Rejecting prior case law, the Sixth District Court of Appeal held that citizens may referend a zoning ordinance even when the result of doing so is to leave in place pre-existing zoning that is inconsistent with the general plan. City of Morgan Hill v. Bushey (6th Dist., No. H043426, May 30, 2017)
In the prior
The court of appeal has overturned a local initiative because the City Council failed to agendize its consideration of Walmart’s offer to fund election costs. The court also determined that the initiative measure did not run afoul of the constitutional prohibition against naming or benefitting a corporation, since it applied to any developer of the
A Summary Of Published Appellate Opinions Under The California Environmental Quality Act
In 2016, the California appellate courts issued published opinions in 21 CEQA cases. In several of those opinions, including a ground-breaking decision by the California Supreme Court, the courts grappled with limits on the scope of required environmental review for a subsequent project
Elections Code section 9222 allows a city council to propose a ballot measure that repeals or amends a prior initiative. In Brookside Investment, Ltd. v. City of El Monte (2d. Dist. No. B267081, Nov. 15, 2016) the court held that section 9222 does not unconstitutionally interfere with the voters’ reserved power of initiative, even when
Resolving a long-standing debate, the court in Friends Of The Willow Glen Trestle v. City Of San Jose (H041563), 6th Dist. Aug. 12, 2016, ruled that San José’s determination that a railroad trestle bridge was not a historic resource was to be evaluated under the substantial evidence standard of review. It rejected the argument that
Neighbors who were suing to maintain existing neighborhood parking regulations were pursuing their own personal interests and did not qualify for the public interest exception from the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. Because their Brown Act claim had no merit, it was properly dismissed as an anti-SLAPP suit. Cruz v. City of Culver
When a referendum petition is presented against an ordinance and the board of supervisors decides to “entirely repeal the ordinance” rather than present it to the voters, the board must revoke the challenged ordinance in its entirety and may not take additional action that has the practical effect of implementing the essential feature of the ordinance. County of Kern v. TCEF, 246 Cal.App.4th 301 (2016)
In 2009, the Board of Supervisors of Kern County enacted a zoning ordinance that effectively allowed medical marijuana dispensaries in commercial zoning districts. In 2011, the Board enacted a new zoning ordinance, the Dispensary Ban Ordinance, which banned all medical marijuana dispensaries throughout the county’s jurisdiction. Opponents circulated a referendum petition, and obtained the requisite signatures. The Board responded by repealing the entire chapter of the zoning ordinance that included both the Dispensary Ban Ordinance and the 2009 ordinance allowing dispensaries in commercial zoning districts. The result was that dispensaries were not allowed in any zoning district anywhere in the county.
Elections Code section 9145 requires that when a county board of supervisors is presented with a qualified referendum petition, it must either “entirely repeal the ordinance against which a [referendum] petition is filed” or submit the ordinance to a vote. The court of appeal agreed with Kern County that this language did not necessarily require the county to return all circumstances to the status quo that existed before the Dispensary Ban Ordinance was enacted, and that the county had discretion to take other actions besides repealing the referended ordinance. However, this discretion is limited by the overriding principle that these actions may not have the practical effect of implementing the core element of the challenged ordinance.
Continue Reading County Board May Not Take Actions That Implement Essential Feature of a Referended Ordinance
On January 20, 2016, the Governor’s Office of Planning and Research released a revised draft of proposed new CEQA Guidelines to replace automobile congestion-based thresholds for evaluating transportation impacts with thresholds that emphasize proximity to transit and a reduction in vehicle miles traveled (VMT) on a per capita or per employee basis.
SB 743, passed by the Legislature in 2013, requires OPR to establish thresholds for measuring transportation impacts that are designed to promote the reduction of greenhouse gas emissions, the development of multimodal transportation networks, and a diversity of land uses., Further, SB 743 dictates that once the CEQA Guidelines are amended to include those new thresholds, auto delay will no longer be considered a significant impact under CEQA. SB 743 gives OPR the option of applying the new thresholds only to certain locations near transit, or more broadly throughout the State.
OPR released its preliminary discussion draft of the Guidelines amendments in August 2014. The initial draft applied the new thresholds broadly, and focused generally on an assessment whether a project would result in VMT that would exceed regional averages.
The initial draft also suggested thresholds for measuring significance based on proximity to certain types of transit stops and lines.
In the updated recommendations released on January 20, the proposed Guidelines continue to apply a new VMT-based approach to all areas of the State. Agencies would have a two-year period to transition to the new VMT-based approach. Further, as under the initial draft, once this transition period ends, automobile delay could no longer be considered a significant adverse effect under CEQA.
The updated recommendations also continue to include a presumption that development projects located within one-half mile of either an existing major transit stop or a stop along an existing high quality transit corridor may be presumed to cause a less than significant.
A key difference between the newly proposed Guidelines and the initial draft is that the Guidelines themselves do not set forth specific standards to assess whether a project’s effect on VMT is a significant adverse impact. Much of the detail is now found in a Technical Advisory. The Advisory recommends thresholds for specific types of land uses, including the following:
The Third Appellate District’s opinion in North Coast Rivers Alliance v. A.G. Kawamura (January 4, 2016) has left some practitioners scratching their heads trying to decipher the court’s holdings regarding CEQA requirements for projects that might continue operating past their initial termination date, project objectives, alternatives and cumulative impacts.
The California Department of Food and
A Summary of Published Appellate Opinions Under the California Environmental Quality Act
In 2015, the California appellate courts continued to chart new ground as they grappled with some of CEQA’s most difficult and controversial questions. The Supreme Court of California led the way, issuing four opinions on hotly contested issues. For the first time, the