Land Use and CEQA Litigation Update

Land Use and CEQA Litigation Update Rick W. Jarvis Jarvis, Fay, Doporto & Gibson, LLP League of California Cities Annual Conference September 2014 Thu...
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Land Use and CEQA Litigation Update Rick W. Jarvis Jarvis, Fay, Doporto & Gibson, LLP League of California Cities Annual Conference September 2014 Thursday, September 4, 2014 General Session 1:00 – 2:15 pm

American Tower Corp. v. City of San Diego (9th Cir. Aug. 14, 2014) __F.3d__ Telecommunications company did not have fundamental vested property right under Goat Hill Tavern to maintain existing cell phone towers that were constructed under prior conditional use permit that required them to be removed after 10 years. Company did not make prima facie showing that city’s denial of CUP renewals for their cell phone towers effectively prevented them from filling a significant gap in service where company essentially stonewalled the city’s efforts to reduce the aesthetic impacts. A development application is not automatically approved under the Permit Streamlining Act until there has been “public notice required by law,” which must include not only notice required by statute, but also notice to neighbors required under the due process clause of the California Constitution, as interpreted by the Supreme Court in Horn v. County of Ventura.

San Francisco Tomorrow v. City and County of San Francisco (Aug. 14, 2014) __ Cal.App.4th__

The due process requirements of Horn v. County of Ventura only apply to quasi-adjudicative decisions and thus do not apply to a city’s legislative approval of a development agreement for a 20-year plan to redevelop 152 acres with an additional 5,600 new housing units. The administrative record prepared for a CEQA challenge should include transcripts of audio recordings of advisory agency hearings on the project, even though those transcripts were not before the decisionmaking body. Local agency’s determination that a project is consistent with its general plan policies is entitled to deference, even where the policies in question were adopted by the voters via initiative.

Tuolumne Jobs & Small Business Alliance (2014) ___ Cal.4th ____

When a city receives an initiative petition signed by at least 15% of its registered voters, its city council may summarily adopt the measure pursuant to Elections Code section 9214 without complying with CEQA.

San Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th 1012 Telecommunication company’s installation of 726 metal utility boxes on city sidewalks throughout San Francisco was exempt from CEQA under Class 3 exemption, as it satisfied the plain language of “installation of new equipment and facilities in small structures.”

Sierra Club v. County of Fresno (2014) 226 Cal.App.4th 704

Invalidates EIR for a new 942-acre 2,500 unit master plan community for “active adults” (age 55 and older) on the grounds that it found air quality impacts to be significant and unavoidable without correlating those impacts to a specific analysis of how the project would actually impact human health. Finds that the EIR improperly concluded that certain mitigation measures would “substantially” reduce air quality impacts without explaining what this meant, where the mitigation measures were vague, unenforceable, and lacked specific enforcement criteria.

Citizens Opposing a Dangerous Environment v. County of Kern (2014) __ Cal.App.4th ____

Upholds adequacy and feasibility of mitigation measures for proposed wind farm project which required the applicant to obtain FAA “hazard/nohazard” determination in order to mitigate aviationrelated safety impacts.

Town of Atherton v. California High-Speed Rail Authority (2014) ___ Cal.App.4th ____

First-tier program EIR prepared for northern portion of California’s proposed high-speed rail system did not need to analyze site-specific “project level” impacts associated with using elevated tracks for one future segment of the rail line, even though the project-level details in question were known by the time the program EIR was certified.

Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036

Upholds EIR prepared for a comprehensive 20-year plan for the redevelopment of the Treasure Island naval station, rejecting legal challenge contending that the EIR should have been labeled as a “program EIR” rather than a “project EIR.”

Citizens Against Airport Pollution v. City of San Jose (2014) 227 Cal.App.4th 788

Upholds city’s approval of an addendum to a 1997 EIR and 2003 Supplemental EIR for its approval of amendments to its airport master plan, rejecting petitioner’s contentions that the amendments constituted a new project as a matter of law. Recent state law and CEQA Guidelines amendments imposing new requirements for analysis of greenhouse gases are not “new information” triggering the need to supplement and EIR certified before those provisions were adopted.

SPRAWLDEF v. San Francisco Bay Conservation and Development Commission (2014) 226 Cal.App.4th 905

Upholds agency finding that a smaller footprint alternative to a proposed landfill project was not feasible for both economic and noneconomic reasons, based upon substantial evidence before the agency that the alternative would result in a 45 percent reduction in revenue, as well as evidence that the reduced project would reduce capacity below that required by state regulations and would shorten the anticipated lifespan of the landfill by a decade.

Citizens for a Green San Mateo v. San Mateo County Community College District (2014) 226 Cal.App.4th 1572

CEQA challenge to agency’s “clear-cutting” of trees found time-barred when brought more than four years after agency originally adopted mitigated negative declaration and notice of determination for a “facilities master plan,” which informed the public that the plan “would result in the removal and pruning of an unknown number of trees.” Even assuming the prior MND did not adequately notify the public of the clear-cutting, the challenge was nonetheless time-barred because it was filed more than 180 days after a public meeting at which the agency’s board approved the contract for the tree cutting.

Roberson v. City of Rialto (2014) 226 Cal.App.4th 1499

For purposed of res judicata and collateral estoppel, a city resident opposed to a development project was found to be “in privity” with a separate citizen group who had already unsuccessfully challenged the same project, even though the resident was not a member of the citizen group.

Orange Citizens for Parks and Recreation v. Superior Court

Prev. published at 217 Cal.App.4th 1005 Issue Presented: Is the proposed development project of low density housing at issue in this case consistent with the city’s general plan?

California Building Industry Assn. v. City of San Jose Prev. published at 216 Cal.App.4th 1373

Issue Presented: What standard of judicial review applies to a facial constitutional challenge to inclusionary housing ordinances that require set asides or in-lieu fees as a condition of approving a development permit? (See San Remo Hotel L.P. v. City & County of San Francisco (2002) 27 Cal.4th 643, 670.)

Property Reserve v. Superior Court Prev. published at 224 Cal.App.4th 828

Issue Presented: (1) Do the geological testing activities proposed by the Department of Water Resources constitute a taking? (2) Do the environmental testing activities set forth in the February 22, 211, entry order constitute a taking? (3) If so, do the precondemnation entry statutes (Code Civ. Proc., §§ 1245.0101245.060) provide a constitutionally valid eminent domain proceeding for the taking?

Berkeley Hillside Preservation v. City of Berkeley Prev. published at 203 Cal.App.4th 656

Issue Presented: Did the City of Berkeley properly conclude that a proposed project was exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) under the categorical exemptions set forth in California Code of Regulations, title 14, sections 15303, subdivision (a), and 15332, and that the “Significant Effects Exception” set forth in section 15300.2, subdivision (c), of the regulations did not operate to remove the project from the scope of those categorical exemptions?

California Building Industry Assn. v. Bay Area Air Quality Management Dist. Prev. published at 218 Cal.App.4th 1171

Issue Presented: Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?

City of San Diego v. Trustees of the California State University Prev. published at 201 Cal.App.4th 1134

Issue Presented: Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) by stating that it has sought funding from the Legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible?

Center for Biological Diversity v. Department of Fish & Wildlife Prev. published at 224 Cal.App.4th 1105

Issue Presented: (1) Does the California Endangered Species Act (Fish & Game Code, § 2050 et seq.) supersede other California statutes that prohibit the taking of “fully protected” species, and allow such a taking if it is incidental to a mitigation plan under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? (2) Does the California Environmental Quality Act restrict judicial review to the claims presented to an agency before the close of the public comment period on a draft environmental impact report? (3) May an agency deviate from the Act’s existing conditions baseline and instead determine the significance of a project’s greenhouse gas emissions by reference to a hypothetical higher “business as usual” baseline?

Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist. Nonpublished opinion; San Mateo County Superior Court; CIV508656

Issue Presented: When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385), or is the agency’s decision subject to a threshold determination whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)?

Thank you