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Environmental Alert (October 5, 2020)
Governor Newsom recently issued Executive Order N-79-20, which sets aggressive goals for California to eliminate greenhouse gas emissions from the transportation sector (the State’s largest source of emissions) and achieve carbon neutrality. The Order comes in response to the climate crisis and the Governor being witness to yet another significant wildfire season, which are “impacting California in unprecedented ways, and affecting the health and safety of too many Californians.”
Environmental/Land Use Alert (October 1, 2020)
A recent California Court of Appeal opinion (Third Appellate District) addresses when lawsuits challenging development projects will be rendered “moot” by the construction of the project being challenged. (Parkford Owners for a Better Community v. County of Placer (Aug. 26, 2020, No. C087824) __ Cal.App.5th __ [2020 Cal. App. LEXIS 872].) Mootness is the principle that courts will decide only actual controversies, by issuing judgments which can be carried into effect. If an event occurs which renders it impossible for the court to grant the plaintiff any effectual relief, the court should dismiss the case as moot.
Environmental/Land Use Alert (September 15, 2020)
A recent California Supreme Court opinion in Protecting Our Water and Environmental Resources v. County of Stanislaus (POWER), issued August 27, 2020, is a cautionary tale for local agencies categorically classifying an entire group of permits as ministerial. The case involved issuance of well construction permits by Stanislaus County pursuant to an ordinance that incorporated State well construction standards and categorically classified a subset of those projects as ministerial.
Aviation Alert (July 27, 2020)
On July 22, 2020, the U.S. Environmental Protection Agency (USEPA) announced the long-awaited release of its proposed greenhouse gas emissions standards applicable to the manufacturers of airplanes used in commercial aviation and large business jets. Replicating the standards set by the International Civil Aviation Organization in 2017, the USEPA described its proposal as “making domestically manufactured aircraft competitive in the global marketplace” and underscored the benefits of “harmoniz[ing] with the international standards and provid[ing] global consistency.”
Environmental/Aviation Alert (July 17, 2020)
On July 15, 2020, the Council on Environmental Quality (CEQ) announced its final rule (Rule) to “comprehensively update, modernize, and clarif[y],” for the first time in more than 40 years, the regulations that implement the National Environmental Policy Act (NEPA). NEPA, at its most basic, is one component of our national charter for the protection of the environment. NEPA is a procedural statute that requires federal agencies to assess the potential environmental effects of proposed federal actions. The purpose of the Rule is to “codif[y] Supreme Court and other case law, update the regulations to reflect current technologies and agency practices, eliminate obsolete provisions, and improve the format and readability of the regulations.” The Rule was issued following CEQ’s investigation of the effectiveness and efficiency of the environmental review process and current NEPA regulations, as well as a public consultation process. The Rule has been, and continues to be, the subject of controversy.
Environmental/Land Use Alert (July 9, 2020)
In 2005, the Regents for the University of California (Regents) certified a program-level environmental impact report (EIR) and approved the corresponding Berkeley campus development plan for the years 2005 through 2020. The development plan projected enrollment at Berkeley would increase by 1,650 students by 2020. However, starting at least in 2017, the Regents approved enrollment increases for the Berkeley campus such that Berkeley’s enrollment increased by 8,300 students by 2018. In 2018, Save Berkeley’s Neighborhoods (Save Berkeley) filed a petition for writ of mandate challenging Regents’ decision to increase enrollment without further environmental review under CEQA.
Public Agency Law Alert (June 8, 2020)
On May 28, 2020, the California Supreme Court issued an opinion concerning what costs public agencies may recover in responding to a document request under the California Public Records Act. The Court held that public agencies may not charge for the costs to redact electronic public records as a condition of gaining access to the records.
Environmental/Land Use Alert (June 5, 2020)
A lead agency’s post-approval actions to implement a project do not necessarily constitute an approval triggering CEQA review, held the Sixth District Court of Appeal in Willow Glen Trestle Conservancy v. City of San Jose, issued May 18, 2020.
Environmental/Land Use Alert (June 2, 2020)
The recently published opinion from the Third District Court of Appeal in Petrovich Development Company, LLC v. City of Sacramento (certified for publication on May 8, 2020) examines when city councilmembers impermissibly cross the line from neutral adjudicators to biased advocates when acting in a quasi-judicial role during their consideration of an appeal from an administrative body.
Environmental/Land Use Alert (May 6, 2020)
The Second District Court of Appeal affirmed a judgment upholding the EIR for Tesoro’s Los Angeles Refinery Integration and Compliance Project in a 2-1 majority opinion filed April 7, 2020. (Communities for a Better Environment v. South Coast Air Quality Management District (Tesoro Refining and Marketing Company, LLC) (2d Dist. 2020) __ Cal.App.5th __.) Providing a tutorial on the inner workings of an oil refinery and governing case law, the Court rejected each of appellant CBE’s four contentions that the EIR was flawed for allegedly: (1) using the wrong “baseline” for air pollutant emissions; (2) omitting information about the composition of pre-project crude oil that the refinery processes; (3) not explaining how the agency calculated its “6,000 barrel” figure; and (4) not disclosing the existing volume of crude oil the refinery processes or its unused capacity.
Environmental/Land Use Alert (April 29, 2020)
On April 22, 2020, California Governor Gavin Newson issued Executive Order N-54-20, which declares that the COVID-19 pandemic has made it “impossible or impracticable” for lead and responsible agencies and project applicants to adhere to public filing and notice requirements under the California Environmental Quality Act. The Executive Order thus suspends the following deadlines for 60 days...
Environmental/Land Use Alert (April 28, 2020)
On April 3, 2020, the California Court of Appeal for the Second Appellate District, Division Five, issued its opinion affirming the water supply analysis for the first two phases of the Newhall Ranch planned community in northwestern Los Angeles County, California. Those phases, Mission Village and Landmark Village, comprise nearly 5,500 homes and more than 2.5 million square feet of commercial and retail uses to assist the County in accommodating its housing and projected growth over the long-term.
Environmental/Land Use Alert (April 21, 2020)
On April 2, 2020, in Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles, the Court of Appeal, Second District held that any substantive challenge to a project approval, including attacks to the validity of a notice of determination (NOD) based on scope of agency authority, can only be made within the short statute of limitations triggered by a facially valid NOD. The simple, yet crucially important lesson from Coalition for an Equitable Westlake is: never put off till next year what you must do within 30 days.
Environmental/Land Use Alert (April 13, 2020)
In Save the Agoura Cornell Knoll v. City of Agoura Hills, Case Nos. B292246, B295112, the City of Agoura Hills appealed the trial court’s issuance of a petition of writ of mandate directing the City to set aside its approval for a mixed-use development project. This case involves two orders by the trial court: (1) a writ of mandate directing the City to set aside its project approval and prepare an environmental impact report rather than a mitigated negative declaration; and, (2) an attorney’s fees award to the petitioners. The Second District Court of Appeal upheld both trial court orders.
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Firm Announcement (March 24, 2020)
Gatzke Dillon & Ballance LLP remains fully operational and is continuing to provide exceptional legal services to its clients during this time of adaption to the evolving COVID-19 pandemic. Importantly, the firm’s attorneys and staff remain committed to completing work in a timely and responsive manner.
Environmental/Land Use Alert (March 3, 2020)
The abusive potential of the California Environmental Quality Act by disgruntled neighbors and Not in My Backyard opponents is embodied in the unpublished Canyon Crest Conservancy v. County of Los Angeles (Case No. B290379) opinion recently issued by the Second District Court of Appeal.
Environmental/Land Use Alert (February 20, 2020)
In a recent decision, Fowler v. City of Lafayette (Case No. A156525), the First District Court of Appeal held that the public agency’s closed session discussion of a litigation threat pertaining to an application to build a tennis cabana on a residential property violated the Brown Act because the record of the threat was not made before the meeting and not made available to the public. However, the court rejected the argument that violation of the Brown Act nullified the project approval, finding no prejudice.
Environmental/Land Use Alert (January 29, 2020)
The Third District Court of Appeal partially reversed a judgment rejecting labor union petitioners’ CEQA challenges to a combined Environmental Impact Statement/ Environmental Impact Report for a Mono County geothermal power plant. Russel Covington, et al v. Great Basin Unified Air Pollution Control District, et al. (Orin 50 LLC, et al, Real Parties in Interest) (2019) ____ Cal.App.5th ____ (Opinion filed November 26, 2019, ordered published December 23, 2019).
Environmental/Land Use Alert (January 22, 2020)
In March 2015, the City of Sacramento certified the environmental impact report for its 2035 General Plan and adopted the General Plan. Citizens for Positive Growth challenged both actions. In Citizens for Positive Growth & Preservation v. City of Sacramento, the Court of Appeal for the Third Appellate District affirmed the trial court’s ruling upholding the City’s compliance with the Planning and Zoning Law and CEQA.
Environmental/Land Use Alert (January 6, 2020)
Many cities and counties across the State of California are jumping into action to implement Executive Order B-55-18’s ambitious goal of carbon neutrality by 2045. Some land use agencies are doing so by taking a hard look at the role of natural gas consumption as a contributor of greenhouse gas emissions. As the California Energy Commission has concluded, “electrification is a potential path to achieve California’s  climate goals” and “would significantly reduce emissions, resulting in improved air quality and reducing mortality rates from pollution."
Environmental/Land Use Alert (November 1, 2019)
Wine afficionados everywhere are celebrating a victory for a winery project in Sonoma County, California, after the California Court of Appeal, First District, Division Four rejected the opponents’ challenge to the project’s mitigated negative declaration in September 2019.
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Environmental/Land Use Alert (October 24, 2019)
In Chico Advocates for a Responsible Economy v. City of Chico (2019) the California Court of Appeal for the Third Appellate District upheld certification of an environmental impact report to expand an existing Walmart store. On appeal, Chico Advocates challenged the EIR’s urban decay impact analysis and the City’s statement of overriding considerations. This case is one of the first to apply the Sierra Club v. County of Fresno standards of review to an urban decay impact analysis.
Environmental/Land Use Alert (September 18, 2019)
On July 31, 2019, the California Court of Appeal for the Second Appellate District decided stopthemillenniumhollywood.com v. City of Los Angeles (2019), Case No. B282319, in which it determined that an environmental impact report failed to comply with the California Environmental Quality Act because it lacked a stable and finite project description.
Environmental/Land Use Alert (September 2019)
On August 19, 2019, the California Supreme Court issued its decision in Union of Medical Marijuana Patients, Inc. v. City of San Diego, Case No. S238563, reversing the Court of Appeal and concluding the City of San Diego’s adoption of a zoning ordinance relating to marijuana dispensaries constituted a project subject to environmental review under the California Environmental Quality Act.
Environmental/Land Use Alert (May 2019)
On March 29, 2019, the Court of Appeal of California, Second Appellate District, published its decision in Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, affirming the trial court’s refusal to exercise jurisdiction to enforce a settlement agreement because the parties did not strictly comply with the requirements of California Code of Civil Procedure section 664.6.
Environmental/Land Use Alert (April 12, 2019)
On February 26, 2019, the California Court of Appeal, Third Appellate District, issued a decision affirming the dismissal of a challenge to an aggregate extraction project, known as the Newman Ridge Project, in unincorporated Amador County (County). Specifically, in Ione Valley Land, Air, and Water Defense Alliance, LLC v. County of Amador, Court of Appeal No. C081893, the Court held that petitioner Land, Air, and Water Defense Alliance, LLC’s (LAWDA) various causes of action against the project’s re-certified EIR were barred by res judicata, or claim preclusion, because LAWDA raised, or could have raised, the same claims in a prior action. (In support of this holding, the Court cited its prior decision in Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 324–327.)
Environmental/Land Use Alert (April 2019)
In South of Market Community Action Network v. City and County of San Francisco, a decision filed February 22, 2019 and published on March 25, 2019, the California Court of Appeal, First Appellate District, Division One, affirmed a trial court decision upholding the City and County of San Francisco’s certification of an EIR and approval of a mixed-use business and residential project on four acres in downtown San Francisco.
Firm Announcement (April 2019)
Kurt Whitman, Senior Associate at Gatzke Dillon & Ballance LLP, has been selected to the 2019 San Diego Rising Stars list by Super Lawyers.
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Environmental/Land Use Alert (January 2019)
In late December 2018, shortly following the Office of Administrative Law’s approval of comprehensive amendments to the State CEQA Guidelines, the Governor’s Office of Planning & Research (OPR) issued a discussion draft of its “CEQA and Climate Change Advisory” (draft Advisory). Release of this draft Advisory marks OPR’s first effort to update the greenhouse gas (GHG)-related Technical Advisory it issued more than 10 years ago. OPR has requested input on the draft Advisory by March 15, 2019.
Aviation Alert (January 2019)
On December 18, 2018, the United States Court of Appeals for the Ninth Circuit issued its decision in Informing Citizens Against Runway Airport Expansion v. Federal Aviation Administration, 2018 WL 6649605, denying a Petition for Review of the FAA’s Order approving the construction of a 5,200-foot runway at the Ravalli County Airport in Hamilton, Montana.
Environmental/Land Use/Aviation Alert (December 2018)
On December 24, 2018, the Supreme Court of California published its decision in Sierra Club v. County of Fresno, Case No. S219783, affirming the Court of Appeal’s ruling that the air quality analysis within a project’s environmental impact report (EIR) was inadequate under the California Environmental Quality Act (CEQA) because it failed to correlate the emission of project-related pollutants to specific adverse human health impacts.
Environmental/Land Use Alert (April 2018)
On March 26, 2018, the California Court of Appeal, Fourth Appellate District, Division One, issued a decision affirming the dismissal of a premature challenge to a proposed master-planned community located in unincorporated San Diego County (County) and known as the Newland Sierra project.
Firm Announcement (April 2018)
In March 2018, Mark Dillon and Danielle Morone, partners of the firm, were honored as recipients of the Daily Journal’s 2018 CLAY (California Lawyer Attorneys of the Year) Awards. In selecting the recipients of the 22nd annual CLAY Awards, which recognize attorneys associated with 20 matters in 15 areas of legal practice, the Daily Journal editors explained that this year’s awards “honor lawyers in California who used their considerable talents to bring about fairness. Yes, fairness for clients but also fairness for society.”
Land Use Alert (March 2018)
On March 15, 2018, the California Court of Appeal, Fourth Appellate District, Division One published a decision upholding the City of San Diego’s permits and CEQA categorical exemption determination for a 35-foot high faux tree wireless facility to be located in a dedicated City park. GDB Partner Kevin Sullivan and Senior Associate Aarti Kewalramani represented the nation’s largest wireless telecom carrier in the suit.
Land Use Alert (January 2018)
On January 10, 2018, the California Court of Appeal, Fourth Appellate District, Division One published a decision upholding the City of San Diego’s adoption of a Mitigated Negative Declaration for a private school project next to a designated historical resource and adjacent to the Carmel Valley River Enhancement Program area. Mr. Sullivan represented the operator of the private school.
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Aviation Alert (October 2017)
On September 26, 2017, the California Court of Appeal, Fourth Appellate District, Division One issued a currently unpublished decision of significant interest to Airport Land Use Commissions (ALUCs) throughout California.
Aviation Alert (August 2017)
A recent U.S. Court of Appeals, Ninth Circuit, opinion upheld a supplemental environmental assessment prepared for Hillsboro Airport. Hillsboro Airport is a general aviation airport located near Portland, Oregon, and is the busiest airport in Oregon in terms of airport operations.
Firearms Law Alert (March 2016)
The California legislature continues to introduce more and more increasingly restrictive gun laws in the form of Assembly Bills (ABs) or Senate Bills (SBs). Recently, three ABs have been introduced, that if passed, will drastically change gun ownership in California.
Firearms Law Alert (January 2016)
The Wall Street Journal (Dec. 12, 2015) reports that authorities “across the country are getting a flood of applications to carry concealed weapons in the wake of the mass shooting in San Bernardino, California, especially in locations near sites of recent mass shootings.”
Construction Law E-Alert (August 2015)
The Fifth Appellate District ruled SB800 (California's "Right to Repair Act" [the "Act"]) provides the sole remedy for homeowners in construction defect actions. The court found "no other cause of action is allowed to recover for repair of the defect itself or for repair of any damage caused by the defect."
Firearms Law Alert (February 2015)
As many in the firearms industry are aware, especially those that do business in the state of California, recent legislation was enacted, effective January 1, 2015, to further restrict the sales of semiautomatic handguns through the “single shot exemption.” For those who are unaware, until the beginning of the year, California law had allowed the sale of certain handguns without requiring that they be added to the California Roster of Certified Handguns. The law included an exemption for single-shot handguns that met certain length and other requirements.
Aviation Alert (January 2015)
On December 18, 2014, the Council on Environmental Quality (CEQ) released revised draft guidance for greenhouse gas (GHG) emissions and climate change impacts under the National Environmental Policy Act (NEPA).
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Aviation Alert (August 2014)
On June 30, 2014, in a partially published decision, the Fifth District Court of Appeal issued its decision in Citizens Opposing a Dangerous Environment v. County of Kern (2014) __ Cal.App.4th __, 174 Cal.Rptr.3d 683, 2014 WL 3696543. At issue was whether the County of Kern violated the California Environmental Quality Act (CEQA) by adopting a mitigation measure requiring project applicants to obtain a “no hazard” determination from the Federal Aviation Administration (FAA) for a proposed wind farm near a private airport in Kern County.
Aviation Alert (July 2014)
On June 6, 2014, California’s Sixth Appellate District issued its decision in Citizens Against Airport Pollution v. City of San Jose (H038781; 2014 WL2987959). At issue in the case was whether the City of San Jose violated the California Environmental Quality Act (CEQA) by approving an addendum to the certified Environmental Impact Report (EIR) for the San Jose International Airport Master Plan.
Construction Law E-Alert (July 2014)
On July 3, 2014, the California Supreme Court, in Beacon Residential Community Association v. Skidmore, Owings & Merrill LLP (Jul. 3, 2014, S208173) __Cal.4th__ [2014 WL 2988058], held that architects owe a duty of care to future homeowners of residential buildings, particularly if they act as principal architects on a project, and are not subordinate to any other design professional. Until now, design professionals were rarely held liable, if at all, for third-party claims for design deficiencies.
Construction Law E-Alert (March 2014)
The applicability of pre-litigation procedures has come under scrutiny lately, as witnessed in the recent Second Appellate District opinions of Burch v. The Superior Court of Los Angeles County (Premier Homes LLC) (2014) 223 Cal.App.4th 1411 and KB Home Greater Los Angeles, Inc. v. The Superior Court of Los Angeles County (Allstate Insurance Co.) (2014) 223 Cal.App.4th 1471.
Construction Law E-Alert (February 2014)
The California Court of Appeal, Second District has issued two opinions with ramifications to California's "Right to Repair Act" (Civil Code § 8965, et seq.).
Construction Law E-Alert (August 2013)
The California Court of Appeal, Fourth District, Division Three, recently determined that a homeowner, or its subrogee, need not comply with the "Right to Repair Act" (also, "the Act") [Civ. Code, §§ 895 to 945.5]) where actual property damage has occurred.
Aviation Alert (March 2013)
On March 19, 2013, Assembly Bill (AB) 756 – which previously served as a “spot bill” during this legislative session – was substantively amended to propose CEQA reform for “public works projects.”
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Aviation Alert (February 2013)
On Friday, February 22, 2013, Senate Pro Tem Daryl Steinberg introduced SB 731. While not earth shattering in its present form, some concepts identified in the bill may prove to be beneficial to California’s airports if the concepts are favorably fleshed out and enacted.
Construction Law E-Alert (February 2013)
In December 2012, the Court of Appeal reversed more than 50 years of existing law in Beacon Residential Community Association v. Skidmore, Owings & Merrill LLP, et al. (2012) 211 Cal.App.4th 1301; and, in November 2012, the California Court of Appeal, in Darling v. Superior Court (Western Pacific Housing, Inc.) (2012) 211 Cal.App.4th 69, resolved the interplay between two sections of SB 800.
Construction Law E-Alert (August 2012)
The California Supreme Court ruled in Pinnacle Museum Tower Assn. v. Pinnacle Market Development (2012) 55 Cal.4th 223, that arbitration provisions within the covenants, conditions, and restrictions ("CC&Rs") for condominium projects are enforceable against their homeowner associations. The ruling – two years in the making – was based on legislative history of laws governing common interest developments, and decades of decisional authority involving contracts and arbitration provisions.
Construction Law E-Alert (June 2012)
The Court of Appeal, Second District, Division Three, ruled in Oak Springs Villas Homeowners Association v. Advanced Truss Systems, Inc., et al. (2012) 206 Cal.App.4th 1304, that a non-settling defendant cannot appeal a trial court's good faith settlement determination.
Construction Law E-Alert (April 2012)
On April 11, 2012, in Axis Surplus Insurance Company v. Glencoe Insurance LTD. (2012) 204 Cal.App.4th 1214, the Court of Appeal examined whether an insurance carrier, with full notice of a claim and admitted coverage, can disclaim coverage because a self-insured retention ("SIR") was not satisfied until the very end of a case. The Court declined to allow such "gamesmanship," and required a non-participating carrier to participate regardless of when the SIR was satisfied.