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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 5, 2018 CEQA

CEQA YEAR IN REVIEW 2017

A Summary of Published Appellate Opinions Under the California Environmental Quality Act In 2017, the California Supreme Court issued two decisions involving highly controversial questions of first impression. In the closely-watched Cleveland National Forest Foundation case, the court reversed the court of appeal's ruling that the EIR for SANDAG's region

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January 4, 2018

Court Defers to City’s Interpretation of the Building Code

A city's interpretation of the building code is entitled to significant deference in light of the city's expertise regarding land-use determinations. Harrington v. City of Davis, 16 Cal. App. 5th 420 (2017). The City of Davis approved a conditional use permit for a property owner to use a home in a residential neighborhood as professional office space for three therapists.

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January 3, 2018

Department of Interior Declares That Only Deliberate Acts Constitute Take of Migratory Birds

The U.S. Department of the Interior's Office of the Solicitor has issued Memorandum M-37050, dated December 22, 2017, which concludes that the Migratory Bird Treaty Act's prohibition on the "taking" or "killing" of migratory birds applies only to deliberate acts, such as hunting, intended to take a migratory bird.

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January 1, 2018

Voter-Approved Initiative to Limit Large Developments and Chain Stores Exceeded Initiative Power

In a case that illustrates the limits of use of voter-approved initiatives to limit development, the court of appeal invalidated an initiative passed by voters in the City of Malibu that sought to limit large developments and chain stores. The Park at Cross Creek v. City of Malibu, 12 Cal.App.5th 1196 (2017). The initiative at issue, Measure R, consisted of two components.

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December 30, 2017

“Urban Decay” Not Reasonably Foreseeable Consequence of Relocating Courts from Historic Downtown Courthouse

Citing the likelihood of repurposing Placerville's historic downtown courthouse and evidence nearby businesses were not dependent on it, the First District Court of Appeal held that "urban decay" was not a reasonably foreseeable consequence of moving judicial activities from downtown to a new building in the outskirts of the city. Placerville Historic Preservation League v.

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December 29, 2017

Categorical Exemptions for Telegraph Hill Residential Project Upheld

In Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261, the First District Court of Appeal rejected a series of CEQA challenges to San Francisco's approval of a conditional use permit for the renovation of a historic cottage and the construction of a three-unit residential building.

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December 29, 2017

Court Upholds Refinery EIR’s 2007 Baseline and Reliance on Cap-And-Trade for Climate Change Analysis

In a precedent-setting decision, the Fifth District Court of Appeal has upheld two key aspects of the 2014 environmental impact report for a refinery expansion project. Association of Irritated Residents v. Kern County Board of Supervisors No. F073892 (5th Dist., Nov. 21, 2017).

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December 26, 2017

Certified Regulatory Programs Must Comply with CEQA's Policies and Substantive Standards

A certified regulatory program, which is exempt from some of CEQA's requirements, must still comply with CEQA's core policies and standards, which include considering feasible alternatives and cumulative impacts and recirculating environmental review documents in certain circumstances, the court of appeal held in Pesticide Action Network North America v.

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December 26, 2017

Court Rejects Claim That Clinic Protests Might Cause Significant Environmental Impacts

A court of appeal has ruled that opponents of a new Planned Parenthood clinic did not establish a fair argument that anti-clinic protests might cause significant environmental effects. Therefore, the City of South San Francisco did not err in finding the clinic project exempt from CEQA. Respect Life South San Francisco v. City of South San Francisco, 15 Cal. App.

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December 23, 2017

Petitioner’s Failure to Comply With Discovery Regarding its Standing to Sue Results in Dismissal of CEQA Case

A CEQA case challenging the City of Wildomar's approval of a Wal-Mart retail complex has been dismissed because the petitioner refused to comply with discovery requests regarding its standing to sue. Creed-21 v. City of Wildomar, 4th Dist. Court of Appeal Case No.E066367 (pub.

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December 21, 2017

Forest Service Properly Analyzed Potential Impacts of Forest Restoration Project on Pine Marten and Fisher Populations

The 9th Circuit Court of Appeals held that the U.S. Forest Service could validly rely on proxy approaches in determining whether a forest restoration project would adversely impact pine marten and fisher populations in the project area.

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November 22, 2017

Charter City Exempt from General Plan Consistency Requirement

A charter city is exempt from the statutory requirement that its specific plans and zoning ordinances be consistent with its general plan absent an express, unequivocal statement of intent in the city charter to adopt the consistency requirement.

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November 22, 2017

Failure to Identify Preferred Alternative Dooms EIR

A draft EIR that studies five very different project alternatives without identifying a preferred alternative violates CEQA by failing to provide the public with a stable project to review, the court of appeal held in

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November 21, 2017

Court May Seek Clarification from Agency Regarding Issue in Pending Litigation

The Sixth District Court of Appeal held that a trial court in a mandamus action had the inherent power to remand to the Board of Supervisors for clarification regarding an ambiguous general plan consistency finding.

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November 7, 2017

Ninth Circuit Court Paves the Way for Regulation of Stormwater Discharges Under RCRA

The Ninth Circuit Court of Appeals recently ruled that the anti-duplication provisions of the Resource Conservation and Recovery Act (RCRA) do not apply in the absence of a stormwater discharge permit issued under the Clean Water Act.