Leading Land-Use Issues : Litigation CALIFORNIA SELF STORAGE ASSOCIATION 4 TH ANNUAL WEST COAST SELF STORAGE OWNERS CONFERENCE NAPA, CALIFORNIA PRESENTED BY: DAMIEN SCHIFF PACIFIC LEGAL FOUNDATION

When does the California Environmental Quality Act Apply?  Discretionary public projects (including permits)  Direct or reasonably foreseeable indirect effects on the physical environment  A fair argument that the project will have a significant effect = environmental impact report  No fair argument = negative declaration/mitigated negative declaration  All significant effects must be mitigated to insignificance if feasible  Statement of overriding considerations if unavoidable significant effects

“Reverse CEQA” Rejected  California Building Industry Association v. Bay Area Air Quality Management District  Thresholds of significance and sensitive receptors  If you build it, they will come  CEQA is concerned about a project’s effects on the environment, rather than the environment’s effects on the project  The fault-line hypothetical  But, CEQA is still concerned about a project exacerbating existing issues  The abandoned gas station hypothetical

Single-family homes are not “unusual circumstances”  Berkeley Hillside Preservation v. City of Berkeley  Categorical exemptions for single-family residences and infill projects  Claw-back provision based on “unusual circumstances”  Potentially significant impact is not enough, standing alone, to void an exemption  Unusual circumstances reviewed according to substantial evidence (meaning, a standard generous to the permitting agency)  Whether a significant effect will ensue reviewed according to “fair argument” (meaning, a standard generous to the challenger)  Analysis must be based on project as approved  A court rarely can force the creation of an EIR (the permitting agency must make the initial “fair argument” determination)

CEQA does not apply to initiatives  Tuolumne Jobs & Small Business Alliance v. Superior Court  Voters can petition for a land-use ordinance  In response, a city can directly adopt the ordinance or request an abbreviated report on the ordinance before ordering a special election  The general rule has been that CEQA does not apply to ordinances adopted through an election. What about when a city directly adopts the ordinance without putting it to a vote?  CEQA does not apply: otherwise the initiative process couldn’t operate  NB---CEQA does apply when an initiative originates with the council

Greenhouse gas analysis still not clear under CEQA (oh, and it pays to be a “fully protected species”)  Center for Biological Diversity v. California Department of Fish & Wildlife (Newhall Ranch)  Business as Usual Methodology: does it involve using a hypothetical baseline (bad because it might result in less emission reduction and avoid a significance finding) or is it merely a handy way to measure future effects (good because it reveals efficiency and conservation effectiveness)?  Be careful when you use statewide measures to grade a particular project. I.e., doing better than the statewide norm may not mean you’re doing enough for your particular project  Ultimately the issue needs (i) legislation or (ii) local climate plans or (iii) numerical thresholds  Development cannot harm fully protected species (like the unarmored three-spine stickleback) under any circumstances

Can you enjoy a permit while suing over it?  Lynch v. California Coastal Commission  Homeowners sought permit to repair aging seawall and beach bluff stairs  Agency agreed to the seawall but only for twenty years, and said no altogether to the stairs  Homeowners recorded the deed restriction under protest and filed suit  Court of Appeal said that the homeowners waived their rights  The California Supreme Court will address: can a landowner challenge a permit while suing over it?

Can the government take one lot without compensation if it leaves you another lot?  Murr v. Wisconsin  In the early 1960s, the Murr family bought a vacation cabin along the St. Croix River  Shortly thereafter, they bought an adjoining, vacant lot.  Several decades later, new anti-development regulations forbade the family from selling or building on the vacant lot  The government must compensate you if you cannot do anything with your property  Some courts have held, however, that your “property” includes adjacent or neighboring lots

Thanks for your attention! Questions?