CP&DR News Summary, September 17, 2014: non-conference news, including two CEQA cases

Martha Bridegam on
Sep 17, 2014

While CP&DR and lots of our readers were at the APA California conference, land use news continued to appear in the outside world. A few highlights are summarized here. (Coastal Commission coverage to follow in a few days.)

Keep watching our Web site as we unpack and follow up more news from the conference, and if you haven't seen our livetweeting stream from some of the September 14 and 15 panels, it's still available at https://twitter.com/Cal_plan.

Rominger: tentative subdivision maps are CEQA business

The Third District Court of Appeal held in Rominger v. County of Colusa that a proposed subdivision map was a "project" for CEQA purposes where it concerned tentative subdivision maps -- a topic that the Court said was defined in Sec. 21080 of the Public Resources Code as categorically CEQA subject matter.

Although the map had been the subject of a mitigated negative declaration certified by the county, the trial court was willing to find it exempt from CEQA on the grounds that it did not count as a "project". The appellate court rejected several of the petitioners' underlying allegations, in an extended point-by-point analysis that Art Coon's developer-side law blog has already identified as worth a careful read for practitioners. The Third District found merit only in one of the petitioners' allegations, over traffic impacts -- but it still remanded the matter for preparation of an EIR. The case is at http://www.courts.ca.gov/opinions/documents/C073815.PDF.

Unsuccessful petitioners on SF's Market/Octavia plan stuck with record preparation bill

In Coalition for Adequate Review v. City and County of San Francisco, the First District Court of Appeal judged a record costs dispute stemming from an unsuccessful CEQA challenge to the Market and Octavia area planning process in San Francisco. The underlying plan concerned a downtown area that was made more attractive  to developers by removal of the freeway viaduct that formerly crossed Market Street west of Civic Center.

The city and petitioners disputed the preparation of the administrative record: the petitioners, who elected to prepare the record, claimed their access to city documents to prepare the record was hindered, and then that the city drove up costs by insisting on supplementing the record with thousands of additional pages.

The trial court rejected the petition for writ of mandate, then also rejected a motion in which the city sought more than $64,000 in costs for its work preparing the supplement to the record.

On appeal, Justice Kathleen Banke wrote for a panel of the First District Court of Appeal that the city could in fact claim the cost of preparing the supplemental record. It rejected petitioners' argument that a large fee bill would have a chilling effect on future petitioners' willingness to invoke their rights.

Banke found it important that the city did not prepare the supplement unilaterally, but instead first obtained a local judge's agreement that the supplemental documents were necessary for a complete record. On the other hand, Banke wrote that under the heading of paralegal time, which formed the bulk of the city's fee bill, the city could only claim time spent actually preparing the record and not time spent reviewing it "for completeness."

The case is at http://www.courts.ca.gov/opinions/documents/A135512.PDF. It follows a prior unpublished 2013 ruling, at http://www.courts.ca.gov/opinions/nonpub/A131487.PDF, that addressed more of the underlying issues. For the Market and Octavia Area Plan that was disputed see http://www.sf-planning.org/index.aspx?page=1713.

Also in the outside world:

  • As you'll have seen, Governor Jerry Brown signed the groundwater legislation. For Sacramento Bee coverage see http://bit.ly/XdAZ6S. A news feature in National Geographic, just published this morning, welcomes the new requirements but notes their effect is to start planning processes that won't actually restrict groundwater pumping for several years. See http://bit.ly/1pjFC61.
  • Governor Brown also signed a string of measures on Monday, September 15 that included SB 1353 on extension of Williamson Act contracts. See http://gov.ca.gov/news.php?id=18700 for the list. He signed a further group of bills September 16: http://gov.ca.gov/news.php?id=18702
  • An audit alleged misuse of housing bond funds by the state Department of Housing and Community Development. See http://lat.ms/1ARMfTx for an LA Times report on the audit and https://www.auditor.ca.gov/reports/summary/2014-037 for the audit itself.
  • The LA Times reported Los Angeles began a hotel tax enforcement campaign against AirBnB hosts: http://lat.ms/1qg1lC8
  • Bloomberg reported the California Oil Marketers' Association was asking State Attorney General Kamala Harris to investigate the legality of the state cap-and-trade program's fuels component: http://bloom.bg/1u09r3h.
  • The "Six Californias" measure failed to qualify for the California ballot: http://bit.ly/1Bz6fN1