August 2013

By Katherine J. Hart

On August 16, 2013, CEQA attorney Tina Thomas filed a depublication request with the California Supreme Court over the Fifth District Court of Appeal’s decision in Citizens for Ceres v. Ceres v. Superior Court 217 Cal.App.4th 889 (Citizens for Ceres).  For a copy of the depublication letter, click here.

Continue Reading California Infill Builders Federation Files Request for Depublication of Citizens for Ceres Case

By Katherine J. Hart

In Masonite Corporation v. County of Mendocino (July 25, 2013) 215 Cal.App.4th 230, the Court of Appeal, First Appellate District, reversed a trial court’s decision denying a petition for writ of mandate, and directed Mendocino County (County) to decertify its EIR, set aside its project approvals (a conditional use permit and reclamation plan), and prepare and circulate a supplemental EIR to address concerns related to an endangered frog, mitigation of impacts to prime agricultural farmland, and mitigation measures related to cumulative traffic impacts, for an aggregate mining project.

Continue Reading Court Puts Onus On County To Demonstrate Infeasibility Of Agricultural Conservation Easements To Mitigate Loss Of Prime Farmland

Kate Hart was selected in the practice areas of Environmental, Environmental Litigation and Land Use/Zoning and William Abbott in the practice areas of Land Use/Zoning and Real Estate. More information is available at http://www.superlawyers.com/california-northern/. The firm is pleased to continue to serve private and public clients in Northern California on land use, environmental and real estate matters for more than 18 years.

Additionally, Abbott & Kindermann, LLP is pleased to announce that William Abbott has been selected by his peers for inclusion in the 20th Edition of The Best lawyers in America in the practice areas of Land Use & Zoning Law and Litigation-Land Use & Zoning Law.

The firm is also rated as Tier 1 in both Land Use & Zoning Law and Litigation – Land Use & Zoning in the U.S. News & World Report national ranking of Best Law Firms. More information is available at http://bestlawfirms.usnews.com/firms/abbott-kindermann-llp/overview/45365/.

By William W. Abbott

As developers pursue infill or re-use opportunities, a predictable question regarding impact fees will arise: To what extent is the developer entitled to a credit for the existing uses onsite which ultimately are displaced by a new project? At least in the case of school facilities, we know from the recent decision in Cresta Bella, LP v. Poway Unified School District (July 31, 2013, D060789) ___ Cal.App.4th ___,that the burden is on the agency to justify the fee, and in the absence of sufficient justification, that the developer may be entitled to a fee refund. 

Continue Reading School District Failed to Document Justification For Applying Full School Fees to Demolition of and Development of a Multi-family Project

By William W. Abbott

Save the Plastic Bag Coalition v. County of Marin (July 25, 2013, A133868) ___Cal.App.4th ___.

In January 2011, the Board of Supervisors for the County of Marin enacted an ordinance generally banning the use of single use plastic bags and adopting a fee for paper bags. The ordinance also required retailers covered by the ordinance to offer reusable bags for purchase. This ordinance came about after some period of County study. A trade group, Save the Plastic Bag Coalition, submitted comments in opposition to the proposed ordinance, including a demand for an EIR. Initially, the Board continued the hearing. At the continued hearing, the Board considered, among other items, a letter from the County Counsel’s office suggesting that the Board should complete the hearing and could act based upon a categorical exemption (classes 7 and 8; maintenance and restoration of a natural resource and maintenance, restoration, enhancement or protection of the environment, respectively.) Relying upon the two exemptions, the Board approved the use of the two exemptions and approved the ordinance. The Coalition sued. The trial court upheld the Board’s decision and the Coalition appealed.

Continue Reading Appellate court upholds ordinance restricting single use plastic bags and adopting a fee for paper bags based upon a categorical exemption in CEQA.

Vested Rights, Vesting Maps and Development Agreements(131LUP154)

 When: August 16, 2013: Fri., 9 a.m.-4:30 p.m.

Where: Sutter Square Galleria, 2901 K St, Sacramento, CA

Development agreements are an effective avenue for a community and developer to come together and process a project. Both sides of the table need to carefully consider the terms of these contracts and explore questions of content and performance before completing such an agreement. Learn the legislative and judicial aspects of development agreements.

Examine the legal basis for development agreements and the overlap between agreements and vesting subdivision maps. Examine the negotiating process, identify and discuss the range of options available when negotiating a development agreement, and review the theoretically possible agreement. Consider the key points of an agreement, learn ways to assist in understanding the needs of the other side and select the players to conduct the negotiation.

Topics include:

– Common law vested rights

– Legal review

– Development agreements vs. vested maps

– Considerations in negotiating the agreement

– Contents of an agreement

– How to implement agreements

– What happens after the life of an agreement

For more information visit: http://extension.ucdavis.edu/unit/land_use_and_natural_resources/course/description/?type=A&unit=LUNR&SectionID=167593&course_title=Vested%20Rights,%20Vesting%20Maps%20and%20Development%20Agreements&prgList=LUP&AreaName=Land+Use

By Glen C. Hansen

In Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161, the Court of Appeal for the First Appellate District affirmed a trial court judgment that found that the County of Alameda was liable for $989,640.96 in damages for a temporary taking of plaintiff’s property, where the county stopped work on plaintiff’s project in light of a growth control initiative, even though the project fell within an exemption in the initiative and county officials failed to even consider such exemption, and where the county’s action in stopping the project constituted an unreasonable change from the County’s prior representations made to the property owner.

Continue Reading County’s Unreasonable Change In Position To Stop Project Results In $1 Million Temporary Takings Award.

By William W. Abbott

Orange Citizens for Parks and Recreation v. The Superior Court of Orange County (July 10, 2013, G047013) ___ Cal.App.4th ___.

While not exactly a Dan Brown novel, the most recent planning law case illustrates the resulting agony which follows imprecise record keeping as to the status of previously adopted planning and regulatory documents, and how they fit in with updated general plans and other land use requirements. Without retracing all the subtle nuanced facts, this case starts with the adoption of the 1973 Orange Park Acres Specific Plan. When the City Council adopted the plan, it included amendments as recommended by the Planning Commission, nearly 40 years later, it was not clear as to what exactly those amendments were, a matter of some consequence in a later land use dispute. Over time, the City dropped the word “specific” from the plan document. The Orange Park plan was amended in later years, and was incorporated in the local general plan in 1989 and again in 2010 in the updated general plan. The descriptions of the planning document, and well as reference to the applicable land use standards varied overtime. As planners, developers, commissioners and elected officials come and go, an inconsistent understanding of the document over time is hardly surprising.

Continue Reading Now You See It, Now You Don’t: The Mystery Of The Orange Park Acres Specific Plan.