An agency must prepare an environmental impact statement when it fails to address expert scientific evidence that undermines its conclusions about a project’s environmental effects. An agency also must prepare an EIS when there are substantial questions about whether a project will have a cumulatively significant impact. Bark v. U.S. Forest Service, 958 F.3d
Landowner’s Positive Efforts to Deter Trespassers Defeated Implied Public Dedication Claim
A private landowner prevailed over a community association’s efforts to obtain a public recreational easement over trails because substantial evidence showed the landowner took bona fide steps to deter unauthorized users on the trails. Tiburon-Belvedere Residents United to Support the Trails v. Martha Company, No. A157073 (1st Dist., Oct. 23, 2020).
Before 1972, when
Violation of Zoning Ordinance Limiting Medical Marijuana Cultivation Did Not Justify Seizure of Dispensary’s Medical Marijuana
The Sixth District Court of Appeal held that a medical marijuana dispensary could recover its marijuana plants seized by law enforcement, finding that violation of the ordinance did not render medical marijuana plants “contraband” per se and subject to seizure. Granny Purps, Inc. v County of Santa Cruz, 53 Cal.App.5th 1 (2020).
Under established caselaw,
State Water Board Has Authority to Implement Temporary Emergency Regulations Curtailing Water Diversions Without Prior Evidentiary Hearing
The Third Appellate District held that the State Water Resources Control Board has the authority to issue temporary emergency regulations and curtailment orders which establish minimum flow requirements, regulate unreasonable use of water, and protect threatened fish species during drought conditions. Stanford Vina Ranch Irrigation Co. v. State of California, No. C085762 (3rd Dist., June 18, 2020)
During California’s severe drought period in 2014 and 2015, the State Water Board adopted emergency regulations and curtailment orders on three tributaries of the Sacramento River, including Deer Creek in Tehama County. The regulations were established pursuant to urgency legislation authorizing the State Water Board “to prevent the waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of water,” or “to require curtailment of diversions. . . .” Wat. Code, §1058.5. The regulations issued by the Water Board limited the diversion of water from Deer Creek for certain periods in order to maintain the required flow of water and protect Chinook salmon and steelhead trout, two threatened species affected by the drought during their migratory cycles.
Petitioner, a non-profit irrigation company that operates diversion dams and ditches for agricultural use in Deer Creek, filed suit challenging the regulations. Petitioner noted that it was entitled by a 1923 judicial decree to use roughly 66 percent of the flow of Deer Creek and argued that the Water Board was required to hold an evidentiary hearing before issuing and implementing the regulations. It further argued that the regulations resulted in a taking of its vested water rights and that the Water Board did not comply with due process under the federal and California constitutions.
The appellate court first found that the Water Board’s statutory authority under the urgency legislation was constitutionally valid and that the temporary emergency regulations were consistent with article X, section 2 of the California Constitution, which ordains conservation of water resources. The court also concluded that adoption of the regulations was not arbitrary, capricious, or lacking in evidentiary support.
Continue Reading State Water Board Has Authority to Implement Temporary Emergency Regulations Curtailing Water Diversions Without Prior Evidentiary Hearing
Disparate-Impact Claims Under FHA and FEHA Must Demonstrate Causal Connection Between a City’s Approval of Development Projects and Racial Disparity in Housing
The court of appeal held that the City’s approval of mixed-used development projects was not an “artificial, arbitrary, or unnecessary barrier[]” to fair housing necessary to support disparate-impact claims under the FHA and FEHA. AIDS Healthcare Foundation v. City of Los Angeles, No. B303308 (2nd Dist., June 15, 2020).
The City of Los Angeles
Agency Notice of Deadline for Filing Suit Was Defective
An administrative agency must provide the notice required under Code of Civil Procedure section 1094.6(f) specifying when its decision becomes final, and may not add potentially confusing information that undermines the statutory purpose of eliminating doubt as to when the statute of limitations to begins to run. Alford v. County of Los Angeles, No.
Suit Challenging Interpretation of Tentative Map Conditions Was Not Time-Barred
Nicholas Honchariw’s battles with the County of Stanislaus over his 9-lot subdivision have now resulted in a fourth published appellate decision. (See our prior reports, County Violates California’s Anti-NIMBY Law by Rejecting Housing Project With No Affordable Units; No Affordable Housing, No Attorney’s Fees Under Housing Accountability Act; and If At First You
Suit for Breach of Development Agreement Should Be Treated as a Breach-of-Contract Action, Not an Administrative Law Proceeding
An action for breach of a statutory development agreement should be reviewed as a breach-of-contract case, not as an administrative law proceeding in which the court gives deference to the City’s findings. Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, No. 18-16105 (9th Cir., May 26, 2020).
The City of Oakland entered into a statutory development agreement with the plaintiff to redevelop a portion of the decommissioned Oakland Army Base as a commercial shipping terminal. While development agreements generally freeze existing regulations in place, this agreement provided that the city could adopt and apply new regulations if the City determined “based on substantial evidence and after a public hearing that a failure to do so would place existing or future occupants or users . . . neighbors, in a condition substantially dangerous to health or safety.”
Subsequently, in response to public opposition to shipping coal through the terminal, the City Council held public hearings, analyzed evidence presented by experts, and approved an ordinance prohibiting coal shipping. The City Council adopted factual findings in support of its determination that shipment of coal created a substantially dangerous health or safety condition.
The appeal turned on whether the case should be treated as a breach-of-contract action (in which the trial court makes factual findings based on the evidence presented at trial, which are accorded deference on appeal) or as an administrative law proceeding (in which the evidence is limited to the record before the agency and the agency’s factual findings upheld if supported by substantial evidence). The court concluded that administrative law principles should not apply in a breach-of-contract action because, among other things, deferring to the government agency’s findings would “effectively create an escape hatch for the government to walk away from contractual obligations” through “self-serving regulatory findings insulated by judicial deference . . . .” The court therefore concluded that the trial court owed no deference to the City’s factual determinations and did not err in considering evidence not presented at the public hearings to “shed light on the adequacy of the evidence that was actually before the City Council.”
Continue Reading Suit for Breach of Development Agreement Should Be Treated as a Breach-of-Contract Action, Not an Administrative Law Proceeding
Judicial Council Shortens Tolling Period for Statutes of Limitations
As we previously reported, on April 6, 2020, the California Judicial Council adopted an emergency rule suspending (or “tolling”) the running of statutes of limitations on civil claims during the state of emergency declared by Governor Newsom on March 4, 2020. The emergency rule tolled all civil statutes of limitations from April 6 until 90 days after the Governor declares the state of emergency related to the COVID-19 pandemic to be over.
The Judicial Council has now amended the emergency rule to shorten the tolling period and to set different tolling periods based on the length of the statute of limitations. Under the rule as amended:
- Statutes of limitations longer than 180 days are tolled from April 6 to October 1, 2020.
- Statutes of limitations of 180 days are tolled from April 6 to August 3, 2020.
Land Use Claims
The shorter tolling period will apply to statutes of limitations for most claims involving land use decisions (including most claims under the planning and zoning law, CEQA, LAFCO, and the Coastal Act). The amended rule, for example, will effectively add 119 days to the 90-day limitations period for a claim involving planning and zoning decisions (Gov’t Code § 65009(c)), provided the 90-day deadline for that claim had not expired as of April 6, 2020.
The Council’s decision to set specific expiration dates (rather than basing the tolling period on the duration of the COVID-19 emergency) was prompted in part by concerns that the state of emergency potentially could be in effect for years. Suspending deadlines for challenges to governmental approvals for such a period would significantly impair the ability to secure construction financing and have a correspondingly debilitating effect on homebuilding throughout the state.
Continue Reading Judicial Council Shortens Tolling Period for Statutes of Limitations
California Courts May Shorten Tolling of Limitations Periods in Land Use Cases Under Emergency Rule
On April 6, 2020, the California Judicial Council adopted Emergency Rule 9, which tolled statutes of limitations on civil causes of action for the duration of the state of emergency declared by Governor Newsom on March 4, 2020, and for 90 days thereafter. The effect of the emergency rule was to suspend the running of