Just saying, “we’ll do it later after the project is approved” is not good enough, and not consistent with CEQA.
Saturday, November 14, 2009
Wednesday, November 11, 2009
Tuesday, November 10, 2009
Public Agency Consultant’s Failure To Timely Prepare EIR Does Not Create Liability for Developer's Damages
In a decision that affects those involved in the preparation of environmental impact reports (EIR) pursuant to the California Environmental Quality Act (CEQA), a California Court of Appeal recently held that a consultant who fails to prepare an EIR for a public agency in a timely fashion cannot be held liable to the developer for losses arising from that failure. The decision affirms strong protections for public agencies and their consultants that perform work under CEQA.
In Lake Almanor Associates L.P. v. Huffman-Broadway Group Inc., No. A122563 (Ct. App. 1st Dist. Oct. 30, 2009), the developer was to reimburse the county for the consultant’s work. The consultant failed to meet the developer’s deadlines for the project and, as a result, a second consultant was needed to prepare the EIR. The developer suffered economic losses from the delay. The county sought reimbursement from the developer for the work performed by both consultants. The developer then sued the first consultant for negligence, negligent interference with prospective economic advantage and breach of contract alleging that the developer was a third-party beneficiary of the consultant’s contract with the county.
The court found that the developer was not a beneficiary of the consultant’s contract with the county. The developer was not owed a legal duty for preparing the EIR in a timely fashion and the county’s performance of its statutory obligations to prepare the EIR did not create a contractual obligation to the developer. On the contrary, the county’s only duty was related to releasing a proper EIR to the public, not the developer. Furthermore, the provisions in the consultant’s contract requiring that the developer receive a copy of the EIR did not create liability to the developer for breach of the contract. Because no duty was owed to the developer, the court similarly found that the consultant was not liable to the developer under a negligence theory.
The court did not directly address CEQA’s timing provisions, but instead found that the developer “point[ed] to nothing in CEQA that authorizes [a developer] to bring an action against a public entity for failure to complete an EIR on time.” The court found that such claims against consultants would be contrary to the policies in CEQA because they would undermine the consultants’ independence and objectivity, and affect their availability and fees charged.
For more information on how this decision may impact your projects, please contact your BB&K attorney or an attorney in BB&K’s environmental law and natural resources practice group.
Big Wave attorney warns of Beachwood-style lawsuit if property is not developed
MONTARA FOG: WRITTEN BY DARIN BOVILLE: TUESDAY, 10 NOVEMBER 2009
David Byers is a partner in the law firm McCraken, Byers & Richardson who represent the Big Wave developers.
The warning takes issue with the environmental report prepared by Christopher A. Joseph and Associates and now in a public comment period. Byers writes that the consultant made an “inappropriate determination of certain restrictions on development” and that “any development restrictions on the site are caused by the County’s failure to maintain its own drainage channel and, of course, would subject the County to inverse condemnation if that land is subsequently not permitted to be developed.”
Byers’ warning sounds nearly identical to the Beachwood case where the City of Half Moon Bay eventually lost an inverse condemnation suit to developer Charles “Chop” Keenan over the development of wetland on the property and was subject to a $41 million judgment, later settled at $18 million.
Big Wave review period extended two more days, to Dec. 24th
MONTARA FOG: WRITTEN BY DARIN BOVILLE - TUESDAY, 10 NOVEMBER 2009
After learning that the distributed copies of the Big Wave environmental report were missing a key chapter on water issues, the County has extended the review period two additional days. The new review period will end on December 24th, Christmas Eve.
You can download the announcement from the County Planning Department here.
The notification process for the Big Wave Office Park/Sanitarium proposal has been plagued with difficulties.
At the recent MCC meting on November 4th Lisa Grote, County Director of Planning and Building, announced that the review period would be extended from forty-five days (December 7th) to sixty days (December 22nd) due to unusually high public interest in the project.
Later in that same meeting a missing chapter on key water issues was discovered in the printed copies of the report that was mailed to elected officials and citizens (and later also found in the “all-in-one” downloadable report available online). That chapter was restored to the online version on November 6th and was said to be mailed out to recipients of the paper version today.
There have been calls for the comment period to be restarted, giving citizens sixty days from when the missing chapter was made available, which would put the end of the comment period at approximately January 11th, eighteen days more than is currently alloted.
In addition, the County announcement reads "The public review period has been extended from 45 days to 64 days...", yet sixty-four days from the start of the review period (October 22nd) is December 25th, Christmas Day. Montara Fog has contacted the County and is awaiting clarification.
UPDATE: Lisa Grote announced in an e-mail today:
At the Midcoast Community Council meeting on Wednesday, Nov. 4, it was brought to my attention that the hard copies of the Draft EIR for the Big Wave project and the compiled version of the document on the Planning Department website did not include Chapter IV. N. After consulting the CEQA statute and our legal counsel, we are extending the public review period to the close of business on Thursday, December 24, 2009. This extension means that the previously missing Chapter will be available for public review for 45 days and the bulk of the document will be available for 62 days. The project planner, Camille Leung, has corrected the on-line version and mailed copies of the chapter to all agencies and individuals that received a copy of the DEIR. She is also distributing an amended Notice of Availability to all parties on the mailing list.
The Planning Commission will hold an informational hearing on Wednesday, Nov. 18 in the Board Chambers at 9:00 a.m. as previously planned.
Regarding the confusion over the Christmas Eve versus Christmas Day and the 62-day period mentioned in Grote's e-mail versus the 64-day period mentioned in the Notice of Availability she clarifies, "Whether it's 62 or 64 days is not the relevant point, the close of the comment period is Dec. 24th at the close of business."
Sunday, November 8, 2009
The Big Wave project notification area includes mostly uninhabited fields and bluffs
MONTARA FOG: WRITTEN BY DARIN BOVILLE SUNDAY, 08 NOVEMBER 2009
Map of the Big Wave notification area. The red ring indicates the five hundred foot radius notification area, the area inside the ring is the Big Wave development site.
The Pillar Ridge mobile home park is in the upper left quadrant of the image, Princeton Harbor is right of center.
The County is required to notify neighbors of any development project. If a neighbor is building a house, for example, everyone within three hundred feet is alerted by a mailing from county staff detailing the project and inviting them to comment.
These same rules apply to Big Wave, the large commercial business part/sanitarium proposal, sited under the bluffs adjacent to Ross’ Cove, next to the airport in Moss Beach. In fact, given the size of the project the notification radius was extended to five hundred feet--which in this case includes half of the PIllar Ridge mobile home park, part of the Princeton Harbor area, and swaths of bluff and fields.
Given that the developer has refused to put up story poles on the site (those wooden frame mock-ups with orange netting) which would have alerted residents not in the limited notification area that something was going on at the site, it is no surprise that most coastsiders seems completely unaware of the proposal, even though it is well on it way in the approval process.
Map of the Big Wave notification area. The red ring indicates the five hundred foot radius notification area, the area inside the ring is the Big Wave development site.
The Pillar Ridge mobile home park is in the upper left quadrant of the image, Princeton Harbor is right of center.
The County is required to notify neighbors of any development project. If a neighbor is building a house, for example, everyone within three hundred feet is alerted by a mailing from county staff detailing the project and inviting them to comment.
These same rules apply to Big Wave, the large commercial business part/sanitarium proposal, sited under the bluffs adjacent to Ross’ Cove, next to the airport in Moss Beach. In fact, given the size of the project the notification radius was extended to five hundred feet--which in this case includes half of the PIllar Ridge mobile home park, part of the Princeton Harbor area, and swaths of bluff and fields.
Given that the developer has refused to put up story poles on the site (those wooden frame mock-ups with orange netting) which would have alerted residents not in the limited notification area that something was going on at the site, it is no surprise that most coastsiders seems completely unaware of the proposal, even though it is well on it way in the approval process.
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