November 2011

By Glen C. Hansen

In re Consoidated Delta Smelt Cases, 2011 U.S. Dist. LEXIS 98300 (E.D. Cal. Aug. 31, 2011)

In 2008, the United States Fish and Wildlife Service (“FWS”) issued a biological opinion (“BiOp”) under section 7 of the Endangered Species Act that addressed the impacts of the coordinated operations of the federal Central Valley Project (“CVP”) and State Water Project (“SWP”) on a threatened fish known as the California delta smelt in the Sacramento San Joaquin Delta. The BiOp concluded that “the coordinated operations of the CVP and SWP, as proposed, are likely to jeopardize the continued existence of the delta smelt” and “adversely modify delta smelt critical habitat.”

Continue Reading In Operation Of Water Projects, Federal Agencies Enjoined From Implementing Delta Smelt Biological Opinion

By William W. Abbott

This case reminds me of that dreaded moment when a judge, work supervisor or parent turns to you and asks, “what part of “NO” don’t you understand; the “N” or the “O”? And as simple as the question is, the answer, in a land use context, is more complicated then would first appear. For purposes of housing projects, the riddle is Government Code section 65589.5(j) which, among other provisions, requires a city or county to adopt findings justifying the denial or density reduction in circumstances in which the project complies with “applicable, objective general plan and zoning standards and criteria, including design review standards.” This code section was added in an effort to tighten down the discretion exercised by local officials when acting on a housing project application. It is codified as part of the Housing Accountability Act. A companion code section places the burden of proof on the city or county. (Government Code section 65589.6.)

Continue Reading How Do You Say “No” To A Housing Project? With Findings.

By Glen C. Hansen

The California Supreme Court is currently reviewing the issue of whether, in response to a construction defect action brought by a condominium homeowners association, the developer can compel binding arbitration of the litigation pursuant to an arbitration provision in the CC&R’s. A split of opinion exists in the court of appeals on that issue. That issue is raised in several cases pending before the court.

Continue Reading Supreme Court To Decide If A Developer Can Compel Arbitration Of A Condominium Homeowners Association’s Construction Defect Claim Under The CC&R’s

By Glen C. Hansen

In Tesoro del Valle Master Homeowners Assn. v. Griffin (October 3, 2011, B222531) ___ Cal.App.___, the Court of Appeal for the Second Appellate District affirmed a judgment following a jury verdict that found that a homeowners’ association (“HOA”) complied with the California Solar Rights Act (Civ. Code, § 714) when it denied the application of property owners to install solar panels on a slope adjacent to their residence; where the conditions, covenants and restrictions (“CC&Rs”) and Design Guidelines for the HOA expressly incorporated the requirements of section 714; where the homeowners failed to satisfy their burden to submit an application to the HOA that was complete and that addressed the HOA’s concerns about location, safety and aesthetics; and where expert testimony at trial demonstrated that an alternative solar energy system of comparable costs and efficiency could be installed that did not significantly increase the cost or decrease the efficiency of the system sought by Defendants.

Continue Reading Homeowners’ Association Complies With Solar Rights Act When It Reasonably Denies The Installation Of Solar Panels At Residence In the Development

By Cori M. Badgley

There have been several attempts by medical marijuana dispensary proponents to get the courts to recognize a right to establish a dispensary, regardless of what the local zoning code allows. Thus far, these attempts have failed, and the most recent attempt in Traudt v. City of Dana Point (2011) 199 Cal.App.4th 886, is no different. This time the court did not even make it to the merits, but struck the case down at the demurrer stage for lack of standing.

Continue Reading No Matter How Compelling a Story, a Medical Marijuana Patient Lacks Standing to Sue City

By Glen C. Hansen

In Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406, the Court of Appeal for the First Appellate District applied the doctrine of implied easements and held that the water from a well dug by a mother on one of her two parcels of neighboring property should be reasonably shared by her sons after the mother died and her sons took separate possession of the parcels.

Continue Reading In Legal War Between Brothers Over An Implied Easement For Well Water, The Court Mandates … Sharing

By William W. Abbott

The dividing line separating which privately undertaken improvements are subject to prevailing wage requirements from those which do not, has become less clear over time. The result is that some contractors, after bidding a project as a purely private undertaking, learn that they incorrectly bid their labor costs. It is common practice in construction agreements that this financial risk is borne by the contractor. Earlier this year, this blog reported the Azusa Land Partners decision. The most recent chapter in the story of prevailing wage comes from a challenged ground lease between the San Diego Unified Port District and a hotel developer.

Continue Reading The Prevailing Winds of Prevailing Wage

By Cori M. Badgley

In Ardon v. City of Los Angeles (2011) 52 Cal.4th 241, the California Supreme Court held that class actions for tax refunds against a local governmental entity are permissible under section 910 of the Government Code (i.e., Government Claims Act) in the absence of a specific statutory tax refund procedure.

Continue Reading California Supreme Court Decides Class Action Permitted Under Government Claims Act

By Katherine J. Hart

In West Chandler Boulevard Neighborhood Association v. City of Los Angeles (2011) 198 Cal.App.4th 1506, the Court of Appeal, Second Appellate District, considered the validity of the City of Los Angeles’ (“City”) grant of a conditional use permit, height variance and parking variance to a group (“Chabad”) operating a synagogue in a residential neighborhood within the City.

Continue Reading Failure Of City To Comply With Its Charter, Zoning Code and the Topanga Case, Requires Reconsideration And Proper Findings For Use Permit And Variances