• Land Use Attorney Capitola


Railroad Trestle/Historical Resource.  In Friends of the Willow Glen Trestle v. City of San Jose, (6th Dist. 2016) 2 Cal.App.5th 457, petitioners challenged the City of San Jose’s decision to not to prepare a full environmental impact report (EIR) for a project to replace an old wooden trestle with a new steel bridge.  The trestle is a wooden railroad bridge that was built in 1922 as part of a “spur line” to provide “rail freight access” to “canning districts” near downtown San Jose.  The trial court struck down the City’s approval of the project, holding that petitioners had demonstrated that there was a “fair argument” that the project would have significant environmental impacts (thereby requiring an EIR), because there was a fair argument that the bridge was a historical resource.  However, the appellate court reversed, holding that the more deferential “substantial evidence” standard of judicial review applied to the City’s determination that the bridge was not a historical resource.

Truck-to-Rail Facility/Statute of Limitations.  In Communities for a Better Environment v. Bay Area Air Quality Management District, (2016) 1 Cal.App.5th 715, public interest groups challenged BAAQMD’s determination that its approval of a truck-to-rail facility to transload crude oil instead of ethanol in the City of Richmond was “ministerial” and exempt from CEQA.  The trial court dismissed the petition, holding that the lawsuit was filed after CEQA’s 180-day time limit.

On appeal, petitioners argued that the time to file the lawsuit was extended under the “discovery rule.”  Generally, the discovery rule “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action….Thus, in actions where the rule applies, the limitations period does not accrue until the aggrieved party has notice,” either actual or constructive, “of the facts constituting the injury.”  The court of appeal held that the discovery rule does not apply in CEQA cases because one of the express purposes of CEQA is to ensure that lawsuits are promptly filed and diligently prosecuted.


Air Quality Thresholds of Significance.  In California Building Industry Association v. Bay Area Air Quality Management District, (2016) 2 Cal.App.5th 485, petitioner challenged BAAQMD’s adoption of new “thresholds of significance” for certain air pollutants, adopted in 2010 in response to new state laws addressing greenhouse gas emissions.  The District also adopted new CEQA Air Quality Guidelines, which include the thresholds and suggest methods for mitigating impacts found to be significant.  Under CEQA, an EIR must be prepared if there is a fair argument that a project may have a significant effect on the environment.  CEQA provides that regulatory agencies may adopt standardized thresholds of significance to apply to various classes of projects categorically.  On remand from the California Supreme Court, the appellate court held that:

The District’s thresholds of significance provided an appropriate measure of existing air pollution for district’s voluntary evaluation of existing conditions’ effect upon future occupants;

  • The District’s thresholds of significance provided an appropriate measure of the effect of a proposed project’s own emissions on the project’s future occupants or users;
  • The District’s thresholds of significance provided an appropriate measure of existing conditions’ effect upon future users of school construction projects;
  • The District’s thresholds of significance provided an appropriate measure of existing conditions’ effect upon future users of housing projects; but
  • The District could not require routine use of thresholds of significance to evaluate existing conditions’ effect upon projects’ future occupants.


Walmart Store/Energy Efficiency.  In Spring Valley Lake Assoc. v. City of Victorville (2016) 248 Cal.App.4th 91, the challenged project was a 215,000-square foot commercial retail development with a large Walmart.  The court held that:

  • responses to comments on the EIR failed to support the EIR’s conclusion that the shopping center construction project complied with the general plan requirement of on-site electricity generation, if feasible. Walmart simply concluded that the cost of solar panels (and the return on investment), was unknown and uncertain because the availability of future tax credits and incentives was unknown and uncertain, and the court held that the EIR failed to establish that on-site electrical generation was totally infeasible.
  • the EIR failed to support its conclusion that the project complied with the general plan’s energy efficiency standard;
  • the revision of the EIR’s biological resources impacts analysis constituted significant new information requiring recirculation of the EIR;
  • the revision of the EIR’s hydrology and water quality impacts analysis constituted significant new information requiring recirculation of the EIR; and
  • Government Code section 66474 (part of the Subdivision Map Act), requires public agencies to make affirmative findings in order to approve a tentative map or parcel map, despite the statute’s phrasing that required denial if the agency makes certain findings.


Costco Store/Energy Impacts.  In Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.App.4th 256, the challenged project was the construction of a new Costco retail store and gas station.  The court held that:

  • The EIR inadequately described and discussed the energy impacts of the project; and
  • The City’s subsequent approval of an “addendum” to the EIR did not cure the problem because the original EIR was not properly certified (because it was inadequate). The court held that the new energy impacts analysis contained in the addendum must be incorporated into the EIR and then recirculated for public comment.


Dollar Store/Urban Decay.  In Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, the challenged project was a 9,100 square foot Dollar Store with parking lot and landscaping improvements, rejecting plaintiff’s urban decay arguments.  The court of appeal reversed the trial court judgment and upheld the County’s approval of the project based on a negative declaration (as opposed to an EIR).  It held that:

  • the record lacked substantial evidence to support a fair argument that the project had potential to cause urban decay or other negative economic impacts that will cause negative environmental impacts, and thus, the County did not improperly adopt the negative declaration;
  • CEQA’s “fair argument” standard of review did not apply to plaintiff’s claim that the project was inconsistent with the County’s community plan; the correct standard of review was “abuse of discretion”; and
  • The project was not inconsistent with the County’s community plan.


©2016 Miles J. Dolinger.  This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship.

Miles Dolinger

Miles Dolinger

Miles Dolinger epresents individual, business and public agency clients in a wide range of real estate, land use, and public law matters (transactional and litigation). His office is currently location in Capitola, CA and serves clients in Santa Cruz, Monterey, San Benito and Santa Clara Counties.
Miles Dolinger

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Miles J. Dolinger
Attorney at Law

314 Capitola Avenue Capitola, CA 95010
Phone: (831) 477-9193
FAX: (831) 477-9196

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