In case you missed the recent legal tremor, be advised that land-use lawyers are looking closely at a new appellate court ruling from Tuolomne County on the application of the California Environmental Quality Act to citizen initiatives. The new ruling is in direct conflict to a ruling from a different appellate district in 2004, possibly setting the stage for a showdown in front of the California Supreme Court.
When deciding whether to award a public litigant its attorneys’ fees against another public entity under Code of Civil Procedure section 1021.5, the trial court may only consider the public litigant’s “pecuniary interests and the pecuniary interests of its constituents” in determining the third requirement of that statute. The court may not consider the nonpecuniary motives of the public litigant in bringing the lawsuit.
California State University East Bay undertook a dual-purpose environmental impact report for its campus master plan and two construction projects, meant to enable the campus to grow from roughly 12,000 to 18,000 students in the next 30 years. The construction projects consisted of a housing complex and a parking structure. The EIR included alternatives at both the master plan and construction project level.
As California seeks to reduce greenhouse gas emissions in the state’s industries in order to implement provisions of California’s Global Warming Solutions Act of 2006 (Assembly Bill 32), entities and trade groups both inside and outside the state have looked to the “dormant” Commerce Clause in the U.S. Constitution as a legal means to challenge those efforts. The dormant clause implies that states cannot take actions that would, implicitly or explicitly, restrict interstate commerce—such as when California legally compels residents to consume less fuel.
In Quail Lakes Owners Assn. v. Kozina, the Court of Appeal for the Third Appellate District affirmed a trial court’s decision to grant a verified petition by a homeowners’ association for an order under Civil Code section 1356. The petition asked to modify the association’s governing laws to reduce a supermajority voting restriction.
In 2006, a developers Y.T. Wong and SMI Construction, Inc. proposed to divide two existing ‘R-1’ zoned parcels totaling 1.89 acres into 11 lots to allow for the development of single-family homes in the community of Fairview in unincorporated Alameda County, bordering the City of Hayward. The county sent out written notices to a number of agencies, neighbors, and other interested parties, including the group that would become the appellants, indicating the county’s intent to utilize the section 15332 (Infill Development) CEQA exemption.
In a case pitting a real estate brokerage against a homeowners association, the trial court sustained demurrers to the HOA’s complaint against real estate brokers who acted as dual agents in the developers’ sale of properties in the development to HOA members.
Citizens for Open Government v. City of Lodi involves the consolidation of three separate actions revolving around the City of Lodi’s approval of a conditional use permit (CUP) for a shopping center to be anchored by a Wal-Mart Supercenter.
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 to users 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 in the district, with industrial users making up a small percentage of the remainder.
In 2004, the El Dorado County Board of Supervisors adopted a general plan. With that plan, the county adopted a programmatic environmental impact report (PEIR). The PEIR 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. The 2004 general plan identified two policies—options A and B—to assist in mitigating the impacts to oak woodland habitat.