Archives: January 2012

The Pocket Protectors v. City of Sacramento

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(2005) 124 Cal.App.4th 903

The Court of Appeal held that the City of Sacramento should prepare an EIR for a proposed 139-unit, single-family residential project in the Pocket neighborhood in southern Sacramento, finding that the comments of neighbors opposed to the project and the opinions of members of the Planning Commission qualified as the requisite “substantial evidence” under the “fair argument” standard that significant impacts may result, and therefore, the City’s mitigated negative declaration for the project was insufficient. At issue were aesthetic impacts associated with the project’s design, two parallel rows of detached, one- and two-story single-family homes along a narrow private street, and the project’s consistency with existing land use regulations and policies applicable to the site. The court also held that the City’s interpretation of its own regulations was not entitled to the traditional, significant deference, but rather, when the document at issue is a negative declaration, the less deferential “fair argument” standard also applies to the agency’s threshold determination of a project’s consistency with the agency’s land use policies and regulations. [Former RTMM partner Tina A. Thomas and current RMM partner Sabrina V. Teller were counsel of record.]

Association for Sensible Development at Northstar, Inc. v. Placer County

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(2004) 122 Cal.App.4th 1289

The Court of Appeal held the so-called “90-day rule” applicable to petitions filed under the California Environmental Quality Act does not require the petitioner to schedule a specific hearing date on the merits within the 90-day period after filing the petition. Rather, simply filing a “request for hearing” is enough. An earlier case – McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352 – had held the petitioner had to “take affirmative steps sufficient to place the matter on the court’s docket for a hearing.” (198 Cal.App.3d at p. 358.) In ASDAN, the Court ruled the McCormick decision was no longer good law in light of 1994 amendments to Public Resources Code section 21167.4, the section that establishes the 90-day rule. [RMM Counsel of record: Whitman F. Manley]

Sierra Club v. County of Napa

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(2004) 121 Cal.App.4th 1490

The Court of Appeal affirmed that Napa County complied with CEQA when it certified a final EIR for a wine warehousing and distribution facility in an area designated for general industrial use near the Napa airport and found proposed alternatives economically infeasible. Sierra Club challenged the County’s rejection of project alternatives based on evidence from the project applicant that the alternatives were economically infeasible. The court rejected the petitioners’ arguments that CEQA requires evidence of economic feasibility to be presented within the EIR itself, and that information the agency receives relating to economic feasibility must be circulated for public review prior to the agency’s final decision on the project. The court further confirmed that agencies are to be afforded considerable deference in determining whether proposed projects are consistent with the agency’s general plan. [RMM Counsel of record: James G. Moose and Sabrina V. Teller]

CalBeach Advocates v. City of Solana Beach

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(2002) 103 Cal.App.4th 529

The Court of Appeal affirmed the City of Solana Beach’s use of CEQA’s emergency exemption to approve a permit for a seawall in order to protect homes from the imminent collapse of coastal bluffs. Opponents of the seawall argued that the sudden, catastrophic collapse of the coastal bluffs was not an emergency because CEQA defines an emergency as an “unexpected occurrence.” The court rejected this argument, holding that the CEQA exemption did not require that emergencies be “unexpected” when the purpose of the project was to prevent an emergency. [RMM Counsel of record: James G. Moose and Tiffany K. Wright]

Californians Against Waste v. Department of Conservation

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(2002) 104 Cal.App.4th 317

The issue before the court was how, under the California Beverage container Recycling and Litter Reduction Act, the Department of Conservation should calculate the “processing fees” for beverage containers. The “returns based” methodology adopted by DOC had, in effect, created a disincentive for beverage manufacturers to use recyclable containers. The “sales based” approach advocated by CAW eliminated such disincentive, and thereby encouraged the beverage industry to utilize containers with high recycling rates. The Court of Appeal affirmed that the “sales based” methodology served the stated goals of the Act, and ordered the DOC to revise its calculations accordingly. [RMM Counsel of record: James G. Moose and Ashle T. Crocker]

Friends of Davis v. City of Davis

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(2000) 83 Cal.App.4th 1004

The Court of Appeal affirmed that the City of Davis did not act unlawfully under CEQA by failing to construe the City’s design review ordinance to exclude Borders Books from locating in the City. The court rejected the argument that the design review ordinance must be construed to allow tenant-specific review of previously approved projects. The court held that an agency’s interpretation of its own ordinance is entitled to great weight and that the interpretation is unaffected by CEQA. The court also rejected as speculative the argument that Borders Books’ social and economic effects must be regarded as a potentially significant change in the environment, thus warranting a supplemental EIR as a matter of law. The court stated that social and economic effects are not significant effects, unless, on the basis of substantial evidence, they cause a foreseeable physical change in the environment. [RMM Counsel of record: Whitman F. Manley]

Riverwatch v. County of San Diego

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(1999) 76 Cal.App.4th 1428

The Court of Appeal held that the final EIR approved by the County of San Diego complied with CEQA because it contained sufficient information on the impacts of both a proposed rock quarry and a road widening. The court rejected a citizen group’s argument that the EIR was deficient because it deferred until a later point more detailed environmental analysis. Although the extent of mitigation depended upon the future analysis, the EIR’s conclusion that the impact could be successfully mitigated was based on sufficient information. The court also held that the EIR’s baseline did not have to account for allegations of prior illegal activity that occurred at or near the vicinity of the project. [RMM Counsel of record: Tina A. Thomas]

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