October 2005

by Joel Ellinwood, AICP

Developers and the general public think of townhouses as dwellings built on separate lots with common walls shared with neighboring property owners, as being more like single family homes. Each unit has a direct connection to the earth below and sky above. Condominiums, on the other hand, are perceived as being cubicles within a larger structure, and only a shared interest in the real estate on which the structure is located and common areas within and around the building. Continue Reading What is the Difference Between a Townhouse and a Condominium? Depending Upon the Statute, Most Likely Nothing.

Abbott & Kindermann, LLP, along with David Storer at Development Advisory Services, recently teamed up to secure City Council approval of a 230 lot subdivision in Porterville, California. Their efforts included convincing the City that a proposed emergency ordinance would not apply to the tentative map application previously deemed complete by the City.

by Janell M. Bogue

Recently in San Diego County, an association of residents of two subdivisions (“Association”) sued the developer that retained control over the architectural committees responsible for enforcing the community’s CC&Rs. Property Owners of Whispering Palms, Inc. v. Newport Pacific, Inc. (2005) 132 Cal.App.4th 666. Continue Reading DRE Regulations on Architectural Control Committees Apply Only to Common Interest Subdivisions

On the bright side, we have learned that there is one more local agency action exempt from CEQA. In Citizens to Enforce CEQA v. City of Rohnert Park (2005) 131 Cal.App.4th 1594, an MOU entered into between the City of Rohnert Park and a local tribe, the subject of which was a funding agreement to mitigate impacts on a gaming facility to be located in the County, was not subject to CEQA. The MOU did not commit the City to any course of action, and recognized that later City actions taken in response to the gaming facility impacts would be subject to environmental review. The court relied upon the exclusion from the definition of a project “the creation of government funding mechanisms or other government fiscal activities, which do not involve a commitment to any specific project which may result in a potentially significant physical impact on the environment.” Guidelines section 15378. See also Kaufman & Broad-South Bay Inc. v. Morgan Hill Unified School District (1992) 9 Cal.App.4th 464.

For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

After four planning directors, 12 years, and umpteenmillion dollars, El Dorado County finally has a general plan. On August 31, the trial court found that the County had complied with its earlier ruling in 1999, which had set aside the 1996 General Plan. It remains to be seen if the opponents will purse their claims to the appellate court. El Dorado’s experience took the fun out of planning for a lot of folks.

by Elias E. Guzman

In Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, the court of appeal recently held that a developer/general contractor can be liable long after the 10 year statute of limitation period for the willful misconduct of subcontractors involved in the project. Continue Reading Exception to 10-Year Statute of Limitations Rule for Construction Defect Litigation

As a general limitation, the Unruh Civil Rights Act (Civ. Code, §§ 51-51.4), bars any form of discrimination in residential developments unless expressly permitted. Senior citizen housing is one of the exceptions. In order to comply with the Act, the development is subject to limitations impacting physical design, age and related occupancy, and operation of CC&Rs.

“Housing developments for senior citizens” are for residents 62 or over, although additional occupancy is allowed for someone 45 or older who provides economic or physical support. Special residency rules also apply to health care attendants, and dependent or disabled children and grandchildren. These projects must have walkways, hallways, grab bars, common walkway lighting, non-stair access to common areas, a common room, common open space and refuse collection designed for a minimum of physical exertion. (Civ. Code, §§ 51.2(d), 51.3.)

Age restricted projects subject to a public report require a complete statement of the restrictions on occupancy. (Bus. & Prof. Code, § 11010.05.)

For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

by William W. Abbott Concerned over the supply of affordable housing, the Legislature has in recent years sought to create incentives for developers. One incentive area involves density bonuses. (Gov. Code, § 65915.) Although this concept has been embodied in the state zoning law for a number of years, it failed to achieve its purpose of providing meaningful incentives, at least in those cities and counties opposed to the idea. Effective January 1, 2005, the Legislature further amended the density bonuses provisions to further increase the incentive and to decrease city and county discretion. Abbott & Kindermann, LLP explores this law at length in its April 2005 article Supersize This Project! The New Rules for Density Bonuses. The key provisions are summarized below: Density bonuses are available for projects consisting of 10% Lower Income, or 5% Very Low Income, or a seniors project, or where 10% of units in a condominium or planned development are affordable to moderate income households. For condominium or townhome builders, this last category has great appeal as the qualifying income requirements are the highest. Projects qualifying in this last category earn a 5% density bonus, with an additional 1% for each percent of added affordability for moderate income households. Qualifying condominium projects are also entitled from one to three incentives as well (10% affordable-1 incentive; 20% affordable-2 incentives; 30% affordable-3 incentives.) These incentives or concessions include reduction in site standards, parking, architectural standards or granting of mixed use approvals. For condominium projects, the affordable units are subject to an equity recapture provision which requires the seller to share appreciation with the city or county. All cities and counties must adopt local ordinances to implement this law. Regardless of the type of project, the granting of a density bonus is not a basis to require a general plan or Local Coastal Plan amendment, zoning change or discretionary approval. Utilization of the density bonuses and incentives/concessions can impact project design. As the Legislature did not exempt these actions from CEQA review, it is important for the developer to work with the city up front to identify the compliance strategy, so that the environmental review will address all project features. William W. Abbott is a partner with Abbott and Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

by Elias E. Guzman

In Woodridge Escondido Property Owners Assn. v. Nielsen (2005) 130 Cal.App.4th 559, the court of appeal recently affirmed a trial court’s ruling that a homeowner’s construction of a wooden deck encroached upon a side yard easement in violation of the homeowner associations’ declaration of covenants, conditions, and restrictions (“CC&Rs”). Continue Reading Woodridge: Encroaching Decks and CC&Rs?