An exemption to the California Environmental Quality Act for construction of a sea wall below two houses has been upheld by the Fourth District Court of Appeal. The court ruled that the potential collapse of a bluff could threaten public safety and qualified for an emergency exemption under CEQA.
The City of Solana Beach, in San Diego County, was the locale for the case. In early 2000, the ocean began eating into a bluff between two sea walls. In February, a 10-foot overhang north of the site collapsed, fracturing the sandstone bluff. Over the following several months, the ocean created a 12-foot deep notch at the base of the bluff.
In January 2000, the owners of two houses on the top of the bluff filed an application for a permit to fill the notch. On February 29, 2000, the Solana Beach Planning Department issued a director's use permit with conditions. In June, however, the homeowners requested a permit modification to allow them to construct a steel-reinforced wall. The city determined a steel wall would need a special use permit. As permit processing continued, the homeowners requested an emergency exemption to CEQA review. On December 19, the City Council approved the special use permit based on an emergency exemption to CEQA.
The group CalBeach Advocates sued, arguing that the project did not qualify for an exemption. San Diego County Superior Court Judge Judith McConnell (since elevated to the Fourth District bench) granted summary judgment for the city. CalBeach appealed, but a unanimous three-judge panel of the Fourth District, Division One, upheld the ruling.
CalBeach contended that beach erosion was an ongoing condition, and not a sudden, unexpected occurrence. Even collapse of the bluff below the two homes would not be unexpected. CEQA limits the emergency exemption to occurrences involving clear and imminent danger. There was no need for immediate action, CalBeach argued. The group pointed to the length of time between the bluff fracture in February, and the approval of an emergency exemption in December.
"We agree the failure of the bluff below Real Parties' homes is not unexpected," Justice Terry O'Rourke wrote for the court. "However, the anticipation of a collapse does not prevent it from being an emergency. [Public Resources Code] Section 21080, subdivision (b)(4) exempts not only projects that mitigate the effects of an emergency, but also projects that prevent emergencies."
The court pointed to two reports from civil engineers in late 2000 that said the bluff collapse was imminent, probably within a few weeks. "Real parties' residences are situated a mere eight feet from the edge of the bluff. For that reason, any collapse of the bluff would place both properties in danger," Justice O'Rourke wrote. "Further, the bluff collapse could threaten the safety of members of the public if it occurred when members of the public were near the bluff."
The court also rejected CalBeach's argument that Solana Beach's CEQA findings were inadequate. Public Resources Code ยง 21168.5 governed the decision, and that section does not require any findings, the court held.
The Case:
CalBeach Advocates v. City of Solana Beach, No. D038885, 02 C.D.O.S. 10976, 2002 DJDAR 12731. Filed October 9, 2002. Ordered published November 6, 2002.
The Lawyers:
For CalBeach: Donald Wayne Brechtel, Worden, Williams, Richmond, Brechtel & Kilpatrick, (858) 755-6604.
For Solana Beach: James Moose, Remy, Thomas & Moose, (916) 443-2745.
A city resolution restricting parking on certain residential streets to residents with parking permits was categorically exempt from environmental review, the Second District Court of Appeal has ruled.
A superior court's decision that invalidated several changes the state made to the California Environmental Quality Act Guidelines in 1998 has been upheld almost entirely by a state appellate court.
A state appellate court has halted a project at the Port of Los Angeles because the city never studied the development's environmental impacts. The court rejected the city's arguments that the project was covered by a 1997 environmental impact report and a 2000 subsequent EIR because the project had not been contemplated in 1997, and there was no evidence the 2000 study considered the project.
In a case that touched on redevelopment law, the California Environmental Quality Act and general plan compatibility, an appellate court has upheld San Francisco's handling of a project on the site of the historic Emporium department store.
The City of Los Angeles was correct to treat as one project a builder's various proposals for 21 new houses on existing parcels on two streets, the Second District Court of Appeal has ruled. The court rejected the builder's contention that the city could not demand an environmental impact report on the 21 houses, five of which have already been built.
Opponents of a proposed recycling center were too late in filing a lawsuit regarding a city's failure to prepare an environmental study on the city's sale of land to the recycling company, the Fourth District Court of Appeal has ruled.
The owner of appropriative water rights to a creek cannot exercise those rights in violation of state regulations intended to protect fish and wildlife, the Third District Court of Appeal has decided.
When a public agency acquires a property via eminent domain, only a trial court judge -- and not a jury -- can decide whether a business should receive compensation for loss of goodwill, a state appellate court has ruled.
The California Coastal Commission's decision to allow Malibu property owners who are building new houses to exchange existing public view corridors on their property for dedication of an off-site public access to the beach has been upheld by the Second District Court of Appeal.
The City of Rancho Palos Verdes does have the authority to regulate placement of radio antennas, but the city cannot deny a use permit for an antenna solely because the antenna would be used for commercial purposes, the Second District Court of Appeal has ruled.
A doughnut shop owner who remained in his place of business for six years after the city acquired the property for redevelopment still qualified for relocation benefits as a "displaced person," the Second District Court of Appeal has ruled.
A school district may charge only limited mitigation fees on a redevelopment project in which new houses replace demolished residential units, the Fourth District Court of Appeal has concluded. The court held that the Tustin Unified School District could levy fees only on the difference in square footage between old apartments and the new houses that replaced the apartments.