City of Malibu v. California Coastal Commission

No. BS 121650, BS 12180 (2nd App. Dist.)

May 10, 2012

A state Conservancy sought approval from the city of Malibu for an amendment to the Local Coastal Program (LCP) that concerned trail access and camping issues on four non-contiguous properties. Instead of that, the city approved its own proposed amendments, which the California Coastal Commission (CCC) certified.

Unhappy with the results, the Conservancy asked the CCC to “override” Malibu with the Conservancy’s own amendments. The CCC agreed it had authority under the California Coastal Act (CCA) to override the city based upon CCA section 30515. Normally, the CCC only states whether a local agency’s LCP does or does not conform with the CCA and certifies it if it does. The Legislature made clear that local agencies should primarily address local land use concerns. Section 30515 of the CCA provides a limited opportunity for “Any person authorized to undertake a public works project or proposing an energy facility development” to ask a local agency to amend the LCP or seek an override by the CCC if unsuccessful at the local level. The Conservancy successfully argued that it merely had to be “any person authorized to undertake a public works project” while admitting it was not proposing an actual public works project. The CCC then approved and certified the Conservancy’s amendment.

Malibu sought a Petition for Writ of Mandate in Superior Court, claiming the CCC lacked authority to override the city because the Conservancy had only proposed a plan, not a project. The trial court agreed and ruled against the CCC.

On appeal by the Conservancy, the Court of Appeal affirmed the trial court decision regarding CCC’s lack of authority to override the city. The Court held the language in section 30515, when read as a whole, necessarily required an actual project to be proposed and rejected by a local agency before the override provision applied. The balance of the section also requires the project meet the public needs of an area greater than that encompassed in the LCP that was not anticipated at the time the LCP was certified. This case restricts the CCC assertion of authority in certain circumstances and restores some balance of local land use planning to local agencies.

Prepared by John Reaves

Salmon Protection and Watershed Network v. County of Marin

2012 DJDAR 5063

No. A133109 (April 20, 2012) (Cal. Ct. of Appeal, 1^st App. Dist.)

Salmon Protection and Watershed Network (SPAWN) filed a petition for writ of mandate against the County of Marin, alleging Marin failed to comply with the California Environmental Quality Act (CEQA) when certifying its General Plan Update due to inadequate analysis of the cumulative impacts on steelhead and salmon in the watershed.

SPAWN and the County reached a series of tolling agreements to give them time to try to resolve the dispute rather than require SPAWN to file its action within 30 days as otherwise required by CEQA. After settlement discussions fizzled, SPAWN filed suit on the final day agreed to in the tolling agreement.

Subsequently, a group of property owners, who were concerned about their ability to develop their property, intervened and claimed the suit by SPAWN was untimely and that no tolling agreement was allowed by CEQA. The trial court disagreed, and the interveners appealed.

The Court of Appeal first examined Public Resources Code section 21167(b) which states an action challenging a public agency determination that a project may have a significant impact on the environment “shall be commenced within 30 days” of the notice of determination (NOD). The Court agreed with interveners that there is a strong public policy for prompt disposition of CEQA challenges. The Court, however, found there was an “equally strong public policy … to encourage the settlement of controversies in preference to litigation.” Not only are settlements essential to keep the civil system from breaking down, but CEQA itself encourages settlement. Sections 21167.8 and 21167.9 encourage settlement after litigation has begun. Further, an amendment to CEQA, section 21167.10 (effective July 1, 2011), authorizes prelitigation mediation which automatically tolls the statute of limitation periods until mediation is complete.

(Section 21167.10 allows any party to request mediation with the lead agency and real party in interest within five days of the agency filing its NOD. If the agency accepts, tolling occurs until mediation is complete. If it fails to accept, the request is deemed denied within five days of receipt of the request. This provision “sunsets” as of January 1, 2016, absent legislative extension.)

The interveners also argued Government Code section 65009 imposes a 90-day limitation to commence an action against a county decision “pursuant to this division,” including general plan goals and policies. Without deciding whether such provision applies to a CEQA challenge, the Court held a tolling agreement could also extend such a provision.

This case confirms that a policy many governments are using – tolling agreements to try to resolve disputes instead of litigation – is permissible, even where statutes have seemingly mandatory filing deadlines.

Prepared by John Reaves

Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, 204 Cal. App. 4th 1480 (2012)

April 17, 2012

B232655 (2nd Dist., Div. 8)

This case involves a CEQA challenge to the second phase of a light rail connection from downtown LA to Santa Monica. Several citizens groups challenged the environmental impacts assessment premised on baseline conditions in 2030, which was the 20-year planning horizon considered by the Expo Authority Board. Instead, petitioners argued the Board should have considered conditions between 2007, when the notice of preparation of the project was filed, and 2010, when the Board certified the EIR.

The trial and appellate courts both sided with the Board and held that CEQA does not preclude consideration of future conditions in the right circumstances. CEQA is silent on the point, and CEQA Guidelines section 15125 only requires that an EIR describe “the physical environmental conditions in the vicinity of the project,” which “will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.”

The Supreme Court and appellate decisions have generally required a comparison of a project’s impacts with existing conditions. The Court distinguished the Supreme Court CBE case where “hypothetical allowable” conditions were disallowed. In CBE, the total possible emissions of all four permitted polluting boilers, which had never run at the same time, could not be used as a baseline. But, here, the Court reasoned, because the light rail would not begin to operate until at least 2015, its impact on presently existing traffic and air quality would yield no practical information to the agency or public. Further, population continues to increase along with traffic and air pollution regardless of the project.

Therefore, this Court concluded, as a matter of law, that CEQA does not preclude consideration of projected conditions, and that such conditions may be an appropriate way to gauge environmental impacts of a long-term infrastructure project.

Prepared by John Reaves

Lyon & Associates v. Henley (Cal. Court of Appeal, 3^rd District)

2012 DJDAR 4655 (April 12, 2012)

Lyon & Associates involved a claim by the buyer of a house against the broker acting as a dual agent for both buyer and seller in the context of a motion for summary judgment. Henley, the buyer, sued Lyon, his broker (which was acting as dual agent), for breach of contract for allegedly breaching duties as broker for the buyer.  Henley alleged Lyon failed to perform a reasonable inspection and disclose material facts concerning construction defects. Henley sued roughly three years after purchasing the property.

Lyon defended itself by claiming Henley had failed to file suit within the two-year statute of limitation found in Civil Code section 2079. 4. The Court of Appeal, however, found such section only applied to a breach by the seller’s broker to the buyer under section 2079 (the codified Easton rule). Here, Henley sued Lyon in its role as buyer’s broker.

The Court then considered whether the statutory four-year statute of limitation for contract actions applied or whether the more restrictive two-year limitation contained in the purchase contract applied. Because Henley alleged and presented some supporting (yet disputed) facts indicating Lyon may have concealed information about the defects, the Court reasoned that the “discovery rule” should apply in this case (meaning the statute of limitation only starts to run after the party reasonably should have discovered the facts essential to his claim). Such rule is regularly applied in tort cases but has limited application in contract cases where parties can contractually agree to shorten a statute of limitation if it is not unreasonable or does not reflect imposition or undue advantage.

Because Lyon was sued in its capacity as the Henley’s broker, in which a fiduciary duty was owed, and because the allegations and some evidence supported Henley’s claim that Lyon’s malfeasance contributed to the delay in discovering the injury, the Court concluded the discovery rule should apply in this case. By applying the discovery rule here, Henley’s suit was within the two-year contractual limitation in the contract and timely. The Court reversed the trial court ruling and sent Henley back to the trial court.

Sackett v. EPA

March 21, 2012

U.S. Supreme Court

No. 10-1062; 2012 DJDAR 3737

Petitioners owned property in Idaho separated by several built properties from a lake. They filled part of their lot with fill and dirt in anticipation of building their home. The US EPA issued a compliance order, claiming they had discharged a pollutant into wetlands adjacent to navigable waters, thus violating the Clean Water Act (CWA). The EPA ordered petitioners to restore their property or face high daily penalties.

Petitioners claimed they were not subject to the CWA and sought a hearing from the EPA which the EPA refused. Petitioners then filed an action in federal court, claiming the order was arbitrary and capricious and seeking declaratory and injunctive relief. The district court and Ninth Circuit both ruled against petitioners, holding the Administrative Procedure Act (APA) only allows review of a final decision, thus precluding pre-enforcement judicial review of compliance orders. Under this scenario, petitioners would have to wait for the EPA to sue them before they could obtain judicial review.

The US Supreme Court (Justice Scalia writing the majority opinion) reversed, holding the EPA decision marked the consummation of the agency decision-making process and that the findings in the order were not subject to further agency review. The Court seemed intolerant of the EPA “strong-arming” regulated parties into voluntary compliance without an opportunity for judicial review. Thus, petitioners could challenge the EPA order before complying with the order. The Court did not address whether petitioners could also challenge the terms of the order, as noted by the concurring opinion of Justice Ginsburg. (There were two concurring votes and no dissents.)

Prepared by John Reaves