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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 F: \users \cat \shared \CC staffReports\C EQAStudyS ession.doc