• Land Use Attorney Capitola

NEW CEQA CASES: Greenhouse Gas Emissions, “Piecemealing” And Other Issues.

In Sierra Club v. County of San Diego, (2014) WL 6657169, the court held that the County violated CEQA by failing to implement measures to mitigate greenhouse gas (“GHG”) emissions that would occur as a result of the County’s 2011 General Plan Update.

The County adopted its General Plan Update based on a Program Environmental Impact Report (“PEIR”). The PEIR included Mitigation Measure CC-1.2, under which the County committed to preparing a climate action plan (“CAP”) with “more detailed greenhouse gas emissions reductions targets and deadlines” and “comprehensive and enforceable GHG emissions reduction measures that will achieve” specified quantities of GHG reductions by the year 2020.  However, the court held that the CAP that the County later adopted did not meet the requirements of Mitigation Measure CC-1.2.  It found that the County admitted that the CAP would not ensure the required reductions, that many of the emissions reduction measures were unfunded, that the County was not making meaningful efforts to implement or fund transit-related measures, and that the CAP had no deadlines. 

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CASE UPDATE: Court Affirms Reduced Attorneys’ Fees Award in CEQA Case Involving MND For Community Center..

In Save Our Uniquely Rural Community Environment v. County San Bernardino, (2015) 235 Cal.App.4th 1179, the trial court granted an environmental group’s petition for a writ of mandate concerning  a proposed community center and mosque, for which the county planning board had adopted a mitigated negative declaration (MND) and issued a conditional use permit (CUP), and the court ordered the MND and CUP be set aside solely for purposes of obtaining further CEQA review on the single issue of waste water treatment. 

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CASE UPDATE: California Supreme Court Clarifies “Unusual Circumstances” Exception To CEQA Exemptions In Case Involving Huge House Constructed On Steep Slope In Berkeley.

In Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, California Supreme Court held that the “unusual circumstances” exception to CEQA’s categorical exemptions literally requires unusual circumstances, and that agency decisions as to whether or not unusual circumstances exist are reviewed under the deferential substantial evidence standard.

In this case, the City of Berkeley approved a project to construct a 6,458 square foot house with an attached 3,394 square foot, 10-car garage on a wooded, steep slope in a residential neighborhood without an environmental impact report or negative declaration.  In so doing, the City found that the project was categorically exempt from CEQA under the “new, small structures” exemption and the “in-fill development” exemption.  The trial court affirmed the City’s approval.  The court of appeal then reversed the trial court and invalidated the City’s approval, relying on the “usual circumstances” exception, which provides:

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CASE UPDATE: California Supreme Court Upholds City Of San Jose’s Affordable Housing / Inclusionary Housing / Affordable Housing Ordinance.

In California Building Industry Association v. City of San Jose (2015), the California Supreme Court affirmed the court of appeal’s ruling and upheld the City of San Jose’s inclusionary housing ordinance.  In order to address state policies and goals intended to encourage more affordable housing units, hundreds of  California municipalities have adopted what are commonly referred to as “inclusionary zoning”,  “inclusionary housing” or “affordable housing” programs, which typically require or encourage developers to set aside a certain percentage of housing units in new or rehabilitated projects for low- and moderate-income residents.

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CASE UPDATE: Court Rules That Tiered Water Rates Must Be Based On Actual Usage and Costs Of Providing Services.

In Capistrano Taxpayers Assoc., Inc. v. City of San Juan Capistrano, (2015) 2015 WL 1798898, the court of appeal struck down a city water provider’s rate structure as violating Proposition 218.  Prop. 218, the Right to Vote on Taxes Act, was intended to limit the methods by which local governments exact revenue from taxpayers without their consent.  Among other things, Prop. 218 requires that fees and assessments imposed by local government agencies against property owners in order to pay for public services must be correlated with the actual, proportional costs of providing those services to a parcel.

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A Summary Of The Minor Subdivision Process

An effective way to add value to real property is to increase its development potential, and a good way to do that is to subdivide it so that a greater number of units can be constructed on it.

Legal Overview

Any division of a single legal parcel into two or more parcels is a “division of land” subject to the state Subdivision Map Act (“SMA”, Gov’t Code sections 66410 et seq.) and local regulation.

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CASE UPDATE: CEQA Did Not Require Supplemental EIR For New Amendments To San Jose International Airport Master Plan.

In Citizens Against Airport Pollution v. City of San Jose, (6th Dist. 2014) 173 Cal.Rptr.3d 794, the court affirmed the City of San Jose’s approval of the eighth addendum to the San Jose International Airport Master Plan EIR, adopted in 2007 (“Master Plan”), which was prepared Master Plan amendments that the City adopted in 2010. The amendments included changes to the size and location of cargo facilities, the replacement of air cargo with general aviation facilities, and the modification of two taxiways. The petitioners first argued that a new EIR was required because these changes constituted a new project, but the court rejected this argument.

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CASE UPDATES: Broker Disclosures; Reconciling Nonconforming Structures and Variance Rules; New Santa Cruz County Medical Cannabis Cultivation Ordinance


Coldwell Banker Residential Brokerage Company, Inc. v. Superior Court, (2014) 117 Cal.App.4th 158, was a real estate non-disclosure case.  After a house buyer and her minor child moved into their newly purchased house, they both developed asthma caused by toxic mold that was allegedly not disclosed by the seller’s broker, and they both sued the seller’s broker for personal injuries and property damages under multiple causes of action including fraud (nondisclosure/concealment), emotional distress and nuisance.

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CASE UPDATE: Court Allows Spot Zoning For Senior Housing Development Is Permissible.

In Foothill Communities v. County of Orange (4th Dist. 2014), 2014 WL 108975, the County of Orange approved a 153-unit senior housing development on 7 acres in the middle of a neighborhood zoned residential single-family by creating a new ‘senior residential housing land use’ zoning district and then rezoning the subject property to that designation.  The legal issue was whether this constituted illegal “spot zoning”.

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CASE UPDATE: First District Court of Appeal Affirms the Use of Off-Site Conservation Easements to Mitigate the Loss of Prime Farmland Under CEQA

In Masonite Corporation v. County of Mendocino, (1st Dist. 2013) 218 Cal.App.4th 230, the First District Court of Appeal struck down the County of Mendocino’s certification of an environmental impact report (“EIR”) prepared for a use permit for Granite Construction’s Kunzler Terrace Mines project, which will be a sand and gravel quarry on 65 acres of land north of Ukiah near the Russian River (“Project”). Forty-five out of 65 acres of the Project site was vineyard land that the California Department of Conservation had designated as “prime farmland,” which would be lost as a result of the Project.

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Miles J. Dolinger
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