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California Land Use & Development Law Report

California Land Use & Development Law Report offers insights into legal issues relating to development and use of land and federal, state and local permitting and approval processes.

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January 28, 2021

Regional Water Quality Control Board Unlawfully Delegated Authority to Modify Effluent Limits Under Discharge Permit

A California Court of Appeal invalidated a wastewater discharge permit issued by the Central Valley Regional Water Quality Control Board that the court found impermissibly delegated to the Board's executive officer the authority to modify effluent limits under the permit. Malaga County Water Dist. v.

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January 25, 2021

Ninth Circuit Upholds Environmental Assessment for Highway Project in State Park

Courts reviewing an agency's environmental assessment under NEPA may not speculate about potential significant environmental effects that are not supported by the record — they must defer to the agency's reasonable conclusions when they are supported by evidence in the record, especially on issues within the agency's area of expertise. Bair v.

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January 20, 2021

Brown Act Does Not Require a Finding of Prejudice to Survive a Demurrer

Plaintiffs do not have to allege prejudice caused by a violation of the Brown Act's statutory vote reporting requirement to survive a demurrer, and it is improper to render a case moot by taking judicial notice of only one party's records at the demurrer phase.

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January 14, 2021

Can a Responsible Agency Impose Mitigation Measures Not Considered in the Lead Agency's EIR?

In Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board, No. A157127, 2020 WL 7706795 (Cal. Ct. App. Dec.

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January 7, 2021

Do Conservation Easements Provide Effective Mitigation for Loss of Farmland to Development?

In 2018, the CEQA Guideline which defines the term "mitigation" was amended to add "conservation easements" to the list of measures that can provide "compensatory" mitigation for an environmental impact. Guideline §15370(e).

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January 6, 2021 Takings

Condemnee Need Not Entirely Vacate Premises to Recover Damages After Condemnation is Abandoned

Complete physical dispossession of a property is not a prerequisite to an award of damages after a condemnation proceeding is abandoned—moving from the property in reliance on the order granting the agency possession is sufficient. San Joaquin Regional Transit District v. Superior Court, No. C084755 (3rd Dist., Dec.

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January 5, 2021 Initiatives and Referenda

Fifth Appellate District Agrees that Special Taxes Enacted by Initiative Do Not Require Two-Thirds Supermajority Vote.

Another court of appeal has held that local special taxes adopted by a citizen-sponsored initiative do not require two-thirds voter approval. City of Fresno v. Fresno Building Healthy Communities, No. F080264. (5th Dist., Dec. 17, 2020).

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January 4, 2021 CEQA

CEQA YEAR IN REVIEW 2020

A Summary of Published Appellate Opinions Involving the California Environmental Quality Act

Despite relatively few published opinions this year, there were significant appellate court rulings on a range of topics, including whether projects are properly classified as discretionary or ministerial, the adequacy of mitigation, agencies' document retention obligations, the remedy for an in

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January 4, 2021 Initiatives and Referenda

Special Taxes Enacted by Initiative Do Not Require Two-Thirds Supermajority Vote

A court of appeal ruled that provisions of the California Constitution requiring a supermajority vote for special taxes imposed by local government do not apply to a special tax enacted by local initiative. City and County of San Francisco v. All Persons Interested in the Matter of Proposition C, 51 Cal. App.

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December 30, 2020

Ninth Circuit Clarifies When Uncertainty Requires an Environmental Impact Statement

A federal agency is not required to prepare an environmental impact statement for an action with uncertain environmental effects if the agency reasonably predicts that the effects will not be significant based on available evidence. American Wild Horse Campaign v. Bernhardt, 963 F.3d 1001 (9th Cir.

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December 23, 2020

Coastal Commission Order to Homeowners to Remove Seawall and Pay $1 Million Fine Upheld

The Court of Appeal upheld a Coastal Commission cease-and-desist order requiring demolition of a seawall and payment of a $1 million penalty by homeowners who performed major reconstruction on their coastal home without notifying the Coastal Commission.

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December 18, 2020

Fish and Wildlife Service Adopts New Regulation for Critical Habitat Exclusions

The U.S. Fish & Wildlife Service adopted a final regulation on December 18, 2020, to establish a process and the criteria for excluding areas from critical habitat designations under the Endangered Species Act.

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December 15, 2020

City’s Rent Ordinance Disclosure Requirements Did Not Violate Fourth Amendment

The Ninth Circuit rejected a Fourth Amendment challenge to the City of San José's Apartment Rent Ordinance, ruling that the plaintiff landlords had failed adequately to allege a reasonable expectation of privacy in the business records at issue.

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December 11, 2020

Law Restricting Judicial Review of Thermal Power Plant Licensing Decisions Ruled Unconstitutional

The First District Court of Appeal held that Public Resources Code section 22531 unconstitutionally restricted judicial review of licensing decisions by the Energy Resources Conservation and Development Commission regarding thermal power plants over 50 megawatts.

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December 7, 2020

Environmental Impact Statement Required Due to Conflicting Evidence About Project’s Effects

An agency must prepare an environmental impact statement when it fails to address expert scientific evidence that undermines its conclusions about a project's environmental effects. An agency also must prepare an EIS when there are substantial questions about whether a project will have a cumulatively significant impact. Bark v. U.S. Forest Service, 958 F.3d 865 (9th Cir.