UPDATE ON LAND USE AND CEQA CASES

Transcription

1 611 ANTON BOULEVARD, FOURTEENTH FLOOR COSTA MESA, CALIFORNIA DIRECT ALL MAIL TO: POST OFFICE BOX 1950 COSTA MESA, CALIFORNIA TELEPHONE FACSIMILE INTERNET ADDRESS ORANGE COUNTY SILICON VALLEY (408) A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Philip D. Kohn Direct Dial: (714) pkohn@rutan.com UPDATE ON LAND USE AND CEQA CASES (Cases Reported Between September 2003 and April 2, 2004) Philip D. Kohn City Attorney City of Laguna Beach City Attorneys Department League of California Cities Spring Conference May 7, 2004

2 e 1 TABLE OF AUTHORITIES Case Name... Page Abrams v. City of Rancho Palos Verdes (January 15, 2004) 354 F.3d Anthony v. Snyder (March 4, 2004) 116 Cal.App.4th Assn. For a Cleaner Environment v. Yosemite Community College Dist. (March 4, 2004) 116 Cal.App.4th Barratt American Inc. v. City of Encinitas (February 10, 2004) 115 Cal.App.4th Big Creek Lumber Co. v. County of Santa Cruz (February 17, 2004) 115 Cal.App.4th Carson Harbor Village, Ltd. v. City of Carson (January 2, 2004) 353 F.3d Coalition of Concerned Communities, Inc. v. City of Los Angeles (September 8, 2003) 111 Cal.App.4th County of Orange v. Superior Court (Vedanta Society of So. California) (October 7, 2004) 113 Cal.App.4th Covington v. Jefferson County (February 5, 2004) 358 F.3d Environmental Defense Center, Inc. v. U.S. Environmental Protection Agency (December 3, 2003) 344 F.3d Hacienda Valley Mobile Estates v. City of Morgan Hill (December 17, 2003) 353 F.3d Hanshaw v. Long Valley Road Assn. (March 2, 2004) 116 Cal.App.4th

3 e 2 TABLE OF AUTHORITIES (cont d) Case Name... Page Hotel & Motel Assn. of Oakland v. City of Oakland (September 17, 2003) 344 F.3d Morgan v. City of Chino (February 20, 2004) 115 Cal.App.4th Ocean Park Associates v. Santa Monica Rent Control Board (January 7, 2004) 114 Cal.App.4th Ocean View Estates Homeowners Assn. v. Montecito Water District (March 2, 2004) 116 Cal.App.4th Pacific Lumber Co. v. California State Water Resources Control Board (March 18, 2004) 2004 Daily Journal D.A.R Protect the Historic Amador Waterways v. Amador Water Agency (March 12, 2004) 116 Cal.App.4th Regents of the University of California v. City and County of San Francisco (January 22, 2004) 115 Cal.App.4th San Jose Christian College v. City of Morgan Hill (March 8, 2004) 2004 Daily Journal D.A.R Santa Teresa Citizen Action Group v. City of San Jose (December 18, 2003) 114 Cal.App.4th South Florida Water Management Dist. v. Miccosukee Tribe of Indians (March 23, 2004) 2004 Daily Journal D.A.R Stolman v. City of Los Angeles (December 30, 2003) 114 Cal.App.4th van t Rood v. County of Santa Clara (November 20, 2003) 113 Cal.App.4th Vo v. City of Garden Grove (January 29, 2004) 115 Cal.App.4th

4 e 3 V. POLICE POWER B. LAND USE 1. General Ocean Park Associates v. Santa Monica Rent Control Board (January 7, 2004) 114 Cal.App.4th 1050 Facts: Tenants of an apartment building petitioned the City of Santa Monica Rent Control Board (Board) for rent decreases. The petitioning tenants complained about certain construction activities that, while improving the building, left various common area facilities unavailable for a long period of time and caused considerable disruption and noise. The Board upheld the decision of a hearing officer to decrease rents for those tenants. The Board also initiated and granted a petition for common area construction rent decrease purportedly on behalf of all tenants in the building. The trial court denied a petition of writ of administrative mandamus filed by the building owner to set aside the Board s decisions. The building owner appealed. Holding: The court of appeal reversed with respect to the relief granted pursuant to the Board s own petition. The Board exceeded its authority when it ordered the rent decrease for all tenants because the governing regulations did not allow the Board to make orders on a unit-by-unit basis for individual tenants who did not petition on their own initiative. The Board had no power to initiate individual petitions. However, the rent decrease was appropriate for those tenants who actually petitioned the Board, and the trial court s denial of a writ as to this decision was affirmed. There was substantial evidence that the tenants were deprived of several facilities (including a recreation room, sauna, spa, laundry, security gates, outdoor garden area, mail room, lobby, and stairwell) for over 2 years due to demolition and the failure to timely reconstruct. The Board was not limited to considering only defects that rise to the level of safety code violations. The building owner failed to present evidence of a construction-related reason or other good justification why the affected facilities were not kept in operation and in good repair. In addition, the amount of the rental adjustment was reasonable. Morgan v. City of Chino (February 20, 2004) 115 Cal.App.4th 1192 (certified for partial publication) Facts: The City of Chino (City) denied a rent increase to a mobilehome park owner who sought compensation for certain road improvements within the park. The trial court concluded that due process and the City s rent control ordinance required a rent increase sufficient to both recoup the costs of and earn a fair return on the capital improvement. The trial court granted a writ of mandate and awarded damages. The City appealed. Holding: The court of appeal reversed. The park owner is not entitled to a fair return on the capital improvement separate and apart from the return on the property as a whole. 3

5 e 4 2. Planning 3. Zoning a. General San Jose Christian College v. City of Morgan Hill (March 8, 2004) 2004 Daily Journal D.A.R Facts: The San Jose Christian College (College) desired to construct an educational facility on property zoned for Planned Unit Development (PUD). Under the City of Morgan Hill (City) municipal code, property zoned PUD could be used for all purposes shown on the development plan approved for the particular district covering the property. The property in question had been approved for a hospital and supporting medical facilities. The College filed a rezoning application. The City notified the College that the application was incomplete, and identified the additional information needed to process the application. Also, the City stated that further information was required for purposes of CEQA compliance. In lieu of submitting a second application responsive to the additional information needs identified by the City, the College proposed a scaled-back project. Prior to this proposal, a City task force found that the urgent need for a hospital in the community militated in favor of retaining hospital uses on the subject property, although the City s staff disagreed with the recommendation. The City ultimately denied the College s application due to the failure to comply with the application requirements. The College sued under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The district court denied the College s request for a preliminary injunction. The City subsequently filed a motion for summary judgment, which was granted. The College appealed. Holding: The Ninth Circuit affirmed. The denial of the application did not deprive the College of its First Amendment right to free exercise of religion. The City s zoning ordinance is of general application and is not targeted at religion, and thus is neutral. As a consequence, rational basis scrutiny is appropriate, and the ordinance s incidental burden on the College s free exercise right was lawful. The College did not assert a viable hybrid rights claim in that there was no colorable claim that the application of the zoning ordinance abridged the College s freedom of speech or freedom of assembly. The denial of the application did not violate RLUIPA. (The Ninth Circuit noted that the constitutionality of RLUIPA in furtherance of Congress spending power had been sustained in its earlier opinion in Mayweather v. Newland (9th Cir. 2002) 314 F.3d 1062, 1066.) The court resorted to the plain meaning rule, stating that reliance on dictionary definitions is permissible, to determine whether the challenged regulation places a substantial burden on religious exercise. As such, the rule is that the government is prohibited from imposing or implementing a land use regulation in a manner that imposes a significantly great restriction or onus on any exercise of religion, whether or not compelled by, or central to, a system of religious belief of a person, including a religious assembly or institution, unless the government can demonstrate that imposition of the burden is: (1) in furtherance of a compelling governmental interest, and (2) the least restrictive means of furthering that compelling governmental interest. The College alleged that it was substantially 4

6 e 5 burdened because of the inability to use its property. However, the court found that the City s ordinance does not impose any restriction whatsoever on the College s religious exercise. All that is required by the ordinance is the submission of a complete application, as would be required of all applicants irrespective of the use proposed. The court also noted that the ordinance did not preclude the College from using other sites within the City. The court stated that it did not need to reach the issue of whether CEQA is a land use regulation within the meaning of RLUIPA. Nevertheless, the court found that there was substantial evidence to support the City s finding that the College failed to comply with CEQA requirements. b. Public Agencies c. Conditional Use Permits Vo v. City of Garden Grove (January 29, 2004) 115 Cal.App.4th 425 Facts: The City of Garden Grove (City) enacted an ordinance relating to CyberCafes. The regulations required an operator to obtain a conditional use permit (CUP), and established various operating standards such as hours of operation, special curfew for minors, restricting access by minors during school hours, the number of employees required on the premises, the presence of security guards, and the maintenance of a video surveillance system. A number of CyberCafe owners sought a preliminary injunction, alleging that portions of the ordinance infringed free speech and privacy rights under the First Amendment. The trial court preliminarily enjoined the City from enforcing portions of the ordinance, including the CUP requirement. The City appealed. Holding: The court of appeal affirmed the preliminary injunction as to the CUP requirements. The court of appeal reversed the remainder of the order, concluding that the trial court abused its discretion by preliminarily enjoining enforcement of the operational regulations. The CUP requirement is invalid. (In this regard, the court found that the challenge was not time-barred under the 90-day rule in Government Code section ) The ordinance purported to regulate First Amendment activities, and the City s officials were granted excessive and unfettered discretion in determining whether or not to issue a CUP and the conditions of approval in the event of issuance. The court went on to uphold the following operational standards set forth in the ordinance: the daytime curfew for minors; the employee and security guard requirements; and the video surveillance requirement. Note the strident dissent and the majority s footnote responses. d. Variances Stolman v. City of Los Angeles (December 30, 2003) 114 Cal.App.4th 916 Facts: The City of Los Angeles (City) issued a variance to the owner of a gasoline station on leased land to allow an expansion of existing operations to include an automobile detailing 5

7 e 6 service. The gasoline station, located in a residential zone, was a nonconforming use. The zoning administrator made the required findings and imposed numerous conditions of approval. The area planning commission and the city council upheld the zoning administrator s decision. The petitioner sought to overturn the granting of the variance, challenging two of the necessary findings -- (1) that strict application of the zoning ordinance would result in practical difficulties and unnecessary hardships to the station owner if he could only sell gasoline; and (2) that the variance was necessary for the preservation and enjoyment of a substantial property right or use generally possessed by other property in the same zone and vicinity, but which, because of special circumstances and practical difficulties or unnecessary hardships, was denied to the property in question. The trial court denied the petition. The petitioner appealed. Holding: The court of appeal reversed, finding that the evidence in the record was insufficient to support the challenged findings. Unnecessary hardship may entail a consideration of economic factors. However, there is no substantial evidence demonstrating that the property could not effectively or profitably be used as a gasoline station without the automobile detailing operation. Thus, the first challenged finding could not be made. It is not relevant that a variance would make the property more valuable or would enable the business to recover a higher income. The second challenged finding could not be made because there was no comparable use in the same vicinity and zone as the gasoline station, which (in view of the size of the City) the court held to mean within reasonably close proximity. The zoning administrator considered properties 20 or more miles away. This interpretation is subject to de novo review, and the court found it to be plainly erroneous. 4. Growth Management 5. Subdivision Map Act van t Rood v. County of Santa Clara (November 20, 2003) 113 Cal.App.4th 549 Brief Holding: A must read for fans of obscure provisions of the Subdivision Map Act and dense fact patterns. This case revolves on a request by landowners that the County of Santa Clara either (1) exclude their properties from a prior 1970 parcel map, or (2) declare the prior map invalid. The trial court denied the relief sought. The court of appeal engaged in an analysis of the history, purposes, and significance of the Subdivision Map Act and, more particularly, the provisions relating to merger. Issues of agency and actual or ostensible authority are also involved, as are issues of (1) procedural due process rights of property owners and (2) certificates of compliance. The court of appeal reversed the trial court, and concluded that the request for exclusion should have been granted in accordance with Government Code section et seq. 6

8 e 7 Anthony v. Snyder (March 4, 2004) 116 Cal.App.4th 643 Facts: The County of San Diego (County) approved a tentative tract map for a residential subdivision. A neighboring landowner felt the developer should be responsible for widening and improving a nearby, offsite private street serving as a primary access road to the project site. The County ultimately determined to not impose such a requirement. The subdivision property changed hands a few years later, and the new owner sought and obtained approval of a final map. The proceedings were silent on the issue of offsite road improvements. At the same time, the County approved an agreement with the subdivider for major tract improvements. (The agreement did not reference any offsite road improvements.) The neighboring landowner did not appear at the public hearing on either item, nor did he submit objections. One year later, the neighboring property owner sued, seeking to compel the County to require the subdivider to construct the offsite road improvements. He claimed that this obligation impliedly flowed from provisions of the improvement agreement, and that the County had a mandatory duty to enforce the requirement. The County and the developer filed demurrers, asserting defenses of statute of limitations, failure to exhaust administrative remedies, and lack of standing. The demurrers were overruled. The matter then proceeded to a hearing on the merits, and the trial court ordered the County to require the subdivider to construct the offsite road improvements. The County and the subdivider appealed. Holding: The court of appeal reversed and remanded with direction to enter a judgment in favor of the County and the subdivider. Procedurally, the statute of limitations and failure to exhaust defenses were valid and should have barred the action. On the merits, the trial court erroneously interpreted the subdivision improvement agreement. The County had the discretion to determine what improvements were necessary, and the obligations asserted by the petitioner were not incorporated into the map approval. A subdivision improvement agreement does not create separately enforceable contractual covenants over and above the map conditions. Also, once the tentative map is approved, the subdivider is entitled to expect that the County would not add conditions during the final map stage of the proceedings. Hanshaw v. Long Valley Road Assn. (March 2, 2004) 116 Cal.App.4th 471 Brief Holding: The county refused to accept an offer to dedicate a road pursuant to the Subdivision Map Act. Nevertheless, the road may become a public road by virtue of prior public use. 6. Environmental Constraints Big Creek Lumber Co. v. County of Santa Cruz (February 17, 2004) 115 Cal.App.4th 952 Facts: The County of Santa Cruz (County) adopted several ordinances and resolutions regulating the harvesting of timber. The California Coastal Commission certified one of the 7

9 e 8 local measures as an amendment to the County s local coastal program. The plaintiffs, who included a lumber company and a nonprofit association representing forest landowners and forestry professional, sued to invalidate the County s regulations on the ground of preemption by state law. The trial court found that state law preempted some (but not all) of the local regulations. Both sides appealed. Holding: The court of appeal reversed and remanded to the trial court with instructions to invalidate the local measures in their entirety. The case involves the interplay and effect of several state laws: the California Timberland Productivity Act, the Z berg-nejedly Forest Practice Act, the California Coastal Act, and the Planning and Zoning Law. After summarizing each of the enactments, the court of appeal evaluated each of the schemes in relation to the others as to their purposes and operation. The court of appeal then turned to the preemption issue, analyzing whether the local measures duplicate or contradict the state laws, or whether they invade a field that the state has fully occupied, expressly or implicitly. The County s zoning district regulations, which limit the location of commercial timber harvesting, are preempted by the Forest Practice Act because the local measures purport to regulate the conduct of timber operations, which is prohibited by the Act. The County s riparian regulations, which prohibit timber harvesting within prescribed distances from certain streams, also conflicts with the Forest Practice Act. The local measures not only invade the subject matter fully occupied by the Act, but they contradict specific provisions of the Act relating to watercourse protection. Finally, the Forest Practice Act preempts the County s helicopter regulations, which limit helicopter staging, loading, and service areas to specified parcels. The removal of timber is an integral part of timber operations, and the local measures impermissibly invade this exclusively occupied field. Pacific Lumber Co. v. California State Water Resources Control Board (March 18, 2004) 2004 Daily Journal D.A.R (certified for partial publication) Brief Holding: The Forest Practice Act does not establish an exclusive regulatory framework that precludes other state agencies from enforcing laws they are charged with administering when logging activities implicate those laws. (See Pub. Res. Code 4514.) The court of appeal upheld the jurisdiction of the California State Water Resources Control Board to order the monitoring of water quality in the Elk River in connection with an amended plan approved by the California Department of Forestry and Fire Protection to harvest timber along the river. While the State Water Board cannot forbid logging activities that might have negative water impacts, it is authorized to impose appropriate conditions. 7. Building Regulations Barratt American Inc. v. City of Encinitas (February 10, 2004) 115 Cal.App.4th 837 Facts: In 1987, the City of Encinitas (City) adopted an ordinance requiring that building permit fees be established by a resolution of the city council. The ordinance also authorized the City s building official to set the determination of value or valuation (known as valuation multipliers) of particular types of structures depending on their type and expected occupancy. The building 8

10 e 9 official has complete discretion in this matter. In 1992, the city council adopted a schedule of fees to be charges for building permits and building inspections. The schedule indicated the manner in which fees would be calculated, including applicable valuation multipliers. A homebuilder later paid fees to the City that were calculated on the basis of valuation multipliers contained in a schedule issued by the county chapter of the International Conference of Building Officials for The valuation multipliers differed from those used by the City in the 1992 resolution. In 2000, the homebuilder sued the City for a refund of building permit fees under Government Code section (the Mitigation Fee Act). The homebuilder alleged that the 1992 resolution violated the law because (1) the fees exceeded both the estimated reasonable and actual costs to the City of providing the services for which the fees were charged, (2) the amount of the fees was not submitted to or approved by the voters, and (3) the increase in fees from those set forth in the 1992 resolution was not approved by the city council. The trial court determined that the homebuilder s claims were barred by the 120-day statute of limitations set forth in Government Code section 66022, and judgment was entered in favor of the City. The homebuilder appealed. Holding: The court of appeal affirmed in part and reversed in part. All challenges to the 1992 resolution are untimely. The homebuilder argued that the limitations period never began to run because the City failed to provide the 90-day written notice to the project applicant of the opportunity to protest the fees pursuant to Government Code section The court of appeal held that the 120-day provision of section is the applicable limitations period inasmuch as fees for building permits and building inspections are involved. However, the 120-day period does not apply to the homebuilder s allegations that the City improperly increased the fees and that the fees exceeded the reasonable cost of providing services. The fee increases were not automatic, as contended by the City, because the ordinance did not expressly set forth such authority, which also have to be correlated with objective criteria and cannot exceed the reasonable cost of providing the services rendered. Here, the building official had unfettered discretion to set the valuation multipliers however and whenever desired. The case was remanded for further proceedings to determine whether the 1995 valuation multiplier schedule used to calculate the homebuilder s fees resulted in a fee increase and, if so, the appropriate remedy. 8. Housing Coalition of Concerned Communities, Inc. v. City of Los Angeles (September 8, 2003) 111 Cal.App.4th 1166 (certified for partial publication) Facts: The City of Los Angeles (City) approved a development project involving the construction of 114 homes on about 45 acres of land. The project is partially located within the coastal zone. The City certified an environmental impact report (EIR) for the project. Two citizens organizations filed a petition for writ of mandate, bringing claims under CEQA, the Planning and Zoning Law, and the Mello Act. The published portion of the opinion deals only with the requirement of the Mello Act that new housing development constructed within the coastal zone provide affordable housing. (Gov. Code 65590, ) The project at issue did not provide any affordable housing. The City and the developer contended that none was 9

11 e 10 required because even though portions of the project site were situated within the coastal zone, no residential structures were being constructed within the coastal zone. The trial court denied the petition. The petitioners appealed. Holding: The court of appeal affirmed. The affordable housing requirement of the Mello Act applies to a new housing development only if the development includes housing actually constructed within the coastal zone. Because all of the structures in the project are to be constructed outside the coastal zone, the court of appeal found that the affordable housing requirement does not apply. 9. Tidelands and Beaches 10. Historic Preservation 11. Dedications, Exactions, and Fees Regents of the University of California v. City and County of San Francisco (January 22, 2004) 115 Cal.App.4th 1109 Facts: The Regents sued the City for a refund of allegedly excessive water and sewer charges characterized as capital facilities fees. Those rates were increased in 1996 through resolutions adopted by the board of supervisors. The Regents lawsuit was filed in 2000 in response to the City s adoption of a budget resolution in There had not been any intervening increase in the rates. The trial court granted the City s motion for summary judgment on the ground that the Regents action was time-barred by the 120-day statute of limitations set forth in Government Code section The Regents appealed. Holding: The court of appeal affirmed. Section applies to the adoption of new fees or service charges, and to modifications or amendments to existing fees or service charges. The short statute of limitations is intended to enhance the budgetary stability of public utilities, by promptly informing them of any challenges to their ability to charge and collect capital facilities fees. While the 1996 resolutions triggered the limitations period, the 1999 annual budget resolution did not as it did not set rates. Instead, the budget resolution merely authorizes expenditures of anticipated revenue. An increase in fees or rates would need to be approved as a separate and distinct action. The court of appeal rejected the Regents assertion that one could not determine the portion of the charges going to capital expenses versus operations. The court stated that the Regents knew the 1996 rate increases involved both capital and operations. Also, the Regents did not timely avail themselves of section (a unique procedural right ), which allows for inquiries that require a public utility to identify and justify the amount of a capital facilities fee. 12. Challenges a. General 10

12 e 11 b. Regulatory Taking Hotel & Motel Assn. of Oakland v. City of Oakland (September 17, 2003) 344 F.3d 959 Facts: The City of Oakland (City) adopted two ordinances that collectively placed maintenance, habitability, security, and record-keeping restrictions on hotels, motels, and rooming houses. The regulations also required non-conforming uses to comply with the new standards. Failure to comply is a criminal violation and may lead to revocation of the deemed approved status of the use. Owners and operators of affected facilities and their trade association brought a constitutional challenge against the City. They claimed that the ordinances effected a taking under the Fifth Amendment, violated their rights to procedural due process and equal protection, and are impermissibly vague. The district court dismissed the action. The plaintiffs appealed. Holding: The Ninth Circuit affirmed. The facial taking challenge to the ordinances is unripe. The owners/operators did not seek and be denied just compensation under state law. The ordinances substantially advance a legitimate state interest insofar as they are directed toward protecting the health and welfare of citizens and visitors by addressing illegal, unsanitary, and dangerous conditions and preventing public nuisances. The redesignation of legal nonconforming uses to a deemed approved status, thereby mandating compliance with the new standards, advances the same interest. As to procedural due process, no individualized notice or hearing was required prior to the enactment of the ordinances. The general notice as provided by law was sufficient. The equal protection claim fails because the classification scheme is rationally related to the legitimate interest sought to be advanced. The standards are stated with sufficient definiteness that ordinary people can understand what conduct is prohibited. Finally, the ordinances are not vague either on their face or in their application. Nor does the lack of a scienter (mens rea) requirement render the ordinances unconstitutional. Carson Harbor Village, Ltd. v. City of Carson (January 2, 2004) 353 F.3d 824 Facts: The City of Carson (City) enacted a mobilehome space rent control ordinance. The ordinance places a ceiling on rents and requires approval of a rent review board before any rent increases can be instituted. The mobilehome park applied for rent increases in June 2000 and April The June 2000 application requested an increase of approximately $18 per space per month; but in February 2001, the board approved an increase of only $ In April 2001, the mobilehome park applied for regulatory lag rents an application the City allegedly refused to process. A civil rights lawsuit, alleging a regulatory taking, was filed. The district court dismissed the action as unripe. The mobilehome park appealed. Holding: The Ninth Circuit affirmed. The mobilehome park failed to avail itself of state procedures for seeking just compensation (e.g., petition for writ of mandate and/or future rent adjustments pursuant to Kavanau v. Santa Monica Rent Control Board (1997) 16 Cal.4th 761), and failed to demonstrate that these procedures are inadequate. While pursuit of those remedies may prove to be futile, the court will not speculate as to the outcome. 11

13 e 12 Hacienda Valley Mobile Estates v. City of Morgan Hill (December 17, 2003) 353 F.3d 651 Brief Holding: The City of Morgan Hill (City) had a vacancy control ordinance. The owner of a mobilehome park brought an action, claiming (among other things) that the ordinance operated as a regulatory taking without just compensation. The district court dismissed the action, and the Ninth Circuit affirmed. As to the facial challenge, the action either is not ripe (because state remedies were not pursued or shown to be futile) or, if ripe, is barred by the statute of limitations. As to the as-applied challenge, there was a final decision by the City s rent control commission, but the controversy is again not ripe for federal court adjudication. c. Civil Rights Abrams v. City of Rancho Palos Verdes (January 15, 2004) 354 F.3d 1094 Facts: The City of Rancho Verdes (City) issued a permit for the plaintiff to construct an antenna on his property for amateur radio operations. The antenna was then used for both amateur purposes and commercial, mobile radio services. Ten years later, the City learned of the unauthorized commercial use and required that a conditional use permit (CUP) be obtained. The plaintiff s CUP application was denied and he sued, claiming a violation of his civil rights. The district court found that the City had no basis on which to deny a CUP. The City was ordered to grant the permit. The district court denied the plaintiff s request for damages, attorneys fees, and costs, determining that the Telecommunications Act (TCA) subsumed all of his remedies. The plaintiff appealed. Holding: The Ninth Circuit reversed. The TCA does not contain a comprehensive remedial scheme evincing the intent of Congress to preclude remedies under section Indeed, the Ninth Circuit stated that the TCA expresses Congress affirmative intent to preserve section 1983 remedies. Damages should have been awarded, and the case was remanded. C. REDEVELOPMENT D. RELOCATION ASSISTANCE VI. ENVIRONMENTAL QUALITY A. GENERAL 12

14 e 13 B. CEQA Ocean View Estates Homeowners Assn. v. Montecito Water District (March 2, 2004) 116 Cal.App.4th 396 Facts: The Montecito Water District (District) decided to install an aluminum roof over a 4-acre reservoir. The District had been encouraged by the Department of Health Services to do so to prevent water quality problems. In conjunction with the decision, the District caused the preparation of an initial study, which found flooding to be a potentially significant impact because of the resulting increase in impervious surface area and, consequently, increased runoff. No other significant impacts were identified. The District ultimately issued a mitigated negative declaration (MND) for the project, including mitigation measures to detain and control releases of excess runoff. A homeowners association brought suit to set aside the project approval, contending there was substantial evidence to support a fair argument that (1) the flooding mitigation measures would themselves have a significant environmental effect, and (2) the project may have a significant negative aesthetic impact. The trial court denied the petition for a writ of mandate. The homeowners association appealed. Holding: The court of appeal reversed. The retention of excess runoff at the site could have adverse consequences, as where the runoff flows into the reservoir and causes contamination of the water. Also, if the excess runoff is prevented from flowing into the reservoir, dam failure might occur. Evidence supporting these concerns expressed by the homeowners association was found in reports that were generated by the District s consultants. In addition to comments of a few people, the County of Santa Barbara urged the District to adopt mitigation measures (more landscaping and painting the roof). The MND was deficient because it did not require measures to mitigate contamination or dam failure. As to aesthetics, the initial study found no significant impact. However, evidence in the record showed that the roof structure would be visible from some homes and from public trails. Proposed landscaping for the project would not totally screen these views of the aluminum cover. Assn. For a Cleaner Environment v. Yosemite Community College Dist. (March 4, 2004) 116 Cal.App.4th 629 Facts: The Yosemite Community College District (District) decided to close and remove a campus shooting range and to transfer certain classes to a range located off campus. No initial study was performed. An association of citizens petitioned for a writ of mandate, claiming that the District violated CEQA. The District contended that (1) the decision was not a project for purposes of CEQA, (2) if it was a project, it is exempt, and (3) the matter is moot because the decision was implemented. The trial court denied the petition. The citizens association appealed. Holding: The court of appeal reversed. The whole of the action consists of a combination of the closure, cleanup, and destruction of the on-campus shooting range as well as a transfer of the activities to a new location. Because this group of interrelated actions is all part of a single, coordinated endeavor, there is a project. The work to be undertaken has the potential, for 13

15 e 14 example, to spread lead contamination The District improperly relied on the exemption in State CEQA Guidelines section (adoption, alteration, or termination of educational or training facilities which involve no physical change) inasmuch as the project entails the removal of the existing range, which involves a physical change. Section (minor cleanup activities to prevent, minimize, stabilize, mitigate, or eliminate the release or threat of release of hazardous waste or substances) also is inapposite because the whole of the action goes beyond lead abatement. Finally, effective relief is still possible and available notwithstanding the completion of the challenged act. Requiring compliance with CEQA could result in a mitigated negative declaration or environmental impact report containing mitigation measures. County of Orange v. Superior Court (Vedanta Society of So. California) (October 7, 2004) 113 Cal.App.4th 1 Facts: In an earlier published decision (Vedanta Society of So. California v. Quartet, Ltd. (2000) 84 Cal.App.4th 517), the court of appeal affirmed the issuance of a writ of mandate to overturn various land use approvals for a residential development. The decision was based on the failure of the County of Orange (County) to certify the environmental impact report (EIR) for the project the vote on certification was 2-2, and majority approval is required. The County initially prepared an addendum to the old EIR, with the developer proposing a reduced number of housing units. The County then determined to prepare a new EIR. The new EIR was subsequently certified and a slightly scaled back project was approved. Neighboring property owners and environmental groups brought a CEQA challenge. A dispute arose over the contents of the administrative record. The project opponents claimed that the record should not include the addendum to the EIR or County documents relating to the addendum on the theory that such materials were not before the decision-makers. The trial court agreed. The County and the project developer filed a writ proceeding with the court of appeal. Holding: The court of appeal issued a writ commanding the trial court to include the addendum and the related County materials in the administrative record. The court of appeal rejected the project opponents argument that the evidentiary ruling of the trial court was not subject to review by a writ petition. Given that a project consists of the entirety of activities relating to a proceeding, the relevant administrative record should include pretty much everything that ever came near a proposed development or to the agency s compliance with CEQA in responding to that development. The list of materials identified in Public Resource Code section is not exclusive and should be construed broadly. Santa Teresa Citizen Action Group v. City of San Jose (December 18, 2003) 114 Cal.App.4th 689 Facts: The City of San Jose (City) had a water quality recycling program. Instead of discharging wastewater into the San Francisco Bay, the program treated the water and used it for irrigation and others purposes. The project (consisting of a waste treatment facility and a pipeline system) was initially confined to a certain area. A final environmental impact report (EIR) was certified for the project in The EIR addressed concerns that the use of nonpotable water would eventually lead to the introduction of inappropriate substances into the 14

16 e 15 drinking water supplies. Mitigation measures were required. Several years later, the California Energy Commission issued a license for the construction of a power plant (natural gas fired electric generating facility). The license required that the power plant use recycled water in its cooling system. The project, at the onset, was designed to be expanded in phases. One such phase would have extended the wastewater treatment/distribution project to an area near the proposed power plant. An initial study was performed for the use of recycled water for landscaping purposes and agricultural irrigation. The initial study concluded that impacts of such use on the groundwater was not significant in light of specified mitigation and monitoring plans. A mitigated negative declaration was adopted. The City later proposed to extend the project to serve the power plant. An initial study was conducted. Finding that the original EIR and the subsequent initial study for the first expansion program had evaluated the impact of irrigating with recycled water in the proposed expansion area, and that implementation of the mitigating and monitoring plans would reduce any groundwater impacts to less than significant, the City adopted the new initial study as an addendum to the original EIR. The City determined that a subsequent EIR was not necessary because the proposed activity did not involve new significant environmental effects or a substantial increase in the severity of previously identified significant effects. The City then approved an agreement for the power plant operator to build a pipeline extension. A citizens group and a water company filed a petition for writ of mandate and a complaint for declaratory and injunctive relief to challenge the City s decision. They argued that the project approval violated CEQA, that the project is inconsistent with the City s general plan, that the project threatens to be a nuisance, and that the project is in conflict with the public trust doctrine. The trial court denied all of the remedies sought. The citizens group appealed. Holding: The court of appeal affirmed, rejecting all of the petitioners contentions. As to CEQA, the petitioners alleged that various groundwater quality issues were not taken into account when the project was approved, and that a subsequent or supplemental EIR should have been prepared. The decision not to prepare such a document is tested against the substantial evidence standard, not the fair argument rule. This more deferential standard is a reflection of the fact that in-depth review has already occurred. There was substantial evidence supporting the conclusion that the impact of the proposed pipeline alignment on the groundwater was not substantially different from or greater than the impacts considered in the previous environmental documents. The City s general plan policies relating to the protection of groundwater supply were not violated. The proposed pipeline alignment posed no threat to the groundwater. The nuisance claim is not ripe for adjudication. The alleged contamination impacts are speculative at this time; they are not definite or supported by evidence. Finally, the public trust doctrine has no direct application to groundwater sources. Instead, the doctrine deals with tidelands and navigable lakes and streams. To the extent a creek was implicated by the project, there was no evidence that the proposed irrigation activities threatened the public s interest in the creek. 15

17 e 16 Protect the Historic Amador Waterways v. Amador Water Agency (March 12, 2004) 116 Cal.App.4th 1099 Facts: The Amador Water Agency (Agency) decided to replace the Amador Canal, a 130-year facility, with a pipeline. The Agency certified an environmental impact report (EIR) in connection with the project. Although the Agency acknowledged that leakage from the canal had contributed to the surface flow of water in streams, such that putting the canal water into a pipe would reduce summer flows, the approved EIR concluded that the reduction in stream flow would not be a significant effect on the environment. The EIR also concluded that the project would not have a significant impact on the riparian habitat of local streams. A petition for a writ of mandate was filed to challenge the EIR. The trial court denied the relief sought, and the petitioner appealed. Holding: The court of appeal reversed. The Agency abused its discretion because it failed to indicate the reasons why it determined that the reduction in the surface flows of local streams would not be significant. The EIR discussed standards of significance; however, the standards were narrow and did not address the particular physical changes resulting from the project. A statement of reasons why a project s effects on the environment will not be significant is necessary for meaningful judicial review. The Agency can remedy the deficiency through an addendum to the EIR, a supplement to the EIR, or a subsequent EIR, whichever is most appropriate to supply the missing statement of reasons. The court of appeal found no evidence in the record that the project would have a significant effect on riparian habitat, including wildlife resources. C. AIR QUALITY Covington v. Jefferson County (February 5, 2004) 358 F.3d 626 Brief Holding: The U.S. Ninth Circuit Court of Appeals reversed the district court and held that a family living directly across the street from a county dump has standing to sue under the Clean Air Act (CAA). The family claimed that the county violated CAA by failing to comply with procedures designed to prevent the release of certain substances. The Ninth Circuit affirmed the district court s ruling that the family had standing to sue under the Resource Conservation and Recovery Act (RCRA). Nevertheless, the district court entered summary judgment in favor of the county on the RCRA claims. The Ninth Circuit affirmed as to the issue of contamination of underground drinking water, but reversed as to cover, open burning, explosive gases, and uncontrolled access regulations. The Ninth Circuit also held that the district court erred in ruling that RCRA s provisions relating to the placement of non-containerized liquid hazardous water in landfills are not substantive. 16

18 e 17 D. WATER QUALITY Environmental Defense Center, Inc. v. U.S. Environmental Protection Agency (December 3, 2003) 344 F.3d 832 Brief Holding: A prior opinion in the case reported at 319 F.3d 398 is vacated and replaced by the new opinion. Various parties, including environmental groups, Texas local agencies, and industry groups, challenged a rule by the U.S. EPA pursuant to the Clean Water Act (CWA) with regard to (1) the release of pollutants into waterways by stormwater facilities, and (2) requirements for a National Pollution Discharge Elimination System (NPDES) permit. The Ninth Circuit held, among other things, that the U.S. EPA had authority to impose the rule, the rule did not violate the First or Tenth Amendments, certain procedures for review of notices of intent and public participation contravened CWA, the failure to designate industrial sources of storm water pollution was not improper, the U.S. EPA properly consulted with state and local officials, sites subject to the rule were property designated, and the U.S. EPA properly retained authority to designate sources of storm water pollution for purposes of future regulation. South Florida Water Management Dist. v. Miccosukee Tribe of Indians (March 23, 2004) 2004 Daily Journal D.A.R Brief Holding: The U.S. Supreme Court determined that water pumps are considered to be point sources under the Clean Water Act, thereby triggering National Pollution Discharge Elimination System (NPDES) requirements. This is true even where a pump adds no pollutants to water. A water pump need not be the original source of the pollutant; it need only convey the pollutant to navigable waters. The Supreme Court expressly left unresolved the issue whether a NPDES permit is needed when water is discharged in an unaltered form from one navigable body to another. 17

19 611 ANTON BOULEVARD, FOURTEENTH FLOOR COSTA MESA, CALIFORNIA DIRECT ALL MAIL TO: POST OFFICE BOX 1950 COSTA MESA, CALIFORNIA TELEPHONE FACSIMILE INTERNET ADDRESS ORANGE COUNTY SILICON VALLEY (408) A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Philip D. Kohn Direct Dial: (714) pkohn@rutan.com SUPPLEMENT TO UPDATE ON LAND USE AND CEQA CASES (Cases Reported Between April 5, 2004 and April 30, 2004) Philip D. Kohn City Attorney City of Laguna Beach City Attorneys Department League of California Cities Spring Conference May 7, 2004

20 e 1 Updated Citations to Cases in Main Paper Pacific Lumber Co. v. California State Water Resources Control Board (March 18, 2004) 2004 Daily Journal D.A.R now 116 Cal.App.4th 1232 San Jose Christian College v. City of Morgan Hill (March 8, 2004) 2004 Daily Journal D.A.R now 360 F.3d 1024 Change in Status of Cases in Main Paper Barratt American Inc. v. City of Encinitas (February 10, 2004) 115 Cal.App.4th 837 now accepted for review by California Supreme Court (April 21, 2004) Watch List: Cases Awaiting Hearing/Decision by California Supreme Court Barratt American Inc. v. City of Encinitas (February 10, 2004) formerly 115 Cal.App.4th 837 issue: see pages 8-9 of main paper Barratt American Inc. v. City of Rancho Cucamonga (May 28, 2003) formerly 109 Cal.App.4th 709 issue: whether challenge to building permit and plan review fees is time-barred or is not viable on the merits City of Marina and Ford Ord Reuse Authority v. Bd. of Trustees of the State of California (June 17, 2003) formerly 109 Cal.App.4th 1179 issue: whether CEQA requires university to expend funds to mitigate off-campus traffic and fire safety impacts Sierra Club v. California Coastal Commission (April 11, 2003) formerly 107 Cal.App.4th 1030 issue: whether the Coastal Commission can consider the environmental impacts of development outside the coastal zone when analyzing a project that straddles the coastal zone Travis v. County of Santa Cruz (November 26, 2002) formerly 100 Cal.App.4th 609 issue: whether limitations periods in Code of Civil Procedure section and/or Government Code section 65009(c)(1)(E) apply to petition for writ of mandate 1

21 e 2 Watch List: Cases Awaiting Hearing/Decision by U.S. Ninth Circuit Court of Appeals Elsinore Christian Center v. City of Lake Elsinore (August 21, 2003) 291 F.Supp.2d 1083 (C.D. Cal.) Guru Nanak Sikh Society of Yuba City v. County of Sutter (November 19, 2003) Case No. CV S (E.D. Cal.) New Cases Since Main Paper Case Name... Page Bayview Hunters Point Community Advocates v. Metropolitan Transportation Comm n (April 6, 2004) 2004 Daily Journal D.A.R Engine Manufacturers Assn. v. South Coast Air Quality Management District (April 28, 2004) 2004 Daily Journal D.A.R The San Remo Hotel L.P. v. City and County of San Francisco (April 14, 2004) 2004 Daily Journal D.A.R V. POLICE POWER B. LAND USE 12. Challenges * * * * * * b. Regulatory Taking The San Remo Hotel L.P. v. City and County of San Francisco (April 14, 2004) 2004 Daily Journal D.A.R Facts: In prior proceedings between the parties, the owners of a hotel challenged the constitutionality of an ordinance that restricted their ability convert residential hotel rooms to tourist use. In particular, the ordinance required the provision of relocation assistance to displaced hotel residents, and required the replacement of the hotel units being converted through one of a variety of methods. A conditional use permit for a conversion was approved, subject to a requirement (among others) that the hotel owners pay an in-lieu fee for replacement housing. In a subsequently filed civil rights action, the Ninth Circuit ordered Pullman abstention and, in addition, determined some claims not to be ripe, deferring a decision until after litigation of the claim in the state courts. (145 F.3d 1095 (9th Cir. 1998).) The hotel owners lost their takings 2

22 e 3 claim in the state courts (27 Cal.4th 643 (2002)), and then sought to reactivate their federal takings claim in federal court. The district court determined that the claim was barred by the doctrine of issue preclusion. The hotel owners appealed. Holding: The U.S. Ninth Circuit Court of Appeal affirmed. The doctrine of issue preclusion bars the relitigation of takings issues in federal court when the state court adjudication of state takings claim is an equivalent determination of the federal takings claim. The analysis of the California Supreme Court in particular, (1) the rejection of the Nollan/Dollan test for monetary exactions, and (2) the rejection of the heightened rough proportionality standard for generally applicable legislation versus more adjudicatory acts utilized the very same approach as would have been taken by the Ninth Circuit. That is, California takings law is coextensive with federal takings law. Thus, the hotel owners federal takings claim is barred under the doctrine of issue preclusion. The district court had made an alternative determination based on the statute of limitations, but the Ninth Circuit declined to reach the issue based on its disposition of the case. VI. ENVIRONMENTAL QUALITY C. AIR QUALITY Bayview Hunters Point Community Advocates v. Metropolitan Transportation Comm n (April 6, 2004) 2004 Daily Journal D.A.R Brief Holding: The U.S. Ninth Circuit Court of Appeals reversed the district court s ruling that required the Metropolitan Transportation Commission (MTC) to achieve a certain increase in ridership levels so as to reduce air pollution. The specific language of the transportation control measures that were included in MTC s implementation plans to attain federal air quality standards, in order to comply with the Clean Air Act, did not constitute a binding, enforceable obligation on MTC to increase public transit ridership. Engine Manufacturers Assn. v. South Coast Air Quality Management District (April 28, 2004) 2004 Daily Journal D.A.R Brief Holding: The U.S. Supreme Court vacated a Ninth Circuit determination upholding Fleet Rules of the SCAQMD. The rules prohibit the purchase or lease by various public and private fleet operators of vehicles that do not comply with specified requirements. The petitioner contended that the rules are preempted by the Clean Air Act. The Supreme Court declared that certain of the rules appear to be preempted, and remanded the case for further review. 3