Project Siting and Approval

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

By Christopher W. Garrett, Daniel P. Brunton, James A. Erselius, and Robert C. Hull

In an unpublished opinion issued May 31, 2018, Save Adelaida v. County of San Luis Obispo, Case No. B279285, the California Court of Appeal partially affirmed the trial court’s decision and held that an environmental impact report (EIR) was required for real party in interest Willow Creek Newco, LLC’s (Willow Creek) application for a minor use permit and that the EIR must analyze wastewater. In summary, the court determined:

  • A low threshold for requiring an EIR exists when a fair argument can be made that a project may have a significant environmental impact, even when contrary evidence exists.
  • An EIR is necessary when evidence regarding a project’s impact contradicts the contents of a mitigated negative declaration (MND).

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

By Lucas I. Quass, Peter J. Gutierrez, and Roopika Subramanian

In a partially published opinion issued September 18, 2018, Atwell v. City of Rohnert Park, Case No. SCV256891, the California Court of Appeal affirmed the trial court’s judgment that the petition for writ of mandate challenging the City of Rohnert Park’s (City’s) approval of a Walmart expansion project (the Project) was barred by res judicata because a prior petition challenging City’s initial approval raised the same claim of inconsistency with City’s General Plan. In summary, the court held:

  • In determining whether two challenges constitute the same cause of action under the doctrine of res judicata, if a subsequent claim is based on a project proposal that has not changed since the prior action, then a city’s approval will only raise a new issue or injury if the city included new or revised conditions or measures that are at issue in the subsequent petition.

In 2015, Petitioner Nancy Atwell (Petitioner) filed a petition for writ of mandate seeking an order to vacate City’s project approvals alleging inconsistency with the General Plan. After a briefing on the merits was complete, City filed a motion for judgment on the pleadings, asserting that Petitioner’s claims were barred by the doctrine of res judicata. The trial court concluded that the petition was barred by res judicata and the statute of limitations, and that substantial evidence supported the City Council’s determination that the Project complied with the General Plan.

By Christopher W. Garrett, Daniel P. Brunton, Jennifer K. Roy and Derek Galey

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

In an unpublished opinion issued September 14, 2018, Inland Oversight Comm. v. City of San Bernardino, Case No. E064836, the California Court of Appeal affirmed the trial court’s decision dismissing the Inland Oversight Committee (IOC), CREED-21, and Highland Hills Homeowners Association’s (HOA’s) (collectively, Petitioners’) appeal challenging the City of San Bernardino’s (City’s) approval of real party in interest First American Title Insurance Company’s (Developer’s) changes to a proposed development. In summary, the court determined:

  • In the CEQA context, the doctrine of res judicata applies if two actions involve the same episode of purported noncompliance.
  • Adequacy of representation for privity purposes is measured by inference, in other words, examining whether the party in the suit which is asserted to have a preclusive effect had the same interest as the party to be precluded, and whether that party had a strong motive to assert that interest.
  • The Water Code does not require a water supply assessment if a proposed development is not subject to CEQA review.

The report supports the efforts of the EU’s Seventh Environment Action Programme.

By Alexander Wilhelm

According to a report prepared by the Joint Research Centre (JRC) — the European Commission’s science and knowledge service — countries across Europe are making progress on tackling soil contamination. The report[i] states that the management of contaminated sites in Europe has improved substantially. The survey prepared by the JCR scientists included 39 countries, of which 25 are EU Member States. Within the EU there are an estimated 2.8 million sites where artificial surface indicates that polluting activities have occurred in the past. According to national and regional inventories of countries that replied to the report’s questionnaire, more than 650,000 sites are registered where polluting activities took or are taking place. The number of remediated sites or sites under aftercare measures has increased from 57,000 to 65,500 in the last five years. Although these inventories are more accurate than ever before, investigations of more than 170,000 sites are still pending.

Soil contamination means reduced soil quality because harmful substances resulting from human activity are present. In general, such contamination violates private or public interests, and can even harm human health or the environment. According to the report, mineral oils and heavy metals are the most frequent contaminants. The excavation and the off-site disposal of contaminated plots are the most frequently used remediation techniques — also known as “dig-and-dump.” With the help of the provided data, JCR scientists have revealed that an average of €4.3 billion is spent to tackle soil contamination in the surveyed countries, of which more than 42% is taken from public funds. According to the report, this is due to the divergent application of the “polluter-pays” principle, which is applicable to historical contamination only in a few countries. Those differences in the legal treatment of historical contamination should be assessed carefully not only by the current owner, but also by any prospective buyer.

The proposed initiative will allow the provision of clean energy on a global scale by 2050.

By Paul A. Davies and R. Andrew Westgate

The Global Energy Interconnection (GEI) initiative, originally developed by Liu Zhenya, the chairman of the Chinese State Grid Corporation, is dedicated to promoting global energy interconnections in a sustainable manner.

The GEI is proposed to take the form of a backbone grid, first throughout Asia and then expanding globally. The first phase would consist of six ultra-high voltage grids that span the Asian continent, which GEI estimates will require a US$38 trillion investment.[1]

The GEI is part of the broader Belt and Road Initiative (BRI). The BRI is a Chinese state-backed program that intends to boost trade and economic growth across Asia through the development of infrastructure projects. China Development Bank, China’s primary policy-based lending institution, has already granted US$160 billion in loans to countries involved in the BRI process.

Chinese investors continue to build knowledge of the wind sector through European investment.

By Paul A. Davies and R. Andrew Westgate

China has traditionally focused more on developing coal and hydroelectric power, which provide relatively constant output, instead of wind and solar, which depend on whether conditions. However, recently, government-owned power producers have begun making significant investments in large wind projects in Europe, indicating a potential shift in the breadth of China’s commitment to an energy policy that is both global and renewable.

In fact, a recent Institute for Energy Economics and Financial Analysis (IEFA) report has shown that China now invests more in European wind projects than in Australian projects, which in recent years had received substantial amounts of money from China. Notably, Chinese private and state sectors invested US$6.8 billion in European wind projects from 2011 to 2017 compared with US$5 billion in Australia.

CEQA Case Report: Understanding the Judicial Landscape for Development[I]

By Winston P. Stromberg, Lucas Quass and Christopher Adam Martinez

In an opinion published on August 9, 2018, Protect Niles v. City of Fremont, Case No. A151645, the First Appellate District of the California Court of Appeal affirmed the trial court’s issuance of a writ of mandate ordering the City of Fremont (the City) to overturn a Mitigated Negative Declaration (MND) and prepare an Environmental Impact Report (EIR) for an 85-unit residential and retail development in a historical district (the Project).

In summary, the court determined:

  • A project’s visual impact on an officially designated historical district is appropriate to review as a potential aesthetic impact under CEQA.
  • The City’s Historical Architectural Review Board members’ collective opinions about the compatibility of the Project with the Niles Historical Overlay District are substantial evidence of the Project’s potentially significant aesthetic impacts.
  • Residents’ personal observations of traffic conditions where they live and commute may constitute substantial evidence, even if residents’ accounts contradict the conclusions of a professional traffic study.

Harvard professor Robert Stavins joins Latham partner Bob Wyman to review key climate change mitigation policies.

California’s climate change mitigation program is widely viewed as one of the most comprehensive of its kind — encompassing a cap-and-trade component and a series of complementary measures with specific performance targets for important sectors such as motor vehicles, transportation fuels, power plants, and emissions related to land use decisions.

In this Viewpoints video, Latham partner Bob Wyman, a leader in the firm’s

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

By Christopher W. Garrett, Daniel P. Brunton, Natalie C. Rogers, and Roopika Subramanian

In a published opinion issued February 28, 2018, Covina Residents for Responsible Development v. City of Covina, Case No. B279590, the Court of Appeal affirmed the trial court’s judgment and upheld the City of Covina’s (the City) approval of a 68-unit mixed-use infill project (Project). In summary, the court determined:

  • An EIR must address secondary parking impacts caused by traffic congestion, but parking impacts, in and of themselves, are exempt from CEQA review.
  • An agency is permitted to tier from a specific plan EIR if (1) the proposed action falls under an exemption, or (2) potential project impacts have been adequately analyzed and mitigated in the specific plan EIR.
  • In determining whether to approve a tentative map for a project, local agencies must make findings showing the proposed map’s compatibility with objectives, policies, and programs in the specific plan, but need not show perfect conformity.