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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 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.

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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.