Archives: January 2014

Sacramento Arena Will Not be Put to a Public Vote

On January 24, 2014, city clerk Shirley Concolino rejected a measure that would force a public vote on Sacramento’s downtown arena project. The stated purpose of the measure, titled “Voter Approval for Public Funding of a Professional Sports Arena Act,” was to prohibit Sacramento from borrowing against the city’s general fund for purposes of building a professional sports arena absent the support of a majority of voters.

Concolino stated in a press release that the petitions gathering signatures for the measure violated numerous provisions of the state and city election codes. Flaws included the omission of pertinent information and different wording among nine versions of the petition. Concolino also determined that the petitions violated the Sacramento City Charter. She called these defects “major” legal flaws.

The two organizations circulating the petitions, Sacramento Taxpayers Opposed to Pork and Voters for a Fair Arena Deal, collected 22,938 signatures in favor of placing the measure on the June 3 ballot. But because thousands of those signatures came from defective petitions, the count fell short of that needed to pass the measure. The measure would give Sacramento voters a chance to vote in November on the city’s public subsidy. Most of the $258 million the city plans to contribute would come from bonds backed by parking space fees.

The groups are expected to challenge Concolino’s decision in court. They view the petitions’ flaws as “minor and insignificant printing errors” – technicalities they believe should not prevent general fund spending from going to a vote. Under current election law, judges tend to interpret petition requirements strictly. Ballot initiative laws set out explicit requirements, and city clerks have little discretion to overlook defects.


Additional information, which the author of this blog post consulted in preparing this post, is available at the following sites:

Court of Appeal Holds Coastal Commission is Coastal Permitting Agency for Santa Monica Mountains

In Hagopian v. State of California, the California Court of Appeal for the Second District held the California Coastal Commission did not err in finding land owners’ development to be in violation of the Coastal Act. The court found that the Commission was the authorized permitting agency for Los Angeles County, and that the county did not breach any statutory duty. The court affirmed the ruling below.

In 2007, the Hagopians, who reside in the Santa Monica Mountains, applied to the Coastal Commission for a permit exemption to construct a guest house on one of their three adjoining parcels of land. The exemption request was denied, but the Hagopians proceeded to construct a pool, tennis courts, and other structures on the property. They also installed vineyards. Despite being issued notices of violations and assuring the agency they would apply for a development permit, the Hagopians continued to build without a permit. The couple argued they did not need a permit because their property was exempt from the Coastal Act, the Commission had no jurisdiction, the property contained no environmentally sensitive habitat, and prior agricultural use of the property permitted current viticulture use. The Hagopians were granted at least six deadline extensions to seek a coastal development permit. The Commission held a hearing at which it determined the Hagopians were in violation of the Coastal Act. The Hagopians sued.

The trial court found that the Commission was the duly authorized body to issue coastal development permits, and the County of Los Angeles was not obligated to take over that authority before its own local coastal program was certified. The Hagopians appealed, contending that the Coastal Commission proceeded without jurisdiction, denied them a fair hearing, and abused its discretion by making findings unsupported by the evidence. The Court of Appeal disagreed.

The court first laid out that the Coastal Commission has initial authority to issue coastal development permits. Once the Commission approves both the land use and implementation portions of a local coastal program, the program is certified, and the Commission must delegate its authority to the local government within 120 days. Here, the Commission never certified the implementation portion of Los Angeles County’s local coastal program for the Santa Monica Mountains area. Consequently, the Commission’s obligation to delegate permitting authority never arose, and the authority to regulate coastal development remained with the Commission.

The court also found that the Hagopians were not denied their due process rights and that the Hagopians had waived their contentions about an agricultural use exemption by failing to raise it at the hearing. The Commission, the court noted, “has primary authority and expertise to pass on such matters.” Finally, the court rejected the Hagopian’s contention that Los Angeles County must be compelled to complete the local implementation plan process, which had languished after the 120 day deadline passed in 1986.

State asks Supreme Court to Set Aside Trial Court Rulings Stalling High-Speed Rail

Governor Jerry Brown has asked the California Supreme Court to step in and prevent two recent lower court rulings from derailing construction of the state’s bullet train. The state sent a direct request to the California Supreme Court because the normal appeals process, it claims, would take too long given the time-sensitive nature of the project and its funding. The request took the form of a petition for extraordinary writ of mandate and application for temporary stay.

In the first Superior Court case, Tos, et al. v. California High-Speed Rail Authority, et al., Sacramento Superior Court Case No. 34-2011-00113919, the trial court refused to validate approximately $8.6 billion in bonds because it found no evidence that issuing the bonds was “necessary and desirable.” This ruling, the state argues in its petition, will disrupt the state’s ability to finance the high-speed rail system as well as other projects funded with general obligation bonds. Furthermore, the ruling will destroy the state’s ability to use the bond validation statutes to obtain speedy and final determinations of validity.

In the second Superior Court Case, High Speed Rail Authority, et al. v. All Persons Interested, Sacramento Superior Court Case No. 34-2013-00140689, the trial court directed the High Speed Rail Authority to rescind and re-adopt a preliminary funding plan intended for the Legislature’s consideration in deciding whether to appropriate bond proceeds to build the project. The state argues that this ruling “compels an idle act” by requiring the Authority to re-do an appropriation plan that has already been enacted.

The trial court’s approach to these issues, the state argues, “cripples government’s ability to function.” The rulings also “thwart the intent of the voters and the Legislature to finance the construction of a high-speed rail.” The petition notes that both decisions are “effectively unreviewable on appeal” given the timeframe; the Authority is faced with either pursuing appeals that will exacerbate delays and increase costs, or else attempt to move the project forward on the trial court’s terms. The state termed this a Hobson’s choice – i.e., not a real choice.

Despite these complaints, state officials assured Washington lawmakers that the project will stick to its planned timetable, with construction in the Central Valley slated to begin later this year. But if the trial court’s rulings are not overturned, officials warned, the project would take longer to build than voters and the Legislature intended, and future funding would be jeopardized.


Court of Appeal Holds Required Overflight Easement in Exchange for Building Permit is Not a Taking

Court of Appeal Holds Required Overflight Easement in Exchange for Building Permit is Not a Taking

In Powell v. County of Humboldt, the First District Court of Appeal held that the required dedication of an airspace easement in exchange for a building permit was not an unconstitutional government taking under either state or federal law.

The Powells purchased a property containing a mobile home with an illegal attached covered porch and carport. When the Powells applied for an after-the-fact building permit, the County informed them that they would need to grant an airspace easement over their home in order to obtain the permit. The Humboldt County General Plan requires, as a condition for obtaining a building permit, that private property owners provide an aircraft overflight easement allowing planes from the nearby airport to fly overhead. The Powells sued, claiming the requirement was a government taking for which compensation was due.

The Fifth Amendment to the United States Constitution states that private property shall not be taken for public use without just compensation. Several Supreme Court cases have attempted to define what it means to “take” property. One way the government can effectuate a taking is through physical invasion of one’s property. (Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419.) Another way to take property is by depriving an owner of all economically beneficial use of that property. (Lucas v. S.C. Coastal Council (1992) 505 U.S. 1003.) The government can also effect a taking with regulation that interferes with investment-backed expectations of the property owner. (Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104.) Here, the Court of Appeal found there was no physical invasion, deprivation of all beneficial use of the property, or interference with the Powells’ investment-backed expectations.

The court also assessed the Powells’ claim within the framework of the Nollan/Dolan cases. (Nollan v. California Coastal Commission (1987) 483 U.S. 825; Dolan v. City of Tigard (1994) 512 U.S. 374.) Nollan and Dolan both involved regulatory takings resulting from government demands that a landowner dedicate an easement allowing public access to the owner’s property as a condition of obtaining a development permit. The court noted that in both of those cases the dedications were so onerous that the exactions were essentially deemed per se physical takings. Here, however, even under California’s more expansive takings clause (whereby property damage may be considered a taking), the easement did not rise to the level of a per se physical taking. There was no evidence that the overflight easement would invade the Powells’ private airspace, substantially interfere with the use and enjoyment of their property, or cause a measureable reduction in the property’s value.

The court noted that this easement could, under the right circumstances, be considered a taking. The Powells, however, failed to present sufficient evidence that at the time of their suit, the practical effect of the easement was to bring about such a taking. The court found nothing to preclude the Powells from seeking just compensation if airport operations substantially increased in the future.

OPR’s Preliminary Recommendations for Evaluation of Alternative Methods of Transportation Analysis Available for Review

Senate Bill 743, passed on September 27, 2013 directs the Governor’s Office of Planning and Research (OPR), in part, to prepare revisions to the CEQA Guidelines establishing criteria for measuring the significance of projects’ transportation impacts. OPR has produced a Preliminary Evaluation of Alternative Methods of Transportation Analysis, which develops those recommendations by exploring new ways to measure environmental impacts related to transportation. The goal of the new transportation-impact metrics is to both reduce environmental review costs and achieve better economic, health, and environmental outcomes from such review.

Currently, CEQA review of transportation impacts uses the Level of Service (LOS) metric, which focuses on vehicle delay at intersections and on roadways. Mitigation measures to increase traffic flow typically involve increasing the capacity (i.e., width) of the intersection or road, rather than encouraging alternate lower-emission forms of transportation. LOS has thus been criticized as working against state goals like GHG emissions reductions, infill development, and multimodal transportation networks. Other criticisms of the metric are that LOS is difficult and expensive to calculate; LOS measures motorist convenience rather than physical impact to the environment; and LOS skews environmental priorities by characterizing bicycle and pedestrian improvements as detrimental to transportation, thereby discouraging more environmentally friendly modes of travel.

SB 743 requires OPR to provide non-LOS evaluation methods for transportation impacts. These criteria must promote the reduction of greenhouse gases and the development of transportation networks, particularly in areas with transportation infrastructure already in place. The most important way in which SB 743 facilitates achievement of state goals is that once the new criteria are in place, LOS-measured traffic will not be considered a significant impact on the environment. The bill does not limit the type of projects to which the new transportation criteria would apply.

OPR’s preliminary evaluation studies a number of suggested alternative measures of transportation impacts including vehicle miles traveled per automobile or per capita, automobile trips generated, fuel use, and motor vehicle hours traveled. The agency’s analysis highlights the difficulty of using each metric and identifies which mitigation measures and project alternatives might result from the use of each metric.

Comments on the proposed metrics are due by February 14, 2014 to [email protected]. OPR must produce a draft of the Guidelines revisions by July 1, 2014.

Unpublished Court of Appeal Decision Holds Rival Theater Owners Cannot Recover Attorney’s Fees Under Private Attorney General Doctrine

In an unpublished decision, in LandValue 77 v. Board of Trustees of California State University, the Fifth District Court of Appeal upheld a lower court’s denial of attorneys’ fees under Code of Civil Procedure section 1021.5, which codified the “private attorney general” doctrine. The doctrine allows plaintiffs to bring suits in the public interest and recover fees when they are successful, but only where plaintiffs show it was not in their economic interest to bring the suit. The court held that the plaintiffs failed to make that showing here.

In the underlying action, a movie theater company and its manager challenged the CEQA review and approval of a new theater. Although the trial court held in plaintiffs’ favor, plaintiffs contended that the remedies were insufficient. The Court of Appeal rejected the plaintiffs’ arguments, but remanded the case for resolution of certain issues. After remand, plaintiffs filed a motion for attorneys’ fees under section 1021.5.

The private attorney general doctrine is an exception to the usual rule that each party bears its own attorneys’ fees. The purpose of section 1021.5 is to compensate litigation brought in the public interest when there are insufficient financial incentives to otherwise justify the litigation—that is, where the financial burden on the plaintiff is much greater than the plaintiff’s stake in the matter. The claimant has the burden of proof to show legal entitlement to the fees under the multi-factor test laid out in Conservatorship of Whitley (2010) 50 Cal.4th 1206. The disputed factor in this case was whether plaintiffs had established a “financial burden of private enforcement,” i.e., that the costs to plaintiffs far outweighed any benefits of prevailing in the litigation. The trial court found plaintiffs failed to satisfy this burden, making a fee award inappropriate. The Court of Appeal agreed.

The court found that the record clearly showed plaintiffs had a financial incentive to stop or delay the opening of the proposed theater, given that plaintiffs had ownership interest in a competing theater only two miles away. Even without proof of an incentive, plaintiffs’ failure to identify with particularity their financial interests in the existing theater and failure to present sufficient evidence to estimate the monetary value of the delay in the opening of the competing theater meant the court could not conduct the proper cost-benefit analysis. Thus, plaintiffs failed to carry their burden of showing that their litigation expenses in fact transcended the monetary value of the benefits obtained. The court noted that a claimant’s declaration of altruistic motives—here, a desire to protect the environment—is not a substitute for presenting the information necessary for the court to perform a cost-benefit analysis.

California Supreme Court Grants Review of Unpublished First District CEQA Opinion

On January 15, 2014, the California Supreme Court granted review of Friends of the College of San Mateo Gardens v. San Mateo County Community College District (Case No. S214061). The case was previously heard in Division One of the First Appellate District, which issued an unpublished opinion in favor of the petitioner group on September 26, 2013.

The action arose when petitioner Friends challenged the San Mateo County Community College District’s decision to demolish a building complex on the district’s College of San Mateo campus to make room for a new parking lot. The District’s decision was supported by an addendum to a six-year-old previously adopted negative declaration covering campus-wide renovation plans. Friends argued the demolition project violated CEQA and sought to compel the district to prepare an EIR for the demolition and parking lot project as a “new project”, rather than a change to the previously adopted campus renovation plans under CEQA. The trial court granted Friends’ petition. The Court of Appeal affirmed, opining that, as a matter of law, the demolition project was a “new” project, thereby requiring environmental review beyond an addendum.

In its petition for review, the District requested the Supreme Court clarify the appropriate level of judicial deference due to agencies in subsequent environmental review situations. The District presented the following issue to the court: “[i]f a lead agency approves modifications to a previously reviewed and approved project through an addendum, may a court disregard the substantial evidence underlying the agency’s decision to treat the proposed action as a change to a project rather than a new project, and go on to decide as a matter of law that the agency in fact approved a ‘new’ project rather than a modification to a previously approved project, even though this ‘new project’ test is nowhere described in CEQA or the Guidelines?”

Although CEQA sets a relatively low threshold for requiring the preparation of an EIR for a project of first impression, the District noted, Public Resources Code section 21166 establishes a presumption against subsequent review; a later EIR is not required unless new or substantially worse environmental impacts would occur as a result of the changes to the previously-reviewed project. The inquiry was thus whether the District’s project changes would require major revisions of the previous negative declaration “due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects.” The District argued that the project changes were appropriately presented in the addendum, which showed there would be no more severe environmental impacts due to these changes—in fact, less total building area would be demolished than was originally planned in 2007, due to the District’s interim decisions to renovate, rather than demolish as originally planned, a couple of other buildings on the campus.

The District argued that the Court of Appeal had relied on a heavily criticized outlier case, Save Our Neighborhood v. Lishman, in reaching its decision, furthering a split among the appellate districts regarding the appropriate standard of review to apply to an agency’s conclusions under section 21166. In Lishman, the Third Appellate District announced a new standard whereby it could decide for itself as a threshold matter of law whether a challenged action constituted a change to a previously reviewed and approved project or a new project altogether. The District, in its petition, discouraged the use of Lishman’s “new project” standard, which affords no deference to agencies, does not derive from CEQA or the Guidelines, and does not provide workable guidance to agencies in understanding what factors should be taken into consideration in the “changed project” versus “new project” determination. Instead, the District urged that courts should follow case law holding substantial evidence applies to review of an agency’s determination that section 21166 applies to proposed actions, including a decision to prepare an addendum to a previously reviewed document.

The District also noted that the Court of Appeal failed to identify any flaws in the analysis presented in the addendum and thus no prejudicial error committed by the District. In doing so, the District argued, the appellate court had prioritized form over substance and created needless expense for the district and state taxpayers in requiring that a new initial study be prepared.

RMM attorneys, James G. Moose and Sabrina V. Teller, partners in the firm, and John T. Wheat, associate, represent the San Mateo County Community College District in the litigation.

The docket for the case is available here.

Governor Brown Declares a Drought State of Emergency

California Governor Jerry Brown has declared a drought state of emergency and called for statewide water conservation. Brown directed the state to manage water for drought conditions and asked that asked that all Californians conserve water wherever possible.

This has been the driest year in California’s recorded history. The state’s snowpack is at only 20 percent of water content typical for this time of year. Rivers and reservoirs are below record lows.

These water shortfalls can be disastrous for farms, communities, and fire-prone areas. Brown directed state officials to assist economically impacted farmers and ensure adequate drinking water supply. The governor also directed state agencies to use less water and hire more firefighters.

In May 2013, Brown issued an executive order directing state water officials to expedite review and processing of voluntary transfers of water and water rights. In December 2013, Brown formed a Drought Task Force.

Details on Brown’s public awareness campaign can be found at

Court of Appeal Upholds Spot Zoning to Allow for Senior Housing

In Foothill Communities Coalition v. County of Orange, the Fourth District Court of Appeal held that the Orange County Board of Supervisors’ spot zoning to allow senior citizen housing was permissible, reversing the decision below. Community groups and area homeowners had challenged the board’s creation and application of a new zoning definition for senior residential housing. The court upheld the board’s actions as consistent with the local general plan and the specific plan.

The Roman Catholic Diocese of Orange and Kisco Senior Living, LLC wanted to build a senior living community on a parcel of unincorporated land owned by the diocese. Under the North Tustin Specific Plan, the site was zoned as single-family residential. The Board of Supervisors amended the plan to create a new zoning district – the senior residential housing land use district – which it applied to the site. Foothill sought to prevent this development, and the trial court ruled in their favor.

The Court of Appeal reviewed the findings of plan consistency with deference to the board. The court concluded that although the board’s actions did constitute spot zoning, such zoning was permissible here. Spot zoning occurs where a small parcel of property is subject to either more or less restrictive zoning than the surrounding properties. Once a court has determined that spot zoning has occurred, it must then assess whether the zoning is in the public interest.

The court found the zoning amendment to be consistent with the state’s priority of developing senior citizen housing. The California Legislature encouraged senior housing by creating a density bonus for such projects. Furthermore, in Orange County there were 702,919 seniors in 2010, comprising nearly 22% of the county’s population. That figure is expected to increase to 945,081 by 2020 – an 86% increase in ten years. The county found that thousands of these citizens were living alone, dependent on fixed incomes and living with disabilities. Combined with the premise that specific plans “may be amended as often as deemed necessary by the legislative body” and that a project must merely be in agreement or harmony – not in rigid conformity – with a specific plan, the court found substantial evidence supported the board’s actions.

The court also disagreed with the petitioners’ argument that the project violated the Establishment Clause simply because the applicant was a religious organization. Applying the test for government entanglement in religion set forth in Lemon v. Kurtzman (1971) 403 U.S. 602, the court concluded that the zoning change and project approval had a secular legislative purpose: to provide needed housing alternatives for senior citizens in the county. The primary effect of the zoning change was not to advance religion, but rather, to create a senior residential facility. Finally, the zoning change did not create entanglement between government and religion just because the landowner was a religious organization.

The court remanded the matter to the trial court for further consideration of CEQA issues.