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Posted on August 31, 2010 by Abbott & Kindermann
By Katherine J. Hart
The City of Los Angeles generally prohibits freeway, supergraphic and off-site billboards, but has adopted a few exceptions to the rule. For instance, it permits freeway signs and supergraphic and off-site signs in areas where specific plans are adopted to govern such signs or pursuant to development agreements, in accordance with its police power (the power to control local land use). Numerous billboard companies erected freeway and supergraphic signs all over the city. In 2008, the city adopted a moratorium on new supergraphic and off-site signs.
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Posted on August 11, 2010 by Abbott & Kindermann
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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Posted on July 20, 2010 by Abbott & Kindermann
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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Posted on May 14, 2010 by Abbott & Kindermann
By William W. Abbott
As a black-mark on the history of progressive thought in California, the voters, in 1950, enacted Article XXXIV as part of the California Constitution. It had the effect of requiring voter approval of low rent housing projects. Over time, the legislature had codified various interpretations, excluding from the voter approval process, certain types of affordable projects. On a parallel path, the legislature has modified the redevelopment law to ensure that there are minimum expenditures for affordable housing. After all, how many automalls, big box retailers and movie theaters does California really need to fund through the redevelopment process?
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Posted on May 6, 2010 by Abbott & Kindermann
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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Posted on April 27, 2010 by Abbott & Kindermann
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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Posted on April 12, 2010 by Abbott & Kindermann
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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Posted on March 4, 2010 by Abbott & Kindermann
By: Katherine J. Hart
As determined by the California Supreme Court 27 years ago, local agencies may impose a fee for the filing of an appeal of a CEQA decision so long as that fee is reasonable.
In the case at hand, the planning commission of the City of Glendora adopted an addendum to a negative declaration (“Addendum”) and approved a project on February 12, 2008. Petitioner Erica Landmann-Johnsey (“Petitioner”) wanted to appeal the CEQA decision to the city council, but in order to do so, was required to pay a $2,000 appeal fee. Petitioner filed her appeal and paid the fee under protest.
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Posted on February 16, 2010 by Abbott & Kindermann
By Leslie Z. Walker
Today, February 16, 2010, the Office of Administrative Law filed the Amendments to the CEQA Guidelines addressing greenhouse gas emissions (“Amendments”) with the Secretary of State. The Amendments require the quantification and mitigation of greenhouse gas emissions. (For more information about the Amendments, see OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency and CEQA Guidelines on Greenhouse Gases One Step Closer to Law.) The Amendments will become effective on March 18, 2010. Lead agencies should consult Guidelines section 15007 to determine when the Amendments apply to the agency’s actions.
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Posted on February 4, 2010 by Abbott & Kindermann
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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Posted on January 26, 2010 by Abbott & Kindermann
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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Posted on January 13, 2010 by Abbott & Kindermann
From the quick fix solutions for the Delta to CEQA analysis on mitigation deferral, impact fees and the feasibility of alternatives, to the scope of the Corps permitting authority, the following legislation, regulations, and cases from 2009 (listed first by type of document, then in chronological order) will have the most impact on water supply, water quality, and land use and entitlement practice (e.g., development) in California in the coming years. And remember, you read it here first!
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Posted on January 12, 2010 by Abbott & Kindermann
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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Posted on January 5, 2010 by Abbott & Kindermann
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.
Posted on December 16, 2009 by Abbott & Kindermann
This article highlights the 2009 CEQA court decisions along with the proposed changes to the CEQA guidelines. Many of the highlights are linked to more detailed analyses prepared by the attorneys at Abbott & Kindermann, LLP.
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Posted on December 15, 2009 by Abbott & Kindermann
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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Posted on December 8, 2009 by Abbott & Kindermann
By Leslie Z. Walker
In California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, the Sixth District Court of Appeals upheld an Environmental Impact Report (“EIR”) for the master plan of a greenbelt, against appellant’s attack on the range of alternatives and findings of infeasibility.
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Posted on December 2, 2009 by Abbott & Kindermann
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.
Posted on November 18, 2009 by Abbott & Kindermann
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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Posted on September 30, 2009 by Abbott & Kindermann
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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Posted on September 29, 2009 by Abbott & Kindermann
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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Posted on September 22, 2009 by Abbott & Kindermann
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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Posted on August 26, 2009 by Abbott & Kindermann
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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Posted on July 22, 2009 by Abbott & Kindermann
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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Posted on June 25, 2009 by Abbott & Kindermann
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.
Posted on June 22, 2009 by Abbott & Kindermann
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.
Posted on March 25, 2009 by Abbott & Kindermann
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.
Posted on March 3, 2009 by Abbott & Kindermann
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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Posted on February 25, 2009 by Abbott & Kindermann
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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Posted on February 10, 2009 by Abbott & Kindermann
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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Posted on January 14, 2009 by Abbott & Kindermann
By Glen Hansen
In Arcadia Development Co. v. City of Morgan Hill (2008) 169 Cal.App.4th 253, the California Court of Appeal, Sixth Appellate District, held that the extension of a temporary growth control ordinance restarts the running of the 90-day statute of limitations found in Government Code section 65009 to challenge the ordinance.
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Posted on January 5, 2009 by Abbott & Kindermann
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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Posted on December 8, 2008 by Abbott & Kindermann
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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Posted on November 3, 2008 by Abbott & Kindermann
By Leslie Z. Walker and Cori M. Badgley
California’s land use planning structure has long been governed by a philosophy of home rule. Periodically, the legislature has identified specific typical areas for state intrusion: housing policy and airport land use planning are two examples. Among other provisions, SB 375 (Chapter 728, Statutes 2008) reflects a new area of state intervention, brought on by the rising concern over global warming. This time, it is through the regional transportation planning process, with the apparent thinking that once you control the purse strings, local governments will fall into line. SB 375’s major elements are:
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Posted on October 8, 2008 by Abbott & Kindermann
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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Posted on September 29, 2008 by Abbott & Kindermann
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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Posted on September 8, 2008 by Abbott & Kindermann
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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Posted on August 13, 2008 by Abbott & Kindermann
By Glen Hansen
The recent decision by the Court of Appeal for the First Appellate District in Urban Habitat Program v. City of Pleasanton (2008) 164 Cal.App.4th 1561, vividly illustrates the conflict that can arise between the desire by local voters to limit housing growth, the local jurisdiction’s obligations under state law to allow construction of low and moderate income housing, and the local officials’ reluctance to thwart the voters’ desire in order to meet those state obligations. That conflict invariably leads to litigation, even years after a no-growth initiative is passed by the voters.
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Posted on August 11, 2008 by Abbott & Kindermann
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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Posted on July 22, 2008 by Abbott & Kindermann
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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Posted on July 21, 2008 by Abbott & Kindermann
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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Posted on June 23, 2008 by Abbott & Kindermann
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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Posted on May 27, 2008 by Abbott & Kindermann
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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Posted on May 12, 2008 by Abbott & Kindermann
By Glen Hansen
Applicants don’t like being denied a local land use permit. It is equally frustrating for project opponents who fail to stop an approval by a local governmental board to understand why the decision makers didn’t endorse their arguments. Many believe that the failure to prevail before an agency is not due to the merits of the cause, but is the result of some unstated, nefarious plot or bias in the collective heads of the agency board that rejected the position. However, the Court of Appeal recently reminded us that digging into the thought process of administrative officials is generally out of bounds.
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Posted on April 22, 2008 by Abbott & Kindermann
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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Posted on April 14, 2008 by Abbott & Kindermann
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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Posted on March 25, 2008 by Abbott & Kindermann
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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Posted on March 24, 2008 by Abbott & Kindermann
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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Posted on March 17, 2008 by Abbott & Kindermann
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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Posted on February 19, 2008 by Abbott & Kindermann
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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Posted on December 18, 2007 by Abbott & Kindermann
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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Posted on December 17, 2007 by Abbott & Kindermann
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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Posted on October 29, 2007 by Abbott & Kindermann
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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Posted on October 23, 2007 by Abbott & Kindermann
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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Posted on October 8, 2007 by Abbott & Kindermann
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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Posted on September 10, 2007 by Abbott & Kindermann
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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Posted on August 27, 2007 by Abbott & Kindermann
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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Posted on July 2, 2007 by Abbott & Kindermann
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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Posted on June 18, 2007 by Abbott & Kindermann
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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Posted on May 8, 2007 by Abbott & Kindermann
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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Posted on April 2, 2007 by Abbott & Kindermann
By William W. Abbott
Citing "Exactions and Impact Fees in California"
[1], the Third Appellate District ruled that the Subdivision Map Act (
Gov. Code, §§ 66410 et seq.) 90-day statute of limitations trumped the longer Mitigation Fee Act (
Gov. Code, §§ 66000 et seq.) timeline when reviewing a legal challenge to a subdivision map denial by the City of Chico. The case is
Thomas Fogarty v. City of Chico (March 12, 2007) 2007 Cal.App.Lexis 339.
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Posted on December 5, 2006 by Abbott & Kindermann
By Janell M. Bogue
Recently, the Third Appellate District held that the
Natomas Basin Habitat Conservation Plan (“HCP”) was properly certified by the City of Sacramento and Sutter County (“City and County”) under CEQA and that the Department of Fish and Game (“DFG”) complied with the California Endangered Species Act (“CESA”) in issuing its incidental take permits. The case is
Environmental Council of Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 1018.
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Posted on November 27, 2006 by Abbott & Kindermann
By Rob Hofmann
Cultural artifacts and Native American remains receive different levels of protection under state and federal law. The federal
Native American Graves Protection and Repatriation Act (“NAGPRA”) (25 U.S.C. § 3001 et seq.) delineates the process for the return of Native American remains and specified cultural artifacts in the control or possession of most federally funded museums and agencies to direct descendants or affiliated tribes. NAGPRA also provides processes for handling future discoveries of remains and artifacts on federal or tribal land and imposes penalties for noncompliance and illegal trafficking. NAGPRA requires that these museums and agencies prepare inventories and summaries of all protected items in their control or possession and consult with the applicable descendants and tribes for possible repatriation or disposition. With limited exceptions, NAGPRA applies only to tribes recognized by the Bureau of Indian Affairs and recognized Native Alaskan and Hawaiian groups.
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Posted on August 14, 2006 by Abbott & Kindermann
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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Posted on August 11, 2006 by Abbott & Kindermann
Mahon v. County of San Mateo (2006) 139 Cal.App.4th 812
The "deemed approved" remedy for untimely processing must give heads up to neighbors -- what may be "deemed" is not what it seemed.
By Joel Ellinwood, AICP
Recognizing that the often seemingly interminable delay by local agencies in development permit processing drives up costs of providing housing and other desirable projects, the development industry succeeded in persuading the legislature to impose what at first glance appear to be strict timelines for the agency to approve or disapprove projects. The timelines are given teeth by provisions which may result in projects being "deemed approved" if the agency fails to act within the time provided. However, as the recent case of Mahon v. County of San Mateo (2006) 139 Cal.App.4th 812 (modified June 19, 2006) illustrates, the teeth don't seem to have much bite. This article will identify strategies for making the best use of what little bite is left to help manage the pace of development processing.
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Posted on July 25, 2006 by Abbott & Kindermann
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.
Posted on May 18, 2006 by Abbott & Kindermann
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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Posted on May 18, 2006 by Patti Alexander
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.
Posted on May 1, 2006 by Janell Bogue
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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Posted on February 15, 2006 by Janell Bogue
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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Posted on February 15, 2006 by Janell Bogue
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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Posted on February 15, 2006 by Janell Bogue
by Joel Ellinwood, AICP
Ninth Circuit Prohibits Aesthetic Regulation of Cell Towers in Public Rights-of-Way Based on California Public Utilities Code
In a unique twist to the preemption argument based on conflicts between the federal Telecommunications Act of 1999 ("TCA") and state and local land use powers, the United States Court of Appeals for the 9th Circuit held that California Public Utilities Code section 7901 permitting installation of telephone facilities in public rights-of-way bans local governments from denying applications for cell phone facilities based on aesthetic considerations. Sprint PCS Assets LCC v. City of La Cañada-Flintridge, 2006 U.S.App.Lexis 1032 (9th Cir. 2006). The TCA explicitly allows local governments to apply traditional land use powers in regulating wireless telecommunications facilities. In applying those powers, local governments may not use health effect concerns about radio signals if the applicant demonstrates that the facility complies with Federal Communications Commission safety standards, discriminate between functionally equivalent service providers, or effectively frustrate provision of telecommunications services. The various Circuit Courts of Appeals have applied the TCA limitations inconsistently, but all apply the generally deferential "substantial evidence" standard of review. The 9th Circuit recently adopted a pragmatic but fact-intensive approach in MetroPCS v. City & County of San Francisco, 400 F3d 715 (2005) (click here to read Abbott & Kindermann's July 2005 article on the case).
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Posted on December 1, 2005 by Janell Bogue
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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Posted on October 1, 2005 by Janell Bogue
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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Posted on October 1, 2005 by Janell Bogue
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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Posted on October 1, 2005 by Janell Bogue
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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Posted on October 1, 2005 by Janell Bogue
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.
Posted on October 1, 2005 by Janell Bogue
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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Posted on October 1, 2005 by Janell Bogue
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.
Posted on October 1, 2005 by Janell Bogue
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.
Posted on October 1, 2005 by Janell Bogue
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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Posted on October 1, 2005 by Janell Bogue
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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Posted on September 1, 2005 by Janell Bogue
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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Posted on August 1, 2005 by Janell Bogue
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.
Posted on August 1, 2005 by Janell Bogue
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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Posted on July 1, 2005 by Janell Bogue
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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Posted on June 1, 2005 by Janell Bogue
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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Posted on April 28, 2005 by Janell Bogue
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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Posted on April 28, 2005 by Abbott & Kindermann
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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Posted on August 1, 2004 by Janell Bogue
by William W. Abbott and Heather Gerken
Land use applicants frequently fail to appreciate the deference that a reviewing court must give a city council or board of supervisors. Disgruntled with an adverse decision, an adversely affected applicant often believes that they are entitled to re-argue the merits of their position. As the following cases illustrate, judicial review of controversial land use regulations does not start with a blank canvas.
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Posted on July 1, 2004 by Janell Bogue
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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Posted on February 1, 2004 by Janell Bogue
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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Posted on May 1, 2003 by Janell Bogue
by William W. Abbott and Robert T. Yamachika
This article summarizes recent case law addressing dedications and development fees.
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Posted on February 1, 2003 by Janell Bogue
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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Posted on February 1, 2003 by Janell Bogue
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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Posted on January 1, 2003 by Janell Bogue
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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