Reserve your seat for our annual in-person and virtual conferences taking place in early 2023.

In February of 2023, Abbott & Kindermann, Inc. will present its 22nd annual in-person, as well as virtual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.

A summary of 2022 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY
  • CLIMATE CHANGE & RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

Details for each of the conference options are below.  We hope you can join us and we look forward to seeing you there.

February 10, 2023  In-Person Conference (To Register for the 2/10/2023 In-Person Program Click Here)

Format: In-Person

  • Location: Hilton Sacramento Arden West, 2200 Harvard Street, Sacramento, CA 95815
  • Check-In: 8:30 a.m. – 9:00 a.m.
    • With Continental Breakfast

Registration Fee: $100.00

Program: 9:00 a.m. – 12:00 p.m.

February 24, 2023 Virtual Conference (To Register for the 2/24/2023 Virtual Conference Program Click Here)

Format:100% virtual event via Zoom

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $50.00

Program: 10:00 a.m. – 12:00 p.m.

Please register early to reserve your spot. Select the links above to see registration details for each option, as they differ. MCLE, APA and AICP CM credits are available.

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

Sheetz v. County of El Dorado (2022) 84 Cal.App.5th 394.

Abbott & Kindermann recently secured major wins at both the trial court and appellate level on behalf of the County of El Dorado (“County”) in a lawsuit that raised statutory and constitutional challenges to legislatively imposed and generally applied development fees.

The County imposed a $23,420 traffic impact mitigation fee (“TIM fee” or “fee”) as a condition of issuing George Sheetz a building permit for the construction of a single-family residence on his property in Placerville, California.  Sheetz filed an action challenging the fee on various grounds, inter alia, that the TIM fee is invalid under the Mitigation Fee Act (“MFA”) (Gov. Code, § 66000 et seq.) and the takings clause of the United States Constitution, namely the special application of the “unconstitutional conditions doctrine” in the context of land use exactions established in Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 (Nollan) and Dolan v. City of Tigard (1994) 512 U.S. 374 (Dolan).  The trial court rejected both of Sheetz’ arguments, sustained the County’s demurrer without leave to amend, and denied his verified petition for writ of mandate.  The trial court held that the heightened scrutiny in Nollan/Dolan did not apply to the TIM fees, and that the County complied with the MFA requirements in Government Code section 66001, subdivision (a), when the County Board of Supervisors adopted the TIM fees.  The Court of Appeal affirmed.

As to the constitutional takings claim, the Court of Appeal held that the heightened scrutiny under Nollan/Dolan did not apply to the TIM fee.  The court explained that under California law, the requirements of the Nollan/Dolan test apply to development fees imposed as a condition of permit approval where such fees are imposed neither generally nor ministerially, but on an individual and discretionary basis: “The requirements of Nollan and Dolan, however, do not extend to development fees that are generally applicable to a broad class of property owners through legislative action.”  As our Supreme Court has explained, “legislatively prescribed monetary fees’ — as distinguished from a monetary condition imposed on an individual permit application on an ad hoc basis — ‘that are imposed as a condition of development are not subject to the Nollan/Dolan test’.”  (Citing California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 459–460, fn. 11.)  “[W]hile the Nollan/Dolan test applies to monetary land use exactions, which are imposed ad hoc on an individual and discretionary basis, it does not apply to generally applicable development impact fees imposed through legislative action.”  “[T]he heightened scrutiny of the Nollan/Dolan test does not apply to legislatively mandated development impact fees that, as here, generally apply to a broad class of permit applicants.”  The Court of Appeal concluded that the trial court properly determined that the TIM fee is not subject to the heightened scrutiny of the Nollan/Dolan test because the fee was not an “ad hoc exaction” imposed on a property owner on an individual and discretionary basis, but rather was a development impact fee imposed pursuant to a legislatively authorized fee program that generally applies to all new development projects within the County.  The fee was calculated using a formula that considers various factors.  Therefore, the validity of the fee and the program that authorized it was only subject to the deferential “reasonable relationship” test embodied in the Mitigation Fee Act and the California Constitution. 

As to the MFA claim, the Court of Appeal held that the County satisfied the “reasonable relationship” test in section 66001(a) for legislative enactment of the TIM fees.  Specifically, the County met its initial burden of demonstrating that it used a valid method for imposing the TIM fee, one that established a reasonable relationship between the fee charged and the burden posed by Sheetz’s development of a single-family residence in a specific geographic zone.  The County considered the relevant factors and demonstrated a rational connection between those factors and the fee imposed.  Also, the court concluded that Sheetz failed to show that the record before the County clearly did not support the County’s determinations regarding the reasonableness of the relationship between the fee and his development project.  

Sheetz then filed a petition for review with the California Supreme Court as to the Nollan/Dolan claim.  That petition was denied on February 1, 2023.

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Reserve your seat for our annual in-person and virtual conferences taking place in early 2023.

In February of 2023, Abbott & Kindermann, Inc. will present its 22nd annual in-person, as well as virtual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.

A summary of 2022 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY
  • CLIMATE CHANGE & RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

Details for each of the conference options are below.  We hope you can join us and we look forward to seeing you there.

February 10, 2023  In-Person Conference (To Register for the 2/10/2023 In-Person Program Click Here)

Format: In-Person

  • Location: Hilton Sacramento Arden West, 2200 Harvard Street, Sacramento, CA 95815
  • Check-In: 8:30 a.m. – 9:00 a.m.
    • With Continental Breakfast

Registration Fee: $100.00

Program: 9:00 a.m. – 12:00 p.m.

February 24, 2023 Virtual Conference (To Register for the 2/24/2023 Virtual Conference Program Click Here)

Format:100% virtual event via Zoom

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $50.00

Program: 10:00 a.m. – 12:00 p.m.

Please register early to reserve your spot. Select the links above to see registration details for each option, as they differ. MCLE, APA and AICP CM credits are available.

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

Reserve your seat for our annual in-person and virtual conferences taking place in early 2023.

In February of 2023, Abbott & Kindermann, Inc. will present its 22nd annual in-person, as well as virtual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.

A summary of 2022 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY
  • CLIMATE CHANGE & RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

Details for each of the conference options are below.  We hope you can join us and we look forward to seeing you there.

February 10, 2023  In-Person Conference (To Register for the 2/10/2023 In-Person Program Click Here)

Format: In-Person

  • Location: Hilton Sacramento Arden West, 2200 Harvard Street, Sacramento, CA 95815
  • Check-In: 8:30 a.m. – 9:00 a.m.
    • With Continental Breakfast

Registration Fee: $100.00

Program: 9:00 a.m. – 12:00 p.m.

February 24, 2023 Virtual Conference (To Register for the 2/24/2023 Virtual Conference Program Click Here)

Format:100% virtual event via Zoom

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $50.00

Program: 10:00 a.m. – 12:00 p.m.

Please register early to reserve your spot. Select the links above to see registration details for each option, as they differ. MCLE, APA and AICP CM credits are available.

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

Reserve your seat for our annual in-person and virtual conferences taking place in early 2023.

In February of 2023, Abbott & Kindermann, Inc. will present its 22nd annual in-person, as well as virtual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.

A summary of 2022 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY
  • CLIMATE CHANGE & RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

Details for each of the conference options are below.  We hope you can join us and we look forward to seeing you there.

February 10, 2023  In-Person Conference (To Register for the 2/10/2023 In-Person Program Click Here)

Format: In-Person

  • Location: Hilton Sacramento Arden West, 2200 Harvard Street, Sacramento, CA 95815
  • Check-In: 8:30 a.m. – 9:00 a.m.
    • With Continental Breakfast

Registration Fee: $100.00

Program: 9:00 a.m. – 12:00 p.m.

February 24, 2023 Virtual Conference (To Register for the 2/24/2023 Virtual Conference Program Click Here)

Format:100% virtual event via Zoom

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $50.00

Program: 10:00 a.m. – 12:00 p.m.

Please register early to reserve your spot. Select the links above to see registration details for each option, as they differ. MCLE, APA and AICP CM credits are available.

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

Reserve your seat for our annual in-person and virtual conferences taking place in early 2023.

In February of 2023, Abbott & Kindermann, Inc. will present its 22nd annual in-person, as well as virtual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.

A summary of 2022 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY
  • CLIMATE CHANGE & RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

Details for each of the conference options are below.  We hope you can join us and we look forward to seeing you there.

February 10, 2023  In-Person Conference (To Register for the 2/10/2023 In-Person Program Click Here)

Format: In-Person

  • Location: Hilton Sacramento Arden West, 2200 Harvard Street, Sacramento, CA 95815
  • Check-In: 8:30 a.m. – 9:00 a.m.
    • With Continental Breakfast

Registration Fee: $100.00

Program: 9:00 a.m. – 12:00 p.m.

February 24, 2023 Virtual Conference (To Register for the 2/24/2023 Virtual Conference Program Click Here)

Format:100% virtual event via Zoom

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $50.00

Program: 10:00 a.m. – 12:00 p.m.

Please register early to reserve your spot. Select the links above to see registration details for each option, as they differ. MCLE, APA and AICP CM credits are available.

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

Reserve your seat for our annual in-person and virtual conferences taking place in early 2023.

In February of 2023, Abbott & Kindermann, Inc. will present its 22nd annual in-person, as well as virtual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.

A summary of 2022 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY
  • CLIMATE CHANGE & RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

Details for each of the conference options are below.  We hope you can join us and we look forward to seeing you there.

February 10, 2023  In-Person Conference (To Register for the 2/10/2023 In-Person Program Click Here)

Format: In-Person

  • Location: Hilton Sacramento Arden West, 2200 Harvard Street, Sacramento, CA 95815
  • Check-In: 8:30 a.m. – 9:00 a.m.
    • With Continental Breakfast

Registration Fee: $100.00

Program: 9:00 a.m. – 12:00 p.m.

February 24, 2023 Virtual Conference (To Register for the 2/24/2023 Virtual Conference Program Click Here)

Format: 100% virtual event via Zoom

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $50.00

Program: 10:00 a.m. – 12:00 p.m.

Please register early to reserve your spot. Select the links above to see registration details for each option, as they differ. MCLE, APA and AICP CM credits are available.

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

Reserve your seat for our annual in-person and virtual conferences taking place in early 2023.

In February of 2023, Abbott & Kindermann, Inc. will present its 22nd annual in-person, as well as virtual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.

A summary of 2022 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY
  • CLIMATE CHANGE & RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

Details for each of the conference options are below.  We hope you can join us and we look forward to seeing you there.

February 10, 2023  In-Person Conference (To Register for the 2/10/2023 In-Person Program Click Here)

Format: In-Person

  • Location: Hilton Sacramento Arden West, 2200 Harvard Street, Sacramento, CA 95815
  • Check-In: 8:30 a.m. – 9:00 a.m.
    • With Continental Breakfast

Registration Fee: $100.00

Program: 9:00 a.m. – 12:00 p.m.

February 24, 2023 Virtual Conference (To Register for the 2/24/2023 Virtual Conference Program Click Here)

Format:100% virtual event via Zoom

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $50.00

Program: 10:00 a.m. – 12:00 p.m.

Please register early to reserve your spot. Select the links above to see registration details for each option, as they differ. MCLE, APA and AICP CM credits are available.

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

Lafayette v. City of Lafayette (2022) 2022 Cal.App.LEXIS 979

A citizens’ group (Save Lafayette) petitioned for a Writ of Mandate, claiming that the project conflicts with the City’s General Plan as it existed when the project was revived in 2018.  The trial court denied the petition and the appellate court ruled that despite the lengthy delay between the certification of the EIR and the project, the City properly applied the General Plan and Zoning standards in effect when the application was deemed complete.   

O’Brien Land Company, LLC (“O’Brien”) applied in March 2011 for approval of a 315-unit apartment project.   City deemed the application complete on July 5, 2011.  An EIR was prepared for the apartment project and City certified the EIR on August 12, 2013.  However, the City’s Design Review Commission recommended that the Planning Commission deny the application for a land use permit. 

O’Brien and City staff then began to consider a lower-density alternative to the apartment project, consisting of 44 or 45 single-family detached homes.  As part of the discussions, O’Brien and the City entered an “Alternative Process Agreement” on January 22, 2014.   The expressed purpose of the process agreement was to establish a process for considering the project alternative; to “suspend” the apartment project in the meantime; and to “preserve” all of the parties” “rights and defenses . . . with regard to the Apartment Project” until the City made a determination on the project alternative.   After much delay, negotiations, and a referendum to downsize the property that was rejected by the voters, the City Council adopted a zoning ordinance that required lot sizes more than three times larger than those the voters had rejected.    On June 15, 2018, O’Brien notified the City that it was terminating the Alternative Process Agreement, and requesting the City to resume processing the apartment project application. 

Since the property had been rezoned for homes on large lots, was the City required to use the General Plan and zoning that was in place at the time that the application was deemed completed in 2011, or when O’Brien terminated the processing agreement in June 2018?   The appellate court ruled that the Housing Accountability Act (HAA) requires that the City must comply with the objective General Plan, zoning, and subdivision standards and criteria in effect at the time the application was deemed complete. (Government Code section 56589.5, subd (d)(5). 

Finally, the Permit Streamlining Act (PSA) addresses processes for permitting housing and other development projects.   One aspect of the PSA requires that public agencies specify upfront what information an applicant for a development project must supply, and then the agency must review applications for completeness within 30 days of receiving them.  (Government Code section 65940, subd. (a)(1), 65943, subd. (a).)   Upon resubmittal of the application, a new 30-day period begins, during which the City shall determine the completeness of the application.  Whether the application was complete for purposes of the PSA was also relevant under the HAA, which incorporates by reference the PSA’s definition of completed application.  (Government Code section 65589.5 subd (h)(5)).

Save Lafayette argued O’Brien’s request to resume processing must be treated as a resubmittal and the application should be reviewed under the standards in effect on a new “deemed complete” date.  The Appellant Court rejected four arguments by Save Lafayette as to why it was not a resubmittal. 

  • The PSA nowhere states that an application was deemed withdrawn, deemed disapproved, or deemed resubmitted at a later date, if after the agency acts within the PSA’s time limits, the applicant fails to perfect its right to a “deemed approval.”  (Government Code section 65956, subd. (b).) 
  • The Legislature made clear in discussing resubmittals that the PSA refers to applications that were resubmitted after the lead agency made a finding that the application as originally submitted was incomplete. 
  • The PSA expressly addresses disapproval of applications for a development project.  The lead agency must specify reasons for disapproval other than the failure to timely act in accordance with time limits of the PSA. 
  • The HAA was designed to meaningfully and effectively curb the capability of local governments to deny, reduce the density for, or render infeasible housing development projects.  Here the application was complete on the date when the City made that determination in 2011, rather than at some later date after the City had twice down-zoned the project site to allow for much less housing development. 

The City deemed the application complete in 2011, and HAA requires the project be assessed against the 2011 General Plan and zoning standards. 

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

In February of 2023, Abbott & Kindermann, Inc. will present its 22nd annual in-person, as well as virtual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.

A summary of 2022 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY
  • CLIMATE CHANGE & RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

Details for each of the conference options are below.  We hope you can join us and we look forward to seeing you there.

February 10, 2023  In-Person Conference (To Register for the 2/10/2023 In-Person Program Click Here)

Format: In-Person

  • Location: Hilton Sacramento Arden West, 2200 Harvard Street, Sacramento, CA 95815
  • Check-In: 8:30 a.m. – 9:00 a.m.
    • With Continental Breakfast

Registration Fee: $100.00

Program: 9:00 a.m. – 12:00 p.m.

February 24, 2023 Virtual Conference (To Register for the 2/24/2023 Virtual Conference Program Click Here)

Format: 100% virtual event via Zoom

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $50.00

Program: 10:00 a.m. – 12:00 p.m.

Please register early to reserve your spot. Select the links above to see registration details for each option, as they differ. MCLE, APA and AICP CM credits are available.

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