Thursday, January 29, 2009
While news reporters tell us that the public is putting environmental concerns on the back burner during our current financial recession, this lack of national attention doesn’t mean that environmental steps in land use law are not moving forward –- more quietly, and often through administrative law and the courts –- at the state and local level. From El Dorado County, Cal., in the northern Sierra Nevada comes this week an interesting case about a small advance of environmental demands in land use law. Under an ordinance adopted in 1998 by the mostly conservative county, developers must pay (or mitigate for, either on-site or off-site) for potential harms to rare plants in the area. This is one of many interesting adaptations of the concept of impact fees that are working their way into state and local land use law.
The county argued in the case that the fee relieved a developer of having to do an environmental impact report under the state's complex Environmental Quality Act. Not so fast, said a California Court of Appeals, reversing a lower court. Although the fee serves to mitigate potential harm to rare plants in the area, it does not cover all the purposes of the impact report, which include addressing a wider range of plants and the effects that the specific project might create. The case is California Native Plant Society v. County of El Dorado, No. C057083 (Cal. Ct. App. 3d Cir. Jan, 28, 2009).