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 →

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 →

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 →

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 →

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 →

On April 12, 2011, in City of Los Angeles v. Superior Court (2011) 194 Cal.App.4th 210, the Second District Court of Appeal considered whether landowners had shown that the City of Los Angeles’ voluntary acquisition program, adopted in lieu of a sound insulation program in certain neighborhoods near LAX, created “condemnation blight”—therefore entitling the landowners to inverse condemnation compensation. Property owners argued that the City had been purchasing properties in their neighborhoods through a voluntary acquisition program, relocating the residents, and demolishing the structures. Thereafter, the land was left vacant and undeveloped. In ruling against the landowners, the Court of Appeal held that the property owners had failed to establish that the city had either a plan to use the acquired property for a public purpose, or intended to acquire the landowners’ property or any nearby property through condemnation. The landowners, therefore, failed to show they were entitled to summary adjudication on their inverse condemnation claim.
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On May 2, 2011, the US Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) jointly issued a draft of new guidance for determining whether a particular body of water is protected by the Clean Water Act. The two agencies indicated that the reason for the new draft guidance was the significant uncertainty over the scope Clean Water Act’s jurisdiction, in particular, what bodies of water are subject to regulation by the Act. This uncertainty derives in large part from two United States Supreme Court decisions issued in the past decade—Solid Waste Authority of Northern Cook County v. Army Corps of Engineers (2001) 531 U.S. 159 (SWANCC) and Rapanos v. United States (2006) 547 U.S. 715. In SWANCC, the court struck down the “migratory bird rule,” holding that the Corps exceeded its jurisdiction when it extended the definition of navigable waters to include intrastate waters solely based on its use by migratory birds. To further confuse matters, in Rapanos, a fractured court issued three separate opinions regarding the extent of Clean Water Act’s jurisdiction. The agencies’ draft guidance was issued to give field staff more specific assistance in determining whether a particular water feature is protected by the Act. This new guidance, which may be read to expand the agencies’ jurisdiction, will likely be the subject of litigation based on allegations that it is contrary to the Court’s holdings and exceeds the outer boundaries of authority given to the agencies in the Act.
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The Sixth Appellate District in Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150 affirmed the judgment of the trial court, sustaining a demurrer to a petition for writ of mandate. The court held that City of Santa Clara and its redevelopment agency’s approval of a term sheet setting forth the basic terms of a proposed transaction to develop a stadium in Santa Clara for use by the San Francisco 49ers football team did not constitute a “project” or a “project approval” that required preparation of an environmental impact report (EIR) under the California Environmental Quality Act (CEQA).
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On April 27, 2011, the California Supreme Court denied several requests to depublish the opinion in Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351. California Rules of Court, rule 8.1125, authorizes this unusual request. In Sunnyvale, the Sixth District Court of Appeal held the City violated CEQA because its EIR for a proposed roadway improvement project failed to analyze the project’s impacts against existing, present day conditions. Instead, the EIR used as its baseline for analyzing project impacts projected traffic conditions in the year 2020, the year the City expected the project to actually go on line. According to the court of appeal, the failure to analyze the project’s impacts against existing conditions, even if apparently such an analysis is wholly artificial, constituted a failure to proceed in a manner required by law. For more information on the case, see our blog post of January 19, 2011. Continue reading →