For 37 years, Shute, Mihaly & Weinberger (SMW) has been a leader in the defense of our land, air, water, wildlife, and other natural resources. The following is a list of some of the firm’s more significant accomplishments.
CEQA: After successfully challenging the EIR for the Martis Valley Community Plan on behalf of a coalition of environmental groups, the firm negotiated an innovative settlement that saves most of the near-pristine valley between Truckee and Lake Tahoe and finances open space acquisition in the valley with an estimated $100 million in transfer fees on future home sales. The firm also represented a coalition of environmental and community groups in a successful CEQA challenge to the City of Stockton’s approval of a 20-year, $600 million water privatization contract, which was ordered rescinded, leading to the City’s decision to take back public control of the system.
Climate Change: The firm advised Marin County in updating its Countywide Plan, which received national recognition for its innovative policies on climate change, and in preparing the EIR for the Plan, which included both analysis and mitigation of greenhouse gas emissions. After initiating a CEQA challenge to the City of Stockton’s 2035 General Plan, the firm negotiated a landmark settlement agreement with the City and the California Attorney General, which requires the City’s preparation of a Climate Action Plan, including specific policies and programs to meet greenhouse gas reduction targets. The firm assisted in the drafting of the California Global Warming Solutions Act (AB 32) and has represented clients in California Air Resources Board proceedings to develop regulations under the Act.
Land Conservation: In one of the largest conservation deals in California history, the firm represented a coalition of major environmental groups in negotiating the landmark Tejon Ranch Conservation and Land Use Agreement, preserving 240,000 acres (90%) of this ecologically significant property. The firm represented the Marin Audubon Society for the purchase of the 630-acre Bahia oak forest and marshland in northeastern Novato. The firm also represented a coalition of major environmental groups in the California Coastal Commission’s historic rejection under the Coastal Zone Management Act of a proposed six-lane toll road through San Onofre State Beach.
Local Ballot Measures: The firm drafted a citizen initiative to protect farmland and successfully defended the measure in a landmark decision in the California Supreme Court that upheld the rights of local voters to amend the General Plan, DeVita v. County of Napa, 9 Cal.4th 763 (1995). The firm drafted successful ballot measures establishing urban growth boundaries in five Sonoma County cities. The firm advised public agencies and conservation groups in successful efforts to defeat state and local “takings” initiatives aimed at restricting governmental power to protect the environment, including the highly controversial California Propositions 98 (2008) and 90 (2006), and local measures in Napa County and Nevada County.
Public Infrastructure: SMW advises the San Francisco Transbay Joint Powers Authority on redevelopment, acquisition of right of way, governmental relations, and environmental review for a $4 billion transit-oriented development project that will serve as the Northern California terminus for California High Speed Rail, extend Caltrain into downtown San Francisco, and produce 2,600 housing units, 35% of which will be affordable. The firm also represents the Sacramento Area Flood Control Agency (SAFCA) for a $600 million flood control and habitat conservation project in the Natomas Basin.
Air Pollution: SMW represented the South Coast Air Quality Management District in a challenge by industry groups to its innovative "Clean Fleet Rules." The case went from district court to the Ninth Circuit, and then to the United States Supreme Court, which remanded the case to the lower courts. Ultimately the Ninth Circuit affirmed the district court’s judgment upholding the lion’s share of the rules. The firm, with Prof. Daniel Selmi of Loyola Law School, successfully defended Monterey Bay Air Pollution Control District’s rule governing emission of toxic air contaminants before the California Supreme Court, Western Oil & Gas Ass’n v. Monterey Bay Air Pollution Control District, 49 Cal.3d 408 (1989).
Land Use Planning: The firm negotiated a complex settlement agreement that launched a cooperative planning process for the Livermore Valley, and assisted in developing an innovative conservation mechanism to curb sprawl and permanently protect the community's rural heritage as part of the award-winning South Livermore Valley Specific Plan. The firm also advised the Counties of Marin and Eldorado on their General Plans and the University of California on long-range development plans for the Davis, Santa Cruz, and Santa Barbara campuses.
Regulatory Takings: SMW is California’s premier firm in defending public entities in regulatory takings litigation. The firm successfully defended the Tahoe Regional Planning Agency in numerous takings challenges to its land use regulations, including the United States Supreme Court’s landmark decision in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002), a suit brought by more than 400 Lake Tahoe property owners. The firm successfully defended San Francisco’s Residential Hotel Ordinance in the United States Supreme Court in San Remo Hotel v. City and County of San Francisco, 545 U.S. 323 (2005), another landmark decision that preserves local control of land use regulation. The firm successfully defended Tiburon in a groundbreaking United States Supreme Court case upholding the Town's open space ordinance, Agins v. Tiburon, 447 U.S. 255 (1980).
Natural Resources: The firm represented the State of California in negotiations over the purchase and protection of the Headwaters Forest in Humboldt County and the development of an HCP covering 200,000 acres. The firm successfully defended Santa Cruz County against a lumber company’s claim that the County’s restrictions on logging were preempted by the Forest Practice Act, resulting in a landmark decision of the California Supreme Court, Big Creek Lumber Co. v. County of Santa Cruz, 38 Cal.4th 1139 (2006).
Development Impact Fees: SMW advised the Sacramento Area Flood Control Agency (SAFCA) in establishing two assessment districts involving over 100,000 properties, drafted development fee ordinances, and advised SAFCA in establishing a Community Facilities District to finance the local share of flood control improvements and environmental enhancements and mitigation. SMW drafted a Sacramento ordinance requiring developers to pay a fee for affordable housing and successfully defended the ordinance in a landmark case, Commercial Builders v. City of Sacramento, 941 F.2d 872 (9th Cir. 1991). An attorney now partner with the firm successfully defended San Francisco’s Residential Hotel Ordinance before the California Supreme Court in San Remo Hotel v. City and County of San Francisco, 27 Cal.4th 643 (2002), which has become the leading case on development impact fees in California.
Water and Wetlands: The firm represents a coalition of environmental groups in their opposition to the Nestle Company’s proposal to construct a massive water-bottling facility on the McCloud River, which has led to Nestle’s withdrawal of its water purchase contract. The firm served as counsel to a coalition of Sacramento area local governments, water districts, business, labor, agricultural interests, and environmental groups, leading to a ground-breaking agreement to ensure a safe and reliable water supply for the region while preserving environmental resources in the Lower American River. We have successfully represented BayKeeper and other environmental groups in numerous state and federal lawsuits to enforce water quality laws, including San Francisco BayKeeper, Inc. v. Tosco Corporation, 309 F.3d 1153 (9th Cir. 2002).