SUPPLEMENT TO UPDATE ON LAND USE AND CEQA CASES

611 ANTON BOULEVARD, FOURTEENTH FLOOR COSTA MESA, CALIFORNIA 92626-1931 DIRECT ALL MAIL TO: POST OFFICE BOX 1950 COSTA MESA, CALIFORNIA 92628-1950 TELEPHONE 714-641-5100 FACSIMILE 714-546-9035 INTERNET ADDRESS www.rutan.com ORANGE COUNTY SILICON VALLEY (408) 289-8777 A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Philip D. Kohn Direct Dial: (714) 641-3415 E-mail: pkohn@rutan.com SUPPLEMENT TO UPDATE ON LAND USE AND CEQA CASES (Cases Reported Between August 13, 2004 and September 15, 2004) Philip D. Kohn City Attorney City of Laguna Beach City Attorneys Department League of California Cities Annual Conference September 17, 2004 492390.04 a03/19/12

e 1 Updated Citations to Cases in Main Paper Native American Sacred Site and Environmental Protection Assn. v. City of San Juan Capistrano (July 22, 2004) 2004 Daily Journal D.A.R. 8947 now 120 Cal.App.4th 961 Travis v. County of Santa Cruz (July 29, 2004) 2004 Daily Journal D.A.R. 9280 now 33 Cal.4th 757 Change in Status of Cases Reported at Spring Conference Big Creek Lumber v. County of Santa Cruz (2004) 115 Cal.App.4th 952 now accepted for review by California Supreme Court Pacific Lumber Co. v. California State Water Resources Control Board (2004) 116 Cal.App.4th 1232 now accepted for review by California Supreme Court Watch List: Cases Awaiting Hearing/Decision by California Supreme Court Barratt American Inc. v. City of Encinitas (2004) formerly 115 Cal.App.4th 837 issue: whether challenge to building permit and plan review fees is time-barred, and whether challenge is viable on the merits Barratt American Inc. v. City of Rancho Cucamonga (2003) formerly 109 Cal.App.4th 709 issue: whether challenge to building permit and plan review fees is time-barred, and whether challenge is viable on the merits City of Marina and Fort Ord Reuse Authority v. Bd. of Trustees of the State of California (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 (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 492390.04 a03/19/12 1

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 S02-1785 (E.D. Cal.) both cases involve RLUIPA issues New Cases Since Main Paper Case Name...Page City of Malibu v. California Coastal Commission (August 23, 2004) 2004 Daily Journal D.A.R. 10519...3 Grand Canyon Trust v. Tucson Electric Power Co. (September 2, 2004) 2004 Daily Journal D.A.R. 10970...5 Headwaters, Inc. v. U.S. Forest Service (September 8, 2004) 2004 Daily Journal D.A.R. 11132...6 High Sierra Hikers v. Blackwell (August 25, 2004) 2004 Daily Journal D.A.R. 10601...6 Santa Barbara County Flower and Nursery Growers Assn., Inc. v. County of Santa Barbara (August 17, 2004) 2004 Daily Journal D.A.R. 10166...4 Save Our Sonoran v. Flowers (August 26, 2004) 2004 Daily Journal D.A.R. 10664...5 Sierra Club v. County of Napa (September 1, 2004) 2004 Daily Journal D.A.R. 10939...4 The Lands Council v. Powell (August 13, 2004) 2004 Daily Journal D.A.R. 10042...6 * * * * * * 492390.04 a03/19/12 2

e 3 CHAPTER X LAND USE Part 12. California Coastal Act City of Malibu v. California Coastal Commission (August 23, 2004) 2004 Daily Journal D.A.R. 10519 Facts: Malibu is required by the Coastal Act to adopt and implement a local coastal program (LCP) to guide development. In the absence of an LCP, coastal development permits (CDPs) are subject to processing and approval by the Coastal Commission ( Commission ). As of 2000, nine years after Malibu s incorporation, the city had not adopted an LCP. The Commission reportedly tired of the obligation to process CDP applications, and persuaded the Legislature and Governor to approve an amendment to the Coastal Act that directed the Commission to write an LCP for the city. The Commission did so in 2002. The city s voters then qualified a referendum petition on the LCP. The Commission disputed the city s contention that the effectiveness of the Commission-adopted LCP was suspended. The Commission further claimed that its adoption of the LCP was not subject to referendum. The city filed a petition for writ of mandate seeking to compel the Commission to process CDP applications while the referendum was pending. The Commission cross-complained, seeking an injunction to force the city to implement the LCP and process permits. A group of city taxpayers and property owners were allowed to intervene, and they asked the court to set aside the city s decision to place the LCP amendment on the ballot. The trial court denied the petition, granted the Commission s injunction, and granted the relief requested by the interveners. The city appealed. Holding: The court of appeal affirmed. The city claimed that the amendment to the Coastal Act constitutes unconstitutional special legislation as it was confined solely to Malibu rather than all other coastal cities that had also not implemented an LCP. The court of appeal disagreed, stating that the decision to focus on Malibu was rational because Malibu stood head and shoulders above other entities in the burden it placed on the Commission, measured by the number of CDP applications that were generated. [T]he state is entitled to solve a problem incrementally, starting with the worst offenders first. The city further claimed that special legislation may not preempt the local exercise of land use regulatory powers. However, the court of appeal held that the Coastal Act deals with matters of general statewide concern. The court of appeal also rejected the city s claim that the statute improperly delegated legislative powers to an administrative agency. Finally, the court of appeal concurred with the Commission s contention that the Legislature effectively withdrew the right of referendum as to the LCP adopted by the Commission. (All parties agreed that a city-adopted LCP is subject to referendum.) Finally, the court of appeal observed that Malibu s dissatisfaction called for political, not judicial, remedies: the city could petition the Commission to amend the LCP if it was not to the city s liking, and could lobby the Legislature to regain the power to draft a new LCP. see Santa Barbara County Flower and Nursery Growers Assn., Inc. v. County of Santa Barbara below 492390.04 a03/19/12 3

e 4 CHAPTER XI PROTECTING THE ENVIRONMENT Part 2. California Environmental Quality Act (CEQA) Santa Barbara County Flower and Nursery Growers Assn., Inc. v. County of Santa Barbara (August 17, 2004) 2004 Daily Journal D.A.R. 10166 Facts: The California Coastal Commission directed the county to submit a proposed amendment to its local coastal plan (LCP) concerning greenhouse development in a certain region, together with an environmental assessment of such development. In response, the county caused the preparation of an environmental impact report (EIR). The county later certified the EIR and adopted an amendment to the LCP s implementing ordinances to regulate future greenhouse expansions. The plaintiff association filed a petition for writ of mandate challenging the adequacy of the EIR. More particularly, the association claimed that the EIR did not adequately discuss the environmental effects of open field agriculture or alternatives to the project, or adequately analyze the project in relation to applicable state policies, general and regional plans, and local ordinances. The trial court denied the petition, and the plaintiff appealed. Holding: The court of appeal affirmed, concluding that preparation of an EIR was unnecessary. ( The Association understandably may have been dismayed that a significant administrative proceeding was conducted through error. ) Because the activities of the county were required for the preparation and adoption of a local coastal program, the project was statutorily exempt from CEQA. Therefore, the county had no duty to comply with CEQA in processing its LCP amendment. The fact that an EIR had been prepared by the county and accepted by the Coastal Commission did not waive application of the exemption. Sierra Club v. County of Napa (September 1, 2004) 2004 Daily Journal D.A.R. 10939 Facts: The County s Conservation, Development and Planning Department issued a use permit to Beringer Wine Estates for the development of a winery. The proposed winery was located within the boundaries of an airport industrial special plan. An environmental impact report (EIR) was prepared for the project. The EIR recognized that the project would result in the loss of some seasonal wetlands, which served as a habitat for fairy shrimp. The EIR was certified as adequate and complete, the project was conditionally approved, and a statement of overriding considerations was adopted. The Sierra Club filed a petition for writ of mandate, contending that approval of the use permit violated the California Environmental Quality Act (CEQA). The Sierra Club also claimed that issuance of the use permit was inconsistent with the specific plan. The trial court denied the petition, and the Sierra Club appealed. Holding: The court of appeal affirmed. The EIR complied with CEQA s mandate to identify and analyze a project s significant effects on the environment, alternatives to the project, and feasible mitigation measures. The Sierra Club argued that the EIR s failure to analyze the economic feasibility of alternatives prevented members of the public from debating the issue. 492390.04 a03/19/12 4

e 5 However, the court of appeal stated that CEQA does not require the public to be a part of economic feasibility debates, although CEQA does expect agency officials to inform the public when they choose economic feasibility over environmental concerns in approving a project. Thus, the analysis demanded by the Sierra Club was not required in this case. The court of appeal also found that the findings concerning alternatives were adequate and supported by the record. As to the specific plan claim, the court of appeal accorded great deference to the county s interpretation of the plan. With respect to provisions of the specific plan declaring that wetland and stream habitat shall be protected in their natural state unless shown to be infeasible, the court of appeal rejected the Sierra Club s argument that infeasible is synonymous with impossible. The county found that preservation was not feasible under the circumstances, and the determination was supported by substantial evidence. Part 4. Water Quality Save Our Sonoran v. Flowers (August 26, 2004) 2004 Daily Journal D.A.R. 10664 Brief Holding: The Ninth Circuit Court of Appeals affirmed the federal district court s determination to issue a preliminary injunction suspending the development of a gated residential community. The plaintiff raised serious questions under the Clean Water Act and the National Environmental Policy Act about the validity of a dredge-and-fill permit issued by the Army Corps of Engineers, including the scope of the Corps jurisdiction and the effect of the proposed activity on surrounding areas. A challenge to the plaintiff s standing was rejected as was the developer s claim of unreasonable hardship. Part 5. Air Quality Grand Canyon Trust v. Tucson Electric Power Co. (September 2, 2004) 2004 Daily Journal D.A.R. 10970 Brief Holding: Many years ago, the defendant utility obtained a permit from the U.S. Environmental Protection Agency to construct a coal-powered electric plant. A subsequent regulation required new power plants to use state-of-the-art pollution controls if plant construction did not commence until after a specified date. The facts were disputed as to when the defendant began construction. The Ninth Circuit Court of Appeals reversed summary judgment in favor of the defendant and remanded for further proceedings. Also, the Ninth Circuit rejected the doctrine of laches as a basis for summary judgment. (Approximately 22 years expired since the prescribed construction deadline and the filing of the legal action, and 15-20 years had passed since construction of the units was completed.) * * * * * 492390.04 a03/19/12 5

e 6 Miscellaneous Headwaters, Inc. v. U.S. Forest Service (September 8, 2004) 2004 Daily Journal D.A.R. 11132 Brief Holding: An environmental group sued under the National Environmental Policy Act, the National Forest Management Act, and the Administrative Procedures Act to contest the validity of certain sales of timber in a national forest. Other environmental groups previously had challenged the same sales. The Ninth Circuit Court of Appeals upheld the federal district court s dismissal of the case on res judicata grounds. High Sierra Hikers v. Blackwell (August 25, 2004) 2004 Daily Journal D.A.R. 10601 Brief Holding: The Ninth Circuit Court of Appeals held that the U.S. Forest Service did not comply with the mandates of the National Environmental Policy Act when it issued multi-year special use permits and granted renewals of special use permits to commercial packstock operators in the Ansel Adams and John Muir Wilderness Areas. The Forest Service failed to prepare an environmental impact statement prior to taking the challenged actions. The Ninth Circuit also found triable issues of fact as to whether the Forest Service violated the Wilderness Act. The Lands Council v. Powell (August 13, 2004) 2004 Daily Journal D.A.R. 10042 Brief Holding: The Ninth Circuit Court of Appeals directed the federal district court to enter summary judgment in favor of plaintiffs who challenged the adequacy of an environmental impact statement (EIS) prepared for a watershed restoration project in a national forest. The project involved the logging of timber for commercial lumber. The U.S. Forest Service violated the National Environmental Policy Act because the EIS failed to adequately examine the cumulative effects of the project on prior timber harvests and on a trout species. The EIS relied on stale data and a faulty water and sediment yield analysis. The Forest Service also violated provisions of the National Forest Management Act. 492390.04 a03/19/12 6