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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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December 14, 2012

An Attorney Petitioner in a CEQA Suit Can Be Awarded Attorneys' Fees

In a case of first impression, a court of appeal has held that an attorney can be a named petitioner in a CEQA case, litigate the case on behalf of all of the petitioners, and then, if the litigation succeeds, obtain an award of attorneys' fees from the defendants for her work. Healdsburg Citizens for Sustainable

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December 5, 2012

Supreme Court Rules Temporary Flooding May Give Rise To Takings Claim

In an important constitutional decision, the Supreme Court made clear there is no "blanket" rule prohibiting a takings cause of action for government-induced flooding that is only temporary. The Court therefore reversed the Federal Circuit, which had decided such flooding must be "permanent or inevitably recurring" to give rise to a viable takings claim.

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November 30, 2012

U.C. Santa Cruz Expansion Plan EIR Overturned

In Habitat and Watershed Caretakers v. City of Santa Cruz, the court of appeal set aside the EIR for long-term development of the U.C.

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November 25, 2012

Water Discharge Permit for Dairies Invalidated Under State's Antidegradation Policy

In 2007, after decades of allowing most dairies in the Central Valley Region to operate without a water quality discharge permit, the Central Valley Regional Water Quality Control Board issued a general, region-wide permit regulating wastewater discharges from existing diaries.

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November 15, 2012

90-Day Limitations Period Under Government Code § 65009 Applies to Zoning Administrator Decisions.

Round two of a citizen group's challenge to approval of a WalMart ended with a decisive knock-out by the City of Stockton. The appellate court ruled that the petitioners' planning and zoning law claims were barred by the 90-day statute of limitations in Government Code § 65009, rejecting petitioners' argument that the statute did not apply to decisions of a zoning administrator. The

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November 13, 2012

City Has Time to Make General Plan Consistent with Housing Element Revisions

A court of appeal has confirmed that after a city updates its general plan housing element, the city has additional time to amend other general plan elements to restore the general plan's internal consistency—as long as the city adopts a timeline for making the necessary amendments. Every five years, a city must update its general plan housing element. This, often arduous process requires t

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November 5, 2012

Water Supply Uncertainty Sinks Another EIR

After wading through a detailed discussion relating to biological impacts (see Perkins Coie Update), the court in Preserve Wild Santee v.

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November 2, 2012

Court Rules City Council Can't Skip CEQA By Adopting Voter-Proposed Legislation

Project proponents often ask whether there is a way to shortcut the CEQA timeline or head off litigation. In Tuolumne Jobs & Small Business Alliance v.

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November 1, 2012

California Court Sidesteps Jurisdictional Question Under The Clean Water Act

Since the U.S.

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October 30, 2012

Battle on the Beach—Sunset Beach Has No Right to Vote on Huntington Beach Taxes Before Being Annexed

Faced with the prospect of having to pay special property taxes after annexation by Huntington Beach, residents of unincorporated Sunset Beach sued to block annexation, or to require a vote by the Sunset Beach electorate on whether they should have to pay the taxes after annexation. In Citizens Association of Sunset Beach v.

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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.