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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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June 26, 2020

Brown Act Violation Did Not Require Nullification of Project Approval Where No Prejudice Was Shown

The City of Lafayette violated the Brown Act by not including a litigation threat discussed in closed session in the agenda packet made publicly available before the meeting, but plaintiffs failed to show any prejudice resulting from the violation. Fowler v. City of Lafayette, 46 Cal. App.

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June 18, 2020

EIR Improperly Deferred Formulation and Implementation of Mitigation Measures for New Oil and Gas Drilling

The Fifth District Court of Appeal found multiple defects in a Kern County EIR for a proposed ordinance streamlining the permitting process for new oil and gas wells. King and Gardiner Farms v.

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June 18, 2020

Suit for Breach of Development Agreement Should Be Treated as a Breach-of-Contract Action, Not an Administrative Law Proceeding

An action for breach of a statutory development agreement should be reviewed as a breach-of-contract case, not as an administrative law proceeding in which the court gives deference to the City's findings.

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June 16, 2020

Judicial Council Shortens Tolling Period for Statutes of Limitations

As we previously reported, on April 6, 2020, the California Judicial Council adopted an emergency rule suspending (or "tolling") the running of statutes of limitations on civil claims

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June 15, 2020 Takings

Reclassification of Land From Urban to Agricultural Did Not Result in Unconstitutional Regulatory Taking

The State of Hawaii Land Use Commission's reversion of 1,060 acres from a conditional urban land use classification to the prior agricultural use classification was not an unconstitutional taking because the landowner could still reap economic benefits from the property, the reclassification did not substantially affect the overall valuation or any potential sales, and the landowner should have

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June 5, 2020

Agency Actions to Implement a Previously-Approved Project Are Not Subsequent Discretionary Approvals Requiring Supplemental Environmental Review

After a public agency approves a project, the agency's actions to implement the project—in this case, applying for and accepting a streambed alteration agreement from the California Department of Fish and Wildlife—are not subsequent discretionary approvals that require supplemental environmental review under CEQA.

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May 29, 2020

How Much Leeway Does a Lead Agency Have to Define an Appropriate Baseline for CEQA Review?

Several months ago, a court of appeal upheld a South Coast air district EIR for an oil refinery modernization project, concluding the district had discretion to use "near-peak" emissions, rather than average emissions, as the baseline for calculating the air pollution expected from the project. Communities for a Better Environment v.

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May 22, 2020

California Courts May Shorten Tolling of Limitations Periods in Land Use Cases Under Emergency Rule

On April 6, 2020, the California Judicial Council adopted Emergency Rule 9, which tolled statutes of limitations on civil causes of action for the duration of the state of emergency declared by Governor Newsom on March 4, 2020, and for 90 days thereafter.

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May 22, 2020

Public Water Running Through a Privately-Owned Pipe is Not Sufficient to Impose Liability on a Public Entity

The County of San Diego could not be held liable for damage caused by leakage from a privately-owned storm drain pipe on private property merely because water from public property drained through it. Ruiz v. County of San Diego, 47 Cal. App. 5th 504 (2020). A storm drain pipe on plaintiffs' property rusted away, causing flooding that damaged their home.

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May 15, 2020

Project Denial Invalidated Where Councilmember’s Actions Crossed the Line Into Advocacy Against the Project

The Court of Appeal held that where a city councilmember's actions evinced bias toward the project, the applicant did not receive a fair hearing and the City Council's denial of a conditional use permit would be set aside.

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May 5, 2020

Misrepresentations Can Bar Agency’s Reliance on CEQA Statute of Limitations

An agency could be equitably estopped from relying on the 35-day statute of limitations applicable to a CEQA Notice of Exemption where the agency had misled the public into expecting the agency would instead circulate a Final EIR for public comment and file a Notice of Determination following project approval. Citizens for a Responsible Caltrans Decision v.

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May 5, 2020

No Coastal Development Permit Required Where Coastal Commission Had Certified City’s Local Coastal Program

The City of San Diego was not required to obtain a coastal development permit for a transitional housing project because the Coastal Commission had certified the City's local coastal program, whose provisions therefore applied in lieu of the Commission's regulations. Citizens for South Bay Coastal Access v. City of San Diego, 45 Cal. App.

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April 29, 2020

Bay Area Construction Now Permitted Under Revised Shelter-in-Place Orders

Bay Area Public Health Officers issued revised shelter-in-place orders on April 29 allowing resumption of all construction projects, outdoor businesses and real estate transaction services, with safety protocols specified in the orders.

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April 29, 2020

Governor Allows Electronic Noticing Under CEQA and Suspends Tribal Consultation Requirements

California Governor Gavin Newsom issued an executive order on April 22 suspending for 60 days (1) the filing, posting, notice, and public access requirements related to certain notices under the California Environmental Quality Act, and providing for electronic posting; and (2) certain aspects of the consultation process with Native American tribes.

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April 27, 2020

Supreme Court Rules Clean Water Act May Regulate Discharges Through Groundwater to Navigable Waters

Does the Clean Water Act apply when an underground discharge mixes with groundwater and then ultimately reaches a river or a bay?