Update On Land Use And CEQA Cases (Cases Reported Between September 1, 2007 and May 2008)

Transcription

1 City Attorneys Department League of California Cities Spring Conference La Jolla, California May 2008 Update On Land Use And CEQA Cases (Cases Reported Between September 1, 2007 and May 2008) Thomas B. Brown Hanson Bridgett LLP 425 Market Street, 26th Floor San Francisco, CA (415)

2 V. POLICE POWER B. LAND USE 1. General 2. Planning 3. Zoning a. General Environmental Defense Project of Sierra County v. Sierra County (2008) 158 Cal. App. 4th 877 An environmental organization filed a complaint for declaratory relief, alleging that a county s policy of not giving 10 days notice of the board of supervisors hearing following receipt of the planning commission s recommendation on a proposed zoning change violated the Government Code. The trial court granted the organization s motion for summary judgment. The Court of Appeal affirmed the judgment. The court concluded that the county s streamlined zoning process did not comport with the Planning and Zoning Law (Gov. Code et seq.), and that the organization was entitled to declaratory relief. The county gave notice of the legislative body s hearing before the planning commission made its recommendation regarding a landowner s request for a zoning ordinance amendment to remove an existing prohibition on the subdivision of his land. The 10-day notice of the legislative body s hearing must be given after the planning commission s recommendation is received and must include the planning commission s recommendation as part of the general explanation of the matter to be considered. Effectively, the public was given only one full business day to prepare their comments on the planning commission s recommendation and changes for the board of supervisors hearing. As the organization s representative at the board of supervisors hearing commented, because of the county s streamlined process, she did not have sufficient time to conduct a meaningful review of the project recommended for approval, which detracted from the public s participation in the process. Neighbors in Support of Appropriate Land Use v. County of Tuolumne (2007) 157 Cal. App. 4th 997 An organization filed a petition for a writ of mandate, challenging a county s issuance of a conditional use permit allowing two property owners to use their property for weddings and similar events. The trial court entered judgment for the organization, finding that the county's action violated the Planning and Zoning Law (Gov. Code et seq.). The Court of Appeal affirmed the judgment. The court concluded that the county could not approve the owners application to devote a parcel of their property to a use disallowed by the applicable ordinance because the county did not rezone the property to a district allowing the use, did not amend the zoning ordinance to allow the use in the existing district, did not issue a

3 conditional use permit consistent with the zoning ordinance, and did not grant a variance. The county s decision to grant the parcel at issue an ad hoc exception allowing a commercial use in an agricultural zoning district an exception that was unavailable to other parcels in the same district violated the uniformity requirement of Gov. Code Contrary to the county s contention, it did not help that the ad hoc exception was contained in a development agreement approved pursuant to the development agreement law (Gov. Code, et seq.). Richeson v. Helal (2007) 158 Cal. App. 4th 268 The owners of a condominium that was on the same site as a neighborhood market sought to enforce deed restrictions against the owners of the market and to compel the closure of the market. The trial court rendered judgment for the condominium owners and issued a permanent injunction, based on its interpretation of two documents: (1) an agreement imposing restrictions (AIR) between the city and the former property owner and (2) a declaration of covenants, conditions, restrictions and reservation of easements (CC&R s). The Court of Appeal reversed the judgment with directions, holding that the AIR and CC&R s did not properly lend themselves to an interpretation that would prohibit the city from changing the permitted use or zoning. The AIR was a regulatory agreement between the city and the former property owner memorializing for the public s benefit a conditional use that had since been superseded by two new use permits. Although the AIR provided a termination date for the use, it did not prohibit the city from enacting future permits extending the nonconforming use. The CC&R s did not contain a termination date at all for the market and expressly contemplated that the city could issue future permits for the market. Further, if the documents had been construed to prohibit the city from changing the permitted use or zoning, they would have been invalid as an attempt by the city to surrender its future right to exercise its police power under Cal. Const., art. XI 7. b. Public Agencies c. Conditional Use Permits 4. Growth Management 5. Subdivision Map Act 6. Environmental Constraints 7. Building Regulations 8. Housing 9. Tidelands and Beaches Douda v. California Coastal Com. (2008) 159 Cal. App. 4th 1181 The California Coastal Commission denied plaintiffs' application for a coastal development permit to build a home, finding that plaintiffs property contained a previously undesignated environmentally sensitive habitat area and that the development would impair scenic and visual

4 resources. Plaintiffs filed a petition for writ of administrative mandate, challenging the denial of their application, but the trial court denied the petition. The Court of Appeal affirmed the order denying plaintiffs petition for writ of administrative mandate. The court concluded that the commission has the power under the California Coastal Act (Pub. Resources Code et seq.) to unilaterally designate environmentally sensitive habitat areas, and that Pub. Resources Code 30502, which gave the commission only until September 1, 1977, to designate sensitive coastal resource areas, does not restrict the commission s ability to protect environmentally sensitive habitat areas under Pub. Resources Code The commission can identify environmentally sensitive habitat areas prior to the certification of a local coastal program. The court rejected plaintiffs contention that Pub. Resources Code 30500, establishes that local governments essentially have exclusive say over the content of land use plans and local coastal programs. The commission, as the issuing agency, is obligated to reject developments that contravene the policies of the act. Pursuant to Pub. Resources Code 30251, the commission has the authority to regulate scenic and visual resources four and a half miles inland; the commission s power extends inland as far as the boundary of the coastal zone. Security National Guaranty, Inc. v. California Coastal Commission (2008) 159 Cal. App. 4th 402 The California Coastal Commission declared that an owner s oceanfront property was an environmentally sensitive habitat area (ESHA) (Pub. Resources Code 30240) during an administrative appeal from a city s grant of a coastal development permit (CDP). The trial court denied the owner s petition for writ of administrative mandamus and motion to remand the matter to the commission for further proceedings. The Court of Appeal reversed the trial court s denial of the owner s petition for administrative mandamus and ordered the trial court to issue a peremptory writ commanding the commission to vacate its decision and rehear the matter based on the standards set forth in the city s certified local coastal program (LCP). The court concluded that the California Coastal Act of 1976 (Pub. Resources Code et seq.) grants the commission no power to declare property an ESHA during a CDP appeal. The ESHA designation effected an amendment of the LCP, and the Coastal Act assigns the task of drafting and amending the content of an LCP exclusively to local government, pursuant to Pub. Resources Code 30500, (a). The commission s role is limited to determining whether a local government s LCP complies with the provisions of the Coastal Act. By declaring the owner s site an ESHA, the commission exceeded its statutory authority, improperly assumed powers expressly reserved to local government, and contradicted the terms of the certified LCP. In denying the owner s permit, at least in part, based on its unlawful ESHA designation, the commission imposed additional standards not found in the city s LCP. Accordingly, because the commission acted without, or in excess of its jurisdiction, pursuant to Code Civ. Proc (b), the owner was entitled to issuance of a writ of administrative mandamus. 10. Historic Preservation Valley Advocates v. City of Fresno (2008) 160 Cal. App. 4th 94 (see discussion under CEQA)

5 11. Dedications and Exactions 12. Challenges a. General Marine Forests Society v. California Coastal Com. (2008) 160 Cal. App. 4th 867 The trial court granted a nonprofit corporation s motion for an award of Code of Civil Procedure attorney fees against the California Coastal Commission after a judgment granting injunctive relief sought by the corporation was reversed on appeal. The corporation created an experimental marine forest. In response to cease and desist proceedings against it, the corporation filed a lawsuit that challenged the commission s authority, alleging that the appointment and removal process for members of the commission was unconstitutional. As a result of the lawsuit, a statutory amendment was passed that changed the appointment and removal process for members of the commission. The Court of Appeal reversed, holding that attorney fees could not be awarded because the corporation was no longer the prevailing party and was not entitled to fees under the catalyst theory. The corporation did not ultimately achieve judicially sanctioned relief because the judgment that had granted injunctive relief to the corporation was reversed. Moreover, the corporation s primary goal in filing suit was to save its experimental marine forest, not to change the law regarding the appointment and removal process for members of the commission. Thus, the corporation did not bring about a change in the commission s behavior in the manner it sought. Because the corporation did not obtain the primary relief it sought, attorney fees could not be awarded under the catalyst theory. Midland Pacific Building Corp. v. King (2007) 157 Cal. App. 4th 264 The trial court denied a Code Civ. Proc , special motion to strike a real estate buyer s complaint for breach of contract and fraud. The sellers sought and obtained preliminary approval for a high-density tract map, contrary to the parties agreement that the sellers would use their best efforts to obtain approval of a low-density tract map. The Court of Appeal affirmed, concluding that the sellers submitted the high-density tract map in official proceedings and in furtherance of the sellers right of petition and free speech, within the meaning of (e)(1), (2). The court stated that conduct alleged to constitute breach of contract also can be constitutionally protected speech or petitioning. The buyer established a probability of prevailing under (b)(1), as to the breach of contract claim because the buyer showed a prima facie case for breach of contract. As to the fraud claim, which was based on the sellers alleged representation to the buyers that the increase in the number of lots was necessary to obtain the city s approval, the sellers right of petition and free speech was not implicated; thus, the fraud cause of action was not based on any protected activity, and the buyer did not have to show a probability that it would prevail on its fraud claim

6 State Water Resources Control Board Cases (2008) In State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674 (SWRCB Cases) -- the court decided eight appeals and three cross-appeals in seven coordinated cases that arose out of an omnibus water rights proceeding before the State Water Resources Control Board (the Board) involving the San Francisco Bay/Sacramento-San Joaquin Delta Estuary. (Id. at p. 687.) One of the seven coordinated cases was Golden Gate Audubon Society v. State Water Resources Control Board (Super. Ct. Alameda County, 2003, No ), a mandamus proceeding brought by five nonprofit organizations (collectively the Audubon Society parties). (SWRCB Cases, at pp. 718, 773.) Another one of the coordinated cases was Central Delta Water Agency v. State Water Resources Control Board (Super. Ct. S.F. City and County, 2003, No ), a mandamus proceeding brought by six parties with interests in the Central Sacramento-San Joaquin Delta (collectively the Central Delta parties). (SWRCB Cases, at pp. 718, 724.) Ultimately, the court determined the Audubon Society parties and the Central Delta parties were entitled to essentially the same mandamus relief against the Board. 3 (SWRCB Cases, supra, 136 Cal.App.4th at p. 844.) On remand, after the trial court entered judgment in favor of the Audubon Society parties in compliance with this court's directive, they sought attorney fees under the private attorney general doctrine embodied in Code of Civil Procedure section (section ). The trial court denied their motion, concluding they had not shown that the necessity of private enforcement made a fee award appropriate. The trial court based this conclusion on the fact that the relief the Audubon Society parties obtained directed the Board to do nothing more than provide the relief the Central Delta parties had already obtained the same relief. The Court of Appeal reversed, and concluded the trial court erred in denying the Audubon Society parties' motion for attorney fees under section That the success they achieved was the same success the Central Delta parties achieved does not justify a denial of a fee award under the private attorney general theory, especially since the trial court granted the motion by two of the Central Delta parties for fees under section Where two parties achieve the same relief acting essentially as private attorneys general, even though one of the parties is a public entity, there is no rational basis to conclude that the public entity is entitled to be rewarded for its success under section , but the private party is not. St. Vincent's School for Boys v. City of San Rafael (2008) 2008 Cal. App. LEXIS 369 The trial court denied a property owner's petition for writ of mandate challenging a city's revisions to its general plan and raising CEQA issues. The trial court awarded the city, as the prevailing party, costs for document retrieval. The owner elected to prepare the record pursuant to Public Resources Code (b)(2), and requested that the record be augmented with the parties' exchanges. The city retrieved and provided the requested s at substantial additional expense. The Court of Appeal affirmed, holding that where necessary to preserve the statutory purposes of cost-containment and expediting CEQA litigation, the prevailing party in a CEQA action may recover reasonable costs or fees imposed for the preparation of the record, even if the nonprevailing party elected to prepare the record pursuant to Pub. Resources Code (b)(2). The court concluded that the cost restraints inherent in the statutory scheme for controlling the costs of record preparation had been undermined by the owner's excessive discovery demands

7 The ensuing delay to the CEQA litigation process caused by the owner's demands also undermined the statutory purpose of expediting CEQA litigation. Thus, the trial court did not abuse its discretion in awarding costs to the city as the prevailing party under Code Civ. Proc. 1032(b), although the city did not prepare the record. b. Regulatory Taking c. Civil Rights Budnick v. Town of Carefree (9th Cir. 2008) 2008 U.S. App. LEXIS 5152 Plaintiff development company sued the town and four council members, alleging they violated the Fair Housing Amendments Act of 1988 (FHAA) and the Fourteenth Amendment when they denied plaintiffs' request for a special use permit (SUP) to build a multi-level continuing-care retirement community. The U.S. District Court for the District of Arizona granted summary judgment in defendants' favor on all claims. Plaintiffs appealed. The Ninth Circuit affirmed the district court's grant of summary judgment. The FHAA prohibits discrimination in the sale or rental of housing, which included making unavailable or denying a dwelling to a buyer or renter because of a handicap of a person residing in or intending to reside in that dwelling after it was sold, rented, or made available, 42 U.S.C.S. 3604(f)(1)(B). The court found that plaintiffs did not satisfy all elements of a prima facie case for disparate treatment and had not pointed to direct or circumstantial evidence of discriminatory intent. Nor could they rebut the non-discriminatory reasons defendants proffered to explain why the SUP was denied. Notably, potential residents did not presently qualify as disabled under the FHAA simply because some of them would become disabled as they aged. Next, the court concluded that plaintiffs had set forth no evidence from which it could conclude that defendants' permit practices had a disproportionate impact on the disabled. Finally, plaintiffs did not make a prima facie case of failure to make reasonable accommodations. Scottish Rite Cathedral Assn. of Los Angeles v. City of Los Angeles (2007) 156 Cal. App. 4th 108 Plaintiffs, a nonprofit mutual benefit corporation that built and owned a Scottish Rite Cathedral and a for-profit limited liability company (LLC) that operated the Cathedral under a lease with the nonprofit, filed a petition for writ of administrative mandamus challenging a city s revocation of the Cathedral's certificate of occupancy unless a new certificate of occupancy was granted. Plaintiffs argued that the city s actions impermissibly burdened the exercise of their religious beliefs in violation of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) (42 U.S.C. 2000cc et seq.). The trial court denied plaintiffs writ petition. The Court of Appeal affirmed. The court concluded that plaintiffs use of the Cathedral did not constitute religious exercise under RLUIPA. The city s revocation of the Cathedral s certificate of occupancy was prompted by the LLC s inability to comply with restrictions imposed by the city in The Cathedral could not survive financially without being marketed for nonconforming public auditorium uses that exacerbated parking impacts on the neighborhood in which the Cathedral was located. The nonprofit had not conducted any Masonic functions at the Cathedral since 1993 and had no intentions of doing so in the future. In effect, the nonprofit ceded its right to operate the Cathedral to the LLC, a commercial entity with no apparent

8 relationship to Masonic practices other than its name, which marketed the Cathedral as a venue for commercial events. Having ceded its use of the Cathedral to the LLC, the nonprofit could not establish the city s actions had any effect on the religious exercise of its members. Yamagiwa v. City of Half Moon Bay (N.D. Cal. 2007) 523 F. Supp. 2d 1036 The Federal District Court for the Northern District of California has ordered the City of Half Moon Bay to pay $36.8 million for creating wetlands on a 25-acre parcel and thereby preventing an 83 lot subdivision it had previously approved. The property had been zoned for residential use since the 1970s, and the City approved a vesting tentative map in In 1991 the City adopted a moratorium due to a shortage of capacity at the local sewage treatment plant. The moratorium was extended 11 times and lasted over seven years. The City formed a special assessment district to raise the funds needed to expand the treatment plant, and placed a lien of $1 million on the subject property, calculated based on the permission to build 83 homes. By the time the plant expansion was completed and the moratorium was lifted, the City reversed its earlier decision, finding that wetlands had developed on the property, so residences could not be built there. The District Court ruled that the City itself was responsible for creating the wetlands. In so doing, the Court found: in the 1980s, the City had constructed a storm drain project on and around the property. When the City s project ran short of fill, the City borrowed dirt from the property to complete its project, leaving large depressions on the land. These topographic changes caused stormwater that had previously flowed off the property to instead be trapped on it. Over the years, stormwater that collected in the depressions ultimately led to the growth of wetlands plants. In addition, the City built a 48-inch underground drain on the property but failed to maintain it, causing more stormwater to flow onto the property and collect in the Citybuilt low spots. When the City approved the vesting tentative map in 1990 for 83 homes, it also approved a negative declaration under CEQA, finding no wetlands on the property except for a small area in the property s southeast corner. Then, after lifting its sewer moratorium, the City found in 2000 that new wetlands had developed throughout the property since The City thus refused to issue a coastal development permit for the subdivision though it had approved it 10 years earlier. The Court found that the City had employed a pattern of shifting consultants and shifting definitions in order to find wetlands on the property. Although the City's expert witness testified that the wetlands on the property predated the City s storm drain project, the Court rejected the City's theory as implausible, unsupportable and contrary to the facts. Instead, the Court found that the City s project caused the wetlands to develop, and what was once an approved 83-home subdivision is now a wetlands preserve, created by the City. The property s regulation has led to other litigation. In 2000, the property owner sued the City, claiming that the disputed areas on the property did not qualify as wetlands under the applicable definition contained in the City s Local Coastal Plan. The Court of Appeal in City of Half Moon Bay v. Superior Court (2003) 106 Cal. App. 4th 795 concluded the Coastal Commission had no jurisdiction to effectively reverse a trial court ruling. In 2005, the same Court of Appeal reversed the trial court s ruling, holding that the disputed areas did qualify as wetlands. That ruling then led to the Federal District Court s ruling on the issue of what had caused the

9 wetlands to develop. Again, the Court ruled that the City itself had created the disputed wetlands. The Court found in the property owner s favor on claims for inverse condemnation, nuisance, and trespass. It also issued an injunction preventing the City from collecting further assessments that it had placed on the land to raise the money it needed to expand the sewer treatment plant. The Court awarded $36,795,000, the difference between the fair market value of the land with the 83 lot subdivision map and the open-space value of the wetlands preserve. The Court also has suggested it will award attorneys fees, interest, and costs. C. REDEVELOPMENT D. RELOCATION ASSISTANCE VI. ENVIRONMENTAL QUALITY A. GENERAL B. CEQA Citizens for Responsible and Open Government v. City of Grand Terrace (2008) 2008 Cal. App. LEXIS 359 The trial court granted a petition for writ of mandate in favor of an unincorporated association under CEQA in the association s action against a nonprofit development corporation. In its petition, the association requested that the trial court overturn a city council decision approving the corporation's development project with a mitigated negative declaration and require the corporation to prepare an EIR. The project consisted of a 120-unit senior housing facility; a onestory, approximately 6,500 square-foot community senior center; and a four-acre public park. The association was formed to challenge approval of the project. The trial court awarded attorney fees under Code of Civil Proc to the association. The Court of Appeal affirmed. While the corporation's mitigation measures might have aided in making the facility more compatible with the surrounding residential neighborhood, the court found that there was substantial evidence of a fair argument that the proposed high-density residential facility remained a substantial, or potentially substantial, change in the environment (Public Resources Code 21068). Such changes to the environment included changes to the physical and aesthetic conditions and character of the surrounding low-density, single-family residential neighborhood (14 Cal. Code Regs ). There was also substantial evidence of a fair argument that the residential building height would present significant environmental impacts, particularly because it was a relatively large, high-density facility, which was uncharacteristic of the surrounding neighborhood structures and the easterly wing of the building remained three stories, with 23 units on the third floor. Finally, there was substantial evidence that it could be fairly argued that the project might have a significant environmental noise impact caused by the corporation's proposed window-mounted air conditioner units. Communities for a Better Environment v. South Coast Air Quality Management Dist. (2007) 158 Cal. App. 4th

10 The trial court, in upholding an agency's issuance of a permit for a diesel fuel production project, ruled that substantial evidence supported the agency's conclusion in a negative declaration that there would be no significant environmental impacts from the project. The agency compared the proposed project's nitrogen oxides (NOx) emissions impacts to the maximum permit emission level and concluded that the project would generate no increase in operational NOx emissions. The Court of Appeal reversed as to the trial court's conclusion that no fair argument had been presented regarding a potentially significant adverse environmental impact from NOx emissions, affirmed in all other respects, and remanded to the trial court with instructions. The court held that there was substantial evidence, within the meaning of Pub. Resources Code 21080(e)(1), that the project might have significant environmental effects, as defined in Pub. Resources Code 21068, and Cal. Code Regs., tit. 14, The increased use of existing equipment had to be evaluated as part of the project under Pub. Resources Code 21065, and Cal. Code Regs., tit. 14, 15378(a), not as part of the baseline. Moreover, the agency's own estimates of the emissions resulting from that increased use constituted substantial evidence that the project could have a significant impact on the environment because the emissions exceeded the threshold of significance. The agency also failed to conduct an adequate cumulative impacts analysis under Cal. Code Regs., tit. 14, (h), 15355, because of its failure to account for increases from existing equipment. Save Round Valley Alliance v. County of Inyo (2007) 157 Cal. App. 4th 1437 The trial court denied a petition filed by a citizens' group for a writ of mandate to vacate and set aside a county's certification of an environmental impact report (EIR) concerning a proposed subdivision project and the county's approval of the developer's tentative tract map. The property was adjacent to undeveloped open space owned by government entities. The EIR described the project as a subdivision for single family residences, concluded that a possible land exchange with the federal Bureau of Land Management (BLM) was not a feasible alternative to the project because the BLM did not want a land exchange, and found that the only significant adverse impact associated with the project was the aesthetic effect of a new development adjacent to a scenic mountain area. The Court of Appeal reversed and remanded with directions to the trial court to issue a writ directing the county to vacate the certification of the EIR, vacate the approval of the project, and take no further action to approve the project until a legally adequate EIR was prepared with respect to the analysis of the feasibility of the alternative of a land exchange. The court held that the description of the project was accurate under Pub. Resources Code 21065, although there was no mention of the possibility that second units might be built on the lots pursuant to a local ordinance enacted under the authority of Gov. Code , because this possibility was remote and speculative. The county's analysis of alternatives that might avoid the project's visual impacts was not supported by substantial evidence under Pub. Resources Code , because a BLM manager's statements in the record indicated that the landowner, not the BLM, was unwilling to participate in a land exchange. The analysis of possible impacts on wildlife was sufficient

11 Stockton Citizens for Sensible Planning v. City of Stockton (2007) 157 Cal. App. 4th 332, rev. granted Feb. 13, 2008 The trial court granted a writ of mandate that set aside municipal approvals for construction of a retail store. The approvals were based on a community development director s letter to the developers stating that the plans for the store were in substantial conformance with a master development plan (MDP) adopted by the city. The letter was not posted, published, or otherwise made public. The MDP provided that the primary land use for the parcels was multifamily units. The complaint challenging the approvals was filed more than 35 days after the filing of a notice of determination that the project was exempt from the California Environmental Quality Act. The Court of Appeal affirmed, concluding that the director's letter did not constitute an approval of the project because the MDP contemplated that an approval had to be made public. The administrative record prepared pursuant to Pub. Resources Code, , subd. (e), therefore failed to demonstrate project approval. Thus, there was no valid notice of exemption under Cal. Code Regs., tit. 14, 15062, and the 35-day statute of limitations under Pub. Resources Code, 21167, subd. (d), did not begin to run. Moreover, the MDP did not authorize the director to approve a project that was not within the MDP or that had environmental consequences. Valley Advocates v. City of Fresno (2008) 160 Cal. App. 4th 94 A city sought to demolish a building and expand a parking lot onto the cleared land. The building was one of two nearly identical 90-year-old apartment buildings located next to one another. Plaintiffs, a nonprofit public benefit corporation and a local resident, challenged the project. The city, which did not list either building in the local register of historic resources, argued that the buildings were not historic resources for purposes of the California Environmental Quality Act (Pub. Resources Code et seq.), and that the project was exempt from CEQA. Plaintiffs argued that the city subverted the CEQA process, especially its public notice provisions, by treating the city's earlier denial of an application to list the buildings in the local register of historical resources as resolving the question whether the buildings were historic resources for purposes of CEQA. The trial court entered a judgment denying plaintiffs' petition for writ of mandate

12 The Court of Appeal reversed the judgment and remanded the case to the trial court with directions to vacate its order denying plaintiffs' petition for writ of mandate and to enter a new order granting the petition. The court concluded that the city council's prior determination to deny the listing application meant that the buildings did not qualify for CEQA's presumptive historical resource category. However, the city council could elect to separately consider whether the buildings were an historical resource for purposes of CEQA's discretionary historical resources category. Because the city council was misinformed about its discretion to make such an election, it followed that the city council did not, in fact, exercise its discretion and make such an election. In not exercising its discretion because it was misinformed about the legal effect of its prior denial of the listing application, the city council prejudicially abused its discretion by failing to proceed in a manner required by law. The city council's prior decision not to list the buildings in the local register of historic resources did not operate as a bar to plaintiffs' claim that the city council erred in its application of CEQA's discretionary historical resources category. The fair argument standard did not apply to the question whether the buildings were historic resources for purposes of CEQA. D. WATER QUALITY California Sportfishing Protection Alliance v. State Water Resources Control Board (2008) 2008 Cal. App. LEXIS 382 The State Water Resources Control Board (state board) and a regional water quality control board (regional board) adopted and approved a small tributary stream's temperature amendment to the existing water quality control plan for two river basins. The trial court denied a claim by two organizations that the amendment violated the Porter-Cologne Water Quality Control Act (Water Code et seq.) and CEQA. The Court of Appeal affirmed. The court concluded that the boards' finding that the stream had no viable population of rainbow trout had sufficient evidentiary support. The data collected through a series of fish surveys conducted from 1993 to 2000 by different parties constituted credible evidence that a population of rainbow trout was not present in the stream. The boards' finding that the amended site-specific temperature objectives were protective of the beneficial potential use of the stream by salmonids was also supported by the evidence. Regarding the environmental impact report prepared by the regional board, the court concluded that it complied with the mandatory provisions for completion of an environmental checklist and report that described the proposed activity, addressed reasonable alternatives, and set forth mitigation measures to minimize any significant adverse environmental impacts. The court disagreed with the organizations' assessment that the report constituted nothing more than the functional equivalent of a negative declaration. The court found nothing in the report -- including a marked checklist box that specified no significant effect on the environment -- that would have misled the public or the state board in the consideration of the project for approval. Accordingly, the regional board proceeded in the manner required by law by conducting an environmental review that complied with administrative regulations (Cal. Code Regs., tit. 23, ) that are a functional equivalent of CEQA. Voices of the Wetlands v. California State Water Resources Control Board (2007) 157 Cal. App. 4th 1268, rev. granted

13 The trial court denied a nonprofit association s petition for writ of administrative mandamus, which challenged the issuance of a National Pollutant Discharge Elimination System (NPDES) permit by the California Regional Water Quality Control Board, Central Coast Region (regional board), to a powerplant owner. The Court of Appeal affirmed. The court held that the judicial review provisions of the Porter- Cologne Water Quality Control Act (Water Code ) governed the controversy because the administrative decision challenged was not the powerplant certification itself; rather it was the separate NPDES permit. For that reason, the trial court had jurisdiction to hear and determine the dispute over the NPDES permit. The trial court s order for administrative remand was procedurally proper, both as a matter of statutory authority under Code Civ. Proc., , and as an exercise of the trial court s inherent powers. The order was also supported by sufficient evidence because the administrative record supported the trial court s conclusion that the regional board failed to analyze best technology available alternatives during its previous deliberations. The administrative hearing was conducted properly. The regional board did not err, either in considering new evidence in response to the trial court s remand order or in excluding the association s submittal as untimely and beyond the scope of the issues. The additional evidence permitted a more thoroughgoing administrative process, as the trial court s remand order contemplated. Furthermore, the augmented record assisted the trial court in its review of the regional board s decision. Finally, the trial court acted properly in affirming the regional board s application of 33 U.S.C. 1326(b), a provision of the federal Clean Water Act (33 U.S.C ), to the NPDES permit at issue. The court found substantial evidence to support the trial court's factual determination that the regional board did not adopt the mitigation plan as an alternative technology for purposes of 1326(b), but instead considered it only for its relevance in monetizing environmental impacts and benefits