September 2008

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.

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

By William W. Abbott

A byproduct of modern planning is the proliferation of property owner associations, mostly centered on residential developments. At the time of formation however, associations are subject to minimal oversight by the State of California, and then only for residential development projects subject to review by the Department of Real Estate. One of the challenges facing associations is continued active participation by the owners in association matters. For associations facing apathetic owners, it may be difficult to obtain the necessary level of votes to take actions on behalf of the association, and in situations in which association documents require a super-majority vote to pass resolutions for certain actions, a stalemate may readily occur.   In 1985, the legislature, recognizing the important role that associations play, enacted statutory provisions which allowed interested parties to file a court action to reduce the required voting percentage in compelling circumstances (Civ. Code § 1356). The recent case of Mission Shores Association v. Pheil (September 5, 2008) 2008 Cal.App.Lexis 1395 illustrates how this works in real life.

Continue Reading Appellate Court Grants Request to Reduce Super Majority Vote Requirement Codified in Subdivision CC&Rs

By William W. Abbott

In response to low production of affordable housing units, the City of Santa Monica adopted new and amended ordinances to increase the supply of affordable housing in June, 2006. These enactments were challenged by a coalition of multifamily residential developers on multiple grounds, with two issues going to the Court of Appeals: do the holdings of Nollan and Dolan apply to the ordinance enactment (as compared to the application of an ordinance to a given individual), and were the enactments subject to approval by the Department of Housing and Community Development (“HCD”) pursuant to its review powers of Housing Elements? As to both issues, the appellate court ruled in the negative. Action Apartment Association v. City of Santa Monica (August 28, 2008) 2008 Cal.App.Lexis 1372.

Continue Reading Applicability of Nollan and Dolan to Facial Challenges to Inclusionary Housing Ordinances

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”).

Continue Reading Guidelines Adopted Subsequent to Williamson Act Contract Are Enforceable

By Rob Hofmann

This mid-summer review of real estate cases covers three interesting matters of potentially broad application. The first case Goldstein v. Barak Construction, deals with the precarious position of unlicensed contractors. The second, Lange v. Schilling, reinforces the significance of the mandatory medication provision of the standard CAR purchase agreement. Finally, Steiner v. Thexton, wrestles with the penultimate flexible purchase agreement, and how a buyer may lose the deal absent adequate consideration.


Rob Hofmann is an associate with Abbott & Kindermann, LLP, and is a member of the City of Davis Planning Commission, and a member of the San Joaquin Valley Air Pollution Control District Hearing Board.  For questions relating to this article or any other California land use, environmental and 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.

By Cori Badgley

In Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783, Konstantine and Alexandra Skoumbas claimed that damage caused by a storm drain, a portion of which was owned by the City of Orinda (“City”), amounted to a physical taking of their property. Agreeing with the City, the trial court granted the City’s motion for summary judgment on the grounds that a taking could not have occurred where the City did not own the entire storm drain. The Court of Appeal, First Appellate District reversed the trial court’s ruling and held that the fact that the City only owned a portion of the storm drain did not preclude the conclusion that a physical taking occurred. Instead, the court ruled the question is “whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own.”

Continue Reading Full Ownership by Public Agency of Drainage Improvement Not Needed to Prove Physical Taking