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California Supreme Court Moves High-Speed Rail Request to Court of Appeal

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The California Supreme Court ordered the Third District Court of Appeal to undertake an expedited review of two trial court rulings concerning the financing plan for California’s High-Speed Rail project, by transferring the state’s petition for writ of mandate to the lower court. The petition was filed by the state in late January asking the Supreme Court to step in and prevent the two recent lower court rulings from derailing construction of the High-Speed Rail project.  According to the state, the challenged trial court rulings “cast a cloud of uncertainty” over the project and put at risk billions of dollars in federal grants. The state sent a direct request to the California Supreme Court because the normal appeals process, it claimed, would take too long given the time-sensitive nature of the project and its funding.

Although it declined to consider the petition directly, the Supreme Court recognized that the petition should be a priority and decided expeditiously by the Court of Appeal. The transfer order directed the appellate court to “expedite its consideration of this matter” and set an expedited briefing schedule for the parties.

Further information on the previous trial court rulings and the state’s petition to the California Supreme Court can be found in our previous blog post here.

Court of Appeal Finds Counsel’s Legal Research Lacking, Dismisses Claim

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In Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (Jan. 28, 2014) ___ Cal.App.4th ___, Case No. F066544, the Court of Appeal clarified that counsel may not claim ignorance of proper legal procedures after relying on a single treatise to the exclusion of case law and other secondary materials detailing those procedures.

On January 28, 2014, the Fifth District Court of Appeal upheld the trial court’s dismissal of Protect Agricultural Land’s (PAL) action challenging the annexation of unincorporated land to the City of Ceres. The court found that PAL had failed to comply with certain procedures required by the Cortese-Knox-Hertzberg Reorganization Act for reverse validation actions. The trial court had not found good cause for failure to comply, and the Court of Appeal found substantial evidence supporting the trial court’s decision.

PAL sought to set aside the city’s annexation of 960 acres located in unincorporated Stanislaus County. The trial court found it could not overturn the completed annexation because PAL had not complied with service requirements applicable to reverse validation actions. While a local agency formation commission’s (LAFCo’s) annexation determination may be challenged before land is annexed, the validity of a completed annexation may only be challenged by an in rem proceeding under the validating statutes. Under those statutes, if a public agency does not pursue a validation action, any interested person may file a reverse validation action, subject to strict publication and form requirements. A failure to abide by these procedures is excusable only upon a showing of good cause.

In this case, PAL erroneously handled the summons, but argued its error should be excused for good cause. The trial court rejected this argument because it found the legal research conducted by PAL’s counsel had been inadequate. On appeal, the court noted that “an honest and reasonable mistake of law on a complex and debatable issue is excusable and constitutes good cause for relief.” However, “ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief.” Here, PAL’s counsel claimed ignorance of the publication procedures because those procedures were not mentioned in the treatise counsel consulted. The court conducted its own research and found that case law, the LAFCo website, and other treatises mentioned the procedural requirements. It therefore rejected PAL’s claim of excusable error.

The court did not address PAL’s substantive claims because it found they had to be brought pursuant to the validation statutes. Thus, the court did not decide whether PAL had stated a cause of action under CEQA or the merits of such an action.

First District Court of Appeal Strikes Down Portions of Caltrans EIR

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Lotus v. Dept. of Transportation (Jan. 30, 2014) ___ Cal.App.4th ___, Case No. A137315

On January 30, 2014, the First District Court of Appeal struck down portions of a Caltrans EIR evaluating redwood tree removal on a stretch of U.S. Route 101. The court found the agency’s environmental review insufficient for failing to properly evaluate the impacts on root systems of old growth trees bordering the roadway.  The opinion was certified for partial publication.

Caltrans sought to widen parts of Route 101 in Richardson Grove State Park because the narrow, windy roads did not meet current design standards and prevented large trucks from easy access to Humboldt County. The restriction on these trucks, according to the agency, hindered profits and competition for businesses in Humboldt. The EIR for the project described the proposed activities as “minor road adjustments including realignments, curve corrections, and shoulder widening” and “culvert improvements and repaving the roadway.” The project’s environmental impacts included tree removal and potential damage to tree roots caused by excavation and fill. The EIR found that only six redwoods – none of them old growth redwoods – would be removed. About forty other trees in the park would potentially have fill place over their roots.

The EIR described measures to lessen these impacts, including restorative planting and invasive plant removal. The analysis concluded the project would not result in any significant environmental impacts with the implementation of these “special construction techniques.”

The trial court did not believe Caltrans violated CEQA simply by taking into account mitigation measures in determining that the project would have no significant effects. But it held that where an agency decides to incorporate mitigation measures into its significance determination and relies on those measures in finding no significant effects, the agency must treat those measures as required. Consequently, the court ordered Caltrans to show whether it had adopted a mitigation monitoring or reporting program. On appeal, the court did not think the monitoring solution sufficient to cure the EIR’s deficiencies.

The Court of Appeal found that the EIR adequately described the project’s environmental setting and scope. The general description of the project’s technical characteristics aligned with the Guidelines’ directive to not supply detail beyond what is needed to evaluate and review the environmental impacts. The court also found, however, that the EIR failed to comply with CEQA in its evaluation of the project’s impact on old growth redwood roots adjacent to the roadway. The EIR neither contained nor applied a standard of significance. This omission was compounded by the fact that Caltrans had incorporated mitigation measures into its project description and concluded that any potential impacts would be less than significant. “By compressing the analysis of impacts and mitigation measures into a single issue,” the court stated, “the EIR disregards the requirements of CEQA.”

In conclusion, the court found that the EIR suffered from “structural deficiency” due to its failure to discuss significant impacts apart from mitigation measures and thus to consider whether other mitigation would be more effective. The court ordered Caltrans to correct the deficiencies in the EIR and to recirculate the document if the agency found it necessary under CEQA standards.

Sacramento Arena Will Not be Put to a Public Vote

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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:

http://portal.cityofsacramento.org/City-Manager/Media-Releases/CityClerk-Completes-Petition-Examination

http://www.cityofsacramento.org/clerk/elections/index.html

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

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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

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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

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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

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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 CEQA.Guidelines@ceres.ca.gov. 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

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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.

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