On January 26, 2021, attorneys from Perkins Coie presented the 31st Annual Land Use and Development Law Briefing. Topics included:

    • Key Developments in Land Use Law
    • Legislative Changes Affecting Housing Development
    • CEQA: Key Cases and Trends
    • COVID 19 — Real Estate Impacts
    • Wetlands, Endangered Species and NEPA Update

A full set of the written materials, in pdf form, is available here.
If you would like a bound, hard copy of the materials, please click here.

Selected materials from the presentation have also been posted on the California Land Use and Development Law Report (See CEQA Year in Review;  2020 Land Use Case Summaries).

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.

1.  Planning and Zoning

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.

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.

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

The Ninth Circuit vacated U.S. Department of the Interior approvals for a proposed offshore oil drilling and production facility in Alaska after finding its EIS improperly failed to consider impacts associated with foreign oil consumption and the U.S. Fish and Wildlife Service’s Biological Opinion relied on overly vague mitigation measures and improperly failed to quantify the project’s nonlethal take of polar bears. Center for Biological Diversity v. Bernhardt, 982 F.3d 723 (9th Cir. 2020).

Conservation groups challenged the Bureau of Ocean Energy Management’s (BOEM) approval of the “Liberty Project,” which proposes to produce crude oil from Foggy Island Bay off the northern coast of Alaska, for failure to comply with procedural requirements of NEPA, the ESA, and the Marine Mammal Protection Act (MMPA).  Project proponents estimated that the Project would produce approximately 120 million barrels of crude oil over a period of fifteen to twenty years.  To do so, the Project would require construction of various new facilities including an offshore gravel island, wells, a pipeline to transport the oil, a gravel mine, and additional ice roads and crossings. The Project site is characterized by its ecological diversity and for providing habitat and food sources for threatened and endangered marine mammals, including polar bears.

EIS That Failed to Address Greenhouse Gas Emissions Resulting from Foreign Oil Consumption Violated NEPA

The Ninth Circuit was persuaded by one of two arguments raised by the conservation groups concerning BOEM’s compliance with NEPA.  The court held that BOEM had failed to analyze “indirect effects” of the Project as required by NEPA by arbitrarily failing to include emissions estimates resulting from foreign oil consumption in its analysis of the Project’s no-action alternative. Counterintuitively, the EIS had concluded that maintaining the status quo under the no-action alternative would result in greater air emissions of priority pollutants as compared with the Project because, BOEM said, the production gap would be filled with substitutes produced from countries with “comparatively weaker environmental protection standards.” However, the EIR did not quantify the purported change in foreign oil consumption. BOEM argued that it could not have summarized or estimated foreign emissions associated with changes in foreign consumption with accurate or credible scientific evidence.

The court rejected BOEM’s failure to either quantify downstream greenhouse gas emissions or to “thoroughly explain why such an estimate is impossible.” The court specifically faulted the EIR for failing to “summarize existing research addressing foreign oil emissions” and for ignoring “basic economics principles,” including changes to equilibrium price and demand effects of the Project. Moreover, the court declined to accord deference to BOEM’s economic analysis of greenhouse gas emissions, stating that “BOEM’s area of expertise is the management of ‘conventional (e.g. oil and gas) and renewable energy-related’ functions, including ‘activities involving resource evaluation, planning, and leasing.’” Based on these findings, the court found that the BOEM’s failure to address global emissions constituted an impermissible failure to evaluate reasonably foreseeable environmental impacts required to be analyzed under NEPA. Continue Reading EIS and Biological Opinion Invalidated for Offshore Alaska Oil Project

A California Court of Appeal invalidated a wastewater discharge permit issued by the Central Valley Regional Water Quality Control Board that the court found impermissibly delegated to the Board’s executive officer the authority to modify effluent limits under the permit. Malaga County Water Dist. v. Central Valley Regional Water Quality Control Board, 58 Cal.App.5th 396 (2020).

The federal Clean Water Act and California Porter-Cologne Water Quality Control Act authorize the State Water Resources Control Board, acting through its Regional Boards, to issue permits for point source discharges of pollutants into waters of the state.   Pursuant to that authority, the Central Valley Regional Water Quality Control Board originally issued a wastewater discharge permit to the Malaga County Water District authorizing it to discharge up to 0.85 million gallons per day (mgd) of undisinfected secondary treated wastewater from its wastewater treatment facility to onsite discharge ponds. When the discharge permit came up for renewal, Regional Board staff became concerned that Malaga’s discharge ponds lacked the capacity to store 0.85 mgd, and accordingly approved a modified permit subject to a new total effluent limitation of 0.49 mgd. Unusually, the revised permit further provided that the Regional Board’s Executive Officer could approve a “higher flow, up to 0.85 mgd,” if requested by the discharger and supported by its submission of “supporting calculations and documentation” demonstrating sufficient disposal capacity on an average monthly basis.

Malaga challenged the discharge permit as an unlawful delegation of the Regional Board’s permitting authority under the Water Code, which expressly prohibits a Regional Board from delegating to its Executive Officer any powers and duties relating to the “issuance, modification, or revocation” of a discharge permit.  Despite finding the dispute to be moot (because the permit at issue had expired and a new permit had been issued), the Court of Appeal determined that the controversy implicated an issue of “great public concern capable of repetition yet evading review,” and thus adjudicated the legality of the effluent verification process described in Malaga’s discharge permit. Continue Reading Regional Water Quality Control Board Unlawfully Delegated Authority to Modify Effluent Limits Under Discharge Permit

Courts reviewing an agency’s environmental assessment under NEPA may not speculate about potential significant environmental effects that are not supported by the record — they must defer to the agency’s reasonable conclusions when they are supported by evidence in the record, especially on issues within the agency’s area of expertise. Bair v. California Department of Transportation, 982 F.3d 569 (9th Cir. 2020).

This decision is the latest in long-running litigation challenging Caltrans’s plans to improve a one-mile section of U.S. 101 through Richardson Grove State Park. In its current condition, the highway section is closed to industry-standard trucks (known as “STAA” trucks because they are authorized by the Surface Transportation Assistance Act of 1982); only shorter “California Legal” trucks are permitted. To safely accommodate STAA trucks, the project would slightly widen the roadway and straighten some curves.

Caltrans issued an Environmental Assessment and Finding of No Significant Impact. (Caltrans assumed the role of federal lead agency for the project pursuant to the NEPA assignment program.) The plaintiffs filed a lawsuit in federal district court, alleging, among other claims, that the EA failed to adequately analyze the project’s effects on old-growth redwood trees and park visitors, and that Caltrans should have prepared an environmental impact statement because the project would have significant environmental effects. The district court ruled that the EA was inadequate and ordered Caltrans to prepare an EIS for the project.

The Ninth Circuit reversed, holding that the district court did not give appropriate deference to Caltrans’s conclusions and improperly relied upon inferences and speculation about environmental effects that were unsupported by the record. Continue Reading Ninth Circuit Upholds Environmental Assessment for Highway Project in State Park

Plaintiffs do not have to allege prejudice caused by a violation of the Brown Act’s statutory vote reporting requirement to survive a demurrer, and it is improper to render a case moot by taking judicial notice of only one party’s records at the demurrer phase. New Livable California v. Association of Bay Area Governments, No. A159235 (1st Dist., Dec. 18, 2020).

In January 2019, the Association of Bay Area Governments (ABAG) held a board meeting to discuss a regional housing and transportation development proposal. The board members rejected a motion to postpone the vote and approved a motion to call the question by “a show of hands.” ABAG reported the rejection of the motion to postpone in the meeting notes as a “voice vote” and did not report the approval of the motion to call. Plaintiffs challenged these actions as a violation of the Brown Act, which requires the legislative body of local agencies to publicly report the vote or abstention of each member present for an action.

The trial court sustained a demurrer and dismissed the complaint on the ground that plaintiffs had not alleged facts showing legally cognizable prejudice from the alleged violations. The appellate court reversed, noting that a complaint need only state a cause of action under “any legal theory” to survive a demurrer. Whether or not plaintiffs had demonstrated the prejudice necessary for the trial court to declare the board’s action null and void was not dispositive because the complaint was minimally sufficient to a claim for declaratory and injunctive relief and mandamus under sections 54960 and 54960.1 of the Brown Act.

In addition, the court rejected the trial court’s finding that the cause of action became moot after ABAG publicly announced in a May 2019 meeting that it would take roll calls on all non-unanimous votes moving forward. The trial court reached this conclusion based on a judicially noticed “transcribed portion” of the May 2019 meeting submitted by ABAG with its demurrer, but did not allow the parties an opportunity to present extrinsic evidence regarding the meaning of the public announcement. The appellate court rejected this approach, stating that a court ruling on a demurrer may not take judicial notice of the proper interpretation of a document submitted in support of the demurrer. Stated differently, a court cannot use judicial notice to “convert a demurrer into an incomplete evidentiary hearing” where only the demurring party can present evidence.

In Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board, No. A157127, 2020 WL 7706795 (Cal. Ct. App. Dec. 29, 2020), the court ruled that CEQA does not constrain an agency’s authority to enforce the laws it administers, including those authorizing imposition of mitigation requirements.  The court held that, after an EIR for a project has been certified, a regional water quality control board, acting as a responsible agency, can impose  mitigation on the project through waste discharge requirements issued under the Porter-Cologne Water Quality Control Act, even though those measures were not described in the lead agency’s EIR. The court’s decision raises significant questions about the limits on a responsible agency’s ability to depart from CEQA’s requirements when deciding whether and how to approve a project.

The Santa Clara Valley Water District brought this case to challenge the San Francisco Bay Regional Water Quality Control Board’s WDRs for a flood control project on Upper Berryessa Creek near Milpitas and San Jose. The Army Corps of Engineers was responsible for the design and construction of the flood control project, while the District was the project sponsor. In January 2016, the District certified a final EIR, which found that impacts on water resources would be less-than-significant with mitigation.

Pursuant to section 401 of the Clean Water Act, the Corps applied to the Regional Board for a certification that the project would not violate state water quality laws. Facing political pressure to issue the section 401 certification quickly (because the project was needed to protect a soon-to-open BART station and was at risk of losing federal funding if the certification was delayed), the Regional Board agreed to issue the certification in March 2016. The certification stated that the Regional Board, as a responsible agency under CEQA, found that water quality impacts during construction would be reduced to less-than-significant levels with the mitigation measures described in the final EIR. The Regional Board’s certification also stated that the EIR lacked the detail necessary to assess the long-term water quality impacts relating to the project’s design, operation, and maintenance, and that it would later issue WDRs to compensate for those impacts.

In April 2017, the Regional Board issued a WDR order requiring additional mitigation to compensate for the project’s water quality impacts. The WDR order required enhancing 15,000 linear feet or 15 acres of waters of the state, which could be satisfied by one of the District’s other planned projects. The Regional Board purported to comply with CEQA by making findings in the WDR order that it had considered the District’s EIR and determined that, with the addition of the WDR order’s mitigation requirements, the project’s impacts would be less than significant.

Waste Discharge Requirements

The court rejected the District’s claim that the Regional Board lacked authority to issue WDRs under the Porter-Cologne Act because the project would not cause a discharge of waste. The District argued that substances must be useless, unneeded, or discarded to constitute waste for purposes of the Porter-Cologne Act, and that the project’s sedimentation effects did not meet this test. The court ruled that even if the District’s interpretation of the law were correct, the project would result in a discharge of waste: The project’s widening of the creek bed would slow the flow of water and lead to increased sedimentation in the creek; this additional sediment would not be useful or necessary and would require periodic removal. Continue Reading Can a Responsible Agency Impose Mitigation Measures Not Considered in the Lead Agency’s EIR?

In 2018, the CEQA Guideline which defines the term “mitigation” was amended to add “conservation easements” to the list of measures that can provide “compensatory” mitigation for an environmental impact. Guideline §15370(e). The amendment was intended to resolve a debate about whether conservation easements over off-site farmland can provide a means to mitigate not only the cumulative and indirect impacts of converting farmland to other uses, but also the direct impact of the loss of the farmland on the project site.

In a recent court of appeal decision, King & Gardiner Farms v County of Kern (2020) 45 CA5th 814, the court held that a measure requiring conservation easements over off-site farmland would not provide adequate mitigation for the loss of farmland that would result from the project.  The court reasoned that conservation easements do not compensate for the impact of converting farmland to another use because they do not create new farmland to offset the loss of the converted farmland.

Because the EIR in King & Gardiner was certified before Guideline §15370(e) was amended to add conservation easements to its list of potential mitigation measures, the court did not consider the effect of the amendment.  Nevertheless, the court’s ruling that off-site conservation easements do not provide effective mitigation for the loss of farmland converted to another use casts doubt on whether public agencies may rely on Guideline §15370(e) to find that they do.

Mitigation is considered effective under CEQA if it will “minimize” or “substantially lessen” an environmental impact.  The court in King & Gardiner ruled that conservation easements do not offset or otherwise reduce the impact of developing farmland.  While Guideline §15370(e) lists conservation easements as a potential mitigation measure, it does not explain how a conservation easement might minimize or substantially lessen the impact of the loss of farmland.  The absence of such an explanation could make it difficult for public agencies to justify requiring conservation easements to provide mitigation given the ruling in King & Gardiner.

An overview of the relevant background and a more detailed analysis of use of conservation easements as mitigation is available here.

Complete physical dispossession of a property is not a prerequisite to an award of damages after a condemnation proceeding is abandoned—moving from the property in reliance on the order granting the agency possession is sufficient. San Joaquin Regional Transit District v. Superior Court, No. C084755 (3rd Dist., Dec. 1, 2020)

In 2010, the San Joaquin Regional Transit District filed an action to condemn property in Stockton owned by Sardee Industries on which Sardee operated a manufacturing facility. In response, Sardee began expanding its operations in Lisle, Illinois and moving projects and equipment there. In April 2011, the court entered an order that conveyed legal possession of the entire parcel to the District but allowed Sardee to temporarily occupy the southern portion. By March 2012, Sardee had only a few machines in Stockton that were packed and ready to be shipped to Illinois. The District abandoned its condemnation action in April 2012.

Code of Civil Procedure section 1268.620 allows recovery of damages incurred “after the defendant moves from property in compliance with an order or agreement for possession or in reasonable contemplation of its taking.” If the proceeding for a taking is dismissed for any reason, the court must order the plaintiff to deliver possession of the property and award damages proximately caused by the dismissal of the proceeding.

The court rejected the District’s argument that the statutory phrase “after the defendant moves from the property” implies that the defendant must completely vacate the property to receive damages. The court distinguished a prior case in which the court declined to award damages based on preliminary development plans that were cancelled in response to an eminent domain proceeding that was eventually abandoned. Unlike Sardee, which had moved most of its equipment and acquired additional property, the owner did not incur relocation costs prior to the government’s abandonment of the condemnation proceeding. In addition, the court referenced the plain language of the statute, which only states that the party must “move”—not that it must be “physically dispossessed.”

The court also rejected the District’s argument that Sardee had not “moved” under the statute because it had exclusive rights to occupy a portion of the property and continued to operate there. The court reasoned that Sardee had effectively “moved” because it had already shipped most of its equipment to Illinois and the District had taken physical possession of the northern portion of the parcel. Despite its presence on the property Sardee was entitled to compensation because it “did more than just prepare” to move and had almost finished by the time the District abandoned the condemnation.

Another court of appeal has held that local special taxes adopted by a citizen-sponsored initiative do not require two-thirds voter approval.  City of Fresno v. Fresno Building Healthy Communities, No. F080264. (5th Dist., Dec. 17, 2020).

In 2018, Fresno voters approved Measure P, a citizen-sponsored initiative that imposed a tax to fund improvements and programs related to parks.  Relying on California Propositions 13 (1978) and 218 (1996), the Howard Jarvis Taxpayer Association contended that Measure P was invalid because it had not been enacted by two-thirds of the voters.

Agreeing with the First District’s opinion in City and County of San Francisco v. All Persons Interested in the Matter of Proposition C, the Fifth District Court of Appeal upheld Measure P.  It rejected the Association’s arguments, which the trial court had found persuasive, that some statements in a prior California Supreme Court case supported requiring two-thirds voter approval.  The Fifth District agreed with the First District that the referenced statements only recognized the two-thirds voter requirement in Proposition 13, and did not address the question whether that requirement applies to citizen-sponsored initiatives.  Like the First District, the Fifth District ruled that California Supreme Court precedent mandated a conclusion that the provisions of Propositions 13 and 218 imposing requirements on cities, counties, special districts and other local governmental entities were to be interpreted as applying only to councils, boards and other representative bodies, not the electorate.

As determined in those prior cases, there is nothing in either Proposition 13 or Proposition 218 that implicitly overruled the power of initiative to enact laws by simple majority vote. Moreover, while voters are bound by the substantive limitations applicable to legislative actions taken by boards and councils, they are not bound by procedural requirements such as a two-thirds vote requirement.  Finally, the Fifth District also rejected the Association’s argument that because the Elections Code allows councils and boards to adopt citizen-sponsored initiatives outright rather than putting them to a vote, failing to require a supermajority vote would “create a playground for mischief.”  The court refused to address this hypothetical scenario, observing that the Associations’ concern should be addressed to the Legislature, not the courts.

The court reversed judgments on the pleadings that had been granted by the trial court in related cases concerning Measure P, and ordered the trial court to enter judgments upholding the measure.