Archives: June 2011

Fifth District Holds That, Unlike Impacts on School Facilities, a Development’s Indirect Impacts on the Non-School Physical Environment Are Not Excused from Being Considered and Mitigated in an EIR

On June 21, 2011, the Fifth District Court of Appeal published part of its decision in Chawanakee Unified School Dist. v. County of Madera (2011) 196 Cal.App.4th 1016, directing the trial court to grant a petition for writ of mandate that compels Madera County to set aside its approval of a development project, and to revise the project’s EIR with regard to analysis of indirect environmental impacts on the non-school physical environment. The court concluded that Government Code section 65996, subdivision (a), as amended by Senate Bill 50 (SB 50) in 1998, only excuses direct impacts on school facilities and buildings from being considered and mitigated in an EIR. Therefore, a project’s indirect impacts on traffic, air quality, and noise levels related to school attendance or construction of school facilities must be considered and mitigated in an EIR. Continue reading

Fourth District Holds that “Framework” Retainer Agreements with Qualifying Conditions Do Not, by Themselves, Create Current Attorney-Client Relationships

On March 22, 2011, the Fourth District Court of Appeal in Banning Ranch Conservancy v. Superior Court (2011) 193 Cal.App.4th 903, issued a peremptory writ of mandate directing the trial court to set aside its order disqualifying the law firm Shute, Mihaly & Weinberger (Shute) from representing Banning Ranch Conservancy (Conservancy) in a suit against the City of Newport Beach (City). The court held that the 2005 “framework” retainer agreements at issue did not create a current attorney-client relationship between Shute and the City, since there was not an acceptance of an actual request for representation on any recent matters. Continue reading

Second District Finds Construction Impact Challenges to Malibu’s “Legacy Park” Project Moot and Substantial Evidence Supported City’s Conclusions Regarding Water Quality and Groundwater Impacts

On April 5, 2011, the Second District Court of Appeal in Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, held that Santa Monica Baykeeper’s (Baykeepers) lawsuit challenging the City of Malibu’s adoption of an EIR and approval of a park and detention basin project was moot as to construction-related impacts because the project was completed during the pendency of the lawsuit, and no recognized exception to the mootness doctrine applied. The court also confirmed that substantial evidence supported the EIR’s conclusions regarding the use of treated effluent from an adjoining lumber yard project and the EIR’s conclusion that the project would reduce, rather than create, groundwater impacts. Accordingly, the court affirmed the trial court’s judgment denying Baykeeper’s petition for writ of mandate. Continue reading

First District Holds that Substantial Completion of a Development Project During an Active Lawsuit Moots Challenges to City Council Resolutions Approving the Project

On April 27, 2011, the California Supreme Court denied a petition for review of the appellate court’s decision in Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559. In the appellate decision, the First District Court of Appeal reversed a judgment of the trial court and found that challenges to city council resolutions approving a retail-cinema redevelopment project had become moot during the trial because the project had been substantially completed before the trial court entered judgment. The court also held that a challenge to the potential future use of the city’s eminent domain authority was not ripe. Continue reading

Fourth District Rules Petitioner Failed to Exhaust Administrative Remedies Properly, Where Thousands of Pages of Data Were Submitted Without Specifying the Exact Issue of Noncompliance with CEQA During Public Comment Period

On June 10, 2011, the Fourth District Court of Appeal ordered the publication of its decision in Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515 (Case No. D057524). The appellate court affirmed the trial court’s judgment denying a petition for writ of mandate to compel the City of San Diego to complete a supplemental environmental impact report (SEIR) instead of an addendum to a previously certified final environmental impact report (FEIR). The court held the petitioner failed to exhaust administrative remedies, where the petitioner submitted thousands of pages of documents during the public comment period without specifying the exact issue of noncompliance with the California Environmental Quality Act. Continue reading

First District Court of Appeal Finds Revised EIR Did Not Impermissibly Defer Mitigation for Seismic Impacts

On May 19, 2011, the First Appellate District in Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, affirmed the order of the trial court discharging a writ of mandate. The court held that the revised environmental impact report (EIR) did not impermissibly defer mitigation of seismic impacts in violation of the California Environmental Quality Act (CEQA). Continue reading

First District Reverses Order Awarding Attorneys’ Fees Where the Trial Court’s Remand Was a Purely Procedural One

On May 5, 2011, the First District Court of Appeal ordered the publication of its decision in Center for Biological Diversity v. California Fish and Game Commission (2011) 195 Cal.App.4th 128. In this decision, the First District Court of Appeal concluded attorney’s fees should not be awarded where no significant benefit to the general public resulted despite the trial court ordering the agency to reconsider a matter because the agency might have employed an incorrect standard in making its decision. Continue reading