On December 16, 2010, the California Air Resource Board (CARB) adopted a resolution to approve the proposed “California Cap and Trade Program” with certain modifications that will be completed through a series of 15-day rulemakings. The cap-and-trade program is designed as a key element in implementing AB 32, the California Global Warming Solutions Act of 2006. The final regulation must be submitted to the Office of Administrative Law prior to October 28, 2011, and the program will begin in 2012. Continue reading
In Building Industry Association of Central California v. County of Stanislaus (2010) 190 Cal.App.4th 582 , the Fifth Appellate District of the Court of Appeal upheld the County of Stanislaus Farmland Mitigation Program against an attack brought by the Building Industry Association. The Farmland Mitigation Program (FMP) was designed to mitigate for the loss of farmland due to residential development in the County. In essence, the scheme requires mitigation for loss of agricultural land at a 1:1 ratio and requires anyone proposing to develop agricultural land to acquire agricultural conservation easements over an equivalent area of comparable farmland prior to development. The Building Industry Association (BIA) argued that this requirement violates the restrictions in Civil Code section 815.3, which specifically prohibits an agency from conditioning an entitlement on an “applicant’s granting of a conservation easement.” The Court held that the FMP complied with this provision because, under the County’s scheme, “applicant” was not charged solely with granting an easement on its own property, but could also acquire it from a willing seller.
Friends of the Juana Briones House v. City of Palo Alto (2010) 190 Cal.App.4th 286 (Case No. H033275). On November 22, 2010, the Sixth District published its decision in Friends of the Juana Briones House v. City of Palo Alto holding that the approval of a demolition permit under the governing municipal code provision was a ministerial act, and thus was not subject to CEQA. In reaching this conclusion, the court reversed the trial court’s judgment, which had granted the petitioner’s requested writ of mandate. The Sixth District held that under the plain language of the governing municipal code section, Palo Alto Municipal Code section 16.49.070, the city had no authority to impose permit conditions that would render the permit discretionary. The Court also determined that this conclusion was not affected by the possibility that a ministerial building permit might also be issued by the City. Therefore, there was no basis for requiring CEQA review under the “whole of the action” theory.
Environmental Plaintiffs’ Partial Success Conferred Public Benefit Sufficient to Justify Award of Fees Under Private Attorney General Doctrine
In Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2010) 190 Cal.App.4th 217 (A108410, Nov. 19, 2010), the First Appellate District, in the published portion of its opinion, held that the partial success of two plaintiffs groups (an environmental group and a labor union) conferred a sufficient public benefit to warrant an award of attorneys’ fees under the private attorney general doctrine (Code Civ. Proc. §1021.5), even though their success at trial was not upheld in its entirety on appeal. The court reversed post-judgment orders awarding attorney fees following the original trial court judgment and remanded the case to the trial court to determine whether the environmental plaintiffs’ actions were necessary within the meaning of section 1021.5 and the amount of any reasonable fee award.
Fourth District Upholds Specific Plan EIR Against Challenge to EIR’s Water Supply and Agricultural Resources Analyses
Cherry Valley Pass Acres and Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316. On November 22, 1010, the Fourth District Court of Appeal upheld the City of Beaumont’s environmental impact report (EIR) prepared for the Sunny-Cal Specific Plan, which called for the development of 560 residential units on a 200-acre site long used for agricultural purposes. The court heard and rejected claims that the city relied on an improper baseline in assessing the project’s impacts on water supplies and claims that the EIR’s water supply analysis was deficient due to inconsistencies between the Water Supply Assessment (WSA) prepared for the project and other pertinent water supply planning documents. The court also concluded that substantial evidence supported the city’s conclusion that mitigation measures and alternatives to reduce the project’s significant impact to agricultural resources were economically infeasible.