REGISTER TODAY! Abbott & Kindermann's 16th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2017.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Sacramento, Modesto, and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Redding Conference  (To Register for the Redding Location Click Here)

Date: Wednesday, January 11, 2017

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

Date: Friday, January 20, 2017

Location: Sacramento Hilton Arden West, 2200 Harvard Street

Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast

Program: 9:00 a.m. - 12:00 noon

Modesto Conference  (To Register for the Modesto Location Click Here)

Date: Friday, January 27, 2017

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

REGISTER TODAY! Abbott & Kindermann's 16th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2017.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Sacramento, Modesto, and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Redding Conference  (To Register for the Redding Location Click Here)

Date: Wednesday, January 11, 2017

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

Date: Friday, January 20, 2017

Location: Sacramento Hilton Arden West, 2200 Harvard Street

Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast

Program: 9:00 a.m. - 12:00 noon

Modesto Conference  (To Register for the Modesto Location Click Here)

Date: Friday, January 27, 2017

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Speculation Concerning Potential Impacts Insufficient To Defeat Use Of A Categorical Exemption

Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809.

By Brian Russell

Auto-Spa applied for a conditional use permit to build a car wash and coffee shop in Redondo Beach, California. The property is zoned commercial. The project consisted of a 90-foot car wash tunnel and an attached coffee shop totaling 4,080 square feet. The rest of the property would be used for drying and parking cars. Entry to the car wash was from a residential street, just off of a major street. From 1965 to 2001, there was a car wash on the property.

The Planning Commission approved the project under a categorical exemption in CEQA Guidelines section 15303(c).  That provided an exemption from CEQA review for commercial buildings not exceeding 10,000 square feet in floor area on sites zoned for such use if not involving the use of significant amounts of hazardous substances, where all necessary public services and facilities are available and the surrounding area is not environmentally sensitive.

After an appeal and approval by city council, Appellants filed a petition challenging the CEQA exemption. The trial court ruled in favor of the city.

On appeal, the initial issue was whether the project qualified as a commercial structure and met the square footage limitations of the CEQA exemption. In reviewing the determination of whether a project fits within an exemption, the court applied the substantial evidence test and agreed with the city that the exemption embraced a broad range of commercial projects. The appellant also urged that the use of hazardous materials was not allowed in conjunction with the exemption. However, the evidence did not support this argument, and that the argument was based upon speculation.

Appellants then argued that even if the exemption applies, it should not apply for this project because “there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”  Under the Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (“Berkeley Hillside”), a challenger must prove both the unusual circumstances and a significant environmental effect that is due to those circumstances. If unusual circumstances are found, agencies apply the fair argument standard in determining whether there is a reasonable possibility of a significant effect on the environment due to unusual circumstances. Alternatively, under Berkeley Hillside, a challenger may establish an unusual circumstance with evidence that the project will have a significant environmental effect, applying the traditional substantial evidence test. Here, the court explained that a party can show an unusual circumstance by demonstrating that the project has some characteristic or feature that distinguishes it from others in the exempt class, such as its size or location. But the court concluded that there is nothing particularly unusual about the proposed car wash and coffee shop. The evidence establishes that there are many other car washes in the surrounding area, plus the site itself was a car wash and snack bar for nearly 40 years, which suggests that this project is not an unusual circumstance.

The court further analyzed whether the plaintiffs had established that the unusual circumstances will have a significant environmental effect. The plaintiffs argued that the operation of the car wash would violate the city’s interior and exterior noise limits at the abutting property line. However, the court rejected that argument, and found that the exceedance will not occur, because the project was conditioned upon the car wash’s adherence to the city’s noise standards. Furthermore there was an additional condition that provides that compliance with the noise requirements “shall be tested and documented prior to the final inspection and opening of the car wash operation.” Given those conditions and assurances, plaintiffs failed to meet their burden of showing that the project will actually have a significant environmental effect.

Plaintiffs then argue that the project will have a significant impact on traffic. They argued that the design of the car wash is inefficient and will cause back ups within the project property. However, the court held that plaintiffs’ argument was speculative and was contradicted by both the plaintiffs’ expert and the city’s findings that any such backup could be avoided by managing the flow of cars through the car wash. The court found that, at best, plaintiffs provided evidence that suggests that the project possibly could have a periodic impact on traffic. That was insufficient. The court held that plaintiffs failed to provide evidence that the project will actually have a significant impact on the environment by causing a substantial adverse change in the physical conditions that exist in the area.

With that holding, the court concluded that plaintiffs failed to establish the unusual circumstances exception under the Berkeley Hillside alternative analysis. Therefore, the city properly determined that the car wash project is categorically exempt under the CEQA Guidelines.

Brian Russell is an attorney at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or 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.

 

SAVE THE DATE! Abbott & Kindermann's 16th Annual Land Use, Real Estate, and Environmental Law Update

Mark your calendar - registration for Abbott & Kindermann’s 16th Annual Land Use, Real Estate, and Environmental Law Update will open on October 18, 2016.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Sacramento, Modesto and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Redding Conference 

Date: Wednesday, January 11, 2017

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference 

Date: Friday, January 20, 2017

Location: Sacramento Hilton Arden West, 2200 Harvard Street

Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast

Program: 9:00 a.m. - 12:00 noon

Modesto Conference 

Date: Friday, January 27, 2017

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Napa Conference 

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

COURT CLARIFIES HOW INDIRECT COSTS OF PROVIDING GOVERNMENT SERVICES SHOULD BE CALCULATED FOR DETERMINING THE FEES CHARGED FOR THOSE SERVICES

By Glen C. Hansen

California Public Records Research, Inc. v. County of Stanislaus (2016) 246 Cal.App.4th 1432.

In California Public Records Research, Inc. v. County of Stanislaus (2016) 246 Cal.App.4th 1432, plaintiff California Public Records Research, Inc., sought a writ of mandate to compel the County of Stanislaus to reduce the fees it charges for copies of official records. Plaintiff alleged the fees of $3 for the first page and $2 for each subsequent page exceeded County’s cost of providing the service. Plaintiff argued that such rates violated Government Code section 27366, which provides that copying fees “shall be set by the board of supervisors in an amount necessary to recover the direct and indirect costs of providing the product or service ….” The trial court denied the writ. Plaintiff appealed. The Court of Appeal reversed.

The evidence demonstrated that the County’s Board of Supervisors based its decision on a study that estimated the cost of a particular service by multiplying (1) the amount of staff time used to provide the service by (2) the cost to County of that staff time. The time figure included an estimate of the average number of minutes needed by staff to provide the service plus an allocation of general and support minutes. The study estimated it cost County an average of $2.97 to process a request for a copy of an official record. The study therefore recommended charging $3 for the first page copied and $2 for each subsequent page. However, the study and other evidence presented information on a per document basis, not a per page basis. The Court of Appeal concluded that the record lacked evidence showing that the fees charged per page reflect the County’s actual costs.

The court then explained how the fee determination should be made. Section 27366 requires an exercise of judgment and is not simply a matter of performing a mathematical calculation that produces a single correct answer. Thus, that section grants a board of supervisors some discretionary authority when setting copying fees, limited by the phrase “direct and indirect costs.” The term “direct costs” is unambiguous. The term “indirect costs” requires that such costs be “reasonably attributed to (i.e., reasonably related to) the service of providing copies and by excluding costs not reasonably attributed to the service of providing copies.” The choice of methodology for calculating a county’s cost of providing copying services is a matter committed to the discretion of the board of supervisors because there is no single legally correct methodology. The court therefore remanded the case for further proceedings consistent with this proper determination of the copying fees.

Glen C. Hansen is Senior Counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP 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.

 

Agency's Historical Resource Determinations Subject to Deferential Substantial Evidence Review Standard

Friends of the Willow Glen Trestle v. City of San Jose (2016) ___ Cal.App.5th ___.

By Daniel S. Cucchi

As part of its plan to upgrade its trail system, the City of San Jose (the “City”) proposed to demolish the Willow Glen Railroad Trestle (the “Trestle”), a wooden bridge built in 1922 as part of a rail line accessing the canning districts near downtown, and replace it with a new steel pedestrian bridge.  The City prepared a mitigated negative declaration (“MND”) in support of the project, which found that because the Trestle design was common and was likely largely rebuilt within the last 30-40 years, it was not a historical resource, and, thus, there was no significant impact on the environment.  The Friends of the Willow Glen Trestle (“Friends”) challenged that determination and filed a writ of mandate challenging the MND, arguing that there was a “fair argument” that the Trestle was an historical resource and an environmental impact report (“EIR”) was required.  The trial court agreed with Friends, asserting that the standard of review applied in Architectural Heritage Assn. v. County of Monterey, 122 Cal.App.4th 1095 (2004), was the correct standard.  The City appealed and the appellate court reversed.

The appellate court first dismissed the argument that it was required to follow the holding in Valley Advocates v. City of Fresno, 160 Cal.App.4th 1039 (2008), concluding that it could complete its own determination of the proper legal standard.  It reasoned that, while the case held that the substantial evidence review standard applied to an agency’s determination of whether a resource was historical, the California Supreme Court’s discussion of Valley Advocates in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (2015), was limited to the question of whether a bifurcated standard could apply to a multi-part agency decision and avoided the question that was now before the court. 

The court next turned to the applicable language in Public Resources Code section 21084.1, noting that local agencies have the power to determine that a “presumed” historical resource (see Pub. Res. Code §§ 5020.1(k), 5024.1(g)), is not historic when supported by the preponderance of the evidence.  Thus, it reasoned, that application of the fair argument standard to that decision would directly contradict the statutory language. 

The court completed its analysis by reviewing the line of cases involving the review of agency decisions involving historical resources, concluding that the only cases specifically addressing the issue, Valley Advocates and Citizens for Restoration of L Street v. City of Fresno, 229 Cal.App.4th 340 (2014), were in alignment with the court’s reading of the applicable statutes.  It, therefore, held that the City’s determination of whether the Trestle was an historical resource must be reviewed under the substantial evidence standard and remanded the case back to the trial court to make that determination.      

Daniel S. Cucchi is an associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or 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.

 

City Elimination Of Minimum Densities Not Exempt From CEQA Review

People for Proper Planning v. City of Palm Springs (April 22, 2016, E062725) ____ Cal.App.4th ____. 

By William W. Abbott

In 2013, the City of Palm Springs amended its general plan to remove any mention of minimum densities in the residential land districts. The text of the general plan in some residential districts provided for a range of densities, in others an average density or one stated density. The general plan also provided that the stated densities at the upper end were maximums, but the lower end reflected “the minimum amount of development anticipated, provided that all other required conditions can be met.” The City Council’s resolution adopting the amendment provided in part that “the current and past practice of the city… is to consider only the maximum density allowed within each land category and consider and approve lower density projects.” The Council passed the resolution relying upon a categorical exemption (Class 5; “minor alterations in land use limitations in areas of average slope of less than 20%, which do not result in any changes in land use or density….”). A citizens group filed suit, challenging the amendment on CEQA grounds as well as violations of the state planning and zoning law. The trial court ruled in favor of the city and the petitioners appealed. In the published portion of the decision, the appellate court reversed the City’s use of an exemption.

Surprisingly, the appellate court did not cite the Supreme Court’s decision in Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943, on judicial review of CEQA exemptions. The appellate court’s first point was that the amendment facially conflicted with the terms of the exemption in that that it resulted in change in densities. Accepting for the sake of argument the City’s position that the amendment simply reflected actual city practices, the appellate court noted that the petitioner had presented sufficient evidence of a fair argument (without elaborating on that evidence) and that the general plan amendment was capable of significant cumulative effects to the supply of high density, low and moderate income housing. To this latter point, the court noted that the 2007 General Plan EIR discussed the role of high density housing to meet its housing needs and to avoid unnecessary conversion of surrounding desert lands. The Court then questioned the City’s ability to meet its fair share of housing as a basis to overturn the use of the CEQA exemption.

The court went on to address the City’s argument that the baseline had not changed, asserting that as the City had not interpreted its general plan in a manner which dictated minimum densities, there was therefore no change from the baseline as a result of the general plan amendment. The Court concluded that once the general plan was adopted, it became the new baseline. Since the general plan relied upon the anticipated densities to meet housing needs, the question remained as to the City’s ability to meet its fair share housing needs. Although the published decision lacks critical analysis, the inference is that this unanswered question defeated the use of the categorical exemption.

Comment: The court’s characterization of the general plan as the new baseline while in many circumstances this would be an ideal approach in reducing CEQA burdens, this court’s approach is at variance with a number other long standing CEQA decisions, and lead agencies should be cautious about uncritical reliance upon this approach. The decision is best viewed as an unusual analysis of a CEQA exemption and left at that.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP 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.

 

Court Of Appeal Holds That, While The California Constitution Does Not Guarantee A Right of Access To Martin's Beach, The Public May Have An Access Right Under The Theory Of Common Law Public Dedication.

By Glen Hansen

Friends Of Martin's Beach v. Martin's Beach 1, LLC (2016) 246 Cal.App.4th 1312

In a dispute between a plaintiff unincorporated association asserting public rights and defendant property owners over the use of a road, parking area and the inland dry sand of a popular beach that were owned by defendants, the Court of Appeal for the First Appellate District in Friends Of Martin’s Beach v. Martin’s Beach 1, LLC (2016) 246 Cal.App.4th 1312, 2016 Cal.App.LEXIS 341, held: (1) that the trial court properly granted summary adjudication as to plaintiff’s claim that Article X, section 4, of the California Constitution, confers on the public a right of access over private property to tidelands; and (2) that the trial court erred in granting summary adjudication as to plaintiff’s claim that, under the theory of common law dedication, the owner’s predecessors dedicated such access to the public through their words and acts, and that the public accepted that offer by using those parts of defendants’ property.

The Martin’s Beach case involved two parcels of land bounded on the east by Highway 1 and on the west by the Pacific Ocean (“Property”). At the western edge of the Property is a crescent-shaped strip of land known as “Martin’s Beach.” The only land access to Martin’s Beach is via a road that runs across the Property from Highway 1 to the beach. The Property was once part of a larger tract of land that was provisionally granted by the Mexican Governor of California in 1838 (“Rancho”).  The grant was not finalized by the time war broke out between Mexico and the United States in 1848. The Treaty of Guadalupe Hidalgo ended the war, and in 1851, Congress passed legislation to implement the Treaty. The 1851 Act established the process to address pre-war land claims.  Claims that were confirmed in those proceedings resulted in a federal patent, which is the equivalent of a deed from the federal government conveying fee simple ownership.  A patent claim for the Rancho was eventually confirmed in such patent proceedings, and by the United States Supreme Court on appeal.  Over time, the Rancho was divided into smaller parcels, including the Property, and conveyed to various persons. 

The Property was eventually acquired by the Deeney family.  The Complaint in this case alleged that, from the 1930s or earlier, the Deeney family invited the public to use the beach and the road to the beach both by words and conduct, specifically by posting a large billboard on the highway inviting the public to come to the beach by way of the road, by “welcom[ing] all ‘with open arms,’” and by constructing public toilets, a parking area and a convenience store catering to those who visited the beach.  For some of that time they charged a 25ȼ parking fee.  The Complaint also alleged: “Postcards from the ‘50s show hundreds of people enjoying idyllic days at a beach that at times had the feel of a Mediterranean escape.” “In more recent years, surfers, in particular, enjoyed what the website Surfpulse refers to as a ‘mystical and multi-faceted playground’ and what Save the Waves’ program director called ‘a natural theme park with sand.’”  The Deeney family sold the Property to defendants Martin’s Beach 1, LLC and Martin’s Beach 2, LLC (“Owners”) in 2008.  In 2009, the Owners locked a gate barring the entrance to the road, placed “No Trespassing” signs there and otherwise prevented the public from using the road or the beach.

Plaintiff Friends of Martin’s Beach, an unincorporated association (“Plaintiff”), filed a complaint against the Owners “on behalf of the general public,” citing numerous legal theories and causes of action in order to assert “nonexclusive rights and interests acquired by the general public in the beach to high tide at Martin’s Beach, the dry sand inland, an inland area historically used for parking and access along Martin’s Beach Road.”  In response to the parties’ cross-motions for summary adjudication, the trial court ruled in favor of Owners on all of the public access issues.  Plaintiff appealed.  The Court of Appeal affirmed in part, reversed in part, and remanded the case to the trial court on the public dedication claim. 

Plaintiff’s Constitutional Claims For Public Access

Plaintiff argued that Article X, section 4, which was adopted by the People as part of the Constitution of 1879, entitled the public to an easement to use the road across the Property for the purpose of gaining access to the tidelands.  That section 4 provides:

 

No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof. 

However, the Court of Appeal affirmed the trial court’s conclusion that, whatever public rights exist under section 4 (that issue was not decided), do not override the federal land patent title in the Owner in light of Summa Corp. ex rel. Lands Commission v. California (1984) 466 U.S. 198.   In Summa, the U.S. Supreme Court held that the State of California acquired no public trust interest in lands to which title was confirmed under the federal Act of 1851 patent process based on a Mexican land grant, unless such interest was asserted by the State in the patent proceedings.  Here, Plaintiff's cause of action based on section 4 was barred under Summa because California did not acquire a public interest in the Property.  That was so because the State did not assert any such interest during the patent proceedings for the Rancho in the 1850s.  In response to Plaintiff’s attempts to distinguish Summa, the Court further held (1) that the provisional nature of the Mexican land grant for the Rancho did not alter the conclusive application of Summa; (2) that section 4 is, at least in part, a codification of the public trust doctrine; and (3) that section 4 is not a mere regulation of an “incident of ownership.”  Thus, Plaintiff’s constitutional claim based on section 4 was barred under Summa.  The Court also explicitly rejected Plaintiff’s alternative argument that section 4 is retroactive and burdens lands held in private ownership before its enactment. Not surprisingly, counsel for the owner called the Court of Appeal’s ruling on the section 4 claim, which ruling rejected the idea of a guaranteed right of beach access under the California Constitution, “a win for our client and for all coastal property owners.”

Plaintiff’s Common Law Dedication Claim For Public Access

The Court of Appeal held that the trial court erred in granting summary adjudication as to Plaintiff’s common law dedication claim.  A common law dedication is a “grant and a gift” of land or an interest in land to the public for a public use.  A claim for dedication has two elements: “intention to dedicate by the owner, and acceptance by the public.” To constitute a dedication at common law no particular formality of either word or act is required. All that is necessary is sufficient evidence that the property owner either expressly or impliedly manifested an unequivocal intention to offer the property for a public purpose and that there was an acceptance of the offer by the public. Such intent may be demonstrated in any conceivable way that a person’s intention can be shown.  Similarly, the acceptance element may be formal, as by resolution or ordinance, or by use.  Here, the Court rejected the Owner’s singular focus on the “express” dedication label that was used in Plaintiff’s Complaint. The elements are the same for either an implied or an express dedication; the only difference is in the mode of proof of the intent element. Contrary to the Owners’ argument, the “intent to dedicate” element in an express dedication may be established by words or overt conduct of an owner other than a grant deed to a public agency or similar formal writing.  Also contrary to the Owners’ argument, an express dedication does not need to be accepted in a formal way or by a public entity. Here, the Court of Appeal held that “there can be little doubt that the facts [Plaintiff] alleged are sufficient to establish the elements of common law dedication, if they can be proven at trial. The complaint alleged a number of acts on the part of the owners that could manifest an intent to dedicate to the public, coupled with public use over many decades that could establish acceptance.” 

Furthermore, it was error for the trial court to conclude, as a matter of law, that the fact that the Deeneys “at some point charged a fee” to the public negated any intent to dedicate.  Evidence of such permissive use may tend to show the owner intended to control or qualify other parties’ access to the property and thereby rebut a finding of dedicative intent.  But that was a triable issue of fact.  Also, the Court held that the trial court erred when it inferred that the Deeneys’ commercial purpose for inviting the public to use the road and beach negated the intent to dedicate the road or beach, as a matter of law.  In fact, such commercial purpose may support a finding of intent to dedicate.

Accordingly, the Court held that Plaintiff alleged facts sufficient to state a common law dedication claim, and the Owners failed to show, as a matter of law, that they are entitled to judgment on this cause of action. The Court remanded the case to the trial court to adjudicate Plaintiff’s common law public dedication claim.  After the Court of Appeal opinion was issued, counsel for Plaintiff stated the ruling “gave us a road map to how to win at trial.”  However, that remains to be seen in this very public lawsuit.

Glen Hansen is a Senior Counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or 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.

 

REGISTER TODAY! Abbott & Kindermann's 15th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Modesto, Sacramento and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • Location: Hilton Garden Inn Redding, 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

REGISTER TODAY! Abbott & Kindermann's 15th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Modesto, Sacramento and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • Location: Hilton Garden Inn Redding, 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

REGISTER TODAY! Abbott & Kindermann's 15th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Modesto, Sacramento and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • Location: Hilton Garden Inn Redding, 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

It's All About That Baseline: Factors to Consider When Establishing a CEQA Baseline

By Brian Russell 

North County Advocates v.City of Carlsbad (2015) 241 Cal.App.4th 94.

Westfield, the landowner and developer, (“Westfield”) proposed to renovate a 40‑year‑old shopping center located in the City of Carlsbad, California (“City”). In July 2013, the City approved Westfield’s request to renovate the former Robinsons-May store and other small portions of the shopping center (“Project”). North County Advocates (“Advocates”) challenged the City’s approval under the California Environmental Quality Act (“CEQA”), arguing that the Project’s environmental impact report (“EIR”) used an improper baseline in its traffic analysis because it treated the Robinsons-May store as fully occupied, even though it was vacated in 2006 and had been only periodically occupied since.

Advocates filed a petition for writ of mandate challenging the City’s approval of the project, and the trial court denied Advocates’ petition. Advocates appealed the trial court’s judgment to the Fourth District Court of Appeal.

Advocates contended that the EIR’s traffic baseline is “incorrect and misleading” because it did not follow the “‘normally’” applicable rule of measuring conditions as they actually existed when environmental review began. Advocates argued that the City instead “falsely inflated the existing traffic conditions” by “imputing over 5,000 daily trips” to the baseline premised on a fully occupied Robinsons-May building when, in fact, Robinsons-May vacated the space in 2006. By falsely inflating the existing traffic conditions, the baseline understates the Project’s true impact on the environment.

The EIR’s Transportation Study elaborated on the City’s determination of the traffic baseline:

“Westfield Plaza Camino Real is an existing super regional shopping center which is entitled for 1,151,092 square feet of retail commercial space. All of the currently entitled square footage is completely constructed. However, the nature of a shopping center is that tenants change and the amount of occupied space constantly fluctuates. Plaza Camino Real currently has unoccupied leasable space beyond the normal amount, mainly the 148,159 square foot Robinsons-May building. Since this space is currently vacant, traffic from this space is not included in the actual traffic counts conducted at the analyzed intersections and street segments. However, for the purposes of determining the Existing Baseline Conditions pursuant to CEQA Guidelines Section 15125, trips attributable to that currently unoccupied space are imputed. A full occupancy assumption is consistent with San Diego Association of Government’s regional traffic modeling methodology which assumes full occupancy of all entitled square footage. It is also consistent with the City of Carlsbad and City of Oceanside’s determination of existing baseline because the currently vacant space could be occupied at anytime without discretionary action. In fact, portions of that space are periodically occupied with temporary uses such as a Halloween store which leases the space in the month of October. For these reasons, full occupancy of all entitled square footage is assumed in determining the Existing Baseline Conditions.”

Using the baseline with the imputed Robinsons-May traffic, the Transportation Study concluded the “Project will not result in a significant impact at any of the analyzed intersections during either peak hour, or any of the analyzed street segments during either peak hour or daily conditions.”

The appellate court concluded that the City’s selection of a traffic baseline that assumed full occupancy of the Robinsons-May space was not merely hypothetical because it was not based solely on Westfield’s entitlement to reoccupy the Robinsons-May building “at anytime with discretionary action” but was also based on the actual historical operation of the space at full occupancy for more than 30 years up until 2006. Then, from 2007 to 2009, the Robinson-May space had a reduction in occupied square footage. The court viewed this fluctuating occupancy, “which is the nature of a shopping center,” to allow the agency to have the discretion to consider conditions over a range of time periods to account for a temporary lull or spike in operations. Further, the City’s decision to base the traffic baseline on historical occupancy rates is further supported by substantial evidence consisting of San Diego Association of Government data on such use levels. These factors together were substantial evidence which supported the City’s exercise of discretion in selecting a traffic baseline that assumed a fully occupied Robinsons‑May building.

Brian Russell is an associate attorney at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or 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.

 

REGISTER TODAY! Abbott & Kindermann's 15th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Modesto, Sacramento and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • Location: Hilton Garden Inn Redding, 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Six Years and Counting to Build A Single Family Home. Who Says We Need CEQA Reform?

Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943. 

By William W. Abbott

The history of the controversial home in the Berkeley Hills is well documented. (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (The California Supreme Court Tackles CEQA's Gordian Knot: Unusual Circumstances and CEQA Exemptions [http://blog.aklandlaw.com/2015/03/articles/ceqa/the-california-supreme-court-tackles-ceqas-gordian-knot-unusual-circumstances-and-ceqa-exemptions/] Admittedly, it is no ordinary residence: a two story home of 6,478 square feet with a 3,394 square foot 10-car garage, located on a hillside. The new home construction necessitated demolition of an existing dwelling. It is at the end of the day, a single family home nonetheless. The architect filed plans with the City in 2009, and the application was approved in early 2010. In approving the plans, the City relied upon a categorical exemption. The ensuing legal challenges eventually made it to the California Supreme Court, resulting in the Court’s decision addressing the required analysis for the use of CEQA exemptions, including the limitations of the “unusual circumstances” exception. Following the Supreme Court’s decision (BH1), the matter was remanded to apply the Supreme Court’s guidance to the remaining claims.

Although the appellate court had sided with the opponents in BH1, the appellate court rigorously followed the Supreme Court’s strictures on remand. In BH2, the court noted that the opponents had conceded that there was substantial evidence in the record to support the use of an exemption, so the legal debate on remand centered on the alleged unusual circumstances. In asserting unusual circumstances, the opponents focused on two issues: size of the home and the setting. The opponents also argued that the City had improperly mitigated its way into an exemption by using a traffic mitigation plan. As to home size, the evidence in support of the City’s decision was that the proposed home was not unusual when evaluated in the context of the surrounding homes.  As to the claim based upon setting, there was no evidence of a geological fault onsite, or that the house was visible from the public right of way (and therefore would have no effect on the aesthetic values of the neighborhood.) (The appellate court also concluded that any argument based upon geotechnical issues was foreclosed in BH1.) The final issue of note was the traffic mitigation plan. The opponents relied upon Salmon Protection & Watershed Network (2004) 125 Cal.App.4th 1098, in which the appellate court concluded that a lead agency could not mitigate its way into an exemption. In BH2, the court after reviewing the record agreed with the City that the traffic mitigation plan was a standard development condition and was not intended as specific mitigation. Therefore, Salmon Protection was not controlling and the use of the exemption was proper.

The applicants still have one more potential hurdle to cross. Will the Supreme Court take this case up? After six years, what is the hurry?

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP 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.

 

Do You Seek Compensation For An Unconstitutional Taking? Then Plead That With The Mandamus Action To Avoid The Potential Statute Of Limitations Bar!

By Glen C. Hansen

In Honchariw v. County of Stanislaus (2015) 237 Cal.App.4th 388, the Court of Appeal for the Fifth Appellate District held that a landowner's inverse condemnation claim for damages against the County of Stanislaus caused by an unconstitutional temporary taking was time-barred under Government Code section 66499.37. The owner previously had filed a successful petition for writ of mandate challenging the disapproval of a subdivision application, which resulted in the County’s reconsideration of the application and eventual approval of the project. However, the owner’s subsequent claim for compensation damages was time-barred under section 66499.37 because the mandamus proceeding had not established that there had been a compensable taking.

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'It's Good Enough For Government Work': Project May Violate Some General Plan Policies So Long As It Is Consistent With A Majority Of The General Plan

Save Our Heritage Organisation v. City of San Diego (2015) 237 Cal.App.4th 163.

By Glen C. Hansen

Balboa Park, a large urban park in San Diego, includes the buildings and plazas constructed for the 1915 Panama-California Exposition and the adjoining buildings and improvements subsequently constructed for the 1935 California Pacific International Exposition (the Complex). Visitors enter the Complex via the Cabrillo Bridge (“Bridge”). The Bridge and the Complex are a National Historic Landmark and a National Historic Landmark District. A project was proposed to return the plazas to purely pedestrian zones. The project included a new “Centennial” bridge, reconfigured roadways and a new pay-parking structure. The City of San Diego (“City”) approved a site development plan for the project.

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Local Zoning Laws Prevent an Eldercare Facility from Proceeding with Plans for Development

By Brian Russell

Walnut Acres Neighborhood Assn. v. City of Los Angeles (2015) 235 Cal.App.4th 1303

The owners of the property and the developer Community MultiHousing, Inc. sought a permit under Los Angeles City code section 14.3.1 to build an eldercare facility at 6221 North Fallbrook Avenue in Woodland Hills. Section 14.3.1’s purpose is to “provide development standards for Alzheimer’s/Dementia Care Housing, Assisted Living Care Housing, Senior Independent Housing and Skilled Nursing Care Housing, create a single process for approvals and facilitate the processing of application of Eldercare Facilities. These facilities provide much needed services and housing for the growing senior population of the City of Los Angeles.” (§ 14.3.1, subd. A.) The proposed eldercare facility exceeded the maximum allowable density and floor area of the residential zone. Zoning regulations limited a structure to 12,600 square feet, and the proposed facility would contain 50,289 square feet, including over 20,000 square feet devoted to common areas. The proposed facility would have 60 guest rooms and 76 guest beds. Application of the zoning regulations would have limited the site to 16 guest rooms. Pursuant to section 14.3.1, subdivision E, to approve an eldercare facility, the zoning administrator is required to make several findings. “The Zoning Administrator shall not grant the approval unless he or she finds that the strict application of the land use regulations on the subject property would result in practical difficulties or unnecessary hardships inconsistent with the general purpose and intent of the zoning regulations.”

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Did the California Alcoholic Beverage Control Cede its Authority?

By Brian Russell

Nick v. Department of Alcoholic Beverage Control (2014) 233 Cal.App.4th 194.

This is a case of one convenience store owner attempting to prevent another convenience store, 7-Eleven, from selling beer and wine by using the powers of the Department of Alcoholic Beverage Control (ABC). The petitioners, Adam and Sherry Nick (Nick) claimed in its complaint that under the Alcoholic Beverage Control Act (Bus. and Prof Code, Section 23000 et seq. or the “Act”) it prohibits the ABC from issuing a license that would result in or add to an undue concentration of licenses unless the local governing body of the area where the applicant’s premises is located determines that issuing the license would serve a “public convenience or necessity.”

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Footloose in Newport Beach: City Councilmembers Lack The Inherent Right To Appeal A Planning Commission Decision Then Vote On The Appeal

By William W. Abbott

Woody’s Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012.

Woody%27s%20Wharf.jpgWhile formal court rules do not apply to local land use proceedings fundamental requirements for due process and fairness are part of land use decisionmaking as illustrated in Woody’s Group, Inc. v. City of Newport Beach. [Woody’s Wharf  -  www.woodyswharf.com] The planning commission had granted a use permit to the restaurant permitting a patio cover, approval to stay open until 2:00 a.m., and indoor dancing. Four days later, City Councilman Henn sent the city clerk an email making an “official request” for an appeal, indicating his belief that the use, as approved by the commission was inconsistent with existing and expected residential uses in the area and the City’s General Plan. The councilman did not file a formal appeal form and did not pay an appeal fee. The appeal went forward to the city council where the permit applicant challenged the informal appeal and the ability of the city councilman to act upon his own appeal. The councilman in question, based upon his previously prepared notes, led the charge to deny request permit. The council, with one member abstaining and one recusing themselves, voted on Henn’s motion to reverse the planning commission decision. The council’s action also reflected that there had previously been a number of appeals by councilmembers in the past which were acted upon by the city council, and these appeals followed similar informal steps as the appeal in Woody’s Wharf, and thus reflected city custom. Woody’s filed for a writ of mandate to set aside the appeal and alleged a civil rights violation. The city filed a cross complaint to enjoin operations after 11:00 p.m. or dancing. The trial court denied the writ and issued the preliminary injunction. Woody’s appealed.

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Court Grounds City's PILOT For Unauthorized Taxing

By William W. Abbott

Citizens for Fair REU Rates v. City of Redding (2015) 233 Cal.App.4th 402.

In Citizens for Fair REU Rates v. City of Redding, the Third District Appellate Court found that the City of Redding’s PILOT charge was subject to Proposition 26’s voter approval requirement unless the charge reasonably related to the cost of service.

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Which Way To Turn? The United States Supreme Court Wrestles With Regulation Of Temporary Directional Signs For A Church

By William W. Abbott

Reed v. Town Of Gilbert

A sign from the top? On January 12, 2015, the United States Supreme Court wrestled with local regulation of directional signage and whether the Town of Gilbert, Arizona had unpermissibly regulated sign content. During oral argument the court aggressively questioned the town’s defense of its regulations. The transcript is available here, along with that of the lead parties. Stay tuned.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP 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.

 

Too Much Of A Good Thing? Court Upholds Findings Of Convenience/Necessity For A Liquor Sales Permit.

By William W. Abbott

Adam Nick v. City of Lake Forest (December 23, 2014, G047115) ___ Cal.App.4th ___.

Due to over concentration of liquor licenses, the Department of Alcoholic Beverage Control referred an application for a determination of public convenience or necessity to the City of Lake Forest. A competitor then sought to overturn a city council’s findings in support of the license based upon four arguments: the city’s failure to act timely; improper determination by the planning commission; failure of the operator to provide a unique goods; and improper advocacy by the planning director.

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Court Of Appeal Applies Traditional Deferential Standard Of Review To Questions Of General Plan And Consistency Determinations Including Requirements Enacted By The Local Voters

By William W. Abbott

San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498

Are general plan policies adopted by the citizens through an initiative, entitled to special consideration for purposes of determining consistency of projects with the general plan? Faced with that question in the context of planning policies adopted nearly 30 years ago in San Francisco, the Court of Appeal, First Appellate District, declined to elevate the legal significance of citizen crafted measures as compared to other regulatory requirements adopted through traditional means. Approximately 30 years ago, the voters in San Francisco adopted new land use requirements. Jumping ahead three decades, the court of appeal had to resolve whether a major private redevelopment undertaking was consistent with the relevant city regulations and policies, including those adopted by the voters.

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Local Land Use Permitting and Discrimination Under the Fair Housing Act

By William W. Abbott

El Dorado Estates v. City of Fillmore,765 F.3d 1118(9th Cir. Cal.2014)

The Ninth Circuit has concluded that the improper handling of a subdivision application by a city can give rise to a claim of discrimination under the Fair Housing Act. The claim stems from city responses to an application to subdivide an existing mobilehome park. El Dorado Estates (“El Dorado”) is the owner of a mobilehome park for residents 55 and older, located in the City of Fillmore. In 2008, the city considered adopting a park rent control ordinance, and El Dorado publically discussed the opening of the park to families. El Dorado elected to pursue a different path, that being to exit as a park operator and to subdivide and sell the tenant spaces. The existing tenants were opposed, and El Dorado encountered obstacles in processing its subdivision application through the city. El Dorado sued the city twice in state court. El Dorado then filed in federal court, alleging that the city’s land use practices were discriminatory based upon family status (families with minor children). El Dorado alleged that it faced unreasonable delays and expenses as a result of the city’s allegedly discriminatory practices. The city successfully filed a motion to dismiss based upon El Dorado’s lack of standing. The district court agreed, dismissing the case, and El Dorado appealed.

The Ninth Circuit disagreed, finding that El Dorado met the minimum three elements to satisfy standing: injury in fact, causation and redressibility. The Ninth held that that El Dorado alleged sufficient injury: unreasonable delays and extralegal conditions imposed upon its land use requests. Satisfied with the allegations of injury, the court of appeals found the remaining two elements: causation could be linked back to the allegations pertaining to the city’s actions while processing the applications and redressibility in that the district could award monetary damages based upon the injuries suffered by El Dorado. Whether El Dorado can prove its claims at trial remains to be determined. More on the federal Fair Housing Act can be found here http://www.justice.gov/crt/about/hce/title8.php. Information concerning California’s Fair Employment and Housing Act can be viewed here http://www.dfeh.ca.gov/Publications_FEHADescr.htm.

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Steep Lot Justified Grant Of A Variance For The Replacement Single Family Home

By William W. Abbott

Eskeland v. City of Del Mar (February 19, 2014) ___Cal.App.4th.___. While most land use debates involve projects of physical substance, even the single family home is capable of generating appellate opinions. The most recent case involves a grant, by the City of Del Mar, of a variance from a front yard setback requirement. The variance was granted so that the owners could construct a new single family home in the footprint of the existing single family home. The history suggested that the existing home was constructed before the current setback standard was adopted. The owner proposed to reconstruct in the same footprint, but would expand the footprint parallel to the front property line. As a result, there would be a linear expansion of the building including new additional square footage to be built within the setback restriction, but no additional perpendicular intrusion into the front yard setback area. The building lot included areas with a 25% slope, and buildable area was limited.

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City Subdivision Regulations Do Not Apply To Family Compound On Existing Lots

By William W. Abbott

Tower Lane Properties v. City of Los Angeles (February 28, 2014, B244092) ___ Cal.App.4th ___. This one is not complicated. Facing an applicant’s request for a grading permit on a hillside to construct three homes and accessory uses on three existing parcels, the city required the property owner to obtain a tentative map. The requirement stemmed from the city’s ordinance which specified that a map was required if grading activity involved a hillside site of 60,000 square feet or more. The city offered a waiver of the map requirement, conditioned upon completion of CEQA documentation. Passing on the waiver option, the applicant filed suit to set aside the requirement to process the tentative map as no subdivision was involved.

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Even If The Policies Behind Affordable Housing Are Thwarted, A Court May Not Use "Equitable Principles" To Avoid Public Entity Immunity In The Tort Claims Act.

By Glen Hansen

In Tuthill v. City of San Buenaventura (2014) ___ Cal.App.4th ___, the Court of Appeal for the Second Appellate District held that a trial court could not apply equitable principles to circumvent the statutory scheme of public entity immunity embodied in Government Code section 815 et seq, in order to award damages against a city based on the city’s failure to disclose affordable housing restrictions that applied to plaintiffs’ townhomes.

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A History of LAFCo by Peter M. Detwiler

Peter Detwiler, the long time LAFCo policy wonk at the state capitol, has prepared a history of local agency formation commissions and has generously agreed to share it with the readers of this blog. Thank you Peter.

Click here to view the document.

A Petitioner Is Entitled To Attorneys' Fees Under The Public Records Act If The Petitioner Succeeds On Any Significant Issue And Achieves Some Of The Benefit Sought In The Litigation

By Glen Hansen

In Garcia v. Governing Board of Bellflower Unified School District (October 24, 2013, B247320) ___ Cal.App.4th ___ a former employee of the Bellflower Unified School District (“District”) filed an extraordinary writ petition against the District relating to her alleged exposure to mold. Her counsel later served on the District’s counsel in that proceeding a request for records from the District pursuant to the California Public Records Act (Gov. Code, § 6250 et seq.) (“PRA”). The letter listed eight (8) categories of records that were requested pursuant to the PRA. During the next month, the former employee’s counsel sent several additional letters and an email to the District’s counsel because the District did not respond to the original letter request. The District's general counsel finally responded with a letter stating that there were no documents responsive to four of the requests, that two of the requests were overly broad and vague, and that documents responsive to two of the requests were exempt from disclosure. The former employee’s counsel then sent a ‘meet and confer’ letter to the District’s general counsel disputing the District's objections and responses. But when the District did not respond to that letter, the former employee commenced mandamus proceeding seeking to compel the District to comply with the PRA. 

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Court Affirms Groundwater Augmentation Charge Exempt From Proposition 218 As A Water Service Charge

 By William W. Abbott

Griffith v. Pajaro Valley Water Mgt. Agency (October 14, 2013) ___ Cal.App.4th ___. 

The long saga of the groundwater augmentation strategy for Pajaro Valley in Santa Cruz County has reached its next, and possibly final stopping point. The underlying saga is a telltale forecast of what lies ahead for California, with the inevitable conflicts generated by resource allocation and management. In Griffith, the specific conflict stems from the intersection of groundwater management strategies designed in part to better manage water resources and to reduce saltwater intrusion with the citizen rights created by Proposition 218.

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Transcripts Not Always Required For Administrative Record

By Katherine J. Hart

In San Diego Citizenry Group v. County of San Diego (Published August 26, 2013, D059962) ___ Cal.App.4th ___, the Court of Appeal, Fourth District, upheld San Diego County’s (County) certification of an EIR and approval of a Tiered Winery Ordinance Amendment (Winery Ordinance) which permits boutique wineries in agriculturally designated and zoned land in the unincorporated area of the County by right. In ruling on a dispute regarding the cost of transcripts in the administrative record, the Fourth Appellate District reversed the trial court and held appellant was not required to reimburse the County for the costs of transcribing transcripts of the planning commission meetings pursuant to Public Resources Code section 21167.6(e)(4).

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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

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. 

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California Legislature Breathes Life Into Tentative Maps One More Time

By William W. Abbott

Not surprisingly, the building industry was able to convince the Legislature to keep pending maps alive for another two years. AB 116, Chap. 62 Stats. 2013. Fortunately, the Legislature abandoned its existing complicated statutory formula for determining winners and losers, opting for much simpler protocols. If the TSM was approved after January 1, 2000 and the map was pending on July 11, 2013, the tentative map is extended by 24 months. This extension occurs automatically.

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The U.S. Supreme Court's Nollan/Dolan Jurisprudence Is Catching Up With The California Supreme Court in Ehrlich v. Culver City

By Glen C. Hansen

For nearly twenty years, Fifth Amendment takings challenges to adjudicative land-use exactions and permit conditions have been governed by the dual Supreme Court cases of Nollan v. California Coastal Commission, 483 U.S. 825 (1987),and Dolan v. City of Tigard, 512 U.S. 374 (1994). In Nollan, the Court held that a government could, without paying the compensation, demand the easement as a condition for granting a development permit the government was entitled to deny, provided that the exaction would substantially advance the same government interest that would furnish a valid ground for denial of the permit. The Court further refined that requirement in Dolan, holding that an adjudicative exaction requiring dedication of private property must also be “‘roughly proportional’ . . . both in nature and extent to the impact of the proposed development.” However, Nollan and Dolan involved the dedication of real property interests. In Koontz v. St. Johns River Water Management District, ___ U.S. ___, 2013 U.S. Lexis 4918 (2013), the Court held in a 5-4 decision that “the government’s demand for property from a land-use permit applicant must satisfy the requirements of Nollan and Dolan even when the government denies the permit and even when its demand is for money.” 

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Appellate Court Reverses Trial Court Invalidation Of Local Inclusionary Ordinance; Remanded For Further Review

By William W. Abbott

In California Building Industry Assn. v. City of San Jose (June 6, 2013, H038563) ___ Cal.App.4th ___, the City of San Jose adopted an inclusionary ordinance, requiring that new residential projects include units affordable to specified income ranges. Alternatively, the ordinance permitted the developer to pay an in lieu fee or dedicate land. The California Building Industry Association (“CBIA”) filed suit, challenging the validity of the ordinance on its face on the basis that the ordinance lacked any nexus to the deleterious effects of new residential development. CBIA did not allege that a compensable takings had occurred, but rather argued that the City lacked sufficient justification for the ordinance. The trial court agreed with CBIA and invalidated the ordinance. The City appealed.

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Public Officials Are Immune From Tort Liability For Legislative Actions Involving Misrepresentations That Are Motivated By Fraud, Corruption Or Actual Malice.

By Glen Hansen

In Freeny v. City of San Buenaventura (June 4, 2013, B240893) ___ Cal.App.4th ___, the Court of Appeal for the Second Appellate District held, in an action against a city and five city council members for compensatory and punitive damages for voting against an application for building permits and variances, that public employees’ tort immunity for legislative decision-making under Government Code sections 820.2, 821 and 821.2 applies even when that decision-making is also alleged to involve the making of misrepresentations motivated by actual fraud, corruption or actual malice.

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Steinberg's Amended CEQA Bill - SB 731-May Have A Chance

By Katherine J. Hart

Senate Bill No. 731, Introduced by Senator Darrell Steinberg in February 22, 2013, as amended on April 23, 2013.

I’m the first person to doubt all the chatter about significant CEQA reform. In fact, for reasons I’ll spare you, I’m a complete pessimist when it comes right down to it. But in reviewing Darrell Steinberg’s amended bill, and despite our Governor’s comments in China on the subject last week, I saw a glimmer of hope for some reform.

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City May Install Sewer Line in County Right Of Way Without County Permission

By William W. Abbott

County of Los Angeles v. City of Los Angeles (March 14, 2013, B236732) ___Cal.App.4th ___. The latest illustration of intergovernmental non-cooperation examines the circumstances in which cities can route sewer lines through county rights of way, all without county approval. The facts involve the City of Los Angeles upgrading the capacity of its line to its Hyperion Treatment Plant in Playa Del Rey. Serving the coastal portions of the City, the existing 48 inch line was installed in 1958 but lacked the capacity to serve major storm events. The City studied various options for installing a new 54 inch diameter line. Most of the routing would take place in City streets, but one route involved use of public streets and a public parking lot located in the jurisdiction of the County. For environmental reasons, the City ultimately approved the alignment which involved County streets. The County filed a petition for writ of mandate, alleging violations of the Public Utilities Code and CEQA. The trial court rejected the CEQA claim, but granted relief pursuant to the Public Utilities Code claims, effectively holding that County approval was required. The City appealed. The appellate court reversed the trial court.

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Breaking Local Government Land Use News: Obama suspends billboard regulations along interstate highways.

By William W. Abbott

Local governments are stunned to learn that over the weekend they were thrown under the bus by the President and Speaker John Boehner. Hidden in the fine language of the new draft federal budget compromise was a presidential suspension of billboard regulation along federal interstate highways. “The result”, said a spokeswoman for the National Association of Counties, Cities and Towns, “is a advertising free fire zone snaking throughout the country on both sides of federally supported highways. The bottom line is that no agency will be able to control the size, type or number of billboard displays. It’s a disgrace. How many billboards does society really need which advertise hair implants for men going bald?”

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10 Cent Per Bag Charge Included as Part of An Ordinance Encouraging Use of Recyclable Grocery Bags Was Not Subject to Proposition 26

By William W. Abbott

Schmeer v. County of Los Angeles (February 2, 2013, B240592) ___Cal.App.4th ___. The County of Los Angeles enacted an ordinance prohibiting retail stores from providing plastic carryout bags and requiring the stores to charge customers 10 cents for each paper bag provided. Among other provisions, the ordinance provided that the money received by the store for recyclable paper carryout bags must be retained by the store and used only for (1) the costs of compliance with the ordinance; (2) the actual costs of providing recyclable paper bags; or (3) the costs of educational materials or other costs of promoting the use of reusable bags.

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US Army Corps Denies A §404 Permit: Can A Takings Claim Be Based On Consideration Of The Economic Affect On the Wetlands Parcel Only?

By Glen C. Hansen

Lost Tree Village Corp. v. United States, ___ F.3d ___, 2013 U.S. App. LEXIS 690 (Fed.Cir. 2013). Between 1968 and 1974, Lost Tree Village Corporation (“Lost Tree”) purchased approximately 2,750 acres of property on Florida's mid-Atlantic coast, which included a barrier island on the Atlantic Ocean. That property included 4.99 acres now known as Plat 57, which is part of the entire peninsula known as the Island of John's Island. From 1969 through the mid-1990s, Lost Tree developed approximately 1,300 acres it purchased into the upscale gated residential community of John's Island. The development was made in a piecemeal manner, and not as a master-planned community.

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Born (again) Under a Bad Sign: Ninth Circuit Upholds Ordinance Restricting Duration, Location, Quantity, And Size Of Directional Signs for Church Services

By William W. Abbott

Reed v. Town of Gilbert, Arizona (9th Cir. Feb. 8, 2013, No. 11-15588) ___F.3d ___.

As part of its overall regulatory code, the City of Gilbert, Arizona enacted various sign regulations. The regulations generally require a City issued sign permit unless the sign qualifies under one of nineteen different exceptions. Three of the nineteen exceptions involved (1) temporary directional signs for a qualifying event, (2) political signs and (3) ideological signs. Temporary directional signs subject to the exemption were subject to specific limitations not applicable to political and ideological signs including size, location (excluded from public right of way), and duration (same day only).

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When A Deal Is Not A Deal

By William W. Abbott

Summit Media LLC v. City of Los Angeles (December 10, 2012, B220198) ___Cal.App.4th ___.

In many situations, the settlement of a lawsuit is a flexible tool to resolve disagreements between parties and allow the participants to move on with their lives. A settlement with a public agency invokes slightly different considerations then a matter resolved exclusively through private parties. As previously noted in Trancas Property Owners Association v. City of Malibu (2006) 138 Cal.App.4th 172 , a public agency cannot rely upon a settlement agreement to bypass a required land use approval step.

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Mobilehome Park Conversions Trigger Coastal and Mello Act Compliance Requirements

By William W. Abbott

Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (November 29, 2012, S187243) ___Cal.4th ___. In a 6 to 1 decision, the California Supreme Court concluded that mobilehome park conversions subject to Government Code section 66427.5 of the Subdivision Map Act are also subject to the Coastal Act and Mello Act (the latter for affordable housing in the Coastal zone.) In 1991, the Legislature enacted Government Code section 66427.5. This new code section set forth the particular determinations under the Subdivision Map Act when local government was processing a subdivision map application for conversion of a rental park to an owner occupied park and was intended to narrow the scope of local government inquiry which might otherwise be permitted by the Subdivision Map Act when processing other types of proposed subdivisions. The 1991 legislation included language which stated, in conjunction with local government review of the tentative map, that “The scope of the hearing shall be limited to the issue of compliance with this section.”

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Multiple Harmless Errors Do Not Require Project Approvals Be Overturned Unless Prejudice Is Shown

By Katherine J. Hart

In Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899 (Rialto Citizens), the City of Rialto (City) and Walmart appealed a trial court’s grant of writ of mandate invalidating the City’s approval of a 230,000-square-foot commercial shopping center to be anchored by a 24-hour Walmart Supercenter. In its decision, the Court of Appeal, Fourth Appellate District, discussed public interest standing to challenge a CEQA project, the import of defective notice of a public hearing, whether the approval of the development agreement missing a general/specific plan consistency finding was valid, and a myriad of other CEQA issues such as the adequacy of (1) the project description, (2) cumulative impact analyses on traffic and air quality, (3) the greenhouse gas analysis, and (4) mitigation measures for biological impacts, and whether the City properly rejected the reduced density alternative as infeasible.

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Appellate Court Applies Permit Streamlining Act to Affirm Effect of City Acknowledging Completeness of Application; Restricts Consideration of Tenant Survey in Mobilehome Park Conversion Application

By William W. Abbott

Within the Subdivision Map Act (Map Act), the processing of a mobilehome park conversion (from rental to individual ownership) invokes some of the more complex procedures, and from a local government perspective, potentially involves an application with a lot of emotional baggage. Unlike other Map Act related applications, park conversions involve a tenant survey, the results of which have been the subject of a several appellate court decisions. The recent appellate opinion in Chino MHC, LP v. City of Chino (October 31, 2012, E053467) ___ Cal.App.4th ___, provides guidance in two areas: what is the effect under the Permit Streamlining Act of a city determination that an application is complete when later reviewing the mandated tenant survey form, and, are the results of the tenant survey the basis to deny a conversion request?

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Appellate Court Draws Line In Sand Requiring CEQA Review Before City Council Enactment of Land Use Measure

By William W. Abbott

In case you missed the recent legal tremor, be advised that land use practitioners are looking at two appellate districts in conflict with one another over the application of CEQA to a citizen sponsored land use measure. In Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores, Inc.) (October 30, 2012, F063849) ___Cal.App.4th ___, the facts involve the efforts of Wal-Mart to seek an expansion of an existing store in the City of Sonora. An EIR was prepared by the City, and the Planning Commission recommended approval. Before the matter was considered by the City Council, an initiative was filed, the effect of which would change the land use regulations on the Wal-Mart parcel, and dispense with the need for a discretionary permit. Once the city determined that the initiative petition contained the requisite number of signatures, the City Council had two basic choices: enact the measure as its own without modification or place it on the ballot. With the belief that CEQA did not apply, the City Council chose the former option and enacted the initiative measure as its own. Litigation challenging the approval ensued, including a claim that the City Council was required to complete the CEQA process first. The City and Wal-Mart demurred to the petition/complaint, which the trial court sustained. Petitioners then filed a writ petition with the Fifth Appellate District which granted the writ as to the CEQA claim, effectively reinstating the claim at the trial court.

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General Plan Inconsistencies Created By Revisions To Housing Element Can Be Remedied Through Timely Implementation Plan To Conform Inconsistent Elements

By Katherine J. Hart

In addressing their fair share regional housing needs, cities are required to include in their housing elements, site inventory for parcels able to be developed with multifamily housing for seniors and low income residents. However, when surrounding parcels have been built out, existing homeowners may object to the inclusion of such housing in their neighborhood.

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No Commitment, No "Project"

In Chung v. City of Monterey Park (October 23, 2012, B233859) ___Cal.App.4th ___, the City Council directed staff to prepare a ballot measure that would require the City to seek competitive bids for trash service when the current contractor’s contract was complete in 2017, and provide a new bidding opportunity every five years thereafter. Chung, a resident of the City and signatory to the ballot arguments against the measure, filed suit to remove the measure from the ballot arguing the City violated the California Environmental Quality Act (CEQA) by failing to perform environmental review and because the Council “had deemed Measure BB a voter ‘initiative,’” but failed to follow the initiative measure requirements for a petition and thus, unconstitutionally restricted the actions of future City Councils.

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GOVERNOR SIGNS URGENCY MEASURE TO CLARIFY 2011 LAW ON ENDOWMENT FUNDS FOR MITIGATION LANDS

By Katherine J. Hart

Just short of one year from signing Senate Bill 436 into law, Governor Brown signed urgency measure Senate Bill 1094 into law in late September to clarify endowment requirements for lands held by public or private entities to mitigate impacts on natural resources.

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Two Recent Decisions Highlight the Special Powers Held By LAFCo

By William W. Abbott

While perhaps not surprising news to LAFCo wonks like Peter Detwiler, two recent decisions illustrate the special role that local agency formation commissions play in influencing local government and special district activities. The first decision, Citizens Association of Sunset Beach v. Orange County Local Agency Formation Commission (October 5, 2012, G045878) ___ Cal.App.4th ___ , wrestles with the intersection of Proposition 218 voting requirements with LAFCo’s ability to order island annexations. (Government Code section 56375.3) Originally developed in 1904, Sunset Beach is a small, unincorporated enclave located adjacent to Huntington Beach. Confined to less than 134 acres, Sunset Beach is home to roughly 1200 permanent residents. As authorized by the Government Code, Orange County LAFCo (“OC LAFCo”), upon review of the location, size and status of Sunset Beach, concluded that the area met the qualification for an island annexation, and ordered it annexed to the agent city of Huntington Beach. At the time, existing property owners within the city limits of Huntington Beach paid two taxes that their adjacent neighbors in Sunset Beach did not pay: a five percent utility tax and a pre-Proposition 13 retirement property tax. LAFCos approval of the island annexation thus triggered the following question: did Proposition 218 give the Sunset Beach voters the right to vote on the taxes as a condition to the annexation going forward. Voters within Sunset Beach filed suit. The trial court decided that 218 voting requirements did not extend to LAFCo compelled island annexations completed under the authority of Government Code section 56375.3. The appellate court reached the same conclusion. In so deciding, the appellate court reviewed the history to voter enacted tax reform starting with Proposition 13 (1978). The appellate court reasoned that had the voters intended to apply the vote requirement to the then existing statutory scheme which authorized island annexations, the voters would have drafted the measure to expressly do so. Failing the ability to find that legislative objective in Proposition 218, the appellate court declined to read the proposition in a manner to reach a result not reasonably read into the adopted text.

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Class 3 CEQA Exemption: Unusual Circumstances Exception Becoming Less Unusual?

By Katherine J. Hart

In Voices for Rural Living v. El Dorado Irrigation District, the Court of Appeal, Third Appellate District, affirmed the trial court’s determinations that (1) the small project categorical exemption in CEQA did not apply to exempt an agreement for water service from CEQA review due to the unusual circumstances surrounding the agreement, and (2) a local water district lacked authority to disregard or deem unconstitutional annexation conditions previously imposed by the local agency formation commission (LAFCo).

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Lead Agency Correctly Applied CEQA Categorical Exemption To Permits For Wireless Equipment To Be Added To Existing Utility Poles

By William W. Abbott

On April 6, 2009, T-Mobile applied to the Planning Department of the City and County of San Francisco for a determination on the installation of 40 wireless telecommunications facilities on existing utility poles throughout San Francisco. On August 7, 2009, T-Mobile applied for a permit from the Department of Public Works for an installation on Randall Street, marking the application that the installation was exempt from CEQA. Prior to the Planning Department completing its CEQA review, Public Works granted the permit on August 10. Roughly a month later, the Planning Department granted a certificate of CEQA exemption. Two months later, T-Mobile completed the Randall Street installation. A neighbor, Robinson, then filed suit, claiming that the City violated CEQA and its own approval procedures. The trial court ruled for the City and T-Mobile. Robinson appealed.

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30 Year RV-Boat Storage Use Lacks Vested Right To Expand

By William W. Abbott

Ideal Boat & Camper Storage began operating as an equipment storage yard in 1964, and in subsequent years, obtained various county approvals, including two site development review (“SDR”) approvals, the latest in 1990. In 1993, the County adopted a new area planning document which sought to promote viticulture in the area. In 1994, the area plan was incorporated in the comprehensive general plan for the east area of the county. In November 2000, the voters of Alameda County approved Measure D, which among other purposes, sought to protect agricultural and open space. Measure D restricted the urban expansion areas, and added new development requirements.

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Only The Pecuniary Interests Of A Public Litigant May Be Considered When Awarding Attorneys' Fees To The Public Litigant Under Code of Civil Procedure §1021.5

By Glen C. Hansen

In Conservatorship of Whitley (2010) 50 Cal. 4th 1206, the California Supreme Court examined the three requirements that litigants must prove in order to recover attorneys’ fees under California’s ‘private attorney general’ fee statute in Code of Civil Procedure section 1021.5. Those factors are “(1) plaintiffs’ action ‘has resulted in the enforcement of an important right affecting the public interest,’ (2) ‘a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons’ and (3) ‘the necessity and financial burden of private enforcement are such as to make the award appropriate.’” (Id. at p. 1214 (citation omitted).)

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Tenant Surveys Form Foundation of Denial of Mobilehome Park Conversion Request

By William W. Abbott

Mobilehome parks represent meaningful opportunities for affordable housing. Conversions of rental mobilehome parks to individual ownerships can create affordable ownership opportunities for lower income families and individuals, or displacement of the same economically disadvantaged households burdened with a difficult-to-relocate housing asset. The legislature has struggled with crafting the appropriate protocols for cities and counties to follow when reviewing applications for park conversion. The most recent judicial decision involves city and county practice when determining whether or not an application represented a bona fide application to convert (Government Code section 66427.5.)

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Charter Cities Can Exempt Themselves From Prevailing Wage Requirements For Locally Funded Projects

By William W. Abbott

In a notable decision narrowing the potential application of prevailing wage requirements, the California Supreme Court ruled that charter cities may exempt themselves from paying prevailing wages for locally funded projects. The case involves the City of Vista which, by voter approval, enacted a .5 percent sales tax to fund construction and renovation of several public buildings. At the time, Vista was a general law city. In 2007, the City Attorney advised the City Council that in the event that the City converted to charter city status, then the city would have the potential option of exempting itself from prevailing wage requirements for projects funded with the sales tax proceeds on the basis that locally funded projects were not matters of statewide concern, and pursuant to charter law authority, the city was not obligated to follow general statutory requirements. The City Council authorized a special election for the purpose of putting the vote before the electorate of conversion to charter city rule. The impartial analysis for the ballot identified, among other points, that charter city status would give the city the option to exempt itself from prevailing wage requirements. Similar points were made in the ballot arguments in favor of the ballot measure. The matter passed with 67% of the vote. Following passage of the measure, the City Council amended city procedures providing for an exemption from prevailing wages unless otherwise required by law.

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California Attorney General Opines On Streamlined Island Annexations

By William W. Abbott

In order to promote more logical urban development pattern, the extension of city services and to avoid underserved populations surrounded by more intense development typically with higher level of services, the legislature has periodically tinkered with the island annexation provisions. In 2000, the legislature created a streamlining provision for unincorporated islands of 75 acres or less, subsequently increased to 150 acres. Pursuant to Government Code section 56375.3, local agency formation commissions (LAFCos) may exercise a more streamlined annexation approval process and can waive the protest proceeding if an annexation is initiated by a city, and the property consists of an island of less than 150 areas. In 2010, Senator Gloria McLeod requested an opinion from the California Attorney General regarding administration of this code section. In July of 2012, the Attorney General weighed in with a formal opinion. While these opinions are not binding on courts or agencies, they are normally afforded great weight in terms of statutory interpretation. In other words, best to pay attention.

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A Combination of Otherwise Exempt Funding Sources Causes a Seniors Project to be Subject to Prevailing Wage Requirements

By William W. Abbott

At this moment in time, there is some irony in writing an article about the demise of state affordable housing programs in circumstances in which residential values have taken a major haircut and interest rates are at record lows, the two factors together resulting in new levels of affordability. Nevertheless, over the long run, state programs have served a vital role in affordable housing and from a long term policy perspective, should remain funded and operational. The most recent decision in this area pertains to prevailing wage requirements and the specified exemptions to the obligation to pay prevailing wage on public projects, depending upon the funding source.

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Supreme Court Says Exhaustion Requirement Applies in CEQA Exemption Suit

By Katherine J. Hart and Daniel S. Cucchi

In Tomlinson v. County of Alameda (June 14, 2012, S188161) __Cal.4th __, a developer proposed to divide two existing ‘R-1’ zoned parcels totaling 1.89 acres into 11 lots to allow for the development of single-family homes. The project was located in the community of Fairview in unincorporated Alameda County, bordering the City of Hayward. The County sent out written notices to a number of agencies, neighbors, and other interested parties, including the Appellants, indicating the County’s intent to utilize the section 15332 (Infill Development) CEQA exemption.

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UPDATE ON BERKELEY HILLSIDE CASE

In March 2012, we posted an article reviewing the First Appellate District’s determination in Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656.

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Property Owner Fails to Establish Basis For Maintaining Older Property Tax Assessment Following Property Transfer

By William W. Abbott

Duea v. County of San Diego (2012) 204 Cal.App.4th 691

Proposition 13 changed the property tax rules in California in 1978. One of its many key features was the rolling back of the taxes, and limiting annual increases. A change in ownership was treated as a triggering event for purposes of establishing property valuation, and in turn, the recalculated property tax liability. Overtime, one of the important considerations in applying tax liability was whether a transfer took place. Subsequent to Proposition 13, the Legislature enacted legislation for purposes of defining certain transfers as not constituting a triggering event. Exemptions include acquisition through eminent domain, acquisition by a public entity, or governmental action resulting in a judgment of inverse condemnation.

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Local Government Land Use News Update

By William W. Abbott

Fraternity defeats City injunction request by reorganizing as a religious order.

In a surprising turn of events for City officials, the Delta Tau Chi fraternity, the single largest source of noise complaints in the City of Fresno, reorganized itself as a religious order last February. This conversion came about as a result of City officials filing a nuisance complaint and seeking a preliminary injunction. The fraternity quickly reorganized itself as a religious brotherhood, albeit one with unconventional practices. At the hearing on the preliminary injunction, the trial court judge, the Honorable Douglas Neidermeyer, expressed sympathy for the City’s concerns. However, the judge declined the City’s preliminary injunction request, ruling that under the federal Religious Land Use and Institutionalized Persons Act, the City was not likely to succeed on the merits. The judge’s order stated: “The law requires this court to have an open mind as to what constitutes bona fide religious practices. As the defendants have demonstrated in their opposition papers, the wilder side of Lutherans and the Amish, while not well known, are nevertheless well documented. This court cannot discriminate in favor of established more popular religions over those that are not.” Trial is set in August while the students are on summer break.

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Applying CEQA's Unusual Circumstances Exception to an Otherwise Exempt Activity Results in an EIR for a Single Family Residence

By William W. Abbott

Property owners in Berkeley applied for use permits to demolish an existing home on a 29,714 square foot lot and to construct a 6,478 square foot home along with an attached 3,394 square foot, 10 car garage. The lot is a hillside lot with an approximately 50% grade. Based upon CEQA exemptions for infill and for construction of new small structures, the Board of Zoning Adjustment approved the permits. The proposed construction was supported by neighbors, but other interested parties appealed the approvals to the city council. A geotechnical engineer, Karp, submitted a letter indicating that he had reviewed the building plans, and that he was familiar with the site based upon his work on other building sites in Berkeley. The letter reflected his belief that additional benching would be required, that this was not reflected on the plans, and that the site potentially had some exposure to seismic risk. Karp also indicated that additional vegetation removal was required that was not otherwise reflected on the plans. Karp concluded by indicating his opinion that the project would likely have significant impacts during construction and operationally due to seismic risk. Two engineers submitted letters on behalf of the applicants' (at least one was a geotechnical engineer) submitted responses to Karp’s comments, which argued in part that Karp misread the plans, and that the project was otherwise appropriate for the site. The council was presented with conflicting evidence as to relative size of the proposed structure to other homes in Berkeley. The city council denied the appeal, and the opponents filed suit. The trial court ruled for the city and applicant, and the neighbors appealed.

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Legislative Update: Mitigation Chapter of Planning and Zoning Law is Amended and Expanded to Ensure the Proper Management of Protected Lands (SB 436)

By Katherine J. Hart

On October 8, 2011, Governor Jerry Brown signed Senate Bill No. 436 (SB 436), authored by Senator Kehoe, into law. SB 436 substantially strengthens the mitigation aspect of the Planning and Zoning Law. It amends Government Code Section 65965 (Definitions), and adds three new Government Code Sections: 65966 and 65967, 65968.

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How Do You Say "No" To A Housing Project? With Findings.

By William W. Abbott

This case reminds me of that dreaded moment when a judge, work supervisor or parent turns to you and asks, “what part of “NO” don’t you understand; the “N” or the “O”? And as simple as the question is, the answer, in a land use context, is more complicated then would first appear. For purposes of housing projects, the riddle is Government Code section 65589.5(j) which, among other provisions, requires a city or county to adopt findings justifying the denial or density reduction in circumstances in which the project complies with “applicable, objective general plan and zoning standards and criteria, including design review standards.” This code section was added in an effort to tighten down the discretion exercised by local officials when acting on a housing project application. It is codified as part of the Housing Accountability Act. A companion code section places the burden of proof on the city or county. (Government Code section 65589.6.)

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No Matter How Compelling a Story, a Medical Marijuana Patient Lacks Standing to Sue City

By Cori M. Badgley

There have been several attempts by medical marijuana dispensary proponents to get the courts to recognize a right to establish a dispensary, regardless of what the local zoning code allows. Thus far, these attempts have failed, and the most recent attempt in Traudt v. City of Dana Point (2011) 199 Cal.App.4th 886, is no different. This time the court did not even make it to the merits, but struck the case down at the demurrer stage for lack of standing.

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The Prevailing Winds of Prevailing Wage

By William W. Abbott

The dividing line separating which privately undertaken improvements are subject to prevailing wage requirements from those which do not, has become less clear over time. The result is that some contractors, after bidding a project as a purely private undertaking, learn that they incorrectly bid their labor costs. It is common practice in construction agreements that this financial risk is borne by the contractor. Earlier this year, this blog reported the Azusa Land Partners decision. The most recent chapter in the story of prevailing wage comes from a challenged ground lease between the San Diego Unified Port District and a hotel developer.

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California Supreme Court Decides Class Action Permitted Under Government Claims Act

By Cori M. Badgley

In Ardon v. City of Los Angeles (2011) 52 Cal.4th 241, the California Supreme Court held that class actions for tax refunds against a local governmental entity are permissible under section 910 of the Government Code (i.e., Government Claims Act) in the absence of a specific statutory tax refund procedure.

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Failure Of City To Comply With Its Charter, Zoning Code and the Topanga Case, Requires Reconsideration And Proper Findings For Use Permit And Variances

By Katherine J. Hart

In West Chandler Boulevard Neighborhood Association v. City of Los Angeles (2011) 198 Cal.App.4th 1506, the Court of Appeal, Second Appellate District, considered the validity of the City of Los Angeles’ (“City”) grant of a conditional use permit, height variance and parking variance to a group (“Chabad”) operating a synagogue in a residential neighborhood within the City.

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Finding the Special in Special Benefits after Proposition 218

By William W. Abbott

Recent polls suggest that Proposition XIII remains as popular today as when it was enacted. Yet, at the same time, residents demand a high level of services which exceed the ability of local officials to fund absent innovation in developing new funding strategies. This innovation in turn has generated a series of voter enacted limitations designed to further restrict new revenue measures, absent voter approval. Part of this voter legacy is Proposition 218, enacted in 1996 (California Constitution Art XIIID).

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Senate Committee Scolds SWRCB in Recent Hearing on Draft Statewide Permits

By Cori M. Badgley

In early 2011, the State Water Resources Control Board (“SWRCB”) released three draft statewide NPDES permits for public review and comment. To say that these permits were not well-received by the regulated community (i.e., small municipalities, CalTrans and industrial business owners) is an understatement. In a rare intervention by members of the state legislature into the realm of state agencies, the Senate Select Committee on California Job Creation and Retention held an informational hearing on the draft permits on October 6, 2011. The message from the hearing came across loud and clear: time for a do-over.

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Code of Civil Procedure §1021.5 Authorizes a Prevailing Party to Recover Its Attorney Fees for Administrative Time As Well As in Litigation

By William W. Abbott

In CEQA and land use litigation, project opponents who prevail in court will seek attorneys’ fees as authorized by Code of Civil Procedure section 1021.5. This code section grants a trial court the discretion to award fees in appropriate situations. In circumstances in which the opponents must first exhaust administrative remedies before filing suit, can the successful party also recover fees for the administrative time? A recent appellate decision answers the question with a "yes".

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Property Owner Hit With $137,778 Civil Penalty, Appeals, And (Without Adequate Notice) Ends Up A $1,148,200 Penalty! Court Reverses for Lack of Due Process.

By Glen C. Hansen

In Tafti v. County of Tulare (2011) 198 Cal.App.4th 891, the Court of Appeal for the Fifth Appellate District held that a local enforcement agency violated the due process rights of a property owner when it failed to provide adequate notice of the nature of an administrative appeal hearing where an administrative law judge recalculated a civil penalty in an amount that was over eight times the penalty amount stated in the original enforcement order that the owner appealed from.

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Attorney General Comments on Draft EIR for First SB 375 Sustainable Communities Strategy

By Leslie Z. Walker

San Diego Association of Governments has prepared the first draft Regional Transportation Plan (“RTP”) to include a Sustainable Communities Strategy (“SCS”), as required by Senate Bill 375. As drafted, the SCS will achieve the California Air Resources Board’s (“CARB”) 2020 and 2035 greenhouse gas emission reduction targets. CARB staff reviewed the draft RTP/SCS and the quantification of the greenhouse gas reductions expected from implementation of the plan in an Informational Report. The report found that the RTP/SCS would meet the 2020 target of a 7 percent per capita reduction and would just meet the 2035 target of a 13 percent per capita reduction.

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Caltrans Public-Private Highway Improvement Project Allows For Contracting Out Engineering Services To Private Firm

By William W. Abbott

As with most things in life, one person’s gain is another person’s loss, and public-private partnerships are not exempt from these types of tradeoffs. To the state engineers and their representative union, the contracting out to private engineering firms of engineering services traditionally performed by Caltrans engineering staff represents one of those zero-sum games. This becomes the backdrop to a challenge to the Phase II improvement work on Doyle Drive, the highway approach to the southern terminus of the Golden Gate Bridge, an existing roadway project worthy of improvement.

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Growth Measure Survives Spot Zoning and Equal Protection Challenge in an "As Applied" Challenge

By Katherine J. Hart

In Arcadia Development Co. v. City of Morgan Hill (August 5, 2011, H035519) ___ Cal.App.4th ___, petitioner and plaintiff (“Arcadia”) filed a petition for writ of mandate and a complaint for damages against the City of Morgan Hill (“City”) over an initiative measure placed on the ballot by the City and approved by the voters in 2004. Arcadia argued the City illegally spot-zoned its 69-acre property, inversely condemned the property, and sought damages for violating its civil and equal protection rights. Both the trial court and the appellate court rejected Arcadia’s claims.

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2011 Greatest Hits List Released by Senate Governance & Finance Committee

The following summary of 2011 legislation has been released by Peter M. Detwiler, Consultant, Senate Governance & Finance Committee, State Capitol, Sacramento, California.

Earlier this year, the Senate created the Committee on Governance & Finance to replace the former Senate Revenue & Taxation Committee and the former Senate Local Government Committee. More information about this new Committee and its policy jurisdiction appears at http://senweb03.senate.ca.gov/committee/standing/GOVERNANCE/.

Now that the Legislature has started its summer recess, we have a chance to reflect on the bills that the Senate Governance & Finance Committee reviewed during the first half of 2011. These brief summaries offer you a selection of the more interesting and important bills.

Fire Protection Assessments Fail Prop. 218 Challenge

By William W. Abbott

A new decision from the Third Appellate District illustrates that the drafters and voters in favor of Proposition 218 achieved what they were after: further restrictions on the ability of public agencies to raise new revenue irrespective of the salutary purposes or modesty of the imposition. The case involves a fire protection assessment approved by 61.8% of the vote cast in a 218 election proceeding.Concerned Citizens for Responsible Government v. West Point Fire Protection District (2011) 196 Cal.App. 4th 1427.

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Vested Rights Class at UC Davis Extension August 18, 2011

Please join William W. Abbott and Steven Rudolph on August 18, 2011 from 9:00 AM to 4:30 PM for an in depth look at the art of crafting development agreements in their UC Davis Extension course, Vested Rights, Vesting Maps and Development Agreements.

Development agreements are an effective avenue for a community and a developer to work together to process projects. Both sides need to carefully consider the terms of these contracts and look at questions of content and performance before completing such agreements. Review the legislative and judicial aspects of development agreements. Examine the legal basis for development agreements and the overlap between agreements and vesting subdivision maps.

Gain an understanding of the negotiating process, identify and discuss the range of options available when negotiating a development agreement, and review the "theoretically" possible agreement. Review the key points to an agreement and learn ways to assist in understanding the needs of the "other side." Learn how to strategically pick the players to conduct the negotiation. An in-depth discussion will look at techniques and concepts that are likely to work, those that do not, and why most attempts at development agreements are doomed to failure.

Topics include:

  • Common Law Vested Rights
  • Legal Review
  • Development Agreements vs. Vested Maps
  • The Development Agreement Statute
  • Key Terms and Alternative Approaches
  • Considerations in Negotiating the Agreement
  • Contents of an Agreement
  • Testing the Waters
  • Paper Control—Who Drafts the Document?
  • Enforceability
  • How to Implement Agreements
  • What Happens After the Life of an Agreement?

Register at:

http://extension.ucdavis.edu/unit/land_use_and_natural_resources/course/description/?type=A&unit=LUNR&SectionID=157252&course_title=Vested%20Rights,%20Vesting%20Maps%20and%20Development%20Agreements&prgList=LUP&AreaName=Land+Use

 

2011 CEQA MID-YEAR UPDATE

By Leslie Z. Walker, William W. Abbott, Cori M. Badgley and Katherine J. Hart

In the first six months of 2011, the appellate courts have issued eight opinions and the results are a mixed bag. On the one hand, the Sixth Appellate District gave cities and project proponents a strategy to deal with Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 (Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150); the First Appellate District gave more clarity on deferred mitigation in Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884; and the Fourth District held that petitioners failed to exhaust their administrative remedies when they did not fairly present evidence to the City (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 184 Cal.App.4th 1032). On the other hand however, the Fifth Appellate District held that project components not properly documented for CEQA purposes cannot be severed from the balance of the approval and a project found to partially violate CEQA, must be set aside in its entirety (Landvalue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675.)

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Legal Challenges to Land Use Decisions Governed By Strict Statutes Of Limitation, Including Those Based Upon Non Compliance with the Housing Element Requirements

By William W. Abbott

California land use law, as we know it today, has evolved over a 40 year time period. One notable feature of this body of law is, when compared to the overall body of civil law, the relatively short filing period for bringing legal challenges. The California Environmental Quality Act ("CEQA") potentially has the shortest time period of 30 days, depending upon the fact pattern. For legal challenges alleging non compliance with provisions of the state Planning, Zoning and Development law, the relevant statutes are slightly longer at 90 days, however the Legislature has created an even longer filing period based upon challenges under the affordable housing laws. A recent decision of the Fourth Appellate District illustrates the overlapping and potentially conflicting application of the various statutes. Haro v. City of Solano Beach (2011) ____ Cal.App.4th ____.

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Regulation Of Recreational Vehicle Storage On Residential Property For Aesthetic Reasons Is Within A City's Constitutional Police Powers

By Glen C. Hansen

In Disney v. City of Concord (2011) ___ Cal.App.4th ___, 2011 Cal.App. LEXIS 520, the Court of Appeal for the First Appellate District held that a city ordinance that regulated the storage of recreational vehicles on residential property for aesthetic reasons was within the city’s constitutional police powers.

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Map Didn't Constitute Admissible Parol Evidence; Berm Maintenance Requirement Falls on the City

By Katherine J. Hart

In Coronado Cays Homeowners Association v. City of Coronado (2011) ___ Cal. App.4th ___, the City of Coronado (“City”) appealed a trial court’s grant of declaratory relief to the Coronado Cays Homeowners Association (“Association”) regarding the question of whether the City or the Association was required to maintain a berm[1] in the Coronado Cays subdivision canal pursuant to the terms of a special use permit granted in 1968 and a parcel map. In upholding the trial court’s determination, the Court of Appeal, Fourth Appellate District, held that the subdivision map was not ambiguous as to the term “ancillary structures” and that the berm in question did not constitute an “ancillary structure.” Thus, the City, not the Association, was required to maintain the berm.

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Medical Marijuana Dispensaries 0 for 3 Against Local Government

By Cori Badgley

After the Medical Marijuana Program Act was adopted by the legislature in 2003, medical marijuana dispensaries began cropping up throughout counties and cities that had no existing zoning or permit scheme in place for such establishments. In reaction to these dispensaries and the Act, many counties and cities began the process of establishing medical marijuana dispensary ordinances. One such county is the County of Los Angeles. Based on its ordinance, the County of Los Angeles brought a nuisance action in superior court against a dispensary, the Alternative Medicinal Collective of Covina, and the dispensaries owner/operator, Martin Hill. The trial court granted a preliminary injunction against the dispensary, and the dispensary appealed in County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861.

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The Normal Rules Don't Apply When it Comes to Affordable Housing Projects

By Cori Badgley

After a challenge based on the density bonus law and the California Environmental Quality Act (CEQA), a mixed-use affordable housing or senior affordable housing project (depending on what the developer chooses) in the City of Berkeley can move forward. In Wollmer v. City of Berkeley (March 30, 2011, Case No. A128121), the court held that the city properly applied density bonuses to the project and the categorical infill exemption under CEQA.

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If You Don't Like What You See, Don't Look

By Leslie Z. Walker

The First Amendment Free Speech clause states, “Congress . . . shall make no law . . . abridging the freedom of speech.” The political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military and scandals involving the Catholic clergy, are matters of public import meriting the protection of the Free Speech Clause. In Snyder v. Phelps (2011) 562 U.S. ____ 131 S. Ct. 1207, the Supreme Court found that members of Westboro Baptist Church picketing the funeral of a soldier killed in Iraq were entitled to special protection under the First Amendment because the picketing was done at a public place on a matter of public concern.

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Update In Local Government Legal News

By William W. Abbott

City officials in Playa Del Toro, an upscale enclave in Southern California, recently adopted an ordinance regulating dog use of the public beach. Unlike other cities, it wasn't a case of banning dogs from the beach, but restricting access to the right kind of dogs: purebreds. The San Diego Union quoted Mayor S. Black as saying: "our residents invest a lot in their dogs. The community wants the off-leash experience for their dogs to be similar to what the dog's owners enjoy as they interact in our award winning downtown." Warily observing a mixed breed border collie running out of control on the beach, the mayor went on to say; "we won't have to deal with that sort of behavior any longer". The mayor emphasized that city beach staff had received special training in recognizing purebreds, and at first, would only be handing out citations. If this doesn't work, Mayor Black added: "one resident suggested that the city use 'boots' on repeat offenders like we do on the vehicle wheels of repeat parking violators. We checked; the smaller sizes are not available on the market yet."

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General Plan Goal of Creating Employment Opportunities Insufficient Basis to Thwart Church Rezoning Request

By William W. Abbott

The "Faith" Fellowship Foursquare Church (“Church”) is a church active in the City of San Leandro, but as its membership grew with the passage of time, the Church outgrew its existing facilities. Starting in 2006, the Church began searching for a new location and eventually settled on property on Catalina Street, located in an industrial park. The park was located in an area designated by the City’s general plan for industrial technological activity. In March 2006, the Church entered into a purchase agreement for the Catalina property.

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Government Rationale Given Benefit of the Doubt in First Amendment Challenge to Zoning Ordinance

By Leslie Z. Walker

In Alameda Books et al. v. City of Los Angeles (9th Cir. Jan. 28, 2011, No. 09-55367) ____ F.3d____ [2011 U.S. App. LEXIS 1769], the United States Court of Appeals for the Ninth Circuit considered whether plaintiffs had presented actual and convincing evidence to cast doubt on the City of Los Angeles’ rational in enacting an ordinance requiring the dispersal of adult entertainment businesses. The United States District Court for the Central District granted summary judgment against the City of Los Angeles finding plaintiffs’ evidence was actual and convincing enough to cast doubt on the city’s purpose in enacting the ordinance on appeal. The Ninth Circuit found that the declarations were facially biased and insufficient to call into question the municipality’s justification of the ordinance.

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Having the Last Say: Use of Parkland for Road and Bridge Requires Local Voter Approval

By William W. Abbott

The right of California voters to control their own legislative fate derives from the national political reform movements at the beginning of the 20th Century, and in fact, Hiram Johnson was elected governor in 1910 in part due to his support for initiatives and political reform. In the following 100 years, this populist element of democracy has become part of local land use planning and development legal framework as local voters have used California’s constitutional initiative and referendum powers to shape growth. A recent case from the City of Santa Barbara illustrates a variation on the intersection of planning and voter control. Citizens Planning Association v. City of Santa Barbara (2011) ____ Cal.App.4th ____.

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A Wolf in Sheep's Clothing is Still a Wolf: Court Denies Medical Marijuana Case on Statute of Limitations Grounds

By Cori Badgley

Regardless of the substantive merits of a case, the procedural requirements of the statute of limitations first must be met. In County of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, the owners of a medical marijuana dispensary (“plaintiff”) attempted to cast their lawsuit as an as-applied challenge to the county’s local ordinance regulating dispensaries. However, the appellate court held that the challenge was actually a facial challenge, and plaintiff failed to bring the challenge within 90 days of the effective date of the ordinance. Therefore, plaintiff was barred from bringing its lawsuit.

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Town Forced to Pay $30 Million for Breach of a Development Agreement

By Cori Badgley

As we previously learned in Building Industry Association of Central California v. City of Patterson (2009) 171 Cal.App.4th 886, the interpretation of development agreements is governed by contract law and not statutory interpretation principles. In the more recent case of Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (Dec. 30, 2010, No. C059239) __ Cal.App.4th __, we learned that the breach of a development agreement by a municipality can have a hefty price tag, and under contract law, there are no immunities protecting the municipality from having to pay up.

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Court Says Developers Must Pay Prevailing Wages on Privately-Financed Public Improvements

By Kathrine J. Hart

In Azusa Land Partners v. Department of Industrial Relations, (Dec. 21, 2010, No. B218275) ____ Cal.App.4th ____, the Second Appellate District Court of Appeals upheld determinations by the Department of Industrial Relations (“DIR”) and trial court that (1) a master planned community project is a “public work” subject to prevailing wage laws applicable to public improvement work performed by private contractors where such work was a condition of project approval, (2) Mello-Roos proceeds are “public funds,” and (3) once a project is deemed a “public work” under Prevailing Wage Law, the entire project is subject to the law – including those improvements which are privately financed. This case is significant because it turns the historical interpretation of “public work” under the Prevailing Wage Law on its head; typically the analysis to ascertain whether each public improvement is a public work is based on whether any portion of the required public improvement work received a direct allocation of public funds. If this decision stands, developers will be subject to prevailing wages on all projects which include public improvements financed only partially by public funds.

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REMINDER! Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Cap and Trade Update

California Air Resources Board is Expected to Adopt the California Cap and Trade Program at today's hearing.

According to the Air Resources Board, the Program:

  • Limits emissions from sources responsible for 85 percent of California’s Green House Gas emissions;
  • Establishes the price signal needed to drive long-term investment in cleaner fuels and more efficient use of energy; and
  • Affords covered entities flexibility to seek out and implement the lowest-cost options to reduce emissions.

For more details see the Initial Statement of Reason at http://www.arb.ca.gov/regact/2010/capandtrade10/capisor.pdf

Appellate Court Upholds 1:1 Agricultural Lands Mitigation

By Katherine J. Hart

For those of us who assist jurisdictions with their land use planning, general plan updates often raise enormous policy issues which undoubtedly turn to legal issues – some of which have never been addressed by the courts. The controversy surrounding the conversion of agricultural land – especially in rural counties – has been brewing for some time now. And, as most know, there have been no cases addressing whether Section 815.3(b) of the Civil Code applies to agricultural conservation easements mandated by a city or county’s general plan policies . . . until now.

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Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Forgive Me Father, for I Have Violated the Zoning Ordinance

By William W. Abbott

Divine purposes are not a free pass from local zoning regulations. In County of Los Angeles v. Sahag-Mesrob Armenian Christian School (2010) 188 Cal.App.4th 85, the Sahag-Mesrob Armenian Church owned two parcels zoned R-1, and on May 28, 2008, filed an application for a conditional use permit to operate an 800 student school. In September of the same year, the County received complaints that the school was operating in advance of the issuance of the conditional use permit. The County conducted an inspection, verified that the school was operating, and issued a Notice of Violation, giving the school 15 days to cease operation. Within this 15 day period, the Church applied for a “clean hands waiver” from the County, which would allow it to operate during the pendency of the use permit review and processing. The County denied the waiver request. The County then issued a final code enforcement order directing that the school cease operating within 15 days. This order was appealed and denied. Following subsequent verification that the school was still operating, the County filed a code enforcement action, and sought a preliminary injunction against the Church for operating the school illegally. The trial court granted the preliminary injunction and the church appealed.

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Governor Schwarzenegger Signs Bill to Relieve POTWs of Some MMPs

By Katherine J. Hart

On September 30, 2010, the Governor signed Senate Bill 1284 (Ducheny) into law (Chapter 645). Ever since their adoption, Mandatory Minimum Penalties or MMPs have created serious economic hardship for local wastewater agencies. While concerns remain about MMPs, the California Legislature and Governor granted some much needed relief to these local agencies.

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Sacramento County Climate Action Plan - Part Two

By Emilio Camacho & Leslie Walker

The County of Sacramento kicked off Phase 2 of the Climate Action Plan development at a workshop on Wednesday, August 25, 2010. Phase 2 will develop strategies to implement the Climate Action Plan (CAP), a comprehensive plan for becoming more resource efficient and reducing greenhouse gas (GHG) emissions, originally released in May 2009. 

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Police Power Gives Cities Wide Discretion in Enforcing Billboard Bans

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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When All Else Fails, Blame the Engineers

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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Now You Have a Secret, Now You Don't. Secret Balloting and Proposition 218

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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Senate Local Government Committee Releases 2010 Greatest Hits List

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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Article XXXIV Voter Requirements Inapplicable to Senior Housing Project Owned by a City Formed Non-Profit Public Benefit Corporation

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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Baseline Depends Upon Whether You Have a New or Modified Project or Existing Project Without Significant Expansion of Use

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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Yes, Local Appeal Fees Apply to CEQA Appeals

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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30 Days Left: CEQA Guideline Amendments for Greenhouse Gas Emissions to Become Law on March 18, 2010

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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The Fight Over Property Taxes Continues: School District Entitled to Larger Share of Property Tax Increment

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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2009's Top 10: Legislation, Regulations, & Cases

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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CEQA: 2009 Year in Review

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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Petitioners Fail to Demonstrate that the City Failed at the Two-Step

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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The Battle Over Property Taxes Continues

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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Are Small, Special Purpose Districts an Endangered Species?

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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"What is the Difference between a Taxidermist and a Tax Collector? The Taxidermist Takes Only Your Skin."

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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Sacramento County Bar Association Real Property Law Section

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.

A Referendum Petition does not have to Contain Documents that are only Referred to in a Challenged Ordinance

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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Approval of Design Plan Application Deemed "Ministerial" Under CEQA

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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Land Held by Park District Not Automatically Dedicated

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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"Independent Contractor" Still Considered "Public Employee" Under the Brown Act

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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CEQA Notice Postings and Review Periods Affected by State Agency Furloughs

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.

Extending A Temporary Growth Control Plan Reopens The Statute of Limitations To Legal Challenges

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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Full Disclosure- Reference Documents Must be Attached to Referendum Petition to be Legally Sufficient Under State Elections Code

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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SB 375: A Subtle Shift in the State-Local Long Range Planning Paradigm

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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Before Challenging Sewer Service Charges in Court, Thou Shall First Protest

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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Is the Local No-Growth Initiative Conflicting With The Local Low-Income Housing Obligations? When Is It Time To Sue?

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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DON'T GO THERE! Inquiring into the Thought Processes of Government Officials

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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County of Los Angeles v. Commission on State Mandates and the Regional Water Quality Control Board

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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Local Administrative Rules Leave Door Open for CEQA Challenge

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. Continue Reading...

Take Notice!

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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Municipal Authority to Settle Litigation in Closed Session

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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Chapman v. Superior Court: Public Officials Should Use Caution

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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Legislative Leader Lilts, "LAFCo Litigation Looms."

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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California Courts Reaffirm the Broad Discretion Held by Cities and Counties in Enacting Land Use Regulations and Setting Policy

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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