Justia Zoning, Planning & Land Use Opinion Summaries

San Francisco prevailed in a writ proceeding under the California Environmental Quality Act (Pub. Resources Code, 21000) brought by the Coalition for Adequate Review and Alliance for Comprehensive Planning. After securing judgment, the city filed a memorandum of costs totaling $64,144, largely for costs incurred in preparing a supplemental record of the proceedings. The trial court denied all costs, relying on the fact that the Coalition had elected to prepare the record itself, as allowed by CEQA’s record preparation statute and expressing concern that sizeable cost awards would have a chilling effect on lawsuits challenging important public projects. The court of appeals reversed in part and remanded, stating that neither rationale is a legally permissible basis for denying record preparation costs to the city. View "Coal. for Adequate Review v. City & Cnty of San Francisco" on Justia Law

Plaintiffs Elaine and Gerald Rominger challenged a mitigated negative declaration approved by defendant Colusa County with respect to a subdivision proposed by real party in interest Adams Group Inc. The trial court denied the Romingers’ petition based on the conclusion that, notwithstanding the county’s approval of a mitigated negative declaration, the county’s "action in approving the subdivision map was not a project for CEQA purposes and [thus] no review beyond the preliminary review stage was required." The Court of Appeal concluded the trial court erred in determining the proposed subdivision was not a CEQA project, even though the proposal did not include any specific plans for development. On independent review of the Romingers’ other complaints, however, the Court found merit in only one: the Romingers adequately showed there was substantial evidence in the record that the subdivision may have had a significant unmitigated impact on traffic at a particular intersection adjacent to the project site. Accordingly, on that basis only, the Court reversed and remanded for the preparation of an environmental impact report (EIR). View "Rominger v. County of Colusa" on Justia Law

This case concerned the City's approval of a residential infill development project in downtown Fresno to build 28 two-story townhouses. The trial court decided that the City violated certain procedural requirements of the California Environmental Quality Act (CEQA), Public Resources Code 21000 et seq., in approving the project, but applied the correct legal standards in determining the two houses at issue were not "historical resources" protected by CEQA. The court concluded that CEQA allows a local lead agency, such as the City, to delegate the authority to approve a mitigated negative declaration and a project to a nonelected decisionmaking body such as the Preservation Commission. In this case, the Fresno Municipal Code did not actually authorize the Preservation Commission to complete the environmental review required by CEQA and approve the mitigated negative declaration. Therefore, the Preservation Commission's approval of the mitigated negative declaration did not comply with CEQA. In regards to historical resources, the court confirmed the statutory analysis in Valley Advocates v. City of Fresno and concluded that the substantial evidence test, rather than the fair argument standard, applies to a lead agency's discretionary determination of whether a building or district is an historical resource for purposes of CEQA. Therefore, the trial court did not err when it applied the substantial evidence test to the City's determination that no historical resources were impacted by the project. Accordingly, the court affirmed the judgment of the district court. View "Citizens etc. L Street v. City of Fresno" on Justia Law

The Clean Air Act, 42 U.S.C. 7401, allows each state to craft a state implementation plan to control the levels of certain air pollutants. Most state plans include “Prevention of Significant Deterioration” (PSD) programs, to prevent backsliding in “attainment areas” that meet or exceed the Act’s air quality standards, while allowing some new sources of pollution. A PSD program prevents designated sources from propelling the region’s aggregate emissions over specified limits. The Act establishes these limits by setting a baseline and a cap on pollutants above that baseline. The Act grandfathers sources operational before 1975: the baseline incorporates their emissions, with post-1975 sources counting against the allowance. Title V of the Act requires each covered stationary source to have an operating permit. In 2002 Georgia-Pacific asked Wisconsin to renew the Title V permit for its pre-1975 paper mill. Meanwhile, Georgia-Pacific modified a paper machine at the plant. The application was unopposed and the modification permit issued in February 2004. In 2011 Wisconsin reissued the plant’s operating permit. Objectors claim that modifications to any part of a plant require all emissions from the plant, including pre-1975 emissions incorporated into the baseline, to count against the state’s allowance, so that the whole plant might need to close for lack of available allowance. The U.S. EPA declined to object, concluding that Wisconsin’s approach is consonant with its understanding of the statute. The Seventh Circuit denied a petition for review. EPA presented a reasonable interpretation of an ambiguous statutory provision. View "Clean Water Action Council of NE WI, Inc. v. Envtl. Prot. Agency" on Justia Law

The Surface Mining Control and Reclamation Act, 30 U.S.C. 1202(a) allows states to enact and administer regulatory programs consistent with federal standards, subject to federal approval. Kentucky’s Department for Natural Resources assumed responsibility for SMCRA implementation through its Division of Mine Permits, Ky. Rev. Stat. 350.028, .465(2). Its program has been approved by the U.S. Department of the Interior since 1982. A typical surface mining operation also requires permits under the Clean Water Act, 33 U.S.C. 1251: a 401 permit for “discharge into the navigable waters;” a 402 permit for “discharge of any pollutant, or combination of pollutants;” and a 404 permit for “discharge of dredged or fill material into the navigable waters at specified disposal sites.” A 404 permit is issued by the U.S. Army Corps of Engineers in compliance with EPA guidelines, 33 U.S.C. 1344(b)(1). Kentucky authorized a Perry County surface mining operation; the operator obtained 404 permit from the Corps, authorizing it to “mine through” and fill surface stream beds, which are already in a degraded state, requiring offset of the limited environmental effect by improving other streams in the watershed. Opponents argued that the National Environmental Policy Act required the Corps to consider the public health impacts related to surface mining in general, and that the Corps violated the CWA by using flawed analysis of the mitigation plan. The district court rejected the arguments. The Sixth Circuit affirmed.View "Kentuckians for the Commonwealth v. U.S. Army Corps of Eng'rs" on Justia Law

Petitioners challenged the Commission's approval of a proposal for the construction of a natural gas compressor station in the Town of Minisink, New York. Petitioners argued, among other things, that the Commission's approval of the project was arbitrary and capricious, particularly given the existence of a nearby alternative site (the Wagoner Alternative) they insist is better than the Minisink locale. The court concluded that the Commission's consideration of the Wagoner Alternative falls within the bounds of its discretion and the court had no basis to upset the Commission's application of its Section 7 of the Natural Gas Act, 15 U.S.C. 717-717z, authority on this point; the court was satisfied that the Commission properly considered cumulative impacts of the Minisink Project; the court reject petitioners' argument that the Minisink Project violates the siting guidelines; and the court rejected petitioners' claims of procedural errors. Accordingly, the court denied the petitions for review. View "Minisink Residents for Enviro., et al. v. FERC" on Justia Law

Twelve individuals and the Ferrisburgh Friends of Responsible Growth, Inc. appealed the Environmental Division’s affirming the grant of a conditional use zoning permit to Champlain Oil Company. The permit allowed Champlain Oil to construct and operate a gasoline and diesel station with a retail convenience store and a drive-through food facility, including parking lot and overhead canopies for the gas and diesel pumps. Appellants argued that the proposed uses for a convenience, retail and drive-in facility are explicitly prohibited by the Ferrisburgh zoning ordinance and would not be consistent with the town plan. Finding no reversible error, the Supreme Court affirmed the Environmental Division's decision.View "In re Champlain Oil Company Conditional Use Application" on Justia Law

The City and County of San Francisco approved the Parkmerced Development Project, which involves the long-term redevelopment of the privately owned, 3,221-unit residential rental complex on152 acres near Lake Merced, which were built as affordable housing. The Project contemplates demolition and, over 20-30 years, construction of a greater number of residential units, some affordable and some market-rate, and the addition of commercial and retail space, parks and open space, and transit facilities, with improved utilities. Objectors claimed that the Land Use Element of the San Francisco General Plan was inadequate for failing to include standards for population density and building intensity (Gov. Code, 6302, subds. (a), (b).) (2); that the project and the various approvals were inconsistent with the “priority policies” and other policies of the General Plan; that an environmental impact report (EIR) and findings underlying the City’s approval of the project were inadequate under standards established by the California Environmental Quality Act (CEQA) (Pub. Resources Code, 21000); and violation of its due process rights. The trial court rejected the challenges. The court of appeal affirmed. View "San Francisco Tomorrow v. City & County of San Francisco" on Justia Law

Wal-Mart Stores, Inc. sought to expand its store in the City of Sonora. The City Council postponed its vote on the project while a voter-sponsored initiative was circulated, which proposed to adopt a plan for the contemplated expansion. The Council subsequently adopted the ordinance. The Tuoloumne Jobs & Small Business Alliance sought a writ of mandate based on four causes of action, the first of which asserted that the Council violated the California Environmental Quality Act (CEQA) by adopting the ordinance without first conducting a complete environmental review. The Court of Appeals granted the writ as to the first cause of action, concluding that when a land use ordinance is proposed in a voter initiative petition, full CEQA review is required if the city adopts the ordinance rather than submitting it to an election. The Supreme Court reversed, holding that CEQA review is not required before direct adoption of an initiative, just as it is not required before voters adopt an initiative at an election. View "Tuolumne Jobs & Small Bus. Alliance v. Superior Court" on Justia Law

CODE appealed the superior court's denial of a petition for writ of mandamus to set aside an environmental impact report (EIR) certification and project approval on the grounds that Mitigation Measure 4.8-8 was ineffective and respondents failed to comply with the California Environmental Quality Act (CEQA), Pub. Resources Code, 21000 et seq. The EIR concerned North Sky River and Jawbone's application to rezone and for a conditional use permit for mobile concrete batch plants in order to build and operate a wind farm in the Tehachcapi Wind Resource Area. The court concluded: (1) as a matter of law, the County's EIR described a legally feasible mitigation measure; (2) as a matter of law, the County was not required to respond to late comments; (3) substantial evidence supported the Board's conclusion that MM 4.8-8 mitigated significant impacts on aviation safety; and (4) the Board was not required to consider either CODE's proffered mitigation measure or the EIR's "environmentally superior alternative." Accordingly, the court affirmed the superior court's order denying CODE's petition for a writ of mandamus. View "Citizens Opposing A Dangerous Environ. v. Co. of Kern" on Justia Law