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Legal news briefs: SANDAG suit status, another administrative record costs case, and more

Martha Bridegam on
Sep 30, 2014

California's Fourth District Court of Appeal heard oral arguments in August on the major suit by conservation groups against the San Diego Association of Governments over its Regional Transportation Plan and Sustainable Communities Strategy. The court took the case under submission August 27 so a decision is expected in the next month or two. For the online docket see http://bit.ly/1uSBoHd. The case concerns the first Sustainable Communities Strategy that was issued under SB 375. The Cleveland National Forest Foundation, the Center for Biological Diversity and others contend that it does not adequately consider and explain public health impacts of projected freeway expansions and that it does not respond adequately to the 2080 greenhouse gas reduction targets set in Executive Order S-3-05. CityLab wrote up the dispute in 2012 at http://www.citylab.com/commute/2012/01/fight-future-san-diego/910/.

Another administrative record case favors city officials' cost recovery
The Fourth District Court of Appeal held San Diego County could recover from petitioners the cost of attorney and paralegal time to prepare an administrative record on a CEQA cause of action.

By the court's account, the petitioners initially elected to prepare the administrative record, but after a disagreement over the record's proper contents they voluntarily dropped their CEQA cause of action; the county then told the court it would prepare the record at the petitioners' expense and they did not object; after the county rushed to prepare and present an 18,000-page record in a few days, the petitioners dismissed their whole case.

The petitioners were former owners of a target shooting range in Chula Vista who alleged that the current owner's environmental remediation plan for the site should not have been approved without an EIR and other additional review.

The court found in a published portion of the case that the petitioners had to pay $59,545 for the attorney and paralegal time as well as $7,093.14 for clerk and staff time and production costs. In unpublished holdings, the court said two of three entities petitioning lacked capacity to sue because they were not active legal entities, and held the court properly rejected evidence of an indemnity agreement submitted late in a reply brief.

The case is The Otay Ranch, L.P., v. County of San Diego, at http://www.courts.ca.gov/opinions/documents/D064809.PDF. It follows a September 15 ruling by the First District Court of Appeal that allowed a lead agency to recover some (but not all) costs of supplementing an administrative record in Coalition for Adequate Review v. City and County of San Francisco (See Katherine Hart's writeup of the San Francisco case for Abbott & Kindermann at http://bit.ly/1uYA2wI.)

Governor's concurrence in federal casino ruling not subject to CEQA
The Third District Court of Appeal found the Governor's concurrence in a federal casino review decision was not subject to CEQA because Governor Jerry Brown was not himself a "public agency" under CEQA definitions. The case is Picayune Rancheria of Chukchansi Indians v. Brown, available at  http://www.courts.ca.gov/opinions/documents/C074506.PDF The Turtle Talk blog on American Indian legal issues has copies of briefs in the matter at http://bit.ly/1ovVPWM.

CEQA held not to cover freight operations approval
The First District Court of Appeal upheld a Marin County trial court decision that CEQA review is not required for a contract to use rail lines. The contract would open the rails of the public North Coast Railroad Authority to use by the private Northwestern Pacific Railroad Company. Two petitioners, the Friends of the Eel River and Californians for Alternatives to Toxics, had sought CEQA review of the project's EIR, but the trial an appellate courts both held CEQA was preempted in the matter by federal law. The appellate decision summarizes extensive administrative and court disputes on various aspects of the rail line contract. The September 29 decision is Friends of the Eel River v. North Coast Railroad Authority, at http://www.courts.ca.gov/opinions/documents/A139222.PDF.

Third District upholds cell phone tower permit

In an unpublished decision September 29, the Third District upheld a Nevada County permit for a cell phone tower over objections that it failed to apply local zoning rules regarding visually important ridgelines. The case is Lockyer v. County of Nevada, at http://www.courts.ca.gov/opinions/nonpub/C075249.PDF.

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