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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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August 7, 2012

EIR Required for Oak Woodland Management Plan

Public agencies generally prefer not to prepare EIRs – at least for their own plans and projects – unless they have to. And CEQA attempts to avoid redundancy by encouraging reliance, to the extent possible, on a previously certified EIR to support the approval of a subsequent action. So, in 2008, when El Dorado County adopted its long-awaited countywide oak woodland management plan, th

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August 6, 2012

ACLU Files Brief in Support of Building Industry Association

It's not every day that the American Civil Liberties Union and the Building Industry Association find themselves on the same side of an appellate case. But it can happen, as shown by an amicus curaie brief the ACLU filed today in support of an attorneys fees award to BIA for its successful challenge to a city ordinance. The case, currently pending in the first appel

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August 4, 2012

Ninth Circuit Upholds Analysis of Narrow Range of Alternatives in EIS

An alternatives analysis under NEPA may be valid even though only two very similar alternatives to the project are considered. In League of Wilderness Defenders-Blue Mountains Biodiversity Project v.

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July 25, 2012

The Ninth Circuit Interprets “Agency Action” under the Endangered Species Act - Again

On July 17, 2012, a three-judge panel of the Ninth Circuit ruled in Natural Resources Defense Council v. Salazar that the U.S. Bureau of Reclamation's renewal of water delivery contracts with senior priority water rights holders was not "agency action" under section 7 of the Endangered Species Act.

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July 20, 2012

CBIA Heads Off Level III Fees

Level II school fees are intended to fund approximately 50% of the cost of school facilities. The other 50% is funded by the state through the Leroy-Greene School Facilities Act of 1998, commonly known as SB-50.

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July 14, 2012

Charter Cities Are Exempt from Prevailing Wage Laws

Laws of charter cities trump state law when it comes to "municipal affairs;" but state law is supreme as to matters of "statewide concern." So is payment of prevailing wage for public works a municipal affair or a matter of statewide concern?

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June 30, 2012

CEQA and EIR Adequacy: The Latest Words on Public Services Impacts and Adaptive Mitigation Programs

Two important, recurring CEQA questions are answered by a recent court of appeal decision in a case involving the EIR for a California State University campus master plan: whether CEQA requires funding of mitigation for a project's effects on public services; and whether an adaptive mitigation program for traffic and parking impacts improperly defers decisions about mitigation.

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June 28, 2012

California Court of Appeal Upholds Statewide Climate Change Scoping Plan

The court of appeal in San Francisco has upheld the Climate Change Scoping Plan adopted by the Air Resources Board in December 2008. In its June 19th decision in Association of Irritated Residents v.

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June 28, 2012

New South Coast Air District Rules Withstand Manufacturer's Second CEQA Challenge

A court of appeal has upheld the South Coast Air Quality Management District's second attempt to adopt a rule imposing strict limits on paint thinners and solvents. The court rejected a manufacturer's claim that CEQA required the District to study alternatives and mitigation measures before adopting the new regulations. W.M. Barr & Co. v.

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June 25, 2012

Island Annexations: Unanswered Questions

Those interested in the ins and outs of LAFCO law reacted excitedly to the news that the Attorney General was poised to issue an opinion on a perplexing question – when is an area of unincorporated land an "island" for purposes of annexation to a city under the Cortese-Knox-Hertzberg Local Government Act? The Attorney General issued the opinion on June 1, and you could almost hear the collective

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June 20, 2012

EIS Must Evaluate Impacts As Soon As It Is "Reasonably Possible" To Do So

In Pacific Rivers Council v.

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June 20, 2012

Plan Bay Area: The Regional Plan for Reducing Greenhouse Gas Emissions - The EIR is Underway

The Metropolitan Transportation Commission, the transportation planning agency for the nine-county San Francisco Bay Area, and the Association of Bay Area Governments have announced that they are going to prepare an Environmental Impact Report to evaluate the agencies' proposed plan to reduce regional greenhouse gas emissions from cars and light duty trucks. On June　11, the agen

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June 15, 2012

Speak Now or Forever Hold Your Peace — Issue Exhaustion Applies to CEQA Exemptions.

The California Supreme Court has issued a landmark decision holding that the exhaustion doctrine – which requires parties to raise their claims at the administrative level before litigating them in court -- applies to challenges to an agency decision that a project is exempt from CEQA. Overturning a 15-year-old precedent, the court ruled that if the decision-making agency holds a h

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June 15, 2012

The Wetlands Debate Intensifies As House Republicans Question Two Upcoming EPA Studies

In a recent post ["When is a Wetland a Wetland -- and How Do We Find Out?"] we described the significant uncertainties in ascertaining the reach of the Clean Water Act over wetlands, ponds, drainage ditches and other small aquatic features only remotely connected

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June 12, 2012

To Consult or Not To Consult – That Is the Question for the Ninth Circuit

The Ninth Circuit is at center stage again in the debate over the interpretation and enforcement of federal environmental laws.