Real Estate and Land Use - June 2014

by Manatt, Phelps & Phillips, LLP

In This Issue:

  • Bowman v. California Coastal Commission
  • Lotus v. Department of Transportation
  • Building Industry Association Select Conference On Industry Litigation

Bowman v. California Coastal Commission

Why it matters: The Court in Bowman held that a permit condition could not be modified or deleted by a second permit that included the same project, even if the first permit had expired.

Facts: An applicant applied for a Coastal Development Permit (CDP) to develop a parcel of land in San Luis Obispo County, which included a mile of shoreline. The CDP was approved by the County, acting as the Coastal Act Permitting Authority. One condition of the CDP was a requirement that the applicant dedicate a public coastal access easement. The applicant did not appeal the issuance of the CDP or the condition of approval. After the permit became final, the applicant applied for a second CDP (CDP-2), requesting the removal of the easement condition. The County approved CDP-2, including the removal of the coastal access condition. The County approval was appealed to the California Coastal Commission. The Commission determined that the easement condition was permanent and binding on the applicant.

The Decision: The Court in Bowman held that a party who is dissatisfied with a quasi-judicial administrative decision must attack it directly by appealing the matter and, if unsuccessful, by filing a writ of mandamus. If not, the issues decided will be deemed conclusively determined against the party and so will preclude the landowner from attacking that determination in a subsequent quasi-judicial proceeding even if the condition was unlawful and even if the permit had expired.

This holding, if it stands, as a petition for review by the California Supreme Court is likely, would not be limited to Coastal Act permits and would apply to any quasi-judicial approval, such as a tentative map, a conditional use permit or a variance. This presents a significant challenge for developers and land use practitioners, who would not have expected such a result.

Practice Pointers: Some suggested responses to this decision are the following:

  • If it appears that a final decision-making body intends to impose a condition that is not acceptable to an applicant, the applicant should consider withdrawing the application before a final vote is taken.
  • If the permit becomes final, and the applicant is unwilling to accept the condition, the applicant should advise the public agency of that fact in writing and should undertake no activities authorized by the permit, because any such undertaking may be deemed to be acceptance of the permit and the condition.
  • The filing of a writ of mandate challenging the condition, as the Bowman Court held. It should be noted that there is a very short limitation period for filing challenges to land use decisions. In most cases it is 90 days, during which the petition must not only be filed but also served.

Lotus v. Department of Transportation
Filed January 30, 2014, First District, Div. Three

Why it matters: This is an otherwise run-of-the-mill CEQA case where the main problem in the EIR was the failure to incorporate a threshold of significance and to identify “true” mitigation measures for one impact area.

Facts: The project in the case was essentially highway construction to adjust the alignment of an approximately one-mile stretch of US 101 that passes through Richardson Grove State Park. This stretch of highway is north of San Francisco in an area where US 101 becomes a narrow two-lane highway as it curves through redwood groves. The primary environmental impacts resulting from the project were tree removal and the potential damage to the structural root zones of other trees caused by excavation, placement of fill and other impervious material over roots, etc. The Court found that the EIR failed to properly evaluate the significance of impacts on the root systems of old-growth redwood trees adjacent to the roadway.

Decision: A key issue at the trial court was the enforceability of the mitigation, which the EIR described but which was not part of the mitigation monitoring plan. The trial court found that the mitigation for tree roots would be implemented because Caltrans had an “Environmental Commitments Record” for the project (a tool to track the project specific environmental commitments for a given project) and because Caltrans provided assurances in responses to comments that it would incorporate the mitigation into contract plans and specifications.

However, this was not enough for the Court of Appeal. The Court found that the EIR failed to identify any standard of significance for tree roots despite the fact that there are numerous accepted standards that could have been used. Instead, the EIR’s project description merely introduced mitigation measures as part of the project description and concluded that those mitigation measures reduced impacts to a level less than significant. The Court found that “[b]y compressing the analysis of impacts and mitigation measures into a single issue, the EIR disregards the requirements of CEQA.” Since there was no threshold identified, it was impossible for the Court to determine whether the mitigation measures truly reduced impacts to a level less than significant, whether they were even required, or whether other mitigation measures would be more effective.

Practice Pointers:

  • Always have a significance threshold for anything that is identified as a potentially significant impact.
  • If your EIR is going to have mitigation measures, always identify a threshold of significance first and then impose mitigation measures to reduce impacts to a level less than significant. As opposed to project design features, which are part of the project description, mitigation measures should be geared at reducing impacts identified through a significance threshold.

Building Industry Association Select Conference On Industry Litigation

The Select Conference on Industry Litigation was held on May 3 and 4 in Squaw Valley. This semiannual conference is a gathering of industry litigators and land use practitioners for a high-level roundtable discussion of pending litigation and new regulatory developments.

Coastal Commission

  • The Bowman case discussed above was a major source of discussion.
  • Coastal Commission staff is in the process of preparing guidance relating to sealevel rise. No good is likely to result.
  • The speedy approval of the Santa Monica Mountains LCP was also discussed as an unusual circumstance.

Delta Litigation and Water Supply

  • The science upon which restrictions on pumping from the Delta are premised is faulty. Notwithstanding the acknowledgement of the flaws in the studies, the Ninth Circuit Court of Appeals held that reliance on flawed data was within the discretion of U.S. Fish and Wildlife. Contrast this holding with the willingness of courts to invalidate the analysis of regulatory agencies when the challenge is brought by environmental advocacy groups.


  • AB 440, enacted last year, is designed to replace the Polanco Act protections for property acquired by local government that may be affected by hazardous materials.
  • AB 243, pertaining to infrastructure districts, may now have the support of the Governor’s office and would make tax increment funding available under certain circumstances for infrastructure projects.

Prevailing Wages

  • This administration’s aggressive approach to making prevailing wage determinations, particularly with regard to the calculation of fair market value, is of growing concern.


  • As is the usual circumstance, there was an extensive discussion of CEQA cases and trends in the courts.
  • OPR is also preparing new guidelines to address traffic impacts. Apparently, the focus will become vehicle miles traveled (VMT) as opposed to LOS (spell out?) calculations. While this will further the sustainability agenda, it will be difficult to mitigate impacts based on VMT analysis.

Wetlands Enforcement Actions

  • The Army Corps of Engineers was dealt a setback by an Eastern California District Court order holding that a cease and desist order cannot be issued without affording the party with a due process hearing. How the Corps will react is yet to be seen as other agencies build in such procedures which the Corps could adopt. At the same time, the court’s ruling was based on the Corps’ extensive references to criminal and civil penalties that could apply if the order is ignored.




DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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