Reserve your seat for our annual conference taking place in March of 2024 for our In-Person and Virtual Conferences.

On March 14, 2024, Abbott & Kindermann, Inc. will present its 23rd annual In-Person Conference. March 28th or 29th, 2024 Abbott & Kindermann, Inc. will present its 23rd annual Virtual Conferences. All Conferences are 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 2023 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

Abbott & Kindermann, Inc. will present its annual program virtually and in-person with a mix of conveniently available pre-recorded content and a live session component. 

Registration Information:

  • Registration fee is $110.00 for In-Person Conference
    • Location of In-Person Conference: Hilton Sacramento Arden West
  • Registration fee is $55.00 for Virtual Events
  • Register for the date of the In-Person and Virtual Event you would like to attend by clicking the following links:

Please register early to reserve your spot. MCLE and AICP CM credits are available. We hope you can join us and we look forward to engaging with you soon.

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

In Discovery Builders, Inc. v. City of Oakland (2023) 92 Cal.App.5th 799, the First District Court of Appeal held an agreement between a developer and the City of Oakland was unenforceable to the extent it prevented the city from imposing new impact fees in the future. The court reasoned such a provision constituted an impermissible contracting away of the city’s police power.

Between 2004 and 2005, the city approved a vesting tentative map and final tract maps for a 400-unit housing project. The city’s approval required that the developer satisfy various terms and mitigate various environmental impacts. In 2005, the city and developer entered into a separate agreement (“2005 Agreement”), which set the terms by which the developer would compensate the city for employee services and outside consultants required to satisfy the agreed-upon terms and mitigation requirements. Development of the project began soon thereafter.

In 2016, as development was continuing, the city enacted three new impact fees for development projects —an affordable housing impact fee, a transportation impact fee, and a capital improvements impact fee. In 2019, the developer filed for the last round of building permits for the project. The city assessed all three new fees against each of three requested building permits. The developer filed a petition for writ of mandate against the city, which the trial court granted. The trial court relied on Section 7 of the 2005 Agreement, which stated that the “City Fees and other monies paid and to be paid by Developer which are referred to in [the] Agreement satisfy all the Developer’s obligations for fees to the city for the Project.” The trial court held this provision reflected the city’s agreement to limit the fees applied to the project to only those identified in the 2005 Agreement and ordered the fees refunded.

The appellate court reversed the trial court’s decision. Relying on Avco Community Developers Inc. v. South Coast Regional Committee (1976) 178 Cal.3d 785, and its progeny, the court held the 2005 Agreement was invalid to the extent it prevented the city from imposing impact fees in the future, reasoning that municipalities may not contract away their usage of the police power in the future. Because the city rightfully exercised its police power in enacting the 2016 fees, any provision of the 2005 Agreement that sought to limit such a rightful usage of the city’s police power was impermissible.

The developer argued the city did not contract away its police power in the 2005 Agreement because the agreement did not impact the city’s ability to legislate, suggesting, in the words of the court, that “a city’s police power is concerned only with the power to enact laws, not the power to enforce laws.” The court disagreed, citing article XI section 7 of the California Constitution, which states that the city may “make and enforce” ordinances and regulations related to the police power. The developer also argued the city did not contract away its police power in the 2005 Agreement because the agreement did not interfere with the city’s ability to make and enforce future zoning laws on other developers. The court disagreed, citing precedent that invalidated agreements exempting a small subset of parties from laws and ordinances.

Commentary: What is interesting in Discovery Builders is the omission of any discussion of development agreements. California’s development agreement law allows developers to secure a customized vested right through the freedom of contract. (Gov. Code, § 65864-65869.5.) Development agreements can lock in laws, regulations, and fees in existence at the time of execution. Development agreements are only valid to the extent they satisfy numerous requirements created by statute. The development agreement law is best thought of as a rare exception to the ban on municipalities limiting their police power in the future. Here, an effective development agreement could have plausibly helped the developer avoid the end-stage fee increases present in this case. Other courts when faced with similar vesting arguments associated with an agreement have discussed statutory developments as the recognized exception to the Avco rule. While this court was not required to discuss statutory development agreements, the court’s silence should not be treated as a rejection of statutory development agreements as a tool.

William Abbott is Of Counsel and Garrett Bergthold is a Law Clerk 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 conference taking place in March of 2024 for our in-person and virtual conferences.

On March 14, 2024, Abbott & Kindermann, Inc. will present its 23rd annual In-Person Conference. March 28-29, 2024 Abbott & Kindermann, Inc. will present its 23rd annual Virtual Conferences. All Conferences are 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 2023 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 the In-Person and Virtual Conferences will come out shortly.  We hope you can join us and we look forward to seeing you there.

In Durkin v. City and County of San Francisco (2023) 90 Cal.App.5th 643, San Francisco’s typical arduous land use approval process sets the foundation for an anti-SLAAP case with interesting ramifications for neighborly disputes.  A homeowner (“Appellant”) sought to remodel and expand a single-family home.  The Planning Department determined the project was categorically exempt from CEQA.  Neighbors appealed Planning’s determination to the Board of Supervisors (“Board”), which conditionally reversed the exemption determination, finding there was substantial evidence that the project may result in substantial adverse impacts to the historic significance of the neighboring property, which had not been adequately addressed by Planning.  Appellant submitted another application and Planning issued another categorical exemption, though Planning later revised itself and rescinded the categorical exemption.  Appellant appealed to the Board, which refused to hear the appeal.  

The City then prepared a preliminary mitigated negative declaration (“MND”) addressing the adjacent historic resources. The neighbor whose property had been the subject of the purported historic resource impacts (“Affected Neighbor”) appealed the preliminary MND.  The Planning Commission denied the appeal and adopted a final MND.  Affected Neighbor appealed to the Board, which reversed the Planning Commission’s adoption of the final MND.  The Board directed Planning to conduct further study on slope stability and potential impacts to the structural integrity of Affected Neighbors property and to analyze and apply appropriate mitigation measures.

Appellant Seeks Judicial Reprieve

At that point, Appellant had enough and filed a petition for writ of mandate against San Francisco.  The petition named Affected Neighbor as a real party in interest.  Affected Neighbor then filed an anti-SLAPP motion, contending the petition arose from his protected activity of appealing the final MND to the Board and Appellant lacked minimal merit because the Board’s decision was supported by substantial evidence.  The trial court granted the anti-SLAAP motion and awarded Affected Neighbor $219,269.25 in total fees.

The Dispute Did Not Arise from Affected Neighbor’s Protected Activity

Resolution of an anti-SLAAP motion requires two inquiries: (1) the moving defendant must make a prima facie showing that the challenged claim arises from the defendant’s constitutionally protected free speech or petition rights, and, given defendant meets its burden, (2) the burden shifts to the plaintiff to establish a probability of success on the claim.  (Baral v. Schnitt (2016) 1 Cal.5th 376, 381-382, 384.)   The anti-SLAAP law protects “allegations of protected activity that are asserted as grounds for relief.”  (Id. at p. 395, italics omitted.)  Thus, the relevant inquiry is whether the moving defendant’s conduct “forms the basis for the claim” at issue.  (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) 

Here, the First Appellate District for the Court of Appeal recognized that Affected Neighbor’s relevant conduct—appealing the final MND to the Board—is petitioning activity that is generally protected under the anti-SLAAP law.  But in answering whether such conduct formed the basis of, or arose from, the causes of action at issue, the court answered no.  The court held it was various acts or omissions by the Board, not Affected Neighbor, that formed the basis of the dispute.  There were two cases of action for mandamus in the petition, which were based on the following facts:  the board failed to make factual findings in support of its decision to reverse the final mitigated negative declaration, the board’s decision was not supported by substantial evidence, and the board held more than five hearings on the project in violation of the Housing Crisis Act of 2019.  These, the court reasoned, were acts or omissions of the Board, not Affected Neighbor.  Affected Neighbor was not a defendant, he was a real party in interest, and the court held it was irrelevant that Affected Neighbor’s petitioning activity triggered the Board’s actions that formed the basis of the petition. Thus, the court held Affected Neighbor as the moving party failed to make a prima facie showing that the challenged claim arose from the defendant’s constitutionally protected free speech or petition rights and was entitled to relief under the anti-SLAAP law.

The Anti-SLAAP Motion Was Not Frivolous

Appellant contended the anti-SLAAP motion was frivolous and sanctionable.  A frivolous anti-SLAAP motion can be aimed at causing unnecessary delay or harassing a party.  Frivolous in the context of an anti-SLAAP motion “means that any reasonable attorney would agree the motion was totally devoid of merit.”  (L.A. Taxi Cooperative, Inc. v. The Independent Taxi Owners Assn. of Los Angeles (2015) 239 Cal.App.4th 918, 932.)  The court recognized the Appellants provided no evidence that the anti-SLAAP motion was filed to harass and delay.  The court held the motion was not frivolous, and thus, not sanctionable.

William Abbott is Of Counsel and Garrett Bergthold is a Law Clerk 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.

The Claremont Canyon Conservancy v. Regents of the University of California (2023) 92 Cal.App.5th 474.

The Regents certified an EIR for a project aimed at reducing wildfire risk at UC Berkeley’s Hill Campus, located in the East Bay Hills.  Environmental organizations filed suit, contending, relevant here, that the EIR included an inadequate project description.  The groups generally contended that the EIR should have detailed the precise quantity of trees to be removed.  The trial court sided with the groups, concluding the project description was “uncertain and ambiguous.”  The First District Court of Appeal reversed, holding that the project description included sufficient information to allow the public to understand the project’s environmental impacts. 

CEQA Guidelines § 15124 requires that a project description include: the precise location and boundaries of the proposed project on a detailed map; a general description of the proposed project’s objectives, including the project’s underlying purpose; a general description of the project’s technical, economic, and environmental characteristics; and a brief description of the EIR’s intended uses.  The First District held the project description satisfied Guidelines § 15124 in that the EIR included: a sufficiently detailed map, a sufficient description of the project’s objectives, which stated the project’s underlying purpose as “reduc[ing] the amount and continuity of vegetation that increases wildland fire hazards, including highly flammable invasive plant species” while explaining why vegetation removal was required in the included areas; provided sufficient descriptions of the vegetation found in each project area, while listing “objective removal criteria” and a summary of “the methods used to remove vegetation;” and included a sufficient description of the EIR’s intended uses.

Moreover, regarding the groups’ displeasure with the EIR not specifying the exact number of trees that would be removed during the project, the court concluded the “princi8ples of density thing and objective criteria listed” in the EIR was sufficient.  Guidelines § 15124 states that project descriptions “should not supply extensive detail beyond that needed for evaluation and review of the environmental impact.”  Here, the appellate court concluded that the EIR included a stable project description along with a sufficient level of detail.  The EIR included a description of the iterative decision-making process to be employed in the field by arborists and professional foresters.  The site-specific evaluation would take into consideration site-specific issues such as fuel mix, density terrain, tree height, and canopy cover.  Given the potential for vegetation changes between EIR certification and project implementation, the appellate court agreed with the Regents that it was not feasible to do more at the time of EIR certification, as EIRs do not require “technical perfection,” “scientific certainty,” and “exhaustive analysis,” but rather, require only “adequacy, completeness and a good-faith effort at full disclosure.”

Also relevant is the court’s apparent endorsement of the Regents’ usage of fire models to predict fire behavior on the Hill Campus.  “The modeling considered factors including flame length, rate of spread, crown fire activity, and maximum spotting distance, along with the vegetation in a particular location—e.g., oak-bay woodland, eucalyptus forest, and coniferous forest. The EIR contains figures showing vegetation and fuel distribution in the project areas and the predicted crown fire activity under certain weather conditions.”  In its recently released guidance concerning best practices for wildfire risk mitigation under CEQA, the state Attorney General ‘s office recommended the use of fire modeling in quantifying wildfire risk, stating models should include a variety of plausible scenarios.

Bill Abbott is Of 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.

(United Neighborhoods for Los Angeles v. City of Los Angeles (2023) 93 Cal.App.5th 1074)

CEQA’s infill exemption (Guidelines section 15332) is a very useful tool in the toolbox for streamlining CEQA review.  This Guideline applies in cities and can be applied to sites up to five acres in size if substantially surrounded by urban development.  (Note to the California Legislature: if you are serious about CEQA reform, do something useful such as expanding this provision to include counties and increase the maximum acreage limitation.)  The use of this provision requires, among other provisions, consistency with “the applicable general plan designation and all applicable general plan policies as well as the applicable zoning designation and regulations.”

As noted in United Neighborhoods for Los Angeles v. City of Los Angeles (2023) 93 Cal.App.5th 1074, 1097, “all applicable general plan policies” doesn’t mean consistency with just some policies.  At issue in United Neighborhoods was a teardown of existing rent-stabilized units replaced by a hotel project.  The use of the infill exemption was approved by the City but later appealed.  Both the trial court and the Court of Appeal agreed with project opponents that the City’s consideration of “applicable” policies was too narrow, and as a consequence, substantial evidence did not support the City’s use of a CEQA exemption.

The problem faced by the City, and this would be true under many local housing elements, is that it is common to have broadly drafted goals and policies.  While broadly stated goals and policies may allow for flexibility for consistency determinations under general plan law (Sequoyah Hills Homeowners Association vs City of Oakland (1993) 23 Cal.App.4th 704), that same flexibility in balancing competing policies does not extend to CEQA.  This impacted the City’s defenses.  The City argued that the hotel project was not a “housing” project, so policies regarding affordable housing did not apply.  But the appellate court concluded that there was nothing in the general plan which carved out existing housing stock from the goals for adequate housing.  The City also argued that it could engage in balancing, but the appellate court rejected that argument based upon the reference to “all applicable” in the Guidelines.  Finally, the City argued that a reviewing court was required to give deference to the City in interpreting its own general plan goals and policies.  The appellate court agreed with this in principle, however, the same deference did not apply to the determination of what goals and policies were required to be considered.

Bill Abbott is Of 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.

(Anderson v. County of Santa Barbara (2023) 94 Cal.App.5th 554.)

It is not unusual in the non-urban parts of California for a property owner to install landscaping within a county right-of-way without ever securing an encroachment permit.  In Santa Barbara County, like many jurisdictions, installing these improvements without County approval can be treated as a misdemeanor.  Such work can also violate the Streets and Highways Code.

Following the County road commissioner’s attempts to compel removal of unpermitted landscaping to restore street parking, the affected property owners sued and obtained a preliminary injunction from the trial court against the County, preventing the County from enforcing removal pending a trial on the merits.  The issue in this reported decision was the appropriateness of that preliminary injunction.  The appellate court reversed the trial court as to the grant of the preliminary injunction.

The appellate court addressed several important issues for city and county officials facing other enforcement scenarios. As a threshold issue, the court determined that CEQA should not be used to frustrate criminal law enforcement.  This blog focuses on the intersection of CEQA with the County enforcement efforts.  The owners challenged the lack of a CEQA document, and the County argued that multiple separate CEQA exemptions applied.  The property owners countered, arguing that the efforts to increase street parking was part of a larger project, or alternatively, that the “unusual circumstances” limitation excluded the use of exemptions.

The owners asserted that there was a larger connected project (increased trail hiking) which had never been studied. But the court concluded that the County’s project was to restore parking that had previously existed, and this project had independent utility and thus could be studied on its own.  As to exemptions, the County argued that the activity was subject to three alternative exemptions: 15301, maintenance of existing facilities; 15304, minor alterations to land; and 15321, enforcement actions by regulatory agencies.  After determining that the enforcement action had independent utility and thus was not part of a larger project, the appellate court rejected the argument that there was piecemealing and the enforcement action fit within the exemptions.  The appellate court then rejected the owners’ argument that there were unusual circumstances which operated to preclude the use of exemptions. Applying Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, the appellate court then concluded that the evidence of the road, along with its relationship to sensitive environmental lands, was not unusual compared to other nearby roads and habitat lands, and upon that basis, it reversed the trial court’s contrary finding.

When all factors were considered, the appellate court concluded that as a matter of law, a preliminary injunction against enforcement should not have been granted.  After trial, the lower court ruled in favor of the owners, but that is unlikely given the thoughtful analysis by the court of appeal.  

Bill Abbott is Of 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.

(Martinez v. City of Clovis (2023) 90 Cal.App.5th 193)

The California Court of Appeal, Fifth Appellate District affirmed the trial court’s ruling that City of Clovis (the “City”) did not substantially comply with the Housing Element Law (“Housing Element Law”).[1]  In order to come into compliance with the Housing Element statute, the City implemented two changes to its Municipal Code designed to accommodate greater affordable housing development.  To do so, the City amended the General Plan to allow for multi-family housing in the Public Facilities Zone (“P-F Zone”) and adopted a corresponding zoning ordinance to (a) provide for multi-family housing as a permitted use in P-F Zone and (b) add a new overlay zone district for Regional Housing Needs Allocation (“RHNA”), known as the RHN Overlay, which provided by-right approval for lower income housing in all vacant, residentially zoned property between one and 10 acres within the City limits.  Since the City had a shortfall for the current planning period—the carryover from the prior planning period—the Housing Element Law imposes a minimum density requirement to rezone sites to accommodate the shortfall of affordable housing units.  However, since the City’s overlay designation did not change the base zoning, it allowed for development to continue to occur at a density lower than the statutory minimum. Therefore, the court held the RHN Overlay sites do not comply with Housing Element Law, because it does not guarantee compliance with the mandatory statutory minimum.  In a nutshell, putting an overlay zone on the properties does not require that any of the sites be developed at the higher densities required for affordable housing units. 

City History of Housing Element Compliance

The two RHNAs that are relevant to this case are the RHNA adopted by the Fresno Council of Governments (“COG”) for the 2006 through 2013 years (the fourth revision cycle for the City’s Housing Element) and the RHNA for the January 1, 2013, to December 31, 2023, period (the fifth revision cycle).  The fifth cycle was adopted by COG on July 31, 2014, and set forth the RHNA for Clovis and all other jurisdictions in Fresno County.  Sometime in 2016, Clovis adopted the “Fresno Multijurisdictional 2015-2023 Housing Element” (2015-2023 Housing Element).  It stated that Clovis’s fifth cycle RHNA totaled 6,328 housing units, which consisted of 1,160 extremely low-income units, 1,161 very low-income units, 1,145 low-income units, 1,018 moderate income units, and 1,844 above moderate-income units.  The fifth cycle also addressed Clovis’s fourth cycle RHNA and the number of unaccommodated housing units that carried over to the fifth planning period.  The City’s fourth cycle RHNA had a total of 15,383, including 1,637 extremely low-income units, 1,638 very low-income units, and 2,354 low-income units (i.e. a total of 5,625 lower income units.  Clovis met its fourth cycle RHNA for moderate and above moderate-income units.  In contrast, Clovis failed to accommodate 4,425 units of its lower income housing RHNA of 5,629 units. 

The shortfall during the fourth cycle was caused by the City rezoning a substantial amount of land at densities that could accommodate 4,614 lower income units, but only 717 units on sites zoned R-4 met the statutory requirements for adequate sites.  For sites to satisfy the lower-income RHNA during the carryover period, they must meet the following statutory requirements:

  • Must be rezoned within the first year of the next cycle following shortfall; and
  • Must be rezoned to permit owner-occupied and rental multi-family housing by right without discretionary review of the use or density; and
  • Must be zoned with a minimum density of 20 units per acre and be large enough to accommodate at 16 units per site (Government Code § 65583.2(h)); and
  • Additionally, at least 50 percent of the low income RHNA carryover must be allowed on sites designated for exclusively residential uses. 

After going back and forth with the California Department of Housing and Community Development (“HCD”), in 2019, HCD finally deemed the City in compliance with the Housing Element Law.

Plaintiff’s Contentions

Plaintiff Martinez sought a writ of mandate for violation of the Housing Element Law challenging  (1) the adequacy of the City’s amended housing element; (2) the City’s failure to comply with the requirement to rezone to accommodate the RHNA carryover within the first year of the fifth planning period; and (3) the City’s failure to implement Program 4, the action plan the City promised HCD would cure the shortfall in lower income housing.  The trial court granted the writ of mandate for the three causes of action and directed the City to file a return within 150 days stating how it had complied with the writ.  The City appealed.  The appellate court affirmed the trial court order as to the 1st and 3rd causes of action and reversed as the 2nd cause of action because it held, unlike the trial court, that the City was not required to provide an analysis of the feasibility of development in the rezoned areas.   

Program 4 and the RHN Overlay

Program 4 in the 2015-2023 housing element stated Clovis would rezone to accommodate its fourth cycle RHNA shortfall of 4,425 lower income units by December 31, 2016.  However, the City never demonstrated implementation of the program and instead offered only an anticipated schedule for program implementation.  Clovis ultimately failed to meet its deadline in December 2016 and HCD subsequently revoked its finding that the City’s Housing Element substantially complied with state law.  In November 2018, Clovis again attempted to bring the Housing Element into compliance by adopting the RHN Overlay to provide by-right approval for multi-family housing at a density of 35 to 43 units per acre on any residentially zoned sites with a minimum of 1 acre and a maximum of 10 acres.  However, the base zoning in existence when the overlay was enacted still applied to the RHN Overlay sites. That base zoning permitted development at densities below 20 units per acre on all except one of the sites, and some densities were as low as 0.5 units per acres, far below the statutory minimum for carryover Housing Element zoning.

The Court of Appeal determined the statutory standard Clovis failed to meet was a mandatory minimum.  This means that the City is required to not only adopt zoning regulations that accommodate high-density multi-family housing, but also enforce the exclusivity of those zones for that purpose.  The City’s responsibility is not simply to refrain from housing discrimination, but rather, it is obligated to “affirmatively further fair housing.”  The Court concluded that the City could not satisfy its Housing Element duties by borrowing from existing zoned sites and merely expanding their usage; rather, it was required to rezone those sites entirely.  Consistent with this determination, the Court of Appeals also held that HCD was “clearly erroneous” when it approved the RHN Overlay as compliant with the Housing Element Law in 2019.

Feasibility Analysis

However, the court also pushed back against the plaintiff’s contentions that when designating Housing Element zones for nonvacant sites, the City is required to conduct an analysis of the feasibility of development on those sites, including publishing its methodology and including its findings in the Housing Element itself.  The court agreed with the Clovis that, although “the goal [of the Housing Element Law] is not just to identify land, but to pinpoint sites that are adequate and realistically available for residential development targets for each income level,” the City was not required to carry out an analysis that is not required by the Legislature by statute. 

Conclusion

The key takeaway from this case is that to comply with the Housing Element Law and the affirmative duty to further fair housing, many local governments will need to designate exclusive income-based housing sites rather than layering them upon existing zones.  However, the State’s emphasis with local governments remains centered on local land use control.  Local governments are still not required to build, finance, or otherwise contribute public funds to construct lower income housing.


[1]   Further references to the “Housing Element” are to sections 65580 through 56689.11, which constitute article 10.6 of Chapter 3 of Division 1 of Title 7 of the Government Code. 

Kara Anderson is a law clerk 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.

Cal. Restaurant Ass’n v. City of Berkeley (2023) 65 F.4th 1045.

In the continued effort by cities to require all-electric infrastructure in new buildings, the City of Berkeley (“Berkeley”) adopted an ordinance that prohibited, with some exceptions, natural gas infrastructure in newly constructed buildings (“Ordinance”).  Congress adopted the Energy Policy and Conservation Act (“EPCA”), 42 U.S. 6297(c)), which expressly preempts state and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens.  The Ninth Circuit Court of Appeals (“9th Circuit”) concluded that Berkeley is preempted from prohibiting natural gas piping because Berkeley is barred from banning natural gas appliances. As denying gas piping will render any natural gas appliances useless to the homeowner or commercial user, the 9th Circuit held the EPCA preempts the Ordinance.

Scope of EPCA Preemption

EPCA preempts regulations that relate to “the quality of natural gas directly consumed by certain consumer appliances at the place where those products are used.”  EPCA concerns the end-user’s ability to use installed covered products at their intended final destinations.  A regulation that prohibits consumers from using appliances impacts the “quality of energy directly consumed by the appliances at the point of use.  So, in plain language, EPCA preempts the Ordinance because the Ordinance prohibits the installation of necessary natural gas infrastructure on premises where covered natural gas appliances are used. 

The court reinforced this interpretation of the EPCA’s scope by emphasizing that a regulation need not be written directly against the products covered under the EPCA; instead, the statute protects against regulations that “concern” such products.  Therefore, given the broadness of the term “concerns,” the court explained that local governments have less authority to regulate products under the EPCA as the statute’s terms grant widespread control over those regulations to the federal government.

Berkeley’s Contentions

Berkeley contended that its Ordinance does not regulate “energy use” because it bans natural gas rather than prescribing an affirmative “quality of energy.”  While Berkeley agreed that a prohibition on natural gas infrastructure reduces energy consumption to zero, Berkeley argued that “zero” is not a “quantity.” Thus, the Ordinance is not an “energy use” regulation.  The 9th Circuit quickly dispensed with this argument, determining it is well accepted in ordinary usage that “zero” is a “quantity.”

Berkeley’s second, equally unpersuasive argument is that EPCA’s definition of energy efficiency precludes a total prohibition on natural gas piping from being an “energy use” regulation.  EPCA defines “energy efficiency” as the “ratio of the useful output of services to the energy use of the product.  (Section 6291(5).)  According to Berkeley, “zero” cannot serve as the “quantity of energy” in “energy use;” otherwise the energy efficiency ratio would have an impermissible “zero” denominator.  But in that case, both the denominator (“energy use”) and the numerator (“output”) would be zero, which yields an indeterminate result.  The 9th Circuit doubted Congress meant to hide an exemption to the plain text of EPCA’s preemption clause in a mathematical equation.  Thus, a regulation that imposes a total ban on natural gas is not exempt from EPCA because it lowers the “quantity of energy” consumed to “zero.” 

Conclusion

In sum, Berkeley cannot bypass the preemption by banning natural gas piping within buildings rather than banning natural gas products themselves.  With several cities and counties adopting and considering similar ordinances or policies in their Climate Act Plans or through their building codes, it is essential to evaluate if the prohibitions or restrictions are preempted by the EPCA or other legislation adopted by Congress or California.  It is also vital to assess prospective policies beyond their direct implications, as the court has decided that EPCA’s preemption extends past facial regulations.   Furthermore, this is consistent with the recent California Supreme Court case holding that Monterey County’s Measure Z banning the injection of oil and gas wastewater on all lands within Monterey County is preempted by Public Resources Code section 3106.  Thus, while cities and counties have broad zoning powers, the local legislation cannot conflict with federal or state law.   (Chevron U.S.A. Inc, v. County of Monterey (2023) S271869.) 

Patrick Enright is Senior Counsel and Kara Anderson is a law clerk 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.

Chevron U.S.A. Inc. v. County of Monterey

California’s oil and gas operations are governed by Division 3 of the Public Resources Code (§ 3000 et seq.) and its implementing regulations (Cal. Code Regs., tit. 14, § 1712 et seq.).  Division 3 addresses various aspects of oil and gas exploration and extraction, including notices of intent to drill and abandon (§§ 3203, 3229), blowout prevention (§ 3219), repairs (§3225), protection of water supplies (§§ 3222, 3228), and well spacing (§§ 3200-3609).  The implementing regulations, in turn, address the process for oil producers and well operators to obtain state approval of “drilling, reworking, injection, plugging, or plugging and abandonment operations” (Cal. Code regs., tit.14, § 1714) and provide instructions and timelines for filing well and safety records with CalGEM. (Id. at § 1724.1.)  The regulations are “statewide in application for onshore drilling, production, and injection operations,” and all onshore prospect, development, and service wells shall be drilled and operated in accordance with them.  (Id. at § 1712.)

Public Resources Code subdivisions 3106(a) and (b) provide:

“The [state oil and gas] supervisor shall so supervise the drilling, operation, maintenance, and abandonment of wells and the operation, maintenance, and removal or abandonment of tanks and facilities attendant to oil and gas prevention . . . [the supervisor] shall supervise the drilling, operation, maintenance, and abandonment of wells so as to permit the owners or operators of the wells to utilize all methods and practices known to the oil industry for the purpose of increasing the ultimate recovery of underground hydrocarbons and which, in the opinion of the supervisor, are suitable for this purpose in each proposed case. . . .   it is hereby declared as a policy of this state that the grant in an oil and gas lease or contract to a lessee or operator of the right or power, in substance, to explore for and remove all hydrocarbons form any lands in the state, in the absence of an express provision to the contrary contained in the lease or contract, is deemed to allow the lessee or contractor, or the lessee’s or contractor’s successors or assigns, to do what a prudent operator using reasonable diligence would do . . . including, but not limited to, the injection of air, gas, water, or other fluids into the productive strata . . .  when these methods or processes employed have been approved by the supervisor, except that nothing contained in this section imposes a legal duty upon the lessee or contractor, or the lessee’s or contractor’s successors or assigns, to conduct these operations.”

Thus, the statute directs the supervisor to administer the state’s regulations in a way that serves the dual purpose of ensuring the state has adequate oil and gas resources while protecting the environment.

Monterey County’s Measure Z

In 2016, Protect Monterey County (“PMC”) sponsored, and Monterey County (“County”) votes passed Measure Z.  This ordinance bans oil and gas wastewater injection and impoundment and the drilling of new oil and gas wells throughout the unincorporated areas of the County.[1]  What is labeled as LU-1.22 of the Measure provides,

“Prohibited Land Uses:  The development, construction, installation, or use of any facility, appurtenance, or above-ground equipment, whether temporary or permanent, mobile or fixed, accessory or principal, in support of oil and gas wastewater injection or oil and gas wastewater impoundment, is prohibited on all lands within the County’s unincorporated area.” 

LU-1.23 provided:

“Prohibited Land Uses: The drilling of new oil and gas wells is prohibited on all lands within the County’s unincorporated area.”

County’s Zoning Powers; Preemption

The Supreme Court initially discussed the County’s powers under Article XI, section 7 of the California Constitution which provides that a “county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”  If a local legislation conflicts with state law, it is preempted by the state law and is void.  (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897; quoting Candid Enterprises, Inc v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885.)  The Supreme Court has identified three ways in which a preempting conflict may arise: if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.  (Sherwin-Wiliams, supra, 4 Cal.4th at 897.)  A contradiction occurs when a local ordinance “prohibits what [a] state enactment demands.” (Quoting City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729, 743.)

Here, the Court found Measure Z contradicted the statute under section 3106.  Whereas the state’s provision assigned the authority to regulate oil and gas production methods to the state supervisor, Measure Z reallocated that authority to the County.  The Measure, in explicitly banning certain methods of production, acted contrary to the state supervisor who has the statutory authority and obligation to regulate.  Thus, the Measure was preempted by 3106.  The Supreme Court was unconvinced by the appellant’s argument that a local regulation prohibiting an activity is not preempted by a statute that authorizes a state authority to permit, rather than demand, that activity.  The Court clarified that local prohibition of an activity for which permission is regulated by the state is necessarily preempted.  (Citing Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 293.)

However, the Court also reinforced that nothing in this opinion diminishes local governments’ authority to regulate where oil and gas may be produced within their localities.  It expressed the narrowness of this holding by explaining that local regulations requiring permits for oil drilling operations or restricting oil drilling operations to particular zoning districts remain valid.

Conclusion

In sum, Monterey County cannot assert a local ordinance under Measure Z that contradicts Public Resources Code section 3106 because the latter preempts the former.  This is consistent with the recent Ninth Circuit decision holding that the City of Berkeley is preempted from implementing a local ban on natural gas piping because, under the Energy Policy and Conservation Act, local governments cannot ban natural gas products.  (Cal. Restaurant Ass’n v. City of Berkeley (2023) 65 F.4th 1045.)  Thus, while cities and counties have broad zoning powers, local legislation cannot conflict with state or federal law.


[1]   The Measure also banned fracking, but the Court determine no petitioner was using or proposing to sue the fracking process banned in Measure Z.  Thus, the Court did not have address the fracking provisions of Measure Z. 

Patrick Enright is Senior Counsel and Kara Anderson is a law clerk 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.