The state Supreme Court has been extraordinarily active in the field of land use during recent weeks. The court has accepted for review an important case involving the environmental impact report for the Cal-Fed Bay-Delta Project. The court also took a case involving redevelopment in the City of Stockton.
In addition, the court ordered two recent appellate court land use decisions to be decertified, and the high court dismissed because of new state legislation a State Lands Commission case that was under review.
The Cal-Fed case accepted for review is In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings, No. S138975. The case concerns the EIR for the gigantic Cal-Fed project, a 12-year-old state and federal effort to improve the ecological health of the Sacramento-San Joaquin River Delta and provide a more assured urban water supply.
Last year, the Third District Court of Appeal ruled that the EIR was inadequate because it failed to identify what water would be used to carry out the program, did not consider a project alternative that included reduced exports of Delta water to Southern California, and failed to provide details of an “environmental water account” (seeCP&DR Legal Digest, November 2005). The decision was a victory for an odd-bedfellows collection of environmentalists and Central Valley farmers. On the opposite end of the decision were other Central Valley farmers and irrigation districts, and urban water providers, including the Metropolitan Water District of Southern California.
The decision provoked a great deal of discussion amongst water and California Environmental Quality Act experts, some of whom said that if the massive Cal-Fed EIR was inadequate, then no EIR was safe.
One specific concern with the Third District’s decision was the ruling that the EIR’s discussion of project alternatives was inadequate because none of the alternatives contemplated reduced export of water to Southern California. The court said that the EIR did not have to assume that continued population growth in Southern California was a given.
That reasoning stunned many observers. An analysis of the Third District decision by Los Angeles law firm Weston, Benshoof, Rochefort, Rubalcava & MacCuish noted, “There are state and local laws that compel cities, counties and local agencies to plan for and accommodate the state’s growing population. Despite these clear legal mandates to meet the needs of a growing population, the court’s requirement to analyze the ‘feasible’ alternative of a purposeful plan to not meet those needs in order to encourage ‘no growth,’ appears to disregard both law and policy. Indeed, compounding this problem, the court’s holding that water agencies should analyze whether such future growth should be accommodated at all seems to utterly confuse the proper role of water and land use agencies.”
That argument apparently gained traction at the state Supreme Court, which voted 6-0 (Justice Ming Chin recused himself) to accept the case for review. Opening briefs are due this month.
The state’s high court now has two water/EIR cases under review. The other is Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova, No. S132972. In that case, the Third District upheld an EIR’s handling of the water supply for the 22,500-housing unit Sunrise Douglas community plan area (see CP&DR Legal Digest, April 2005, March 2005). The high court’s decision to review Vineyard Area Citizens effectively depublished the Third District’s opinion. That means there is not a single published decision upholding an environmental impact report’s water supply analysis, Margaret Moore Sohagi, of Fox & Sohagi, recently noted.
In an advisory, Morrison & Foerster said that the Cal-Fed and Vineyard Area Citizens cases “should be particularly important to all stakeholders in the CEQA process, as it has been many years since the California Supreme Court has considered a CEQA case involving the substantive requirements for environmental impact reports. Also, while there have been a number of Court of Appeal decisions on the application of CEQA to water issues, the Supreme Court has not yet ruled on these important issues.”
The other land use case recently accepted by the state Supreme Court, City of Stockton v. Superior Court, No. S139237, actually has to do with contract law and the Government Claims Act. The litigation involves a contract that the city signed with a developer, Civic Partners Stockton, LLC, for two downtown redevelopment projects. The city eventually cut Civic Partners out of the redevelopment projects, prompting a breach of contract suit by the developer.
The Third District ruled that Civic Partners could not pursue the lawsuit because the developer did not present the city with a claim for damages before filing suit (seeCP&DR Legal Digest, December 2005). The question for the state Supreme Court is whether such a claim is a mandatory prerequisite to litigation.
The state Supreme Court declined to review two other land use cases, but the court did decertify the appellate court opinions, meaning they have no value as precedent.
In late January, the state Supreme Court decertified the Second District Court of Appeal’s decision in Santa Anita Companies v. Westfield Corporation, No. S139913. In that case, the Second District Court of Appeal ruled that the owners of Santa Anita Park horse track did not wait too long to file a lawsuit seeking to correct a property title error (see CP&DR Legal Digest, January 2006). Shopping mall owner Westfield, which gained title to the 2.3-acre parcel in question by error, is fighting the horse track owners over a development project on the site.
In February, the state Supreme Court decertified the Third District’s opinion in El Dorado County v. Department of Transportation, No. S139741. In that case, the court ruled that a Caltrans’ EIR of a proposed Highway 50 interchange to serve a planned Indian casino was inadequate (see CP&DR Legal Digest, January 2006). The court ruled that Caltrans’ handling of air quality impacts was unacceptable because the agency determined the project would not have a cumulative impact on air quality, but the agency did not reveal what the specific, project-related impacts would be.
The decision appeared to throw into doubt Caltrans’ standard approach for studying transportation projects’ air quality impacts. Caltrans officials expressed satisfaction that, although they lost the case, the Third District’s ruling will not set a precedent.
The Third District also rejected the EIR on the grounds that Caltrans did not consider a smaller Indian casino as a project alternative. Revisions to the EIR are already in the works.
Finally, the state Supreme Court dismissed and remanded to the Third District the case of California Earth Corps v. State Lands Commission, No. S134300. In that case, the court blocked a land exchange between the State Lands Commission and the City of Long Beach. The court ruled that the exchange violated the state law permitting a swap of land covered by the tidelands public trust doctrine (see CP&DR Legal Digest, July 2005).
The land in question is three acres that had been tidelands when it was transferred from the state to Long Beach in 1911. The city filled the land during the 1950s. More recently, the site was developed into Pike at Rainbow Harbor, which includes a movie theater, arcade and retail shops. Project opponents argued that public trust tidelands cannot be developed, so the State Lands Commission removed the three acres from the public trust and, in exchange, accepted 10 acres of city-owned land along the Los Angeles River into the public trust.
Although such exchanges are fairly routine, the Third District held that the Long Beach swap was not explicitly allowed under state law. The state Supreme Court accepted the case for review. After that, the state Legislature passed SB 365, which rewrote Public Resources Code § 6307 to permit such exchanges.
Once the SB 365 changes became effective, the state Supreme Court dropped the case and directed the Third District to reconsider in light of the new law.
