Subdivision Map Act and CEQA Compliance:

Transcription

1 Subdivision Map Act and CEQA Compliance: Mechanisms for Success Under the Subdivision Map Act and How to Streamline the CEQA Process and Minimze Litigation Risks February 23, 2006 Presented by Gregory W. Sanders John C. Condas John J. Flynn III Nossaman Guthner Knox & Elliott LLP Copyright, 2006 Nossaman Guthner Knox & Elliott LLP. All Rights Reserved. The information contained herein does not constitute a legal opinion and should not be relied upon by the reader as legal advice or be regarded as a substitute for legal advice.

2 Subdivision Map Act and CEQA Compliance: The Subdivision Map Act (Gov. Code Sec , et seq.) Presented by: Gregory W. Sanders, Esq. Nossaman Guthner Knox & Elliott LLP Phone: (949)

3 Basic Jurisdiction Conferred on Local Agencies Design and Improvement of Subdivisions 3

4 Subdivision Map Act Applies to Charter Cities 4

5 Local Ordinance Requirement 5

6 Preemption Cities and Counties Cannot Regulate Contrary to Specific Subdivision Map Act Provisions 6

7 What is a Subdivision? The division by any subdivider of any unit or units of improved or unimproved land or any portion thereof shown on the latest equalized assessment roll as a unit or as contiguous units for the purpose of sale, lease or financing, whether immediate or future. 7

8 Exemptions Exemptions from Subdivision Map Act Compliance (Gov. Code Sec ) 1. Lot Line Adjustments 2. Conveyances to and from public entities and public utilities 3. Granny units 4. Agricultural leases 5. Certain condominium, stock cooperative and community apartment projects 6. Mineral, oil or gas leases 7. Cellular telephone facilities leases if subject to discretionary action by City or County 8

9 Types of Subdivision Maps Parcel Maps Tentative Maps Final Maps 9

10 Parcel Maps 4 or fewer parcels OR No regard to number of parcels if: 1. Land division is less than 5 acres and each parcel abuts a maintained public street and no dedications or improvements are required; or 2. Creation of 20 acre or larger parcels with approved access to a public street; or 3. Industrial and commercial developments with approved access to public streets; or 4. Creation of parcels 40 aces or a quarter of a quarter section or larger. 10

11 Parcel Maps Counting Parcels: 1. All previous subdivisions by the same subdivider are counted 2. Remainder parcels not counted 3. Lots conveyed to a public entity 11

12 Tentative Maps When a final map is required, a tentative map is always required Local ordinance may require tentative parcel maps Vesting tentative parcel map may be filed even if a tentative parcel map is not required 12

13 Tentative Maps Processing Time Requirements days to determine whether tentative map application is complete (Permit Streamlining Act Gov. Code Sec (a)) 2. Advisory Agency (Planning Commission or Subdivision Committee) not authorized to approve or disapprove tentative map 50 days to act after map is filed with its clerk 3. Advisory agency authorized to act 50 days to act after map is filed with its clerk 4. No advisory agency legislative body must act within 50 days after following its next regular meting 5. CEQA time periods 13

14 Life of Tentative Maps 1. Initial life 2 to 3 years, depending on local ordinance 2. Multiple final maps if offsite improvements costing $125,000 or more (as adjusted) are imposed as a condition of approval, multiple final maps may be filed each final map filing extends remainder of tentative map by 36 months up to maximum 10 year life 3. Discretionary extensions up to 5 years 4. Moratoria automatic extension up to 5 years 5. Lawsuits involving approval of tentative map extension if local agency approved 6. Development Agreements may extend life of tentative map for term of development agreement 14

15 Conditions Imposed on Extensions City s jurisdiction limited to conditions related to length of extension City may attempt to impose new condition subdivider may either accept or reject If rejected, city may deny extension in the reasonable exercise of its police power 15

16 Map Conditions of Approval Basic Jurisdiction design and improvement of subdivisions. Nexus Requirement payment of fees, dedications, etc. must reasonably relate to the governmental interest the condition is intended to serve. California Fee Mitigation Act (Gov. Code Sec , et seq.) 16

17 Conditions Authorized by Subdivision Map Act 1. Parkland (Quimby Act) Dedication of land or payment of fees 2. Adequate Water Supply 500 or more residential units or if public water system has less than 5,000 service connections and subdivision will increase number of service connections by 10% or more 3. Reservation of elementary school sites 4. Reservations for parks, recreational facilities, fire stations, etc. 5. Street and bicycle path dedications 6. Transit facilities dedication 7. Fees for drainage and sewer facilities 8. Major thoroughfare and bridge fees 9. Groundwater recharge 17

18 Conditions Authorized by Subdivision Map Act (Continued) 10. Oversized improvements subject to reimbursement agreements 11. Soils reports 12. Setting of monuments 13. Grading and erosion control 14. Public access to public resources 15. Decision of public easements along banks or rivers and streams 16. Energy conservation - passive cooling and heating 17. Decisions for solar access easements 18. Indemnification for map challenges 18

19 Other Conditions of Approval Design and Improvement now construed to encompass public art, child day care centers, etc. 19

20 Approval and Denial Approval/Denial of Tentative Maps and Parcel Maps 1. Only ordinances, policies and standards in effect on the date map application was deemed complete shall apply to approval/denial consideration 2. Map must be denied if: A. Inconsistent with General Plan or any applicable Specific Plan B. Site is not physically suited for proposed type or density or development C. Design or improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish, wildlife or their habitats or cause serious public health problems 20

21 Findings for Approval or Denial Findings for Approval or Denial of Tentative and Parcel Maps 1. Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal. 3d 506 (1974) 2. Evidence to support findings substantial evidence standard 21

22 Final Maps Approval of a final map is ministerial, not discretionary Final map must substantially conform to the tentative map Final map must be prepared under direction of registered civil engineer or licensed land surveyor Various certificates, statements and acknowledgements required 22

23 Final Maps (Continued) Dedication of streets, utilities and other public property Improvement Agreements Improvement Security (faithful performance bonds no less than 50% or more than 100% of the total estimated cost of improvements) 23

24 Judicial Review 1. Exhaustion of administrative remedies 2. Any action to attack, review or set aside a decision regarding a subdivision or subdivision regulation, condition or approval, etc. must be commenced and served within 90 days following date of decision. 24

25 Questions Gregory W. Sanders, Esq. Nossaman Guthner Knox & Elliott LLP Von Karman Ave., Suite 1800 Irvine, CA Phone (949) Fax (949)

26 Subdivision Map Act and CEQA Compliance: How to Streamline the CEQA Process and Minimize Risk Presented by: John Condas Nossaman Guthner Knox & Elliott LLP Phone: (949)

27 CEQA Process Overview

28 Steps in the Process 1) Is the activity a project? 2) Is the activity exempt? 3) Initial Study to determine type of environmental document. 4) Prepare and process environmental document. 3

29 CEQA Applies to a Project What is a project? Project An activity which may cause either: 1) A direct physical change in the environment, or 2) A reasonably foreseeable indirect physical change in the environment, and which is any of the following: a) An activity directly undertaken by any public agency. b) An activity undertaken by a person which is supported [in some way by] public agencies. c) An activity [permitted by] public agencies. 4

30 When CEQA Review is Not Required Exemption types: Statutory Exemptions Legislature Categorical Exemptions Resources Agency Common Sense Exemption State or Local Agency Activity Not a Project 5

31 The Initial Study Starting point: project, not exempt, the lead agency shall conduct an initial study to determine if the project may have a significant effect on the environment. (CEQA Guidelines 15063). 6

32 The Initial Study Initial Study not intended or required to include the level of detail included in an EIR 7

33 The Initial Study Determine Type of Document and Scope of Document Negative Declaration/Mitigated Negative Declaration Environmental Impact Report (EIR) Prior EIR or Addendum 8

34 Initial Study Conclusion: Negative Declaration or EIR? Low threshold for preparation of an Environmental Impact Report (EIR) the fair argument test Mandatory Findings of Significance 9

35 Contents of Negative Declaration In many cases, the ND will include expanded discussion and analysis, and technical studies to support the conclusion. 10

36 Purpose of an EIR Identify the significant effects on the environment of a project Identify alternatives to the project Indicate the manner in which significant effects can be mitigated or avoided *An EIR is an informational document. 11

37 Procedural Requirements of EIRs Notice of Preparation Scoping/Consultation with Public and Responsible/Trustee Agencies 12

38 Procedural Requirements of EIRs Prepare the Draft EIR. Notice of Completion. Public Review (30-45 days). Final EIR: responses to public agencies 10 days before EIR certification. Findings/Statement of Overriding Considerations. EIR must be certified within 1 year. 13

39 Substantive Requirements for EIRs Discussion of Environmental Impacts All the environmental topics from aesthetics to utilities Approximately topics. Setting, Impacts and Mitigation Measures for each topic. Impacts of mitigation measures must be described. 14

40 California Environmental Quality Act CEQA for Due Diligence Link CEQA documentation with entitlements Inventory of entitlements Impacts analysis Political opposition Use for attacking development fees Jurisdiction of other agencies? 15

41 Streamlining CEQA Processes Use of Addendum For modification of a project, where previous EIR was certified or MND was approved 16

42 Streamlining CEQA Processes Use of Addendum (Continued) Are there substantial changes to the project requiring major revisions of the prior environmental document? Are there substantial changes that have occurred with respect to the circumstances under which the project is undertaken? or Is there new information now available which now shows that the project will have one or more significant effects on the environment, or significant impacts will be substantially more severe? If no to all three questions, then an addendum is appropriate 17

43 Streamlining CEQA Processes Subject to the more permissive substantial evidence text Addendum need not be circulated Use of Tiering, Program EIRs, Limited Exemption 18

44 Questions John Condas Nossaman Guthner Knox & Elliott LLP Von Karman Ave., Suite 1800 Irvine, CA Phone (949) Fax (949)

45 Subdivision Map Act and CEQA Compliance: How to Minimize CEQA Litigation Risk Presented by: John J. Flynn III Nossaman Guthner Knox & Elliott LLP Phone: (949)

46 CEQA Litigation: Minimizing the Risks Scoping the Issues: Initial Study Notice of Preparation Comments on EIR 2

47 CEQA Litigation: Minimizing the Risks Pay Attention to the Opposition Swallow Your Pride Be the Voice of Reason 3

48 CEQA Litigation: Minimizing the Risks Preparation of the Administrative Record Contents Timing Who Pays? 4

49 CEQA Litigation: Minimizing the Risks Belts & Suspenders: Responses to Comments Findings 5

50 CEQA Litigation: Minimizing the Risks Recirculation: Penny Wise or Pound Foolish? 6

51 CEQA Litigation: Minimizing the Risks Temporary Restraining Orders and Preliminary Injunctions: What Judges Are Really Looking for 7

52 CEQA Litigation: Minimizing the Risks The Lawsuit Is Filed Now What? Timing Priority for CEQA Litigation Is There a Fast-Track Alternative? 8

53 CEQA Litigation: Minimizing the Risks Settlement Negotiations: Reading Between the Lines Stay the Litigation? 9

54 CEQA Litigation: Minimizing the Risks Damage Control in the Worst Case Scenario 10

55 Questions John J. Flynn III Nossaman Guthner Knox & Elliott LLP Von Karman Ave., Suite 1800 Irvine, CA Phone (949) Fax (949)