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California Land Use & Development Law Report

California Land Use & Development Law Report offers insights into legal issues relating to development and use of land and federal, state and local permitting and approval processes.

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December 18, 2020

Fish and Wildlife Service Adopts New Regulation for Critical Habitat Exclusions

The U.S. Fish & Wildlife Service adopted a final regulation on December 18, 2020, to establish a process and the criteria for excluding areas from critical habitat designations under the Endangered Species Act.

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December 15, 2020

City’s Rent Ordinance Disclosure Requirements Did Not Violate Fourth Amendment

The Ninth Circuit rejected a Fourth Amendment challenge to the City of San José's Apartment Rent Ordinance, ruling that the plaintiff landlords had failed adequately to allege a reasonable expectation of privacy in the business records at issue.

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December 11, 2020

Law Restricting Judicial Review of Thermal Power Plant Licensing Decisions Ruled Unconstitutional

The First District Court of Appeal held that Public Resources Code section 22531 unconstitutionally restricted judicial review of licensing decisions by the Energy Resources Conservation and Development Commission regarding thermal power plants over 50 megawatts.

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December 7, 2020

Environmental Impact Statement Required Due to Conflicting Evidence About Project’s Effects

An agency must prepare an environmental impact statement when it fails to address expert scientific evidence that undermines its conclusions about a project's environmental effects. An agency also must prepare an EIS when there are substantial questions about whether a project will have a cumulatively significant impact. Bark v. U.S. Forest Service, 958 F.3d 865 (9th Cir.

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December 4, 2020

Plaintiff Lacked Standing to Sue Coastal Commissioners for Failing to Disclose Ex Parte Communications

A court of appeal held that a plaintiff did not have public interest standing to sue Coastal Commissioners for violating disclosure obligations concerning ex parte communications because the lawsuit was not brought as a mandamus action.

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December 3, 2020

Completion of Construction Did Not Render Suit for Violation of Public Bidding Laws Moot

A claim that a contract for construction of a school violated public bidding requirements did not become moot after construction was completed because effective relief — in the form of disgorgement of public funds paid to the contractor — was still available in plaintiff's taxpayer action.

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December 1, 2020

Waterfront Development Project Was Vested Against Later Voter Initiative By Approved Vesting Tentative Map Notwithstanding Project’s Location Within Coastal Zone.

The court of appeal held that a vesting tentative map covering property within the Coastal Zone gave the developer the vested right to proceed with the project notwithstanding subsequent changes in local laws. While the project's location in the Coastal Zone rendered it subject to Coastal Commission jurisdiction, this did not impair the enforceability of vested rights against the City.

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November 30, 2020

Fifth District Holds Defects in EIR’s Air Quality Impact Analysis Require Decertification of Entire EIR

On remand from the California Supreme Court's decision in Sierra Club v. County of Fresno, 6 Cal.5th 502 (2018) ("Friant Ranch I"), a court of appeal has held that CEQA requires full decertification - not partial decertification - of an EIR that has been adjudged inadequate in any respect.

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November 30, 2020

Sacramento Superior Court Rules That Insects Are Not Eligible for Listing Under the California Endangered Species Act

In a widely watched case, the Sacramento Superior Court court ruled that insects are not eligible for listing under the California Endangered Species Act.

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November 24, 2020

Anti-SLAPP Motion May Not Be Based on Speech Activities Merely Incidental to Asserted Claims

An anti-SLAPP motion was properly denied because the claims for damages arose from breach of contract and tort actions, not from any protected First Amendment activity. Oakland Bulk and Oversized Terminal, LLC v City of Oakland, 54 Cal.App.5th 738 (2020). This case arose from an ongoing dispute between the City of Oakland and Oakland Bulk and Oversized Terminal, LLC (OBOT) regardin

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November 24, 2020

School District May Assess Fees Based on General Type of Development and Need Not Consider Subtypes

A school district may impose reasonable school impact fees based on the general type of development, regardless of whether the specific subtype of development will or will not generate new students.

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November 20, 2020

Greenhouse Gas Mitigation Measure Allowing Purchase of Offset Credits Fails to Comply With CEQA

While a number of court decisions have considered how CEQA lead agencies should assess the significance of a project's greenhouse gas emissions, few have examined mitigation measures for those impacts. In Golden Door Properties, LLC v. County of San Diego, 50 Cal. App.

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November 10, 2020

Completion of Construction Rendered CEQA Challenge Moot

The Third District Court of Appeal held that CEQA and permitting challenges to an expansion project were moot because defendants had completed construction and did not build the project in violation of any court orders or in bad faith. Parkford Owners for a Better Community v.

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November 9, 2020

Landowner’s Positive Efforts to Deter Trespassers Defeated Implied Public Dedication Claim

A private landowner prevailed over a community association's efforts to obtain a public recreational easement over trails because substantial evidence showed the landowner took bona fide steps to deter unauthorized users on the trails.

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October 25, 2020

Consideration of Cumulative Impacts Can Be Deferred to a Later EIS

A recent Ninth Circuit decision offers guidance on evaluating connected actions and cumulative impacts under NEPA. The court held that an agency can defer consideration of an action's cumulative impacts in an EIS when the agency makes clear that it intends to evaluate the cumulative impacts in a later EIS.