City’s Agreement to Extend Life of Billboards Violated Initiative Measure Prohibiting New Billboards

The Second District Court of Appeal held that the purported amendment of an agreement to extend the period in which billboards were permitted within the City constituted a new agreement and hence violated the terms of a ballot initiative prohibiting new billboards. Citizens for Amending Proposition L v. City of Pomona, No. (2nd Dist., Nov. 9, 2018).

The City of Pomona entered into an agreement with Regency Outdoor Advertising allowing billboards alongside several Pomona freeways, but requiring their removal upon the agreement’s expiration. Thereafter, Proposition L was passed prohibiting construction of new billboards within city limits. The City/Regency agreement expired in June 2014. One month later, the city council adopted an ordinance purporting to amend the agreement by extending it for an additional 12-year term. Plaintiffs sued, contending that the “amendment” was in fact a new agreement allowing new billboards in violation of Proposition L.

Preliminarily, the court rejected the City’s argument that the plaintiffs lacked standing. It noted that both plaintiffs — one of whom was a competitor of Regency — were residents of the City and hence could assert public interest standing in having City laws enforced. The court also disagreed with the City’s claim that Regency was an indispensable party and that the failure to include Regency within the applicable limitations period required dismissal of the suit. The agreement required Regency to pay the City $1 million as consideration for the new agreement. Accordingly, the court reasoned, the interests of the City and Regency were aligned both legally and financially and Regency’s interests were thus adequately protected by the City’s assertion of its own interests in upholding the contract.

On the merits, the court found that the purported amendment of the City/Regency agreement was a nullity because the agreement had already expired at the time the amendment was approved by the city council. As a new agreement, it was subject to the rules, regulations, and official policies in force in the City at the time of its adoption, including Proposition L. The new agreement violated Proposition L because the original agreement had required removal of the billboards upon its expiration, and thus the new agreement effectively permitted billboards that would otherwise not have existed, contravening both the letter and spirit of the ballot measure.

City Approval of Agreement for Tree Removal Triggered 90-Day Statute of Limitations Under Planning and Zoning Law

Broadly construing Government Code § 65009, which establishes a 90-day limitations period for claims under the Planning and Zoning Law, an appellate court held that approval of an agreement allowing removal of trees constituted a “decision regarding a permit,” triggering the 90-day filing deadline. Save Lafayette Trees v. City of Lafayette, No. A154168 (1st Dist., Oct. 23, 2018).

The City of Lafayette entered into an agreement with PG&E allowing removal of approximately 270 trees within a natural gas pipeline right-of-way. Petitioners sued contending that the agreement had been approved in violation of the Planning and Zoning Law and CEQA. The trial court dismissed the complaint on the ground that it had not been filed and served within the 90-day limitations period under Section 65009.

Government Code § 65009 provides that an action challenging “any decision” regarding “permits, when the zoning ordinance provides therefor” must be filed and served within 90 days of the decision. On appeal, petitioners argued that Section 65009 was inapplicable because the City entered into an agreement allowing tree removal and did not issue any permits. The appellate court disagreed, finding “no meaningful difference between the two in this instance.”  It noted that the staff report to the City Council regarding the agreement expressly referred to the project as a “major tree removal project” that required a permit under the municipal code. Approval of the agreement allowing removal of the trees, the court said, was properly considered to be a decision regarding a permit subject to Section 65009.

Petitioners also argued that its action was subject to a longer, 180-day statute of limitations in the City’s municipal code governing challenges to decisions of the City Council. The court concluded this provision was preempted by Section 65009 because it expressly conflicted with the statute’s 90-day period. In dicta, the court noted that most local statutes of limitations regarding challenges to planning and Planning and Zoning Law decisions had likely been preempted by the enactment of Section 65009.

The court also found, however, that petitioners’ CEQA challenge was subject to the 180-day limitations period under Public Resources Code, not the 90-day period under Section 65009. Concluding that the two statutes could not be reconciled because they established different deadlines, the court held that the CEQA limitations period, as the more specific, controlled.

Port Master Plan Conflicted with Coastal Act Goals

A core principle of the California Coastal Act is to maximize public access to the coast, including recreational opportunities in the coastal zone. The Court of Appeal determined that the Coastal Commission acted within its authority in rejecting an amendment to a port master plan as inconsistent with this principle. San Diego Unified Port Dist. v. California Coastal Commission, No. D072954 (4th Dist., Oct. 1, 2018)

The Port District applied to the California Coastal Commission for certification of an amendment of the District’s port master plan to authorize specified hotel development, including construction of a 175-room hotel. The Commission denied the amendment finding it inconsistent with the public access and recreation policies of the Coastal Act because it did not adequately protect and encourage lower-cost visitor and public recreational opportunities. The District sought and the trial court issued a writ of mandate invalidating the decision. The trial court found the Commission, in excess of its jurisdiction, had essentially conditioned its certification on the provision of lower-cost overnight accommodations, which “infring[ed] on the wide discretion afforded the District to determine the contents of land use plans and how to implement those plans.”

The Fourth Appellate District reversed the trial court’s rulings.

The appellate court rejected the District’s contention that it fell within a specifically defined category of local government entity over which the Commission’s authority was limited. The court declined to “rewrite the law” to extend certain restrictions on the Commission’s jurisdiction to port district master plans, which are governed by Chapter 8 of the Coastal Act.

The court then addressed (de novo) whether the Commission’s decision was within its authority under the Coastal Act. The District argued that “precise policy” originates with a legislative body such as the District, meaning the District is charged with creating policies to implement the Coastal Act whereas the Commission merely verifies a plan’s consistency. The court disagreed, acknowledging the breadth of the mandate in reviewing planned development and other uses within the coastal zone. This mandate includes promulgating statewide rules and statewide policies, not merely acting as a “rubber stamp agency” with respect to local planning. The Commission exercises its independent judgment on the issue of a local entity’s compliance with coastal policy, and its “broad supervisory role” is particularly important when dealing with a port master plan.

The court acknowledged that the Commission may not conditionally approve a master plan under the Coastal Act, i.e., grant certification subject to a specified modification.  But this is not what the Commission did in this case – it denied certification on grounds that the proposed amendment did not further the Act’s public access policies.  While the Commission suggested how the District might meet the Act’s policy that “lower cost visitor… facilities shall be… provided,” it expressly acknowledged it was not permitted to make such modifications to the plan.

The court reaffirmed that the Commission is empowered to exercise independent judgment in determining not only whether a master plan amendment conforms with the Act’s policies, but also whether the plan “carries out those policies” (emphasis in original). The Commission has a statutory mandate to consider “the manner of public access” on a case-by-case basis and may take into account social and economic needs. The court concluded that the Commission exercised this mandate in deciding that the plan amendment did not adequately protect lower-cost visitor and public recreational opportunities, including overnight accommodations.

Possibility that Zoning Standards Might Be Violated in Final Design Did Not Mandate EIR at Tentative Map Stage

A project opponent’s argument that the project might violate zoning laws in the future is not sufficient to require a city to prepare an EIR under CEQA. Friends of Riverside’s Hills v. City of Riverside, 26 Cal.App.5th 1137 (2018).

The Lofgrens requested a residential development permit to build six single-family homes on an 11-acre parcel in Riverside. The proposed development was within the City’s RC – Residential Conservation Zone, which had unique zoning standards to preserve the area’s topographic conditions. These included two different sets of standards for lot size, dwelling density, and lot coverage depending on whether the development was “conventional” or a “Planned Residential Development” (“PRD”). City zoning laws allowed subdivisions qualifying as PRDs more flexibility to create smaller lots in existing neighborhoods and promoted clustering of lots on less sensitive sections of the property to preserve open space. The Lofgrens’ applied for a PRD permit with a six-lot tentative tract map and a list of mandatory project requirements that would qualify the project as a PRD.

In response to objections from Friends of Riverside’s Hills to their original application, the Lofgrens also submitted a revised five-lot subdivision map that complied with conventional zoning requirements. The City of Riverside approved the PRD permit, finding the project in compliance with all PRD standards for residential development in the RC Zone. The City conditioned the Lofgrens’ ability to obtain a grading permit on submission of a final tract map and evidence that natural features on steeper portions of the property were preserved as open space. The City also required the Lofgrens’ future building permits to comply with RC Zone “superior design standards.”

The City issued a negative declaration, concluding that the project did not require an environmental impact report under CEQA. The City reasoned the project did not conflict with any land use provisions that were adopted to avoid or mitigate environmental impacts. Continue Reading

CEQA Project Baseline Should Not Have Been Set Prior to Demolition of Historic Structure

The Fourth District Court of Appeal held that the project baseline under CEQA for construction of a new home should not have been set prior to demolition of a potential historic structure when the demolition had occurred before submittal of a permit application to build the new home. Bottini v. City of San Diego, No. D071670 (4th Dist., Sep. 18, 2018).

The Bottinis applied to the City for a Coastal Development Permit (CDP) to construct a single-family home on a vacant lot. City staff determined that the project was categorically exempt from environmental review under CEQA’s Class 3 exemption for construction of a single-family home. On appeal, however, the City Council found that full environmental review was necessary because the Bottinis had demolished a 19th century cottage named Windemere on the lot shortly before applying for the CDP. The City had itself previously concluded that Windemere was not a historic resource, declared the structure to be a public nuisance, and authorized the Bottinis to demolish the cottage. Nevertheless, the City Council retroactively declared the cottage “historic,” concluded that the demolition should be considered part of the new home project, and found that there was a reasonable possibility that CEQA’s “historical resources” and “unusual circumstances” exceptions precluded use of the categorical exemption.

The Bottinis sued, contending that the City’s baseline determination violated CEQA and the City’s decisions regarding the historic status of Windemere and the extent of the required environmental review violated the Bottinis’ due process rights and resulted in a regulatory taking of their property. Continue Reading

Seven-Year Extension of Diablo Canyon Lease Held Exempt from CEQA

A court of appeal has rejected CEQA and public trust challenges to a State Lands Commission lease extension allowing the Diablo Canyon nuclear power plant to continue operating through 2025.  World Business Academy v. California State Lands Commission, 24 Cal. App. 4th 476 (2018).

Pacific Gas & Electric Company plans to cease operating Diablo Canyon in 2025, when the plant’s federal licenses will expire.  The plant’s cooling water intake and discharge structures are on state-owned submerged and tidal lands, for which the Commission had issued leases to PG&E expiring in 2018 and 2019.  The Commission granted PG&E a consolidated lease extension through 2025, relying on CEQA’s categorical exemption for continued operation of existing facilities.

CEQA’s categorical exemptions are subject to several exceptions that can force a lead agency to prepare a negative declaration or an environmental impact report.  The “unusual circumstances” exception applies “where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”  Here, Diablo Canyon opponents argued that continued operation of the state’s last nuclear power plant was rife with unusual circumstances that could cause significant environmental effects.

To show that the unusual circumstances exception applies, normally a challenger must show both:  1) unusual circumstances; and 2) a reasonable possibility of a significant environmental effect due to those unusual circumstances.  Here, the Commission had made no finding regarding unusual circumstances.  With no finding before it, the court of appeal elected to assume unusual circumstances did exist, and then proceeded to the second half of the test:  whether there was a fair argument that the lease extension would cause significant environmental impacts. Continue Reading

Federal Appeals Court Rejects Challenges to Newhall Ranch EIS and Section 404 Permit

In the latest decision in the long-running legal saga over the proposed Newhall Ranch development in Los Angeles County, the U.S. Court of Appeals for the Ninth Circuit upheld the Army Corps of Engineers’ EIS and Section 404 permit, giving substantial deference to the Corps’ decisionmaking. Friends of the Santa Clara River v. U.S. Army Corps of Engineers, 887 F.3d 906 (9th Cir. 2018).


Newhall Ranch is a proposed large-scale master-planned community in Los Angeles County. The County approved a specific plan for the project that provided for more than 21,000 residential units and 4.4 million square feet of commercial, office, and retail uses. In connection with the project, Newhall Land and Farming Company applied to the Army Corps of Engineers for a permit under Section 404 of the Clean Water Act to discharge dredge or fill material into navigable waters. The Corps, along with the California Department of Fish and Wildlife, prepared a combined EIS/EIR. The EIS/EIR considered eight project alternatives, including Newhall’s preferred alternative, a no-build alternative and six other alternatives.

The Corps issued a Record of Decision that adopted one of the studied alternatives (“Modified Alternative 3”) as the least environmentally damaging practicable alternative. Modified Alternative 3 involved developing less acreage than Newhall’s preferred alternative, at a higher cost per developable acre. The Corps also determined that wastewater and stormwater discharges from the project would not affect endangered steelhead in the Santa Clara River downstream from the project. Based on this “no effect” determination, the Corps did not consult with the National Marine Fisheries Service on impacts to endangered steelhead.

The plaintiffs claimed that the Corps’ decisions violated the Clean Water Act, the Endangered Species Act, and the National Environmental Policy Act. First, the plaintiffs challenged the Corps’ selection of Modified Alternative 3 as the least environmentally damaging practicable alternative. Second, the plaintiffs challenged the Corps’ failure to consult with NMFS. Third, the plaintiffs argued that the EIS did not adequately analyze cumulative impacts on steelhead. Continue Reading

Development Agreements Cannot Be Adopted By Initiative

A development agreement cannot be adopted by initiative, the California court of appeal ruled in Center for Community Action and Environmental Justice v. City of Moreno Valley, 26 Cal. App. 5th 689 (2018).

The Development Agreement Statute

The Development Agreement Statute (Government Code sections 65864–65869.5) allows a municipal government and a property owner to enter into a contract that vests development rights by freezing the land use regulations applicable to a property. The statute includes procedural and substantive requirements for development agreements, including that “[a] development agreement is a legislative act that shall be approved by ordinance and is subject to referendum.” (Government Code section 65867.5(a).)


The project at issue in this case was a proposed logistics center in Moreno Valley. In 2015, the Moreno Valley City Council approved project entitlements, including a development agreement. Opponents then filed a CEQA lawsuit to challenge the environmental impact report for the project. A group backed by the developer responded by filing a petition for an initiative that would repeal the development agreement ordinance and approve a new development agreement. The initiative development agreement was substantially the same as the agreement the City Council approved for the project. The City Council adopted the initiative, rather than submitting it to the voters. Because voter-sponsored initiatives are not subject to CEQA, no environmental review was completed before the City Council adopted the initiative. Opponents then filed this lawsuit, asserting that a development agreement cannot be adopted by initiative.

The Court’s Decision

Based on the statutory language, statutory scheme, and legislative history, the court determined that the Development Agreement Statute did not permit adoption of a development agreement by initiative. Continue Reading

Ban on Short-Term Home Rentals Is a “Development” Subject to the Coastal Act

Underlining the broad and expansive definition of “development” under the California Coastal Act, the Second Appellate District ruled that a coastal homeowners’ association’s ban on short-term rentals is considered “development” subject to the requirements of the Coastal Act. Greenfield v. Mandalay Shores Community Association, 21 Cal. App. 5th (2018)

The Mandalay Shores Community Association is the homeowners’ association for 1,400 residences in a beach community within the City of Oxnard coastal zone. Increasingly concerned about the parking, noise and trash problems caused by short term rentals, the Association adopted a resolution barring home rentals for fewer than 30 consecutive days. Owners who violated the ban would be fined by the Association: $1,000 for the first offense, $2,500 for the second, and $5,000 for each subsequent offense.

A Coastal Commission enforcement supervisor advised the Association that its ban on short term rentals constituted a “development” under the Coastal Act which required a coastal development permit. The plaintiffs, owners of a home in Mandalay Shores, then sued the Association to prevent enforcement of the ban, asserting it violated the Coastal Act.

The trial court denied the plaintiffs’ motion for a preliminary injunction, ruling that the Association’s ban on short term rentals was not a “development” under the Coastal Act.

The court of appeal reversed the trial court judgment, ruling that it had not correctly construed the Coastal Act. The court stated that, because a key goal of the Coastal Act is to maximize public access, “development” is broadly defined to include changes in density or intensity of use of land, and not just alterations of land or water. For example, the court explained, locking a gate that is usually open for public beach access over private land, or posting a “no trespassing” sign on a parcel used for beach access, are both “developments” because they have a significant adverse impact on public use of coastal resources.

Similarly, the court reasoned, preventing non-residents from vacationing—as they had for decades—at Mandalay Shores through the short-term rental of beach homes created a “monetary barrier to the beach.” The Association’s ban was therefore a “development” subject to the provisions of the Coastal Act. The question of whether short-term rentals should be regulated or banned would need to be decided by the Coastal Commission and the City of Oxnard, not a private homeowner’s association.

The appellate court ordered the trial court to grant the plaintiffs’ motion for a preliminary injunction, thereby preventing continued enforcement of the Association’s ban on short-term rentals.

Negative Declaration Survives Challenge Based on Non-Expert Opinion About Noise Impacts

Claims of significant noise impact unsupported by expert opinion, fact, or reasonable inference did not provide grounds for challenging a negative declaration, the court of appeal held in Jensen v. City of Santa Rosa, 23 Cal. App. 5th 877 (2018).

The project, called the Dream Center, would provide emergency shelter for homeless youth and transitional housing for young adults, as well as counseling, health, education, and job placement services. The center would also provide outdoor recreational activities for residents, including a basketball area, pottery throwing area, and garden. The center would occupy a vacant building formerly used as a hospital. A wooden fence and landscaping separated the rear parking lot from an adjacent residential neighborhood.

The City of Santa Rosa adopted a negative declaration and approved a rezoning and conditional use permit for the project. Conditions of approval limited parking in the rear lot to employees during normal operating hours. The city’s negative declaration relied on a noise study prepared by an engineering firm. The noise study concluded that noise impacts would be less than significant because noise would not exceed standards in the city’s general plan or noise ordinance, and would not increase noise levels more than 5 dBA Ldn above existing conditions. (Ldn is the average day/night noise level.)

The petitioners, who lived near the project, asserted there was a fair argument the project would cause significant noise impacts from vehicles in the rear parking lot and from outdoor recreation activities. The petitioners based their main arguments on their own calculations using data taken from a noise study for a different project in the city called Tower Market, a 24-hour convenience store and gas station.

The court held that no substantial evidence supported the petitioners’ claims. Continue Reading