California Land Use & Development Law Report
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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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April 4, 2018

EPA Delays Applicability of Clean Water Rule While Challenges to Rule Proceed in District Courts

 As reported in our prior Update, in a decision issued on January 22, the U.S. Supreme Court ruled in National Association of Manufacturers v. Department of Defense, 138 S. Ct. View blog post
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April 2, 2018

City’s Bifurcated Procedure For Appealing Approval of Entitlements Separately From CEQA Determinations Upheld

 The Fourth District Court of Appeal upheld a mitigated negative declaration where the project opponent correctly appealed the approval of entitlements but failed to properly appeal the CEQA determination under the City of San Diego's bifurcated appeals process. Clews Land & Livestock, LLC v. City of San Diego, 19 Cal. App. View blog post
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March 30, 2018

Air Resources Board’s Regulatory Relief For Small Truck Fleets Violated CEQA

 A court of appeal has held that the California Air Resources Board violated CEQA when it issued a "regulatory advisory" notifying small trucking operations that they need not meet ARB's regulatory deadline for retrofitting their truck engines, and that the regulation would soon be relaxed. John R. Lawson Rock & Oil, Inc. v. State Air Resources Board, 5th Dist. Case No. F074003 (Jan. View blog post
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March 28, 2018

Attorneys’ Fees Can Be Awarded to CEQA Litigants Hoping to Preserve Their Home Values

 Successful petitioners under CEQA who are motivated to file suit, in part, by their private financial interests are not necessarily ineligible for an award of attorneys' fees under the public interest fee statute. Heron Bay Homeowners Association v. City of San Leandro, 19 Cal. App. View blog post
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March 28, 2018

Court Upholds Use of Small Facilities Exemption for Microcell DAS Project

 In Aptos Residents Association v. County of Santa Cruz, the court of appeal upheld Santa Cruz County's use of a CEQA exemption to approve a distributed antenna system (often referred to as a DAS) for the provision of cell service. (6th Dist., No. H042854, Feb. View blog post
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March 27, 2018

EIR For Railyard Did Not Adequately Analyze Air Quality Impacts

 Rejecting most challenges to the environmental impact report for a new railyard near the Port of Los Angeles, a court of appeal nevertheless held that the EIR must be decertified because it did not adequately address air quality impacts in the vicinity of the new yard. City of Long Beach v. City of Los Angeles, 19 Cal. App. 5th 465 (1st Dist. View blog post
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March 27, 2018

Size Limit on Retail Tenants Not Likely to Cause Urban Decay

 A general plan policy that limited the size of retail tenants in certain areas of a city was not likely to cause urban decay and was not inconsistent with other general plan policies encouraging infill development, the court of appeal held in Visalia Retail, LP v. City of Visalia, 20 Cal. App. View blog post
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January 5, 2018 CEQA

CEQA YEAR IN REVIEW 2017

A Summary of Published Appellate Opinions Under the California Environmental Quality Act In 2017, the California Supreme Court issued two decisions involving highly controversial questions of first impression.  In the closely-watched Cleveland National Forest Foundation case, the court reversed the court of appeal's ruling that the EIR for SANDAG's region

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January 4, 2018

Court Defers to City’s Interpretation of the Building Code

 A city's interpretation of the building code is entitled to significant deference in light of the city's expertise regarding land-use determinations. Harrington v. City of Davis, 16 Cal. App. 5th 420 (2017). The City of Davis approved a conditional use permit for a property owner to use a home in a residential neighborhood as professional office space for three therapists. View blog post
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January 3, 2018

Department of Interior Declares That Only Deliberate Acts Constitute Take of Migratory Birds

 The U.S. Department of the Interior's Office of the Solicitor has issued Memorandum M-37050, dated December 22, 2017, which concludes that the Migratory Bird Treaty Act's prohibition on the "taking" or "killing" of migratory birds applies only to deliberate acts, such as hunting, intended to take a migratory bird. View blog post
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January 1, 2018

Voter-Approved Initiative to Limit Large Developments and Chain Stores Exceeded Initiative Power

 In a case that illustrates the limits of use of voter-approved initiatives to limit development, the court of appeal invalidated an initiative passed by voters in the City of Malibu that sought to limit large developments and chain stores. The Park at Cross Creek v. City of Malibu, 12 Cal.App.5th 1196 (2017). The initiative at issue, Measure R, consisted of two components. View blog post
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December 30, 2017

“Urban Decay” Not Reasonably Foreseeable Consequence of Relocating Courts from Historic Downtown Courthouse

 Citing the likelihood of repurposing Placerville's historic downtown courthouse and evidence nearby businesses were not dependent on it, the First District Court of Appeal held that "urban decay" was not a reasonably foreseeable consequence of moving judicial activities from downtown to a new building in the outskirts of the city. Placerville Historic Preservation League v. View blog post
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December 29, 2017

Categorical Exemptions for Telegraph Hill Residential Project Upheld

 In Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261, the First District Court of Appeal rejected a series of CEQA challenges to San Francisco's approval of a conditional use permit for the renovation of a historic cottage and the construction of a three-unit residential building. View blog post
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December 29, 2017

Court Upholds Refinery EIR’s 2007 Baseline and Reliance on Cap-And-Trade for Climate Change Analysis

 In a precedent-setting decision, the Fifth District Court of Appeal has upheld two key aspects of the 2014 environmental impact report for a refinery expansion project. Association of Irritated Residents v. Kern County Board of Supervisors No. F073892 (5th Dist., Nov. 21, 2017). View blog post
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December 26, 2017

Certified Regulatory Programs Must Comply with CEQA's Policies and Substantive Standards

 A certified regulatory program, which is exempt from some of CEQA's requirements, must still comply with CEQA's core policies and standards, which include considering feasible alternatives and cumulative impacts and recirculating environmental review documents in certain circumstances, the court of appeal held in Pesticide Action Network North America v. View blog post
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