In increasing numbers, developers throughout the state are suing citizen groups -- and individual citizens -- who oppose their projects. But most of these so-called "SLAPP" lawsuits seem to be failing, and some have even backfired as citizens have countersued against the developers. In increasing numbers, developers throughout the state are suing citizen groups -- and individual citizens -- who oppose their projects. But most of these so-called "SLAPP" lawsuits seem to be failing, and some have even backfired as citizens have countersued against the developers. In late September, the Ninth U.S. Circuit Court of Appeals overturned a $600,000 sanction against two Thousand Oaks lawyers who represented a citizen group against the developer of a large subdivision. The sanction had been imposed by a federal judge in Los Angeles who said the homeowner lawsuit was frivolous. The term "SLAPP" -- for "Strategic Lawsuit Against Public Participation" -- was coined by two University of Denver professors who have examined hundreds of such cases around the country. SLAPP suits have been filed not only by developers, but also by other large companies which have been the subject of public criticism. The suits take all forms, but often they are libel or slander suits against citizen groups and individual citizens. Citizen advocates and their lawyers claim that such lawsuits deliberately seek to stifle public opposition to projects -- and abridge free speech rights in the process. "Any citizen has the right to contact any branch of government to try and encourage some public policy," says sociologist Penelope Canan, one of the University of Denver researchers. (Canan is a visiting professor this year at the University of California, Berkeley.) These citizen advocates argue that, for those hit with the SLAPP suit, the best defense is a good offense -- the filing of a countersuit against the developer or company. In the most controversial example of this so-called "SLAPP-back" technique, three Kern County farmers won $10.5 million in punitive damages and $3 million in compensatory damages in a malicious prosecution case with agribusiness giant J.G. Boswell Co. Previously, Boswell had sued the farmers for libel over a newspaper ad they published during the 1982 campaign over the Peripheral Canal proposal, which split the agricultural community. The case is on appeal. In a similar case, the president of a San Jose-area homeowner group won $260,000 in a malicious prosecution case against a developer who sued him for libel. The controversy revolved around campaign literature in a slow-growth campaign in Saratoga. The developer has appealed the decision, but another trial is about to begin -- one in which the homeowner group itself will allege malicious prosecution. Other prominent California SLAPP suits are pending in Stockton and Squaw Valley. In Stockton, a local alliance of farmers, slow-growthers, and environmentalists is fending off SLAPP-type suits from two developers simultaneously -- one seeking $25 million in damages, the other seeking $12 million. Citizen advocates even turned to the legislature this year in their attempt to fight SLAPP suits. At their request, Senate Judiciary Chair Bill Lockyer introduced SB 2313, which would have made it more difficult for SLAPP suits to be filed. In essence, the bill would have created a "pleading hurdle" in SLAPP suits, requiring plaintiffs in free speech cases to provide "a substantial probability of success" before proceeding with the suit. The bill passed both houses of the legislature easily, but was vetoed by Gov. George Deukmejian, who said citizens already have protection against frivolous lawsuits. The Thousand Oaks case was not a SLAPP suit strictly speaking, but it did involve SLAPP tactics within the context of a lawsuit by homeowners against a developer. The dispute arose after the Lang Ranch Co. and the City of Thousand Oaks reached a legal settlement exempting Lang Ranch's proposed subdivision from city growth-control laws. The Westlake North Property Owners Association then filed an environmental lawsuit. At the request of the Lang Ranch Co., U.S. District Court Judge Dickran Tevrizian Jr. sanctioned both the group and its lawyers, saying the lawsuit was brought in bad faith because the previous suit had been settled. Tevrizian set the sanction at about $700,000. The homeowner group settled the case for $123,000, but the lawyers appealed the sanction for the remaining $600,000. (CP&DR, February 1990.) A three-judge panel of the Ninth Circuit overturned the sanction, saying that the homeowner had put a good-faith argument in front of the court after all. Lang Ranch has asked for a rehearing on the case, arguing, among other things, that the homeowners should have been bound by the legal settlement between the company and the city. But Canan, the University of Denver sociologist, says such legal arguments have not worked in the past. "I can understand that property owners believe they have the green light," she said, "but that doesn't mean all citizens can never have an opinion on a contract that has just been made." The SLAPP suit from Saratoga has already created a thicket of litigation, as well as an important appellate court ruling. The case began a decade ago during the campaign on a slow-growth initiative, Measure A. Three homeowner associations began circulating brochures attacking the Parnas Corp., a development company actively opposing Measure A, and claiming that Parnas had created a conflict-of-interest relationship with a former mayor of Fremont. Parnas sued all three homeowner associations and their individual presidents alleging the brochure libeled the company. The suits were dismissed, but one group and its president countersued, alleging malicious prosecution. Fremont lawyer Steve Bernard, who filed the original libel suit, settled the countersuit with both the West Valley Taxpayers and Environment Association and president Victor Monia for a total of about $100,000. But Parnas continued to resist. Last year, a Santa Clara County jury awarded Monia $260,000 in damages, later reduced by a judge to $210,000 because of the settlement with Bernard. Parnas has appealed the judgment. Meanwhile, a trial in the countersuit brought by the West Valley association is set to begin. That case was separated from the case against Monia by Santa Clara County Judge Thomas Hastings. Hastings said that Parnas had probable cause to bring a libel suit against the taxpayers association because of the brochure, but not against Monia, whose name did not appear anywhere in the brochure. The taxpayers association appealed, and earlier this year received favorable ruling from the Sixth District Court of Appeal in San Jose. The court agreed with the taxpayers association that the lawsuit raised a triable question, that is, whether Parnas really believed that the brochure contained false statements. (West Valley Taxpayers and Environment Association v. Parnas Group, 222 Cal.App.3d 627.) The taxpayers association has argued that Parnas knew the statements were true and therefore the libel suit was filed in bad faith. At least three other prominent SLAPP-type suits are still pending in California. They include the following: Ž In Stockton, a local citizen organization and the Grupe Corp. have been wrangling for several months over whether the citizen group violated an agreement not to oppose a Grupe project. The Land Utilization Alliance, a citizen group, had agreed not to oppose Grupe's proposal to build a 4,000-unit residential project in north Stockton. The project included expensive homes that would face the Calaveras River, and Grupe proposed closing the river's levee to bike riders and other public users. Prior to any litigation, the Land Utilization Alliance agreed not to oppose the project on most issues. But the agreement specifically permitted the organization to challenge Grupe on the public access issue. Grupe agreed to contribute $300,000 to environmental trust funds. Subsequently, the Land Utilization Alliance did sue Grupe over the public access issue. Grupe then countersued for $25 million, saying the agreement had been violated because the Alliance's lawsuit contained challenges under the California Environmental Quality Act. Grupe says the CEQA challenges were prohibited by the agreement; the Alliance claims the CEQA challenges were part of the public access issue. The two sides are reportedly close to an agreement in which no money would change hands. Ž Meanwhile, the Land Utilization Alliance has been hit with a libel and slander suit by Stockton developer John T. Verner. The Alliance has protested Verner's proposal to finance the expansion of a sewer plant in the Manteca area in order to accommodate a development proposal. The lawsuit named three individual Alliance leaders, including one who was also sued by Grupe. Ž In Squaw Valley, Perini Land and Development Co. has sued daredevil skier Rick Sylvester and others who spoke out against Perini's proposed resort project in Squaw Valley. As with Grupe, Perini claims that Sylvester and others violated an agreement not to oppose the project in exchange for other concessions, such as improved water quality. The case is expected to go to trial soon

Reversing the decision of an Orange County Superior Court judge, the Fourth District Court of Appeal has ruled that rezoning residential property in Tustin to accommodate an assisted living facility is a legitimate use of spot zoning.

California's Fifth District Court of Appeal has issued a partial publication order for its June 30 decision upholding the EIR for a wind turbine farm in Kern County's Tehachapi Wind Resource Area. Proponents North Sky River Energy, LLC and Jawbone Wind Energy, LLC proposed to build a wind farm with 116 turbine generators. The plaintiff group opposing their plan, Citizens Opposing a Dangerous Environment (CODE), included the owner of a nearby private airstrip, Kelso Valley Airport. CODE claimed the proposed mitigations in the EIR were insufficient to protect planes and gliders using the airstrip. The court quoted a letter from the airstrip owner's counsel stating that, beyond creating a general risk of collisions, the turbines would block ridges that glider pilots used to pick up enough lift to return to the airport. The main disputed mitigation required the wind farm proponents to obtain a separate building permit for each turbine, and to obtain a "Determination of No Hazard to Air Navigation" from the Federal Aviation Administration (FAA) as a prerequisite for each permit. Alternatives called for canceling the project, moving it, or canceling up to 23 of the turbines. The airstrip owner's counsel argued that a mitigation measure relying on the FAA was ineffective because the FAA had no power to order changes in the turbines, only to approve of them or not, and in the event FAA simply endorsed 102 of the proposed turbines after "auto-screening" the proponent's information rather than substantively investigating the plans. The county argued the FAA was still the relevant expert agency. In the published part of the decision, the appellate court found that as a matter of law the EIR "described a legally feasible mitigation measure." It noted that if the FAA had disapproved of a turbine, the proponents would have had to change its design. Although the FAA couldn't directly order a design changed, it could declare a structure hazardous, creating an obligation for the county to stop construction. Unpublished portions of the decision found the County had the right to choose not to respond to comments submitted more than a month after the comment period closed; that substantial evidence supported the Kern County Supervisors' choice of a mitigation measure; and that the Supervisors did not need to accept either the environmentally best alternative offered or the one the airport sought. The case is CODE v. County of Kern . The online docket noting the partial publication order is at http://bit.ly/1lIlJ85. The opinion is at http://www.courts.ca.gov/opinions/documents/F067567.PDF.

The Fourth District Court of Appeal has upheld the City of Newport Beach’s environmental impact report for the Banning Ranch development, rejecting a challenge by a local conservancy which asserted piecemeal environmental review and the adequacy of the impacts of a park the city is building adjacent to Banning Ranch. The court of appeal affirmed the trial court’s judgment and denial of the writ.

United Water Conservation District may charge urban water users higher groundwater pumping fees than agricultural users, the Second District Court of Appeal has ruled. The court concluded that the fees are not property-based and therefore not subject to Proposition 13. In addition, the court concluded that the pumping fees fall under one of Proposition 26's exceptions, saying that the pump fees represent "payor-specific benefits" not subject to Prop. 26's requirements.

Love 'em or hate 'em, those litigators at the Center for Biological Diversity are the best in the business. Seems like they always find a way to win. Take, for example, the Center's recent victory in the Superior Court striking down the Sustainable Communities Strategy adopted by the San Diego Association of Governments . It's an impressive example of the Center's clever legal strategy. If the Center is ultimately successful, it will probably force a significant rejiggering of the San Diego transportation strategy. But SANDAG will probably appeal the case, and it's not at all clear that the cleverness is transferable to any other region in the state. Nevertheless, the case is an object lesson in the use of the California Environmental Quality Act, which in this case overpowered a statutory regime that was silent on the situation. The key to the Center's win in front of San Diego Superior Court Judge Timothy Taylor was figuring out how to take advantage of the fact that SANDAG had pushed the timeline for the SCS out to 2050 - farther down the road than SB 375 requires. It's an excellent lesson in how to win a lawsuit. The Center filed the lawsuit jointly with the Cleveland National Forest Foundation and the Sierra Club. Like other metropolitan planning organizations around the state, SANDAG approved a sustainable communities strategy, or SCS, under SB 375 and tied it to the federally mandate regional transportation plan, or RTP. The state Air Resources Board's target for SANDAG's SCS was 7% by 2020 and 13% by 2035. SANDAG did an environmental impact report showing that would reduce per-capita greenhouse gas emissions by 14% for 2020. However, critics of the plan claim that after 2020, per-capita emissions will actually increase, resulting in a net decrease in per-capita emissions of 9% by 2050. Whether or not that's true, it would appear that SANDAG's strategy was to use 2050 to "wait out" both SB 375 and AB 32. But in court, SANDAG was tripped up by something Gov. Arnold Schwarzenegger did before either of those two laws were passed. All through the debate on both AB 32 and SB 375, Schwarzenegger kept trumpeting the idea that California would reduce greenhouse gas emissions by 80% by 2050. He said it over and over again, and some news reports claimed that this goal was contained in AB 32. But AB 32 sets no greenhouse-gas emissions reduction target for 2050. AB 375 doesn't mention 2050, either. And ARB did not set a 2050 target for regions to meet. Presumably, then, SANDAG thought it was "safe" for 2050. However, the Center for Biological Diversity remembered something everyone else seemed to have forgotten: Executive Order S-03-05 . Schwarzenegger issued Executive Order S-03-05 on June 1, 2005 - the year before AB 32 was passed and three years before he signed SB 375. It prefigured AB 32 almost exactly, stating that "the following greenhouse gas emission reduction targets are hereby established for California: by 2010, reduce GHG emissions to 2000 levels; by 2020, reduce GHG emissions to 1990 levels; by 2050, reduce GHG emissions to 80 percent below 1990 levels." (Italics mine.) Since Executive Order S-03-05 has never been rescinded and no subsequent legislation has ever addressed the 2050 question, Judge Taylor bought the Center's argument that Schwarzenegger's edict about 2050 is still in force. And so SANDAG's clever attempt to push the SCS out to 2050 ran into the Executive Order. In his ruling at the beginning of December, Judge Taylor somewhat amusingly notes that he did not ask for briefings on all the issues that he might have because the court's budget has been cut. But he did hear briefs from the plaintiffs, SANDAG, and the California Attorney Genera's Office, which joined the environmental groups in challenging the SCS. The relevant portions of Judge Taylor's ruling are worth reading: SANDAG argues that the Executive Order does not constitute "plan" for GHG reduction, and no state plan has been adopted to achieve the 2050 goal. The EIR therefore does not find the RTP/SCS's failure to meet the Executive Order's goals to be a significant impact. This position fails to recognize that Executive Order S-3-05 is an official policy of the State of California, established by a gubernatorial order in 2005, and not withdrawn or modified by a subsequent (and predecessor) governor. Quite obviously it was designed to address an environmental objective that is highly relevant under CEQA (climate stabilization). - SANDAG thus cannot simply ignore it. This is particularly true in a setting in which hundreds of thousands of people in the communities served by SANDAG live in low lying areas near the coast, and are thus susceptible to rising sea levels associated with global climate change. The court in Association of Irritated Residents v. State Air Resources Board, 206 Cal. App. 4th 1487, 1492-93 (2012), recognized the importance of the Executive Order in upholding the ARB's Scoping Plan. The court agrees with petitioners that the failure of the EIR to cogently address the inconsistency between the dramatic increase in overall GHG emissions after 2020 contemplated by the RTP/SCS and the statewide policy of reducing same during the same three decades (2020-2050) constitutes a legally defective failure of the EIR to provide the SANDAG decision makers (and thus the public) with adequate information about the environmental impacts of the SCSIRTP. Moreover, as was pointed out in oral argument, having chosen to develop a plan for 15 years beyond that which was required under law, SANDAG was obligated to discuss impacts beyond the 2020 horizon. The ARB's scoping plan adopts the Executive Order, and SANDAG failed to extend the analysis to 2050. Second, SANDAG's response has been to "kick the can down the road" and defer to  "local jurisdictions." - This perverts the regional planning function of SANDAG, ignores the purse string control SANDAG has over TransNet funds, and more importantly conflicts with Govt. Code section 65080(b)(2)(B) quoted above. As the AG argues, it is certainly feasible for SANDAG to agree to fund local climate action plans, yet the EIR does not adopt or even adequately discuss this form of mitigation. And as argued by petitioners in their consolidated reply brief, "encouraging" an optional local plan that "should" incorporate regional policies falls well short of a legally enforceable mitigation commitment with teeth. This is what the CEQA Guidelines require at subsections 15126.4(a)(1)(B), (a)(2) and (c)(5) in a setting in which SANDAG controls the funding for at least some of the projects contemplated by the SCS/RTP. Contrary to SANDAG's assertion , it does have the legal power -- indeed, the obligation - to see to it that TransNet funds are spent in a manner consistent with the law. (Cleveland National Forest Foundation v. SANDAG, San Diego Superior Court Case No. 2011-00101593.) Of course, you can argue the case the other way, as SANDAG did. We're not talking about a law or a policy or a plan. We're talking about an executive order from the governor - essentially a directive to the executive branch. The state could have included the 80%-by-2050 goal in AB 32 but chose not to.  That's a perfectly plausible argument. Except for CEQA. It's CEQA that gives life to the executive order in this case. If there were no CEQA, it would be harder to make the argument that an executive order. You could probably make the argument that the RTP would have to take greenhouse gas emissions into account because it involves state transportation funds. But CEQA is the trump card: The CEQA Guidelines are written by the executive branch, and so everybody's got to use CEQA the executive branch wants done. Hence the significance of the executive order. And that's the real lesson of this case: CEQA is an awfully muscular law, able to push environmental issues far beyond where other laws might take them. We'll see whether the appellate court agrees - or whether the Center for Biological Diversity will find similar openings with other SCSs.

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. In Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores, Inc.) (October 30, 2012, F063849) ___Cal.App.4th ___ the facts involve the efforts of Wal-Mart to seek an expansion of an existing store in the City of Sonora. An EIR was prepared by the City, and the Planning Commission recommended approval. Before the matter was considered by the City Council, an initiative was filed, the effect of which would change the land use regulations on the Wal-Mart parcel and dispense with the need for a discretionary permit - thus making it easier for Wal-Mart to obtain approval. Once the city determined that the initiative petition contained the requisite number of signatures, the City Council had two basic choices: enact the measure as its own without modification or place it on the ballot. With the belief that CEQA did not apply, the City Council chose the former option and enacted the initiative measure as its own. Litigation challenging the approval ensued, including a claim that the City Council was required to complete the CEQA process first. The City and Wal-Mart demurred to the petition/complaint, which the trial court sustained, effectively upholding the city's action. The petitioners, Tuolomne Jobs and Small Business Alliance, then filed a writ petition with the Fifth Appellate District, which granted, effectively reinstating the CEQA claim at the trial court. The City and Wal-Mart argued strenuously to the appellate court that the city's actions were ministerial and that the published court decision in Native American Sacred Site & Environmental Protection Association v. City of San Juan Capistrano (2004), 120 Cal.App.4th 961 , had settled the question. In that case , the Fourth District Court of Appeal upheld San Juan Capistrano's decision to enact a zone change initiative, rather than putting it on the ballot, was not subject to CEQA. Based on these arguments, the City of Sonora and Wal-Mart argued that CEQA did not apply to the city council option to enact the measure (as compared to placing the matter before the voters.) The Fifth Appellate District wasn't buying it however, expressly declining to follow Native American Sacred Site and finding the Council was exercising discretion if it enacted the measure as its own. To further cement its disagreement with the Fourth Appellate District, the Tuolumne court then ordered its decision published, potentially setting the stage for resolution by the California Supreme Court. Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores, Inc.) (October 30, 2012, F063849) ___Cal.App.4th ___

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.

Everybody always loves to complain about the California Environmental Quality Act, but despite all the complaining we don’t now much about how effective it really is and what all the CEQA activity adds up to.

California's Fifth Appellate District on July 3 upheld the Westlands Water District's 2012 interim renewal contracts for Central Valley Project water from the U.S. Bureau of Reclamation, finding the changes they represented were exempt from CEQA review sought by environmental groups.

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.

The First District Court of Appeal has upheld Calfire's Nonindustrial Timber Management Plan to permit logging of a 17-acre parcel of land in Mendocino County. The First District also rejected the Center for Biological Diversity's claim that the California Department of Fish & Wildlife can be sued under the California Environmental Quality Act over its role in the approval of the NMTP.