Land Use Update - League of California Cities · 2013-02-22 · provided an amendment to the General Plan Land Use Element requiring any future amendment to the general plan land

Land Use Update

League of California Cities

Annual Conference

San Diego, California

September 8, 2006

Steven T. Mattas E-mail: [email protected]

Adam U. Lindgren E-mail: [email protected] With offices in: Los Angeles Oakland Sacramento San Francisco Santa Rosa

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TABLE OF CONTENTS We Care – Santa Paula v. Herrera...................................................................................................... Opinion of the Attorney General.......................................................................................................... Mahon v. County of San Mateo........................................................................................................... Sprint Telephony PCS v. County of San Diego ................................................................................... Viacom Outdoor, Inc. v. City of Arcata ................................................................................................ Big Creek Lumber v. County of Santa Cruz ........................................................................................ Jenkins v. City of Corona .................................................................................................................... Schneider v. California Coastal Commission ...................................................................................... Regency Outdoor Advertising, Inc. v. City of Los Angeles .................................................................. Los Altos El Granada Investors v. City of Capitola.............................................................................. Allegretti & Co. v. County of Imperial .................................................................................................. Wal-Mart Stores v. City of Turlock....................................................................................................... City of Marina v. Bd. of Trustees of the California State University ..................................................... County of San Diego v. Grossmont-Cuyamaca Community College District....................................... Save Our Neighborhood v. Lishman, et al........................................................................................... Turlock Irrigation District v. Zanker et al. ............................................................................................. Gilroy Citizens for Responsible Planning, et. al v. City of Gilroy ........................................................ Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego.................... Preservation Action Council v. City of San Jose ................................................................................. Great Basin Mine Watch v. Hankins.................................................................................................... Environmental Protection Information Center v. United States Forest Service ................................... San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission............................................ Rapanos v. United States ................................................................................................................... Kern County Farm Bureau v. Allen...................................................................................................... Forest Guardians v. Johanns .............................................................................................................. Valley Outdoor, Inc. v. City of Riverside.............................................................................................. Center for Bio-Ethical Reform Inc. v. City and County of Honolulu .....................................................

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CHAPTER III – ELECTIONS

Part 6. Initiatives and Referenda

§ 3.6.05 Statutory Provisions Applicable to Cities

We Care – Santa Paula v. Herrera (2006) 139 Cal.App.4th 387 [42 Cal.Rptr.3d 577] City Clerk’s rejection of initiative petition for failure to comply with California Election Code §9201, not including where in the general plan the proposed language would be inserted and what parts of the land use element would be changed was improper because §9201 does not require an initiative petition to contain the text of every plan, law or ordinance the measure might affect. Facts: Appellant, We Care-Santa Paula, an incorporated association, sponsored a proposed initiative to amend the general plan of the City of Santa Paula. The text of the proposed initiative provided an amendment to the General Plan Land Use Element requiring any future amendment to the general plan land use element involving a development, proposed development, or land use designation, which would have the effect of increasing the density as currently reflected in the land use element on a gross of 81 or more acres, to be approved by a majority of the voters at a general or special election. The petition was circulated for signatures and in May of 2005 the signed petitions were submitted to the City Clerk for signature verification. The Clerk verified that We Care had obtained sufficient valid signatures, but nevertheless, notified We Care that she was rejecting the petition for failure to comply with Election Code §9201, requiring a petition to contain the text of the proposed measure. Specifically, the Clerk found that although the petition included the proposed language that would be inserted into the general plan, it did not show where in the general plan it would be inserted; what parts of the land use element would be changed; or the current text of the land use element. We Care filed a petition for writ of mandate to direct the City Clerk to certify the petition and direct the City Council to place the initiative on the ballot. The Trial Court denied the writ on the grounds that the initiative affects identifiable portions of the land use regulations; it does not fully describe the changes in the text of such regulations; and does not attach a copy of the regulations.

Holding: The Appellate Court reversed the Trial Court stating that §9201 does not require that a petition include the text of every plan, law or ordinance the measure might affect. The Court rejected the City’s argument that voters would want to know the existing land uses and densities by explaining that indeed, voters may want to know all that and more, however §9201 does not require an initiative petition to contain all the information an informed voter would want. It requires only the text of the measure proposed to be enacted. We Care’s petition fulfills that requirement. The Court further held that even though the election had passed, We Care’s appeal was not moot because the petition could be placed on a following election ballot.

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Part 9. Campaign Regulations

§ 3.9.35 City Participation in Ballot Measures

Opinion of the Attorney General ___Ops.Cal.Atty.Gen. ___ (July 11, 2006) City may not prohibit a Chamber of Commerce from advertising its support of a ballot measure or a candidate for public office on a sign in front of the Chamber’s office where the office is located on land leased from the City and the City contracts with the Chamber to act as the City’s Visitors Bureau but the lease and contract are silent with respect to political advertising on the sign. Question: May a City prohibit a Chamber of Commerce from advertising its support of a ballot measure or a candidate for public office on a sign in front of the Chamber’s office if the office is located on land leased from the City and the City contracts with the Chamber to act as the City’s Visitors Bureau but the lease and contract are silent with respect to political advertising on the sign? Answer: A city may not prohibit a Chamber of Commerce from advertising its support of a ballot measure or a candidate for public office under such circumstances. A city may properly devote public funds to promotional efforts, and that once a city has decided to appropriate funds for such a purpose, the city may delegate the task of conducting the promotional program to the city’s chamber of commerce or other non-governmental agent. However, under the rule expressed in Stanson v. Mott, (1976) 17 Cal.3d 206, a public agency may not use public funds to campaign for one side or the other in a contested election over a ballot measure. Such expenditure raise concerns that the holders of government authority may use their official power to improperly influence the electoral process. Accordingly, the City itself may not use any of its own funds to support or oppose a ballot measure or candidate, the Chamber of Commerce, however, is not bound by the same principle. While the Chamber of Commerce operates under contract with the City and received public funds, it operates as an independent, nonprofit organization, intended to promote local business interests. Prior opinions of the Attorney General have concluded that auxiliary organizations of a community college district could use its funds to advocate the passage of a bond measure, even though the district itself could not use its funds for such a purpose. The rationale for such a conclusion was that as private entities, these auxiliary organizations were not bound by a prohibition on the use of public funds for political purposes. Similarly, the Chamber of Commerce is not a creation of the City, nor is it governed by the City. The use of its funds and resources cannot be said to constitute the use of public funds or resources.

Here the Chamber of Commerce operates under a lease with the City, the lease however, is silent as to political advertisements on the Chamber’s sign. If the City wishes to avoid confusion regarding which party is responsible for the political message, they may negotiate appropriate restrictions into the lease. In the absence of such negotiated restrictions, however, the City may not prohibit the Chamber of Commerce from displaying political messages.

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CHAPTER X – LAND USE

Part 1. Introduction § 10.1.30 Permit Streamlining Act Mahon v. County of San Mateo (2006) ___ Cal.Rptr.3d ___ Design review permits not deemed approved where applicant failed to provide notice to neighbors and County’s public notice omitted statement regarding deemed approval. Facts: In February 1999 Plaintiff Mahon applied to Defendant County for design review permits to construct single-family residences on two adjacent lots. County determined that each project was exempt from environmental review under the California Environmental Quality Act (CEQA), thereby commencing the 60-day period for the County to approve or disapprove the projects. Within this period, County planning staff conditionally approved the permits. Mahon then applied for two building permits, however, the County determined that Mahon’s neighboring property owners had not been given proper notice of the design permit applications, as required by Government Code §§65091, subd. (a)(3) and 65905, subd. (b). County therefore voided Plaintiff’s two conditional design review permits. The County then provided the notice to neighboring property owners; the notices identified the location and description of the projects, but did not indicate that the permits would be deemed approved if the County failed to act within a specified time period. Despite numerous complaints from neighbors, planning staff issued a conditional permit for one of the projects. Neighbors appealed to the Planning Commission, which reversed staff’s conditional approval. Two years later, Plaintiff’s attorney sent a letter to the County contending that the permits had been deemed approved under the Permit Streamlining Act, specifically, Government Code §65950. The County responded that the permits were not deemed approved because Mahon had not provided the required notice for deemed approval. Shortly thereafter the Planning Commission denied the design permits for both projects. Mahon sued the County seeking a declaratory judgment that his design permits applications were deemed approved by operation of law. The trial court granted Defendant’s motion for summary judgment based on the contention that Mahon was not entitled to relief because the requisite public notice had not been provided. Mahon appealed, arguing that the court erred in granting summary judgment and that the County’s public notice constituted sufficient public notice. Holding: In reviewing the Permit Streamlining Act, the court noted that the public notice requirements had been added in response to concerns that deemed approval violated due process. Therefore, the Legislature amended the Act such that a permit is deemed approved “only if the public notice required by law has occurred. (Govt. Code, § 65956, subd. (b).) §65956 describes what the applicant must include when it provides “public notice required by law.” Among the requirements, is a statement that the project shall be deemed approved if the permitting agency does not act within 60 days. As the Act is silent on what is required of the agency when the agency provides public notice, the essential question became whether the agency must also include the “deemed approved” statement in its public notice.

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The Court examined the language of the statute, noting that while “law” is not defined, “public notice” as applied to the applicant is. Reasoning that the Legislature would not require the applicant to send out anything more than “public notice required by law,” the Court concluded that the “deemed approval” statement requirement must be considered part of “public notice required by law.” Furthermore, the Court found no reason why “public notice required by law” would mean one thing for the applicant and another for the agency. The Court, therefore, was unpersuaded by Plaintiff’s argument that the “deemed approval” statement was only required for applicant-provided notices. This conclusion was further supported by the Court’s review of the legislative history. Plaintiff noted that the “public notice” requirement was added in response to the decision in Palmer v. City of Ojai (1986) 178 Cal.App.3d 280, in which the Court found that earlier versions of the deemed approval provisions were unconstitutional because they did not provide for notice and hearing for neighbors. Plaintiff contended that because the neighbors in Palmer had not received any notice, the Legislature’s amendment indicated an intention to provide public notice on applications, but not deemed approval provisions. Since neighbors in this case had been provided notice of the applications, albeit not the deemed approval provisions, Mahon argued that the statute had been satisfied. The Court disagreed, noting discussion among the Senate Rules Committee of the importance of deemed approval notice, and concluding that the totality of the legislative history did not support a derivation from the plain meaning of the statutory language itself. The Court was equally unpersuaded by Plaintiff’s public policy arguments. Mahon argued that agencies could always ensure that applicants bear the burden of notification by omitting the relevant statement from their own notices. The Court, however, concluded that to the extent that the burden, which is minimal, falls on the applicant, it is the result of the legislative recognition of the significant benefit bestowed on applicants from deemed approval. The Court therefore concluded that the Trial Court had not erred in granting Defendant’s motion for summary judgment. Part 2. General Plan Part 3. Zoning § 10.3.45 Special Issues Sprint Telephony PCS v. County of San Diego (2006) 140 Cal.App.4th 748 [44 Cal.Rptr.3d 754] County ordinance imposing design and siting restriction on placement of wireless provider’s equipment in public roads and highways is not preempted by state law. Facts: Plaintiff Sprint filed action challenging County’s Wireless Telecommunications Ordinance (WTO) as invalid, asserting that the WTO was preempted by Public Utilities Code §7901. §7901 provides that “[t]elegraph or telephone companies may construct lines of telegraph or telephone lines along and upon any public road or highway . . . in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.” The County’s WTO required applicants to submit detailed information regarding the proposed wireless facilities, and imposed general and design regulations to minimize the visual impact of the wireless facilities. At trial, the County argued and the trial court agreed, that §7901 addressed only those telephone corporations that constructed and operated telephone landlines, and that Sprint’s wireless telecommunication facilities did not qualify as “telephone lines” within the ambit of §7901.

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The trial court also concluded that Sprint did not qualify as a “telephone corporation” for purposes of §7901, and that even if §7901 applied to Sprint, the WTO was still valid since §7901.1 recognizes the right of municipalities to exercise reasonable controls over the time, place, and manner by which telephone corporations occupy the right of way (ROW). Holding: The Court of Appeals affirmed the Trial Court’s decision but modified some of the rationale. The Appellate Court’s holding addressed two issues: (1) whether wireless telecommunication providers enjoy the privileges conferred by §7901; and (2) whether the scope of §7901 precludes local governments from imposing additional design and siting restrictions. The Court first examined the rights conferred by §7901, determining that the statute prevented local agencies from entirely barring a telephone company from installing necessary equipment in a ROW, as well as from making installation of such equipment conditional on payment of a fee, except to the extent the fee is reasonably necessary to pay for costs of alleged impacts on public improvements or facilities. The Court further noted that while the rights conferred by §7901 were broad, they were not unlimited. §7901.1 specifically delegated to local governments the authority to “exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed.” Following their review of §7901, the Court addressed the first issue, concluding that the statute’s scope encompassed wireless technologies. In reaching this conclusion, the Court primarily relied on the definition of “telephone line,” found in §233 of the Public Utilities Code, and which was amended at the time §7901 was imported into the Public Utilities Code. §233 includes wireless technologies in the definition of “telephone line.” In accordance with the canon of construction that provides that the same term or phrase used in a similar manner in two related statutes concerning the same subject should have the same meaning attributed to them, the Court concluded that Sprint’s wireless facilities were “telephone lines” for purposes of §7901.

With respect to the second issue, the Court relied upon both decisions of the Public Utilities Commission and California Courts, in holding that the WTO was valid and not preempted by §7901. In Western Union Tel. Co. v. City of Visalia (1906) 149 Cal. 744, the California Supreme Court held that the City’s ordinance limiting height and location of certain poles was a valid exercise of the City’s police power, despite rights conferred upon Plaintiff under an identical precursor to §7901. Relying on these similar decisions of past Courts and the PUC, the Sprint Court further found that the County was not preempted from enacting the WTO. There was clearly no expressed preemptive intent, and while state law appears to fully and completely cover the right to empower telephone companies to use ROWs, there exists no state law regulating the siting or appearance of the equipment so authorized. Furthermore, because the statutory scheme evidenced a legislative intent to involve local regulation, the Court concluded that San Diego was not preempted from regulating siting and design of the wireless facilities. Finally, the court rejected Sprint’s contention that the WTO granted unfettered discretion to approve or disapprove applications to build facilities in the ROW, noting that zoning ordinances with fewer guidelines and broader discretion had been upheld in the face of similar attacks.

This decision is in contrast to Sprint PCS Assets, L.L.C. v. City of La Cañada Flintridge (2006) 435 F.3d 993, which analyzed California law and held that these same Public Utilities Code sections authorizing City to deny permits to construct cellular towers that “incommode the public use of a roadway” do not authorize a City to deny a cellular tower based on aesthetic concerns.

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Viacom Outdoor, Inc. v. City of Arcata (2006) 140 Cal.App.4th 230 [44 Cal.Rptr.3d 300]Outdoor Advertising Act does not preempt City’s regulation or permit requirement for billboard re-construction. Facts: Following the destruction by windstorm of four billboards located within the City adjacent to Highway 101, and for which Plaintiff Viacom had current and valid “outdoor advertising permits” from the California Department of Transportation (Caltrans), Viacom began rebuilding the billboards. A City official posted stop work orders on the billboards and informed Viacom that it must apply for permits as required by the City’s Building and Sign Codes. Viacom did stop working, but insisted that it was not required to obtain permits, and never applied for any. Instead, Viacom commenced this action against the City. Viacom claimed that California’s Outdoor Advertising Act (Bus. & Prof. Code, § 5200 et seq.) preempts cities’ regulatory authority with respect to billboards. The Trial Court granted Viacom’s requested writ of mandate that §2271 of the California Code of Regulations, which sets forth criteria by which billboards may be re-erected, preempts the field. In the damages portion of the trial, the court concluded that the City’ interference with Viacom’s rights under the Outdoor Advertising Act violated Viacom’s civil right to enter and maintain contracts, and awarded Viacom damages of nearly $39,000 for lost rent and $39,104 for attorneys fees. The City appealed. Holding: The Appellate Court reversed the Trial Court decision. After outlining the principles of local agencies’ police power and preemption issues, the Court noted that billboards have long been recognized as a proper subject for local regulation. Not only have counties and municipalities frequently been allowed to exercise their regulatory powers on the subject, the Legislature has codified local authority to regulate billboards. In examining the legislative history of the Outdoor Advertising Act, the Court noted that the totality of the regulatory power had been shared for a considerable period, and that the exclusive authority of the State applied only in unincorporated portions of counties. The Court identified several sections of the Outdoor Advertising Act indicating the appropriateness of local regulation, including §5228, which declares the Legislature’s intent to establish “minimum requirements,” §5229 which states that the Act shall not be construed to permit maintenance of outdoor advertising that is “prohibited by . . . any ordinance of any city,” and finally, §5230, which specifically authorizes cities to enact ordinances imposing restrictions on advertising displays adjacent to any street, road or highway. Section 5227 came closest to providing the express preemption Plaintiff sought in declaring: “It is the intention of the Legislature to occupy the whole field of regulation by the provisions of this chapter except that nothing in this chapter prohibits enforcement of any or all of its provisions by persons designated so to act by appropriate ordinances duly adopted by any county of this State nor does anything prohibit the passage by any county of reasonable land use zoning regulations affecting the placing of advertising displays . . .” However, given the qualification in §5227, the provision did not constitute express preemption. Nor could implied preemption be found in light of the numerous other provisions concerning county and city regulatory authority. Likewise, regulation 2271, which had been cited by the Trial Court, did not demonstrate an intention to exclude regulatory action. Rather, the Court determined that it addressed only an owner’s Caltrans permit. Viacom argued, but was unable to provide any supporting authority, that the regulations limit local

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agency authority to the initial placement of billboards, but do not allow for any local regulation after billboards have been erected. Viacom offered language from the California Supreme Court’s decision in Traverso v. People ex rel. Dept. of Transportation (1993) 6 Cal.4th 1152, as standing for the principle that billboards blown down by windstorms may be repaired under Caltrans’ regulations, and only those regulations. Specifically, Viacom relied on the Supreme Court's statement that Caltrans regulations do not provide for a time period for repairs for billboards blown down by windstorms. The Court, however, rejected Viacom’s reading of Traverso, noting that Traverso addressed the constitutionality of a particular section of the Outdoor Advertising Act, and there was no discussion of the relevant issue: local regulation over billboards. The Court concluded therefore, that Traverso had no authority over the present controversy. Finally, the Court rejected Viacom’s assertion that §5401, which prohibits installation of billboards that cannot withstand wind pressure of 20 pounds per square foot, demonstrated an intent by the legislature to occupy the entire field of billboard construction. Such an interpretation would be inconsistent with §5228, which stated that the Outdoor Adverting Act was intended to establish minimum requirements. Accordingly, the Court concluded that the Act could not be deemed to either expressly or impliedly preempt the traditional regulatory power of cites and counties concerning permit requirements for billboards. Big Creek Lumber v. County of Santa Cruz (2006) 38 Cal.4th 1139 [45 Cal.Rptr. 3d 21] County zoning ordinances that restricted timber harvesting and related helicopter operations to specified districts within the County were not preempted by state forestry statutes. Facts: Appellant, the County of Santa Cruz, adopted a zoning ordinance that restricted timber harvesting operations to areas zoned for timber production, mineral extraction industrial, or parks, recreation and open space. A second ordinance required helicopter staging, loading, and servicing facilities associated with timber operations to be located either on or adjacent to a parcel of land zoned for timber harvesting. Respondent lumber company filed a petition for a writ of mandate claiming that the ordinances were preempted by the Z’berg-Nejedly Forest Practice Act of 1973 (“FPA”) and the California Timberland Productivity Act of 1982 (“TPA”). The Court of Appeal held that the ordinances were preempted by state law and invalidated the ordinances in their entirety. The Supreme Court of California granted review.

Holding: The Supreme Court of California reversed the decision of the Court of Appeal, holding that the ordinances were not preempted by state law. Respondent lumber company argued that the ordinances were expressly preempted by §4516.5(d) of the FPA which provides that counties may not “regulate the conduct of timber operations.” The Court found that the ordinances in question regulate the location of timber operations, but not the manner in which the operations are carried out. The Court held that the County’s ordinances were not expressly preempted by the FPA.

The Court also held that implied preemption did not bar the enactment of the ordinances in question. The Court found that state law did not fully occupy the field of authorized logging locations. In fact, state planning and zoning law allows local agencies to designate land use categories that provide for timber production. Additionally, the Court noted that logging may have

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some impacts that are properly addressed by a local zoning authority. In sum, the County’s ordinances were not subject to implied preemption because the state legislature expressed intent to permit local regulations in the area of zoning and timber production.

Part 4. Subdivisions Part 5. Housing Part 6. Growth Management Part 7. Moratoria Part 8. Exactions: Fees and Dedications § 10.8.10 Limitations Jenkins v. City of Corona (2006) 140 Cal.App.4th 261 [44 Cal.Rptr.3d 366] Plaintiff could seek to invalidate the City’s resolution reducing building inspection and safety fees because even a reduction constitutes a modification or amendment of an existing fee or service charge according to the Mitigation Fee Act (Government Code §66022(a)). However, in this case the City’s fee study was neither arbitrary nor unreasonable and therefore not a violation of the Mitigation Fee Act. Facts: Following Defendant City of Corona’s adoption of a resolution that resulted in the reduction of building inspection and safety fees, Plaintiff, a city resident, filed an action against the City and city officials, alleging violation of the Mitigation Fee Act, Government Code §66000 et seq. (“Act”). The City prepared a fee study to update the fees which resulted in a decrease of the fee. Plaintiff sought declaratory and injunctive relief, and a writ of mandate ordering City to cease collecting fees under the resolution, and seeking to compel the City to apply past excess revenues to reduce future fees as required by the Act, §66016, and by Barratt American, Inc. v. City of Rancho Cucamonga, (2005) 37 Cal. 4th 685. The Trial Court ordered that the City cease and desist using the current methodology employed by the City to determine the fees and charges and to enact a new resolution or ordinance which established fees for the building department such that those fees do not exceed the estimated reasonable cost of providing those services. The Court concluded that the City’s method for generating source data for the study was reasonable, but the method for tracking historical fee revenue violated the Act. The Court stated that it did not see how taking nine years’ of actual revenue, estimating the tenth year of revenue, and making that the City’s fee, without considering what their costs are, met the statutory requirement that the City’s fee may not exceed the cost. Holding: The Court first held that based on the Supreme Court case of Barratt American, (2005) 37 Cal. 4th 685, the Plaintiff could seek to invalidate the City’s resolution because even a reduction constitutes a modification or amendment of an existing fee or service charge according to the Act’s §66022(a). As to the issue of whether the reduction of the fee was a violation of the Mitigation Fee Act, the Appellate Court reversed the lower court, holding that the City’s decrease in fees was neither arbitrary nor unreasonable. The Court states that according to City of Dublin v. County of Alameda, (1993) 14 Cal. App. 4th 864, specificity in calculating costs with certainty is not required, instead, the record need only demonstrate a reasonable relationship between the fees to be charged and the estimated cost of the service or program to be provided; that requirement may be

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satisfied by evidence showing only that the fees will generate substantially less than the anticipated costs. Further, the Court concluded that the fee was a regulatory fee not a special tax subject to super-majority voter approval requirements because it was reasonably related to the cost of services. The Mitigation Fee Act requires only that fees “may not exceed the estimated reasonable cost of providing the service for which the fee is charged, absent voter approval.” Part 9. Environmental Regulations Part 10. Permits to Build Part 11. Regional Planning Issues Part 12. California Coastal Act § 10.12.10 Coastal Development Permits Schneider v. California Coastal Commission (2006) 140 Cal.App.4th 1339 [44 Cal.Rptr.3d 867] Coastal Commission may not construe §30251 of the Coastal Act to protect a boater’s right to view of the coastline where the Legislature has not provided for such a right. Facts: This action stems from Plaintiff/Appellant, Dennis C. Schneider’s appeal from an order denying his petition for administrative mandamus to vacate a Coastal Commission decision imposing special conditions on a Coastal Development Permit to build a residence. (Pub. Resources Code, §30801). Plaintiff/Appellant owns a 40 acre ocean-front property north of Cayucos on the Harmony Coast. The property is an Ocean Shoreline Sensitive Resource Area, zoned agricultural, and is used for cattle grazing. It has a steeply sloped ridge that extends down to a flat marine terrace, which is about 200 feet wide and abuts the ocean bluff. There is no beach below the bluff, and there is a commercial abalone farm on a nearby parcel. On February 24, 2000, San Luis Obispo County Planning Commission granted appellant a permit to construct a 10,000 square foot residence, a barn, and a 1.25 mile access road/driveway. The CDP included 27 conditions which addressed concerns about steep slopes, erosion, drainage, scenic and visual resources, agricultural use, and potential environmental impacts. On April 3, 2000, two Coastal Commission members appealed County’s issuance of the permit on the ground that the proposed development was inconsistent with the policies and ordinances of the San Luis Obispo County Local Coastal Plan (“LCP”) (§ 30603, suds. (a)(4) & (b)(1).) The Coastal Commission found that the proposed development would be visible from the ocean. On April 15, 2004, it conditionally approved the CDP but imposed 15 special conditions requiring, among other things, that the project be re-sited at a higher elevation on the northwest corner of the marine terrace and that “[a]ll development (i.e. the residence, all impermeable pathways, turnarounds, courtyards, garages, swimming pools, retaining walls, etc.) shall be confined within an area of no greater than 5,000 square feet.” The Coastal Commission also required that all structures be single story, that the barn not be constructed, and that the access road/driveway be relocated to reduce its length, visibility and impact on the agricultural land. Appellant filed a petition for administrative mandamus alleging that the Coastal Commission had no authority to impose development conditions to protect views of the coastline from offshore, ocean-based vantage points. The Coastal Commission argued that the enjoyment of uncluttered views

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from the ocean was a public resource protected by the Coastal Act (Public Resources Code) Section 30251 and the adopted LCP. The trial court agreed with Coastal Commission. Holding: The Court of Appeals reversed the decision. The Court of Appeal held the Coastal Commission may not construe Public Resources Code section 30251) to protect a boater’s right to view of the coastline where the Legislature has not expressly provided for such a right. The Court of Appeal further stated that “[i]f and when the California Legislature expressly codifies a boater’s “right to a view” of the coastline, the courts can and will lawfully give it credence. But the Coastal Commission is not empowered to legislate a boater’s “right to a view” of the coastline.” The Court of Appeals focused its discussion on was whether the Coastal Commission may, in effect, add language to section 30251 by construing it to so provide the authority. Section 30251 provides: “The scenic and visual qualities of coastal areas shall be considered and protected as a resource of public importance. Permitted development shall be sited and designed to protect views to and along the ocean and scenic coastal areas, to minimize the alteration of natural land forms, to be visually compatible with the character of surrounding areas, and, where feasible, to restore and enhance visual quality in visually degraded areas…” The Coastal Commission interpreted this section to effectively add the words “and from” between the italicized words, “along,” and “the.” The statute would thus read, “…protect views to and along, and from, the ocean…” The Appellate Court stated that it was reticent to add words to the statute in this case. The Appellate Court further noted that Courts are only allowed to add language to statutes in extreme cases, and only when the Court is “convinced that the Legislature inadvertently failed to utilize the words which give purpose to its pronouncements.” In this case, the Appellate Court reasoned that it was unreasonable to assume that the Legislature meant to include ocean based views to the shore when it enacted §30251 thirty years ago. Moreover, the Court found it unlikely that the Legislature sought to protect the occasional boater’s views of the coastline at the expense of a coastal landowner. The Court stated that §30251 makes no reference to public view corridors that originate offshore, from the ocean to the land. Moreover, the Court reasoned that neither §30251 nor the LCP support an unwritten policy to protect scenic views of the coast from offshore, ocean-based vantage points. Accordingly, in reviewing the proposed development to determine whether it was consistent with the certified LCP, the Coastal Commission was not empowered to adopt a new offshore visual resource policy for San Luis Obispo County. Thus, the Appellate Court reversed the judgment and ordered that the Superior Court issue a peremptory writ commanding the Coastal Commission to vacate its decision and rehear the matter consistent with the Court of Appeal’s decision.

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Part 13. Tidelands, Beaches and Streams Part 14. Challenges to Land Use Decisions § 10.14.05 Regulatory and Physical Takings Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) ___ Cal.4th ___ [___Cal.Rptr.3d ___] City not required to compensate billboard owner in inverse condemnation action for planting trees on City-owned property that obstructed visibility of several billboards but caused no further harm. Facts: Pursuant to a roadway beautification project in preparation for the 2000 Democratic National Convention, the City of Los Angeles planted several palm trees on City property along a public street. Plaintiff brought this action claiming that the trees rendered several of its billboards less visible and that it was entitled to compensation pursuant to inverse condemnation principles, as well as under California's Outdoor Advertising Act. At a bench trial on the inverse condemnation claims, the court ruled against Plaintiff and awarded the City costs and expert witness expenses in accordance with Code of Civil Procedure §998, noting that the City had made an offer to settle the dispute, which was rejected, and the City was therefore entitled to these costs under the Code. The Appellate Court affirmed, finding that there did not exist a compensable "right to be seen" property right. The Appellate Court rejected Plaintiff's claim under the Outdoor Advertising Act, and upheld the trial court's fee award in full. Holding: The California Supreme Court affirmed. With regards to the inverse condemnation claim, the Supreme Court noted that no prior court had ever recognized a "freestanding" right to be seen from a public road. Such "right to be seen" actions could be divided into three categories: (1) actions between private parties who place an obstruction that impairs visibility of roadside property; (2) substantial impairments of access rights that also happen to reduce visibility; and (3) government action that impairs only visibility without infringing on any other property right. The first category of actions were frequently analogized as nuisances and, where appropriate, compensated as such. The second category, which usually involved a partial physical taking, compensated landowners for the diminution in value caused by the loss of visibility, but only after the physical taking had been established. The "virtually unanimous" rule applied to the third category of actions was that compensation was not required where the government's sole allegedly injurious effect was reduction of visibility of roadside property. Relying on the weight of authority, the Supreme Court found that since Plaintiff's only alleged harm was loss of visibility from the road, Plaintiff was not entitled to compensation under inverse condemnation. The Supreme Court next addressed Plaintiff's claim that the Outdoor Advertising Act, specifically Business and Professions Code §5412, required compensation for the City's "limit[ing]" of the billboard's "customary maintenance or use." The Supreme Court found that the Legislature did not intend the relevant language to pertain to municipal landscaping efforts. Such an interpretation would conflict with the long-standing rule that compensation was not required for impaired visibility, absent other harm. Had the Legislature meant to override this rule, it would have explicitly stated its intention. Finally, the Supreme Court addressed the award of costs and fees under Code of Civil Procedure §998, Plaintiff claimed that the provision did not apply to inverse condemnation actions; that the

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City's settlement offer of $1000 and removal of one tree was not offered in good faith; and that the Court erred in awarding expert witness fees incurred prior to the City's offer. The Supreme Court rejected each of these arguments. While §998 does exclude "eminent domain" cases, the court, relying on its own reasoning and the decision in Goebel v. City of Santa Barbara (2001) 92 Cal.App.4th 549, found that inverse condemnation and eminent domain proceedings were not synonymous. Unlike eminent domain actions, inverse condemnation proceedings are brought by the property owner and require the property owner to first establish that a taking has occurred. While certain principles developed in eminent domain actions may be applicable to inverse condemnation, California Courts had clearly distinguished the two for purposes of § 998. The Supreme Court further concluded that the Trial Court had not abused its discretion in finding that the City's settlement offer was made in good faith and "carried some reasonable prospect of acceptance" in light of the fact that the dispute was over visibility, and removal of a tree would have addressed that issue. Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629 [43 Cal.Rptr.3d 434] Mobilehome Rent Review Board’s grant of a $5.68 per month rent increase was appropriate, despite, parkowner’s requested $300 per month increase, as Board appropriately relied on expert testimony that a $5.68 per month increase would maintain parkowner’s net operating income. Facts: In 1987 Castle Mobile Estates (Castle), a mobile home park in Capitola was purchased for $1.7 million. At the time of purchase, Castle was covered by the City’s mobile home park rent control ordinance, and rents were around $156 per month, per space. Parkowner immediately requested and received a rent increase to about $180 per month, per space. Nothing in the record indicates that the parkowner believed that this new base rent deprived him of a reasonable rate of return on his investment. Following a subsequent rent increase, rents for the park stood at about $203 per month in 2000. In March 2000 Parkowner applied for a $300 increase. To justify the increase, parkowner submitted two approaches: the “premium” approach and the “fair return on equity” approach. Under the premium approach, parkowner claimed that the market rate was approximately $1,200 per month and that resale prices of mobile homes on rent controlled spaces had soared because increases in rent upon resale of mobile homes was restricted. Parkowner then calculated his proposed increase in rent based on the premiums obtained from resale of a mobile home. The alternative “fair return on equity approach” was based on acquisition value of the property as adjusted for inflation. Adjusted for inflation, parkowner’s $1.7 million investment was equal to a little more than $2.55 million in 2000. Parkowner then applied “fair capitalization rate” of 11.21% (based on accountant statements of how buyers evaluate real estate investments) which produced a “fair return on the value” of $286,430. Added to Parkowner’s current operating expenses of $152,103 (which equals $455,274) and divided by the number of spaces in the park (107) and 12 months, Parkowner determined that he must charge a minimum average rent of $354.57 per month to obtain a fair return. The mobilehome owners objected, challenging some of Parkowner’s expenses and noting that Parkowner would obtain a healthy return on his investment upon sale of the park. In a hearing before the Mobilehome Rent Review Board (Board), following presentation of expert testimony, the Board found that in 1987 Parkowner had accepted its determination that Castle’s net operating income (NOI) was $145,108—Parkowner could have, but did not challenge this determination as depriving parkowner of a fair rate of return. Therefore, the Board adjusted the 1987 NOI in accordance with the Consumer Price Index and determined that 1999 NOI was equal

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to $204,457. The NOI based on current rents being charged was $190,684, therefore, in order to achieve a fair rate of return in line with the Board’s 1987 decision, rents would need to be increased a total of $13,773.17 (the difference between the adjusted and actual NOIs), which translated to a $5.68 per month per space increase, which is what the Board granted. The Board found that this increase not only provided a fair return using the Maintenance of Net Operating Income (MNOI) approach, but also resulted in fair return on Parkowner’s investment. The Board’s hearing and conclusion was largely based on expert testimony. The City had retained an expert to review the ordinance’s “fair return standard” and proposed rent increase. The Parkowner also retained an expert appraiser and accountant. The City’s expert advocated the MNOI approach which was ultimately relied upon by the Board to arrive at the $5.68 per month increase. The Parkowner’s accountant rejected this approach because it relied upon a rent-controlled point in time as its base year. The Parkowner’s appraiser also testified to the presence of a premium in used mobile home sales, noting that people were paying $80,000 to $100,000 for a used double-wide, when new ones could be purchased for $50,000 to $60,000. In July of 2002, the Parkowner sued both the City and the Board in state court. Parkowner’s state action claims included (1) action for declaratory judgment that application of rent control ordinance was unconstitutional under California’s constitution; (2) allegations that the ordinance failed to substantially advance a legitimate state interest as required under California case law; (3) denial of due process and equal protection; and (4) denial of just and reasonable return on parkowner’s investment. Additionally, Parkowner included a cause of action for inverse condemnation and included an “England reservation” in the complaint, which under the England v. Medical Examiners, (1964) 375 U.S. 411 decision, notified the state court that parkowner intended to pursue only its state law claims, and reserve its federal law claims for subsequent litigation in federal court. The Trial Court sustained City’s demurrer as to the first and second causes of action and struck parkowner’s England reservation, reasoning that the first two causes of actions were facial challenges to the ordinance that were barred by the statute of limitations and the res judicata/collateral estoppel effect of the prior federal dismissals. To the extent the challenges were “as applied” challenges, the Court found that parkowner’s claim was not ripe, as Parkowner had not obtained a decision on its petition for writ of administrative mandamus. The Trial Court held a hearing on the writ, but denied the petition. On appeal, the issues before the court were whether the trial court erred (1) in sustaining the demurrer to parkowner’s constitutional claims; (2) striking parkowner’s England reservation; and (3) denying issuance of writ of administrative mandamus. Holding: The Appellate Court found that the Trial court did not abuse its discretion in sustaining the demurrer on challenges ruled to be facial challenges, and that the challenges were correctly found to be facial, not “as applied” challenges. These facial challenges were barred by the statute of limitations, and parkowner could not amend them to state a cause of action. The Appellate Court addressed the Board’s adoption of 1987 (the year parkowner purchased the park) as the base year for calculating an appropriate return on investment. Parkowner argued that it was necessary to adopt a pre-rent control year to properly evaluate the appropriate return (rent control had been in effect on the property since 1979). The Appellate Court concluded that the Board had discretion to select 1987 as the base year, and that such selection was reasonable based on the expert testimony presented. Not only was data unavailable for any year preceding adoption of the rent control ordinance, but presumably, in purchasing the park in 1987, parkowner

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adjusted his purchase price to provide a fair return based on the rent levels in place at that time. The court also relied on a presumption found in the ordinance that essentially shifted the burden of proving a failure to obtain a fair rate of return to the parkowner. Absent a challenge to a parkowner’s permitted rate of return, it was presumed that the rate of return was a fair one. Parkowner in this case had not challenged the 1987 rate or return, therefore the Board was entitled to rely on the presumption that the parkowner was receiving a fair rate of return. The Court of Appeals found that the trial court had not erred in upholding the Board’s decision. Allegretti & Co. v. County of Imperial (2006) 138 Cal.App.4th 1261 [42 Cal.Rptr.3d 122] Imposition of condition limiting amount of water that could be pumped from groundwater basin thus preventing land owner from farming entire farm, as distinguished from a portion of the farm, did not effect a compensable physical or regulatory taking. Facts: Plaintiff Allegretti owned property in Imperial County that overlay groundwater basins, which were accessed by Allegretti and its farmer tenant via deep-water wells and pumps. In 1994 Allegretti filed an application with the County to redrill an inoperable well so that it could add approximately 200 acres of land for crop production. County approved a conditional use permit for the redrilling, but limited Allegretti to a 12,000 acre/feet per year draw from all production wells on the site. Allegretti did not record the permit and it never took effect. In 1997 Allegretti sued County for inverse condemnation. The County initially successfully demurred on the ground that Allegretti had failed to seek a writ of administrative mandamus, and thus could not state a cause of action. On Allegretti’s appeal, the Appellate Division concluded that although County had regulatory authority to control Allegretti’s use of water, the record did not show County was acting on standards specific enough to permit it to limit Allegretti’s groundwater use (Allegretti I). On remand, in a bifurcated trial on the County’s liability, the Trial Court held that County had not deprived Allegretti of all economically viable use of the land, nor did Allegretti show that the County’s regulation failed to advance a legitimate state interest. Holding: The Court of Appeals first noted that the County’s action did not effect a physical taking. Allegretti argued that the regulation, which it characterized as denying access to the aquifer on the land, physically took the right to use the water as if the County had diverted in elsewhere. The court acknowledged that the Supreme Court had found a physical taking where the government diverted water for its own consumptive use, but did not agree that the regulation on use could be analogized to such a physical taking. County did not physically encroach on Allegretti’s land, nor did it impound or divert any water from the land. Therefore, the permit restriction could not effect a per se physical taking. The court was not persuaded by Allegretti’s reliance on Court of Federal Claims’s decision in Tulare Lake Basin Water Storage Dist. v. United States, (2001) 49 Fed.Cl. 313, where the court found that use restrictions imposed under the Endangered Species Act which eroded contractually conferred water rights effected a taking under the Fifth Amendment. The Allegretti court noted first that it was not bound by the holding of an intermediate federal court. The court also distinguished Tulare Lake on the basis that the water rights in that case had been contractually conferred by various government agencies, where as here no such rights were present. Furthermore, the court noted that the underpinning of the Tulare Lake decision had already been rejected in the Klamath Irrigation Dist. v. United States decision ((2005) 67 Fed.Cl. 504) where the court indicated that Tulare Lake appeared to be wrong on some points and incomplete on others.

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The court also determined that the County’s actions did not effect a regulatory taking. The regulation was not a “total taking,” as Allegretti conceded an ability to irrigate and farm four to eight hundred acres of its property, even if the County’s permit condition were in effect. The court noted that a deprivation of some or most economic use is insufficient to effect a total taking; a land owner must be deprived of all economically viable use of the land. In the absence of a total taking, the regulation was subject to a Penn Central analysis, under which the court must evaluate (1) the economic impact of the regulation of the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. Applying these factors the court did not find a regulatory taking, in large part because Allegretti had presented insufficient evidence that the County’s regulation created any economic impact. As such, there appeared to be no interference with Allegretti’s investment-back expectations. The only evidence on record was the Joe Allegretti had purchased the land for $2.5 million dollars with the expectation that he would be able to farm the entire property, and that he could farm more acres if he had more operable wells. This evidence did not, however, demonstrate any distinct, as opposed to abstract, expectations. A reasonable investment-backed expectation must be more than a unilateral expectation or abstract need. Given the uncertainty, Allegretti’s interest in anticipated gains did not provide sufficient evidence of investment-backed expectations. The court also determined that whether the County’s action substantially advances a state interest is no longer a valid standard in assessing takings claims. The court relied on the Supreme Court’s decision in Lingle v.Chevron U.S.A., Inc. (2005) 544 U.S. 528, in which the Court found that the “substantially advances a state interest” prescribes an inquiry into the nature of due process, not a taking claim. Finally, the court addressed the application of Langdate, Inc. v. California Coastal Commission (1998) 17 Cal.4th 1006, which determined that an erroneous land use decision could not be used as the foundation for a land owner to recover damages for a temporary taking. While Allegretti contended that the Langdate decision retained the “substantially advances a state interest” standard under California law, the court clarified that all that is required under Langdate is a finding that objectively, there is a sufficient connection between the land use regulation in question and a legitimate governmental purpose.” The court also found that to the extent Allegretti was alleging a temporary taking based on the Allegretti I finding, Langdate controlled; the circumstances did not effect a taking. The court affirmed the judgment of the district court. § 10.14.15 Equal Protection/Commerce Clause Wal-Mart Stores v. City of Turlock (July 3, 2006, No. 1:04-CV-05278) 2006 WL 1875446Zoning ordinance prohibiting construction and operation of “discount superstores” within the City does not violate Wal-Mart’s equal protection rights or the U.S. Constitution’s Commerce Clause, nor is the ordinance, which clearly defines and prohibits “discount superstores,” unconstitutionally vague. Facts: Plaintiff Wal-Mart alleged collusion between Defendants City of Turlock and local supermarkets and local producers of goods in amending City’s zoning code to effectively prohibit

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siting of a Wal-Mart superstore in the City. The ordinance in question, defined and regulated “discount stores,” “discount clubs,” and “discount superstores,” prohibiting construction of the latter in any district within the City. Discount superstores were defined as retail operations with greater than 100,000 square feet of gross floor area and at least five percent of the total area devoted to non-taxable merchandise, such as groceries. Wal-Mart asserted seven claims against Defendants, including that the ordinance violated the equal protection clauses of both the U.S. and California constitutions; was an unlawful burden on interstate commerce; was unconstitutionally vague; and effected a deprivation of constitutional civil rights in violation of § 1983. Additionally, Plaintiffs sought a declaration that the Ordinance was void, as well as a temporary restraining order, preliminary injunction, and permanent injunction against enforcement of the ordinance. Holding: The first issue the court resolved was whether Wal-Mart had asserted both a facial and “as-applied” challenge to the ordinance. The Federal District Court concluded that because Wal-Mart’s initial complaint (which was not amended on this point) preceded enforcement of the ordinance against Wal-Mart, and did not allege the City violated Wal-Mart’s constitutional rights, Wal-Mart did not and could not have asserted an “as applied” challenge. Rather, Wal-Mart’s complaint targeted the enactment of the ordinance, not its application. Assuming for the sake of argument that Wal-Mart had asserted an as-applied challenge, the court found Wal-Mart’s challenge to be ripe, noting that despite the fact that Wal-Mart had not exhausted its appeal recourse and had not sought a variance, the fact that no City body or official had the discretion to permit a discount superstore in any portion of the City under any circumstances, meant further appeals were futile. The court further found that the City Planning Manager was not acting in a quasi-judicial capacity when he denied Wal-Mart’s application, as there were no indicia of a hearing. Therefore, Wal-Mart’s claim was not barred by res judicata principles. Additionally, the court found that assuming arguendo, the complaint asserts an as-applied claim, such a claim was not barred by the statute of limitations, as the statute of limitations for § 1983 claims was two years. Despite the survival of Wal-Mart’s putative as-applied challenge, however, the court determined that any as-applied challenge would be subsumed by the facial challenge since the ordinance in question left the City with no discretion regarding discount superstores; they were not permitted under any circumstances. Therefore, even Wal-Mart’s putative as-applied challenge was essentially a facial challenge. The court then reviewed the equal protection claims according to the rational basis analysis, noting that the ordinance did not implicate a suspect class or fundamental right. The ordinance survived a rational basis analysis according to the court because the ordinance was conceivably rationally related to a legitimate state interest: prevention of urban blight caused by discount superstores displacing neighborhood grocery establishments. The court declined to probe into the degree to which the ordinance is related to this end, noting that “[j]udicial review is at an end once the court identifies a plausible basis on which the legislature may have relied.” The court also rejected Wal-Mart’s assertion that the Council member’s motives were improper. “Even an improper motive,” noted the court, “without more, does not affect constitutional review of legislation.” The court concluded that the ordinance did not violate the equal protection clauses of the U.S. or California constitutions. The court next held that the ordinance did not discriminate against interstate commerce because it affected only the type of retail establishments that could be operated in Turlock, not the type of retailers. Any retailer, Wal-Mart included, could do business in Turlock, and indeed Wal-Mart

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operated other non-superstore establishments in the City. Similarly, the ordinance prohibited all retailers, whether in state or out of state, from operating a discount superstore. The court distinguished the case from Hunt v. Washington Apple Advertising, (1977) 432 U.S. 333, in which the challenged statute raised the cost of doing business for out-of-state distributors in relation to those from within the state. Here the City’s ordinance dealt evenhandedly with in-state and out-of-state business: neither could operate a discount superstore. The court also rejected Wal-Mart’s assertion that Exxon Corp. v. Governor, (1978) 437 U.S. 117, stood for the principle that a statute violates the Commerce Clause if it discriminates against interstate commerce in either intention or effect. The court noted that no authority it was aware of stood for this principle and implied that discriminatory purpose alone does not violate the Commerce Clause. The court acknowledged that an ordinance that has a discriminatory effect, by for example erecting barriers to out of state market entry or increasing the cost of doing business for out-of-state business can violate the Commerce Clause, but the court concluded that the Turlock ordinance had no such effect. The ordinance did not increase the costs of doing business relative to local competitors, nor did it downgrade or discriminate against any out-of-state product. Wal-Mart also asserted that there existed a triable issue of fact under the second tier of Commerce analysis, as expressed in Pike v. Bruce Church, Inc., (1970) 397 U.S. 137. Under Pike, if a legitimate local purpose is found, then the extent of burden that will be tolerated depends on the nature of the local interest. The Supreme Court has been clear, however, that with regards to such questions, courts should not second-guess the utility of legislation. For a facially-neutral legislative action to violate the Commerce Clause under this analysis the burdens must so outweigh the benefits so as to make the action unreasonable or irrational. Here, the court found that the benefits were not so outweighed by any burden on interstate commerce. The court relied primarily on Walgreen Co. v. Rullan (1st Cir. 2005) 405 F.3d 50, in concluding that the benefits created by the Turlock ordinance were greater, and the burdens significantly less than the barriers to entry created by the Puerto Rican law in Walgreen that effectively prevented non-Puerto Rican pharmacies from operating in the Commonwealth.

CHAPTER XI – PROTECTING THE ENVIRONMENT Part 1. Introduction Part 2. California Environmental Quality Act (CEQA) City of Marina v. Bd. of Trustees of the California State University (2006) ___ Cal.4th ___ [___Cal.Rptr.3d ___] EIR prepared by State University Trustees, mistakenly believing that certain off-campus effects of their project were not Trustees' responsibility, improperly concluded that the effects could not be feasibly mitigated. Facts: The Fort Ord Reuse Authority (FORA), was created by the Legislature to govern the Fort Ord decommission Army base FORA petitioned for writ of mandate challenging the California State University Trustees' certification of an EIR for a campus expansion project. The EIR prepared by the Trustees required mitigation of certain on-campus environmental impacts, but disclaimed responsibility for mitigating a number of off-campus effects. Specifically, the Trustees refused to share in the cost of certain infrastructure improvements proposed by FORA, including improvements relating to drainage, water supply, traffic, wastewater management, and fire

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protection. There was no dispute that the improvements were required to fully mitigate the effects of the campus expansion, however, Trustees concluded that certain improvements were the responsibility of FORA rather than the Trustees. In an appendix to the EIR, Trustees articulated their belief that they could not legally contribute to certain improvements, relying on article XIII, section 3, subdivision (a) of California Constitution, which has been interpreted as an exemption of state-owned property from special assessments imposed by local governments (see San Marcos Water District v. San Marcos Unified School District (1986) 42 Cal.3d 154). The Legislature, however, enacted Government Code § 54999 in response to this interpretation. Section 54999 authorizes public agencies that provide public utility services to a public educational facility to impose a "capital facilities fee" upon negotiations and an agreement between the two parties. Based on these authorities, Trustees concluded that FORA could only impose fees for those purposed specifically mentioned in § 54999 et seq. (i.e., water, drainage, and sewage) and that fees for any other improvements (i.e., traffic and fire protection) were impermissible assessments, even if paid voluntarily. Trustees further argued that such payment would constitute a gift of public funds. With respect to the traffic and fire protection improvements, Trustees asserted that they could not legally contribute to these improvements, and mitigation was therefore infeasible. Trustees adopted a statement of overriding considerations for the unmitigated impacts. With respect to the water, drainage, and sewage impacts, Trustees concluded that these impacts, like traffic and fire protection, were FORA's responsibility, not that of the Trustees. The Trustees likewise adopted a statement of overriding considerations for these impacts. The Superior Court granted the petitions and issued a writ of mandate in favor of the City of Marina. The Court of Appeal reversed. Holding: The Supreme Court reversed the appellate division's holding. The court first rejected Trustees' position that the California Constitution made voluntary mitigation payments impermissible. The court examined the San Marcos holding, which concluded that a school district was exempt from a fee imposed by a public water district, essentially finding that the fee was a special assessment to provide the water district a source of funds for capital improvements. The court in City of Marina noted that a special assessment was, at the very least, a compulsory charge imposed by the government on real property. Here, FORA had not imposed any charge on Trustees. The question of payment arose not because of any charge imposed by FORA, but because of payments to FORA were a feasible form of mitigating the effects of the campus expansion, as required under CEQA. The court concluded that such mitigating payments to third parties cannot be considered compulsory nor, for that reason, an assessment. Therefore, the payments in question were not addressed by the San Marcos decision, nor exempted under the California Constitution. The Court also rejected Trustees argument that payment would constitute a gift of public funds. Funds delivered for a public purpose are not a gift. Here, the payments would be issued for the public purpose of discharging the Trustees' duty as a public agency to mitigate significant effects of the campus expansion. The Court also rejected the argument that mitigation was infeasible because Trustees could not be sure that FORA would use the funds for the proposed infrastructure improvements. Here, the Court found that FORA had a statutory duty under the act which created FORA to develop the necessary infrastructure and construct improvements for civilian occupation of the base. Trustees could properly conclude that FORA would meet this statutory obligation.

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The Court next rejected Trustees' argument that the unmitigated impacts were the responsibility of FORA and not the Trustees. A finding under CEQA disclaiming responsibility to mitigate environmental effects is permissible only when the other agency said to have responsibility has exclusive responsibility. Here, FORA had responsibility for implementing the infrastructure improvements that it had proposed, but the enabling act contemplated that the costs of those improvements would be borne by those who benefited from them. Under these circumstances, FORA could not be said to have exclusive responsibility, therefore, the Trustees deferment was improper. In so ruling, the Court upheld a line of cases including Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1188 and Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99 which held that fee-based mitigation programs for cumulative impacts to infrastructure, based on fair-share contributions by individual projects can constitute adequate mitigation measures under CEQA. For the reasons stated, the Court found that the Trustees had abused their discretion in determining that the impacts could not be feasibly mitigated. In light of this conclusion, the Court necessarily found that the Statement of Overriding Considerations was invalid. The Court ordered that the EIR be vacated and the Statement of Overriding Conditions be set aside.

County of San Diego v. Grossmont-Cuyamaca Community College District (2006) 141 Cal.App.4th 86 [45 Cal.Rptr.3d 674] The School District’s contention that it was not authorized to fund the mitigation of significant off-campus traffic impacts was improper because the California Education Code authorizes such expenditures.

Facts: Defendant Grossmont-Cuyamaca Community College District prepared a master plan approving various construction and remodel projects on the Cuyamaca College campus. The changes were needed to accommodate the expected student population on campus. The District’s draft Environmental Impact Report indicated that the plan would result in significant traffic impacts at off-campus intersections and road segments absent mitigation measures that the County would be responsible for implementing. The County commented that the draft EIR failed to provide adequate mitigation measures for potentially significant traffic impacts.

The District then prepared the final Environmental Impact Report and project approvals in which the District itself made no commitment to implement any off-campus traffic mitigation measures. The FEIR only stated that the District may participate with the County, to the extent permitted by law, to mitigate the project’s off-campus traffic impacts. The District found that the off-site mitigation measures were infeasible and adopted a statement of overriding considerations with respect to them because the District concluded that the County and Caltrans had jurisdiction over the roadway improvement projects and the District had no statutory authorization to even fund a proportional share of any off-site traffic improvements.

The County challenged the District’s refusal to mitigate off-campus traffic impacts by filing a petition for a writ of mandate directing the District to (1) set aside its certification of the final EIR, adoption of CEQA findings, statement of overriding considerations, and its approval of the master plan; and (2) prepare a new EIR. The Trial Court found that substantial evidence supported the final EIR, the statement of overriding considerations, the master plan, and the District’s infeasibility finding. Further, the Trial Court found that the obligation to mitigate environmental impacts did not include

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payment of traffic impact mitigation expenses or special assessments by the District. The County appealed.

Holding: The Court of Appeal reversed, holding that there was no substantial evidence to support the District’s claim that mitigation of the adverse project-related off-campus traffic impact was infeasible and that the District abused its discretion by adopting the final EIR and SOC.

First, the Court rejected the District’s claim of legal infeasibility due to lack of authority. The Court pointed to a number of sections in the Education Code to reject the District’s assertion that the statutory scheme relating to community college districts provided no authority for the District to fund or build off-site street improvements. The Court explained that Education Code §14020.1 restricts only a portion of the State funds provided to the District. Similarly, the Community College Revenue Bond Act of 1961 provides that the District may use any funds made available to the Board by the State or any other funds from any source to pay for the costs of acquisition, construction, or completion of any project. The Community College Construction Act of 1980 (“CCCA”) also authorized the District to utilize its funds to construct “adequate facilities” to meet the needs of a growing community college student population.

The Court also pointed out that the administrative record contained no estimate of the cost of the District’s proportional share of the off-campus traffic mitigation measures identified in the final EIR. Without evidence of the amount of any cost, the Court held that there was no substantial evidence to support the District’s claim that mitigation of the adverse project-related off-campus traffic impacts was economically infeasible.

Save Our Neighborhood v. Lishman, et al. (2006) 140 Cal.App.4th 1288 [45 Cal.Rptr.3d 306]. City’s use of an addendum to a previously prepared MND was in violation of CEQA and a new environmental review was required where the project, although similar to a previously proposed project on the same property, was found to be a new project with new proponents and separate design plans and not a modification of the previous project. Facts: An 8.2 acre parcel of real property within the City limits of Placerville had been the site of a number of proposed, but never constructed, commercial developments. In 1997, a proposal to construct a 106-unit motel, restaurants, lounge, gas station, convenience store, and carwash on the site was submitted to the City of Placerville. The City prepared a mitigated negative declaration for the project (1997 MND). However, the 1997 project was not constructed. In 2004, the City prepared an Initial Study/Mitigated Negative Declaration (IS/MND) for a new project proposed for the site. The 2004 IS/MND did not mention the 1997 project. The 2004 project was to consist of a 102-room hotel with convention facilities, a gas station, a convenience store with attached carwash, and was to include parking, landscaping, grading and stream channel alignment. Plaintiffs commented on the IS/MND and asked the City to prepare an EIR for the project. In response, City staff recharacterized the 2004 project as a modification of the 1997 project, and recommended an addendum to the 1997 MND rather than the preparation of an EIR or new MND. City staff’s recommendation was based on a conclusion that the 2004 project involved only minor, non-environmentally significant changes to the 1997 project, and thus, in accordance with Public Resources Code §21166 and CEQA Guidelines §15162 (14 CCR 15162), preparation of an addendum was acceptable.

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Following staff’s recommendation, the City prepared an addendum to the 1997 IS/MND. The addendum indicated that the 2004 project involved only minor changes to the 1997 project and that there were no changes to the circumstances in existence in 1997 that would result in new significant environmental effects. The Placerville City Council approved the project and the Plaintiff filed an action challenging the approval on the basis that the approvals, among other things, violated CEQA. The Trial Court ruled in favor of the City finding that substantial evidence supported the City’s determination to prepare an addendum. Plaintiff appealed. Holding: Public Resources Code §21166 and CEQA Guidelines §15162 address the issue of whether changes to a project, the circumstances of a project, or new information about a project, require the preparation of subsequent environmental analysis or an addendum. In the opinion of the Court, however, a threshold question is whether the changes involve a particular project or a new project altogether. The Court stated that this was an issue of first impression. Despite Placerville’s assertion that the 2004 project was only a modification of the 1997 project, the Court looked at the totality of the facts and concluded otherwise. The Court pointed to a number of novel factors that it considered relevant to its totality of the circumstances test. It explained that no mention of the 1997 project was made in the 2004 IS/MND initially prepared by the City, the projects had different proponents, and there was no suggestion in the record that the 2004 project utilized any of the drawings or other materials connected with the 1997 project as the basis for the new configuration of uses. The Court provided no explanation or citations to explain the relevance of these particular factors to the analysis of the CEQA identity of the project because the 2004 project was a new project, the City violated CEQA by relying upon an addendum to the environmental analysis for 1997 project rather than an independent environmental review of the 2004 project. Turlock Irrigation District v. Zanker et al. (2006) 140 Cal.App.4th 1047 [45 Cal.Rptr.3d 167]. Creation and imposition of water conservation rules by a water district regulating the withdrawal of water from the water system is exempt from environmental review under CEQA. Facts: Both the Turlock Irrigation District and the Modesto Irrigation District, under historic contractual obligations, were required to provide water to the Town of La Grange. The Town is outside the boundaries of both Districts. The Districts own the infrastructure supplying water to La Grange. They imposed connection restrictions and water conservation rules regulating the withdrawal of water on La Grange’s water use. The Districts sued following the connection of Allen and Kristina Zanker’s home to the town’s domestic water supply. The Districts claimed that the Zanker home was outside the service area for the system and was an unauthorized connection. The Town filed a complaint in intervention claiming among other things that: 1) the Districts had no authority to adopt water conservation rules; and 2) the rules were in violation of CEQA because the Districts had not undertaken any environmental review concerning the effects of the rules. With respect to the latter claim, the Town took exception to the Districts’ determination that the conservation rules were exempt from review as a Class 1 categorical exception (operation and maintenance of existing public facilities; 14 CCR §15301). La Grange also argued that an exception to the CEQA exemption applied, because the unusual relationship of the Districts and the Town, as well as the firefighting needs of the Town, created a reasonable possibility that the rules would have a significant effect on the environment. The trial ruled in favor of the Districts and the Town appealed.

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Holding: With respect to the issue of the Districts’ authority to impose reasonable water conservation rules, the Appeal Court held that Water Code §22258 specifically authorizes a water district providing water outside its boundaries to impose water conservation rules on the water’s use. With respect to CEQA, the Appeal Court held that environmental review of the effects of the Districts’ water conservation rules was not required. The Court upheld the Districts’ determination that the imposition of the conservation rules qualified as a Class 1 categorical exemption. According to the Court, the conservation rules regulate access to delivered water and the sole purpose for operation of a water system is the delivery of water. The Court dismissed the Town’s arguments regarding the unusual circumstances. Gilroy Citizens for Responsible Planning, et. al v. City of Gilroy (2006) 140 Cal.App.4th 911 [45 Cal.Rptr.3d 102] Failure to provide 45 day review of draft EIR as required by §21091 may not be fatal if other methods of publication are used. Facts: Plaintiff filed a petition for writ of mandate to set aside City’s certification of an Environmental Impact Report (EIR) and approval of a Wal-Mart Superstore. The City prepared an EIR which tiered off a prior EIR and negative declaration. Plaintiff claimed notice of the draft EIR was inadequate.

Holding: The Court of Appeal upheld the City’s decision to certify the EIR. The Court found the City had provided sufficient notice of the availability of draft EIR. When, as here, a draft EIR is submitted to the State Clearinghouse for review, the lead agency must provide at least 45 days for public review. Pub Res Code §21091. Public Resources Code §21092 requires notice of the period for public review of a draft EIR (the NOA) to be mailed to individuals who request it, and also to be provided by at least one of the following: 1) publication, 2) posting, or 3) direct mail to owners and occupants of continuous property. Here, the Court held that publication of the notice 42 days before the close of the comment period on the draft EIR did not comply with 21091. However, the failure was not fatal because there was substantial evidence in the record that more than 45 days before the close of the comment period on the draft EIR, the City mailed the EIR to individuals who requested it, and mailed it to owners and occupants of contiguous property. This portion of the case offers the practice tip that City Attorneys should advise their City Clerks and Planning Commission Clerks to always execute a certificate of mailing for the notice of availability, the notice of preparation, and the notice of scoping. A certificate of mailing provides direct evidence that requirements for mail notice have been satisfied. In this case the Planning Commission Clerk had not executed a certificate of mailing for the NOA, and as a result, the Court had to consider a significant amount of indirect evidence that the City had provided adequate mail notice.

Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249 [42 Cal.Rptr.3d 537] City’s determination that there was no reasonable possibility of significant effect on the environment due to unusual circumstances, and thus no exception from application of CEQA guideline exemption, is a matter reviewed on appeal under the fair argument standard.

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Facts: Developer proposed to construct a multi-family residential building with underground parking in San Diego. The site of the project was zoned for multi-residential use. In November 2003, the City approved a shoring and grading permit, authorizing the developer to begin site preparation work, including excavating for a parking garage. In January 2004, the City issued a building permit for pad footings for the building’s underground parking garage.

Appellant Banker’s Hill, Hillcrest, Park West Community Preservation Group filed a petition for writ of mandate, claiming that the City violated CEQA. In March 2004, the Trial Court denied the Preservation Group’s application for preliminary injunctive relief on the basis that the City was in the process of considering what kind of environmental review to undertake for the Project.

In late March 2004, the Developer submitted a request to the City for a determination of exemption from CEQA. After the City’s Development Services Department issued a notice of exemption from CEQA, the Preservation Group appealed the notice of exemption to the City Council. The City Council rejected the Preservation Group’s appeal and found the project exempt under Guidelines §15332 as an urban in-fill development project. The Preservation Group filed a second amended petition for writ of mandate in November 2004. The Trial Court denied the petition agreeing with the City. The Trial Court also rejected the Preservation Group’s contention that the City impermissibly reviewed the Project in a piecemeal manner by approving the grading, showing and pad footings permits before conducting a preliminary review of whether to approve the entire Project. The Preservation Group appealed.

Holding: The Court of Appeal ruled in favor of the City. The Court considered whether the in-fill exemption applied to the project.

The Court determined that the in reviewing the application of categorical exemptions, the standard of review shifts. The Court concluded that the normal “substantial evidence” standard applies to review of the initial decision that the project is within an exempt class. The standard, however, shifts to the “fair argument” standard when the court reviews whether or not there is no reasonable possibility of a significant effect on the environment due to unusual circumstances.

The Court then considered whether the urban in-fill exemption to this project met the requirements of the exemption under Guideline §12332. The Court’s analysis of this issue included the conclusion that the large urban park located immediately south of the project, was an “urban use.” The park therefore did not prevent the project from satisfying the element of in-fill exemption requiring a project to be “substantially surrounded by urban uses.” The Court next considered the Preservation Group’s assertion that due to unusual circumstances, there is a reasonable possibility that the Project will significantly effect (1) shadowing of Balboa Park, (2) views, (3) traffic, and (4) community character. The Court concluded that substantial evidence supported the City’s determination that there is no reasonable probability of a significant effect on the environment due to unusual circumstances. First, the Court determined that the Preservation Group submitted no evidence that the shadows created by the Project would significantly effect the park’s vegetation. Second, the Court found that obstruction of a few private views in the Project’s immediate vicinity was not generally regarded as a significant environmental impact, thus the obstruction of view of a few residents of the Del Prado condominium project was not significant. Further, the Court

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determined that the Project was consistent with the community character already established by the Del Prado condominium building.

Finally, the Court determined that there was no merit to the Preservation Group’s argument that the City impermissibly piecemealed the approval of the Project because the Preservation Group failed to object to the City about the alleged piecemeal treatment of the project and thus failed to exhaust its administrative remedies. Preservation Action Council v. City of San Jose (2006) ___ Cal.Rptr.3d ___ (2006 WL 2195671) .Alternative analysis in an EIR must be sufficiently detailed to allow a decision making body to fully consider alternatives and must contain adequate data regarding the feasibility or infeasibility of proposed alternatives. Facts: Plaintiff Preservation Action Council (“PAC”) filed a writ petition against the City of San Jose challenging the City’s decision to certify a final environmental impact report and approve the home improvement warehouse project on a site occupied by an unused historic building. PAC alleged that the City’s decision to certify a FEIR and approve the project violated the California Environmental Quality Act by failing to analyze a reasonable range of alternatives. The developer, Lowe’s HIW, Inc. proposed a project that would require the destruction of a 69,000 square-foot building which was built in the mid-1950s, and has been unused since the late 1990s. The building was considered a historic resource because it is “one of the finest examples of modern industrial architecture in Santa Clara County,” and it was the site of the invention of the “flying head” disk drive. Lowe’s sought approval from the City of San Jose to demolish the building and build a 162,000 square-foot garden center and parking lots on 13 acres of the site. The Draft EIR analyzed a group of alternatives. The primary alternative analyzed was a two-story Lowe’s warehouse that would have allowed for the preservation of the building. The design was deemed infeasible due to functional and economic concerns. The DEIR also considered a design alternative that would have preserved the building by reducing the size of the Lowe’s warehouse. This alternative, along with another alternative which would result in configuring the warehouse into an L-shaped one-story warehouse with parking underground beneath the warehouse, were also deemed infeasible. Lowe’s pointed to company polices which set out standards for a Lowe’s warehouse to meet. It stated that the size was determined by the market, the warehouses were all one story in order to provide customers easier access to bulky items, ground parking located outside the store, and other visual standards. The DEIR stated that although the alternatives were environmentally superior, they would not meet the applicant’s objectives for the project, and result in placing Lowe’s at a competitive disadvantage in the marketplace. An amendment to the DEIR revised and substantially expanded the DEIR’s discussion of the reduced-size Lowe’s configuration. Nevertheless, the reduced-size configuration was deemed infeasible because the project applicant had indicated that Lowe’s could not significantly scale down its program requirements to allow a 94,000 square foot store suitable for a small market population under 100,000 without placing it at a competitive disadvantage in the marketplace. A

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second amendment to the DEIR added a letter from Lowe’s Site Development Manager stating Lowe’s competitive hardship if the smaller building was built. The Planning Commission certified the FEIR, causing PAC to appeal the certification of the FEIR to the City Council. PAC’s appeal argued that the DEIR and FEIR had overlooked alternatives. The Planning Director’s memorandum to the City Council regarding PAC’s appeal asserted that PAC’s alternatives were not substantially different from the ones analyzed in the FEIR, therefore did not require further analysis. The City Council certified the FEIR, approved the project, and made findings. The City Council found that the project would result in significant impacts to historic resources which were significant and unavoidable, but no feasible alternatives considerably different from those analyzed in the DEIR had been proposed that would lessen significant environmental impacts of the Project. This finding, along with the DEIR, mainly focused on the two story alternatives, not a reduced-size alternative. PAC filed suit and the Superior Court found that the City’s rejection of the reduced-size Lowe’s alternative was not supported by substantial evidence, PAC’s proposed Alternative 2 was substantially different from the alternatives analyzed in the FEIR and ostensibly feasible, and therefore it should have been analyzed in the EIR, and that the City had failed to adequately respond to comments by PAC regarding the alternatives. The City appealed. Holding: The Court of Appeals affirmed the Trial Court’s decision, following CEQA Guidelines, stating that it is the Agency’s responsibility to provide an adequate discussion of alternatives (Guidelines, §15126(d)). If the Agency concludes that there are no feasible alternatives, it must explain in meaningful detail in the EIR the basis for that conclusion. Laurel Heights Improvements Assn. v. Regents of University of California, (1988) 47 Cal.3d 376, 405. The Court reaffirmed that the fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. What is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project. The Court further stated that a potential alternative should not be excluded from consideration merely because it would impede to some degree the attainment of the project objectives, or would be more costly. (Guidelines, §15126.6(b)). The Court held that the FEIR was inadequate because it lacked “detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully” the reduced-size alternative. (Laurel Heights Improvements Assn. (1988) 47 Cal.3d. 376, 404-405). The City was obligated to independently participate, review, analyze and discuss the alternatives in good faith. The EIR, or some other document in the administrative record, should have explained in meaningful detail the basis for the alleged infeasibility of the reduced-size alterative. CEQA charges the agencies, not the applicants, with the task of deciding whether alternatives are feasible. Here, the FEIR’s analysis of the reduced-size alternative is unclear on the square-foot configuration. No comparison could be made between that alternative and other nearby home improvement centers in order to evaluate the validity of Lowe’s claim of competitive disadvantage. Thus, the City failed to adequately analyze the reduced-size alternative as required by CEQA.

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§ 11.2.45 National Environmental Policy Act (NEPA) Great Basin Mine Watch v. Hankins (9th Cir. 2006) ___ F.3d ___ BLM's vague and conclusory statements in final environmental impact statements, without any supporting data, did not constitute a "hard look" at the environmental consequences of the action as required by NEPA. Facts: Plaintiffs challenged Bureau of Land Management (BLM) approval of two gold mining permits as violations of the National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA). The Newmont Mining Corporation (Newmont) submitted the two applications, which BLM concluded had the potential to cause significant environmental impacts and prepared separate Environmental Impact Statements (EISs). BLM released a Record of Decision for each application, and each case proposed an "agency-preferred alternative" to which the applicant agreed. Pursuant to BLM's request, Newmont posted bonds for each project. Great Basin Mine Watch filed this action seeking judicial review of the final EISs, the Decisions, and the bond determinations. The District Court granted the government's motion for summary judgment; Great Basin appealed. Holding: The Court reviewed the summary judgment decision de novo, and noted that they may direct summary judgment to either party based on this de novo review. In reviewing the adequacy of the EIS, the Court noted that it was bound by the APA's arbitrary and capricious standard, and that it must ultimately determine whether the agency took a hard look at the environmental consequences of its action. The Court addressed the NEPA claim, first finding that Plaintiff had adequately raised the issue of connecting the two permits before the BLM. The Court determined that each project would have taken place, even if the other had not. Therefore, the projects had "independent utility" and did not need to be connected in their evaluation by BLM. The issue remained as to whether the EISs adequately evaluated the cumulative impacts of the projects. Great Basin noted that the EISs neglected to discuss impacts from nearby mines. Finding that NEPA required "objective quantification of the impacts," the Court held that by failing to discuss other mines in one EIS, and limiting the discussion to the inclusion of a generic map in the other, BLM had not adequately addressed the cumulative impacts of the projects as required by NEPA. Such "vague and conclusory statements, without any supporting data, do not constitute a 'hard look' at the environmental consequences of the action" reasoned the Court. Rather, BLM must identify and discuss the impacts that will be caused by each successive project, including how the combination of those projects is expected to affect the environment. In this respect, the Court reversed the district court's decision. Environmental Protection Information Center v. United States Forest Service (9th Cir. 2006) 451 F.3d 1005 Failure to include a reasonable foreseeable project in an environmental assessment can be remedied by including a reasonably complete discussion of the issue in the comment response. Facts: The Environmental Group (EPIC) challenged the Forest Service’s failure to prepare an Environmental Impact Statement (EIS) for a proposed timber sale. The Forest Service prepared

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an Environmental Assessment examining the potential harm to the northern spotted owl, the increased fire risk, and the potential impact on the watershed as a result of the Timber Sale. The USFS found that the impact upon the owl species was not significant, even though there was some impact on pairs of owls. The EA contained 15 pages devoted to the watershed issue describing the existing status, the minor short term effects and mitigation methods to reduce the impact. The agency considered the cumulative watershed effects and provided a significant amount of detailed information, and the EA did not reveal the need for an EIS. EPIC also brought a claim under the National Forest Management Act (NFMA) alleging Forest Service failed to fulfill its duty to provide for diversity of plant and animal communities by relying on habitat quality rather than undertaking a study of the actual abundance of the individual species. Holding: The Court of Appeals affirmed the District Court’s grant of summary judgment and held that the Forest Service’s conclusion not to do an EIS was not arbitrary and capricious. The Court stated the Forest Service’s failure to include the effect of a nearby project was not arbitrary and capricious because the parameters of the project were unknown at the time of the ERA. However, the Court found that even if the Forest Service had made a clear error in judgment by failing to include this project, it remedied the error by including a reasonably complete discussion of the issue on the comment response, based on the project parameters that were known at that time. In addition, the Forest Service’s decision that Project will help will the long-term risk of fire reduction was not arbitrary or capricious. San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission (2006) 449 F.3d 1016 The United States Nuclear Regulatory Commission violated the National Environmental Policy Act by not considering environmental impact of terrorist attacks on a proposal to store spent nuclear fuel. Facts: PG&E filed an application with the United States Nuclear Regulatory Commission (“NRC”), for a license to construct and operate a facility to store spent nuclear fuel at the Diablo Canyon Power Plant in San Luis Obispo. The NRC decided not to prepare an Environmental Impact Statement (“EIS”) for the project, in part because it determined that the possibility of a terrorist attack on the Diablo Canyon complex was too remote and speculative to require analysis under the National Environmental Policy Act (NEPA). The San Luis Obispo Mothers for Peace and other petitioners challenged NRC’s decision. Holding: The Court held that the NRC failed to comply with NEPA. The Court assailed NRC’s declaration without support that, as a matter of law, the possibility of a terrorist attack was “speculative and simply too far removed from the natural or expected consequences of agency action to require study under NEPA.” The Court responded that the NRC’s assertion that the possibility of such an attack remote was totally inconsistent with NRC’s comprehensive efforts to review and improve security from “top to bottom” at nuclear facilities in the wake of the September 11 attacks. The Court said that because the NRC had insisted on the seriousness of its preparations for a terrorist attack on nuclear facilities as a matter of public policy, it was now precluded from finding that the possibility of any such attack was too remote and speculative to require analysis under CEQA.

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This case is relevant to city attorneys because it suggests the possibility that the environmental impacts of a terrorist attack may need to be considered under CEQA, if there is evidence in the record that there have been either serious concerns about the possibility of terrorist attack on the facility or significant steps taken to prevent terrorist attacks on the facility. Such facilities might include major ports, airports, bridges and other critical infrastructure. Part 3. Water Supplies and Supply Planning Part 4. Water Quality Rapanos v. United States (2006) ___ U.S. ___ [126 S.Ct. 2208]. U.S. Supreme Court identifies multiple tests for determining Army Corps of Engineers jurisdiction over wetlands. A plurality opinion of the Court establishes two standards for determining jurisdiction of such wetlands: 1) the wetland has a continuous surface connection with a relatively permanent body of water connected to traditional interstate navigable waters; or 2) a significant nexus between the wetland and the navigable water is found based upon an analysis of the wetland’s relationship with the navigable water in light of the purposes and goals of the Clean Water Act. Facts: The federal Clean Water Act regulates the “waters of the United States.” In the years following the Act’s passage, the U.S. Corps of Engineers and the Environmental Protection Agency had developed rules broadly interpreting what constituted the “waters of the United States.” Under the regulations adopted, “waters” included not only traditional navigable waters, but also, among other things, wetlands, sandflats, and sloughs, the tributaries of such waters and wetlands adjacent to such waters and tributaries. In two separate Michigan cases, federal agency jurisdiction over wetlands pursuant to the Clean Water Act was challenged. In the first case, the United States brought civil enforcement proceedings against petitioner John Rapanos following Mr. Rapanos’ failure to obtain the necessary federal permits before backfilling wetlands on property he owned. In the underlying decision, the District Court found that the wetlands were under federal jurisdiction because they were adjacent to other waters of the United States in accordance with the Clean Water Act. The Sixth Circuit affirmed the decision holding that there was federal jurisdiction because “there were hydrological connections between the [wetlands] and corresponding adjacent tributaries of navigable waters.” In the second case, petitioner June Carabell was denied a permit to deposit fill material into a wetland on property she owned. Carabell eventually filed suit challenging federal jurisdiction. The District Court ruled that federal jurisdiction did exist because the wetland was “adjacent to neighboring tributaries of navigable water and has a significant nexus to ‘waters of the United States.’” The Sixth Circuit affirmed holding that the Carabell wetland was “adjacent” to navigable waters in accordance with the Clean Water Act. In both cases some of the wetlands at issue were connected to larger bodies of water via drains and ditches. In the Rapanos case, some of the wetlands had a direct surface connection to a larger body of water. The U.S. Supreme Court granted certiorari and consolidated the cases to decide whether the wetlands in question constituted “waters of the United States” under the Clean Water Act.

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Holding: A divided Court overturned the Sixth Circuit in both cases. Though no opinion gathered a majority, a plurality of Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito, joined by Justice Kennedy, concurring in the judgment, agreed to remand the cases to the Sixth Circuit for further consideration of the jurisdictional issue. Unfortunately, since no one opinion was able to gather a majority, the exact test for determining the issue of jurisdiction remains unclear. The plurality opinion, penned by Justice Scalia established a two-part test for determining when a wetland would be covered by Federal jurisdiction: first, the agency must determine whether the "body of water" to which a wetland is connected is a "relatively permanent" body of water connected to traditional interstate navigable waters; and second, the agency must determine whether the wetland has a continuous surface connection with that water body, "making it difficult to determine where the "water" ends and the "wetland" begins. The definition of what, exactly, constitutes a "relatively permanent" body of water in the minds of the plurality, however, was left undefined. The plurality opined, for an example that a "seasonal river" which flowed for much of the year, but than ran dry for part of the year would be "relatively permanent," but that a "wash" or "intermittent" or "ephemeral" streams would not.

Justice Kennedy's concurring opinion rejects the plurality's requirement that wetlands have a surface-water connection, instead offering that for an area to fall under Federal jurisdiction "the water or wetland must possess `a significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made." In order to meet this "significant nexus test" Justice Kennedy would have the Corps establish, on a case-by-case basis that wetlands adjacent to nonnavigable tributaries "either alone, or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ˜navigable.'" Like the plurality's test, however, the details of Justice Kennedy's test are somewhat vague. For example, Justice Kennedy does not provide much guidance concerning what is required for an action to "significantly affect" navigable waters.

As Chief Justice Roberts points out in his concurring opinion, "It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress' limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis." The most reasonable approach appears to be to use both the plurality's two-part test and Justice Kennedy's "substantial nexus" test. Any wetlands that meet the more strict requirements of the plurality's test would also likely meet the requirements of Justice Kennedy's test, thus the plurality's test can be used as a primary threshold test. If a wetland does not meet the plurality's test, it appears that federal jurisdiction may still be established through the "significant nexus"

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Part 5. Air Quality Part 6. Solid Waste and Hazardous Waste Part 7. Endangered Species Act Kern County Farm Bureau v. Allen (9th Cir. 2006) 450 F.3d 1072. U.S. Fish and Wildlife Service is not required to reopen the public comment period in order to address post-comment period studies that supplement, but do not alter or provide critical basis for the Service’s decision to list an animal as an endangered subspecies. Facts: The U.S. Fish and Wildlife Service (FWS) published a rule proposing to list the Buena Vista Lake (BVL) shrew as an endangered subspecies. In accordance with the procedures of the Endangered Species Act (ESA) and the Administrative Procedure Act (APA), the FWS opened a sixty-day comment period regarding the proposal. Following the close of the comment period, but before issuance of the Final Rule, three new studies become available, one of which reached a conclusion that the BVL shrew was not endangered. The FWS did not reopen the public comment period following receipt of the new studies and published its Final Rule listing the shrew as an endangered subspecies. The Final Rule did incorporate data from the new studies. The Kern County Farm Bureau challenged publication of the Final Rule on the basis that: 1) the FWS was required to reopen the public comment period following receipt of the new studies; 2) the FWS failed to use the best scientific data available in satisfaction of 16 U.S.C. §1533(b)(1)(A); and 3) the FWS failed to summarize and show the relationship of the data to the Final Rule in accordance with 16 U.S.C. §1533(b)(8) by failing to answer all questions regarding the BVL shrew and its possible listing. The District Court ruled in favor of the FWS, and the Kern County Farm Bureau appealed. Holding: On the first issue, citing Idaho Farm Bureau Fed’s v. Babbitt, 58 F.3d 1392 (9th Cir.1992) and Solute Corp. v. EPA, 952 F.2d 473 (D.C.Cir. 1991, the Court ruled that an agency may, without reopening the public comment period, use supplementary data, unavailable during the public comment period, that expands on and confirms in formation contained in the proposed rulemaking and addresses alleged deficiencies in the pre-existing data, so long as no prejudice is shown. Based on the record, the Court agreed with the District Court that the three new BVL shrew studies merely supplemented the data in the Proposed Rule, that they confirmed and expanded on existing data, and provided additional grounds for the already well-supported conclusions in the Proposed Rule. In contrast, the court found that the new studies did not provide the sole, essential support for the listing decision, nor did they alter the justifications or conclusions that were vital to the listing decision, either of which would have triggered the requirement that the public comment period be reopened. The fact that one of the studies reached a different conclusion regarding the listing of the BVL shrew is not a controlling factor. FWS is not required to accept a study’s conclusion. Instead, FWS is only required to use the study’s data in reaching its listing decision. On the second issue, citing Southwest Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58 (D.C.Cir. 2000) and Conner v. Buford, 848 F.2d 1441 (9th Cir. 1988), the Court found that the ESA’s requirement that a listing decision be made based on the best “scientific and commercial data available” merely prohibits an agency from disregarding or ignoring scientific data that is better than what the agency is relying on in making its decision. The assertion by the Kern County Farm Bureau that FWS misinterpreted the studies and thus ignored them will not suffice when the record clearly shows that FWS evaluated and incorporated data from the three new studies. Absent

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evidence that FWS ignored relevant information, FWS satisfied its duty to use the best scientific data available. With respect to the relationship of the data to the Final Rule the requirements of 16 U.S.C. §1533(b)(8) do not mandate that FWS answer all questions before making a listing decision. Evidence in the record clearly demonstrates that FWS’s discussion and analysis of the data supported its ultimate decision and adequately satisfied its ESA requirements. Forest Guardians v. Johanns (9th Cir. 2006) 450 F.3d 455U.S. Forest Service violated Endangered Species Act by not re-initiating consultation with the Fish and Wildlife Service after failing to comply with material terms of Forest Services agreement with Fish and Wildlife Service. Facts: An Environmental organization, Forest Guardians, initially filed action in 1997, alleging that the U.S. Forest Service (USFS) had violated federal law by failing to consult with the Fish and Wildlife Service (FWS) regarding adverse impacts on endangered species prior to issuing grazing permits for livestock grazing on nation forest land. In response to the lawsuit, USFS initiated informal consultation with FWS, however, because the suit challenged over one thousand permits, USFS and FWS streamlined the consultation by developing “guidance criteria” that if satisfied, would cause FWS to issue a “not likely to adversely affect” finding. One of the grazing permits named in the suit was for the Water Canyon Allotment, a 52,000 acre allotment in Arizona, home to numerous Endangered Species Act (ESA) listed species. Eighty-six cow/calf pairs were permitted to graze the allotment for four months annually. In 1998, USFS adopted the guidance criteria for Water Canyon, which included several environmental requirements and explained that monitoring of the utilization levels was critical to the continued existence of listed species in the area. Following adoption of the guidance criteria, FWS issued a “not likely to adversely affect” biological assessment. The grazing permits took effect shortly thereafter. In April 2001, Forest Guardians commenced this action, alleging that USFS had violated the ESA by not re-initiating consultation after the agency had failed to meet the guidance criteria for several allotments including Water Canyon. Specifically, Plaintiffs complaint alleged that USFS had failed to conduct adequate annual monitoring of utilization levels, and that as a result the “not likely to adversely affect” findings were invalid. The undisputed evidence indicated that in 1999 (the first year under the grazing permit for Water Canyon) only one of the three grazed pastures was monitored for utilization levels. Only one pasture was monitored again in 2000, despite the fact that several pastures were grazed that year. Monitoring in 2001 and 2002 revealed excessive utilization—up to nearly three times the permitted level—though in those years only seventy-four cow/calf pairs grazed the allotment, instead of the eighty-six that were permitted. The District Court agreed that USFS had not properly monitored utilization levels, but held that inadequate monitoring alone was insufficient to trigger required re-consultation, absent a showing that noncompliance has caused an effect not previously considered. In reaching this decision, the District Court relied in part on the fact that fewer cow/calf pairs grazed the land in 2001 and 2002 than were permitted. The District Court granted summary judgment order addressing each of the challenged allotments declaring that USFS was not required to re-initiate consultation for the Water

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Canyon allotment. Forest Guardians appealed with respect to the Water Canyon allotment only. Two days prior to filing its responsive brief, USFS re-initiated consultation with FWS for the Water Canyon allotment. Holding: The Court first addressed the issue of mootness. In arguing that their decision to re-initiate consultation with FWS rendered the appeal moot, USFS relied upon the Tenth Circuit’s decision in Southern Utah Wilderness Alliance v. Smith (10th Cir. 1997) 110 F.3d 724 [hereinafter SUWA], which held that in light the Bureau of Land Management’s initiation and completion of consultation with FWS while a challenge under the ESA was pending, the matter had been rendered moot. However, the Ninth Circuit noted that the SUWA opinion expressly narrowed the holding to circumstances of that case and stated that such violation could not always be cured by subsequent consultation. The Ninth Circuit distinguished SUWA in two ways. First, unlike SUWA, the present action involved a continuing practice; grazing permits were issued for a ten-year term, and required annual concurrence from FWS. Second, USFS’s failure to comply with monitoring requirements was likely to persist despite re-consultation, as USFS had argued throughout the course of the litigation that it was not required to meet the monitoring requirements of the guidance criteria. The Court also decided to proceed with the appeal on the principle that where both injunctive and declaratory relief are sought, an action is not moot if a declaratory judgment will provide effective relief. Here, the Court determined that a declaratory judgment would govern USFS’s actions for the remainder of the permit term and therefore would be an effective remedy to ensure that the USFS complies with its monitoring responsibilities in the future There was no dispute that USFS had failed to monitor Water Canyon in accordance with the guidance criteria; the issue was whether that failure triggered a duty to re-initiate consultation under 50 C.F.R. §402.16. §402.16 requires consultation where “the identified action is subsequently modified in a manner that causes and effect to the listed species or critical habitat that was not considered in the biological opinion.” Both parties relied upon the Ninth Circuit’s interpretation of §402.16 in Sierra Club v. Marsh (9th Cir. 1987) 816 F.2d 1376. In Sierra Club the court held that the Army Corps of Engineers’ failure to acquire replacement marshland, as required as a condition of it’s “not likely to adversely affect” status, violated the §402.16 re-initiation requirement. Forest Guardians argued that a plain reading of Sierra Club indicated that USFS had committed a similar violation, while USFS argued that Sierra Club suggested that “minor disputes” do not trigger re-initiation requirements. The Court did not agree that USFS inadequate monitoring constituted a minor dispute. The monitoring requirements were critical to FWS’s biological assessment and determination. The Court, therefore, held that the inadequate monitoring, and the results of the limited measurements that were taken, constituted modifications that triggered required re-initiation of consultation. The Court, however, declined to find that each isolated instance in which USFS deviated from the guidance criteria required re-initiation.

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CHAPTER XIII LIABILITY AND LITIGATION Part 3. Municipal Liability

§ 13.3.15 Constitutional Claims

Valley Outdoor, Inc. v. City of Riverside (9th Cir. 2006) 446 F.3d 948 Rejection of permit application where ordinance allowed for submission of application after commencement of sign construction was sufficient for plaintiff to establish standing to assert First Amendment and Equal Protections claims. Facts: This case concerns five billboard owned by Plaintiff Valley Outdoor. On January 20, 2000, without having applied for permits to do so, Plaintiff began to pour foundations for the five billboards located within 100 feet of the 91 freeway in Riverside. A Riverside municipal ordinance in effect at the time prohibited billboards within 750 feet of a freeway. Before completing construction, Plaintiff commenced this action, however, three days later the California Court of Appeal issued a decision in an unrelated matter invalidating portions of the City’s billboard ordinance. Following this decision, Plaintiff completed construction of the billboards and applied for the required permits. The City at first refused to accept Plaintiff’s attempt to file for permits, informing Plaintiff that the City would still not permit construction of billboards within 750 feet of freeways. Upon a second attempt, however, the City accepted the applications for review. While the applications were pending, the City passed an amended ordinance in response to the California Court of Appeal’s decision. The amended ordinance, effective March 2, 2000, restored the prohibition on commercial signage and re-adopted the 750-foot freeway exclusion zone. Plaintiff received a letter from the City, dated March 1, 2000, rejecting their applications. Plaintiff sought declaratory relief that the original and amended ordinances violate the First and Fourteenth Amendments; injunctive relief to prevent the City from enforcing the original and amended ordinances to require removal of the billboards; declaratory relief that the ordinances effect a Fifth Amendment taking; and damages under § 1983. At trial, the District Court found that Plaintiff lacked standing to challenge the substantive provisions of the billboard ordinance, concluding that “a plaintiff may not challenge the constitutionality of one municipal code provision where it is in violation of another independently enforceable provision.” Valley Outdoor’s failure to obtain permits before construction of the billboards meant it could not challenge the constitutionality of the billboard ordinance. Having granted Defendant’s motion in limine excluding all evidence that the City improperly handled or refused to accept permit applications, the district Court ultimately found no legal basis for a reasonable jury to find for Valley Outdoor and granted Defendant’s motion for judgment as a matter of law. Holding: The 9th Circuit Court of Appeals first addressed the standing issue. The Court affirmed that Plaintiff lacked standing to challenge the constitutional validity of the substantive restrictions, but for a different reason: the Court noted that the original ordinance could not be enforced against Plaintiff because it had already been found to be invalid, nor could the amended ordinance be enforced against Plaintiff because it took effect after construction of the billboards had been completed. Therefore, Valley Outdoor lacked standing to challenge either ordinance.

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The Court also addressed Valley Outdoor’s standing with respect to its challenge to the City’s handling of permit applications. The City claimed that Plaintiff lacked standing because the application had been filed after construction had begun. The Court interpreted the City position to mean that the City retained complete discretionary authority to dispose of a late-filed application as it sees fit in any given case. The only contested standing element with respect to this claim was redress ability. The Court found that an order reversing the City’s allegedly arbitrary treatment of Valley Outdoor’s application, or rejecting the City’s authority to handle the application in such a manner would properly redress Plaintiff’s alleged injury. Therefore, Plaintiff had established standing to challenge the City’s handling of the permit applications.

Center For Bio-Ethical Reform Inc. v. City and County of Honolulu (9th Cir. 2006), ___ F.3d ___ Ordinance prohibiting aerial tow banners passed constitutional muster as a reasonable and viewpoint neutral restriction on speech in a non-public forum, and the banner towing prohibited by the ordinance is neither a traditionally important form of communication nor speech that has unique identifying attributes for which there is no substitute.

Facts: The City and County of Honolulu (“Honolulu”) has a long history of enacting regulations to protect its visual landscape and unique scenery. In an effort to prevent potential aerial distractions, Honolulu enacted an Ordinance, which, with few exceptions, prohibits aerial advertising. The Center for Bio-Ethical Reform and its director (collectively, “the Center”) challenged the Ordinance because it prevented the Center from carrying out its pro-life/anti-abortion aerial advocacy campaign over Honolulu’s beaches. The Center’s banners are typically 100-feet long and display photographs of aborted fetuses. The Federal Aviation Administration (the “FAA”) regulations prohibit operation of civilian aircraft over densely populated areas, so prior to towing its banners, the Center obtained a Certificate of Authorization (“Certificate”) from the FAA authorizing aerial advertisement banner towing. However, the Certificate also contained a disclaimer that it “does not constitute a waiver of any State law or local ordinance.”

Upset that it could not tow banners over Honolulu, the Center filed suit seeking declaratory and injunctive relief to prevent enforcement of the Ordinance. The Center alleged that the Ordinance violated its right to free speech under the First Amendment and its right to Equal Protection under the Fourteenth Amendment, and that federal law preempts the Ordinance. The District Court denied the Center’s motion for preliminary injunction. The Center and Honolulu then filed cross-motions for summary judgment, and the Court granted summary judgment in favor of Honolulu. The Court rejected the preemption argument and held that the Ordinance did not violate the Center’s constitutional rights. The Center appealed.

Holding: The Court of Appeals held that Federal law does not preempt the Ordinance, nor does the Ordinance violate the First Amendment or the Equal Protection Clause of the Fourteenth Amendment. After reviewing the history, purpose, and physical characteristics of the airspace above the Honolulu beaches, the Court concluded that it is a nonpublic forum, and therefore the Ordinance did not violate the First Amendment. The Court found that use of the airspace for banner towing was relatively modern, the principal purpose of the airspace was not to promote the free exchange of ideas, and that the airspace is physically distinguishable from the beaches below,

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whether or not the beaches are a public forum. Additionally, the Court found that the Ordinance is viewpoint neutral as it prohibits aerial tow banners regardless of the views expressed. The Court pointed out that the identifying mark exception, which allowed an “identifying mark, trade name, trade insignia, or trademark on the exterior of an aircraft…if the displayed item is under the ownership or registration of the aircraft’s or the airborne object’s owner,” differentiates only as to the medium used for expression and not on the basis of any particular viewpoint. Moreover, the Court found that the Ordinance was reasonable as it is well established that regulation for purposes of preserving aesthetics and promoting safety falls within the legitimate and substantial interests of local governments. The Court found that the Ordinance fulfills several legitimate needs including preserving Hawaii’s natural beauty as an economic asset upon which its tourism economy relies, and minimizing traffic safety hazards for motorists and pedestrians.

Further, the Court found that the Ordinance does not foreclose a traditionally important medium of communication or leave the Center without a practical substitute because aerial banner towing does not have a unique ability to provide information about the identify of the speaker nor is it a common means of speaking or a traditionally important form of expression. The Court found that there need not be substitutes that are the cheapest, easiest and most far-reaching form of communication, only that there are practical substitutes, which the Court found there are. The Court also found that the Ordinance did not violate the Equal Protection Clause as the viability of an equal protection claim is contingent upon the existence of a public forum, which the Court found there was not.

The Court also rejected the Center’s argument that the entire field of tow banner regulation is occupied, via the FAA, by Congress, and further that the FAA Certificate impermissibly conflicts with the Ordinance. The Court cited Skysign Int’l, Inc. v. City and County of Honolulu, 276 F.3d 1109 (9th Cir.2002), upholding the Ordinance against a virtually identical preemption challenge, and stating that neither Congress nor the FAA has exercised authority to a level preempting the entire field.

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