Land Use Planning Outline by xiw67167

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									                       Land Use Planning Outline
I.   Local Government
     a. Structure
             i. Two fundamental government entities
                   1. Cities
                           a. Run by city councils
                   2. Counties
                           a. Run by board of supervisors
                           b. Main responsibility for unincorporated areas
            ii. Below the elected bodies are two very important elements in local
                governments
                   1. Staff
                           a. Top staff person – county administrative officer; city
                               manager
                           b. All staff below ultimately report to the top staff person
                           c. Departments
                                    i. Planning department
                                   ii. Public works
                                  iii. Parks and recreation
                                  iv. Fire
                                   v. Police
           iii. Planning commission and commission structure
                   1. Appointed by city council
                   2. Has very specific authority delegated by law
                   3. All development and land use issues go through the planning
                       commission
                   4. The commission‟s decision on a project may be
                           a. Referred to the city council as a recommendation for
                               action
                                    i. Ex. general plan amendments and rezoning
                           b. Considered a final action unless appealed to the council
                                    i. Ex. subdivisions, variances, use permits, etc.
                   5. The council may choose to follow the recommendation of the
                       planning commission, may modify or reverse the commission
                       action, or may send the project back to the commission for
                       further review
                   6. Decisions are appealable
                           a. For certain approvals, the commission is advisory only
                               (ex. general plans)
           iv. Other government agencies that are considered local level
                   1. Flood control district
                   2. Mosquito abatement agencies
                   3. Pollution control agencies
                   4. Local air district
     b. Organization


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        i. From a city standpoint, there are two different groups
               1. General law cities
                       a. Subject to the regulation under the government code
                       b. Davis and most cities are general law cities
               2. Charter cities
                       a. Set up under a charter that sets out rules and regulations
                           for governance
                       b. Tend to be the bigger cities – Sacramento has a city
                           charter
       ii. Two kinds of cities
               1. Strong city manager cities
                       a. City manager not elected
                                i. Hired by city council
                               ii. Not directly accountable to the citizens
                              iii. Controls day-to-day decisions
               2. Strong mayor cities
                       a. The mayor (elected) who runs the city council has a
                           more direct role in the administration of city functions
                       b. Has more delegated power from the city council
                       c. Controls what comes before the council
c. Brown Act
        i. California‟s open meeting law
       ii. Thou shall not conduct the public‟s business out of the public‟s eye
     iii. Meetings have to be open to the public
      iv. Applies to all agencies and elected and appointed bodies
       v. Standard for notice is 72 hours
               1. There are some provisions for emergency meetings
      vi. Exceptions
               1. Specifically listed in Brown Act
                       a. Litigation issues
                                i. Has to be pending or threatened litigation
                               ii. If the city or agency is considering filing a
                                   lawsuit
                       b. Personnel issues
                       c. Property/acquisition based decisions
                       d. Etc.
               2. The public isn‟t there but is supposed to be informed about
                   what the closed meeting is about (basis for which the meeting
                   is closed)
                       a. After the meeting, have to report out the basic or
                           generalized information of what was discussed
     vii. Never can have a situation where more than a quorum are participating
           in a decision making event
               1. A majority can‟t sit down and talk about city business
                       a. Exceptions: ribbon cuttings, retirement dinners, etc.




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     viii. Can‟t have serial meetings where X talks to Y about city business and
            then Y talks to Z about the same business
                1. Also couldn‟t have a third party talk to X, Y, and Z – can‟t
                    carry information between them
      ix. A member who attends a meeting during which action is taken in
            violation of the Brown Act, with wrongful intent to deprive the public
            of information to which it is entitled under the Brown Act, is guilty of
            a misdemeanor
       x. A court can:
                1. Enjoin a city from violating the Brown Act
                2. Declare null and void an action taken in violation of the Act
d. Local Agency action
        i. Two kinds of local agency actions
                1. Legislative/Quasi-legislative
                        a. An action that applies on a broadly based scale
                                 i. Ex. zoning ordinance, general plan adoption,
                                    specific plans, pre-zoning, annexation
                        b. If the city were to say, we‟re going to rezone a
                            particular part of the city, it is still a legislative act
                        c. Even if the zoning ordinance is only going to apply an
                            individual parcel (because he says so)
                        d. When city takes action, going through an ordinance
                            proceeding
                                 i. Has to come to the council twice (County only
                                    has to do one)
                                         1. Full hearing with decision made
                                         2. Brought back from a second reading
                                            before it can be adopted
                2. Adjudicatory/Quasi-adjudicatory
                        a. An action that pertains to an individual location
                                 i. Ex. use permit, variance, tentative subdivision
                                    map, other development permits
       ii. Two kinds of approvals
                1. Ministerial approvals
                        a. If you‟ve filled out the application correctly and paid
                            fees, the city has to issue the permit
                                 i. Ex. building permit
                2. Discretionary permit
                        a. City can issue based on its own discretion
                        b. No requirement that they issue an approval
                                 i. Reasons
                                         1. Against policy
                                         2. Environmental impact
                                         3. Controversial
                                         4. Etc.
e. Initiative and referendum



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              i. When you adopt and amend an ordinance, that is subject to the powers
                 of imitative and referendum
             ii. Initiative – power reserved to people to vote on an action and bring it
                 into legal fruition
            iii. Referendum – the power to undo an action by a legislative body
                     1. When a referendum petition on a zoning ordinance will cause
                          an inconsistency with the general plan, it cannot be processed
                     2. Once you get the requisite number of signatures, the approval
                          is suspended


II.   The Doctrine of Nuisance
      a. Police Power
              i. The legal basis for all land use regulation of the police power of the
                 city/county to protect the public health, safety, and welfare of its
                 residents
                     1. A land use regulation lies within the police power if it is
                         reasonably related to the public welfare
             ii. A city may exercise its police power to provide a “modern,
                 enlightened, and progressive community”
                     1. Regulations affecting economic interests in real property are an
                         appropriate exercise of the police power
                     2. Aesthetic interests are also considered a substantial
                         governmental interest that a city can address under its police
                         power
                             a. Preserving character and desirable aesthetic features
                             b. Mental health is included in the public health
      b. Nuisance
              i. Way of controlling land use
             ii. Negative externalities
           iii. Typically an activity that is a recurring one
                     1. Ex. smoke out of a chimney
            iv. Doesn‟t have to be regular to be considered a nuisance
             v. Interference with physical condition of another‟s property or physical
                 impact or effect on another‟s health, wellbeing, etc.
                     1. Doesn‟t qualify: affected property owner merely suffers an
                         economic impact
            vi. Coming to the nuisance
                     1. If person moves next to smoke producing property, they can‟t
                         sue for nuisance
                     2. They can still go to the city to complain
           vii. Valuation
                     1. When a property creates some sort of impact, look at the value
                         of the process
          viii. If you are operating a facility in compliance with zoning there is a
                 presumption in CA that that is not a nuisance activity



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             ix. Nuisance law is retroactive
                     1. Gave birth to zoning which is much more forward looking
              x. Litigation
                     1. Typical remedy is damages and injunction
                     2. Can‟t do an anticipatory nuisance action
                     3. When nuisance claims are filed, they are usually filed in
                         conjunction with other claims
                            a. CEQA claim, takings claim, violation of some permit


III.   Zoning – Legislative act
       a. History/Background
               i. Began as an outgrowth of dense urbanization in New York City
              ii. Really a response to the concept of high-rise development
            iii. Just because you own property doesn‟t mean you have the right to
                  develop it
                     1. City council can change the allowable uses at any time
             iv. All cities, counties have to have a zoning ordinance
                     1. The State Zoning Law applies to general law cities and all
                         counties
                              a. Does not apply to a charter city except to the extent that
                                 the city adopts it by charter or ordinance
              v. Zoning is considered a CEQA project and have to go through
                  environmental review
             vi. Adoption or amendment procedures
                     1. Requires notice
                              a. Posting
                              b. Has to be published in newspapers
                              c. If there‟s not, the action can be nullified
                     2. Has to be consistent with the general plan
                              a. If a zoning ordinance changes a land use and the
                                 general plan differs, that would be considered
                                 inconsistent
                                      i. The zoning is void from its inception (void ab
                                         initio)
                              b. If you amend the general plan (say general plan says all
                                 agriculture and zoning is consistent with that) to have
                                 one section be commercial. Now there is an
                                 inconsistency
                              c. Zoning ordinance must be brought into consistency
                                 within a reasonable amount of time
       b. Zoning Controls
               i. Two types of zoning regulations
                     1. Regulations of types of uses
                     2. Regulations of physical attributes
       c. Zoning Flexibility



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  i. Two basic types of substantive amendments to zoning ordinances
        1. Rezoning
                a. Reclassification of the zoning applicable to a specific
                    property, designating a change from one district to
                    another district
                b. Usually involves a change in the zoning map with no
                    change in the text
        2. Text amendments
                a. Changes in the permitted uses or regulations on
                    property within particular zones or citywide
                b. Usually involves amending the text of the zoning
                    ordinance but not the zoning map
 ii. Variance
        1. A permit issued to a landowner by an administrative agency to
            construct a structure not otherwise permitted under the zoning
            regulations
        2. Statutory justification
                a. The owner would otherwise suffer unique hardship
                    under the general zoning regulations because his
                    particular parcel is different from the others to which
                    the regulation applies due to its size, shape, topography,
                    location, or surroundings
                b. Has to be some sort of physical impediment or
                    constraint that prevents you from using the property
        3. Can‟t be used for use relief
                a. Couldn‟t get a variance to build densely packed
                    residential housing development in an agricultural zone
        4. May not be granted if it will adversely affect the interests of the
            public or of other residents and property owners in the vicinity
        5. Any similarly situated property owner would be granted the
            same relief
                a. Not a special privilege
        6. Economic hardship is not a sufficient basis
        7. Variances are discretionary
                a. Have to go through notice and hearing procedures
iii. Conditional Use Permits (CUPs)
        1. Following a list of permitted uses in each zone, a local zoning
            ordinance will provide for other uses that are not permitted as a
            matter of right, but for which a CUP must be obtained
        2. Zoning tool that give expanded controls to the city as to what it
            is going to allow to occur in a given location
                a. Ex. gas station, dry cleaner, kennels, grocery store
        3. Gives issuing agency additional control over the land use
                a. City can add permit conditions
        4. Runs with property
iv. Nonconforming use



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             1. Use that exists on a piece of property – something about the
                 status of the property but the use continues to exist
                     a. Ex. piece of property has industrial use. City changes
                         area to residential; industrial use now nonconforming
                         use
             2. Rule
                     a. They can stay there and remain in existence for what is
                         considered a reasonable amortization period
                              i. If it sufficient, then no additional compensation
                                 is necessary
                     b. Minor repairs are acceptable but if the building burns
                         down, you can‟t rebuild it
                     c. Nuisance uses can be removed immediately without
                         amortization
       v. Planned unit developments (PUDs)
             1. Tool by which jurisdictions can allow custom development
             2. Ex. Zoning says you can have ten units per acre. Developer
                 comes along and buys a 100-acre parcel and wants to fill it up.
                     a. From a quality of life and environmental viewpoint, this
                         is horrible
                     b. City could do a PUD – cluster 1000 units into 40 acres
                         and leave the rest open space
                     c. Air quality and transportation
                              i. The denser the development, the more transit
                                 friendly the development
      vi. Prezoning
             1. A city may prezone unincorporated territory outside its limits
                 for the purpose of determining zoning that will apply to such
                 property in the event of subsequent annexation to the city
             2. Becomes effective at the same time the annexation becomes
                 effective
     vii. Design Review
             1. Process in project approval
             2. Agency to have a control check on what the project is going to
                 look like
             3. Important with respect to historic areas or when you‟re trying
                 to retain or preserve a theme in an area
d. Growth Control (pg. 7 of reading notes)
       i. Reasons for growth control measures
             1. Development pressures
             2. Quality of life
             3. Preservation of agricultural lands as an economic base
             4. Exclusion
             5. Property values
      ii. Factors with problems created by dynamic growth
             1. Rate of growth



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               2. Sequence of growth
     iii. Growth control is a regional issue but it is dealt with city-by-city
               1. Takes the problem and pushes it beyond the boundaries of the
                   jurisdiction
     iv. Problem if growth control measure interferes with housing availability
e. Congestion Management
       i. Proposition 111
               1. Created a new regional planning agency for each county called
                   a Congestion Management Agency (CMA)
               2. Require cities and counties to maintain specified levels of
                   services on identified roadways of regional significance
                       a. If local government fails to comply, its share of Prop
                            111‟s gas tax revenue will be withheld
      ii. Transfer of development rights (TDR)
               1. Allows a city to assign a development right to a parcel of
                   property that in turn can be transferred to another parcel
               2. Once the transfer has occurred, a legal restriction on the
                   sending site usually prohibits any future use of its transferred
                   development potential
                       a. This permits the receiving site to be legally developed
                            with additional floor area, dwelling units, or parking
                            spaces
f. Zoning litigation
       i. A zoning ordinance is valid if it is reasonably related to the public
          welfare
               1. The burden rests with the party challenging the
                   constitutionality of an ordinance to present the evidence and
                   documentation that a court will require in undertaking a
                   constitutional analysis
                       a. Exception: when city adopts an ordinance that directly
                            limits the number of dwelling units
      ii. Test to determine whether a land use regulation bears a reasonable
          relationship to the regional welfare
               1. Forecast the probable effect and duration of the restriction
               2. Identify the competing interests affected by the restriction
                       a. Ex. open space v. affordable housing
               3. Determine whether the regulation, in light of its probable
                   effect, represents a reasonable accommodation of the
                   competing interests
                       a. Maintaining the character of residential neighborhoods
                            is a proper purpose
     iii. A land use ordinance (includes zoning) cannot be so vague or
          uncertain that a person of common intelligence and understanding
          must guess as to its meaning
               1. Courts have permitted a substantial amount of vagueness




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                               a. The legislative body needs to be able to delegate broad
                                   discretionary authority to administrative bodies if the
                                   community‟s zoning business is to be done without
                                   paralyzing the legislative process
            iv.    Motives of city council are irrelevant
                       1. Exception: unlawful purpose such as discrimination
             v.    Zoning ordinances regulating adult businesses will be upheld as not
                   violating the Free Speech Clause of the 1st Amendment if the
                   ordinance is
                       1. A content neutral “time, place, and manner” regulation
                           designed to
                       2. Serve a substantial governmental interest, and
                       3. It allows for reasonable alternative avenues of communication
            vi.    RLUIPA
                       1. A government may not impose or implement a land use
                           regulation in a manner that imposes a substantial burden on
                           religious exercise unless the government demonstrates that the
                           imposition of the burden is in furtherance of a compelling
                           governmental interest and is the least restrictive means of
                           furthering that interest
                       2. Religious exercise
                               a. Includes the use, building, or conversion of real
                                   property for the purpose of religious exercise
                               b. Does not have to be compelled by, or central to, a
                                   system of religious belief
            vii.   Courts scrutinize more closely a city‟s action in furthering aesthetics
                   when the action could jeopardize a citizen‟s right to free speech
                       1. Also cannot infringe upon certain registered trademarks (can‟t
                           compel alteration of the mark)


IV.   Vested Rights
      a. Vested Rights
             i. Basic rule
                    1. If a city changes its land use regulations, a property owner
                       cannot claim a vested right to build out a project unless he has
                            a. Obtained a building permit
                            b. Performed substantial work, and
                            c. Incurred substantial liabilities in good faith reliance
                                upon the permit
                                    i. Substantial good faith reliance on a validly
                                       issued building permit
                                   ii. Ex of not good faith reliance – if you got a
                                       permit but knew there was something wrong
                                       with it but went out and spent money anyway




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                                      1. If the normal course of development
                                          wouldn‟t have called for you to spend
                                          money that quickly, suspicions are raised
      ii. The rights that are vested are largely subject to the laws that were
          applicable at the permit was issued (Ex. zoning restrictions; not fire
          codes
     iii. The rights that may vest upon reliance on a governmental permit are
          no greater than those specifically granted by the permit itself
     iv. Once a developer has a vested right to develop, that developer is
          largely immune from subsequent governmental actions that would
          preclude that development.
              1. Consistent with the principle that the voters may not do by
                  initiative what the city council cannot do, an initiative cannot
                  interfere with a vested right to develop
      v. Pre-development activities can take place before final permitting
              1. Example – grading
              2. Going to spend a lot of money on fees (architects, for example)
              3. Those activities are not the same as acquiring a building permit
              4. Notwithstanding the fact that the developer spends a ton of
                  money in reliance on /in pursuit of this activity, it was an
                  insufficient basis for creating a vested right
b. Development Agreements – legislative act
       i. Development agreements between a developer and a local government
          limit the power of that government to apply newly enacted ordinances
          to ongoing developments
              1. Locks in the laws, rules, regulations, and policies as they
                  existed at the date the agreement was entered
                       a. Exceptions:
                               i. Subsequent local laws if consistent with DA
                              ii. Subsequent state and federal laws
              2. Has to include:
                       a. Provisions for duration
                       b. Has to specify permitted uses
                       c. Has to identify density/intensity of uses
                       d. Has to describe maximum height and size of buildings
                       e. Provision representing any lands dedicated for public
                           purposes (schools, fire station)
              3. Has to be consistent with general plan
      ii. Contract between city/county and landowner
              1. Tend to apply to larger, more long-term projects
              2. No unilateral changes allowed – both parties must agree to
                  revisions
     iii. Purpose
              1. To allow a developer who needs additional discretionary
                  approvals to complete a long-term development project as




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                         approved, regardless of any intervening changes in local
                         regulations
                      2. Developer gets certainty
                      3. City gets certainty and greater concessions/conditions
             iv. When DA is obtained and finalized, it gives the developer a vested
                  right
              v. Process
                      1. Negotiation led by developers and city staff
                      2. Once terms are agreed upon, has to go before city council for
                         approval
                             a. City has ability to deny it – discretionary approval
                             b. When this goes before the city for approval, this is the
                                 first and only time the public gets to see and comment
                                 on DA
                      3. Projects have to be within the city‟s sphere of influence
             vi. Annual review requirement
                      1. Agency is required to step in on an annual basis and make sure
                         obligations are met and adhered to
                      2. Private person can sue to force agency to check up – enforce
                         obligations in DA
                      3. If agency finds substantial noncompliance, it can cancel the
                         agreement
            vii. DAs are CEQA projects
           viii. DA litigation
                      1. Subject to referendum process
                             a. 30 day period after adoption in which signatures can be
                                 collected to submit plan to voters
                      2. 90-day statute of limitations to challenge adoption or
                         amendment of a DA
       c. Vesting Tentative Maps – adjudicatory act
               i. Purpose
                      1. To give a statutory vested right that will be effective earlier
                         than a vested right established pursuant to Avco
              ii. Approval is unilateral
                      1. Cities must process a properly submitted vesting tentative map
                         application and approve or deny it based on statutory criteria

                                       Comparison
           Vesting Tentative Map                         Development Agreement
Processing mandatory; cannot refuse             Elective; city‟s discretion whether to enter
application
Exactions subject to statutory and case law     Ad hoc negotiation – exempt from
restrictions (e.g. „nexus‟)                     development project fees; waiver potential
Permits are discretionary; subject to vested    May see to alter future permit process;
current law                                     have city commit to future issuance of
                                                entitlements


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        Locks in rules when application „complete‟      Normally locks in rules at execution of
                                                        agreement (agreement may provide
                                                        otherwise)
        May Act limits vesting life of tentative and    Longer life for agreement; tentative (or
        final maps; incorporation exception             vesting tentative) map and certain permits
                                                        may be extended for life of agreement
        Does not limit other agencies (e.g. school      Does not limit agencies that are not parties
        districts)                                      (incorporation/annexation exception)
        Voters cannot referend (adjudicatory act)       Subject to referendum (legislative act)
        No contrary future rules unless needed to       No contrary rules unless consistent with
        prevent situations „dangerous‟ to               agreement
        health/safety or changes in state/federal law
        City must have implementing regulations       Local procedural regulations needed if
        (if not, Map Act governs)                     requested by applicant, otherwise use
                                                      statute
        Generally, 90-day statute of limitation after Generally, 90-day statute of limitation to
        approval to file suit challenging             challenge adoption, amendment, or
                                                      modifications
        Incorporating (new) city is subject to        With certain exceptions, both incorporating
        county-approved vesting tentative map;        city and annexing city are subject to
        annexing city is not subject                  county-approved agreement


                d. Permit Streamlining Act
                        i. Purpose – to expedite the permitting process
                       ii. Fundamental rules
                              1. Applies only to non-legislative approvals
                                      a. It doesn‟t apply to a project that requires approval by a
                                           legislative act such as a general plan amendment or a
                                           rezoning
                      iii. Process
                              1. Submission of application to the city for normal course of
                                  process
                              2. When the application is submitted, the city has 30 days to make
                                  assessment as to whether the application is complete or not
                              3. If the application is found not to be complete within the 30
                                  days, the city is obligated to go to the applicant and request that
CEQA process is                   further information
going on at the               4. If the city neglects through oversight, neglect, etc, to request
same time                         the missing information within the 30-day period, the
                                  application is deemed complete
                              5. If the application is accepted or deemed complete, then that
                                  starts the process
                              6. The way the Act now reads: once environmental documents are
                                  approved, the city has a certain amount of time to review the
                                  project


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                            a. EIR  180 days
                            b. Negative declaration (Neg. Dec.)  60 days
                            c. Timelines are subject to extensions – can add 90 days
                    7. If the city misses the deadlines, the project is deemed approved
                    8. The public is boxed out of the process
                    9. There has to be some kind of notice before the deemed
                       approval date
                            a. Failure to have notice can screw with the deemed
                                approval


V.   Findings
     a. Statements made by the deciding agency explaining their decision and its
        underlying basis
             i. Connecting the evidence upon which their decision is based to the
                decision
            ii. Explanatory pathway between evidence and decision
           iii. No decisions made in a vacuum or made from an empty record
     b. Findings are required for adjudicative acts but not legislative acts
             i. There are some instances where an agency should have findings even
                for legislative acts – show that it isn‟t arbitrary
     c. Three recipients who are helped by findings
             i. Decisionmakers
                    1. Helps council members understand their own decision
            ii. Public
                    1. Gives public the ability to examine a decision made by the
                        agency and get some degree of confidence that the council
                        made its decision in an informed manner
           iii. Reviewing court
                    1. Judge is temporally removed from decision
                             a. Information is older
                    2. Administrative record may be too big to review
                    3. Findings are the one mechanism where the decision is
                        explained and every aspect is connected to evidence
     d. Findings have to be based on substantial evidence on the record
             i. There must be evidence in the record to support the findings
                    1. May consist of staff reports, written and oral testimony, the
                        EIR, exhibits, and the like
                    2. Relevant personal observations
     e. Five purposes for making findings (Topanga)
             i. To provide a framework for making principled decisions, thereby
                enhancing the integrity of the administrative process
            ii. To facilitate orderly analysis and reduce the likelihood the agency will
                leap randomly from evidence to conclusions
           iii. To serve a public relations function by helping to persuade parties that
                administrative decisionmaking is careful, reasoned, and equitable



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             iv. To enable the parties to determine whether and on what basis they
                 should seek judicial review and remedies
              v. To apprise the reviewing court of the basis for the agency‟s decision


VI.   General Plan – Legislative act
      a. Introduction
              i. General plan provides the blueprint for development through the
                 community
                     1. Considered the constitution for all future development
                     2. Covers all land in city and sphere of influence
                             a. Sphere – where city has legal ability to control/annex
                                      i. This area would be under county general plan
                                          before annexation
             ii. Shoe fits doctrine
                     1. Address issues in plan to the extent that they fit what you have
                         to offer
                     2. There are always going to be aspects that are called for by the
                         statute that don‟t apply
                             a. Truckee doesn‟t have to deal with tsunamis
                             b. Write sentence that recognizes the law and then say it
                                  doesn‟t apply
      b. Seven Mandatory Elements
              i. Land use (a)
                     1. Land use map
                             a. Map of city that shows where different land uses are
                                  going to be located
                     2. Must include standards of:
                             a. Population density (measured in numbers of people)
                             b. Building intensity (using measures such as site
                                  coverage, floor-to-area ration, building type and size, or
                                  units per acre)
                             c. See Twain Harte (pg. 18 of reading notes)
             ii. Circulation (b)
                     1. Consisting of the general location and extent of existing and
                         proposed major thoroughfares, transportation routes, terminals,
                         any military airports and ports, and other local public utilities
                         and facilities all correlated with the land use element of the
                         plan
                     2. Heightened consistency correlation between circulation and
                         land use planning
                     3. Level of Service (LOS)
                             a. Level A – super-unimpeded
                             b. Level F – grid-lock
                             c. Deals with capacity on street segments
                     4. Intersection levels of service



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                a. Deals with waiting time
        5. Projects have to not exceed the LOS
iii. Housing (c)
        1. Identifies and analyzes existing and projected housing needs
           and includes a statement of goals, polices, quantified
           objectives, and scheduled programs for the preservation,
           improvement, and development of housing
        2. A city must consider economic, environmental, and fiscal
           factors, as well as community goals set forth in the general plan
        3. Must assess the housing needs of all economic segments of the
           community and include an implementation program formulated
           to meet those needs
        4. If the housing element limits the number of new housing units
           constructed annually, the city must make findings that justify
           reducing the housing opportunities of the region including:
                a. The city‟s appropriate share of the regional need for
                   housing
                b. Specific housing programs and activities undertaken to
                   fulfill the requirements of the housing element
                c. How the restriction promotes public health, safety, and
                   welfare
                d. The fiscal and environmental resources available to the
                   local jurisdiction
iv. Conservation (d)
        1. Addresses the identification, conservation, development, and
           use of natural resources including water, forests, soils,
           waterways, wildlife, and mineral deposits
        2. Primary focus on natural resources
 v. Open space (e)
        1. The plan for the comprehensive and long-range preservation
           and conservation of open space land
        2. Must specify plans and measures for preserving open space for
           natural resources, for managing the production of resources, for
           outdoor recreation, and for public health and safety
        3. Must contain
                a. Goals and policies for preserving and managing open
                   space
                b. An inventory of all open space property, whether
                   privately or publicly owned
        4. Purpose
                a. To assure that cities and counties recognize that open
                   space land is a limited and valuable resource which
                   must be conserved wherever possible
                b. To discourage premature and unnecessary conversion
                   of open-space land to urban uses and noncontiguous
                   development patterns



                             15
      vi. Noise (f)
              1. Identifies and appraises noise problems in the community
              2. Projected noise levels are used as a guide for establishing a
                  pattern of land uses in the land use element that minimizes the
                  exposure of community residents to excessive noise
              3. Calls for a greater level of quantification than some of the other
                  elements
                      a. Noise contours
     vii. Safety (g)
              1. Establishes policies and programs to protect the community
                  from risks associated with seismic, geologic, flood, and
                  wildfire hazards
    viii. Cities can add elements that are specific to their own needs
              1. Examples
                      a. Natural resources element
                      b. Mining element
                      c. Cultural element
                      d. Seismic safety element
                      e. Coastal element
c. Adequacy
       i. Of the 7 elements, the city, when it adopts the plan, can keep them
          indefinitely
              1. Subject to two criteria
                      a. Individual elements and plan itself need to be kept
                           current
                      b. Exception
                                i. Housing element must be updated every five
                                   years
                               ii. Higher approval requirements
d. Consistency Requirements
       i. There must be internal consistency within the general plan
      ii. Everything must be consistent with the general plan
              1. Any subordinate land use action, such as a zoning ordinance,
                  tentative map, or development agreement, that is not consistent
                  with a city‟s current and legally adequate general plan is
                  invalid at the time it is passed
              2. An action, program, or project is consistent with the general
                  plan if, considering all its aspects, it will further the objectives
                  and polices of the general plan and not obstruct their attainment
     iii. The ultimate decision regarding consistency is legislative – needs
          findings to support
              1. The consistency requirement only addresses future growth
e. General Plan Amendments – legislative act
       i. Two kinds of amendments
              1. Comprehensive general plan amendment – redo plan
              2. Project specific update



                                     16
              ii. Each jurisdiction is allowed only 4 general plan amendments per year
                      1. Law allows for bundling
                              a. Can take 4 general plan amendments and spread them
                                  out through the year
                              b. As each one comes up, all the changes you want up to
                                  that point to do are done in one sweep
                              c. Cities usually wait until there is a critical mass of
                                  changes
        f. General Plan Litigation
               i. From a legal standpoint, the elements are equally weighted
              ii. Statute of limitations – 120 days
                      1. Often though people bring them earlier because a CEQA
                          challenge has 30 day SOL
             iii. Burden of proof
                      1. Those challenging the plan must demonstrate that the plan is
                          inadequate, except in the case of growth control provisions,
                          where the burden of proof is shifted to the city
                      2. Also up to challenger to demonstrate the existence of a nexus
                          between any plan inadequacies and the project or action being
                          challenged
             iv. Courts reviewing them consider whether the adoption or amendment
                  was arbitrary, capricious, or entirely lacking in evidentiary support
                      1. Also determines whether the plan substantially complies with
                          the statutory criteria
                      2. Housing element, because it is subject to more detailed
                          requirements, faces closer judicial scrutiny


VII.    Specific Plan
        a. Think of them as baby general plans
        b. Not the same mandatory elements – lower threshold
                i. Set out by statute
        c. Used for the systematic implementation of the general plan for particular
           geographical areas
        d. The specific plan must include a statement of the relationship of the specific
           plan to the general plan
                i. The consistency doctrine requires more than that a specific plan recite
                   goals and policies that are consistent with those set forth in the county
                   general plan
               ii. An outright inconsistency is not required for a finding of inconsistency


VIII.   Impact of Water of Land Use
        a. There has been an historical connection between water (supply and
           availability) and land development




                                             17
b. The linkage between land use law and policy development for water has never
   been very strong
        i. The idea is to build the stuff and figure out the water later
       ii. Acre foot of water covering an acre
               1. The amount of water for a family of 4 for a year
c. Part of the problem is there has been a standard that public water agencies
   have an obligation to serve development
        i. Water has to be supplied at reasonable rates and subject to reasonable
           regulations
               1. Spreading out is far more water intensive that building up
               2. Historically there has been a shortfall between water supply
                   and water demand
d. Groundwater overdraft
        i. When you pump groundwater, the groundwater table goes down
               1. That will continue until it is depleted or the water table is
                   recharged
                       a. Rainfall, some manmade recharging processes
e. What are the linkages between water supply and land use?
        i. Growth primarily is dealt with at the local level
       ii. The primary vehicle is general planning
               1. Supposed to have population figures and projections
               2. The general plan statutes have multiple references to water
                   supply issues
               3. All done at city and county level – not tied to water supply
                   agencies
      iii. Often the ideas of the two parties (city and water agency) don‟t meet
               1. City supposed to consult with water agency for general plans
                       a. Have to have 3000+ water connections for public
                           agency
               2. Advisory requirement
               3. General plans are CEQA projects
                       a. Agencies will in theory have opportunity to comment
                           on any CEQA document for general plan adoption or
                           revision
                       b. Problem – no law that say agency has to comment
f. Urban water management plans
        i. Required for any water supplier that has 3000 customers or draws
           3000 af
       ii. 20 year horizon
      iii. Must be updated every 5 years
      iv. Must be tied to population projections
g. SB 901
        i. Attempt to build on water plans
       ii. Works through CEQA
      iii. Deals with water suppliers and residential projects of greater than 500
           units or equivalent commercial (5000K retail, 250K office)



                                    18
      iv. Water suppliers need to assess whether 20 year projections are going
           to be sufficient for the proposed project
               1. Has to go beyond proposed project as well as the needs of other
                    projects that are coming online
       v. Has a dearth of follow-through – no teeth in statute for non-
           compliance
      vi. Just because the project doesn‟t fit in plan doesn‟t mean it can‟t be
           adopted, agency just makes findings to explain why it is adopting the
           project
     vii. Big loophole – even with complying agency, size cutoff
               1. Everyone started doing 495 unit subdivision
               2. Can‟t chop up big project to beat the SB 901 requirement
    viii. Requires general plan amendment or update
      ix. Flaws
               1. No mechanism for coordination between agencies
h. SB 610
        i. Applies to projects over 500 units or equivalent commercial (500K
           retail, 250K office)
       ii. Evaluate specific water needs of individual projects and future needs
           of other projects in water service area
     iii. Gets rid of general plan amendment requirement of SB 901
      iv. As long as the project does CEQA, it has to contain water supply
           analysis
       v. If area hasn‟t had a urban water management plan, have to do 20 year
           analysis
      vi. Part of the assessment if the express prohibition on relying on paper
           water rights
               1. Have to show how the water is going to be delivered to the
                    project
     vii. If there is to be developed a new resource for delivering water, have to
           explain in detail
i. SB 221
        i. Separate from CEQA
       ii. Same standard for triggers as above or more than 10% of service
           connections of water service supplier who has less than 5000
           connections
     iii. Tentative subdivision maps can‟t be approved without verification of
           adequate water supply
               1. No discretion
               2. Have to have absolute proof of adequate water supply and
                    written verification from water supplier
               3. Proof has to include sufficient supply for 20-year demand need
                        a. Need broken down into three categories:
                                 i. Normal years
                                ii. Single dry years
                               iii. Multiple dry years



                                    19
            iv. Take conservation measures into account
                     1. Also reclaimed water and conjunctive/multiple use objects
             v. If there is no written verification is provided, there is express language
                that allows for writs of mandate to be brought to compel compliance
            vi. Written verification has to be supported by substantial evidence
                     1. This is where historical data, existing supply, etc comes into
                         play


IX.   California Environmental Quality Act (CEQA)
      a. Introduction
              i. Patterned after NEPA
                     1. Public disclosure statute
             ii. Requires public agencies to:
                     1. Inform themselves about the environmental effects of proposed
                        actions
                     2. Consider all relevant information before they act
                     3. Give the public an opportunity to comment on the
                        environmental issues
                     4. Avoid or reduce potential harm to the environment when
                        feasible
            iii. Only applies to discretionary approvals
                     1. Ministerial approvals are not subject to CEQA
            iv. “Project” definition
                     1. Any activity which may cause a direct physical change or
                        reasonable foreseeable indirect physical change on the
                        environment
                     2. If the project can have a significant effect on the environment –
                        stay in CEQA
                     3. General plan amendments and other legislative policy
                        enactments may be “projects” subject to CEQA even if further
                        discretionary approvals will be necessary before development
                        causing physical changes to the environment can occur
                     4. Action reviewed under CEQA must encompass all components
                        of the activity that is being approved
                             a. Can‟t divide a single project into smaller components in
                                 order to avoid responsibility for considering the
                                 environmental impact of the project as a whole
             v. “Significant impact” definition
                     1. Any effect that has the substantial or potentially substantial
                        impact on the environment
                     2. There should be a benchmark.
                     3. Varies by what the impact is and what the agency is.
                             a. Each community can adopt its own threshold standards
                                 (can also adopt state model standards)
                     4. Establish threshold:



                                          20
                      a. Independent threshold in general plan
                      b. Significance standards incorporating state standards
                      c. Standards that are harder to identify like aesthetics
                          (more touchy feely)
b. Beginning the Process
       i. Lead agency usually determined by who has the primary permitting
          authority
              1. Other agencies with downstream permitting authority called
                  responsible agencies
              2. Trustee agencies – agencies with some sort of responsibility
                  over some resource (Ex. Fish and Game)
              3. Lead agency must consult with responsible and trustee
                  agencies
      ii. See Flow Chart
     iii. If an agency determines that a proposed activity is a project under
          CEQA, it will take a three-step approach
              1. Determine whether the project is statutorily or categorically
                  exempt from CEQA
                      a. If action is exempt, the agency may file a notice of
                          exemption and no further action to comply with CEQA
                          is required
              2. If the project is not exempt, prepare an initial study to
                  determine whether the project may result in significant
                  environmental effects
              3. Prepare a negative declaration, mitigated negative declaration,
                  or environmental impact report (EIR), depending upon the
                  results of the initial study
     iv. Exemptions (three kinds)
              1. If it can be seen with certainty that a project will not have
                  significant effect on the environment, it is exempt from further
                  CEQA review
                      a. Ex. contract renewal
              2. Statutory exemptions
                      a. Cover a wide range of activities, some limited to one
                          particular project and some having a more widespread
                          application
                      b. Examples
                                i. Often prison facilities
                               ii. Re-striping of streets or highways
                              iii. LA Olympics
              3. Categorical exemptions
                      a. Classes of projects that the Secretary of Resources has
                          found do not have a significant effect on the
                          environment
                      b. Examples
                                i. Minor reconstruction



                                    21
                              ii. Small land alterations
                             iii. Some existing facilities
              4. If agency files notice of exemption, there is a 35 day SOL
                      a. If it doesn‟t file an NoE, there is a 185 day SOL
      v. Initial study
              1. The initial process by which the city or agency evaluates what
                  future environmental review path the project is going to take
              2. Environmental checklist (pg. 218 in handout)
                      a. Staff will go through checklist for a variety of elements
                               i. Potentially significant impact
                              ii. Potentially significant impact unless mitigation
                                  incorporated
                             iii. Less than significant impact
                             iv. No impact
              3. Mere conclusions as to the absence of the possibility of a
                  significant effect are inadequate to support a negative
                  declaration
                      a. Agency must detail data or evidence relied on
                      b. Has to be substantial evidence in the record to support
                          each box checked
c. Negative Declarations
       i. A written statement that an EIR is not required because a project will
          not have a significant adverse impact on the environment
      ii. Sent to City Council for adoption – SOL of 30 days
d. Mitigated Negative Declarations
       i. A statement by agency that says project with have no significant
          impacts because, although there was a potentially significant impact,
          mitigation will be applied which will reduce the impact
      ii. The test for mitigated negative declaration is feasibility
     iii. 30 day SOL after adoption
e. Environmental Impact Reports
       i. The heart and soul of CEQA
      ii. Maximum level of environmental review
     iii. An agency may not adopt a negative declaration, and must instead
          prepare an EIR, if it can be fairly argued on the basis of substantial
          evidence that the project may have a significant environmental impact
              1. Substantial evidence
                      a. Enough relevant information and reasonable inferences
                          form this information that a fair argument can be made
                          to support a conclusion, even though other conclusions
                          may be reached
     iv. Types of EIRs
              1. Master EIR
                      a. Designed to provide for analysis of broad policy issues,
                          such as cumulative and growth-inducing impacts, to
                          limit the environmental review of subsequent projects



                                    22
                      b. During first 5 years after certification, an agency need
                           not review the adequacy of the master EIR for projects
                           included in the master EIR
                                i. After 5 years, the agency must determine
                                   whether a subsequent or supplemental EIR is
                                   needed
              2. Program EIR
                      a. Used to study a broad planning decision or a series of
                           projects that may have related impacts
              3. Tiering
                      a. Where general matters relevant to a project are covered
                           in one or more previously prepared EIRs or negative
                           declarations, future environmental documents may
                           incorporate and build upon the earlier ones
                      b. Does not allow deferral of review when a specific
                           project is involved
              4. Subsequent EIR – recirculation of EIR
              5. Supplemental EIR – circulation of chapter of EIR
       v. Disagreement among experts does not make an EIR inadequate
              1. Courts look for adequacy, completeness, and a good faith effort
                  at full disclosure of impacts
f. Contents of EIR
        i. Summary of project
       ii. Summary table
              1. Identifies all impacts and mitigation measures
              2. Identifies significance of impacts before and after mitigation
     iii. Project location
      iv. Relationship to any applicable plans
       v. Project description
              1. Key and huge tripping block
              2. Not acceptable to say “residential subdivision with 1000 units”
              3. This is the big attacking point in CEQA litigation
              4. Have to define phasing and duration, intensity
              5. Should extend to the entire activity that will ultimately result
                      a. Include all components of the project
              6. Must include reasonably foreseeable future activities that are
                  consequences of the project
              7. DON‟T have to include potential future projects that exist only
                  in concept and are not linked to the project the agency is
                  considering
      vi. Environmental setting description
              1. Often interchangeably used with „baseline‟ (don‟t confuse with
                  threshold)
     vii. Evaluation of environmental impacts
              1. Significant environmental effects of the proposed project




                                   23
         2. Significant environmental effects that cannot be avoided if the
            proposal is implemented
         3. Any significant irreversible environmental changes that would
            be involved in the proposed action should it be implemented
         4. Effects not found to be significant
         5. Mitigation measures: measures proposed to avoid or minimize
            the significant effects
viii. Growth inducing impact
         1. EIR required to analyze any time the project has the potential
            to induce new growth, then that analysis has to address this
         2. Identify and discuss them
         3. Not required to discuss them in such detail as project specific
            impacts but need more than half a page
         4. No requirement for mitigation
         5. Inducement of growth is not inherently a bad thing
 ix. Cumulative impact
         1. Two or more individual effects, that, when considered together,
            are considerable or that compound or increase other
            environmental impacts
         2. Should encompass past, present, and probable future projects
                a. Includes projects that have been approved or are under
                    environmental review
         3. Purpose
                a. To avoid piecemeal approval of projects without
                    consideration of the total environmental effects the
                    projects would have when taken together
         4. Two approaches
                a. List approach
                         i. Evaluation based on list of past, present, and
                            probable future projects
                        ii. Define relevant area affected and provide
                            reasonable explanation for the geographic
                            limitation used
                                1. Analysis doesn‟t stop at city limits
                b. Summary/plan approach
                         i. Evaluation based on summary of projects from
                            an adopted general plan, related planning
                            document, or previously adopted or certified
                            environmental document that evaluates regional
                            or area-wide conditions contributing to the
                            cumulative impact
         5. CAN‟T conclude that a project‟s cumulative impacts are
            insignificant merely because the project contributes to an
            existing unacceptable environmental condition




                              24
        6. Impact may be found less than significant if the project‟s
           contribution would leave environmental conditions essentially
           the same as they would be without the project
 x. Alternatives analysis
        1. Requirement under CEQA is that you have a reasonable range
           of project alternatives
        2. No Project alternative
               a. Above and beyond the reasonable range of alternatives,
                    have to include alternative of not doing the project at all
               b. Usually, there would be no impacts from not doing the
                    project
               c. But consider if the project were a wastewater treatment
                    plant – impact of not doing the project could have
                    severe impacts
               d. Think about 1000 unit residential development
                        i. No project would not have the traffic,
                            congestion, air pollution, and 3,400 new
                            residents
                       ii. If the land was zoned residential, there is an
                            expectation that it will be developed residential
                            so some project will still happen
                                 1. No project analysis will have to presume
                                    that the residents will still be coming
        3. Don‟t need to consider alternatives that:
               a. Are not reasonable or feasible
               b. Do not offer substantial environmental advantages over
                    project
               c. Do not accomplish most of the basic objectives of the
                    project
        4. The statute requires that you identify the environmentally
           superior alternative
               a. If the environmentally superior alternative is the no
                    project alternative, you have to identify another from
                    what is left
        5. Choosing alternatives that are infeasible treads the edge of
           illegality
               a. The project description drives this whole process
                        i. If you have a detailed and tight description, it
                            precludes alternatives that would kill the project
        6. Have to identify why and that the alternatives that you are
           dismissing are infeasible
xi. Mitigation
        1. Must describe feasible mitigation measures to minimize the
           project‟s significant environmental impacts
        2. Should be described specifically in the EIR and not left for
           future formulation



                              25
             3. Required to include a mitigation monitoring program
g. EIR Process
       i. Scoping
             1. Determine the scope of the EIR in consultation with agencies,
                 the public, and the applicant
             2. Agency prepares a notice of preparation of an EIR describing
                 the project and soliciting comments on the scope
      ii. Draft EIR
             1. Either:
                     a. The agency must prepare a draft EIR, or
                     b. The applicant‟s consultant may prepare the CEQA
                         documents
                              i. Agency must independently review, evaluate,
                                 and exercise judgment over the document and
                                 the issues it raises and addresses
             2. The final responsibility to provide an adequate EIR lies with
                 the lead agency
             3. The draft EIR is circulated to the public and to public agencies
                 for review and comment
             4. After receiving comments, the public agency must prepare
                 responses to significant issues raised by the reviewers and, if
                 necessary, revise the impact report
     iii. Final EIR
             1. Consists of:
                     a. Draft EIR
                     b. Comments and recommendations received on the draft
                         EIR
                     c. The responses of the lead agency to the significant
                         environmental points raised in the review and
                         consultation process
                     d. A list of persons and agencies commenting on the draft
                         EIR
                     e. Any other information added by the lead agency
             2. No public circulation requirement for final EIR
                     a. Public can still get copy of final EIR (it is a public
                         document)
                     b. Has to go for 10 days to responsible agencies
             3. After 10-day, CEQA process closes out with certification
                     a. In city, certification is done by planning commission
                              i. Certification is appealable to city council
                             ii. CEQA law requires that, regardless of who
                                 certifies the CEQA documents, ultimately the
                                 document must be appealable to an elected body
     iv. Final EIR is certified – has to happen before project can be approved
             1. CEQA
             2. Findings



                                   26
              3. Mitigation monitoring program
              4. Project
       v. CEQA certification is April 22, under Permit Streamlining Act,
          council has 180 days to approve project before it is deemed approved
      vi. The CEQA closure (certification) is not itself the final action – final
          action is when project is approved
              1. Agency required to file a notice of determination with county
                  clerk (within 5 days of approval) and perhaps state office of
                  planning and research
              2. The NOD triggers the CEQA 30-day statute of limitations for
                  filing a lawsuit
     vii. Addendum
              1. After EIR
              2. A opportunity the agency uses after CEQA review
              3. Tool for bringing up any new information and disclosing it to
                  public and decisionmakers
                       a. New info can‟t have any consequences with regards to
                           significance levels
                       b. Info can‟t be significant
              4. New information cannot take insignificant to significant
              5. Thought to be small, minor adjustments
              6. No circulation requirements – still a public document though
    viii. Required Notices
              1. Notice of preparation of EIR
              2. Notice of completion of EIR
              3. Notice of approval or determination
                       a. Filed and posted after project is approved
                       b. Initiates statute of limitations
h. CEQA Findings
       i. Specific to assessment and identification of impact and mitigation
      ii. Need to be drafted carefully
              1. Have to be supported by substantial evidence
     iii. When you make a determination that there are impacts that can‟t be
          mitigated, you do a statement of overriding considerations
              1. Overriding considerations – notwithstanding the resulting
                  impact, the deciding agency is approving the project because
                  there is significant economic, social, humanitarian,
                  environmental reasons for approving the project
              2. This is the out for impacting projects
              3. Has to be supported by substantial evidence in the record
              4. Override is virtually unassailable in court as long as there is
                  substantial evidence
i. Administrative Review and other Considerations
       i. Judicial review is precluded unless the issue was first presented at the
          administrative level.




                                    27
      ii. Although the plaintiff need not have personally raised the issue, the
          exact issue raised in the lawsuit must have been presented to the
          administrative agency so that it will have had an opportunity to act and
          render the litigation unnecessary
j. Recirculation of Environmental Documents
       i. Recirculation of a final EIR is required in 4 situations
              1. When the new information shows a new, substantial
                  environmental impact
              2. When new information shows a substantial increase in the
                  severity of an environmental impact (unless mitigation
                  measures reduce that impact to insignificance)
              3. When new information shows a feasible alternative or
                  mitigation measure that clearly would lessen environmental
                  impacts, but it is not adopted
              4. When the draft EIR was so fundamentally inadequate and
                  conclusory that meaningful public review and comment were
                  precluded
      ii. If you have a situation where an addendum can‟t be used, have to go
          into recirculation mode
              1. Impact levels going up, project changing significantly
     iii. Supplemental EIR
              1. Technically, is a revised environmental document prepared
                  before the original EIR is certified
                      a. The certification of the original EIR is on hold until the
                          supplemental is done
              2. Definition – a supplement to original EIR
                      a. Focused on those areas that need recirculation because
                          something has changed
                      b. Ex. new endangered species found on property
              3. Has to go through the same circulation process the original EIR
                  went through
                      a. 45 days of public review
                      b. Written and oral comments have to be responded to
              4. When new information comes in after supplemental EIR,
                  agency will need to do it again
                      a. This is how you wear out project proponents – keep
                          bringing in new information
                      b. Opponents of projects aren‟t supposed to do late hits
                               i. Shouldn‟t sit on information
                                      1. Impermissible under CEQA
                      c. There is some discretion – what is legitimate late-
                          arriving information and what is tactical late
                          information
     iv. Subsequent EIR
              1. Technically, post-certification
              2. Definition – revise whole EIR and go through process again



                                    28
                      3. Situation – EIR and project approved, developer wants to
                         revise project a few years later
                             a. Re-permitting process is going to trigger CEQA
                             b. Can‟t really use old EIR because of project changes and
                                 changes over time
                      4. Also goes through circulation process


X.     CEQA Litigation and Writs of Mandamus
XI.


XII.   Land Use Regulation and Indian Law/Rights
       a. Emerging area of law because of gaming and gambling
       b. There are in CA, a large number of tribes (several hundred)
               i. All but one or two are very small
              ii. Different categories
                       1. Federally recognized tribes
                       2. Non-federally recognized tribes
       c. Historically, tribal entities that did exist were located in rural removed areas
               i. There wasn‟t a lot of direct interaction or conflict
              ii. But now the rest of CA is growing out toward them
       d. States have very limited jurisdiction on tribal land – particularly over tribal
          members
       e. The big concern is activities on tribal reservations and the impacts off the
          tribal lands
       f. Think about casinos
               i. Have to bring people in – that‟s what‟s going to create the impacts
       g. In theory, CA and other states were given broader jurisdiction over tribal
          lands
               i. Public law 280 – conveyed state laws general laws upon Indians in
                   Indian country
                       1. That law was adopted by federal government without
                           consultation and consent from tribes
              ii. But mostly through judicial action, it has been scaled back
                       1. Conveying state jurisdiction over private civil litigation
                           between members
       h. Tribal projects not subject to CEQA
       i. Not subject to general plan restraints
       j. Tribes are subject to NEPA because the BIA acts as the permitting agent for
          tribal project
               i. Also subject to Clean Water Act, Clean Air Act, RCRA
       k. There are some statutes and laws that have big effects on non-Indian projects
          that have impacts on tribal members and lands
               i. American Indian Religious Freedom Act




                                            29
                1. Federal law expressing policy to allow Indians to access sites
                    and sacred objects
                2. If project has impacts on one of those sites, this law is
                    implicated
        ii. National Historic Preservation Act
       iii. Native American Graves Protection and Repatriation Act
                1. Burial sites
l. CEQA can‟t be done because state doesn‟t have permitting jurisdiction on
   tribal land
         i. Becomes an issue when reservation is doing its project and to get to
            the project, it has to improve a road – has to get approval for
            connection to main highway from Caltrans
                1. County is going to have condemn private property near
                    connection
m. Cities and tribes are starting to work together and making agreements
   (government to government) that will provide for CEQA-like review




                                    30

								
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