Search Results

The environmental review for a proposed Sacramento housing project that apparently conflicted with planned unit development zoning for the site was inadequate, an appellate court has ruled. Instead of adopting a mitigated negative declaration, the City of Sacramento should have prepared an environmental impact report that addressed the conflict between the project and the PUD's objectives, the court ruled.

In a split decision, the Fourth District Court of Appeal has upheld the Coastal Commission's conditions on two property owners' reconstruction of a seawall in Encinitas after it was destroyed in a storm, including limiting the new seawall's permit to a 20-year term.

In a case that would appear on its face to conflict with a different appellate ruling filed just two weeks ago, the Sixth District Court of Appeal has ruled that a groundwater pump charge is a property-related charge subject to Proposition 218.

The First District Court of Appeal has argued that Humbolt County did not create a taking of property by requiring the owners of a mobile home underneath an airport flight path to provide an overflight easement in exchange for a permit to build a carport and porch that had been illegally built by the previous owners of the property.

The California Supreme Court has agreed to review an appellate ruling that Priceline, Expedia, Travelocity and similar "online travel companies" (OTCs) did not have to pay San Diego hotel tax on income they derived using a "merchant model" approach to marketing local hotel rooms. The Second District ruled that if an OTC contracts with a hotel for a block of rooms at a fixed wholesale rate, and then retails them to guests at higher prices, then city hotel tax is due only on the wholesale rate, not the difference the OTC receives. The case is In Re Transient Occupancy Tax Cases , also referred to as City of San Diego v. Priceline . It addresses a coordinated group of cases involving several online hotel room brokers. The Second District decision, as amended on rehearing March 27, is at http://www.courts.ca.gov/opinions/documents/B243800A.PDF. The ruling looks back strongly to two prior cases in Santa Monica and Anaheim, as shown in the Second District's online docket at http://bit.ly/UPLUTn. The Supreme Court online docket is at http://bit.ly/1soYBAy. For further details see http://www.cp-dr.com/articles/node-3464. The League of California Cities posted a comment welcoming the review decision, which it had supported in an amicus letter, at http://bit.ly/1o88aV9.

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. The City of Hayward and public interest groups filed suit challenging the sufficiency of the EIR, apparently out of concern for costs that it might bear, such as those for fire and safety, when the university expands. The trial court found the EIR to be deficient and issued an order granting the petition for writ. The university subsequently appealed. With the exception of one issue, the appellate court reversed the trial court in City of Hayward v. Trustees of the California State University, generally upholding the sufficiency of the EIR. The appellate decision provides helpful guidance in the use of a programmatic EIR (for the master plan) and recognizes that despite the somewhat predictable claim of the project opponents that more detail should have been included in the programmatic document, that those details were properly left for the next CEQA tier. The appellate court found that substantial evidence supported the conclusion that the construction of an additional fire station would have less than significant impacts as the anticipated construction of a station in an urban setting was not anticipated to cause impact. Notably, the appellate court concluded that the lead agency was not required to mitigate for the socio-economic impacts such as station staffing. The court wrote, "The need for additional fire protection services is not an environmental impact that CEQA requires a project proponent to mitigate ." With respect to traffic impacts, the master plan EIR was a programmatic EIR, and was not required to analyze neighborhood street impacts as those impacts would be analyzed in conjunction with the next CEQA review and consideration of specific projects, which would be the basis for more detailed evaluation. A mitigation requirement for a transportation demand management program did not result in deferred mitigation, as the mitigation measure included a required performance standard. However, there was a lack of substantial evidence to support the EIR's conclusion that the impacts to area parks would be less than significant and on that basis the matter was remanded back for additional analysis as part of a revised EIR. The Case: City of Hayward v. Trustees of the California State University  (.pdf) (June 28, 2012, A131412) ___Cal.App.4th ___; 2012 Cal.App. LEXIS 761

A city council that is not paying attention during a quasi-judicial land use hearing does not provide due process to a permit applicant, the First District Court of Appeal has ruled.

If the oral argument is any indication, the U.S. Supreme Court is likely to rule against a landowner in Florida who filed a takings lawsuit against an Orlando-area water district – turning what appeared to be an easy victory for property rights advocates into a loss.

Throughout California, transit-oriented development (TOD) is the rage. Along the Gold Line in Los Angeles, a New Urbanist project appears to be rising out of the ground at every stop. High-rise condominium buildings are emerging adjacent to light-rail stops in downtown San Diego and radiating out of downtown San Jose. BART stations in the East Bay - such as the Pleasant Hill BART stop - have become magnets of high-density development in formerly low-density suburbs.

In the latest decision on a long series of legal challenges by Peninsula cities and environment groups to the California High Speed Rail project, the Third District Court of Appeal has upheld the final programmatic environmental impact report for the portion of the project that calls for a route from the Central Valley over the Pacheco Pass into Bay Area suburbia. Perhaps most significantly, the Third District, in Town of Atherton et al. v. California High Speed Rail Authority , C070877, ruled that the programmatic EIR does not need to consider specific proposals for a vertical alignment of the rail route along the Peninsula, even though options for that vertical alignment were identified before the PEIR was finalized. Writing for a unanimous three-judge panel, Justice Elena Duarte relied heavily on the California Supreme Court's ruling in In Re Bay-Delta etc. , 43 Cal.4th 1143 (2008). In that case, the Supreme Court ruled that the Bay-Delta project - a 30-year program to restore the ecological health of the Sacramento-San Joaquin Delta - did not have to identify specific water sources to implement the CALFED program in the programmatic EIR. " Justice Duarte quoted the Supreme Court as saying that requiring more specific detail "undermines the purpose of tiering." She added: "That such project-level analysis occurred before the program EIR was certified did not require in Bay-Delta , and does not require here, inclusion of the analysis in the program EIR." The Third District also rejected claims that a supposedly faulty ridership-revenue analysis and failure to include an alternative through Altamont Pass, rather than Pacheco Pass, invalidated the PEIR. The court also ruled that the plaintiffs' lawsuit was not pre-empted by federal law. On the ridership-revenue issue, the plaintiffs jumped on the well-publicized dispute (see http://lat.ms/1nPIJaV) over ridership methodology between Cambridge Systematics, which prepared the ridership projections, and UC Berkeley's Institute of Transportation Studies, which conducted a peer review of Cambridge's analysis. ITS acknowledged that Cambridge had "followed generally accepted professional standards" but highlighted one methodological concern, which was that Cambridge had used some assumptions typically associated with intra-regional travel, even though High Speed Rail would be an inter-regional service. Cambridge claimed it had changed the methodology to conform to recent observed data from travel surveys. The court found the plaintiffs had not proven their case and that the issue was "a dispute between experts that does not render an EIR inadequate" under CEQA Guidelines Section 15151. The Altamont Pass alternative argument was perhaps the most technical. The plaintiffs argued that the High Speed Rail Authority was required to consider a broader range of alternatives as a result of a previous court ruling in an earlier phase of the litigation because Union Pacific opposed use of its right-of-way for the Pacheco Pass alternative. A group called Altamont Advocates hired a firm called Setec to put an Altamont Pass alternative on the table. The plaintiffs in the Atherton case said the Authority erred in not including Setec's alternative in the PEIR's alternatives analysis. The court's discussion of the Altamont Pass alternative included several highly technical discussions. Among other things, however, the court concluded that the Altamont Pass alternative was similar to other alternatives considered in the PEIR. For example, the Altamont alternative would require replacement or expansion of the currently unused Dumbarton rail bridge across San Francisco Bay. Although the PEIR didn't consider the specific Setec alternative, it did analyze the Dumbarton bridge in its alternatives analysis and concluded that the Pacheco route, which requires no Bay crossing at all, is preferable - because, among other things, of the impact on the Bay and the Don Edwards San Francisco Bay National Wildlife Refuge. The Setec alternative tried to get around this by proposing a variety of mitigation measures, but the court knocked that argument down by saying: "The Setec proposal offered only some possible mitigation measures and it failed to address the concerns about endangered and threatened species and construction through the wetlands of the Refuge. The Authority was not required to consider anew an alternative it had already considered and reasonable rejected." On the pre-emption issue, the High Speed Rail Authority had argued that the Interstate Commerce Commission Termination Act pre-empted state law. The court found that under the "market participation doctrine" - which distinguishes between the state's role as a regulator and the state's role as a market player - High Speed Rail qualifies for an exemption from federal pre-emption. In other words, because the state is building the project, rather than regulating a private railroad building the project, it is subject to CEQA. The Case: Town of Atherton et al v California High Speed Rail Commission , C070877 (filed July 24, 2014). See http://www.courts.ca.gov/opinions/archive/C070877.PDF. For the High-Speed Rail Authority's documents on the Bay Area to Central Valley route via Pacheco Pass see http://www.hsr.ca.gov/Programs/Environmental_Planning/bay_area.html.

The First District Court of Appeal has upheld the EIR supporting a $1.5 billion development plan for Treasure Island, the man-made former World's Fair site at the middle of the San Francisco Bay Bridge. The court rejected the challengers' claim that the EIR for the project should have been prepared as a program-level EIR (i.e., with subsidiary EIRs for individual projects to follow later), but that it instead was improperly prepared as an insufficiently detailed project-level EIR. The court found the substance mattered more than the title, and the actual detail in the document was enough to qualify the EIR as adequate. (Earlier in July the Sixth District similarly shrugged off the program-project distinction and focused on the facts in the San Jose Airport EIR addendum, as discussed separately in this issue. See http://www.cp-dr.com/articles/node-3526.) The project calls for up to 8,000 housing units, plus hotel, office and commercial space. It's important that, as the court noted, the EIR requires the Navy to finish its toxic cleanup work on every land parcel before transferring it to the Treasure Island Development Authority for new use. Plans to build dense housing on Treasure Island, and decisions to house poor people there in recent years, have been criticized based on concerns about incomplete cleanup of hazards left by prior military uses, from mold to asbestos to radioactivity. (See http://bit.ly/1wtS7jP and http://bit.ly/O0JZHG.)

In many situations, the settlement of a lawsuit is a flexible tool to resolve disagreements between parties and allow the participants to move on with their lives. A settlement with a public agency invokes slightly different considerations then a matter resolved exclusively through private parties. As previously noted in Trancas Property Owners Association v. City of Malibu (2006) 138 Cal.App.4th 172 , a public agency cannot rely upon a settlement agreement to bypass a required land use approval step.