A 30-day limitations period for a challenge to a project that is exempted from CEQA by Government Code section 65457 applies rather than the 35-day limitations period that ordinarily applies after a notice of exemption is filed, according to the court in May v. City of Milpitas, No. H038338 (Sixth District, July 16, 2013).
July 2013
Under the Public Records Act, agencies must allow access to land use databases.
The California Supreme Court has unanimously held that a public agency must allow access to a database of information on land use parcels, rejecting the claim that such information is subject to the “computer software” exemption under the Public Records Act. Sierra Club v. Superior Court, No.S194701 (July 8, 2013).
Section 6254.9(a) of the …
Pre-Approval Disclosures Between Agency and Applicant Waive Privileges In CEQA Cases.
The Fifth Appellate District has issued another in a series of decisions regarding administrative records in CEQA cases. The court held that the “common interest doctrine” does not protect otherwise privileged communications shared by a developer and an agency prior to approval of a project because the two cannot be considered to be advancing any …
County Can’t Use Growth Control Initiative to Bar Previously-Approved Project
It takes an unusual set of circumstances for a California appellate court to find a regulatory taking based on denial of a discretionary land use entitlement. But those circumstances existed in a recent case in which the court not only found a taking, but upheld an award of attorney’s fees to the developer for both …
Coastal Commission May Not Review City Nuisance Abatement Ordinance Passed In Good Faith
The California Coastal Commission lacks jurisdiction to review a city’s adoption of a nuisance ordinance because a municipality’s enactment of an ordinance is not an appealable action. However, the city must demonstrate that it exercised its nuisance abatement power, pursuant to Coastal Act section 30005(b), in good faith, and not as a pretext for avoiding …
Ninth Circuit Clarifies ESA’s “Cumulative Effects” Requirement
The Ninth Circuit Court of Appeals has confirmed two important points under the federal Endangered Species Act:
- A “cumulative effect” under the ESA is different from a “cumulative impact” under NEPA
- No “cumulative effects” analysis is required in informal ESA section 7 consultations.
Conservation Congress v. U.S. Forest Service, No. 12-16452 (9th Cir. 2013). …
County Could Not Make Density Bonus Conditional Upon Compliance With Local Affordable Housing Requirements
A local agency may not condition the availability of a density bonus upon provision of more affordable housing than the minimum required under the State Density Bonus Law. Latinos Unidos Del Valle De Napa Y Solano v. County of Napa, No. A135094 (First District, July 11, 2013).
California’s Density Bonus Law, Government Code § …
Tentative Map Life Extended Again for Two Years
Governor Jerry Brown has signed into law AB 116, which again extends the life of tentative maps by two years. The move recognizes that, despite the rebounding housing market in many cities, many approved maps in California that are set to expire still cannot be processed because of persistent adverse economic conditions.
Unlike the three …
Large Solar Energy Project Survives Williamson Act And CEQA Challenge
The Sixth District Court of Appeal has given a boost to utility-scale solar projects by rejecting the types of Williamson Act and CEQA challenges that are often brought against those projects. Save Panoche Valley v. San Benito County, No. HO37599 (6th Dist. June 25, 2013).
The case concerns the Panoche Valley Solar Farm, a solar photovoltaic facility in San Benito County. The project site has been used primarily for cattle grazing, and most of it was under Williamson Act contracts. The county approved a reduced-scale 399-MW alternative designed to mitigate the environmental impacts of the project as proposed. Not satisfied, three local groups — Save Panoche Valley, the Audubon Society and the Sierra Club — sued to challenge the approvals. The court of appeal rejected each of their claims.
Need For Renewable Energy Supported Cancellation Of Williamson Act Contract In The Public Interest.
The Williamson Act was designed to protect farmers from the economic pressures of encroaching development. In exchange for entering into a contract with the city or county restricting the property to agricultural uses, the landowner is taxed on the agricultural value of the land, rather than the fair market value (which often accounts for development potential). A contract must have an initial term of ten years, and an additional year is automatically added every year unless one of the parties gives notice the contract will not be renewed.
Contracts may also be cancelled at any time, provided either the cancellation is consistent with the purposes of the Williamson Act or the cancellation is in the public interest. The county cancelled the Panoche Valley contracts on public interest grounds. A public interest cancellation requires two separate findings: (1) other public concerns substantially outweigh the objectives of the Williamson Act and (2) there is no proximate noncontracted land that is available and suitable for the proposed use, or development of the contracted land would provide more contiguous patters of urban development.
Citing the Global Warming Solutions Act of 2006 and the Renewables Portfolio Standard requirements enacted by the State Legislature, the court had little trouble concluding the county’s finding that the public interest in renewable energy outweighed the purpose of the Williamson Act was supported by substantial evidence. “Though completion of the solar project by itself will not fulfill the state’s renewable energy goals, each additional renewable energy project helps the state advance toward meeting the requirements of the RPS.”
The court then addressed the county’s finding there was no proximate noncontracted land suitable for the proposed use and again found substantial evidence supporting the county’s determination. It noted that “proximate” land under the Williamson Act means “property close enough to the restricted parcel to serve as a practical alternative for the proposed use.” The court rejected the opponents’ claim that another potential solar project site was a proximate alternative. There was evidence before the county showing the alternative was located approximately 60 miles away, in two different counties, was itself encumbered by Williamson Act contracts, and did not appear to be available in any event.
Continue Reading Large Solar Energy Project Survives Williamson Act And CEQA Challenge
Judicial Review of Environmental Impact Reports: Is There Really A Need for CEQA Reform?
Every few years, with El Nino-like regularity, a wave of interest in CEQA reform sweeps through the business community, accompanied by pleas to the legislature to overhaul the statute. In the end, few substantive changes are made. This year is no exception. (See June 14th post).
Many of the recurring concerns involve the unpredictability of litigation challenging EIRs. As is illustrated by the recent appellate court opinion in North Coast Rivers Alliance v Marin Municipal Water District, that unpredictability arises not from deficiencies in CEQA’s standard for judicial review, but from the failure of some courts to apply it.
The trial court in North Coast Rivers put the EIR a water district had prepared for a desalination project under a microscope, and found its treatment of eleven separate issues “inadequate.” By contrast, in a straightforward application of CEQA’s standard of review — which requires judicial deference to agency findings of fact and policy determinations — the court of appeal reversed the lower court judgment and upheld the EIR.
Among other things, the court of appeal’s meticulous and carefully reasoned opinion addresses:
- AB 32 standards and greenhouse gas significance thresholds
- Significance thresholds for aesthetic impacts
- Mitigation standards and deferred mitigation
- Description of the affected environment
- Use of pilot studies to assess potential impacts
- Treatment of regulatory agency protocols for analyzing impacts
- Analysis of inconsistencies with relevant plans
- Triggers for recirculation of an EIR
A detailed summary of the trial and appellate courts’ contrasting rulings follows.
Continue Reading Judicial Review of Environmental Impact Reports: Is There Really A Need for CEQA Reform?