April 2011

By Katherine J. Hart

In Coronado Cays Homeowners Association v. City of Coronado (2011) ___ Cal. App.4th ___, the City of Coronado (“City”) appealed a trial court’s grant of declaratory relief to the Coronado Cays Homeowners Association (“Association”) regarding the question of whether the City or the Association was required to maintain a berm[1] in the Coronado Cays subdivision canal pursuant to the terms of a special use permit granted in 1968 and a parcel map. In upholding the trial court’s determination, the Court of Appeal, Fourth Appellate District, held that the subdivision map was not ambiguous as to the term “ancillary structures” and that the berm in question did not constitute an “ancillary structure.” Thus, the City, not the Association, was required to maintain the berm.

Continue Reading Map Didn’t Constitute Admissible Parol Evidence; Berm Maintenance Requirement Falls on the City

By Cori Badgley

After the Medical Marijuana Program Act was adopted by the legislature in 2003, medical marijuana dispensaries began cropping up throughout counties and cities that had no existing zoning or permit scheme in place for such establishments. In reaction to these dispensaries and the Act, many counties and cities began the process of establishing medical marijuana dispensary ordinances. One such county is the County of Los Angeles. Based on its ordinance, the County of Los Angeles brought a nuisance action in superior court against a dispensary, the Alternative Medicinal Collective of Covina, and the dispensaries owner/operator, Martin Hill. The trial court granted a preliminary injunction against the dispensary, and the dispensary appealed in County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861.

Continue Reading Medical Marijuana Dispensaries 0 for 3 Against Local Government

By Cori Badgley

After a challenge based on the density bonus law and the California Environmental Quality Act (CEQA), a mixed-use affordable housing or senior affordable housing project (depending on what the developer chooses) in the City of Berkeley can move forward. In Wollmer v. City of Berkeley (March 30, 2011, Case No. A128121), the court held that the city properly applied density bonuses to the project and the categorical infill exemption under CEQA.

Continue Reading The Normal Rules Don’t Apply When it Comes to Affordable Housing Projects

By Leslie Z. Walker

The First Amendment Free Speech clause states, “Congress . . . shall make no law . . . abridging the freedom of speech.” The political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military and scandals involving the Catholic clergy, are matters of public import meriting the protection of the Free Speech Clause. In Snyder v. Phelps (2011) 562 U.S. ____ 131 S. Ct. 1207, the Supreme Court found that members of Westboro Baptist Church picketing the funeral of a soldier killed in Iraq were entitled to special protection under the First Amendment because the picketing was done at a public place on a matter of public concern.

Continue Reading If You Don’t Like What You See, Don’t Look

By Katherine J. Hart

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

Continue Reading Exemption to APAs Promolgation Rule was Inapplicable

By William W. Abbott

City officials in Playa Del Toro, an upscale enclave in Southern California, recently adopted an ordinance regulating dog use of the public beach. Unlike other cities, it wasn’t a case of banning dogs from the beach, but restricting access to the right kind of dogs: purebreds. The San Diego Union quoted Mayor S. Black as saying: "our residents invest a lot in their dogs. The community wants the off-leash experience for their dogs to be similar to what the dog’s owners enjoy as they interact in our award winning downtown." Warily observing a mixed breed border collie running out of control on the beach, the mayor went on to say; "we won’t have to deal with that sort of behavior any longer". The mayor emphasized that city beach staff had received special training in recognizing purebreds, and at first, would only be handing out citations. If this doesn’t work, Mayor Black added: "one resident suggested that the city use ‘boots’ on repeat offenders like we do on the vehicle wheels of repeat parking violators. We checked; the smaller sizes are not available on the market yet."

Continue Reading Update In Local Government Legal News