Archives: October 2019

James G. Moose

James G. Moose

Senior Partner

Mr. Moose joined the firm in 1986 as an associate, became a partner in 1990, and is now the senior partner in the firm.  His practice focuses on land use, water, and environmental matters, with an emphasis on issues arising under the California Environmental Quality Act (CEQA), the State Planning and Zoning Law, the National Environmental Policy Act (NEPA), the Endangered Species Act, the California Endangered Species Act, and other relevant land use and environmental statutes.  He represents public agencies, project proponents, consulting firms, non-profit organizations, and individuals.  He handles all phases of the land use entitlement process and permitting processes, including administrative approvals and litigation. Over the course of his career, he has also participated in drafting amendments to CEQA and the CEQA Guidelines.

Along with his former partner Tina Thomas and Whit Manley (Of Counsel to RMM), Mr. Moose is co-author of Guide to the California Environmental Quality Act (11th ed. 2007, Solano Press Books).

Representative matters in which Mr. Moose is currently involved, or has recently been involved, include the following:

  • CEQA counsel to the Marin Wildfire Prevention Authority with respect to that entity’s plans to take steps to reduce the risk of wildfires within Marin County;
  • Counsel to Friant Ranch LP in litigation over the adequacy of Fresno County’s EIR for the Friant Ranch Specific Plan and in continuing planning efforts related to that project;
  • Outside counsel to the City of Salinas on a variety of land use matters;
  • Outside counsel to the City of Santa Cruz on a variety of environmental, land use, and water-related matters;
  • Outside counsel to the Sonoma Valley Unified School District with respect to litigation over the District’s Sonoma Valley High School Athletic Fields Renovation Project;
  • Land use counsel to Love’s Travel Stops & Country Stores with respect to the company’s proposed travel centers in California;
  • Counsel for Placer Ranch Inc., in Placer County litigation over the Placer Ranch Specific Plan and Sunset Area Plan projects;
  • Counsel for East Sacramento Ranch, LLC, in connection with the NewBridge Specific Plan project in Sacramento County;
  • Counsel for Oakmont Senior Living with respect to its proposed Villages at Town Center West project in El Dorado County;
  • CEQA counsel to the Klamath River Renewal Corporation, which is responsible for removing multiple hydroelectric dams on the Klamath River in order to recreate free-flowing conditions for the benefit of anadromous fish;
  • Outside counsel to the California Department of Water Resources with respect to proposed new water diversion and conveyance facilities in the Sacramento-San Joaquin Delta;
  • Outside counsel to the California Department of Water Resources with respect to the preparation of an environmental report for the long-term operations of the State Water Project;
  • Outside counsel to the California Board of Forestry and Fire Protection with respect to the preparation of a programmatic environmental impact report for the California Vegetation Treatment Program (Cal VTP), which involves the use of prescribed fires and other techniques to reduce the risk of catastrophic wildfire and to restore forest health, and in litigation over the approval of that project;
  • Outside counsel to the California High-Speed Rail Authority in CEQA litigation over the adequacy of the EIR for the Merced to Fresno segment of the future statewide high-speed train system;
  • Outside counsel to the California Governor’s Office and the California Department of Conservation with respect to the EIR required by Senate Bill 4 (Pavley 2013) on the subject of “well stimulation treatment” (including hydraulic fracturing) in California;
  • Counsel to Dignity Health in connection with a proposed new health care facility in the City of Redding;
  • Outside litigation counsel to Yorba Linda Estates, LLC, with respect to its Esperanza Hills project in Orange County adjacent to Chino Hills State Park;
  • Outside counsel to the Santa Cruz County Regional Transportation Commission with respect to the proposed North Coast Rail Trail Project;
  • Outside counsel to the City of Roseville on a variety of land use and environmental matters;
  • Outside counsel to the Sierra Community College District with respect to its Facilities Master Plan Update for its Sierra College Campus in Rocklin; and
  • Outside counsel to the North Kern Water District with respect to CEQA issues associated with competing water rights applications on the Kern River.

Published Cases

Sierra Club v. County of Fresno (2020) 57 Cal.App.5th 979; Parkford Owners for a Better Community v. County of Placer (2020) 54 Cal.App.5th 714; Sierra Club v. County of Fresno (2018) 6 Cal.5th 502; High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102; Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2017) 11 Cal.App.5th 596; Mission Bay Alliance v. Office of Community Investment and Infrastructure (2016) 6 Cal.App.5th 160; Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937; Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714; Citizens for a Green San Mateo v. San Mateo Community College District (2014) 226 Cal.App.4th 1572; South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316; Alliance for the Protection of the Auburn Community Environment v. County of Placer (2013) 215 Cal.App.4th 25; Habitat and Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th 1277; Salmon Protection and Watershed Network v. County of Marin (2012) 205 Cal.App.4th 195; Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155; California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957; California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412; Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490; Californians Against Waste v. California Department of Conservation (2002) 104 Cal.App.4th 317; CalBeach Advocates v. City of Solana Beach (2002) 103 Cal.App.4th 529; County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931; Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134;  Stanislaus Audubon Society, Inc. v. Stanislaus County (1995) 33 Cal.App.4th 144; Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559; Sacramento County v. Local Agency Formation Commission (1992) 3 Cal.4th 903;City of Sacramento v. State Water Resources Control Board (1992) 2 Cal.App.4th 960; Citizens of Goleta Valley v. Board of Supervisors of Santa Barbara (1990) 52 Cal.3d 553; Oro Fino Gold Mining Corp. v. County of El Dorado (1990) 225 Cal.App.3d 872; Kings County Farm Bureau v. City of Hanford (1990)  221 Cal.App.3d 692; Midway Orchards v. County of Butte (1990) 220 Cal.App.3d 765; Mountain Lion Coalition et al. v. California Fish and Game Commission et al.(1989) 214 Cal.App.3d 1043; City of Hanford v. Superior Court (1989) 208 Cal.App.3d 580;Citizens for Quality Growth v. City of Mt Shasta (1988) 198 Cal.App.3d 433; and Emmington v. Solano County Redevelopment Agency (1987) 195 Cal.App.3d 491.

Mr. Moose regularly teaches CEQA courses and seminars or lectures for such organizations as the UC Davis Extension Program, the Association of Environmental Professionals, CLE International, Lorman International, and the California Continuing Education of the Bar program, State Bar Environmental Law Conference at Yosemite. He serves on the Advisory Board to the Center for Law, Energy, and the Environment (CLEE) at Berkeley Law. He is also former President of Solar Cookers International, a Sacramento-based international nonprofit corporation focused on encouraging the use of solar thermal cooking around the world.

Education

  • J.D., University of California, Berkeley, School of Law (Boalt Hall), 1985
  • B.A., English/History, University of California, Berkeley, 1981 (cum laude; phi beta kappa)

Professional Affiliations

  • State Bar of California – Environmental Law and Public Law Sections
  • California State Courts
  • United States Supreme Court
  • United States Court of Appeals for the Ninth Circuit
  • United States District Court, Eastern District of California
  • United States District Court, Northern District of California
  • Articles Editor, Ecology Law Quarterly,
  • Selected for inclusion in 2009-2019 Northern California Super Lawyers ® magazine
  • Selection to the Sacramento Business Journal’s Best of the Bar 2014
  • “AV” rating, Martindale-Hubbell

Community Involvement

  • Former President, Solar Cookers International, Inc.
  • Advisory Board Member, Center for Law, Energy and the Environment at Berkeley Law
  • Board Member, Gifts to Share, Inc.
  • Former Board Member, Sacramento City-County Solid Waste Advisory Committee
  • Former Board Member, Environmental Council of Sacramento

First District Court of Appeal Holds That “Demolition By Neglect” Does Not Constitute a Project Under CEQA

The First District Court of Appeal held that a failure to act to preserve an historic property is not a
“project” under CEQA. (The Lake Norconian Club Foundation v. Department of Corrections and Rehabilitation (2019) 39 Cal.App.5th 1044.)

The Lake Norconian Club opened in 1929 as a “luxury resort catering to Hollywood stars and sports celebrities.” Since then, the building has operated as a military hospital, a drug rehabilitation facility, and administrative offices. The building, which sits adjacent to a state prison, has been vacant since 2002.

In 2012, the Legislature enacted SB 1022, which required the Department of Corrections and Rehabilitation to close the adjacent prison. The Department published a draft EIR for the closure of the prison, which included analysis of potential impacts on the former hotel as a result of the closure. The EIR concluded there was no funding for repair or rehabilitation of the building, and continued deterioration was expected. The Legislature subsequently rescinded closure of the prison. The Department certified a final EIR in 2013, which concluded that although the prison would not be closed, the Department would not be able to repair or maintain the former hotel.

The Lake Norconian Club Foundation filed a petition for writ of mandate in November 2014, alleging the Department abused its discretion by failing to act to protect the hotel. The Foundation alleged that the “department’s de facto issuance of ongoing demolition permits is a precommitment to a CEQA project that cannot lawfully be considered for approval or implementation without first preparing and certifying an EIR to consider impacts and alternatives.”

The trial court concluded that the Department’s failure to seek or allocate funding to preserve the hotel was a project within the meaning of CEQA, but rejected the Foundation’s assertion that the failure to engage in routine maintenance or mere inaction was a project. Regardless, the trial court held that the petition was untimely because the statute of limitations began to run when the Department certified the EIR for the closure of the prison complex in 2013.

The Court of Appeal upheld the trial court’s denial of the petition, but on different grounds. The court concluded that an agency’s failure to act is not itself an activity subject to CEQA, even if there are potential environmental consequences of the inaction. The continuing failure to make repairs, the court said, is not an activity under CEQA. The court noted several difficulties with determining when the statute of limitations would begin to run on an agency’s inaction. The court relied on similar circumstances arising in NEPA case law and explained that federal courts have repeatedly rejected similar arguments.

Finally, the court explained that it need not decide whether the analysis would be different where there is a mandatory duty on the part of the agency to act, because here, the Department had no such mandatory duty. For sure, the court said, absent a statutory duty, the Department’s failure to act cannot be deemed a project or challenged for noncompliance with CEQA.

Fourth District Court of Appeal Holds City’s Scenic View Ordinance Is Considered a Zoning Ordinance under Gov. Code Section 65901 and Therefore Subject to 90-Day Service Deadline for Petition in Section 65009

In a unanimous opinion, the court in Weiss v. City of Del Mar (2019) 39 Cal.App. 5th 609, upheld the trial court and found that the 90-day service deadline in Government Code section 65009 applied to a planning commission action on a municipal scenic view ordinance. As a result, the court held that a petition for writ of mandate that was served on the City three months after the deadline was time barred.

Background

In August 2016, Petitioner Shirli Weiss submitted an application to the City of Del Mar under its Scenic View Ordinance requesting that Torrey Pacific Corporation, her neighboring property owner, trim its “‘wildly overgrown’” vegetation and trees to restore the ocean view from her property. The Planning Commission held a hearing on the application and, though divided, denied her request. The City Council issued a 2-2 split decision on her appeal in July 2017 which, under the City’s rules, reinstated the Planning Commission’s decision to deny her request.

Weiss filed a petition for writ of mandate against the City and Torrey Pacific in September 2017, but did not serve the City with the petition until December 2017. The respondents jointly moved to dismiss under the 90-day service requirement in Government Code section 65009, subdivision (c)(1)(E). The trial court granted the motion and found it was “‘undisputed’” that this statutory deadline was not met. Weiss appealed. In her appeal, she acknowledged that she served the City more than 90 days after the City Council denied her appeal but contended that section 65009’s deadline did not govern her action.

Time Barred by Section 65009

The Court of Appeal considered the “‘usual and ordinary meanings’” of the plain language in section 65009 within the context of the entire statute. Section 65009, subdivision c, plainly states that a “challenger must file and serve the public entity within 90 days of the challenged decision.” This statute of limitations, the court explained, applies to adoption or amendments of specific plans, general plans, zoning ordinances, development agreements, and regulations attached to specific plans, and all actions “‘done or made prior to any of these decisions.’” (Gov. Code, § 65009, subd. (c)(1).) The service requirement also applies to “‘any decision on the matters listed in Sections 65901 and 65903.’” (Id.) Sections 65901 and 65903 primarily apply to actions related to a zoning ordinance, such as a conditional use permit, variance, or “‘any other powers granted by local ordinance’” to the board of zoning adjustment or zoning administrator. (Id. at § 65901, subd. (a).) The court noted that section 65903 includes zoning board of appeals decisions.

Weiss argued that the City’s Scenic View Ordinance is not a zoning ordinance because it is not within the Municipal Code zoning rules and regulations. The court disagreed, and determined that the Planning Commission was “functionally acting in a zoning board capacity” when it ruled on Weiss’s application. The court explained that the substance of the Scenic View Ordinance required the City to “undertake[] zoning and planning responsibilities,” and therefore it did not matter whether the ordinance was within the City’s Municipal Code. The court cited to Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, where the court held that a tree ordinance was a zoning ordinance. The court noted that any decision made under the Scenic View Ordinance is “quintessentially a public entity decision involving…a land use and zoning determination.” But, the court said, even if it were not a zoning/land use determination, the “‘any other powers’” clause in section 65901 is broad and includes decisions on “a range of issues outside” the categories listed in sections 65901 and 65903.

Weiss also argued that sections 65009 and 65901 only apply to planning or zoning decisions on a project or development, but do not apply to enforcement of an ordinance. Weiss cited section 65009’s stated purpose—to provide “’certainty regarding decisions’” so that owners and governments can “‘proceed with projects.’” The court disagreed with this argument because, particularly where statutory language is “clear and unambiguous,” general statements of statutory purpose “do[] not override the substantive portion” of a statute.  Weiss also argued that the 90-day deadline in section 65009 had only ever been applied to projects or development and never in circumstances like those at issue here. The court agreed with Weiss, but explained that there was no authority stating that section 65009 is triggered only for challenges to projects or developments.

The court also rejected several final arguments from Weiss. First, she argued that the court’s decision to apply the 90-day service rule here would render the statute applicable to all of the Planning Commission’s actions. The court disagreed, pointing back to statutory language that limits 65009 to “zoning and similar land use determinations.” Next, Weiss claimed that the lack of urgency of the current dispute, unlike the expedience necessary for development, precluded applicability of section 65009. The court rejected this argument as an attempt to add language that does not exist in the statute. Additionally, the court explained that tree removal and maintenance issues do need to be resolved promptly. Lastly, Weiss argued that the Scenic View Ordinance specifically mentions Code of Civil Procedure section 1094.6, but does not mention section 65009, so that section must not apply. The court explained that Code of Civil Procedure section 1094.6 addresses filing deadlines but is silent on service of a petition. Both regulations, the court said, can therefore apply simultaneously.