The court of appeal held that the City of Alameda’s development fee for parks and recreation was invalid and unenforceable because there was no reasonable relationship between the fee charged and the burden from new development. Boatworks, LLC v. City of Alameda, 35 Cal. App. 5th 290 (2019). The City improperly inflated mitigation fees
Possibility of Further Applications for New Charter Schools Did Not Constitute “Current and Immediate Threat” Warranting Adoption of Urgency Ordinance Imposing Moratorium on Processing Such Applications.
The court of appeal held that an urgency ordinance enacted to impose a temporary moratorium on the establishment and operation of new charter schools in Huntington Park was invalid. California Charter Schools Association v. City of Huntington Park, et al., 35 Cal. App. 5th 362 (2019). The court reasoned that “numerous inquiries and requests…
Supreme Court To Decide If CEQA Review Is Required For Well Permits.
The Supreme Court of California has granted review of two cases to resolve a split among courts of appeal over whether the issuance of well permits pursuant to state standards is subject to CEQA. California Water Impact Network v. County of San Luis Obispo and Protecting Our Water & Environmental Resources v. Stanislaus County.
At the forefront of these cases is whether the standards issued by the Department of Water Resources for well construction give local agencies any discretion when issuing well permits. Water is a critical resource in the state and with enactment of the Sustainable Groundwater Management Act in 2014, groundwater, particularly its sustainable withdrawal and quality, are issues receiving more attention. Consequently, the practice of ministerial approval of well construction permits by local agencies without discretionary environmental review have come under increasing scrutiny.
In both California Water Impact Network and Protecting Our Water & Environmental Resources, plaintiffs alleged that the counties’ practice of treating approval of well construction permits as a ministerial action results in hundreds of permits being issued each year without CEQA review. The plaintiffs assert that this practice, and the counties’ respective ordinances, violate CEQA because the state standards are not entirely objective, rather, they give the counties discretion to consider local environmental factors when issuing a permit. It is against this backdrop that the Court will consider both cases. The Court’s decision will likely affect how well construction permits are reviewed and issued by local agencies throughout the state.
Water Code Section 13801 requires local agencies to adopt the minimum standards established by DWR for well construction. These standards, in DWR Bulletins No. 74-81 and 74-90, provide guidance on well construction, location, surface features, seals, casing materials and so forth with the goal of preventing groundwater contamination and pollution. Stanislaus County’s well ordinance incorporates both DWR Bulletins, while San Luis Obispo County’s ordinance only incorporates DWR Bulletin 74-81, though in practice, the county also applies the standards in DWR Bulletin 74-90.
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New Guidelines for Assessing Transportation Impacts Under CEQA Finalized
The California Natural Resources Agency has adopted new CEQA Guidelines that will leave behind level of service in favor of vehicle miles traveled.
Following years of development and public comment, the Office of Planning and Research (OPR) and the Natural Resources Agency have issued new CEQA Guidelines for analyzing transportation impacts. These new regulations represent a significant shift in analyzing transportation impacts under CEQA. By July 1, 2020, all CEQA lead agencies must analyze a project’s transportation impacts using vehicle miles traveled (VMT). VMT measures the per capita number of car trips generated by a project and distances cars will travel to and from a project, rather than congestion levels at intersections (level of service or “LOS,” graded on a scale of A – F). California’s largest cities have already adopted VMT standards and abandoned LOS, but many other jurisdictions will continue to require LOS analysis — not for CEQA purposes, but because their general plans or other policies require LOS analysis.
In this update, we highlight key aspects of the VMT guidelines and how projects could be impacted by this important change in conducting transportation impacts analysis.
In 2013, the California legislature enacted SB 743, which required, among other things, that OPR adopt new guidelines for assessing transportation impacts and that when enacted, traffic congestion would no longer be considered in assessing a significant impact under CEQA. The purpose was to better align transportation impacts analysis under CEQA with the state’s goals of reducing greenhouse gas emissions and traffic-related air pollution and promoting multimodal transportation networks and a diversity of land uses. Under the existing framework of congestion-based analysis using LOS, infill and transit-oriented development is often discouraged because such projects are in areas of existing traffic congestion. As policymakers and legislators have recognized, congestion-based analysis does not necessarily improve the time spent commuting and is often at odds with state goals of reducing vehicle usage and promoting public transit. Indeed, a frequent solution to reducing level of service at intersections is to increase roadway capacity, which studies have found can actually lead to an increase in system-wide congestion and an increase in travel time. It is also now better understood that LOS does not accurately reflect vehicle travel as it only focuses on individual local intersections and roadway segments and not on the entire vehicle trip.
VMT is not a new tool for assessing environmental impacts under CEQA. It is used to assess a project’s impact on greenhouse gas emissions, air quality, and energy. Using VMT for analyzing transportation impacts will emphasize reducing the number of trips and distances vehicles are used to travel to, from, or within a development project. Projects located near transit and/or within infill areas generally have lower VMT than projects in rural or undeveloped areas. The shift to VMT analysis under CEQA is intended to encourage the development of jobs, housing, and commercial uses in closer proximity to each other and to transit.
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Zoning Ordinance Adopted To Make Zoning Consistent With General Plan May Be Rejected By Referendum
The California Supreme Court has resolved a split among the courts of appeal, concluding that citizens may bring a referendum to challenge a zoning ordinance even if the referendum would temporarily leave in place zoning inconsistent with the general plan. City of Morgan Hill v. Bushey, 5 Cal.5th 1068 (2018)
Government Code Section 65860…
Court Rejects Interpretation of Medical Marijuana Collective as a “Medical Office” under City’s Zoning Code
The Sixth District Court of Appeal has held that a medical marijuana collective is not a “medical office” as defined in San Jose’s Municipal Code. J. Arthur Properties, II, LLC v. City of San Jose, 21 Cal. App. 5th 480 (2018)
Plaintiffs opened a medical marijuana collective in 2010 at a site zoned Commercial…
Court Gives Green Light to Referendum of Ordinance Adopted to Conform Zoning With General Plan
A referendum requiring either the rejection of an enacted zoning ordinance or submission to the voters that would leave in place zoning inconsistent with a general plan does not violate Gov’t Code Section 65860, according to the court’s decision in Save Lafayette v. City of Lafayette, 20 Cal. App. 5th 657 (2018).
City’s Bifurcated Procedure For Appealing Approval of Entitlements Separately From CEQA Determinations Upheld
The Fourth District Court of Appeal upheld a mitigated negative declaration where the project opponent correctly appealed the approval of entitlements but failed to properly appeal the CEQA determination under the City of San Diego’s bifurcated appeals process. Clews Land & Livestock, LLC v. City of San Diego, 19 Cal. App. 5th 161 (2017).…
Court May Seek Clarification from Agency Regarding Issue in Pending Litigation
The Sixth District Court of Appeal held that a trial court in a mandamus action had the inherent power to remand to the Board of Supervisors for clarification regarding an ambiguous general plan consistency finding. The Highway 68 Coalition v. Co. of Monterey, No. H042891 (6th Dist., Aug. 24, 2017)
The case involved…
Ninth Circuit Upholds Biological Opinion for Silver State South Solar Project in Nevada
In Defenders of Wildlife v. Zinke, the Ninth Circuit upheld the Biological Opinion prepared by the U.S. Fish & Wildlife Service to assess the impacts on the threatened desert tortoise from the Silver State South solar project in southern Nevada. 856 F.3d 1248 (9th Cir. 2017). A key takeaway from the decision is the substantial deference that the courts give to the scientific judgments of the FWS, especially in the face of scientific uncertainty.
The Biological Opinion
The principal issue in the case was that the project, which required approval by the Bureau of Land Management of a right-of-way over federal land, would narrow the corridor for the movement of the desert tortoise through the Ivanpah Valley in southern Nevada, although the project and the affected corridor were located outside of the species’ designated critical habitat. The Biological Opinion recognized that the project’s impact on the “connectivity” of the tortoise’s movement through the Valley was uncertain in light of the available data. But it found that the corridor provided for the species’ movement was likely to be sufficiently wide and it included a monitoring program that would be used to develop conservation measures to identify and address any negative impacts if they did occur.
In accordance with the procedures for “formal consultation” under the Endangered Species Act, the Biological Opinion made a “no jeopardy” finding, which determined that the project would not jeopardize the continued existence of the tortoise. The Biological Opinion further concluded that formal consultation was not required to assess the potential modifications to the critical habitat for the tortoise, and instead relied on the more summary process of “informal consultation” to find that the project was not likely to affect this habitat.
Based on the Biological Opinion, in 2014 the BLM approved the federal right-of-way for the project.
The Ninth Circuit’s Decision
In upholding the Biological Opinion, the Ninth Circuit first rejected the plaintiff’s claim that the FWS did not adequately specify the applicable mitigation measures to support the “no jeopardy” finding. The court reasoned that nothing in the ESA required firm, binding mitigation to address negative effects that are uncertain to occur. The court explained that “our precedents do not require mitigation measures to be identified or guaranteed when the mitigation measures themselves may be unnecessary.”
The court further explained that, while a Biological Opinion must use the best scientific data that is available, the court was required to defer to the FWS in the face of scientific uncertainty. As the court cautioned, “it is not our job to task the FWS with filling the gaps in the scientific evidence” and “we must respect the agency’s judgment.” The court quoted the district court’s finding that “the FWS cannot be expected to respond to data that is not yet available to surmise potential mitigation actions that are not needed under the agency’s current interpretation of the data.”…
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