Up Zoning Creating Special Benefits Can Trigger Spot Zoning Claims

By William W. Abbott

Foothill Communities Coalition v. County of Orange (2014) 222 Cal.App.4th 1302. In the minds of most local planners, spot zoning is typically associated with downzoning of a smaller parcel in circumstances in which the surrounding property is similar in character, but which retains a more intensive zoning designation. From the perspective of the California’s Fourth Appellate District, a rezoning which creates the converse result (that is the donut hole being rezoned to a more intensive classification) can also trigger a claim of spot zoning. In the facts of Foothill Communities Coalition v. County of Orange, the trial court invalidated the rezoning. On appeal however, the appellate court found the rezoning to be a valid exercise of the police power and upheld the rezoning.

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

By Glen C. Hansen

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

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

By William W. Abbott

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

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

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Williamson Act Contract Cancellation For Solar Project Upheld Along With Companion Environmental Impact Report

By William W. Abbott

Save Panoche Valley v. San Benito County (June 25, 2013, H037599) ___ Cal.App.4th ___.

Famous for its bird sitings (http://www.audublog.org/?p=4155), Panoche Valley sits nestled between Interstate 5 and Highway 101 (http://www.cosb.us/Solargen/). I wager that few Californians have passed through this quiet terrain, and but for this court decision, would not know that this valley exists. Besides its limited number of residents and great diversity in bird species, Panoche Valley is also notable in that (1) it is exposed to high levels of solar radiation, and (2) it is bisected by a 230 kV transmission line. Just as no-good-deed-goes-unpunished, neither do conflicting environmental values resolve themselves without a CEQA lawsuit.

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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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A Trifecta Of Outliers: Three Cases On The Outer Edges Of Land Use And Environmental Practice

By William W. Abbott

Three recent cases land at the periphery of the zone of interest for land use practitioners. While not warranting an exhaustive review, these decisions can and should be slated away for potential future use.

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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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OPR's Technical Advisory on SB 244: One more thought

By William W. Abbott

On February 15, 2013, OPR released its Technical Advisory on Senate Bill 244, a thoughtful discussion on how cities, counties and LAFCos can implement Senate Bill 244 (Wolk) of 2011. The purpose of this legislation is to recognize and facilitate improvements to disadvantaged communities. As with general plans, it is one thing to recognize a challenge, it is another to actually fix it. OPR's Advisory provides a useful summary and links to state funding programs, the proceeds of which undoubtedly will be subject to a very competitive process.  Where the Advisory could stand more disclosure is in its treatment of local funding mechanisms. "Principal funding sources for local government infrastructure include taxes, benefit assessments, bonds and exactions (including impact fees)." (Advisory, p. 11)  On a theoretical level, the statement is completely accurate. On a practical level, it is not, as most local officials know. Getting local voters to assess or tax themselves has been an uphill battle following passage of Propositions 13, 218 and 62. Local officials are also well aware that new development cannot be required to cure existing facility deficiencies. Rohn v. City of Visailia (1989) 214 Cal.App.3d 1463; Bixel Associates v. City of Los Angeles (1989) 216 Cal.App.3d 1208. So exactly how, in the real world, is local government going to generate local revenues?

I am confident that local government will take OPR's Advisory to heart. Lets hope that the Legislature does as well, and that it steps up to the plate on funding these necessary endeavors.

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.

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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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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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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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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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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Compliance with Trial Court Writ Renders Moot an Appeal on the Merits

By William W. Abbott

No one ever said planning was easy. In 2002, the City of Redondo Beach approved a coastal zone ordinance for the significant revitalization and intensification for its harbor area, a plan proposal known as “Heart of the City”. Residents opposed to the proposal, qualified a referendum and the city council repealed the coastal ordinance and reinstated the prior harbor plan. From 2005 to 2008, the council adopted updated planning documents for this area, however, the amendments were subject to review and approval by the Coastal Commission pursuant to the Coastal Act. Concurrently, the voters were circulating an initiative measure which would have required voter approval for major land use changes. This measure was eventually placed on the ballot and approved by the voters in November 2008. The city had submitted its harbor area coastal planning documents to the Commission in May 2008, and Commission, after review, indicated that the city documents, subject to conforming amendments identified by the Commission, could be found to conform to the Coastal Act and certified. In 2010, the city adopted the conforming amendments, determined that only certain elements were subject to voter approval, and committed to an election at a future unspecified date. Building a Better Redondo Beach, Inc. (“BBR”) filed suit to compel the city to place the full measure on the ballot for voter approval. After a trial, the court order the matter be placed on the ballot. Following entry of judgment, the city promptly filed a notice of appeal, but then the city council took action to order the Planning Department onto the ballot, where it was approved by the voters three months later. Following entry of judgment, BBR moved for an award of attorneys’ fees as permitted by Code of Civil Procedure section 1021.5. The court awarded BBR $313,000 in attorneys’ fees. The city appealed the award.

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The Ninety Day Period to Challenge a Land Use Approval is Not Extended by More General Rules Governing Administrative Mandamus

By William W. Abbott

The adjective “short” best describes California’s land use and CEQA statutes of limitation. From CEQA’s 30/35 day limitation periods, to the 90 day limits for the planning and zoning matters (Government Code section 65009), to the Subdivision Map Act (Government Code section 66499.37), time waits for no litigant. The most recent case addressing the Planning and Zoning law wrestles with the interface of the ninety day statute in Government Code section 65009, with the time line found in Code of Civil Procedure section 1094.6. These later timelines call for an extension of time periods in circumstances in which the petitioner has requested the agency to prepare the administrative record, in which case, the statute extends to 30 days from the delivery of the record. (Section 1094.6(d))

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Ninth Circuit Applies Ripeness Requirement To RLUIPA Claims

By Glen C. Hansen

In Guatay Christian Fellowship v. County of San Diego (December 23, 2011, 09-56541) ___ F.3d ___, the Ninth Circuit Court of Appeals held that a church’s claim that a land use permit regulation violated the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (“RLUIPA”) was not ripe for judicial review because the church had not completed the requirements for the use permit, and therefore the courts could not determine the particular burden that the church would have to shoulder under the challenged regulation.

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Compensable Taking Found Where City's Spot Zoning Created "A One-House-Per-20-Acre Island In A Two-To-Six-House-Per-Acre Sea"

By Glen C. Hansen

The City of San Clemente (“City”) imposed an “RVL” or “Residential, Very Low” set of land use restrictions on an undeveloped 2.85-acre parcel in the middle of a residential tract otherwise zoned “Residential, Low Density Zone” (“RL”). The RVL designation limited parcels to one dwelling per 20 acres. The RL designation, by contrast, allowed at least four dwellings per acre. According to the court of appeal, the property looked like “a small RVL spot surrounded by denser land uses” on the City’s general plan map, and was a “one-house-per-20-acre island in a two-to-six house-per-acre sea.” The property owners applied to develop four houses on the property, and the City denied that application. The owners petitioned the superior court for a writ of mandate. There were two phases of trial. In phase one, the trial court concluded that the application of the RVL restrictions in this case constituted spot zoning. It issued a writ of mandate that ordered the City to vacate the resolution denying the owners' application. In the second phase of the trial on the owners’ request for damages, the trial court found a compensable taking. The trial court then entered a conditional judgment in favor of the owners, giving the City the choice of either (1) complying with the court's writ of mandate that declared the resolution denying the owners' application to develop four houses on the property null and void and that ordered the city to adopt a new resolution vacating the resolution denying the owners' application, or (2) paying $1.3 million in damages for the value of the property taken by the RVL restrictions. The City appealed the conditional judgment.

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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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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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Coastal Commission Has Appellate Jurisdiction Over A Project That Needs Subdivision Approval, Even If The Project's Use Complies With The Local Coastal Plan

By Glen C. Hansen

In DeCicco v. California Coastal Commission (2011) 199 Cal.App.4th 947, Franco and Sonia DeCicco owned four contiguous lots in the coastal zone in San Luis Obispo County (County). They applied to the County for a permit that would allow them to subdivide their parcels into five parcels and construct four townhouses and a motel. Under the local coastal plan, the principal permitted uses for the DeCicco property were the type of residential multifamily and commercial retail proposed by the DeCiccos. The County approved the DeCiccos’ permit application and sent notice of the approval to the California Coastal Commission (“Commission”). The County and the Commission disagreed as to whether the permit was appealable to the Commission. The Commission made a determination that, although the DeCicco’s project involved principal permitted uses, it also required approval for a subdivision, which conferred appellate jurisdiction on the Commission under Public Resources Code section 30603, subdivision (a)(4). The DeCiccos filed a petition for writ of mandate challenging the Commission’s determination of jurisdiction of the matter. The Commission demurred to the petition on the ground that the DeCiccos failed to allege they exhausted administrative remedies. The trial court sustained the demurrer without leave to amend. Plaintiffs appealed. The Court of Appeal affirmed. 

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Adjacent Landowners Can't Use CEQA to Avoid Potential Nuisance Claims

By Katherine J. Hart

In the case of South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal. App. 4th 1604 (“South Orange”), the Court of Appeal for the Fourth Appellate District was asked to order an environmental impact report (“EIR”) be prepared to assess the impact of the environment on a proposed project pursuant to the California Environmental Quality Act (“CEQA”). The Court of Appeal declined to order such an EIR. The Court of Appeal also addressed whether the adopted project was inconsistent with the city’s general plan and zoning ordinance, and found that the project was consistent.

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Coastal Commission Properly Resolved Conflicting City Development Standards; Negative Declaration Was Upheld

By William W. Abbott

Malibu Bay Company (“MDC”) owns the last undeveloped beach front parcel in Malibu, a 2.08 acre, 200 foot wide parcel. In order to accommodate its proposed division into four parcels, MDC proposed an amendment to the Local Implementation Plan of Malibu’s local coastal plan in order to create a new zoning district which would allow for lot widths of 45’, a decrease from the then existing standard of 80’. As the application advanced to the City Council, staff ultimately recommended that the required width for all parcels in same district as MDC’s property was located in, be reduced to the 45’ standard. Altogether, this would impact 733 parcels, although as staff noted, a majority of the existing parcels were already substandard to the 80 width standard. Staff further determined that only 5 parcels (including MDC’s) were capable of further division under the proposed 45’ lot width standard. Two of the five were subject to additional legal limitations precluding further re-division, leaving only two parcels in addition to MDCs. Staff concluded that with respect to the two with potential for re-division, that any further re-division would require a coastal development permit and CEQA review. Concluding that there would be negligible direct and cumulative effects on aesthetics, biological resources and land use and planning, staff recommended acceptance of a negative declaration. Due to the presence of a dune environmentally sensitive area, and based further upon a dune study submitted by the applicant’s biologist, mitigation for dune species was required. The City Council eventually approved a revised mitigated declaration, and conditionally granted the approvals, subject to Coastal Commission approval. Neighbors opposed the approval of the entitlements, and submitted a biologist study indicating potential impacts to sensitive species.

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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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Lead Agencies Are Not Always Required to Explain Why Every Proposed Mitigation Measure is Infeasible

By Leslie Z. Walker

In Santa Clarita Organization for Planning the Environment v. City of Santa Clarita (June 30, 2011, No. B224242) __ Cal.App.4th ___, the Court of Appeal for the Second Appellate district held that an agency does not necessarily have to explain why it has not adopted each mitigation measure on the Attorney General’s list of proposed greenhouse gas mitigation measures. The City of Santa Clarita approved a Master Plan for the expansion of a hospital and medical facilities (Project) by adopting a statement of overriding considerations and certifying the final environmental impact report (EIR) for the Project, adopting a development agreement between the city and the real parties in interest, and adopting the Master Plan (Approvals). The Project would expand the amount of hospital and medical office space on the existing site from its current size of 340,071 square feet to 667,434 square feet and would add nine proposed structures over the 15-year period of the Project.

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Implicit Approval of Using AB 32 Reduction Goals to Establish GHG Thresholds

By Leslie Z. Walker

In Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (July 8, 2011, D057779) ____ Cal.App.4th ____, the Court of Appeal for the Fourth Appellate District found substantial evidence of a fair argument that the development of a Target store would have a significant environmental impact by disturbing contaminated soil, but rejected challenges based on air pollution and greenhouse gas impacts.

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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

 

The Devil is in the Details... At Least When it Comes to Interpreting the School Facilities Act

By Cori M. Badgley

The court in Chawanakee Unified School District v. County of Madera (2011, No. F059382) ____ Cal.App.4th ____ faced the difficult task of interpreting an amendment to the School Facilities Act and how it interacts with CEQA as an issue of first impression. The specific provision at issue restricts the “methods of considering and mitigating impacts on school facilities” to the fees provided in the School Facilities Act. (Gov. Code, § 65996(a).) The court held that although this provision obviated the need to discuss direct impacts on school facilities in the CEQA document, the provision did not apply to indirect impacts, such as traffic or construction.

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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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That's the Way the Buildings Crumble: City's Purchase and Demolition of Adjacent Buildings is Not a Taking

By Cori M. Badgley 

In City of Los Angeles v. Superior Court (2011) 194 Cal.App.4th 210, plaintiffs argued that the city’s actions of purchasing properties in areas near the LAX airport and then demolishing the buildings constituted inverse condemnation of adjacent properties owned by plaintiffs. The court, however, was not persuaded, and plaintiffs’ suit was dismissed.

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Join Us on LinkedIn!

For current planning issues, join the conversation among planners, engineers, attorneys and developers on LinkedIn at the Northern California Planning and Land Development Group.  See you there!

http://www.linkedin.com/groups/Northern-California-Planning-Land-Development-3176780?mostPopular=&gid=3176780

Timing is Everything: Ninth Circuit Dismisses Takings Claims for Being Both Too Late and Too Early

By Cori M. Badgley

In order to avoid having your takings claim dismissed, your timing has to be just right. Unfortunately for Colony Cove Properties, LLC (“Colony Cove”), the timing was off, and its takings claim was dismissed by the court for being both too late (facial challenge) and too early (as-applied challenge).

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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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Exemption to APAs Promolgation Rule was Inapplicable

By Katherine J. Hart

In Bollay, et al. v. California Office of Administrative Law, et al. (2011) 193 Cal.App.4th 103 the Court of Appeal Third Appellate District (Court), considered whether a State Lands Commission (Commission) policy prohibiting development seaward of the most landward historical position of the mean high tide line was an invalid underground regulation because it was not promulgated as a regulation pursuant to the Administrative Procedures Act (APA). The Court held that the policy was an invalid underground regulation because it was not exempt from promulgation under the APA. Contrary to the Commission’s contention, its policy was not exempt from promulgation under the APA because it did not fit within the “only legally tenable interpretation of a provision of law” exemption. Rather, the Court held that the policy was both over-inclusive as to lands not currently belonging to the state or which may never become state land and under-inclusive with respect to lands that may become state land in the future.

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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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Bad Deeds Make Bad Law

By Cori Badgley and Emilio Camacho

In Monterey/Santa Cruz County Bldg. & Constr. Trades Council v. Cypress Marina Heights LP (2011) 191 Cal.App.4th 1500, the California Court of Appeal, Sixth District, held that deeds acquiring property from a redevelopment agency required the purchaser/developer to pay prevailing wages to the construction workers. In addition, the appellate court also held that plaintiffs were entitled to $73,167.50 in attorney’s fees pursuant to Code of Civil Procedure section 1021.5.

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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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Money, Money, Money: Pacific Lumber Co. Litigation Ends in Battle over Attorney's Fees

By Cori Badgley

The long legal battle over Pacific Lumber Company’s logging of timberland in Humboldt County continues as the parties now fight over attorney’s fees. In Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2008) 44 Cal.4th 459, the Supreme Court finally resolved all of the substantive issues on the merits. In summary, the Supreme Court set aside the department’s approval of a sustained yield plan based on two of petitioner’s arguments, invalidated a portion of the incidental take permit, and upheld the department’s streambed alteration agreement and certification of the environmental impact report/environmental impact statement. Following the Supreme Court’s decision, the matter was remanded back to the appellate court, and the appellate court heard arguments on whether petitioner was entitled to attorney’s fees and in what amount. (Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2010) 190 Cal.App.4th 217.)

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You Get What You Pay For: Rent Control Ordinance Upheld by Ninth Circuit

By Cori Badgley

In 2009, a three-judge panel for the Ninth Circuit Court of Appeals made a controversial determination that a rent control ordinance relating to mobilehome parks constituted a regulatory taking. (See “Take This! Wealth-Transfer under Rent Control Ordinance Constitutes a Regulatory Taking.”) In 2010 in Guggenheim v. City of Goleta (December 22, 2010, No. 06-56306) __ F.3d __ (“Guggenheim II”), the Ninth Circuit Court of Appeals sitting en banc reversed its previous decision, holding that the plaintiffs had no distinct investment-backed expectations when they purchased the property. Therefore, the rent control ordinance did not constitute a taking of their property.

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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.

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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Got Ink?

By William W. Abbott

I am old enough to remember when tattoos or “tats,” were a sign of rebellion, not a sign of conformity, much less the subject of television advertisement for what brand of beer to buy. But as an attorney, even I miss the point as I view someone with an upper torso or a bald head full of ink that they are in fact, a walking manifestation of my First Amendment rights. As they say, the freedom of bad taste is the most important freedom of all. Fortunately, the significance of the First Amendment is not lost on the Ninth Circuit.

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Commercial Logging on Forest Lands Upheld by Ninth Circuit

By Cori M. Badgley

In League of Wilderness Defenders-Blue Mountains Biodiversity Project v. Allen 615 F.3d 1122; 2010 U.S. App. LEXIS 16770; 40 ELR 20224, the Ninth Circuit Court of Appeals focused on two well-known principles of NEPA review: 1) cumulative impacts may be evaluated using an aggregate effects approach; and 2) an agency is only required to adequately acknowledge and respond to comments raised by opposing parties, including opposing expert analysis.

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Grazing Cattle and the BLM's Violation of NEPA and ESA

By Emilio Camacho and Cori Badgley

In Western Watershed Project v. Kraayenbrink, (9th Cir. Sep. 1, 2010, No. 08-35360__F3d.__.), the Ninth Circuit Court of Appeals ruled that the Bureau of Land Management (“BLM”) violated the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”) in adopting the 2006 amendments to the BLM’s grazing regulations.

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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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Arbitration Clause in Condominium Project CC&Rs Unenforceable in Construction Defects Action by Homeowners' Association against Developer

By Glen Hansen

In Pinnacle Museum TowerAssn. v. Pinnacle Market Development (UC), LLC (D055422, July 30, 2010), 2010 Cal.App. LEXIS 1261, the California Court of Appeal for the Fourth Appellate District held that an arbitration provision in a declaration of covenants, conditions and restrictions (CC&R's) recorded by a condominium project developer did not constitute an “agreement” sufficient to waive the constitutional right to jury trial for construction defect claims brought by the homeowners association against the developer.

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Racing to the Starting Line; Competing Permit Applications and First Amendment Activities

By Katherine J. Hart

This case involves a request for a permit to operate an adult cabaret and the interpretation of the City of Stanton “sensitive use ordinance.”

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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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898,000 Metric Tons of Unmitigated CO2: Prime Conditions for the First Appellate Court Decision on CEQA and Climate Change

 By Leslie Z. Walker

The City of Richmond (“City”) and Chevron Products Company (“Chevron”) gave the First District Court of Appeals the opportunity to deliver the first ever appellate court decision on an Environmental Impact Report’s (“EIR”) treatment of greenhouse gas emissions (“GHG”). On April 26, 2010, the Appellate Court found in Communities for a Better Environment v. City of Richmond, (April 26, 2010, A125618) __Cal.App.4th__ the EIR prepared for the construction of an Energy and Hydrogen Renewal Project (“Project”) inadequate in its project description and mitigation of GHG. The factors that likely influenced the appellate court’s decision included: the deal struck between the applicant and the City whereby Chevron would pay the City $61 million dollars to fund civic improvement and the City would fast track the additional permits required for the project; the fact that the project as described in its Security and Exchange Commission documentation, made under oath, contradicted the Project description in the EIR; the City’s delay in concluding the Project’s GHG emissions would create a significant impact on the environment, and the plan for mitigating this contribution would not be developed until up to one year after the issuance of the conditional use permit for the Project.

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City's New General Plan is not Cleared for Take-off, Returns to Base and is Grounded: Court Sets Aside Watsonville General Plan for Non Compliance with State Aeronautical Act and CEQA Requirements

By William W. Abbott

The facts in Watsonville Pilots Association v. City of Watsonville (2010) 183 Cal.App.4th 1059 involve the City of Watsonville and its airport, located on the edge of the City. The airport’s main runway accounted for a majority (82%) of airport operations, and its crosswind runway, accounted for the balance. In 2005, the City amended its airport master plan (“WAMP”), redesignating downward the crosswind, and modifying or eliminating existing land use restrictions. In October 2005, the City circulated a DEIR for its new general plan, and later in May 2006, certified the EIR, adopted a statement of overriding considerations, and adopted the new 2030 General Plan. The new general plan called for significant new growth around the airport, in an area called Buena Vista. As part of the general plan approval, the City identified three significant unmitigated impacts: increased population and housing, loss of prime farmland and the potential to impact groundwater supply.

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No Fooling: A Facially Valid NOE Triggers a 35-Day Statute of Limitations

By Katherine J. Hart and Leslie Z. Walker

In the second time in two months, the California Supreme Court announced that once a Notice of Exemption (“NOE”) for a project is filed, the applicable statute of limitations is 35 days – regardless of the circumstances surrounding the NOE. On April 1, 2010, the Court held that a citizens’ suit challenging a project under the California Environmental Quality Act was barred by the 35-day statute of limitations contained in Public Resources Code section 21167 subdivision (d) because the City of Stockton had filed a facially valid NOE. In Stockton Citizens for Sensible Planning v. City of Stockton (2010) _____ Cal.3d___ a citizens’ group challenged the approval of a Wal-Mart Supercenter (“Project”) found to be consistent with an approved master development plan (“MDP”) and thus exempt from further review under the California Environmental Quality Act (“CEQA”). The citizens’ group claimed that because the Community Development Director (“Director”) erred in approving the project, the statute of limitations for a challenge to the Notice of Exemption (“NOE”) was the 180-day period applicable when no NOE has been filed, not the shorter 35-day period applicable when public notice has been provided by means of an NOE. (Public Resources Code, § 21167, subd. (d); CEQA Guidelines, § 15112, subdivision (d)(2). ) Reversing the decisions of both the superior and appellate courts, the Supreme Court found that flaws in the decision-making process underlying a facially valid and properly filed NOE do not prevent the NOE from triggering the 35-day period to file a lawsuit challenging the agency’s approval of a CEQA-exempt project.

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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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Paper or Plastic? Public Right Exception Allows Plastic Bag Producers to Challenge Negative Declaration for Environmental Ordinance

By Leslie Z. Walker

The Court of Appeals for the Second Appellate District demonstrated in January, that substantial evidence of a fair argument includes any evidence in the record, even a report from the Scottish Government evaluating a plastic bag tax. In Save the Plastic Bag Coalition v. City of Manhattan Beach (January 21, 2010, B215788) ___ Cal.App.4th___,the appellate court found that substantial evidence supported a fair argument that an ordinance prohibiting the use of plastic bags in the city may require the preparation of an environmental impact report (“EIR”).

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Prop. 218 Proportionality Rule Relates to Special Benefits, Not Construction Costs

By Cori Badgley

Under Proposition 218 (Cal. Const. art. XIII D), special assessments shall not “exceed the reasonable cost of the proportional special benefit conferred on a parcel.” The courts have divided this into two general inquiries: 1) is a special benefit conferred by the improvement to be built through the assessment?; and 2) is the assessment proportional? In Town of Tiburon v. Bonander (2009)180 Cal.App.4th 1057, the court answered yes to the first question, but found that the division of costs was not proportional under Proposition 218.

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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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A Fair Argument and the Need to Prepare an EIR: A Timeless Tale

By William W. Abbott

In 2001, the County of Inyo adopted an updated General Plan, which included a definition of “net acreage”.  This definition excluded areas devoted to streets, roads and utilities. Over time, staff was concerned with interpretation of this provision as it related to utilities, and in 2005, the Board of Supervisors, based upon a negative declaration, amended the General Plan’s definition of net acreage, deleting the reference to utilities.  The Board then acted to approve three parcel maps, each based upon negative declarations.

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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 2010!

In January and February 2010 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 2010 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting
  • Water Supply Legislation
  • CEQA Litigation: Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extension
  • Interpreting Development Agreements
  • Endangered Species 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 21, 2010
  • 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: Thursday, January 28, 2010
  • 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 12, 2010
  • 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.

 

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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Density Bonus Law Update: Statutory Refinements and Recent Cases

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 meaningful incentives. 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. The legislature has made minor revisions since SB 435 that further the purpose of the 2004 amendments. (See “Overview of Density Bonus Law” below for an outline of the current requirements.)

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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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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 2010!

In January and February 2010 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 2010 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting
  • Water Supply Legislation
  • CEQA Litigation: Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extension
  • Interpreting Development Agreements
  • Endangered Species 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 21, 2010
  • 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: Thursday, January 28, 2010
  • 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 12, 2010
  • 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.

Vision California: Centralization of Land Use Planning at the State Level?

By Cori Badgley

Traditionally, land use planning generally has been left to counties and cities. On a selected basis, the legislature has intervened and added an overlapping layer of state regulation, such as the Coastal Commission, Cal TRPA and BCDC. With state mandated housing elements, cities in particular have had to take a more regional perspective in addressing housing needs. SB 375 in 2008 added to the subtle shift in the local-state planning paradigm. Now, the state is embarking on an unprecedented process to create a preferred land use scenario for all of California. This process is called Vision California, and it has a 2050 planning horizon.

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City Not Required to Zone for Medical Marijuana

By Cori Badgley

The Compassionate Use Act (Health and Safety Code § 11362.5) and the Medical Marijuana Program (Health and Safety Code § 11362.5) legalized the use and distribution of medical marijuana subject to specific restrictions outlined in the statutes. Many cities, such as the City of Claremont, do not have areas zoned to permit medical marijuana dispensaries. In City of Claremont v. Kruse (2009) (Case No. B210084), the Court of Appeal, Second Appellate District addressed whether the state statutes preempted the City from refusing to permit a medical marijuana dispensary and declaring it a nuisance. The court held that the City’s actions were not preempted and that the defendants continued operation of the medical marijuana dispensary constituted a nuisance.

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The Kaweah Colony: A Socialist Settlement in the 1880's

By William W. Abbott

California’s historic settlement patterns are far more diverse then what would first appear to be the case.  In addition to the religious (San Bernardino, Compton, Whittier ), the ethnic (Solvang, Ft. Ross) and the timber company towns (Samoa, Westwood, McCloud), there are numerous spiritual, philosophical, labor and socialist undertakings in this state’s history. This article is an overview of the labor/socialist origins of the Kaweah Colony, located in eastern Tulare County.

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CEQA Does Not Apply to Project Disapproval, Even if the EIR is Underway

By Leslie Z. Walker

According to Las Lomas Land Co., LLC v. City of Los Angeles (Sept. 17, 2009, B213637) ___ Cal.App.4th ___, the long standing rule that CEQA does not apply to projects rejected or disapproved by a public agency, allows a public agency to reject a project before completing or considering the EIR.  In Las Lomas, the Court of Appeals for the Second Appellate District made clear that a city may stop environmental review mid-stream and reject a project without awaiting the completion of a final EIR.  While this holding may avoid wasting time and money on an EIR for a dead-on-arrival project, it will also make it harder for projects to stay in play until the entire environmental document is complete.

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An Historic Tale of Two Towns: The State of California as a Planner, Subdivider and Developer Part II

By William W. Abbott

Readers may remember our earlier account of the first State of California planned community, Durham, in Butte County, started in 1913.  Apparently pleased with the perceived success in Durham, the State Land Settlement Board embraced a more ambitious goal, this time an 8,000 acre community to be located in the community of Delhi, in Merced County. On the heels of World War I, the legislature expanded the program to specifically serve returning veterans.

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How Many Lawyers Does it Take to Extend a Tentative Map?

By William W. Abbott

The Building Industry Association (“BIA”) scored a major success with AB 333, which protects many tentative maps by tacking on an additional statutory life jacket of 24 months. Chapter 18, Statutes of 2009 operates as follows.

 Tentative subdivision maps scheduled to expire before January 1, 2012, are statutorily extended by 24 months. The new extension authorization, Government Code section 66452.22 is in addition to those already provided for by law, listed below:  

 

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Attorney General Sues Pleasanton Over Illegal Housing Cap

By Cori Badgley

The Attorney General’s Office declared in a press release on June 24, 2009 that it intervened in a suit against the City of Pleasanton to remove the City’s “draconian and illegal” housing cap.  The housing cap, which was instituted in 1996 through Measure GG, limits housing to 29,000 units throughout the City.  The City can only accommodate another 2,000 units, if the housing cap remains in place.  According to the Attorney General, the job growth over the past 10 years has nearly doubled from 31,683 to more than 58,000, while the available housing has only increased by 7,000 units.  The draft General Plan Update predicts the creation of 45,000 more jobs over the next 15 years.  In addition to not meeting the City’s fair share regional housing needs, the Attorney General asserts that the housing cap will lead to increased traffic congestion, urban sprawl, greenhouse gas emissions and an increased dependence on foreign oil.  As the case progresses, Abbott & Kindermann, LLP will provide further updates.

Cori M. Badgley 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, 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.

Senate Committee Proposes Suspending Williamson Act Relief

The budget conference committee has proposed suspending Williamson Act subsidies for one year.  For more information, see Budget Committee Highlights and letter from the California Association of Counties and Regional Council of Rural Counties. Please check back for updates on this proposal.

Less Than Two Weeks Left to Submit Your Application for the Sacramento Valley Section APA Awards

Have you participated in an outstanding planning project in the last year?  Do you know someone who should be recognized for their leadership in planning? Nominate a project or person for one of the award categories below by Monday, April 6, 2009. The Sacramento Valley Section uses the State award application form. Section winners for all categories except the Local Vision Awards are submitted to the state for statewide awards.

Questions?

Call Leslie Walker at (916) 456-9595 or email lwalker@aklandlaw.com.

For More Information

Please consult the California APA Award Program Policy, the Sacramento Valley Application Form, last year’s winners for the Sacramento Valley Section, and the Local Vision Awards.

An Historic Tale of Two Towns: The State of California as a Planner and Subdivider, Part I

By William W. Abbott

We all are familiar with the State of California in its role in land planning and development as the uber regulator. But if you turn back the hands of time immediately before World War I, a different picture emerges; that of land developer.

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Delay in Granting Ministerial Electrical Permit is Not a Regulatory Taking

By Cori M. Badgley and Nathan Jones

In Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, a developer asserted that a temporary regulatory taking occurred when the County of Santa Cruz (“County”) improperly and unlawfully delayed granting a ministerial permit for electricity. After extensively analyzing the various regulatory takings tests, the Court of Appeal, Sixth Appellate District, held that no regulatory taking had occurred.

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Dream Home Checklist: Architect, Contractor, Land Use Attorney

By William W. Abbott and Nathan Jones

According to leading lifestyle magazines, the status question is no longer: who is your architect, but: who is your land use attorney? And if you want to build your dream house along the coast, your attorney’s telephone number needs to be on your cell phone’s speed dial.

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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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Peril for the Unwary: Use It or Lose It Against The Coastal Commission

By Cori Badgley and Nathan Jones

Estoppel is a pervasive legal concept dating back to the common law of England. Though it takes many forms, its application revolves around a party’s action or inaction to the prejudice of the other side or to a decision maker. Estoppel is a legal doctrine that may be used in certain situations to prevent a person from relying upon certain rights, or upon a set of facts (e.g. words said or actions performed) which differs from an earlier set of facts.  Inquasi-judicial tribunals like the Coastal Commission, the agency may both oppose you and act in a judicial capacity. The case of Mt. Holyoke Homes, LP v. California Coastal Commission (2008) 167 Cal.App.4th illustrates that estoppel applies when a party continues to negotiate with the California Coastal Commission (“Commission”) even though the Coastal Commission has already lost jurisdiction over the disputed matter.

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Putting The Cart Before the Horse - Developer Cannot Pursue Declaratory Judgment Before City Council Passes Final Housing Ordinance

By Leslie Walker and Nathan Jones

The following case exemplifies that a developer cannot instigate litigation attacking a proposed ordinance until a municipal government has passed the ordinance in question. The matter of Stonehouse Homes, LLC. v. City of Sierra Madre (2008) 167 Cal.App.4th 531, more broadly holds that to maintain a declaratory relief action, a plaintiff must be able to demonstrate a present conflict in addition to showing the existence of tangible injury.

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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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Zoning Citations: Next Time, Pay the Fine!

By William W. Abbott

Sometimes, the moral of an appellate court decision is hard to find. In this case, I think it is buried in the footnotes. Many cities and counties now use administrative procedures including monetary citations as part of zoning and building code enforcement. Procedurally, a party subject of an adverse order has two avenues of appeal. First, a de novo appeal can be filed and heard by the superior court, or as illustrated in the recent case of Martin v. Riverside County Department of Code Enforcement (September 19, 2008) 2008 Cal.App.Lexis 1444, a challenge via a petition for writ of mandate serves as an alternative remedy. (Gov. Code § 53069.4(b)(1).)

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Court Holds that County Has Power to Deny Conditional Use Permit Renewal, but CEQA Applies

By Cori M. Badgley and Diane Kindermann

In Sunset Skyranch Pilots Association v. County of Sacramento (2008) 164 Cal.App.4th 671, the Court of Appeal, Third Appellate District addressed two separate issues: 1) does the State Aeronautics Act (“SAA”) preempt the County’s decision to deny renewal of Sunset Skyranch Pilots Association (“Airport”) conditional use permit (“CUP”), and 2) does the denial of the CUP renewal constitute a “project” under the California Environmental Quality Act (“CEQA”)? The appellate court held that the SAA did not preempt the County’s decision, and denial of the renewal of the CUP did constitute a project under CEQA.

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Guidelines Adopted Subsequent to Williamson Act Contract Are Enforceable

By Kate J. Hart and Janell M. Bogue

 

In County of Humboldt v. McKee (August 15, 2008) 2008 Cal.App.Lexis 1248, the Court of Appeal, First Appellate District examined the state’s Williamson Act. The court determined that Humboldt County (“County”) Williamson Act guidelines, adopted in 1978 (the “1978 guidelines”), governed a Williamson Act contract signed in 1977. This holding meant that the new owners, Buck Mountain Ranch Limited Partnership, and the McKee’s, (collectively “Mckee”) of Tooby Ranch, consisting of over 10,000 acres, violated the Williamson Act by dividing it into parcels of 160 acres in size. This size of parcel was allowed under the County’s previous guidelines (the “1973 guidelines”).

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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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Long-time Debate Over Presumptions in Prescriptive Easement Cases Settled by Second Appellate District

By Cori Badgley

In the area of prescriptive easements, courts and practitioners have been challenged by the issue of who has the burden to prove “adverse use.” “The elements necessary to establish an easement by prescription are open and notorious use of another’s land, which use is continuous and uninterrupted for five years and adverse to the land’s owner.” Some courts have held that by providing evidence that the use is open, notorious and continuous, a presumption arises that the use is also adverse, and therefore, the defendants, and not the plaintiffs, must prove that the use is not adverse. The Court of Appeal, Second Appellate District in Grant v. Ratliff (July 16, 2008) 2008 Cal.App.Lexis 1063, disagreed with these courts and held along with the other California courts that even if the plaintiff provides evidence of open, notorious and continuous use, the plaintiff still bears the burden of producing evidence to show that the use was adverse. The burden does not shift to the defendant.

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Unwanted, Now Unplanned: City Says "No" to Annexation and Draws the Line on City Expansion

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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The Rest of Muzzy Ranch: ALUCs Not Required to Adopt AICUZ Standards

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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A Detailed Record Can Make All the Difference: Court Upholds Commission's Imposition of $5.3 Million Fee

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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The Development Blues: Property Lies Undeveloped for 30 Years and Counting

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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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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Good Fences Make Good Neighbors but Bad Fences Make Appellate Opinions

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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Open Hostility: Validating Prescriptive Easements

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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Court of Appeal Applies Fair Argument Test in Appeal of Senior Housing Project

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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$5 Million Judgment Against Santa Barbara County Overturned by Appellate Court

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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Coastal Commission May Designate Environmentally Sensitive Habitat Area

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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Coastal Commission Out of Bounds with ESHA Determination

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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If the Zoning Isn't Uniform, the Court Won't Salute

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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Invalid Approval Based on Lack of Legal Authority Leads to Invalid Notice of Exemption and Long Statute of Limitations for Challenged Wal-Mart

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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Paper Water Revisited: Second Appellate District Applies the Principles of Vineyard

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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The Sludge is Here to Stay: City of Los Angeles v. County of Kern

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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Density Bonus Law Update: An Overview of the Law and A Look at the First Case to Interpret the 2004 Amendments

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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Flexible General Plan Leads to Flexible Consistency

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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Landmark Settlement in Global Warming Case

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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Zoning, Business Competition and Public Purposes

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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The Difficulty in Establishing Estoppel Against A Public Agency

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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Regulatory Fees After Proposition 13: An Update

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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Appellate Court Cites Exactions and Impact Fees Book

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. Continue Reading...

HCPs and Hawks and Snakes...Oh My!

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. Continue Reading...

Effective January 1, 2007, the California Legislature expands landowners' obligation to repatriate Native American remains and associated cultural artifacts

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. Continue Reading...

Court Shuts Off Civil Code §1356 Safety Valve...Well, Halfway At Least

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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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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News Alert! Common Sense Reigns Supreme. The Obligation to Serve is Predicated on the Willingness to Pay

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.

Branciforte Heights - Strong Bet for 2006 Top Ten Land Use Cases

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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New Indirect Source Review to Affect Development in San Joaquin Valley

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.

Water & Sewer Connection Fee Payments Under Protest: Alternatives to Mitigation Fee Act, Government Code section 66020

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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Let's Make a Deal!

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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Subdivision Woes: A fault line, a sea cliff, and two wetlands...so what's the problem here?

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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Can You Hear (er, See) Me Now?

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 Caņada-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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They Sue Horses, Don't They?

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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Trend Homes: Judicial Reference Provision Held not Unconscionable

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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What is the Difference Between a Townhouse and a Condominium? Depending Upon the Statute, Most Likely Nothing.

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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DRE Regulations on Architectural Control Committees Apply Only to Common Interest Subdivisions

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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El Dorado County Has a General Plan

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.

Exception to 10-Year Statute of Limitations Rule for Construction Defect Litigation

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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Age Discrimination in Higher Density Developments

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.

Condominiums and Density Bonuses

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.

Woodridge: Encroaching Decks and CC&Rs?

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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California Multi-Family Development Accessibility Requirements (aka "Universal Design")

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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General Plan Consistency and EIR Sufficiency

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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CARB Releases Informational Guide

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.

Vested Rights? Over My Dead Body!

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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Can You Hear Me Now? Proposed Cell Tower Sites Result in Controversy

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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Correlating Land Use and Circulation Elements of a General Plan

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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Appellate Court Reaffirms the Rule that the Rights Attached to an Approved Tentative Map are Limited

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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Supersize this Project! The New Rules for Density Bonuses

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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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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California Supreme Court Affirms the Authority of Homeowner Associations to Amend CC&Rs and Apply New Use Restrictions to Existing Residents

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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The Court of Appeal Affirms Once Again High Legal Standard Required for Variances

by William W. Abbott and Robert T. Yamachika

Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916, reaffirms the California rule that the granting of a variance, even in a charter city, is the exception rather than the rule. The case involves a longstanding non-conforming use; a gas station located in a residential neighborhood. The station had been at the location in question since 1922. It became non-conforming in 1925 when the area was zoned and annexed to the City of Los Angeles.

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Exactions: Dedications and Development Fees Update

by William W. Abbott and Robert T. Yamachika

This article summarizes recent case law addressing dedications and development fees.

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Analysis of AB 2370 New Legislation Regarding LAFCos and Williamson Act Lands (Chap. 614, Stats. 2002)

by William W. Abbott and Robert T. Yamachika

The Governor recently signed AB 2370 which amends portions of the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 ("LAFCo law"). This legislation takes effect on January 1, 2003, but does not apply to changes of organization or reorganization initiated prior to January 1, 2003. In a nutshell, AB 2370 prohibits local agency formation commissions ("LAFCos") from approving a change of organization or reorganization or a change in the sphere of influence of a local government agency that would result in the annexation to cities or special districts, land that is subject to a farmland security zone ("FSZ") contract or Williamson Act contract except under specified conditions. Thus, the net effect of the legislation is to further protect contracted lands from conversion to urban type uses.

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State Housing Objectives Move Forward in Year 2002 Revisions to the State Zoning Law

by William W. Abbott and William V.W. Moore

In 2002 the Legislature amended the state zoning law in furtherance of its stated interest in creating housing opportunities. The first (AB 2292, Dutra) adds Government Code section 65863 and deals with "no-net-loss" of residential densities while the second (AB 1866, Wright) refines the state density bonus law. (Gov. Code § 65915.)

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Storm Drainage Fees are Property-Related Fees Subject to Proposition 218 Requirements

by Diane G. Kindermann and Robert T. Yamachika

In a recent Proposition 218 case, Howard Jarvis Taxpayers Association v. City of Salinas (2002) 98 Cal.App.4th 1351, the Court of Appeal for the Sixth Appellate District held that a "storm water drainage fee" was illegally imposed by the City of Salinas. The plaintiff, Howard Jarvis Taxpayers Association ("HJTA") contended that the storm drainage fee imposed by the City of Salinas was a "property-related" fee requiring voter approval. HJTA's arguments were based on Proposition 218, the "Right to Vote on Taxes Act," which was passed by the California voters in 1996. Proposition 218 added article XIII D, section 6(c) to the California Constitution, requiring notice for a public hearing and a vote for a proposed property-related fee or charge. If a majority of the affected property owners or two-thirds of the electorate in the affected area do not approve the fee, it may not be imposed.

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