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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.

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.

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.

The Ninth U.S. Circuit Court of Appeals has ruled that The Presidio Trust can move forward with the construction of a 12-building complex commonly referred to as a "lodge" in the vicinity of the Main Parade Ground. In so doing, the court rejected arguments from the Sierra Club and a variety of historic preservation organizations that doing so would violate the Presidio Trust Act. The court also rejected the argument that the Presidio Trust's actions did not meet the consultation requirements contained in Section 110f of the National Historic Preservation Act.

Yesterday's landmark ruling  by the California Supreme Court upholding San Jose's inclusionary housing ordinance was rightly hailed as a huge victory for affordable housing advocates. But the truth is that the ruling shouldn't be viewed as a surprise. It was a very difficult case for the building industry to win - at least the way the industry's lawyers has set the case up.

Despite a budget deficit so large that it triggered the first gubernatorial recall in California history, the administration of Gov. Gray Davis has shown scant interest in stimulating the economy. But with the chaos in Sacramento – and the fact that elected officials have a smaller and smaller role to play in actually shaping the state’s budget – it may be that no California governor can devise an effective economic development strategy.

In light of a similar ruling by the California Supreme Court in a case from San Diego, the First District Court of Appeal has ordered Cal State East Bay to revisit the question of offsite traffic mitigation in the environmental impact report for its long-range master plan. As the Supreme Court did in San Diego, the court ruled that Cal State cannot simply declare mitigations infeasible unless the state legislature appropriates funds specifically for that purpose.