HomeMy WebLinkAboutSS2 - CEQA Determinations & Land Use ApprovalsCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Study Session Agenda Item No. ss2
(September 27, 2005)
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Aaron C. Harp, Assistant City Attorney
Aaron Harp, x. 3131, aharp @city.newport- beach.ca.us
SUBJECT: INDEMNIFICATION FROM THIRD PARTY CHALLENGES TO
CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATIONS
AND LAND USE APPROVALS
ISSUE:
Should the City require that developers indemnify, defend and hold the City harmless
from third party judicial challenges to the City's California Environmental Quality Act
determinations and approval of land use projects?
RECOMMENDATION:
Staff seeks direction whether to bring back an ordinance authorizing the imposition of
an indemnity condition on development projects.
DISCUSSION:
Background:
Currently, the City does not require a project applicant to indemnify, defend and hold the
City harmless from third party judicial challenges to the City's California Environmental
Quality Act ( "CEQA ") determinations and approval of land use projects. Judicial
challenges to the City's CEQA determinations and approvals of land use projects are
costly and time consuming. In addition, project opponents often seek an award of
attorneys' fees in such challenges. As project applicants are the primary beneficiaries
of such approvals, many cities in California have adopted ordinances that allow, when
appropriate, for Planning Commissions and City Councils to impose a condition that
requires the applicants to reimburse to the city its costs of defending against any such
judicial challenge, and bear the responsibility for any costs, attorneys' fees, and
damages which may be awarded to a successful challenger.
INDEMNIFICATION FROM THIRD PARTY CHALLENGES TO CALIFORNIA
ENVIRONMENTAL QUALITY ACT DETERMINATIONS AND LAND USE
APPROVALS
September 27, 2005
Page 2
Authority to Regulate:
Whether the City can require a project applicant to indemnify and defend the City from
CEQA determinations is not specifically addressed by the applicable CEQA statues and
regulations. The California Attorney General, however, has opined that a public agency
has the power to require a project applicant to indemnify, defend and hold the public
agency harmless from third party challenges to discretionary approvals. (See, 85 Op.
Cal. Atty. Gen. 21, (2002).)
Public Notice: N/A
Environmental Review: No environmental review is required.
Funding Availability: N/A
Prepared & Submitted by:
SIGNATURE
— (f gc-,—
Aaron C. Harp,
Assistant City Attorney
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