Archives: April 2011

Sacramento Superior Court Sets Aside Proposed Pardee Reservoir Expansion Because Environmental Impact Report Failed to Consider Various Cultural, Historical and Natural Resources

On April 11, 2011, Sacramento Superior Court Judge Timothy Frawley ruled in favor of Foothill Conservancy, California Sportfishing Protection Alliance and Friends of the River in their lawsuit against East Bay Municipal Utility District (EBMUD). The groups opposed EBMUD’s 2040 water plan, which proposed to expand EBMUD’s main reservoir, the Pardee Reservoir, as part of an effort to increase the utility’s water supply during times of drought. The court found the agency’s EIR was flawed in many respects, including the EIR’s failure to consider the project’s harm to important local resources, the Native American cultural values associated with the Mokelumne River, public safety concerns associated with the removal of the 1912 Middle Bar Bridge, and EBMUD’s failure to explore the expansion of the Los Vaqueros Reservoir as a water supply alternative. Continue reading

Fifth District Court of Appeal Sets Aside Mixed Use Development Project Because of Project’s Incomplete Environmental Impact Report

On February 23, 2011, in Landvalue 77, LLC v. Board of Trustees (2011) 193 Cal.App.4th 675, the Fifth District Court of Appeal decided that because an EIR for a mixed use development project contained inadequate environmental analyses with respect to certain categories of environmental impacts, the EIR was incomplete, necessitating decertification of the entire EIR and rescission of the project’s approval. Continue reading

Ninth Circuit Court of Appeals Upholds Federal Regulation of the Delta Smelt under the Commerce Clause of the United States Constitution

On February 15, 2011, in San Luis & Delta-Mendota Water Authority v. Salazar, the United States Ninth Circuit Court of Appeals determined that Sections 7 and 9 of the Endangered Species Act (ESA) did not violate the United States Constitution’s Commerce Clause as applied to the California delta smelt. Growers of almonds, pistachios and walnuts brought suit against the United States Fish and Wildlife Service (FWS), claiming that FWS’s protection of the delta smelt had reduced their water supplies, thereby negatively affecting their orchard businesses. The growers argued that because the small fish no longer had any commercial value within California, the Commerce Clause did not support FWS’s regulation of that species. The Night Circuit rejected this argument. Continue reading

First District Court of Appeal Rejects Challenges to Senior Housing Project under the Density Bonus Law and CEQA

On March 11, 2011, in Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, the California First District Court of Appeal rejected a challenge brought under the Density Bonus Law and CEQA to the City of Berkeley’s approval of an infill senior housing project. The case clarifies that courts must look to the amount of rent paid, rather than the amount of rent received by the developer, in determining whether a project classifies as affordable housing. The case also emphasizes local government’s authority to grant concessions and waivers under the Density Bonus Law (Gov. Code, § 65915 et seq). Further, the case provides important direction concerning CEQA’s infill exemption as it intersects with the Density Bonus Law and CEQA’s categorical exemption for in-fill development. Continue reading

Governor Brown Signs Aggressive Renewable Energy Legislation

On April 12, 2011, Governor Jerry Brown signed Senate Bill 2X requiring California utilities to obtain 33 percent of their power from renewable energy sources by 2020. Energy providers are required under the new legislation to draw power from solar panels, biomass, windmills, small hydroelectric plants, and other renewable energy sources. State law currently requires utilities other energy providers to meet a target of 20 percent by 2010 under the Renewable Portfolio Standard Program. Executive Orders S-14-08 and S-21-09 issued by former Governor Schwarzenegger in 2008 and 2009, respectively, established a further goal of drawing 33 percent of energy from renewable sources by 2020. Governor Brown’s signing of Senate Bill 2X codified this goal into law. Continue reading

RTMM Successfully Defends the Los Angeles County Metropolitan Transportation Authority’s Decision to Include Potential Funding for the 710 Freeway Tunnel Project in a Sales Tax Measure Without Conducting Prior CEQA Review

Partners Whitman F. Manley and Tiffany K. Wright, and Associate Christopher J. Butcher, successfully defend the Los Angeles County Metropolitan Transportation Authority’s Decision to Include Potential Funding for the 710 Freeway Tunnel Project in a Sales Tax Measure Without Conducting Prior CEQA Review. In City of South Pasadena, et al. v. Los Angeles County Metropolitan Transportation Authority, the Second Appellate District held in an unpublished opinion issued on March 23, 2011, that the Los Angeles County Metropolitan Transportation Authority’s (Metro) decision to place a sales tax measure, known as the “Traffic Relief and Rail Expansion Ordinance,” on the November 4, 2008 election ballot (Measure R) did not constitute a “project,” as defined by the California Environmental Quality Act (CEQA). Therefore, the court rejected the argument advanced by the Cities of La Cañada and South Pasadena (Petitioners) that environmental review of the proposed 710 Freeway extension was required prior to including it in the list of potential projects eligible to receive Measure R funding. Continue reading