Holding: Mobilehome rent regulation ordinance imperissibly restrict future County Board's exercise of police power.

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1 Spring Meeting May 13-15, 1998 By: Katherine E. Stone, Myers, Widders, Gibson & Long, LLP UPDATE LAND USE AND ENVIRONMENTAL CASES October 1, May 31, 1998 INTRODUCTION This paper summarizes land use and environmental cases which appeared in the Daily Journal between October 1, 1997 and May 31, They are organized according to the outline contained in the City Attorney's Handbook. * V. POLICE POWER A.1 Authority * County of Mobilehome Positive Action Committee, Inc. v. County of San Diego (1998) Cal.App.4th, Cal.Rptr.2d 98 Daily Journal D.A.R Holding: Mobilehome rent regulation ordinance imperissibly restrict future County Board's exercise of police power. This case contains a good discussion of the rule that local agencies may not contract away its right to exercise its police power in the future. San Diego County imposed a 15-year moratorium on the enactment of any rent control legislation pursuant to an Accord between the County and an association of mobilehome park owners. The court analyzed the cases and concluded that the controlling consideration in this area appears to be whether a disputed contract amounts to a local entity's `surrender,' `abnegation,' `divestment,' `abridging,' or `bargaining away' of its control of a police power or municipal function. The court noted that under the agreement, the County appears to be exposing itself to breach of contract damages and stated [t]he vice of this ordinance, as tied to the Accord, is that it chills the County's exercise of police power for the specified time, even if there are significantly changed circumstances, through such potential exposure to litigation and damages. The court concluded that we believe the Accord and the related ordinance represent an express effort by the County to `surrender,' `abnegate,' `divest,' `abridge,' or `bargain away' its control of a police power or municipal function, due to its acceptance of the Association's version of rent stabilization, and due to the possibility of the monetary consequences of any breach of this Accord (whether damages or litigation * Cases that will be discussed in greater detail are designated with an asterisk ( * ). 1

2 expenses.) This reasoning could be applied to certain settlement agreements and development agreements. * Cases that will be discussed in greater detail are designated with an asterisk (*) A.3.Preemption Burbank-Glendale-Pasadena Airport Authority v. City of Burbank (9th Cir. 1998) F.3d 98 Daily Journal D.A.R Holding: Joint powers agency created under state law lacks standing to assert federal preemption under state statute. The Airport Authority, a joint powers agency, sued the City of Burbank claiming the City's review of the Authority's expansion of the airport pursuant to Public Utilities Code is preempted by federal law. The federal court of appeals, applying federal law, held that both the Authority and the City are political subdivisions of the state and therefore barred from challenging the constitutionality of state statutes in federal court. The court noted that political subdivisions of the state are permitted to challenge the constitutionality of state laws in state courts in certain circumstances. First Presbyterian Church of Berkeley v. City of Berkeley (1997) 59 Cal.App.4th 1241, 69 Cal.Rptr.2d Daily Journal D.A.R Holding: The Ellis Act pre-emits municipal regulations regarding landlord's ability to demolish residential property, but not environmental regulations. The Ellis Act does not make demolition permits ministerial. Through a somewhat complicated and protracted administrative process, the City of Berkeley eventually designated the church's property a landmark under the City's landmark preservation ordinance and required the preparation of an EIR on the church's demolition permit application. The church invoked the Permit Streamlining Act ( PSA ) and claimed the permit was deemed approved. The church's petition for a writ of mandate and complaint for damages alleged some 13 causes of action. The trial court ruled that the issuance of a demolition permit is purely ministerial under the Ellis Act (Gov't Code 7060, et seq.), and therefore not subject to CEQA. The trial court also ruled that the City's neighborhood Preservation Ordinance and Landmark Preservation Ordinance were preempted by the Ellis Act. The court of appeal held that the Ellis Act does not bar the City from exercising discretionary review of the church's application for a demolition permit under the Landmark Preservation Ordinance and CEQA with respect to the historic or aesthetic values of the building without any regard to considerations as to future construction of residential units on the Property, the habitability of the Building 2

3 sought to be demolished, or the provision and maintenance of rental housing in the City. Gibson v. County of Riverside (9th Cir. 1997) 132 F.3d Daily Journal D.A.R. 27 Holding: State Legislation can exempt County from statutory ban on senior-only zoning. California Government Code 65008(a)(1) prohibits zoning discrimination on the basis of race, sex, color, ethnicity, national origin, lawful occupation or age. After the federal district court ruled the County of Riverside's seniors-only zoning invalid, the Legislature enacted Government Code 65008(e) which retroactively validated the County's zoning. The district court ruled that the amendment was an invalid retroactive change in the law and exceeded the State Legislature's constitutional federal power. The Ninth Circuit Court of Appeals held the Legislature has the power to revalidate and lift a prohibition on the County's seniors-only zoning ordinance. The court of appeals stated that the district court's ruling: constitutes an unwarranted intrusion into the powers and prerogatives of the State Legislature and State government. Lake Cadena Investments, Ltd. v. City of Colton (1997) 60 Cal.App.4th 1046, 70 Cal.Rptr.2d Daily Journal D.A.R Holding: City's rent stabilization ordinance is pre-empted by mobilehome residency law. Appellate opinion decertified. Westhaven Community Development Council v. County of Humboldt (9th Cir. 1998) F.3d 98 Daily Journal D.A.R Holding: Forest Practice Act pre-empts county ordinance creating local permit requirements for timber operations. The court interpreted the County's zoning ordinance which permits timber harvesting a conditionally permitted use in single family residential zones as preempted even though zoning which controls the location of timber harvesting is not. The court reasoned that the CUP process allows too much discretion and creates too much delay. The court believed that CUPs and zoning restrictions are significantly different. The former being preempted; the latter not. A. 5. Eminent Domain Akins v. State of California (1998) 61 Cal.App.4th 1, 71 Cal.Rptr.2d 314 3

4 98 Daily Journal D.A.R. 963 Holding: The reasonableness test for inverse condemnation is not applicable if flood control project intentionally diverts water to property not historically subject to flooding. This case was remanded to the court of appeal by the Supreme Court following its decision in Bunch v. Coachella Valley Water District (1997) 15 Cal.4th 432, 63 Cal.Rptr.2d 89. In Bunch, the court ruled that, in order to meet the test for inverse condemnation in cases where levees and dikes fail to provide flood protection, property owners must show that the government's design and maintenance of the flood control facilities created an unreasonable risk of property damage. In Akins, the court of appeal held that the reasonableness rule does not apply if the water was intentionally diverted to properties not historically subject to flooding in order to protect lower lying land. The court reasoned that using private property not historically subject to flooding as a retention basin to provide flood protection to other property exacts from those owners whose properties are flooded a contribution in excess of their proper share to the public undertaking. We see no reason to put such property owners to the task of proving the governmental entities acted unreasonably in order for the owners to recover in inverse condemnation. The court noted that Bunch and the prior Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550, 253 Cal.Rptr. 693 case both involved project failures, not the intentional use of private property as a retention basin to protect other property. Contra Costa Water District v. Vaquero Farms, Inc. (1997) 58 Cal.App.4th 883, 68 Cal.Rptr.2d Daily Journal D.A.R Holding: Government can sever and reserve to landowner his windpower rights after taking property in eminent domain proceeding. The Water District condemned four parcels of undeveloped land totalling about 3,500 of the landowner's 6,000 acres in connection with a reservoir project. Portions of the condemned properties are subject to leases for windpower machines. The Water District determined to sever and reserve to the landowner the windpower rights from the fee acquisition. In a case of first impression, the court of appeal held that windpower rights, like mineral rights, can be severed from the fee taking by the condemnor. The court also rejected the landowner's Klopping, pre-condemnation delay, unreasonable conduct claim applying the substantial evidence test to the trial court's factual determination. The jury's award of severance damages was also upheld as adequate noting that it is within the province of the trier of fact to reconcile conflicting testimony when presented with wide discrepancies in the estimates of value and damage by witnesses for each side. 4

5 City of Lake Elsinore v. Ranel Development Co. (1997) 59 Cal.App.4th 812, 70 Cal.Rptr.2d 7 97 Daily Journal D.A.R Holding: Court errs by dismissing eminent domain claim after City fails to adopt resolution. This case concerns the award of litigation expenses in condemnation/inverse condemnation cases. The City of Lake Elsinore filed an eminent domain case. By answer, the landowner contended that the City had no right to take and cross-complained for inverse condemnation. The trial court ruled the City had not adopted a resolution of necessity and the case was tried as an inverse condemnation case. The landowner would not have been entitled to litigation expenses in an eminent domain proceeding because there had been a good faith offer. (C.C.P ) The trial court awarded the landowner litigation expenses under C.C.P [inverse condemnation]. The court of appeal ruled that a resolution of necessity had been properly adopted and the trial court could not award litigation expenses under C.C.P even though the compensation issues were the same in the direct and inverse condemnation causes of action. B. Land Use 1. f Permit Streamlining Act * Bickel v. City of Piedmont (1997) 56 Cal.App.4th 1924, 42 Cal.Rptr.2d Daily Journal D.A.R Holding: The Permit Streamlining Act does not prohibit development project applicant from waiving time limits for Agency decision. Landowner asserted that his application for second story addition had been deemed approved by operation of law because the Piedmont Planning Commission had neither approved nor disapproved the application within the permit streamlining time limits. The California Supreme Court held the time limits are subject to the common law doctrine of waiver because the limits are primarily for the benefit of applicants instead of for a public purpose and the language of the Act does not prohibit waiver. The court points out that a no-waiver rule would unfairly reward those applicants who, anticipating a denial of their land-use permit applications, request or agree to a continuance then assert that the application has been deemed approved. 4. Regional Planning Issues * City of Hawaiian Gardens v. City of Long Beach 5

6 (1998). Cal.App.4th, Cal.Rptr.2d 98 Daily Journal D.A.R Holding: City cannot close street at border with another city when significant negative impact may result. Attorney's fees motion correctly denied. In an effort to reduce traffic and safety problems, the City of Long Beach closed Pioneer Boulevard, a collector road which runs through the City of Hawaiian Gardens into a Long Beach neighborhood. Long Beach prepared an EIR and adopted a statement of overriding considerations for the increased traffic on streets in Hawaiian Gardens. Relying on City of Poway v. City of San Diego (1991) 229 Cal.App.3d 847, 280 Cal.Rptr.368, the court of appeal held that the road serves a regional function and its closure would have a significant negative impact in Hawaiian Gardens, therefore closure was not authorized under Vehicle Code 2110(f). The court also affirmed the trial court's ruling that Hawaiian Gardens was not entitled to attorney's fees under Code of Civil Procedure because it did not demonstrate that the necessity of the litigation burdened it out of proportion to its stake in the outcome. 9. Exactions: fees and dedications Blake v. City of Port Hueneme (1997) 58 Cal.App.4th 1338, 68 Cal.Rptr.2d Daily Journal D.A.R Holding: Special assessments against real property which do not provide special benefits to homeowners are invalid. The City of Port Hueneme created a park district to maintain its beach park and provide lifeguards and other services. The district created 3 property zones and assessed 1,252 residences in graduated and apportioned amounts depending upon view, proximity and access to the beach and square footage of the property. The court of appeal ruled that the assessment violates both the Landscaping and Lighting Act (Sts. & Hy. Code 22500, et seq.) and the Constitution because the assessed properties received only the most attenuated special benefit from beach maintenance, lifeguards and administrative services. Little, if any, nexus exists between views of the beach and maintaining the beach park for safe use. The court concluded that the levies constitute special taxes. 11. Permits to Build Trancas Property Owners Association v. City of Malibu (1998) Cal.App.4th, Cal.Rptr.2d 98 Daily Journal D.A.R Holding: Development permit requiring project commencement by a date certain, does not require actual construction to avoid permit's expiration. 6

7 After more than 10 years of environmental review in 1992, the Coastal Commission granted a coastal permit for a condominium project in Malibu. The permit provided that [i]f development has not commenced, the permit will expire on a date certain. The court interpreted the Coastal Commission's regulations for project commencement on the date the final map was approved as distinguished from commencement of construction. 12. Housing Hall v. Butte Home Health, Inc. (1997) 60 Cal.App.4th 308, 70 Cal.Rptr.2d Daily Journal D.A.R Holding: Restrictive covenant prohibiting group home for disabled is unenforceable (not an impairment of contract (CC&Rs)). This case contains a good discussion of the law of impairment of contracts. CC&Rs recorded in 1960 limited use of the lots in a subdivision to one single family residence. Government Code and prohibit discrimination through enforcement of restrictive covenants prohibiting group homes for the disabled. The trial court ruled that the retrospective application of the Government Code sections to the pre-existing covenants would be an unconstitutional impairment of contract. The court of appeal reversed holding that the amendments were intended to bring California law into compliance with federal law. The court pointed out that an impairment of contract exceeds constitutional bounds only if it is substantial and that the effect of the operation of the group home on plaintiff's property rights is de minimis. 13. Tidelands, Beaches & Streams Citizens for Open Access to Sand and Tide, Inc. v. Seadrift Association, et al. (1998) 60 Cal.App.4th 1053, 71 Cal.Rptr.2d Daily Journal D.A.R. 497 Holding: Action for implied dedication of public recreational easement is barred by doctrine of res judicata. This case concerns a century long tide of controversy and litigation over public access to Bolinas Sandspit in Marin County. The Coastal Commission and the State Lands Commission entered into a settlement agreement which resolved state and federal litigation between landowners and the state agencies. A citizen's group then sued under the doctrine of implied dedication. The court of appeal held the members of the public were bound by the settlement agreement under the doctrine of res judicata. 7

8 United States of America v. State of Washington (9th Cir. 1998) F.3d 98 Daily Journal D.A.R Holding: Indian Tribes have right to take all species of shellfish in their traditional fishing areas. This case concerns a dispute between the State of Washington, private owners of tidelands, commercial shellfish growers and numerous Indian Tribes over the Tribes' rights to take shellfish under Treaties. The court ruled that the Tribes have the right to take all species of shellfish at all locations where they customarily fish, including privately owned tidelands, and that the equal footing doctrine does not preclude tribal harvesting. 14. b. Regulatory & Physical Takings California Coastal Commission v. Buckley (1997) 58 Cal.App.4th 460, 68 Cal.Rptr.2d Daily Journal D.A.R Holding: Coastal Commission loses jurisdiction over development of lot after placing it within a single family residence construction area. $2,187, takings damages, costs and attorney's fees award reversed. In 1991, Buckley applied for a permit to grade the rear portion of their lot in Malibu. The Coastal Commission denied the permit because development would be inconsistent with environmentally sensitive habitat areas. Buckley did not appeal. The County determined that the Commission had no jurisdiction over the lot and issued a permit. The Commission issued a stop work order. Buckley sued for declaratory relief and damages. The trial court and the court of appeal ruled that Buckley was not required to file a writ petition at the time the application was denied because the Commission did not have jurisdiction over the portion of the lot under the Coastal Act. Buckley's application did not and could not confer subject matter jurisdiction on the Commission. The rule of exhaustion of administrative remedies does not apply and the takings claim is not barred by the failure to file a writ petition. The court of appeal reversed the trial court's ruling that the Commission's prohibition of grading was a per se taking. The Commission's assertion of jurisdiction over the rear portion of the lot did not prevent development of the remainder of the lot. Del Monte Dunes v. City of Monterey (9th Cir. 1997) F.3d 97 Daily Journal D.A.R

9 Holding:Court of appeals applied strict scrutiny (Nollan) test to permit denial and let jury decide takings liability. Suggestion for hearing en banc rejected; petition for review filed. Lambert v. City and County of San Francisco (1997) 57 Cal.App.4th 1172, 67 Cal.Rptr.2d Daily Journal D.A.R , review granted (1998) 71 Cal.Rptr.2d 215 Holding: City's denial of permits to convert residential hotel units to tourist units does not effect a taking. Petition for review granted Cal. S.Ct. Lechuza Villas West v. California Coastal Commission (1997) 60 Cal.App.4th 218, 70 Cal.Rptr.2d Daily Journal D.A.R Holding: Property owner does not establish a development right absent establishment of location of legal seaward boundary. Plaintiff applied to build 17 homes and a 985 foot revetment on 17 coastal lots which had been subdivided in The State Lands Commission advised the plaintiff that the seaward boundary of the lots had not been fixed and that the proposed development may be located on state tidelands. The Coastal Commission denied the application because plaintiff did not meet its burden of showing that the project would not encroach on public tidelands. Plaintiff filed an action for a writ of mandate, declaratory relief and a temporary and permanent taking. The trial court ruled in favor of the Commission on the mandate and declaratory relief cause but did not enter judgment because of the one judgment rule, Morehart v. County of Santa Barbara. Plaintiff amended to add another mandate cause and quiet title action against the State Lands Commission and those asserting public prescriptive rights and a homeowners' group asserting private prescriptive rights under the CC&Rs. Another trial judge ruled on the location of the seaward boundary and on the homeowners' private easement claim and then granted plaintiff's motion for summary judgment holding the Coastal Commission's denial of the permit constituted a temporary taking. The trial court remanded the matter to the Coastal Commission pursuant to Code of Civil Procedure (e) directing the Commission to set aside its denial of plaintiff's application and reconsider it in light of the fixed boundary. The court of appeal treated the Commission's appeals from these rulings as a petition for an extraordinary writ and reversed. The court held that: (1) there was no legal basis to remand the matter pursuant to Code of Civil Procedure (e), a writ would be 9

10 premature until a decision on the coastal boundary became final; (2) the temporary takings claim was also premature because there was no final governmental decision; plaintiff did not establish that it had a right to develop because it had not established the location of its seaward boundary and the homeowner's private easement; (3) the coastal boundary is ambulatory, not fixed; it moves with erosion and accretion. Liontos v. County Sanitation Districts of Los Angeles County (1998) Cal.App.4th, Cal.Rptr.2d 98 Daily Journal D.A.R Holding: Property owner can recover for impairment of access caused by public improvement work if impairment unnecessary. The Districts' construction project was estimated to take 3 months. For the construction, the Districts restricted traffic with barricades near Monk's restaurant causing decreased business. The construction ceased but the barricades remained for seven or nine months before construction resumed. The trial court granted summary judgment in favor of the Districts on the ground that the temporary interference with access was reasonable. The court of appeal reversed holding that the Districts failed to show that the delay was necessary. The court stated the rule as: [a]djacent property owners cannot complain about the consequences of reasonable public improvement works on public streets, at least so long as access to their property is not completely blocked. However, the law does allow recovery for interference with access when the interference is both substantial and unnecessary. Milagra Ridge Partners, Ltd. v. City of Pacifica, et al. (1998) Cal.App.4 th, Cal.Rptr.2d 98 Daily Journal D.A.R Holding: Takings claim fails under ripeness doctrine when zoning designations leave property use speculative. In June 1986, the City of Pacifica denied plaintiff's application to build a 144 unit townhouse development on 45 acres of property on the grounds it would have adverse visual/aesthetic impacts on ridgelines and was inconsistent with the City's general plan goal of minimizing grading on ridgelines as well as the City's subdivision ordinance regarding lot size and grading. A month later, the City adopted a moratorium limiting development while it updated its general plan. The revised general plan, zoning, hillside regulations and a transfer of development rights program were adopted in In 1995, the City approved 63 units on 66 lots which required a general plan amendment. The opponents filed a referendum and the voters rejected the general plan amendment. Milagra sued in mandate and for a taking. The court of appeal affirmed the trial court's rulings sustaining the City's demurrer to the mandate cause of action and summary judgment on the takings claim on the ground that the claim was not ripe. Although the 10

11 current general plan apparently severely limited development, the court held that, because Milagra had not submitted an application under the current zoning, the court had no way of determining how the City will react to a development proposal. The court held that the futility exception to the ripeness doctrine was not applicable because the general plan does not preclude all development and the City had demonstrated support generally for development of the property. Scott v. City of Del Mar (1997) 58 Cal.App.4th 1296, 68 Cal.Rptr.2d Daily Journal D.A.R Holding: Removal of seawalls and patios encroaching on public beach is not compensable under taking principles. Plaintiffs' oceanfront homes had seawalls and private patios built in 1928 and 1946 which encroached feet westerly of their lot lines onto the public beach. In 1988, Del Mar adopted by initiative a Beach Overlay Zone which requires removal of pre-existing encroachments onto the public beach. After a lengthy administrative process, Del Mar removed the seawalls and plaintiffs sued in inverse condemnation. The court of appeal ruled that the trial court correctly determined that the underlying land had been dedicated for public use in 1907 and that the City had not abandoned and was not estopped to claim the property. As to the takings claims, the court held that the encroachments were public nuisances and could be removed without compensation and that the diminution in value did not amount to a taking. 14.d.Substantive Due Process * Kucera v. Lizza (1997) 59 Cal.App.4th 1141, 69 Cal.Rptr.2d Daily Journal D.A.R Holding: Local ordinance which preserves views and sunlight against unreasonable obstruction by tree growth is valid. The town of Tiburon's View and Sunlight Obstruction from Trees ordinance establishes the right of persons to preserve views or sunlight which existed at any time since they purchased or occupied a property from unreasonable obstruction by the growth of trees. The comprehensive ordinance imposes a progression of informal and alternative dispute resolution before resorting to litigation. The trial court held the ordinance void as preemptive, arbitrary and capricious. The court of appeal reversed holding the ordinance does not conflict with Civil Code sections governing easements and does not violate substantive due process pointing out that aesthetics alone is a valid exercise of the police power. Preservation of sunlight and neighborhood character is legitimate public interest. VI. ENVIRONMENTAL QUALITY 11

12 B. CEQA (and NEPA Cooper v. Mountains Recreation and Conservation Authority (1998) Cal.App.4th, Cal.Rptr.2d 98 Daily Journal D.A.R Holding: Joint powers agency did not overpay for parkland, purchase is categorically exempt from CEQA; no demand to cure made for alleged Brown Act violation. Taxpayer sued a joint powers agency composed of the Santa Monica Mountains Conservancy and two park districts over the expenditure of $19,891,000 to purchase parklands. The court of appeal affirmed the trial court's ruling that the Agency paid fair market value, acted within its authority and did not violate CEQA because the purchase is categorically exempt. The Brown Act claim could not be a basis for setting aside the purchase because plaintiff did not make a demand to cure. (Gov't Code (b).) Idaho Sporting Congress and American Wildlands v. Thomas (9th Cir. 1998) F.3d 98 Daily Journal D.A.R Holding: Forest Service must provide data showing proposed timber sale will not result in significant environmental impact. In this case, the Forest Service prepared an environmental assessment in lieu of an EIS for the sale of timber in Idaho watersheds. The Ninth Circuit held an EIS was required because the sale may impact water quality and fisheries and the cumulative impacts of sales must be addressed. Galante Vineyards v. Monterey Peninsula Water Management District (1997) 60 Cal.App.4th 1109, 71 Cal.Rptr.2d 1 98 Daily Journal D.A.R. 581 Holding: Party can bring action to set aside EIR if objection raised before certification. On January 14, 1998, the California Supreme Court issued an order to publish the entire decision in Galante. The decision, which the court of appeal certified for partial publication in August of 1997, stems from a long-standing effort by the Monterey Peninsula Water Management District (District) to secure a long-term water supply for the Monterey Peninsula. As published in August, the court held that a party may challenge an agency's certification of an EIR under CEQA as long as the party exhausts its administrative remedies at some point prior to certification of the EIR at issue. The now-published portions of the opinion found the EIR at issue defective in a number of respects. The court first found the project description in the EIR to be inadequate 12

13 because it included only passing reference to viticulture or wineries, despite the fact that the District had previously been advised of the importance of viticulture in the.. area by the petitioners. As a result of the defective project description, the court concluded a proper analysis of project impacts was impossible. The court also found that the EIR failed to analyze the project's impacts on viticulture, particularly in the areas of traffic, air quality and climate and the EIR defective because it failed to address, analyze, or mitigate the potential climatic influences of the reservoir construction on the Cachagua Valley and its agricultural land uses. The now-published portions of the decision addresses the propriety of an attorneys' fees award to petitioners under Code of Civil Procedure The District argued the award was improper because some of the petitioners had a significant financial interest in the outcome of the case because of their interests in the viticulture industry. The court noted that the trial court reduced the attorneys' fees lodestar by a factor of 50 percent to offset petitioners' financial interest in the outcome of the litigation and that the judgment afforded petitioners no direct pecuniary benefit and that any future money advantage was speculative. The court concluded the trial court did not abuse its discretion by awarding petitioners attorneys' fees. City of Los Angeles v. Federal Aviation Administration (9th Cir. 1998) F.3d 98 Daily Journal D.A.R Holding: Agency conclusion that airport terminal expansion will not materially affect usage satisfies statute's hard look requirement. The cities of Los Angeles and Burbank challenged the environmental review for the expansion of the Burbank-Glendale-Pasadena Airport in state and federal courts. The state court concluded that the EIR for the project was inadequate because it did not consider the assumption that the project will cause significantly increased demand: [i]f you build it they will come. The federal court of appeals, Judge Kozinski, upheld the EIS even though it contained no such assumption. The court agreed with the FAA's explanation that: [i]f you don't build it, they will come anyway. * Los Angeles Unified School District v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 68 Cal.Rptr.2d Daily Journal D.A.R Holding: Environmental impact report for development plan is inadequate for failure to address traffic noise at schools. The City of Los Angeles' EIR for the Warner Center project concluded that a dba increase in the existing ambient noise level at nearby schools, which already exceeded the Department of Health's recommended maximum, was insignificant. The court of appeal reversed the trial court's decision and stated: the relevant issue to be addressed 13

14 in the EIR on the Warner Center Specific Plan is not the relative amount of traffic noise resulting from the project when compared to existing traffic noise, but whether any additional amount of traffic noise should be considered significant in light of the serious nature of the traffic noise problem already existing around the schools. The court also held that the EIR was inadequate because it failed to consider the school district's suggested mitigation measure for air pollution -- air conditioning and filtering. McDowell v. Watson (1997) 59 Cal.App.4th 1155, 69 Cal.Rptr.2d Daily Journal D.A.R Holding: No award of attorney's fees if relief sought is essentially injunctive in nature. Challenging various land use approvals by Riverside County, the McDowells filed a petition for writ of mandate under CEQA. Watson served an offer, `pursuant to Code of Civil Procedure 998 and former , to compromise and settle...in exchange for petitioners dismissing the matter with prejudice. Each party...to bear its own costs and attorney's fees.' The McDowells refused the offer. After the trial court entered judgment in favor of the county and Watson, Watson sought to recover its costs of suit including attorney's fees from the McDowells. The court of appeal acknowledged that the prerequisites for an award of attorney's fees under former section had been met but interpreted former section to prohibit an award of attorney's fees incurred to litigate an essentially injunctive CEQA petition. A new section 998 appears to include attorney's fees as costs. Watson also filed a motion for sanctions under Public Resources Code which provides that courts may sanction any party that fails to participate in CEQA's mandatory settlement meeting. The county gave the required notice and counsel for the McDowells, the county, and Watson attended the settlement meeting. Watson himself also attended. Watson argued in its motion for sanctions that the McDowells, by failing to personally attend the settlement meeting, did not participate in settlement as allegedly required by CEQA. The court noted that in the countless procedural statutes in which the term `party' is used, it is commonly understood to refer to either the actual litigant or the litigant's attorney of record. Noting that no such contrary meaning is indicated by the language of the pertinent statutory provision, the court rejected Watson's claim that, absent the personal attendance of the actual litigants, settlement discussions under CEQA were not, and could not, be meaningful. Neighbors of Cuddy Mountain and Idaho Sporting Congress, Inc. v. United State Forest Service (9th Cir. 1998) F.3d. 98 Daily Journal D.A.R Holding: In analyzing proposed timber sale impact, Forest Service must demonstrate consistency in impact on indicator species. 14

15 The Ninth Circuit Court of Appeals held that the National Forest Service failed to comply with the substantive requirements of the National Forest Management Act and NEPA in its proposed sale of timber. The cumulative impact analysis and description of mitigation measures in the EIS were inadequate and the Forest Service's action is inconsistent with the applicable Forest plan. Northcoast Environmental Center v. Glickman (9th Cir. 1998) F.3d 98 Daily Journal D.A.R Holding: Federal agency's active plan setting species preservation and timber sales guidelines does not require an EIS under NEPA. An environmental group challenged a federal interagency management plan for Pacific Northwest Forests. The Ninth Circuit held the plan was not arbitrary or capricious and that the plan does not call for specific enough action to trigger NEPA. Schoen v. California Department of Forestry & Fire Protection (1997) 58 Cal.App.4th 556, 68 Cal.Rptr.2d Daily Journal D.A.R Holding: Approving analysis of cumulative impacts as minor deviations to timber harvest plans is in error. In 1989, the California Department of Forestry and Fire Protection ( CDF ) had approved two timber harvest plans ( THPs ) for 280 acres of forest for Louisiana-Pacific. In 1991, the Board of CDF enacted new THP regulations requiring a cumulative impact assessment of certain resource subjects. CDF requested Louisiana-Pacific to amend its THPs and comply with the new regulations. Louisiana-Pacific sued and the California Supreme Court ultimately ruled that CDF had authority to require compliance with subsequent regulations. (Public Resources Protection Assn. v. Department of Forestry & Fire Protection (1994) 7 Cal.App.4th 111, 27 Cal.Rptr.2d 11.) In 1994, CDF again requested that Louisiana-Pacific amend its THPs. Louisiana-Pacific submitted minor amendments which were approved by CDF without public review. The trial court ruled that CDF had no mandatory duty to require public review. The court of appeal held that under the Forest Practice Rules, which incorporate CEQA, the supplemental cumulative impact analysis could not be considered a minor deviation and public review was required, even if the change in operation will not have any environmental impact. The court distinguished the situation where a supplemental EIR is required noting that with a supplemental EIR, the public has already reviewed the cumulative impact analysis. In this case, there had never been any review of cumulative impacts under the Forest Practice Rules. Tyler v. Cisneros, City and County of San Francisco, etc. 15

16 (9th Cir. 1998) F.3d 98 Daily Journal D.A.R Holding: Historic Preservation Act claims regarding federal housing funds after release, are not barred by statute of limitations. This case concerns a challenge by neighboring homeowners to a federally funded low income housing project in San Francisco. The district court dismissed the NEPA and National Historic Preservation Act (NHPA) claims as moot and barred by statutes of limitation because the federal agency had already disbursed the funds. The Ninth Circuit reversed holding that laches, not an implicit statute of limitation, applies to both the NEPA and NHPA claims and the claims were not moot because the federal agency and the City have continuing obligation under a Memorandum of Agreement which was designed to mitigate impacts on plaintiffs' homes. C. Air Quality The Alliance of Small Emitters/Metals Industry, et al. v. South Coast Air Quality Management District (1997) 60 Cal.App.4th 55, 70 Cal.Rptr.2d Daily Journal D.A.R Holding: State Clean Air Act and CEQA require estimates of socioeconomic effects only to the extent data is available. Plaintiff contended that the Air Quality District adopted a market based pollution rights program (RECLAIM) without adequately analyzing its socioeconomic and environmental effects under the California Clean Air Act and CEQA. The court of appeal, exercising its independent review, affirmed the trial court's findings that the district complied with Health & Safety Code in its assessment of future socioeconomic effects of the program stating when insufficient data are available to make a reasonable projection of socioeconomic impact the SCAQMD remains empowered to adopt regulations. As to the CEQA claim, the court concluded the SCAQMD's failure to predict RECLAIM's future environmental impacts for the years post-2000 was proper because any efforts to assess the impacts of unknown and unknowable technology would be pure speculation. D. Water Quality State of Montana, etc. v. USEPA (9th Cir. 1998) F.3d 98 Daily Journal D.A.R Holding: EPA can authorize Indian tribes to set water quality standards for non-indians on reservation land. 16

17 The federal Clean Water Act authorizes the EPA to permit Indian tribes to be treated as a state (33 U.S.C. 1377). State and municipal entities who own land within the boundaries of a reservation in Montana attacked the EPA's decision to permit the tribes to regulate pollutant emissions from their lands. The federal court of appeals rejected the claim noting that the 10th Circuit ruled that tribal water quality standards could be more stringent than federal standards. Waste Action Project v. Dawn Mining Corp. (9th Cir. 1998) F.3d 98 Daily Journal D.A.R Holding: Uranium mill tailings are not subject to the EPA's pollutant discharge system permitting requirements. The federal court of appeals interpreted the federal Clean Water Act as exempting uranium mill tailings because they are regulated under the Atomic Energy Act. State of California v. Campbell (9th Cir.) 1998) F.3d. 98 Daily Journal D.A.R Holding: Summary adjudication on state nuisance and environmental claims as part of injunction is appealable even though federal claims are not final. This is a groundwater pollution case where the Ninth Circuit concluded that it had appellate jurisdiction over the state law claims even though the federal claims were not final. F. Hazardous Waste and Contaminated Property Laws Ashoff v. City of Ukiah (9th Cir. 1997) 130 F.3d Daily Journal D.A.R Holding: Resource conservation statute does not authorize federal citizen suits only alleging state standards exceed federal criteria. Plaintiffs sued the City of Ukiah in federal court alleging the City's landfill violated RCRA, the Clean Water Act and state law. The court of appeals ruled that the federal court lacks subject matter jurisdiction over private enforcement of more stringent state standards that exceed federal RCRA criteria. By contrast, the CWA does authorize federal suits based on more stringent state CWA standards. Steel Co., aka Chicago Steel & Pickling Co. v. Citizens for a Better Environment (1998) U.S., S.Ct., L.Ed. 17

18 98 Daily Journal D.A.R Holding: Environmental organization does not have standing to sue manufacturer for past violations of hazardous chemical right to know laws. The Supreme Court interpreted the citizen suit provision of the Emergency Planning and Community Right-To-Know Act (EPCRA), 42 U.S.C (a)(1), as not authorizing suits for past violations. VIII. LIABILITY AND LITIGATION E. Municipal Liability 5.a.(5) Federal Statutory Provisions * Bogan v. Scott-Harris (1998) U.S., S.Ct., L.Ed._98 Daily Journal D.A.R Holding: Local legislators are entitled to absolute immunity from Civil Rights Act suits for legislative activities. The Supreme Court ruled unanimously that local legislators are entitled to the same absolute immunity from civil liability under 42 U.S.C for their legislative actions as has long been accorded to federal, state and regional legislators. The decision reversed the 1st Circuit, which had allowed a suit by a former city official in Fall River, Mass., against the city's mayor and various city council members, alleging that the elimination of her department was motivated by racial animus and by a desire to retaliate for her exercise of her First Amendment rights. Writing for the court, Justice Clarence Thomas said that the common law accorded local legislators the same absolute immunity it accorded legislators at other levels of government, and that the rationales for such immunity are fully applicable to local legislators. The circuit court also erroneously relied on [the officials'] subjective intent in resolving the logically prior question of whether their acts were legislative, Thomas said. Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it, and here the officials' actions clearly were legislative. 5. a. (18) Forum Considerations * City of Chicago v. International College of Surgeons 18

19 (1997) U.S., S.Ct., L.Ed. 97 Daily Journal D.A.R Holding: Federal jurisdiction exists for claim local administrative action violates federal law and state law claim. The U.S. Supreme Court has concluded that a case containing claims that local administrative action violated federal law, but also containing state law claims for on-the-record review of administrative findings, could be removed to federal district court. The City of Chicago denied the International College of Surgeons' (ICS) application to demolish two mansions which were designated historical landmarks under the City's historical landmark ordinance. ICS sued contending the ordinance violated due process and equal protection clauses, and the Fifth and Fourteenth Amendments. The City had the case removed to federal court on the basis of federal question jurisdiction. After dismissing some of the constitutional claims and exercising supplemental jurisdiction over the state law claims, the district court granted summary judgment in favor of the City. The 7th Circuit reversed and remanded to state court after ruling the district could did not have jurisdiction. The U.S. Supreme Court reversed and remanded. There was nothing in the jurisdictional statutes nor prior case law which suggested that federal jurisdiction is lacking in a case claiming that local administrative action violates federal law. Defendants can remove to federal court civil actions brought in state court in which the district could have original jurisdiction. The propriety of the removal depends on whether the case could have been originally filed in federal court. By raising several claims that arise under federal law, ICS subjected itself to the possibility that the City would remove the case to the federal courts. The district court properly exercised supplemental jurisdiction over the state law claims once federal jurisdiction was established. The fact that the state law claims required review of an administrative record did not make them a civil claim over which the district court could not claim jurisdiction. * Dodd v. Hood River County (9th Cir. 1998) F.3d 98 Daily Journal D.A.R Holding: Issues in state administrative and judicial proceedings preclude relief in parallel federal takings claim. This case which arises out of Hood River County, Oregon contains an interesting discussion of the interplay between state and federal takings claims. The Dodds purchased 40 acres of Forest lands to build a retirement home at a time when state law prohibited such a use, but local zoning would have allowed it. Local zoning was eventually brought into conformity with state law. Dodd sought local land use permits through an administrative process where the local agency found that there was no taking 19

20 under Oregon law because the land could produce a net profit through timber harvesting. The Oregon courts affirmed the administrative decision holding that the administrative record supported the decision. The Dodds expressly reserved their federal takings claim in state court and sued in federal court. The federal district court held that collateral estoppel (issue preclusion) prevented the Dodds from relitigating the issue decided in the Oregon administrative proceedings and affirmed by the Oregon courts -- i.e., that the Dodds had some substantial beneficial use of their property and thus there was no categorical taking under federal law. The federal court of appeals went on to decide as a matter of law that there was no partial taking because the government's interest was legitimate and the Dodds did not have a reasonable investment expectation to avoid the state law. MISCELLANEOUS HOLDINGS Nelson v. Gorian & Associates, et al. (1998) 61 Cal.App.4th 93, 71 Cal.Rptr.2d Daily Journal D.A.R Holding: Soil substance damage complaint is time-barred since lot's grading completed over 10 years before suit. NBS Imaging Systems, Inc. v. State Board of Control, et al. (1998) 60 Cal.App.4th 328, 70 Cal.Rptr.2d Daily Journal D.A.R Holding: Court cannot reverse decision of administrative board based on legal theory never raised. San Diego Unified Port District v. Gallagher (1998) Cal.App.4th, Cal.Rptr.2d 98 Daily Journal D.A.R Holding: Port district's allocation of sites for long-term free anchorages subject to Americans with Disabilities Act. United States of America v. The Spokane Tribe of Indians (9th Cir. 1998) F.3d 98 Daily Journal D.A.R Holding: No injunction against the tribe under Indian Gaming Regulatory Act where state has refused to negotiate. 20