On January 19, 2022, attorneys from Perkins Coie presented the 32nd Annual Land Use and Development Law Briefing.
Topics included:
A full set of the written
Below are summaries of the key California and Ninth Circuit land use and development law cases decided in 2021.
CHEVRON v. COUNTY OF MONTEREY
70 Cal. App. 5th 153 (2021)
A county ordinance enacted by initiative effectively banned new oil and gas wells and use of wastewater injection (“fracking”) as part of extraction operations. The court held that these measures were preempted by Public Resources Code § 3106, which vests the State of California’s Oil and Gas Supervisor with exclusive authority to decide whether to permit an oil and gas drilling operation or the use of wastewater injection in such operations, leaving no room for local regulation. The court noted that its holding did not affect local regulation of the location of oil drilling operations, a matter not addressed by Section 3106 or the ordinance.
PEOPLE v. VENICE SUITES
71 Cal. App. 5th 715 (2021)
The State of California brought action alleging that the owner of an apartment building was illegally operating a hotel or transient occupancy structure in a building permitted to operate only as an apartment house for long-term tenants. The court held that the Los Angeles Municipal Code did not implicitly prevent an apartment house from being used for short-term occupancies of 30 days or less. The court reasoned that (1) a long-term occupancy requirement for apartment houses could not be inferred from definitions in a later-enacted section of the Code limiting transient occupancy structures to occupancies of 30 days or less and (2) the Code governing apartment houses could not be read in conjunction with either the rent stabilization ordinance or the transient occupancy tax ordinance to require long-term occupancy.
SCHREIBER v. CITY OF LOS ANGELES
69 Cal. App. 5th 549 (2021)
The density bonus law (Gov’t Code § 65915) requires cities to grant incentives to projects that provide a specified number of affordable housing units. Plaintiffs challenged the City’s grant of certain incentives to a project on the ground that the City had failed to require the applicant to provide financial documentation proving that the incentives were required to make the project “economically feasible” as required by a local ordinance. The court held that the referenced ordinance conflicted with Section 65915, which required the City, not the applicant, to bear the burden of proof justifying denial of a requested incentive. The local ordinance was accordingly preempted by Section 65915.
KRACKE v. CITY OF SANTA BARBARA
63 Cal. App. 5th 1089 (2021)
In 2015, the City of Santa Barbara directed its staff to regulate short-term rentals as hotels, effectively banning short-term rentals in most residential areas. The court held that the City’s change in policy required Coastal Commission approval because it constituted a “development,” altering the intensity of use and access to land and water in the coastal zone. To proceed, the City would need to obtain a coastal development permit, an amendment to its certified local coastal program, or an amendment waiver. This decision reinforced that restrictions on short-term vacation rentals in the coastal zone—whether by a private entity or a local government—are subject to the Coastal Act and must be approved by the Coastal Commission.
LENT v. CALIFORNIA COASTAL COMMISSION
62 Cal. App. 5th 812 (2021)
The court upheld a Coastal Commission penalty of $4,185,000 on Malibu homeowners who refused to remove structures that blocked a public access easement granted to the Commission by a prior owner of the home. The homeowners claimed the penalty violated their due-process rights because it was over four times the amount recommended by Commission staff. The court ruled that due process did not mandate advance notice of the exact penalty the agency intended to impose so long as the agency provided adequate notice of the maximum amount of the possible penalty, which it did in this case. The court also found that the penalty did not amount to an excessive fine under the state or federal constitutions because the homeowners had a high degree of culpability—evidenced by their willful refusal to remove the structures—and their conduct effectively barred access to a beach that was part of a three-mile stretch of the coast with no other public access.
Continue Reading 2021 Land Use and Development Law Case Summaries
The courts issued relatively few published CEQA decisions in 2021, with no California Supreme Court activity and no blockbuster court of appeal opinions. But two cases addressed topics of great current interest: wildfire and climate change impacts. One court also settled an important question under CEQA’s frequently invoked categorical exemption for infill development projects. And in a big year for exhaustion of administrative remedies as a prerequisite to litigation, three decisions reemphasized the key role played by local administrative procedures in the CEQA process.
Exemptions. Three decisions on exemptions from CEQA came out during the year. In one, the court had no trouble upholding application of the categorical exemption for small infill projects to a new gas station in a large shopping center, rejecting an argument that because the entire shopping center comprised more than 5 acres, the project, which would be built on only 2.5 acres, failed to meet the exemption’s limitation to 5-acre “project sites.” In a second case, a court rejected an attempt to apply the existing facilities exemption to operations of an unlined landfill, ruling that unlined landfills did not constitute “facilities.” Finally, in a case involving the State Water Resources Control Board’s program for registering small water diversions when it receives a completed registration form, the court concluded: “CEQA does not regulate ministerial decisions—full stop.”
Negative Declarations. The two negative declaration cases decided during the year addressed key topical issues. In a case in which neighbors raised concerns about evacuation during wildfires, the court concluded the objections were grounded in speculation rather than fact-based opinion, and upheld the negative declaration. In the other case, the court found the agency had plainly erred by relying on a faulty climate action plan consistency checklist to find the project would not have a significant greenhouse gas impact.
Environmental Impact Reports. Several of the decisions involving EIRs are noteworthy. The court of appeal reviewing the EIR for a new resort at Squaw Valley found it fatally flawed on multiple counts: Its description of the environmental setting failed to highlight the features of Lake Tahoe that make it a unique regional resource, and its analysis of water quality, air quality and construction noise impacts was insufficient. By contrast, a court held that an EIR on a plan to restore natural resources and improve visitor facilities in a wilderness recreation area passed muster, even though it only considered one alternative — the no project alternative. Another opinion in an EIR case provides useful guidance on the often perplexing requirement that EIRs identify “inconsistencies with the applicable general plan.” The deference due to a local jurisdiction in the interpretation and application of its own general plan under the Planning and Zoning Law cannot be evaded through a CEQA claim an EIR is defective by failing to “inform the public” of an inconsistency the agency has not itself found.
Subsequent CEQA Review. The only decision involving subsequent CEQA review addressed a set of somewhat puzzling claims. The plaintiff challenged a decision by the State Lands Commission, acting as a responsible agency, to prepare a supplemental EIR, rather than a subsequent EIR, on limited changes to a previously approved desalination plant. The court found no merit to appellant’s novel arguments that the commission was required to “step in as lead agency” and prepare a subsequent EIR on “the project as a whole” and that a supplemental EIR focusing on the project changes constituted improper “piecemeal” environmental review.
CEQA Litigation. Several thought-provoking opinions issued during the year involved CEQA litigation. In one, a court of appeal rejected a trial court order that allowed the agency to cure a defective mitigated negative declaration by preparing an EIR limited to three potentially significant impacts. The court held that environmental review for a project cannot be split between two documents—a negative declaration and an EIR—and ruled that a “full EIR” was required.
In a decision that may cheer those who argue CEQA lawsuits are too often filed for improper purposes, the court found an aggrieved developer had identified evidence sufficient to allege a claim for malicious prosecution against a neighbor who had attacked the mitigated negative declaration for the developer’s project. Public agencies and project proponents should note, however, that behavior as egregious as that alleged against the neighbor in this case is, thankfully, rare.
Somewhat improbably, three of last year’s decisions involving CEQA litigation addressed a rarely asked question: What happens if the plaintiff doesn’t join the real party in interest in the lawsuit before the time to do so runs out? The answer differs depending on the circumstances, but in sum: If a real party in interest is not sued timely and the real party is found to be “indispensable” as defined in the Code of Civil Procedure, then the suit will be dismissed.
Three other procedural decisions also provide an important reminder for both potential litigants and public agencies: To the extent a project opponent does not perfect its CEQA claims by following the local agency’s procedures for internal appeal of a CEQA determination, the opponent cannot pursue those claims in court.
Finally, one case decided during the year, although not surprising in its legal analysis, will likely be best remembered for its history: After 27 years, the litigation over the EIRs on the Monterey Agreement—the agreement that changed the Department of Water Resource’s policies for allocating water supplied by the State Water Project—finally slogged its way to the finish line with an appellate court decision that resolved the remaining appeals in DWR’s favor, and a determination by the California Supreme Court that it would not review that decision.
The following summaries identify the key issues in the cases decided in 2021. Each of these case summaries links to a post on this site that provides a more detailed description of the court’s opinion.
Continue Reading CEQA YEAR IN REVIEW 2021
The court rejected a claim that the city violated CEQA Guidelines section 15088.5(g) by failing to summarize each of the revisions to a draft EIR made by a revised and recirculated draft EIR. Save Civita Because Sudberry Won’t v. City of San Diego, 2021 WL 5937417 (No. D077591, 4th Dist. 1st Div., December. 16, 2021).
In a major decision, the California Court of Appeal rejected a city’s interpretation of what constitutes an “objective” standard under the Housing Accountability Act and upheld the constitutionality of the law and amendments that strengthened it. The decision represents the second time this year that the Court of Appeal has both rejected a charter city’s
On January 26, 2021, attorneys from Perkins Coie presented the 31st Annual Land Use and Development Law Briefing. Topics included:
A full set of the written materials,
Below are summaries of the key California and Ninth Circuit land use and development cases decided in 2020. Each case name is linked to our more extensive discussion of the case on the California Land Use & Development Law Report.
GRANNY PURPS, INC. v. COUNTY OF SANTA CRUZ
53 Cal. App. 5th 1 (2020)
The court of appeal held that the County of Santa Cruz was required to return approximately 2,000 medical marijuana plants seized from a dispensary. Local law enforcement had seized the plants due to a violation of a county zoning ordinance that prohibits cultivation of over 99 medical marijuana plants. The court reasoned that the plants were not subject to seizure because the local zoning ordinance did not change the legal status of medical marijuana under state law. Because medical marijuana is not contraband in California, and local governments are bound by state law, local governments cannot withhold legally possessed marijuana plants.
LATEEF V. CITY OF MADERA
45 Cal. App. 5th 245 (2020)
Plaintiff appealed to the City Council after his conditional permit was denied by the Planning Commission. At the time of the hearing, only five of the seven councilmembers were eligible to vote: one council seat was vacant, and one councilmember had recused himself from voting. Although the Council voted four to one to overturn the Planning Commission’s decision, the City determined that the motion failed to meet the requirement in the municipal code that “five-sevenths vote of the whole of the Council shall be required to grant, in whole or in part, any appealed application denied by the Commission.” The court confirmed the City’s interpretation, finding that nothing in the municipal code indicated that the “whole of the council” meant only those present and voting.
PETROVICH DEVELOPMENT CO., LLC v. CITY OF SACRAMENTO
48 Cal. App. 5th 963 (2020)
The court invalidated the City Council’s denial of plaintiff’s application for a conditional use permit for operation of a gas station, finding that the actions of one of the councilmembers demonstrated hostility and bias toward the project and resulted in denial of a fair hearing. The court relied on evidence that the councilmember was actively lining up votes of other councilmembers against the project, as well as advising a project opponent on how to lobby the council. These concrete facts showed that the councilmember acted as an advocate, not an impartial decisionmaker, and should have recused himself from voting on the appeal. His actions demonstrated an unacceptable probability of actual bias and denied plaintiff a fair hearing.
Continue Reading 2020 Land Use and Development Case Summaries
Despite relatively few published opinions this year, there were significant appellate court rulings on a range of topics, including whether projects are properly classified as discretionary or ministerial, the adequacy of mitigation, agencies’ document retention obligations, the remedy for an inadequate EIR, mootness, and statutes of limitations.
The one California Supreme Court CEQA decision addressed the distinction between discretionary projects and exempt ministerial projects. In Protecting Our Water and Environmental Resources v. County of Stanislaus, the court held that the agency’s issuance of well permits was discretionary in certain circumstances because the permit approval process required the agency to exercise independent judgment and allowed it to modify a project in response to environmental concerns.
A key theme in several cases, involving both EIRs and negative declarations, was courts’ critical look at the adequacy of mitigation measures. In three cases, the court held that agencies had improperly deferred formulation of mitigation. In one case, the court held that a greenhouse gas mitigation measure allowing for carbon offsets was inadequate because it lacked assurances that the offsets would be effective mitigation and it did not specify objective standards for implementation. In another case, the court held that a mitigation measure requiring oil and gas drillers to develop and implement a plan to reduce their water use improperly deferred formulation and implementation of mitigation and lacked enforceability. The court also ruled that agricultural conservation easements are not adequate mitigation for the loss of farmland because they do not offset that loss or create new farmland. In a third case, the court held inadequate a mitigation measure that required construction monitoring and development of a data recovery excavation program if avoidance of archaeological sites was not possible; the agency had not analyzed whether archaeological sites could be avoided and the mitigation measure did not specify performance criteria for evaluating the feasibility of avoidance.
In a significant decision on administrative records, a court held that a lead agency must save all emails about a project, notwithstanding any contrary records retention policy. The court further held that a lead agency could be compelled to produce potential administrative record documents through discovery.
One court applied the mootness doctrine to dismiss a case where construction of the project was completed during litigation. In that case, the developer did not begin construction in violation of any court orders or in bad faith, and the petitioners waited to seek an injunction until construction was nearly completed.
In a decision that conflicts with holdings from other appellate districts, the Fifth District held that partial decertification of an EIR is never permissible when the EIR has been adjudged inadequate; rather, decertification of the entire EIR is the only remedy. The court also held that even under the rule followed by other courts, partial decertification was not appropriate because the EIR’s defects could not be severed from the statement of overriding considerations that supported the agency’s approval of the project.
The following summaries are intended to identify the key issues in the cases decided in 2020. Each summary is linked to a more detailed post on this site describing the court’s opinion.
Continue Reading CEQA YEAR IN REVIEW 2020
The coronavirus (COVID-19) is placing businesses in situations where facilities have to be shut down, staff are sent home, laboratories that test monthly samples are temporarily closed, and contractors who normally conduct sampling or testing are not available. These circumstances create challenges for environmental regulatory/permit compliance. An update highlighting various ways that COVID-19 can adversely