ADVICE FROM YOUR PARTNERS IN LEGAL

DAVID H. McCRAYAssistant Chief Counsel

Presentation for Planning Horizons Program March 4, 2009

Starting Line Up

• The Attorneys & How we can help• Intergovernmental Review (IGR) Authority

—impacts mitigation• Importance of comments to Planning

Commission & Council/Supervisors• Direct vs Cumulative (fair share

contributions)• Recent cases: City of Marina, City of Elk

GroveYou can observe a lot just by watching.Yogi Berra

Attorneys for IGR• The Department has four legal offices but all

IGR issues are handled by HQ Legal • We have years of experience in CEQA and

NEPA• We want to be involved “early and often”• We will attend meetings with project

proponent/city/county etc.• We’ll participate in training sessions• Contact me for an attorney assignment

Pair up in threes.Yogi Berra

Impact Mitigation Authority

• California Environmental Quality Act– Must mitigate for significant impact—traffic

• CA Streets & Highways Code- sec 670 et ceq, 671 and 672– Encroachment permits and conditions

• Local Development-Intergovernmental Review (LD-IGR)“At Caltrans, we are proud to be a partner with local jurisdictions and work with them throughout their land use planning and decision-making processes, consistent with the requirements of the California Environmental Quality Act (CEQA), Streets and Highways Code, and planning law, in order to avoid, eliminate or reduce to insignificance, potential impacts of development to the State Highway System.”

If you don’t know where you’re going, chances are you will end up somewhere else. Yogi Berra

CEQA

Importance of Commenting on the Environmental

Document• Must comment to preserve legal action• CEQA requirement—but can comment on

anything in your Petition• Comment at Planning commission• Comment at City council meeting• We will help the Districts with your

comments

The future ain’t what it used to be. Yogi Berra

Goal

• Department’s responsibility is the safe operation of the State Highway System

• Department must review requests for access to the SHS or modification of existing access and require any necessary mitigation

Comments

• Why are comments important?– Puts our concerns into the public record and

the lead agency on notice– We are rarely the only petitioners in a lawsuit

After striking out on three bad pitches: "How can a pitcher that wild stay in the league?"Yogi Berra

Direct vs Cumulative Impacts

• We seem to have this discussion often with project proponents

• Direct Impacts (CEQA Guidelines 15126 et seq.)—impact on the environment from the proposed project

Cumulative Impacts

• Cumulative impacts (CEQA Guidelines 15355 and 15130)– “two or more individual effects which, when

considered together, are considerable or which compound or increase other environmental impacts…may be from a single project or a number of separate projects.”

Fair Share Mitigation

• Fair Share mitigation– Traffic Study!!! – Needs to have Nexus – Can be Phased– Important to negotiate or State gets left

“holding the financial bag”– Legal will assist you—other party usually has

attorney present

Cut the pizza into four slices, I’m not hungry enough to eat eight”Yogi Berra

Litigation

• Should you anticipate the need for litigation, please contact us so we can work with you.

• CEQA requires that challenges must be filed within 30 days of the filing of the Notice of Decision

• We are the attorneys that will be taking the case to trial.

Early & Often

• Attorneys will work with you on your comments and any questions you have regarding the document

• Attorney relies on your expertise—Partnership

• Goal is to communicate with lead agency • Want to avoid litigation

Recent Cases

• City of Marina vs. California State Univ– University stated it could not mitigate off-

campus– Great holding regarding mitigation for impacts

• City of Elk Grove– City did not study impacts to SHS– Settled with an impact fee agreement

We are here to work with you

• Please do not hesitate to contact us• Martin Keck, Brandon Walker and Judith

Carlson are working IGR/Planning issues.• Questions??

Even God’s favorite sport is baseball - In the ” Big Inning ” He made the heavens and earth. “unkown”