for depublication. On March 21, 2012, the California Supreme Court denied both the petition for review and depublication requests [2012 Cal. LEXIS 3142.] resulting in a decisive conflict between the reported cases on Guidelines section 15126.2, subdivision (a) and the text of Section 15126.2, subdivision (a) itself.

For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

A Judicial Throwdown on CEQA's Baseline Requirements

Abbott & Kindermann — Tue, 24 Apr 2012 08:30:11 -0800

By William W. Abbott

It is refreshing when a court lays it on the line. And, that is exactly what Division Eight of the Second Appellate District did in addressing CEQA’s requirements for baseline selection for projects with future implementation dates. The case, Neighbors for Smart Rail v. Exposition Metro Line Construction (April 17, 2012, B232655) __Cal.App.4th __ (“Neighbors”) provides a counterweight to recent decisions from the Fifth and Sixth Appellate Districts, setting a possible stage for California Supreme Court review.

The case involves an EIR prepared for a phase II rail line extension. While the EIR used existing physical conditions in a number of impact discussions, the lead agency used a future scenario for traffic and air quality. The lead agency’s rationale was that 2009 population and traffic numbers, as compared to forecasted numbers, were less reliable in assessing impacts for a project with a construction date of 2015, at its earliest.

Opponents filed a CEQA challenge, asserting that the use of a future baseline scenario violated CEQA, pointing to the recent decisions of Sunnyvale West Neighborhood Association v. City of Sunnyvale (2010) 190 Cal.App.4th 1351 ("Sunnyvale") and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48 ("Madera"). The appellate court in Neighbors critically reviewed not only Sunnyvale and Madera, but the California Supreme Court decision in Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310 (“CBE”), reaching several noteworthy conclusions. First, the CBE court dealt with baseline in a case involving an existing operation, looking at a hypothetical baseline of maximum permitted activity, a baseline which overstated actual current conditions. Second, the Neighbors court went on to say that to the extent that Sunnyvale and Madera stood for the proposition that CEQA precluded the use of a future baseline, “we disagree with those cases.” The court went on to uphold the balance of the EIR challenges. However, the court ordered published only that portion of the decision pertaining to the baseline.

Comment: In taking a different path to the baseline, the Neighbors court concurred in a critical point well known to planners, that being that in the right set of circumstances, a CEQA evaluation of a project compared to existing physical conditions will lead to information which is less useful and reliable to the public and the decisionmakers. Given that CEQA is intended to foster more informed decision making, rigid adherence to the use of existing physical conditions in every instance may miss the mark in terms generating meaningful analysis. Lead agencies, when following the lead set in CBE, would be well served to the follow the Authority’s use of a variable baseline, utilizing existing conditions for many, if not most, of CEQA’s impact discussions.

A Run on the Banks? (Mitigation banks that is.)

Abbott & Kindermann — Wed, 04 Apr 2012 11:41:14 -0800

By William W. Abbott

On March 15, 2012, California Department of Fish and Game announced it was suspending work on new proposals for mitigation banks, due to state budgetary constraints. http://www.dfg.ca.gov/habcon/conplan/mitbank/

Despite the state’s own recognition of the benefits of mitigation or conservation banks, that recognition only goes so far. This poses a challenge to agencies and developers operating in areas in which the banks are limited or closing. It may be that acquiring remaining credits will take on a new priority while projects are being re-positioned during the market slump. Another implication is that it may become imperative to challenge a CEQA characterization of habitat loss or impairment given that options for satisfying compensation may be more limited in the future. Here is the state’s list of approved banks as of January, 2012. http://www.dfg.ca.gov/habcon/conplan/mitbank/catalogue/catalogue.html

2012 CEQA 1st QUARTER REVIEW

Abbott & Kindermann — Mon, 02 Apr 2012 08:42:28 -0800

By William W. Abbott, Diane Kindermann, Elizabeth Strahlstrom, Katherine J. Hart and Glen Hansen

The first quarter cases largely hone or refine established CEQA concepts. Not surprisingly, two decisions reaffirm that the fair argument test (whether for exemptions or negative declarations) remains a relatively low threshold for an opponent to cross (Berkeley Hillside and Consolidated Irrigation.) The Flanders court clarified that feasibility is based upon a “reasonably prudent” test, not what the applicant can afford. The Fifth Appellate District applied the traditional appellate substantial evidence test to a trial court order augmenting a CEQA record (Consolidated Irrigation District.) Finally, the most interesting case comes from El Dorado which discusses the CEQA transition from a general plan EIR to an implementing action (Center for Sierra Nevada Conservation). Enjoy!

CATEGORICAL EXEMPTIONS

A larger than average house, to be constructed on a Berkeley hillside, met the test for “unusual circumstances”, limiting the use of a CEQA categorical exemption. Based upon disputed testimony of a soils engineer, the Court found that there was substantial evidence of a fair argument, necessitating the preparation of an EIR. Berkeley Hillside Preservation v. City of Berkeley (March 7, 2012, A131254) ___Cal.App.4th ___. See Applying CEQA's Unusual Circumstances Exception to an Otherwise Exempt Activity Results in an EIR for a Single Family Residence.

NEGATIVE DECLARATIONS: FAIR ARGUMENT TEST

To the extent that a lead agency questions the credibility of a witness in a CEQA proceeding, the agency should identify the “evidence with sufficient particularity to allow the reviewing court to determine whether there were legitimate department issues of credibility.” In the absence of this showing, the lead agency may be precluded from arguing the validity of preferred evidence. Consolidated Irrigation District v. City of Selma (February 8, 2012, F061103) ___ Cal.App.4th ___.

MITIGATION MEASURES: IMPACT FEES

A county’s mitigation fee program required the preparation of an EIR prior to its adoption because the evidence in the record did not support a conclusion that payment of the fee presumptively established full mitigation. Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156.

EIRs: RESPONSES TO COMMENTS

A lead agency has a duty to respond to comments which raise significant environmental issues. The failure to do so can result in setting aside the certification of the EIR. Flanders Foundation v. City of Carmel-By-The-Sea (2012) 202 Cal.App.4th 603. See EIR Fails for Insufficient Response to One Comment Letter.

EIRs: ECONOMIC INFEASIBILITY

An EIR is not required to contain an economic infeasibility analysis, even when used as the basis to reject an alternative or mitigation measures. The standard for economic feasibility for a public agency is based upon a “reasonably prudent property owner” standard, not necessarily what the lead agency can afford to pay. Flanders Foundation v. City of Carmel-By-The-Sea (2012) 202 Cal.App.4th 603. See EIR Fails for Insufficient Response to One Comment Letter.

EIRs: SECOND TIER DOCUMENTS

A county’s approval of a negative declaration for an oak woodlands program and related impact fee was overturned where the program EIR did not adequately study the potential impacts of the oak woodland management plan and fee program because it did not assess how the payment of a mitigation fee would lessen the impacts of development on the county’s oak woodlands. A tiered EIR was required. Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156.

EIRs: STATEMENT OF OVERRIDING CONSIDERATIONS

It is acceptable practice for lead agencies to structure statements of overriding considerations in the alternative (as compared to drafting them in the cumulative.) This forces the opponents to argue the insufficiency of each ground, and the evidence in the record to support each finding. Flanders Foundation v. City of Carmel-By-The-Sea (2012) 202 Cal.App.4th 603. See EIR Fails for Insufficient Response to One Comment Letter.

ADMINISTRATIVE APPEALS

While CEQA provides for an administrative appeal of the certification/approval of CEQA documents, (Public Resources Code section 21151; CEQA Guidelines sections 15090(b), 15356), a local board of supervisors does not have appellate review rights of a landfill permit granted by a local enforcement agency. No Wetlands Landfill Expansion v. County of Marin (March 20, 2012, A131651) ___Cal.App.4th ___.

CEQA LITIGATION: AUGMENTING THE LITIGATION RECORD

An appellate court reviews a trial court order to augment the record under that traditional appellate substantial evidence test. Consolidated Irrigation District v. City of Selma(February 8, 2012, F061103) ___ Cal.App.4th ___.

CEQA LITIGATION: PUBLIC AGENCIES AS PLAINTIFFS

A water district has sufficient statutory interest to bring a CEQA lawsuit challenging assessment of impacts to groundwater basins. Consolidated Irrigation District v. City of Selma(February 8, 2012, F061103) ___ Cal.App.4th ___.

If you have any questions about these court decisions, contact William Abbott, Diane Kindermann, Elizabeth Strahlstrom , Katherine Hart or Glen Hansen. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Local Government Land Use News Update

Abbott & Kindermann — Sun, 01 Apr 2012 13:00:00 -0800

By William W. Abbott

Fraternity defeats City injunction request by reorganizing as a religious order.

In a surprising turn of events for City officials, the Delta Tau Chi fraternity, the single largest source of noise complaints in the City of Fresno, reorganized itself as a religious order last February. This conversion came about as a result of City officials filing a nuisance complaint and seeking a preliminary injunction. The fraternity quickly reorganized itself as a religious brotherhood, albeit one with unconventional practices. At the hearing on the preliminary injunction, the trial court judge, the Honorable Douglas Neidermeyer, expressed sympathy for the City’s concerns. However, the judge declined the City’s preliminary injunction request, ruling that under the federal Religious Land Use and Institutionalized Persons Act, the City was not likely to succeed on the merits. The judge’s order stated: “The law requires this court to have an open mind as to what constitutes bona fide religious practices. As the defendants have demonstrated in their opposition papers, the wilder side of Lutherans and the Amish, while not well known, are nevertheless well documented. This court cannot discriminate in favor of established more popular religions over those that are not.” Trial is set in August while the students are on summer break.

Now we are talking fresh.

I remember “Farms in Berkeley?” as a long time Bay Area advertising tag line. This upcoming June, if the voters of the City of Berkeley have their way, the tag line will take on a whole new meaning. Responding to the national farm-to-table movement, residents have taken the message to heart and have qualified an initiative which will allow residents to actively engage in micro-farming practices on their single family lots. And we are not talking marijuana here. The proposed zoning code amendment would allow active farming in back and front yards, including familiar American barnyard animals such as chickens, pigs and cows, along with exotics common to South American and Southeast Asian cultures. Says the spokesperson for the initiative proponents, from now on in Berkeley, the “f” in the word “fresh” will stand for “front yard”. Opposition includes the corporate pork, chicken, dairy and soybean industries.

Union officials present ultimatum to day care developer: go union or litigate.

Use of CEQA by organized labor as a negotiating tool for obtaining union construction contracts is nothing new, but a local union showed a new twist on the topic when it offered to settle a CEQA lawsuit filed over a project approval by the City of Alta Pasadena if toddlers attending the proposed Bright Smiles day care center joined the union’s pre-apprenticeship program. The center operator would collect a nominal mandatory dues payment from each student every month, and transmit the payment to the union. “We view this as a great opportunity to build our membership ranks and to educate our youth on the advantages of joining a union. Within a few years of leaving day care, these students will be eligible for our apprentice program.” Bright Smiles representatives had no comment.

Update to Email Subscriptions for Abbott & Kindermann, LLP Land Use Law Blog

Abbott & Kindermann — Fri, 23 Mar 2012 12:05:27 -0800

If you would like to continue to receive email notifications regarding the Land Use Blog please follow the directions in the recent email asking you to “Please Re-Confirm Your Subscription to the Abbott & Kindermann Land Use Law Blog."

Compliance with Trial Court Writ Renders Moot an Appeal on the Merits

Abbott & Kindermann — Mon, 12 Mar 2012 13:09:25 -0800

By William W. Abbott

No one ever said planning was easy. In 2002, the City of Redondo Beach approved a coastal zone ordinance for the significant revitalization and intensification for its harbor area, a plan proposal known as “Heart of the City”. Residents opposed to the proposal, qualified a referendum and the city council repealed the coastal ordinance and reinstated the prior harbor plan. From 2005 to 2008, the council adopted updated planning documents for this area, however, the amendments were subject to review and approval by the Coastal Commission pursuant to the Coastal Act. Concurrently, the voters were circulating an initiative measure which would have required voter approval for major land use changes. This measure was eventually placed on the ballot and approved by the voters in November 2008. The city had submitted its harbor area coastal planning documents to the Commission in May 2008, and Commission, after review, indicated that the city documents, subject to conforming amendments identified by the Commission, could be found to conform to the Coastal Act and certified. In 2010, the city adopted the conforming amendments, determined that only certain elements were subject to voter approval, and committed to an election at a future unspecified date. Building a Better Redondo Beach, Inc. (“BBR”) filed suit to compel the city to place the full measure on the ballot for voter approval. After a trial, the court order the matter be placed on the ballot. Following entry of judgment, the city promptly filed a notice of appeal, but then the city council took action to order the Planning Department onto the ballot, where it was approved by the voters three months later. Following entry of judgment, BBR moved for an award of attorneys’ fees as permitted by Code of Civil Procedure section 1021.5. The court awarded BBR $313,000 in attorneys’ fees. The city appealed the award.

Following the election, BBR moved to have the appeal dismissed which the appellate court rejected in an unsigned order. When the case finally reached the appellate court for disposition, the court on its own determined that the appeal on the merits had been rendered moot, as there was no effective relief to be granted by the court, and that the factual questions were sufficiently unique that there was no continuing benefit to other potentially interested parties to be had by addressing the merits. The court then turned to the appeal of the attorneys' fees, and as to those issues, the appellate court affirmed the long standing rule that appellate courts largely defer to the trial courts in determining the reasonableness of the hours and the rates to be charged, applying an abuse-of-discretion standard of review. Concluding that the trial court was not “clearly wrong”, the appellate court affirmed the judgment on attorneys' fees. Building a Better Redondo Beach, Inc. v. City of Redondo Beach (February 22, 2012, B226499)___ Cal.App.4th ___.

The Ninety Day Period to Challenge a Land Use Approval is Not Extended by More General Rules Governing Administrative Mandamus

Abbott & Kindermann — Thu, 08 Mar 2012 08:41:50 -0800

By William W. Abbott

The adjective “short” best describes California’s land use and CEQA statutes of limitation. From CEQA’s 30/35 day limitation periods, to the 90 day limits for the planning and zoning matters (Government Code section 65009), to the Subdivision Map Act (Government Code section 66499.37), time waits for no litigant. The most recent case addressing the Planning and Zoning law wrestles with the interface of the ninety day statute in Government Code section 65009, with the time line found in Code of Civil Procedure section 1094.6. These later timelines call for an extension of time periods in circumstances in which the petitioner has requested the agency to prepare the administrative record, in which case, the statute extends to 30 days from the delivery of the record. (Section 1094.6(d))

Okasaki challenged a variance granted to a neighbor by the City of Elk Grove. Roughly one week after the City’s decision, Okasaki requested that the City prepare the administrative record. Eventually, ninety days passed without the City preparing the record and without Okasaki having filed suit. Okasaki eventually filed suit soon after the 90 day period passed. The City successfully demurred on the basis of Government Code section 65009. The court of appeal affirmed. Okasaki argued the timeline for filing the writ was extended by the City’s failure to deliver the record. Not so, according to the appellate court. Rather, in reconciling these two provisions, the appellate court noted that 65009 was the more specific section and therefore prevailed over the terms of the broader provisions found in Code of Civil Procedure section 1094.6. Okasaki v. City of Elk Grove (February 24, 2012, C066203) ___ Cal.App.4th ___.

William W. Abbott is an attorney at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

Applying CEQA's Unusual Circumstances Exception to an Otherwise Exempt Activity Results in an EIR for a Single Family Residence

Abbott & Kindermann — Tue, 06 Mar 2012 09:37:53 -0800

By William W. Abbott

Property owners in Berkeley applied for use permits to demolish an existing home on a 29,714 square foot lot and to construct a 6,478 square foot home along with an attached 3,394 square foot, 10 car garage. The lot is a hillside lot with an approximately 50% grade. Based upon CEQA exemptions for infill and for construction of new small structures, the Board of Zoning Adjustment approved the permits. The proposed construction was supported by neighbors, but other interested parties appealed the approvals to the city council. A geotechnical engineer, Karp, submitted a letter indicating that he had reviewed the building plans, and that he was familiar with the site based upon his work on other building sites in Berkeley. The letter reflected his belief that additional benching would be required, that this was not reflected on the plans, and that the site potentially had some exposure to seismic risk. Karp also indicated that additional vegetation removal was required that was not otherwise reflected on the plans. Karp concluded by indicating his opinion that the project would likely have significant impacts during construction and operationally due to seismic risk. Two engineers submitted letters on behalf of the applicants' (at least one was a geotechnical engineer) submitted responses to Karp’s comments, which argued in part that Karp misread the plans, and that the project was otherwise appropriate for the site. The council was presented with conflicting evidence as to relative size of the proposed structure to other homes in Berkeley. The city council denied the appeal, and the opponents filed suit. The trial court ruled for the city and applicant, and the neighbors appealed.

The key issue on appeal was whether or not the city appropriately applied a CEQA exemption in light of all of the evidence. The appellate court indicated that judicial review requires a two-step inquiry. First, the court determines if there are unusual circumstances. As applied here, the appellate court found that the evidence was that the construction was unusual based upon size. The evidence most favorable to the city was that less than .4% of existing homes in the city were larger (although the record included less favorable evidence as well). The city argued that the relevant consideration in determining unusual circumstances was the vicinity of the proposed construction, and from this perspective, the proposed size was not unusual. Rejecting this approach, the appellate court directed that the proper point of focus was the broader category of similar structures for which the exemption was intended, not just those in the vicinity. Once this test is satisfied, the inquiry shifts to whether “there is a reasonable possibility that the proposed construction will have a significant effect on the environment due to the unusual circumstances of its size.” The appellate court found that the opponents had made the requisite showing of a fair argument through the Karp letter. The fact that there was evidence in favor of the city’s decision was not conclusive under the fair argument test. Accordingly, the appellate court determined that an EIR was required.

Comment: Don’t get sidetracked by the issue of whether or not a property owner has an inalienable right to build a ten car garage or a 7,000 square foot house. What is important about this decision is that it highlights, in dramatic detail, the inherent barrier that CEQA poses to infill and the revitalization of our existing urban areas. CEQA prioritizes the status quo over change. If we are truly serious about creating vibrant urban communities, then we need vigorous CEQA reform. It’s not rocket science to figure out why development steadily marches onward at the suburban fringe: defenders of the status quo file CEQA lawsuits, cows rarely do. Berkeley Hillside Preservation v. City of Berkeley (February 15, 2012, A131254) ___Cal.App.4th ___.

Ninth Circuit Applies Ripeness Requirement To RLUIPA Claims

Abbott & Kindermann — Wed, 29 Feb 2012 08:49:13 -0800

By Glen C. Hansen

In Guatay Christian Fellowship v. County of San Diego (December 23, 2011, 09-56541) ___ F.3d ___, the Ninth Circuit Court of Appeals held that a church’s claim that a land use permit regulation violated the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (“RLUIPA”) was not ripe for judicial review because the church had not completed the requirements for the use permit, and therefore the courts could not determine the particular burden that the church would have to shoulder under the challenged regulation.

In 1986, the Guatay Christian Fellowship (“Church”) moved to a recreation building on the grounds of a trailer park in an unincorporated portion of San Diego County. The park was zoned “rural residential.” While use permits are not required for religious assembly in five of the County’s twelve commercial zones and in one of the County’s residential zones, the building here was not located within such a zone. Soon after the Church moved into the recreation building, a County employee informed the Church secretary that the Church would have to submit a use permit application. The secretary then prepared and attempted to submit an application in person to the County offices, but after speaking with several people at the County offices, ultimately did not turn in the application.

A new owner bought the property shortly after the Church began using the building in 1986. In March 1988, the owner submitted an application to the County for a minor deviation from the approved Use Permit in order to relocate six of the park’s RV trailer sites. The plot plan submitted with this application labeled the building as a recreation hall and did not mention a church. The County Planning Department disapproved the proposed minor deviation plan, in part, because the existing recreation hall was being used as a church. A County employee again informed the Church that “it seemed that the Church would probably require a major use permit.” No Use Permit application was ever completed. Nonetheless, the Church continued to use the property for religious assembly for the next twenty years.

The County issued a Notice of Violation (“NOV”) to the Park via the owner in April 16, 2008, which identified numerous violations, including the recreation building being “illegally converted for use as a church.” The NOV required that the Church stop using the building for religious assembly. The County separately informed the Church that because the property was not zoned for religious assembly and no permit had been obtained to allow such use, the continued operation of the Church for that purpose was illegal. The Church ceased all religious assembly on the property and brought an action in U.S. District Court, alleging claims that the County enforced a land use regulation in violation of the Church’s constitutional and statutory rights under 42 U.S.C. § 1983 and RLUIPA. The District Court granted summary judgment, holding that the Church’s claims were not ripe for review. The Church appealed. The Ninth Circuit affirmed.

The Court first disposed of the Church’s argument that the principles of equitable estoppel should spare the Church from completing the use permit application process. The Church failed to satisfy several elements of estoppel under California state law. The County had never expressly stated that the Church’s use was permitted, and the Church could not rely on lack of County enforcement to support its estoppel argument.

The Court then held that the Church’s claim was not ripe for judicial review. Following the lead of other Circuits and district courts within the Ninth Circuit, the Court applied the ripeness requirement from the takings case of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985) into the RLUIPA context. In Williamson County, the Supreme Court held that “[a] claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” The Ninth Circuit applied that ripeness rule to RLUIPA claims because, in land use contexts, the final decision requirement (1) aids in developing a full record; (2) is the sole means by which a court can know precisely how the regulation at issue would finally be applied to the property; (3) might provide the relief the landowner seeks without requiring the courts to engage in unnecessary constitutional analysis; and (4) accords with principles of federalism because, by encouraging resolution of land use disputes at the local level, it evinces the judiciary’s appreciation that land use disputes are uniquely matters of local concern. Here, the Court was unable to determine if the Church has suffered a “substantial burden” under RLUIPA until the Church had submitted at least one use permit application to the County. The Church’s failure to complete even one full use permit application left the Court unable to discern whether there was a true case or controversy, and any resulting injury.

The Church argued that the costs of complying with the County’s use permit requirements (a) is a “substantial burden” under RLUIPA because such costs are “unreasonable and unattainable” for a non-profit organization in its position, and (b) implies that the County has deliberately imposed these requirements to quash the Church’s religious exercise. The Court did not decide that issue, and left open the possible argument that financial obligations alone might constitute a substantial burden for the purposes of RLUIPA. The problem here was that the record did not contain a finalized account of the “particular burden” that the Church must shoulder—what the Church will actually have to pay or do to comply with the County’s process and secure a permit. The Court stated: “Because the Church did not even complete the requirements for the County’s review of a single application, there was no way to know whether the Church will receive the permit it seeks. If the Church completed the application process, including the attendant environmental tests, and the County denies the Church’s request for a Use Permit, the Church may re-file its claims.”

The Ninth Circuit therefore left open for another day the question of whether the financial cost of complying with a land use permit regulation was so unreasonable or unattainable for a religious institution that such cost could constitute a “substantial burden” on the institution in violation of RLUIPA.

Glen C. Hansen is an attorney at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

EIR Fails For Insufficient Response To One Comment Letter

Abbott & Kindermann — Wed, 15 Feb 2012 08:37:37 -0800

By William W. Abbott

Flanders v. City of Carmel-By-The-Sea (January 4, 2012, H035818) ___Cal.App.4th ___

The most recent CEQA appellate decision brings to mind the well quoted line from Shakespeare: “my kingdom for a horse” to describe a trial court and appellate court ruling concluding that the lead agency’s failure to respond to one comment on a DEIR was a basis for invalidating the EIR certification. The Bard remains alive writing CEQA tragedies as apparently there is no shortage of material to choose from.

Unfortunately, the facts are neither dramatic nor terribly unique. Having already prepared one EIR previously set aside by a court, the City of Carmel-by-the-Sea undertook a new EIR for the purposes of evaluating the impacts of the City disposing, by sale or lease, of a historic mansion. In 1971 and 1972, the City acquired the Flanders Mansion and surrounding preserve property. Constructed in 1924, the mansion was a “two-story Tudor Revival English Cottage,” designed by a prominent architect, Henry Higby Gutterson. The property had been used for various purposes: residential, gallery and office space, but had been vacant since 2003. Facing ongoing ownership of a property with significant deferred maintenance, the City proceeded with an EIR to deal with disposition options. Pursuant to the EIR, the City’s primary objective was to divest itself of the mansion, with secondary objectives of (1) preserve the mansion as a historical resource; (2) put the mansion to productive use; (3) provide that ongoing use of the mansion would not impact the surrounding neighborhood; (4) protect the public’s enjoyment of surrounding preserve; (5) protect the environmental resources and (6) provide the public as many park benefits as are practical. The DEIR included four alternatives: no project; residential lease; public use lease; sale with conservation easements and mitigations. The DEIR concluded that all the project alternatives had fewer environmental impacts than the project as proposed, but only the sale alternative would meet the basic objective of divestment. The administrative record, although not the EIR, included an economic feasibility analyis of the various options. One of the letters on the DEIR commented on the feasibility analysis, the Surplus Lands Act, and the alternative of selling the home on a smaller parcel. The FEIR responded to the first two, but not to the third comment in this particular letter. In May 2009, the City adopted various resolutions certifying the EIR, adopting the MMRP, adopting a statement of overriding considerations, and approving the project (sale with conservation easements and mitigation measures.) Following the CEQA challenge, the trial court held that the EIR failed to consider the impacts of selling the property in compliance with the Surplus Lands Act as well as failure to respond to one comment. The City appealed and the Flanders Foundation, the petitioner, filed a cross appeal.

The appellate court ruled for the City on all issues save one. First, the court concluded that while the Surplus Lands Act applied to the sale, the evidence was that the development of an affordable project was unlikely, therefore there was no requirement to study this potential scenario in the EIR. The appellate court also concluded that there was no obligation for the lead agency to include the economic feasibility in the analysis, and in a detailed critique, that the evidence contained within the analysis constituted substantial evidence. Notably, the court held that analytical framework in the study of what a reasonable prudent property owner would do, as compared to what the City could afford to undertake, was appropriate. The appellate court also rejected the Foundation’s challenge to the statement of overriding considerations, after determining that there were multiple independent grounds stated in support of the override (and that the opponents failed to demonstrate a lack of substantial basis for each one.) The appellate court did concur with the trial court that the City’s non response to the question regarding the viability of mitigation to park impacts through the sale of a smaller parcel (along with the home) warranted a response, and that the “City’s certification of the FEIR was therefore invalid.”

William W. Abbott is an attorney at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.