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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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October 27, 2012

Water Supply Agreement for Casino Fails CEQA and LAFCO Tests

In a case packed with hot-button issues -- CEQA exemptions, water supply impacts, climate change, LAFCO regulation of land uses, and preemption of state law on tribal lands -- a court of appeal has ruled that the El Dorado Irrigation District erred in approving an agreement to supply water to a tribal casino. Background. In 1987, the irrigation district agreed to supp

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October 25, 2012

Court Overturns Biological Opinion That Relied On Unenforceable Conservation Measures

The Ninth Circuit has overturned a Biological Opinion issued by the U.S.

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October 25, 2012

Under CEQA Non-Prejudicial Errors Do Not Invalidate an EIR.

The County of Siskiyou certified an Environmental Impact Report for a project to expand an existing manufacturing facility to accommodate a cogeneration power plant housed on one acre of a 300-acre site. Environmental groups claimed the EIR violated CEQA by failing to include adequate project alternatives and failing to fully disclose, analyze, and mitigate the project's air quality, noise,

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October 23, 2012

CEQA Review Not Required for Ballot Measure Requiring Competitive Bidding for City's Solid Waste Contracts

Measures put on the ballot by a city council are not automatically exempt from CEQA even though they must be approved or disapproved by the voters. As shown in a recent appellate court decision, however, CEQA review is not required for a ballot measure that does not commit the city to a "project" as that term is defined by CEQA.

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October 18, 2012

Can a Premature Notice of Exemption Trigger CEQA's Short Limitations Period?

CEQA provides an extraordinarily brief period for bringing suit if a public agency files the proper notice with the county clerk – 30 days for project approvals based on a negative declaration or an EIR, and 35 days for projects that are exempt. If the agency fails to file a notice, a challenger has 180 days from project approval to sue.

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October 16, 2012

Ninth Circuit Dismisses Federal Nuisance Claim Based on Global Warming

The City of Kivalina sits on the tip of a six-mile barrier reef on the northwest coast of Alaska, about 70 miles north of the Arctic Circle. For decades, the city has experienced serious erosion problems from waves and sea storms. In recent years, the problems have gotten worse, threatening to destroy city buildings and infrastructure and even the city's very existence. Seeking r

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October 16, 2012

No Exception to the Exemption -- Installation of Small Wireless Telecom Equipment on Existing Utility Poles Throughout City is Exempt from CEQA

After obtaining the necessary permit, T-Mobile installed wireless equipment on an existing utility pole in a residential neighborhood in San Francisco. The installation was part of a larger project to install similar equipment on existing utility poles scattered throughout the city. Residents living nearby sought to have the city's decision to issue the permit overturned, claiming that

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October 11, 2012

Ninth Circuit Emphasizes Deference to Federal Agencies under NEPA

In two recent cases involving challenges to U.S. Forest Service projects under the National Environmental Policy Act, the Ninth Circuit emphasized that courts must accord substantial deference to the environmental analysis conducted by federal agencies. Earth Island Institute v. U.S. Forest Service (9th Cir. Sept. 20, 2012), and Native Ecosystems Council v.

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September 20, 2012

City Suing School District Can Recover Attorneys’ Fees, But Loses Most CEQA Claims

Decisions by school districts and colleges to build new schools or expand existing ones frequently lead to CEQA challenges from local cities. In the most recent of these conflicts to reach the court of appeal, the City of Maywood won confirmation that it was eligible to recover attorneys' fees from a school district, but saw most of its CEQA claims rejected.

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September 10, 2012

Annual Operating Plans for Dam Operation Do Not Require Environmental Reviews

The U.S. Bureau of Reclamation is required by federal law to prepare Annual Operating Plans for the Glen Canyon Dam on the Colorado River in northern Arizona. But, the Ninth Circuit ruled, it is not required to conduct an environmental review each time is prepares such a Plan. Grand Canyon Trust v.

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September 10, 2012

Court Upholds "Tributary Rule" But Leaves Open the Possibility of a Future Challenge

Background – Basins Plans, Beneficial Uses & the "Tributary Rule" The California Regional Water Quality Control Boards establish water quality standards under the Clean Water Act through the adoption of Basin Plans that identify the "beneficial uses" of the water bodies with their respective jurisdictions. The problem is that it is not possible for the Regional Water Boards to

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September 5, 2012

Ninth Circuit Upholds Fish & Wildlife Service Regulations Against Environmentalists' Challenge

The Chukchi Sea off the North Slope of Alaska is a promising place for oil and gas development.

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August 30, 2012

Can a Developer Unilaterally Impose an Arbitration Clause on a Condo Homeowners Association?

The answer is yes, as long as the arbitration clause is not unreasonable, according to the California Supreme Court in Pinnacle Museum Tower Association v.

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August 10, 2012

Decision on use of Future CEQA Baseline to be Reviewed by the Supreme Court

The California Supreme Court has decided to review the court of appeal decision in the Los Angeles Metro Line EIR case, the widely publicized decision in which the court of appeal upheld an EIR that used projected future conditions as the baseline for g

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August 10, 2012

No Harm, No Foul—Petitioners Claiming Procedural Errors Must Prove Prejudice

It's not enough that litigants challenging planning and zoning actions prove that the city or county committed a procedural error. They also have to show the error was prejudicial, that it led to substantial injury, and that if the error had not occurred, a different result would have been likely.