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Posted on August 31, 2010 by Abbott & Kindermann
By Katherine J. Hart
The City of Los Angeles generally prohibits freeway, supergraphic and off-site billboards, but has adopted a few exceptions to the rule. For instance, it permits freeway signs and supergraphic and off-site signs in areas where specific plans are adopted to govern such signs or pursuant to development agreements, in accordance with its police power (the power to control local land use). Numerous billboard companies erected freeway and supergraphic signs all over the city. In 2008, the city adopted a moratorium on new supergraphic and off-site signs.
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Posted on July 14, 2010 by Abbott & Kindermann
By William W. Abbott
One of the elements of a Proposition 218 election is the engineer’s report in support of the spread of assessments. As 218 places the burden on the agency adopting the assessment to justify the assessment, every agency facing the question of, how much information is required? The recent case of Beutz v. County of Riverside (2010) 184 Cal.App.4th 1516, sheds light on the subject.
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Posted on July 12, 2010 by Abbott & Kindermann
By William W. Abbott
The California Supreme Court, in a unanimous decision, reversed the First Appellate District and upheld a trial court’s decision rejecting a challenge to overturn a Proposition 218 election. In Ford Greene v. Marin County Flood Control and Water Conservation District (June 7, 2010) 49 Cal.4th 277, the basis of the challenge was whether or not the district conducting the election had maintained the requisite level of voting secrecy.
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Posted on July 6, 2010 by Abbott & Kindermann
The following summary of 2010 legislation has been released by Peter M. Detweiler, Staff Director for the Senate Local Government Committee.
"With the legislative deadlines for policy committees now behind us, I want you to know about some of the more interesting bills that the Senate Local Government Committee worked on during 2010. The urgency bills took effect on the day they were chaptered; regular bills will take effect on January 1, 2011.
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Posted on May 14, 2010 by Abbott & Kindermann
By William W. Abbott
As a black-mark on the history of progressive thought in California, the voters, in 1950, enacted Article XXXIV as part of the California Constitution. It had the effect of requiring voter approval of low rent housing projects. Over time, the legislature had codified various interpretations, excluding from the voter approval process, certain types of affordable projects. On a parallel path, the legislature has modified the redevelopment law to ensure that there are minimum expenditures for affordable housing. After all, how many automalls, big box retailers and movie theaters does California really need to fund through the redevelopment process?
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Posted on March 25, 2010 by Abbott & Kindermann
By Katherine J. Hart
In Communities for a Better Environment v. South Coast Air Quality Management District et al., the California Supreme Court determined that the air district issuing a new permit to a petroleum refinery seeking to introduce a new industrial process to its existing refinery, incorrectly determined the baseline upon which to analyze environmental impacts. Specifically, the Court concluded the baseline could not be based on the maximum permitted operating capacity of the existing equipment but rather had to be based on the physical conditions actually existing at the time of environmental analysis. The facts are as follows.
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Posted on March 4, 2010 by Abbott & Kindermann
By: Katherine J. Hart
As determined by the California Supreme Court 27 years ago, local agencies may impose a fee for the filing of an appeal of a CEQA decision so long as that fee is reasonable.
In the case at hand, the planning commission of the City of Glendora adopted an addendum to a negative declaration (“Addendum”) and approved a project on February 12, 2008. Petitioner Erica Landmann-Johnsey (“Petitioner”) wanted to appeal the CEQA decision to the city council, but in order to do so, was required to pay a $2,000 appeal fee. Petitioner filed her appeal and paid the fee under protest.
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Posted on February 16, 2010 by Abbott & Kindermann
By Leslie Z. Walker
Today, February 16, 2010, the Office of Administrative Law filed the Amendments to the CEQA Guidelines addressing greenhouse gas emissions (“Amendments”) with the Secretary of State. The Amendments require the quantification and mitigation of greenhouse gas emissions. (For more information about the Amendments, see OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency and CEQA Guidelines on Greenhouse Gases One Step Closer to Law.) The Amendments will become effective on March 18, 2010. Lead agencies should consult Guidelines section 15007 to determine when the Amendments apply to the agency’s actions.
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Posted on February 3, 2010 by Abbott & Kindermann
By Cori Badgley
Los Angeles Unified School District v. County of Los Angeles (2010) __ Cal.App.4th __ involved a tug-of-war between a county and a school district over a share of the property tax increment distributed by redevelopment agencies. In the wake of Proposition 13, property tax revenues are limited and their allocation is coveted by local government, special districts and school districts. Under redevelopment law, redevelopment agencies must give a portion of the incremental increase in property tax revenues to local entities, including schools, based on the percentage of property tax revenue received by the entity in that fiscal year. In this case, the Los Angeles Unified School District argued that it was entitled to a larger share of the property tax increment than it had been allocated because defendants, which included multiple redevelopment agencies, the County of Los Angeles and the City of Los Angeles (collectively “county”), failed to take certain property taxes received by the school district into account. The trial court disagreed with the school district, and the appellate court reversed.
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Posted on January 13, 2010 by Abbott & Kindermann
From the quick fix solutions for the Delta to CEQA analysis on mitigation deferral, impact fees and the feasibility of alternatives, to the scope of the Corps permitting authority, the following legislation, regulations, and cases from 2009 (listed first by type of document, then in chronological order) will have the most impact on water supply, water quality, and land use and entitlement practice (e.g., development) in California in the coming years. And remember, you read it here first!
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Posted on December 16, 2009 by Abbott & Kindermann
This article highlights the 2009 CEQA court decisions along with the proposed changes to the CEQA guidelines. Many of the highlights are linked to more detailed analyses prepared by the attorneys at Abbott & Kindermann, LLP.
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Posted on December 8, 2009 by Abbott & Kindermann
By Leslie Z. Walker
In California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, the Sixth District Court of Appeals upheld an Environmental Impact Report (“EIR”) for the master plan of a greenbelt, against appellant’s attack on the range of alternatives and findings of infeasibility.
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Posted on November 10, 2009 by Abbott & Kindermann
By Cori Badgley
Since the passage of Proposition 13, cities and counties have been prohibited from reassessing property taxes until a property is sold or transferred, at which point the property tax cannot exceed one percent of the assessed value. This means that once the initial assessed value has been determined, the assessment for the purpose of property tax evaluation is essentially “frozen” in time, with a maximum increase in the annual cap for inflation of two percent. This leaves the cities and counties with one opportunity to reassess the property value upon acquisition of the property. Generally, the question of what constitutes a “transfer” or “sale” is easily answered. In terms of corporations and partnerships, however, the question can become a more difficult.
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Posted on October 8, 2009 by Abbott & Kindermann
By Cori Badgley
In San Bernardino Valley Water Conservation District v. San Bernardino Local Agency Formation Commission (2009) 173 Cal.App.4th 190, the Court of Appeal, Second Appellate District addressed the statutory interpretation of the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 (Gov. Code, §§ 56000 et seq., 57000 et seq.) (“CKH Act”) as it relates to water districts. Specifically, San Bernardino Valley Water Conservation District (“SBVWCD”) argued that the repeal of certain sections in the Water Code relating to consolidation meant that LAFCo had no authority over the consolidation of water districts. The appellate court disagreed.
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Posted on September 15, 2009 by Abbott & Kindermann
By William W. Abbott
Well, Mark Twain got that right. Beginning with the voter approval in 1978 of Proposition 13, California voters and public agencies have been at odds with each other over local government revenue strategies. The dilemma for local government being of course, that residents demand high level of services but expect someone else to pay for it. Walking the fine line between service delivery and voter enacted limitations on revenue streams, local agencies continuously explore and implement new strategies to capture new revenue streams, and over time, the trend has been to link charges to services provided. In the most recent levy case, the City of San Diego attempted to forge new territory by charging a processing fee for the purpose of offsetting costs associated with sending tax bills. In other words, a processing fee imposed on top of, and for the purpose of, collecting a general tax collected from property owners.
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Posted on September 10, 2009 by Abbott & Kindermann
William W. Abbott, partner of Abbott & Kindermann, LLP will be speaking on the following topic on Monday September 14, 2009 at 11:45 a.m.
“Preservation of Local Government Approvals”
Location:
- The Firehouse Restaurant – Golden Eagle Room
- 112 Second Street
- Old Sacramento, California
- Telephone: (916) 442-4772
Date/Time:
- Monday, September 14, 2009 at 11:45 a.m.
Posted on August 11, 2009 by Abbott & Kindermann
By Glen Hansen
In Lin v. City of Pleasanton, 2009 Cal. App. LEXIS 1170, the California Court of Appeal for the First Appellate District held that, barring extreme circumstances,Elections Code section 9238, subdivision (b)(2), does not require a referendum petition to include documents that were neither attached to the challenged ordinance, nor incorporated by reference.
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Posted on June 16, 2009 by Abbott & Kindermann
By Cori Badgley
In Health First v. March Joint Powers Authority (2009) (Case No. E045541), the Court of Appeal for the Fourth Appellate District addressed the issue of whether the approval of a Design Plan Application was discretionary, thus requiring review pursuant to CEQA. The court held that approval of the Design Plan Application was ministerial, not discretionary, and therefore, CEQA did not apply.
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Posted on June 10, 2009 by Abbott & Kindermann
By Leslie Z Walker
In Ste. Marie v. Riverside County Regional Park and Open Space District (2009) 46 Cal.4th 282, the Supreme Court resolved an apparent conflict between Public Resources Code sections 5540 and 5565 in favor of a park district’s ability to hold real property without dedicating it to park or open space purposes.
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Posted on May 20, 2009 by Abbott & Kindermann
By Cori Badgley
In Hofman Ranch v. Yuba County Local Agency Formation Commission, 172 Cal.App.4th 805 (2009), the Court of Appeal, Third Appellate District held that an independent contractor hired by the Local Agency Formation Commission (“LAFCo”) acting as LAFCo’s executive officer, was, for the purpose of the Brown Act, an employee of LAFCo. Because the independent contractor was an employee, LAFCo lawfully held a closed session to discuss the contractor’s employment terms pursuant to the Ralph M. Brown Act.
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Posted on February 11, 2009 by Abbott & Kindermann
The Governors Office of Planning and Research, State Clearinghouse and Planning Unit announced that they will not be accepting CEQA documents for review or processing on the first and third Fridays of each month, now through June 30, 2010. This notice is in response to the state agency furlough ordered by the Governor which has required the State Clearinghouse to close their doors two days per month for the next year and a half.
As a result, CEQA review periods will be delayed, however the review periods that would typically end on the first and third Fridays will be extended to the following Monday. For more information, visit the State Clearinghouse website.
Posted on January 14, 2009 by Abbott & Kindermann
By Glen Hansen
In Arcadia Development Co. v. City of Morgan Hill (2008) 169 Cal.App.4th 253, the California Court of Appeal, Sixth Appellate District, held that the extension of a temporary growth control ordinance restarts the running of the 90-day statute of limitations found in Government Code section 65009 to challenge the ordinance.
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Posted on January 13, 2009 by Abbott & Kindermann
By Nathan Jones and Leslie Z. Walker
In May of 2006, the San Francisco Board of Supervisors approved an ordinance “Adopting the redevelopment plan for the Bayview Hunters Point Redevelopment Project” (“Ordinance”). The ordinance increased the size of redevelopment activity in Bayview-Hunter’s Point from 147 acres to 1,500 acres. Many in the community viewed the redevelopment project as an attempt to gentrify the area aimed at dispossessing working-class residents in the area. The case of Defend Bayview Hunters Point Committee v. City and County of San Francisco (2008) 167 Cal.App.4th 846, illustrates a pitfall for organizers who fail to attach reference materials of substance to a petition challenging a local redevelopment ordinance.
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Posted on November 3, 2008 by Abbott & Kindermann
By Leslie Z. Walker and Cori M. Badgley
California’s land use planning structure has long been governed by a philosophy of home rule. Periodically, the legislature has identified specific typical areas for state intrusion: housing policy and airport land use planning are two examples. Among other provisions, SB 375 (Chapter 728, Statutes 2008) reflects a new area of state intervention, brought on by the rising concern over global warming. This time, it is through the regional transportation planning process, with the apparent thinking that once you control the purse strings, local governments will fall into line. SB 375’s major elements are:
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Posted on August 18, 2008 by Abbott & Kindermann
By Cori Badgley
In Los Altos Golf and Country Club v. County of Santa Clara (June 30, 2008) 2008 Cal.App.Lexis 1149, plaintiffs brought a class action demanding a refund from the City of Los Altos of sewer service charges paid by plaintiffs on the grounds that the fees violated Article XIII D of the California Constitution and the Health and Safety Code. Instead of allowing plaintiffs to make any substantive arguments, the City and the County ("Respondents") claimed that the case should be dismissed because the plaintiffs had failed to pay the fees under protest, as required by the Health and Safety Code. The Court of Appeal, Sixth Appellate District agreed with the Respondents and dismissed the case. Sewer service charges must first be paid under protest in order to later request a refund.
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Posted on August 13, 2008 by Abbott & Kindermann
By Glen Hansen
The recent decision by the Court of Appeal for the First Appellate District in Urban Habitat Program v. City of Pleasanton (2008) 164 Cal.App.4th 1561, vividly illustrates the conflict that can arise between the desire by local voters to limit housing growth, the local jurisdiction’s obligations under state law to allow construction of low and moderate income housing, and the local officials’ reluctance to thwart the voters’ desire in order to meet those state obligations. That conflict invariably leads to litigation, even years after a no-growth initiative is passed by the voters.
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Posted on May 12, 2008 by Abbott & Kindermann
By Glen Hansen
Applicants don’t like being denied a local land use permit. It is equally frustrating for project opponents who fail to stop an approval by a local governmental board to understand why the decision makers didn’t endorse their arguments. Many believe that the failure to prevail before an agency is not due to the merits of the cause, but is the result of some unstated, nefarious plot or bias in the collective heads of the agency board that rejected the position. However, the Court of Appeal recently reminded us that digging into the thought process of administrative officials is generally out of bounds.
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Posted on May 16, 2007 by Abbott & Kindermann
By Kate J. Hart
On May 10, 2007, the California Second District Court of Appeal issued a potentially significant decision concerning unfunded state mandates dictated by a Regional Board permit issued in 2001. The case is County of Los Angeles v. Commission on State Mandates and the Regional Water Quality Control Board (May 10, 2007) 2007 Cal.App.Lexis 711. This case goes to the heart of state enforced regulatory authority because it calls into question whether the Regional Boards can issue permits (or enforcement orders) that require local governments, special districts, cities and counties to comply with a “new program or [provide] higher level of service of any existing program” without providing reimbursement for additional program costs.
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Posted on December 4, 2006 by Abbott & Kindermann
By William W. Abbott
When it comes to administrative appeals of land use decisions, state law largely delegates to cities and counties the choice of being flexible or rigid on administrative appeals (e.g. tentative subdivision map approvals, conditional use permits, CEQA documents). Most cities and counties opt for a de novo review by the appellate body. This means that the appellate body effectively starts over on the decision, and it is empowered to make any decision it deems to be appropriate under the circumstances. As illustrated by the recent decision of
Citizens for Open Government v. City of Lodi (Browman Development Co., real party in interest) 2006 Cal. App. LEXIS 1764, de novo review may permit a project opponent to challenge in court the adequacy of the CEQA document, even though the appeal to the city council was on non-CEQA grounds.
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Posted on August 11, 2006 by Abbott & Kindermann
Mahon v. County of San Mateo (2006) 139 Cal.App.4th 812
The "deemed approved" remedy for untimely processing must give heads up to neighbors -- what may be "deemed" is not what it seemed.
By Joel Ellinwood, AICP
Recognizing that the often seemingly interminable delay by local agencies in development permit processing drives up costs of providing housing and other desirable projects, the development industry succeeded in persuading the legislature to impose what at first glance appear to be strict timelines for the agency to approve or disapprove projects. The timelines are given teeth by provisions which may result in projects being "deemed approved" if the agency fails to act within the time provided. However, as the recent case of Mahon v. County of San Mateo (2006) 139 Cal.App.4th 812 (modified June 19, 2006) illustrates, the teeth don't seem to have much bite. This article will identify strategies for making the best use of what little bite is left to help manage the pace of development processing.
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Posted on November 1, 2005 by Janell Bogue
by William W. Abbott
How far can a city council go in closed session in settling litigation involving a land use dispute? We have a better idea after reading Trancas Property Owners Association v. City of Malibu (2005) 132 Cal.App.4th 1245 (rehearing granted October 26, 2005). In the eyes of the Second District Court of Appeal, the city council cannot (1) contract away the police power (the authority to apply later enacted zoning), and (2) make land use decisions which would otherwise be subject to a public hearing process.
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Posted on September 1, 2005 by Janell Bogue
by William W. Abbott
Can a public official who violates Government Code section 1090 sue the agency and the agency's legal counsel (on whose advice the official arguably relied) for damages? As decided in the recent case of Chapman v. Superior Court (2005) 130 Cal.App.4th 261, the answer is no. Section 1090 operates as a specific prohibition against public officials from having a financial interest in contracts involving the public entities they serve. This obligation is separate from the more stringent requirement of the disclose and refain rules of the Political Reform Act. (Gov. Code, § 81000 et seq.)
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Posted on March 28, 2005 by Janell Bogue
by Joel Ellinwood, AICP
Peter Detwiler, chief consultant for the California State Senate's Committee on Local Government and long-time legislative staffer on land use planning issues has a new theme. In talks at professional planning seminars around the state, he is warning of a potential new weapon in the litigation arsenal of those opposing development in areas being annexed to cities or special districts. Whether Detwiler is right, or merely singing another version of "the sky is falling," his pitch is worth paying attention to. He recently presented it at the annual Land Use Conference sponsored by UCLA and at the Sacramento Chapter of the American Planning Association luncheon speaker series. It goes like this.
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Posted on August 1, 2004 by Janell Bogue
by William W. Abbott and Heather Gerken
Land use applicants frequently fail to appreciate the deference that a reviewing court must give a city council or board of supervisors. Disgruntled with an adverse decision, an adversely affected applicant often believes that they are entitled to re-argue the merits of their position. As the following cases illustrate, judicial review of controversial land use regulations does not start with a blank canvas.
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