In Building Industry Association of Central California v. County of Stanislaus (2010) 190 Cal.App.4th 582 , the Fifth Appellate District of the Court of Appeal upheld the County of Stanislaus Farmland Mitigation Program against an attack brought by the Building Industry Association. The Farmland Mitigation Program (FMP) was designed to mitigate for the loss of farmland due to residential development in the County. In essence, the scheme requires mitigation for loss of agricultural land at a 1:1 ratio and requires anyone proposing to develop agricultural land to acquire agricultural conservation easements over an equivalent area of comparable farmland prior to development. The Building Industry Association (BIA) argued that this requirement violates the restrictions in Civil Code section 815.3, which specifically prohibits an agency from conditioning an entitlement on an “applicant’s granting of a conservation easement.” The Court held that the FMP complied with this provision because, under the County’s scheme, “applicant” was not charged solely with granting an easement on its own property, but could also acquire it from a willing seller.

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Cherry Valley Pass Acres and Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316. On November 22, 1010, the Fourth District Court of Appeal upheld the City of Beaumont’s environmental impact report (EIR) prepared for the Sunny-Cal Specific Plan, which called for the development of 560 residential units on a 200-acre site long used for agricultural purposes. The court heard and rejected claims that the city relied on an improper baseline in assessing the project’s impacts on water supplies and claims that the EIR’s water supply analysis was deficient due to inconsistencies between the Water Supply Assessment (WSA) prepared for the project and other pertinent water supply planning documents. The court also concluded that substantial evidence supported the city’s conclusion that mitigation measures and alternatives to reduce the project’s significant impact to agricultural resources were economically infeasible.
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In Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2010) 190 Cal.App.4th 217 (A108410, Nov. 19, 2010), the First Appellate District, in the published portion of its opinion, held that the partial success of two plaintiffs groups (an environmental group and a labor union) conferred a sufficient public benefit to warrant an award of attorneys’ fees under the private attorney general doctrine (Code Civ. Proc. §1021.5), even though their success at trial was not upheld in its entirety on appeal. The court reversed post-judgment orders awarding attorney fees following the original trial court judgment and remanded the case to the trial court to determine whether the environmental plaintiffs’ actions were necessary within the meaning of section 1021.5 and the amount of any reasonable fee award.
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Friends of the Juana Briones House v. City of Palo Alto (2010) 190 Cal.App.4th 286 (Case No. H033275). On November 22, 2010, the Sixth District published its decision in Friends of the Juana Briones House v. City of Palo Alto holding that the approval of a demolition permit under the governing municipal code provision was a ministerial act, and thus was not subject to CEQA. In reaching this conclusion, the court reversed the trial court’s judgment, which had granted the petitioner’s requested writ of mandate. The Sixth District held that under the plain language of the governing municipal code section, Palo Alto Municipal Code section 16.49.070, the city had no authority to impose permit conditions that would render the permit discretionary. The Court also determined that this conclusion was not affected by the possibility that a ministerial building permit might also be issued by the City. Therefore, there was no basis for requiring CEQA review under the “whole of the action” theory.
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Nelson v. County of Kern (2010) __Cal.App.4th__ (Case No. F05932)

On November 19, 2010, the First District Court of Appeal concluded the County of Kern, as lead agency, had violated the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; CEQA) and the Surface Mining and Reclamation Act of 1975 (§§ 2710 et seq.; SMARA) when approving a mitigated negative declaration and reclamation plan for a mining project located on federal land. The court held the County erred in failing to issue a permit for the mining operation under SMARA and in failing to consider the impacts of the surface mining project in its environmental review. The Court also held that because a fair argument could be made that the mining project may have a significant effect on the environment, CEQA required the county to prepare an EIR for the mining project and reclamation plan. Continue reading →

In Sonoma County Water Coalition v. Sonoma County Water Agency (Oct. 8, 2010, A124556), the First District Court of Appeal held that the Sonoma County Water Agency (SCWA) appropriately adopted an urban water management plan. Continue reading →

In Sackett v. United States Environmental Protection Agency, (9th Cir. 2010) 622 F.3d 1139, the Ninth Circuit held that the Clean Water Act (CWA) precludes judicial review of compliance orders until after an enforcement action is filed, and that preclusion of judicial review of pre-enforcement compliance orders under the CWA’s statutory scheme did not violate due process.  The Court first determined the language and structure of CWA demonstrates that Congress intended to preclude pre-enforcement judicial review of administrative compliance orders under 33 U.S.C. § 1319(a)(3).  The Court further found that the CWA civil penalty provision does not authorize the EPA to bring enforcement actions for mere violations of compliance orders.  In reaching this result, the Court held the EPA must bring an action alleging a violation of the CWA itself in order to enforce a compliance order under the CWA. Continue reading →

In Tomlinson v. County of Alameda (2010) 188 Cal.App.4th 1406 (Tomlinson II), the First Appellate District, Division Five, reexamined its decision in Tomlinson v. County of Alameda (2010) 185 Cal.App.4th 1029 (Tomlinson I), where the court found that the County of Alameda abused its discretion in deeming a proposed subdivision project exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA), under the categorical exemption for in-fill development (Cal. Code Regs., tit. 14 (CEQA Guidelines), § 15332). Continue reading →

On September 30, 2010, Governor Schwarzenegger signed into law AB 231 and SB 1456, which provide moderate amendments to the California Environmental Quality Act’s provisions relating to tiering, mediation, litigation, and exhaustion of administrative remedies. The amendments will remain in effect until January 1, 2016. Continue reading →