California Land Use, Environmental & Real Estate Lawyer & Attorney : Abbott & Kindermann Law Firm : Sacramento, CA

By Cori M. Badgley

In St. Vincent’s School for Boys v. City of San Rafael (2008) 161 Cal.App.4th 989, the court addressed various issues relating to the City of San Rafael’s (“City”) approval of a new general plan. The court also addressed a claim brought by the City against St. Vincent’s School for Boys (“St. Vincent’s”) regarding obtaining reasonable costs for record preparation. (This counter-claim was published prior to the rest of the opinion and discussed in a previous article, Be Careful What You Ask For: The Costs Might Be More Than You Can Bear, on our blog.) This article focuses on St. Vincent’s claims concerning the approval of the general plan. The message consistently sent by the court was no matter how much St. Vincent’s would prefer that the general plan amendments be struck down; St. Vincent’s preferences do not matter.

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By Leslie Z. Walker

In Muzzy Ranch Co. v. Solano County Land Use Commission (2008) 164 Cal.App.4th 1, decided on June 19, 2008, the appellate court resolved the issues not addressed the first time it reviewed the case. (Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2005) 125 Cal.App.4th 810, reversed by Muzzy Ranch Co. v. Solano County Airport Land Use Commission, (2007) 41 Cal.4th 372.) In this case, the Court of Appeal for the First Appellate District found that the Travis Airport Land Use Compatibility Plan (“TALUP”) was not inconsistent with the Air Force Installation Compatible Use Zone (“AICUZ”) and that the Solano County Airport Land Use Commission (“Commission”) did not abuse its discretion in adopting the TALUP.

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By Cori M. Badgley

In Ocean Harbor House Homeowners Association v. California Coastal Commission (2008) 163 Cal.App.4th 215, the California Coastal Commission (“Commission”) imposed a $5.3 million mitigation fee on a homeowner’s association that needed a permit to build a seawall to protect residences that would otherwise fall into the ocean. Attempting to find relief from the fee, the homeowner’s association sued the Commission, but the court denied all relief and upheld the fee.

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By Cori M. Badgley and Kate J. Hart

In an attempt to invalidate or, at a minimum, get damages for the California Coastal Commission’s (“Commission”) denial of a coastal development permit, Charles A. Pratt Construction Co., Inc. (“Pratt”) brought suit against the Commission, claiming that the Commission’s decision violated Pratt’s vested right to develop its property and, in the alternative, if the decision was valid, the Commission committed a regulatory taking by denying the coastal development permit. In Charles A. Pratt Construction Co., Inc. v. California Coastal Commission (2008) 162 Cal.App.4th 1068, the Court of Appeal, Second Appellate District upheld the Commission’s denial of the permit and dismissed Pratt’s regulatory takings claim for lack of ripeness.

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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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By Janell M. Bogue

You wouldn’t think that a simple, wooden fence would create enough controversy to fuel an extensive administrative process, a trial court case, and an appeal to the California Court of Appeal, Second Appellate District. However, in the case of Committee to Save the Hollywoodland Specific Plan and Hollywood Heritage v. City of Los Angeles (2008) 2008 Cal.App.Lexis 501, that is exactly what happened.

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By William W. Abbott

The case of Brewer v. Murphy (Court of Appeal, Fifth Appellate District, Case No. F051700) involved three riparian owners and a dispute over a spring box and pipeline.  The riparian owners are listed here in order from the lower riparian to the upper riparian: Brewer, Hagg and Murphy/Klein. In 1979, Brewer acquired property in eastern Fresno County. The source of water was a spring box on property owned by Murphy/Klein’s predecessor, located roughly one mile away. When Murphy (and later Klein, who acquired a part interest from Murphy) took title, neither was actually aware of the spring box or pipeline.

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By Janell M. Bogue

In the case of Citizens for Responsible and Open Government v. City of Grand Terrace (February 21, 2008) 2008 Cal.App.Lexis 359 the California Court of Appeal, Fourth Appellate District held that a mitigated negative declaration (“MND”) approved for a senior residential project was inadequate under CEQA. In doing so, the court discussed density calculations and the weighing of evidence under the fair argument test.

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By Cori Badgley

In 2004, a jury awarded Adam Bros. Farming, Inc. (“ABFI”) over $5 million in civil damages. The trial court assessed these damages against individual County officials as well as the County of Santa Barbara (“County”). On March 4, 2008, the Court of Appeal, Second Appellate District overturned the award of damages in an unpublished opinion, Adam Bros. Farming, Inc. v. County of Santa Barbara (Docket No. B180880, 2008). The appellate court held that Adam Bros. Farming, Inc. lacked standing to bring its constitutional claims and the claims were barred by the statute of limitations. Therefore, the civil damages had to be overturned.

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By Leslie Z. Walker

In February of 2008, the state Court of Appeal, Second Appellate District held in Douda v. California Coastal Commission (2008) 159 Cal.App.4th 1181, that the Commission, when issuing a coastal development permit, may designate environmentally sensitive habitat area if a local coastal plan (“LCP”) for the area has not been certified.

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By Rob Hofmann

The California Coastal Commission (“Commission”) lacks the statutory authority required to declare a property an ‘environmentally sensitive habitat area’ (“ESHA”) when it hears an appeal from a local government’s grant of a coastal development permit (“CDP”) to develop the property. Such action infringes upon powers that the Legislature expressly allocated to local government. Security National Guaranty v. California Coastal Commission (2008) Cal. App. LEXIS 131, January 25, 2008.

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By Joel Ellinwood, AICP

The Court of Appeal, Fifth Appellate District, continues this year’s deluge of land use and environmental law decisions by revisiting the first principles of planning and zoning law in Neighbors in Support of Appropriate Land Use v. Tuolumne County (2007) 2007 Cal.App.Lexis 2004, filed and certified for publication on December 7, 2007. The court held that a development agreement between the property owner and the County to authorize a use otherwise prohibited in the same zoning district throughout the County violates the uniformity requirement of Government Code section 65852 and is invalid.

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By Janell M. Bogue

A California appellate court recently addressed the approval of yet another Wal-Mart Superstore, this time in the City of Stockton (“City”). In Stockton Citizens for Sensible Planning v. City of Stockton (November 28, 2007) 2007 Cal.App.LEXIS 1960, the California Court of Appeal, Third Appellate District directed the trial court to set aside the approvals for a 200,000 plus square foot Wal-Mart, which would have been located in Spanos Park West (“Park”). The court held that a letter from the City’s Community Development Director (“Director”) was not an approval by a public agency. Since there was no approval by a public agency, the notice of exemption (“NOE”) was not valid and the short 35-day statute of limitations could not apply. 

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By Janell M. Bogue

The California Supreme Court’s decision in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 addressed the sufficiency of future water supplies for a long-term, large scale development. (See the Vineyard blog article.) In the case of Santa Clarita Organization for Planning the Environment v. County of Los Angeles (November 26, 2007) 2007 Cal.App.LEXIS 1938 (“SCOPE”), the Second Appellate District determined that an EIR for a long-term project met the requirements discussed in the Vineyard case.

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By Cori Badgley

In the recent case City of Los Angeles v. County of Kern (August 10, 2007) 2007 U.S. Dist. LEXIS 62323, the United States District Court for the Central District of California held that an initiative ordinance in Kern County approved by the voters which had the effect of banning the land application of biosolids was unconstitutional. Biosolids or “sewage sludge” are defined as the “solid, semi-solid, or liquid residue generated during the treatment of domestic sewage in a treatment works.” (40 C.F.R. § 503.9(w).) The EPA, under Part 503 of its regulations, distinguishes between biosolids based on “the concentration of pathogens, disease causing micro-organisms, remaining after treatment.” (Pg. 5.) Class A biosolids, which are biosolids that after treatment have no pathogens, can be recycled essentially as fertilizer.  This is called land application. Many localities, including the City of Los Angeles and the Orange County Sanitation District, choose to recycle their Class A biosolids through land application instead of incinerating them or using some other method of disposal.

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By Cori M. Badgley and William W. Abbott

In 2004, SB 1818 amended section 65915 of the Government Code, pertaining to the density bonus law. The purpose of SB 1818 was to encourage developers to build affordable housing by requiring local governments to provide incentives to do so. There was confusion in understanding the new provisions in Government Code section 65915 and the legislature clarified the density bonus law a year later with the enactment of SB 435. (See “Overview of the Density Bonus Law” below for a detailed look at the two amendments.)

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By Cori Badgley and Kate Hart

“When is a project consistent with a general plan?” continues to be a question faced by local governments, developers, environmental advocates, and of course, the courts.  A recent case out of Solano County, Friends of Lagoon Valley v. City of Vacaville (August 28, 2007) 2007 Cal.App.LEXIS 1424, illustrates the important role the drafters of the general plan play in establishing the consistency parameters for the projects that follow.

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By Leslie Z. Walker

Attorney General Jerry Brown and the County of San Bernardino have reached a landmark settlement in the state’s global warming suit against the County. 

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By Kate J. Hart and Brian Hoffman

On June 7, 2007, the California Supreme Court addressed head-on the issue of whether or not cities may use their planning and zoning powers to directly impact economic competition. The case is Adrian Hernandez v. City of Hanford (June 7, 2007) 2007 Cal.Lexis 5586. This case affirms the ability of cities to impact economic competition in a direct and intended manner because it allows just such an impact so long as the primary purpose of the zoning action is to achieve a valid public purpose and not simply to serve an impermissible anti-competitive private purpose.

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By Leslie Walker and Joel Ellinwood, AICP

Establishing estoppel against the government in land use matters requires additional findings not required against a private party. In Feduniak v. California Coastal Commission (2007) 148 Cal.App.4th 1346, two Pebble Beach landowners found out exactly how difficult that task can be.

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By Cori Badgley and William W. Abbott

After the passage of Proposition 13 in 1978, public entities shifted funding strategies to backfill for the loss of property tax revenue. Proposition 13, codified as article XIII A of the California Constitution, provided that state and local governments are prohibited from imposing special taxes unless the tax is approved by a “two-thirds vote of the qualified electors.” Article XIII A forced the courts to wrestle with the  question of how to define special tax as compared to a regulatory fee. Early cases addressed section 4 of article XIII A, which concerned local governments. It was not until 1997 that the California Supreme Court had the opportunity to address the distinction between special taxes and regulatory fees in the context of state agencies. This article summarizes the evolution of the fine line between regulatory fees and special taxes.

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By William W. Abbott

Citing "Exactions and Impact Fees in California" [1], the Third Appellate District ruled that the Subdivision Map Act (Gov. Code, §§ 66410 et seq.) 90-day statute of limitations trumped the longer Mitigation Fee Act (Gov. Code, §§ 66000 et seq.) timeline when reviewing a legal challenge to a subdivision map denial by the City of Chico. The case is Thomas Fogarty v. City of Chico (March 12, 2007) 2007 Cal.App.Lexis 339.

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By Janell M. Bogue

Recently, the Third Appellate District held that the Natomas Basin Habitat Conservation Plan (“HCP”) was properly certified by the City of Sacramento and Sutter County (“City and County”) under CEQA and that the Department of Fish and Game (“DFG”) complied with the California Endangered Species Act (“CESA”) in issuing its incidental take permits. The case is Environmental Council of Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 1018.

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By Rob Hofmann

Cultural artifacts and Native American remains receive different levels of protection under state and federal law. The federal Native American Graves Protection and Repatriation Act (“NAGPRA”) (25 U.S.C. § 3001 et seq.) delineates the process for the return of Native American remains and specified cultural artifacts in the control or possession of most federally funded museums and agencies to direct descendants or affiliated tribes. NAGPRA also provides processes for handling future discoveries of remains and artifacts on federal or tribal land and imposes penalties for noncompliance and illegal trafficking. NAGPRA requires that these museums and agencies prepare inventories and summaries of all protected items in their control or possession and consult with the applicable descendants and tribes for possible repatriation or disposition. With limited exceptions, NAGPRA applies only to tribes recognized by the Bureau of Indian Affairs and recognized Native Alaskan and Hawaiian groups.

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The court interpreted the reduction in super-majority voting requirements narrowly

By Elias E. Guzman

A court recently held in Peak Investments v. South Peak Homeowners Association, Inc. (2006) 140 Cal.App.4th 1363, that a proposed amendment to CC&Rs which serves to reduce a super-majority voting requirement must be approved by at least 50 percent of all owners.

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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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By William W. Abbott

So what happens if you host an election party, and not enough people vote for an assessment? According to the California Attorney General, a community service district is not obligated to provide road maintenance services and snow removal to an existing zone within the district if the voters reject an increase in the assessments necessary to provide the services. In addition to termination of services, the district may also dissolve the zone. On a related issue, the city, county or district does not have any continuing obligation to maintain the road as long as the road has never been formally accepted into the road system. (Sts. & Hy. Code, § 831.1; Opinions of the Attorney General, 05-710.)

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

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

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By Joel Ellinwood, AICP

Although we are only entering the second quarter of 2006, it is safe to predict that the just published case of Branciforte Heights, LLC v. City of Santa Cruz (2006) 138 Cal.App.4th 914 will be one of the top ten land use cases for the year. The decision includes discussion of critical issues for litigation of cases involving the Subdivision Map Act (Gov. Code, § 66410 et seq.), the Quimby Act (the section of the Subdivision Map Act limiting park fees and dedications, Gov. Code, § 66477), the Mitigation Fee Act (Gov. Code, § 66000 et seq.), and the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.). Once again a court is required to parse the obtuse and conflicting statutory language adopted by the legislature to provide some semblance of clarity in these areas of California development law.

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By Elias E. Guzman

Effective March 1, 2006, the San Joaquin Valley Air Pollution Control District implemented Rule 9510, the Indirect Source Review program, which will increase the cost of development in the San Joaquin Valley. The program is a one time assessment that seeks to reduce the emissions of NOx and PM10 caused by new development projects and applies to any project that have not yet gained discretionary approval for residential project consisting of 50 or more units, 2,000 square feet of commercial space, or other express thresholds.

Under the new program, project proponents must submit an application, together with a proposed mitigation and monitoring plan, no later than the date it applies for final discretionary approval with the public agency. Certain on-site emission reductions are required to be part of any permit conditions, developer agreements, or other legally binding instruments. Further, a residential developer could expect to pay $500 to $1,200 per unit for off-site mitigation, which must be paid prior to the issuance of building permits.

The rule will undoubtably have widespread impact on new developments in the San Joaquin Valley because the District's nine county jurisdiction encompasses a widespread area that includes the counties of San Joaquin, Stanislaus, Merced, Madera, Fresno, Kings, Tulare, and (part of) Kern.

Elias E. Guzman is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

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

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by Joel Ellinwood, AICP

The California Mitigation Fee Act, Government Code sections 66000, et seq. ("MFA"), affords some limitation on developer fees and exactions that is generally consistent with the constitutional principles enunciated in the United States and California Supreme Courts case law (Nollan fn1, Dolan fn2, Ehrlich fn3, and San Remo Hotel fn4). The MFA provides a "payment under protest" remedy for claims of excessive fees charged to a particular project, but case law has qualified this remedy for various types of fee claims. Some categories of fees may not have a refund remedy under the MFA. However, other statutes may provide independent authority for the "payment under protest" remedy. One example is water, drainage and sewer connection fees adopted under Health and Safety Code section 5471.

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by William W. Abbott

Most developers are familiar with the use of development agreements ("DAs") as a means of memorializing a land use agreement governing development. DAs are approved following traditional land use procedures of notice, hearing and environmental review. But what about deals made at the courthouse? The appellate court recently granted rehearing of Trancas Property Owners Association v. City of Malibu (2005) 132 Cal.App.4th 1245 (click here to read Abbott & Kindermann's November 2005 article on the case). In Trancas, the appellate court defined the limits on settlement agreements, effectively precluding terms which would otherwise be required to follow a traditional land use approval procedure.

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by William W. Abbott and Janell M. Bogue

In Dunn v. County of Santa Barbara (2006) 2006 Cal.App.Lexis 74, David Dunn submitted a subdivision application for his six acre parcel located in the unincorporated Summerland area of Santa Barbara County. His land had some unique characteristics: it was located on a sea cliff and was bisected diagonally by an earthquake fault. He wanted to divide it into two equal size parcels, as there were two possible building envelopes on the land and the area was zoned for a minimum sized lot of three acres. The property, because of its proximity to the coast, is under the jurisdiction of the California Coastal Commission and is subject to the County's Local Coastal Plan ("LCP").

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by Joel Ellinwood, AICP

Ninth Circuit Prohibits Aesthetic Regulation of Cell Towers in Public Rights-of-Way Based on California Public Utilities Code

In a unique twist to the preemption argument based on conflicts between the federal Telecommunications Act of 1999 ("TCA") and state and local land use powers, the United States Court of Appeals for the 9th Circuit held that California Public Utilities Code section 7901 permitting installation of telephone facilities in public rights-of-way bans local governments from denying applications for cell phone facilities based on aesthetic considerations. Sprint PCS Assets LCC v. City of La Cañada-Flintridge, 2006 U.S.App.Lexis 1032 (9th Cir. 2006). The TCA explicitly allows local governments to apply traditional land use powers in regulating wireless telecommunications facilities. In applying those powers, local governments may not use health effect concerns about radio signals if the applicant demonstrates that the facility complies with Federal Communications Commission safety standards, discriminate between functionally equivalent service providers, or effectively frustrate provision of telecommunications services. The various Circuit Courts of Appeals have applied the TCA limitations inconsistently, but all apply the generally deferential "substantial evidence" standard of review. The 9th Circuit recently adopted a pragmatic but fact-intensive approach in MetroPCS v. City & County of San Francisco, 400 F3d 715 (2005) (click here to read Abbott & Kindermann's July 2005 article on the case).

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by Sophie Rowlands

Many property owners are loathe to allow the public onto their land for any reason at all. That being said, many cities and counties routinely impose as a condition of approval a requirement that the project include publically accessible trails, maintained by the underlying property owner or homeowners' association. The California legislature recognizes the potential hardship resulting from this situation, and has crafted special liability protections. Pursuant to Civil Code section 846, any landowner who permits the public to enter and use his land without charging a fee is completely absolved of all liability and responsibility when, as inevitably happens, a litigious member of the public gets injured for whatever reason on the property and decides to sue. Provided the owner didn't willfully or maliciously fail to disclose some dangerous condition on the property, the statute is quite broad in its powers and has been interpreted to protect property owners from liability for injuries stemming from a wide range of activities, from spelunking to hunting to hang gliding.

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by Elias E. Guzman

In Trend Homes v. Superior Court of Fresno County (2005) 131 Cal.App.4th 950, the court of appeal recently held a judicial reference clause in a sale and purchase contract for residential real property was not unconscionable.

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by Joel Ellinwood, AICP

Developers and the general public think of townhouses as dwellings built on separate lots with common walls shared with neighboring property owners, as being more like single family homes. Each unit has a direct connection to the earth below and sky above. Condominiums, on the other hand, are perceived as being cubicles within a larger structure, and only a shared interest in the real estate on which the structure is located and common areas within and around the building.

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by Janell M. Bogue

Recently in San Diego County, an association of residents of two subdivisions ("Association") sued the developer that retained control over the architectural committees responsible for enforcing the community's CC&Rs. Property Owners of Whispering Palms, Inc. v. Newport Pacific, Inc. (2005) 132 Cal.App.4th 666.

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

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by Elias E. Guzman

In Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, the court of appeal recently held that a developer/general contractor can be liable long after the 10 year statute of limitation period for the willful misconduct of subcontractors involved in the project.

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

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

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

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

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

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by William W. Abbott

Concerned over the supply of affordable housing, the Legislature has in recent years sought to create incentives for developers. One incentive area involves density bonuses. (Gov. Code, § 65915.) Although this concept has been embodied in the state zoning law for a number of years, it failed to achieve its purpose of providing meaningful incentives, at least in those cities and counties opposed to the idea. Effective January 1, 2005, the Legislature further amended the density bonuses provisions to further increase the incentive and to decrease city and county discretion. Abbott & Kindermann, LLP explores this law at length in its April 2005 article Supersize This Project! The New Rules for Density Bonuses. The key provisions are summarized below:

Density bonuses are available for projects consisting of 10% Lower Income, or 5% Very Low Income, or a seniors project, or where 10% of units in a condominium or planned development are affordable to moderate income households. For condominium or townhome builders, this last category has great appeal as the qualifying income requirements are the highest. Projects qualifying in this last category earn a 5% density bonus, with an additional 1% for each percent of added affordability for moderate income households.

Qualifying condominium projects are also entitled from one to three incentives as well (10% affordable-1 incentive; 20% affordable-2 incentives; 30% affordable-3 incentives.) These incentives or concessions include reduction in site standards, parking, architectural standards or granting of mixed use approvals.

For condominium projects, the affordable units are subject to an equity recapture provision which requires the seller to share appreciation with the city or county.

All cities and counties must adopt local ordinances to implement this law.

Regardless of the type of project, the granting of a density bonus is not a basis to require a general plan or Local Coastal Plan amendment, zoning change or discretionary approval.

Utilization of the density bonuses and incentives/concessions can impact project design. As the Legislature did not exempt these actions from CEQA review, it is important for the developer to work with the city up front to identify the compliance strategy, so that the environmental review will address all project features.

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

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

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by Elias E. Guzman

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

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by Joel Ellinwood, AICP

The anti-discrimination law of California (Fair Employment and Housing Act or "FEHA") (Gov. Code, § 12900 et seq.) and the federal Americans with Disabilities Act ("ADA") (42 U.S.C. § 12101 et seq.) require that newly constructed dwellings be accessible. Under the FEHA, "covered multi-family dwellings" for which building permits are applied after July 1, 2005, must be designed to be accessible for and useable by disabled persons. (Gov. Code, § 12955.1). This somewhat awkward term is even more inartfully and obscurely defined in Government Code section 12955.1.1, as meaning:

* A building with at least four condominium units or three rental units if the building has an elevator; or,
* The ground floor of dwelling units in buildings with at least four condominium units or three rental units if the building does not have an elevator.

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by Elias E. Guzman

In Endangered Habitats League v. County of Orange (2005) 131 Cal.App.4th 777, an appellate court determined that project approvals and findings must be consistent with a county's general plan. The court also found that an environmental impact report ("EIR") must provide sufficient information to the lead agency in order to make an informed decision.

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The California Air Resources Board released an informational guide to air quality and land use issues. Among other suggestions, it recommends that planners avoid siting new sensitive land uses (residences, schools, daycare centers, playgrounds, or medical facilities) within 1,000 feet of major rail yards. For more information, download the handbook at http://www.arb.ca.gov/ch/landuse.htm.

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by Joel Ellinwood, AICP

California's Court of Appeal buried the vested rights argument of a Los Angeles ("City") business six feet under in upholding the City's revocation of a building permit and denial of a certificate of occupancy. The court ruled for the City despite the purchaser's purported reliance on the permit in acquiring the building and the expenditure of nearly a quarter million dollars on improvements in the six month period after the original issuance of the permit. The City pulled the permit after the applicant, doing business as "1-800-AUTOPSY," applied for a sign permit which would prominently display the name. It was then, the City claimed, when it first realized the nature of the business and determined that it is a prohibited use within the applicable zone in the Foothill Boulevard Corridor Specific Plan area. The business, Autopsy/Post Services, Inc., ("APS") applied for an exception to the use restrictions, but the Planning Commission denied it, ruling that an private autopsy business was the equivalent of a morgue or mortuary which are permitted uses only in an industrial zone. After administrative appeals within City government, APS filed a mandate action claiming vested rights. The trial court denied the writ and APS appealed.

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by Joel Ellinwood, AICP

California provided the battleground for two recent significant cases that clarified the Telecommunications Act of 1996 (TCA) as it pertains to local zoning powers and the siting of wireless communication antenna facilities. The United States Supreme Court ruled in City of Rancho Palos Verdes v. Abrams, 125 S.Ct. 1453 (2005) that remedies for violation of the TCA are limited to injunctive relief and do not include the award of damages or attorney's fees under the federal Civil Rights Act. The Ninth Circuit Court of Appeals decided in MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715 (2005) to balance the needs of wireless companies to provide effective service and local governments to exercise zoning controls over location and appearance of sites. Taken together, the two decisions set out the "rules of engagement" for future wireless facility siting battles in California.

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The correlation requirement...I wonder if Crockett and Tubbs ever arrested anyone for possession of an uncorrelated general plan?

by William W. Abbott

What do Miami Vice, "We Built this City" by Jefferson Starship, and the Best Picture of the Year "The Color Purple" have in common? It's the year 1985. It is the same year that the Court of Appeal initially defined the boundaries of the correlation requirement for general plans. Concerned Citizens of Calaveras County v. Board of Supervisors (1985) 166 Cal.App.3d 90. That is, the court was the first to apply the statutory requirement that the circulation element be "correlated" with the land use element. Government Code section 65302(b). fn1 In the Citizens case, the appellate court found that Calaveras County had run afoul of the correlation requirement in that the land use element provided for significant population growth while at the same time, the circulation element acknowledged an inability to build the supporting roadway infrastructure, and no likelihood of obtaining the funds necessary to close the gap in the future (perhaps the sin of too much honesty?). Flash forward twenty years, and in a fashion similar to how general plans have evolved, so has the judicial thinking on this same topic.

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by William W. Abbott

In 1990, Terry Parkin, obtained approval of a tentative parcel map for a four lot residential development located in Orange County. The map approval included 37 conditions, some of which pertained to site grading. Sixteen months later, the Board of Supervisors adopted the Foothill/Trabuco Specific Plan ("FTSP"). The FTSP approval included development regulations, and development and design guidelines. In regards to grading, the FTSP development requirements specified that no grading could be approved unless the County first approved a site development permit or use permit.

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By William W. Abbott

As a further effort to promote affordable housing, the Legislature once again amended the density bonus law (Gov. Code, § 65915) to create additional opportunities for developers. With these revisions, the Legislature has incentivized construction and donation of land for inclusionary units as well as childcare facilities. Effective January 1, 2005, the law will operate as follows:

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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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by William W. Abbott and Robert T. Yamachika

California landowners frequently live under two sets of land use regulations: one public and one private. Private land use restrictions may be as simple as reciprocal easements, or increasingly, multi-page covenants, conditions and restrictions ("CC&Rs"). Common interest subdivisions, with extensive private land use restrictions are becoming more commonplace in the development landscape. With that growth comes the natural increase in legal issues triggered by private land use control disputes.

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