Fourth Appellate District

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Joshua TreeWhen cities and counties conduct CEQA review of a large-scale commercial development project including a major national chain like Wal-Mart or Costco, a common objection is that the project will displace existing, locally owned retail establishments, resulting in a significant impact on the environment, in the form of urban decay (or “blight”). This is generally understood to involve abandoned buildings or shopping centers physically deteriorating and becoming a magnet for graffiti, gang/drug activity, and illegal dumping. This claim is often brought in CEQA litigation resulting from approval of such retail projects.

Recently, Division Two of the Fourth Appellate District issued its decision in Joshua Tree Downtown Business Alliance v. County of San Bernardino (June 15, 2016; certified for partial publication on July 13, 2016), upholding a mitigated negative declaration and addressing a key issue for lead agencies and courts evaluating an urban decay claim: when do the comments or testimony of a lay witness constitute substantial evidence of an urban decay impact? The appellate court also rejected a claim of general plan inconsistency, affirming the broad discretion that local governments enjoy in interpreting their general plans.

Subdivision Map ActCities and counties across the state have revised their general plan policies to address the interrelated issues of greenhouse gas (GHG) emissions and energy consumption by new commercial and residential development, often in proactive and innovative ways. However, the rubber only meets the road when those projects undergo CEQA review, and courts evaluate whether those paper policies translate into real-world action. The Fourth Appellate District recently weighed in on one such situation – and found that key information got lost in translation.

In Spring Valley Lake Association v. City of Victorville (May 25, 2016), a local association challenged the construction of an approximately 215,000 square foot commercial retail development in the City of Victorville, which included an approximately 185,000 square foot Wal-Mart store. The challenge included claims under CEQA, state Planning and Zoning Law provisions concerning general plan consistency, and the Subdivision Map Act.

I recently had the privilege of presenting the annual CEQA and Land Use Litigation Update at this year’s League of California Cities City Attorneys’ Spring Conference in Newport Beach. The annual conference is attended by more than 450 city attorneys and other legal professionals from across California, and addresses a host of cutting-edge legal issues…

Cadiz Valley
A pilot well on Cadiz Inc. property in the Mojave Desert. Photo credit: Cadiz Inc.

In a series of sweeping opinions, the Fourth Appellate District on Tuesday, May 10, upheld the Cadiz Valley Water Conservation, Recovery and Storage Project against six separate challenges brought by a host of environmental organizations and a salt mining operation. The Cadiz Project, initiated by the Santa Margarita Water District (SMWD) and Cadiz, Inc. in a public/private partnership, involves plans to pump native groundwater from the Fenner Valley Aquifer System in the Mojave Desert and deliver the water for municipal and industrial uses in Southern California. A later phase of the Project would include importing water for storage in the basin. With this ruling, the Cadiz Project has survived an onslaught of organized opposition. Six legal challenges were directed at overturning approvals granted by SMWD, as the CEQA lead agency, and the County, as the agency responsible for regulating the Project under the County’s own Desert Groundwater Management Ordinance.

horse in stable windowIs the “character” of a community part of the “environment” and therefore subject to analysis under CEQA, or is it instead a subjective state of mind of the people who live there?  An appellate court has now weighed in.

In its decision in Preserve Poway v. City of Poway (March 9, 2016), the Fourth District Court of Appeal has upheld the use of a mitigated negative declaration (MND) for a project to subdivide a property currently occupied by an equestrian boarding and training facility.  In doing so, the Court held that evidence of the project’s social and psychological impacts to the community does not require preparation of an environmental impact report (EIR), as CEQA does not address such impacts.

The property, located in the City of Poway (which calls itself the “City in the Country”), is currently being used as a boarding facility for approximately 100 horses, and it is located across the street from a 12-acre rodeo and polo grounds operated by the Poway Valley Riders Association (PVRA). The project involves the subdivision of the property into twelve residential lots, grading of the property, extension of an existing sewer line, undergrounding of existing utilities, installation of new curb, gutters, and fire hydrants, and flood channel improvements.  No home construction is included in the project – any such construction would be subject to further environmental review and City approval.

Marijuana DispensaryLocal regulation of the medical marijuana industry has become a hot-button area of controversy. New ordinances are routinely being proposed and adopted – and then challenged in court. In a March 25 opinion filed in Union of Medical Marijuana Patients, Inc. v. City of Upland, the Fourth Appellate District weighed in on one such local dispute, holding that a city ordinance prohibiting mobile marijuana dispensaries is not a “project” subject to CEQA review, but is merely a restatement of existing law that will not cause a physical change in the environment.

In 2007, the City of Upland adopted a municipal ordinance stating that “[n]o medical marijuana dispensary . . . shall be permitted in any zone within the city,” and defining a dispensary as including any “fixed or mobile” facility or location. The City prepared and adopted a negative declaration for this ordinance, which was not challenged. In 2013, the City adopted another ordinance, which added a new chapter to the municipal code expressly stating that mobile dispensaries “are prohibited” in the City. The 2013 ordinance contained recitals asserting that such facilities were associated with criminal activity and highly likely to “flourish in the City without the adoption of this Ordinance.”