Justia Zoning, Planning & Land Use Opinion Summaries

The Carmelita aggregate mine and processing plants, proposed for 1,500 acres at the base of the Sierra Nevada foothills near Sanger and Reedley, includes a reclamation plan for creating a usable postmining site. Fresno County prepared and certified an environmental impact report (EIR). The State Mining and Geology Board (SMGB) remanded. The county approved a revised reclamation plan. On second appeal, the SMGB affirmed. While the first SMGB appeal was pending, objectors sued, alleging abuse of discretion under the California Environmental Quality Act, Pub. Resources Code, 21000 (CEQA). The trial court denied the petition. The court of appeal affirmed, rejecting arguments that the matter was not ripe when the trial court ruled because SMGB had granted the first appeal and that the county approved the EIR while the reclamation plan was invalid. The court also rejected CEQA challenges that: the project description was inadequate; conclusions regarding water issues lacked substantial evidence; the county should have required acquisition of agricultural conservation easements to mitigate loss of farmland; the EIR’s discussion of potential air quality, hydrology and noise impacts were inadequate; the final EIR contained new information and erroneous conclusions; and no substantial evidence supported required findings for a conditional use permit. View "Friends of the Kings River v. County of Fresno" on Justia Law

After the San Diego Association of Governments (SANDAG) certified an environmental impact report (EIR) for its 2050 Regional Transportation Plan/Sustainable Communities Strategy (transportation plan), CREED-2. The Affordable Housing Coalition of San Diego filed a petition for writ of mandate challenging the EIR's adequacy under the California Environmental Quality Act (CEQA). Cleveland National Forest Foundation and the Center for Biological Diversity filed a similar petition, in which Sierra Club and the State of California later joined. The superior court granted the petitions in part, finding the EIR failed to carry out its role as an informational document because it did not analyze the inconsistency between the state's policy goals reflected in Executive Order S-3-05 and the transportation plan's greenhouse gas emissions impacts after 2020. The court also found the EIR failed to adequately address mitigation measures for the transportation plan's greenhouse gas emissions impacts. Given these findings, the court declined to decide any of the other challenges raised in the petitions. SANDAG appealed, arguing the EIR complied with CEQA in both respects. Cleveland National Forest Foundation and Sierra Club (collectively, Cleveland) cross-appealed, arguing the EIR further violated CEQA by failing to analyze a reasonable range of project alternatives, failing to adequately analyze and mitigate the transportation plan's air quality impacts, and understating the transportation plan's impacts on agricultural lands. The State separately cross-appealed, arguing the EIR further violated CEQA by failing to adequately analyze and mitigate the transportation plan's impacts from particulate matter pollution. After review, the Court of Appeal concluded the EIR failed to comply with CEQA in all identified respects. The Court modified the judgment to incorporate its decision on the cross-appeals and affirmed. View "Cleveland Nat. Forest v. San Diego Assn. of Gov." on Justia Law

The Sacramento Kings have played at the Sleep Train Arena since 1988. In January 2013, the team’s then owners entered into a tentative agreement to sell the Sacramento Kings to a group of investors in Seattle, Washington. Seeking to keep the team in Sacramento, the City of Sacramento partnered with Sacramento Basketball Holdings LLC to build a new entertainment and sports center in downtown Sacramento at the site of a shopping mall with declining occupancy rates. In May 2013, the Board of Governors for the National Basketball Association (NBA) rejected an application to sell the team and move it to Seattle, and approved the sale of the team to Sacramento Basketball Holdings. The NBA’s board of governors also reserved the right to acquire the Sacramento Kings and relocate the team to another city if a new arena in Sacramento did not open by 2017. To meet the NBA’s deadline, the City and Sacramento Basketball Holdings developed a schedule that targeted October 2016 as the opening date for the downtown arena. To facilitate timely completion of the project, the Legislature added section 21168.6.6 to the Public Resources Code, which modified (only for construction of the downtown arena in Sacramento) several deadlines for review of the project under the California Environmental Quality Act (CEQA) (sec. 21050 et seq.). Other than deadlines for review, section 21168.6.6 did not substantively modify CEQA as it applied to the downtown arena project. Adriana Saltonstall and 11 other individuals sued to challenge section 21168.6.6’s constitutionality as well as the project’s compliance with CEQA requirements. Saltonstall moved for a preliminary injunction on grounds of imminent harm to the public caused by the demolition of the shopping mall and construction of the downtown arena. The trial court denied the motion for a preliminary injunction. She appealed the denial of the preliminary injunction, arguing: (1) section 21168.6.6 represents an unconstitutional intrusion of the legislative branch on the core function of the courts; and (2) the preliminary injunction should have been granted because section 21168.6.6 “harms [the public] and the environment,” but not the respondents. The Court of Appeal rejected Saltonstall’s constitutional challenge on the merits because section 21168.6.6 did not materially impair a core function of the courts. Moreover, CEQA review did not implicate any constitutionally granted right. View "Saltonstall v. City of Sacramento" on Justia Law

The Department of Environmental Protection (Department), acting through its office of Long Island Sound Programs (Office), ordered Plaintiffs, Gail and Thomas Lane, to remove a boardwalk and dock from their property because they had been installed without the statutorily required permits. The Office then denied Plaintiffs’ application for a certificate of permission to retain and maintain the structures and to install a new boardwalk pursuant to Conn. Gen. Stat. 22a-363b(a)(2). The Department upheld the Office’s rulings. The trial court dismissed Plaintiffs’ administrative appeal. The Appellate Court affirmed. The Supreme Court affirmed, holding that the Appellate Court properly interpreted section 22a-363b(a) in concluding that the trial court properly dismissed Plaintiffs’ administrative appeal. View "Lane v. Comm’r of Envtl. Prot." on Justia Law

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