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California Land Use & Development Law Report

Legal Commentary on Planning and Development

Perkins Coie Housing Summit: 30,000 Homes by 2020.

Posted in Real Estate

On Tuesday April 9, Perkins Coie hosted “Housing Summit: 30,000 Homes by 2020,” the Mayor’s housing plan to build more housing and to make San Francisco housing affordable.  The Housing Summit was held at International Hotel Senior Housing Project, an important symbol of the City’s historic housing struggles and a reminder of how affordable housing can be built. The discussion featured speakers from both the public and private sectors: Cindy Wu, President of the San Francisco Planning Commission; Sarah Dennis-Phillips from the Mayor’s Office of Economics & Workforce Development; Arden Hearing from Trumark Urban; and Chris Foley of Polaris Pacific. Allan Low, a partner in the Real Estate and Land Use group, moderated the discussion.

The panel debated the Mayor’s Housing Plan, which includes the following elements:

  •          Ellis Act Reform
  •          Small Building Fund Program
  •          Revitalize and Rebuild Public Housing
  •          Doubling the Downpayment Loan Program
  •          Build More Affordable Housing Faster
  •          Build More Market Rate Units
  •          Make Construction of Housing Easier

All of the panelists agreed that more housing was needed across all income levels: market rate, workforce, below-market, and public housing, and that we needed to “turn the dial,” increasing housing density for all ladders of income.

Perhaps the most important takeaway from the summit was the importance of collaboration between government agencies, private developers, local nonprofits, and community groups to address the City’s housing problem. Developers havethe potential to add tremendous value to small-site acquisition and other public housing projects. Nonprofits could also play an important role in public housing as liaisons between the agencies and the community and residents. Developers could engage with local community groups to understand their concerns and needs and this engagement, in turn, can help streamline the development process.

While the summit did not provide a  silver  bullet to solve the City’s housing problems, it provided the attendees with an understanding of the problems facing the City, the policies and potential reforms that may help alleviate some of the problems, and the variety of tools available for the community at large to address the City’s housing needs. 

EPA and Army Corps of Engineers Release Proposed Rule on the Scope of Waters Covered Under the Clean Water Act

Posted in Environmental Regulation, Wetlands

On March 25, 2014, the U.S. Environmental Protection Agency and the Army Corps of Engineers jointly released a proposed rule defining waters that fall under the jurisdiction of the Clean Water Act as “waters of the United States.”  The wide sweep of the coverage afforded by the proposed rule, if finalized, would represent a significant expansion of federal jurisdiction.  Once the proposed rule is published in the Federal Register, the agencies will accept public comments on the proposed rule for 90 days.  For more information, see our Update prepared by Paul B. Smyth, Marc R. Bruner and Edgar (Ned) B. Washburn.

Court Dismisses NEPA Claims in Transit Project Challenge

Posted in NEPA

The Ninth Circuit has dismissed a NEPA challenge to the approval of the Honolulu Rail Transit Project, rejecting claims that agencies unreasonably restricted the Project’s purpose and need and failed to consider all reasonable alternatives.  HonoluluTraffic.com v. FTA, No. 13-15277 (9th Cir., 2014)

Nearly a decade ago, the City of Honolulu, along with the Federal Transit Administration and the U.S. Department of Transportation, embarked on a project to address Honolulu’s severe traffic congestion. In 2005, the FTA published a notice of intent to prepare an Environmental Impact Statement under NEPA, and an alternatives analysis required by the DOT’s funding program for transit service in Oahu. The City prepared the alternatives analysis and eliminated certain alternatives from consideration through the analysis’ review process. The two federal agencies subsequently approved the EIS.

Plaintiffs, a consortium of interest groups and individuals opposing the project, challenged the agencies’ actions under NEPA and other federal statutes. On appeal, Plaintiffs made two claims under NEPA. First, they argued that the agencies violated NEPA by unreasonably restricting the project’s purpose and need. The court found no basis for this claim: the statement of purpose and need was reasonable because it did not foreclose all alternatives and because it was shaped by federal legislative purposes.It was broad enough to allow the agency to assess various routing options and technologies for a high-capacity, high-speed transit project, and hence was sufficient under NEPA.

Plaintiffs’ other NEPA claim was that the agencies did not consider alternatives that had earlier been ruled out in the alternatives analysis conducted by the City. Plaintiffs contended that the EIS improperly relied on this process to exclude certain alternatives such as the light rail and high-occupancy vehicle lanes from detailed consideration. However, the court held that an agency does not violate NEPA by refusing to discuss alternatives already considered in prior studies conducted at the state level, as long the federal lead agency furnished guidance upon and independently evaluated the state document, and the analysis was conducted with public review and a reasonable opportunity to comment. These conditions were satisfied in this case, and hence the agencies did not violate NEPA by failing to discuss alternatives rejected in the state process.

Highway 101 EIR Felled by Redwoods

Posted in CEQA

Caltrans’s analysis of impacts to redwoods from  realignment of a one-mile stretch of Highway 101 has been rejected.  The court of appeal ruled that the project EIR both failed to identify any significance threshold for impacts to redwoods and impermissibly labeled mitigation measures as project features.  Lotus v. Department of Transportation, No. A137315 (First Dist., Jan. 30, 2014).  

Caltrans proposed to adjust the alignment of Highway 101 to allow industry-standard trucks to use the roadway and to improve its safety.  Excavation, fill and/or new pavement would occur in the structural root zones of approximately 74 redwood trees. The EIR identified extensive measures that had been “incorporated into the project to avoid and minimize impacts as well as to mitigate expected impacts.”  Because it deemed these measures part of the project as proposed, the EIR concluded that the project would cause no significant environmental impacts.

The appellate court found the EIR’s analysis of impacts to the trees’ root zones inadequate for two reasons.  First, although the EIR provided detailed descriptions of the extent and depth of the project’s excavation, fill and pavement in the trees’ root zones, it did not “include any information that enables the reader to evaluate the significance of these impacts,” such as standards for determining whether trees would survive.  In fact, the court found, “the EIR fails to identify any standard of significance, much less to apply one to an analysis of predictable impacts from the project.” 

Second, the court found that the “avoidance, minimization and/or mitigation measures” described in the EIR were not truly part of the project.  Instead, they were mitigation measures, and the EIR was required first to identify impacts without these measures, then to identify, and discuss the efficacy of, the mitigation measures. The court held:  “By compressing the analysis of impacts and mitigation measures into a single issue, the EIR disregards the requirements of CEQA.” The court conceded that the “distinction between elements of a project and measures designed to mitigate impacts of the project may not always be clear,” but then found that the use of special paving material to avoid impacts to root zones clearly was not a mitigation measure while the use of special construction equipment for the same purpose plainly was a mitigation measure. (The opinion did not explain this distinction).   

In addition, the court did not defer to two expert opinions cited in the EIR, both of whom concluded that the project would have no significant impact on the root health of the redwoods, because those opinions failed “to discuss the significance of the environmental impacts apart from the proposed ‘avoidance, minimization and/or mitigation measures’ and thus failed to consider whether other possible mitigation measures would be more effective.” 

The Lotus court’s distinction between impact avoidance measures that may properly be included in a project description and mitigation measures that must be applied later will prove difficult, if not impossible, to apply.  Had the EIR identified a significance threshold for impacts to redwoods, perhaps the court would have viewed the “avoidance, minimization and/or mitigation measures” differently, because the EIR would have provided a context for them. This case highlights the importance of thinking beyond customary, checklist-based significance thresholds, particularly for projects involving impacts to trees.  Although the CEQA Guidelines Appendix G checklist addresses tree ordinances, habitats, “forest land” and “timberland,” courts have been far more focused on impacts to individual trees. A CEQA document that can be seen as giving short shrift to these impacts is a document in potential peril.

Requiring dedication of overflight easement as condition to issuance of building permits does not constitute an unconstitutional exaction

Posted in Exactions and Assessments

 A recent California Court of Appeal decision considered the argument that a county requiring property owners to dedicate an overflight easement as a condition to issuance of a building permit was an unconstitutional exaction. The court concluded that the owners could not establish a taking because they were unable to show that the government simply appropriating the overflight easement, instead of requiring it as a condition of approval for the permit, would have been an unconstitutional taking. Powell v. County of Humboldt, No. A137238 (First Dist., Jan 16, 2014).

In 1993, Humboldt County adopted an Airport Land Use Compatibility Plan for the Arcata-Eureka Airport. In 2004, the Powells purchased property roughly one mile from the airport, located in “Airport Compatibility Zone C” of the Airport Land Use Compatibility Plan. The Plan required that all owners of residential real property located in Zone C dedicate an overflight easement as a condition to issuance of a building permit. The purpose of these easements was to ensure that any improvement was compatible with the safe operation of the airport. 

The Powells filed a petition for a writ of mandate contending that the overflight easement condition, as applied to their building permit application, was an unconstitutional exaction under Nollan v. California Coastal Commission and Dolan v. City of Tigard.  The appellate court concluded that the Nollan/Dolan analysis applied only if the public easement required as a condition of the permit was so onerous that it would have constituted a compensable taking if the property right had simply been appropriated by the government outside the permitting process. This required the Powells to establish, as a threshold matter, that the overflight easement condition completely deprived them of any beneficial use of their property, interfered with their investment-backed expectations, or was a permanent physical occupation of their physical property (a per se physical taking). Unless that test was satisfied, the court reasoned, the government was not demanding that the landowner trade a constitutional right—the right to just compensation for the taking of property—in order to receive a discretionary government benefit.

The court concluded that the Powells failed to provide evidence to meet this threshold requirement. They put forth no evidence that the easement deprived them of the beneficial use of their property or interfered with their investment-backed expectations. The court also found that the overflight easement was not a per se physical taking, reasoning that unless the overflight easement, by its express terms, authorized frequent incursions into the Powell’s private airspace at altitudes causing noise and disturbance to the Powells, it would not amount to a taking under federal or state law.  Because the easement did not expressly permit such overflights — and the Powells’ property rights did not include a right to exclude airplanes from using the navigable airspace above their property in accordance with applicable safety regulations — the court found no basis to conclude that the overflight easement was a per se physical taking.

Challenge To Annexation Dismissed Due To Failure To Comply With Required Procedures

Posted in CEQA, Land Use, Public Agencies

CEQA and other claims challenging a completed annexation were dismissed because they had not been brought in a reverse validation proceeding.  Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (No. F066544, 1/28/14)

The Stanislaus County Local Agency Formation Commission approved annexation of land into the City of Ceres, relying on an EIR the City had prepared and certified.  Protect Agricultural Land (PAL), a citizen’s group, filed suit after the annexation was completed to challenge the decision, alleging that the LAFCO failed to comply with annexation law and with CEQA.  However, PAL filed the suit as a petition for writ of mandate.  While a petition for a writ of mandate may be filed to challenge an annexation-related decision before the annexation is completed, a completed annexation may be challenged only in a “reverse validation” action, or a quo warranto proceeding filed by the Attorney General.

In validation and reverse validation actions, a court validates or invalidates a public agency’s decisions, and the final judgment is binding on all persons who might have an interest in the outcome, whether or not they participated in the case.  Validation actions may be brought by public agencies to validate certain types of decisions; reverse validation actions may be brought by challengers seeking to invalidate those decisions.  The challenger must include specific language in the summons, ensure that the summons is published, and file proof of publication within 60 days of filing the complaint.  If these requirements are not met, the proceeding must be dismissed on the motion of the public agency “unless good cause for such failure is shown.”  Code Civ. Proc. § 863.

Because PAL filed its action as an ordinary mandate case, rather than as a reverse validation action, and did not publish the summons, the trial court dismissed it.  On appeal, PAL  acknowledged that its annexation law claims were subject to reverse validation procedures, but argued that its failure to comply should be excused for good cause because PAL’s attorney had researched the issue but had not discovered the validation procedure rule.  The court found that counsel’s mistake was not excusable.  Longstanding case law had established that completed annexation decisions may be challenged only in reverse validation actions, and PAL’s attorney’s reliance on a single secondary source that did not mention the reverse validation requirement did not constitute adequate research.

The court then noted that PAL’s CEQA claims were simply alleged as an additional basis for invalidating the completed annexation decision.  Because they were part of a challenge to a completed annexation decision, the CEQA claims were also subject to validation procedures, and were also appropriately dismissed for failure to follow those procedures.

Spot Zoning For Senior Housing Project Upheld

Posted in Land Use, Planning and Zoning

“Spot-zoning” refers to the discriminatory zoning of a small parcel that is surrounded by land within a different zone. Some had thought the doctrine only applies where a small parcel is zoned more restrictively than the property surrounding it. But in the recently decided case of Foothill Communities Coalition v. County of Orange, the court of appeal concluded that spot zoning can be found where an isolated  parcel is zoned either more or less restrictively than surrounding property. The court found, however, that the county’s rezoning decision was supported by evidence in the record of its proceedings, and was therefore not unlawful spot zoning.

The county rezoned a parcel, owned by the Roman Catholic Diocese,  for a senior housing project. The petitioner, an association of grassroots community groups and homeowners, challenged the project’s approval and the rezone change, arguing it was impermissible spot zoning. The county responded that because the smaller parcel was zoned less restrictively than the surrounding property, the rezoning did not constitute spot zoning. But the court disagreed, stating that “the creation of an island of property with less restrictive zoning in the middle of properties with more restrictive zoning is spot zoning.”

Nonetheless, the court rejected the argument that the rezoning was impermissible spot zoning. Not all spot zoning is impermissible, and it can be justified, the court said, where a “substantial public need exists” or if it is in the public interest. And here, the court found that the spot zoning was in the public interest based on the state legislature’s encouragement of senior housing development and the county’s own directives to develop senior housing in its general plan and ordinances. As a consequence, the court concluded that the county’s spot zoning was permissible.

The petitioner further argued that the rezoning was inconsistent with the area’s specific plan, but the court examined the evidence supporting the county’s consistency finding and concluded that the finding was supported by substantial evidence.

Finally, the petitioner argued that the project’s objective to provide “faith-based independent and assisted living facilities for seniors” violated the First Amendment’s Establishment Clause. The court rejected this argument, finding that the project’s approval and the zoning change had a secular purpose to provide needed senior housing, and that the zoning change would not have the primary effect of promoting religion nor would it foster any entanglement between government and religion.

CEQA Year In Review 2013

Posted in CEQA

A Summary of Published Appellate Opinions Under CEQA By Steve Kostka, Barbara Schussman, Julie Jones, Marc Bruner & Christopher Tom


The CEQA cases published in 2013 continued to reflect a recognition that CEQA does not require perfection, but rather a reasonable effort to provide useful environmental information — a trend that continued from the prior year.  CEQA continues to be a focal point of judicial attention and this trend seems to be intensifying, with five CEQA cases now pending before the California Supreme Court.  The issues include the applicability of CEQA to a city’s adoption of an ordinance enacting a voter-sponsored initiative; the proper interpretation of the “unusual circumstances” exception to CEQA’s categorical exemptions; the scope, feasibility, and adequacy of mitigation; and whether CEQA is limited to an evaluation of the impacts caused by the project or instead also includes impacts on the project from existing environmental conditions.

CEQA Year in Review can be accessed here, or is available in pdf form here.

Existing Contamination On A Development Site Does Not Necessarily Trigger Preparation Of An EIR

Posted in CEQA, Environmental Regulation

Proposals to redevelop infill sites can often present difficult issues relating to how the potential effects of preexisting contamination should be evaluated under CEQA.  In a recently published opinion, the court in Parker Shattuck Neighbors v Berkeley made it clear that, in the absence of real evidence a significant environmental impact might occur,  the fact that a development site might contain contaminated soil is not, standing alone, enough to trigger the requirement that an EIR be prepared.

The project opponents in Parker Shattuck challenged a mitigated negative declaration the city adopted for a mixed-use development made up of 155 residential units and 20,000 square feet of commercial space.  Soils on the site had been contaminated by petroleum leaking from underground storage tanks, but after 75 tons of contaminated soil had been removed, the Regional Water Quality Control Board issued a closure letter stating that no further corrective action was needed.   The opponents contended an EIR was required , claiming that excavating and disturbing contaminated soil on the site might have a significant adverse effect on construction workers and future project residents.   The court disagreed, and upheld the city’s determinations.

The court first rejected the argument that an EIR was automatically required because the site remained on the “Cortese list” of potentially contaminated sites.  Noting that a site may stay on the Cortese list even after a determination that no further remediation is required, the court held that developing a site on the Cortese list does not invariably involve a significant effect on the environment.

The court also rejected the opponents’ claim that suggestions by their expert that  a vapor-intrusion study was needed required preparation of an EIR.  The expert had asserted that project residents might be at risk that vapors from hydrocarbons remaining in the soil would travel through the soil into the buildings, exposing them to polluted air.   The court found the expert’s opinion insufficient “because a suggestion to investigate further is not evidence, much less substantial evidence, of an adverse impact.”   The court also was not persuaded by the expert’s contention that soil contamination might put construction workers at risk because he did not explain why it would do so, but instead “simply claimed that the level of total petroleum hydrocarbons should lead to further investigation.”

Criminal Penalties for Bird Deaths Caused by Wind Projects

Posted in Endangered Species, Environmental Regulation

In the first criminal case ever prosecuted under the Migratory Bird Treaty Act, the U.S. Fish and Wildlife Service and Department of Justice filed misdemeanor charges against Duke Energy for more than 163 migratory bird deaths, including golden eagles, at its wind power projects near Casper, Wyoming.  On November 22, 2013, the case was resolved by an agreement that requires Duke Energy to pay $1 million in restitution and implement a comprehensive Migratory Bird Compliance Plan to avoid or minimize further bird mortalities at its projects.

For further details on this case, please see our December 2, 2013 Update.