1901 First Street Owner, LLC v. Tustin Unified School Dist. (2018) 21 Cal.App.5th 1186

The methodology for imposing local impact fees is largely left to the discretion of the local agency adopting the impact fees. (AB 1600; Gov. Code §66000, et seq.; the “Mitigation Fee Act”.) As long as there is a reasonable basis for the methodology, a reviewing court should uphold the enacting agency’s approach (e.g., gross building area v. net building area, bedrooms, or EDUs). The notable exception to this involves school impact fees wherein the Legislature set forth the methodology which uses the interior square footage with listed exceptions. Petitioner 1901 First Street Owner, LLC (“First Street”), the developer of a multi-family project, challenged how the methodology was applied to its project. First Street argued that non-inhabited areas such as an interior gym, hallways, and meeting rooms (“interior common areas”) should not be included in the calculation. Initially, the City had agreed with First Street’s opinion and calculated the fee excluding interior common areas. When challenged by the school district, however, the City reversed itself, recalculating the fee to include the interior common areas. As a result, an additional 70,000 square feet were included in the recalculation, which translated to a $238,549.86 increase in the school impact fees. First Street sued and lost at the trial court.

As the interpretation of the statute is purely a legal question, the appellate court applied its independent judgment in interpreting the statute, ultimately agreeing with the City, the school district and the trial court. It found that though detached homes do not include interior common area, this fact was not a basis for reaching a contrary conclusion to that of the City. First Street also argued that it had a vested right based upon a vesting map it processed in conjunction with its entitlements, and as such, the City could only apply its former fee calculation methodology. Citing Government Code section 66498.6, the appellate court noted that the vesting map law does not vest rights as to misinterpretation of state law.

Commentary:  In circumstances involving non-school impact fees, First Street may well have had a winning argument with respect to the effect of the vesting map. As school impact fees are based upon a state-crafted formula, the local agency did not have the discretion to misapply state law.

William W. Abbott is a shareholder 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.

Building Industry Association  – Bay Area v. City of Oakland, 2018 U.S.Dist.LEXIS 18822 (Case No., 15-cv-03392, Feb. 5, 2018)

Fifth Amendment takings challenges to adjudicative land-use exactions and permit conditions are governed by the two-part test in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994).  In Nollan, the Court held that a government could, without paying compensation, demand an easement as a condition for granting a development permit the government was entitled to deny as an exaction of private property, provided that the exaction would substantially advance the same government interest that would furnish a valid ground for denial of the permit. (483 U.S. at pp. 834, 836-837.)  In Dolan, the Court held that the dedication of private property must be “roughly proportional” both in nature and extent to the impact of the proposed development. (512 U.S. at p. 391.)  In Koontz v. St. Johns River Water Management District, 133 S.Ct. 2586 (2013), the Court held that the Nollan/Dolan test applies to a government’s demand for a monetary exaction imposed on a land-use permit applicant on an ad hoc, adjudicative basis.  But Koontz did not address the question of whether legislatively imposed monetary exactions are also governed by the Nollan/Dolan test.  That led Supreme Court Justice Clarence Thomas to note in early 2016:  “For at least two decades, however, lower courts have divided over whether the Nollan/Dolan test applies in cases where the alleged taking arises from a legislatively imposed condition rather than an administrative one. That division shows no signs of abating.” (Cal. Bldg. Indus. Ass’n v. City of San Jose, 136 S. Ct. 928, 928 (2016) (Thomas, J., concurring in denial of cert.))  Justice Thomas added: “Until we decide this issue, property owners and local governments are left uncertain about what legal standard governs legislative ordinances and whether cities can legislatively impose exactions that would not pass muster if done administratively.”  (Id. at pp. 928–929.)

While waiting for the Supreme Court to decide that question, courts are now having to decide whether the Koontz decision can be interpreted as applying Nollan/Dolan to generally applied and legislatively imposed exactions.  For its part, the California Supreme Court said no:  “The Koontz decision does not purport to decide whether the Nollan/Dolan test is applicable to legislatively prescribed monetary permit conditions that apply to a broad class of proposed developments.”  (California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 460 & fn 11, cert. den., Cal. Bldg. Indus. Ass’n v. City of San Jose, supra, 136 S.Ct. 928 (emphasis added).)  Since Koontz does not apply, the existing rule in California is that “legislatively prescribed monetary fees that are imposed as a condition of development are not subject to the Nollan/Dolan test.”  (Ibid. See also San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 663-671; Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 966–967; Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 874-885 (plur. opn. of Arabian, J.).)  The existing rule in the Ninth Circuit Court of Appeal is the same.  (See McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008), cert. denied, 556 U.S. 1282 (2009).)

U.S. District Judge Chhabria of the Northern District of California recently came to the same conclusion as the California Supreme Court.  In Building Industry Association  – Bay Area v. City of Oakland, 2018 U.S.Dist.LEXIS 18822 (Case No., 15-cv-03392, Feb. 5, 2018) (“BIA”), Judge Chhabria determined:  “The Court did not hold in Koontz that generally applicable land-use regulations are subject to facial challenge under the exactions doctrine [in Nollan and Dolan].”  (Id. at *5.)  Judge Chhabria reached that conclusion by rejecting the reasoning of fellow U.S. District Judge Breyer in Levin v. City of San Francisco, 71 F.Supp.3d 1072 (N.D. Cal. 2014), appeal dismissed as moot, remanded, 2017 U.S.App.LEXIS 4384 (9th Cir., Feb. 14, 2017).

In Levin, the City and County of San Francisco enacted an ordinance that required property owners who wanted to withdraw their rent-controlled property from the rental market under California’s Ellis Act (Govt. Code §§7060 et seq.) to pay a lump sum to displaced tenants in San Francisco.  Property owners challenged the ordinance as an unconstitutional taking.  Judge Breyer applied Nollan/Dolan to the takings claim because, “[a]s in Koontz, where the monetary exaction was subject to a Nollan/Dolan analysis because the City commanded a monetary payment ‘linked to a specific, identifiable property interest such as a . . . parcel of real property,’ here the Ordinance’s requirement of a monetary payment is directly linked to a property owner’s desire to change the use of a specific, identifiable unit of property.”  (71 F.Supp.3d at p. 1083 (citing Koontz, supra, 133 S.Ct. at p. 2600).)  Judge Breyer distinguished the contrary Ninth Circuit precedent in McClung v. City of Sumner by concluding that “Koontz abrogated McClung’s holding that Nollan/Dolan does not apply to monetary exactions, which is intertwined with and underlies McClung’s assumptions about legislative conditions.” (71 F.Supp.3d at 1083 n.4.)

However, in the recent BIA case, Judge Chhabria disagreed with Judge Breyer and held that Koontz did not address the applicability of Nollan/Dolan to legislative exactions, and therefore did not overturn the Ninth Circuit precedent in McClung. In BIA, the City of Oakland enacted an ordinance that required a developer of a multifamily project with over twenty units to either (i) spend 0.5 percent of building development costs on art displays on the site of the development or a nearby right-of-way; or (ii) pay an equivalent amount to a city-operated fund for public art installations.  The Building Industry Association – Bay Area (“Association”) challenged the validity of the ordinance on the ground that it was an unlawful exaction that violates the “exactions doctrine” applied in Nollan, Dolan and Koontz.  Judge Chhabria disagreed with the Association, and granted the City’s motion to dismiss, for the three several reasons.

First, Judge Chhabria explained that the U.S. Supreme Court has only applied the “exactions doctrine” in cases “involving a particular individual property, where government officials exercised their discretion to require something of the property owner in exchange for approval of a project.”  (2018 U.S.Dist.LEXIS 18822 at *3.)  He added that “the Court has consistently spoken of the doctrine in terms suggesting it was intended to apply only to discretionary decisions regarding individual properties.  (Ibid. (citing Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 546-47, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005).

Second, Judge Chhabria pointed out that both the Ninth Circuit in McClung and the California Supreme Court in Ehrlich have “expressly stated that a development condition need only meet the requirements of Nollan and Dolan if that condition is imposed as an ‘individual, adjudicative decision.’”  (2018 U.S.Dist.LEXIS 18822 at *3.)  Therefore, “[b]roadly applicable regulations like the one at issue in this case are assessed under the Penn Central regulatory takings framework.” (Id. at *3-*4.)

Third, Judge Chhabria rebuffed the Association’s reliance on Judge Breyer’s decision in Levin that held that held that McClung was invalidated by Koontz.  Judge Chhabria explained:

The Court did not hold in Koontz that generally applicable land-use regulations are subject to facial challenge under the exactions doctrine; it held only that the exactions doctrine applies to demands for money (not merely demands for encroachments on property). In reaching this holding, the Court went out of its way to make clear that it was not expanding the doctrine beyond that. See 133 S. Ct. at 2602 (“This case does not require us to say more.”); id. at 2600 n. 2 (“[T]his case does not implicate the question whether monetary exactions must be tied to a particular parcel of land in order to constitute a taking.”). Koontz involved an adjudication by local land-use officials regarding an individual piece of property, and throughout its decision the Court spoke of the exactions doctrine in those terms. For example, the Court stated: “The fulcrum this case turns on is the direct link between the government’s demand and a specific parcel of real property.” 133 S. Ct. at 2600 (emphasis added). “Because of that direct link,” the Court stated, “this case implicates the central concern of Nollan and Dolan: the risk that the government may use its substantial power and discretion in land-use permitting to pursue governmental ends that lack an essential nexus and rough proportionality to the effects of the proposed new use of the specific property at issue, thereby diminishing without justification the value of the property.” Id. (emphasis added); see also id. at 2594 (noting that permit applicants are “especially vulnerable” to government coercion “because the government often has broad discretion to deny a permit that is worth far more than property it would like to take”). The exactions doctrine, in other words, has historically been understood as a means to protect against abuse of discretion by land-use officials with respect to an individual parcels of land, and Koontz itself spoke of it in those terms, undermining Judge Breyer’s argument that Koontz displaced the Ninth Circuit’s rule that the exactions doctrine is unavailable to a plaintiff making a facial challenge to a generally applicable land-use regulation. (Id. at *4-*6.)

Thus, Koontz did not overrule the Ninth Circuit’s legislative exactions analysis in McClung, and under the same rationale did not overrule the California Supreme Court’s holding in Ehrlich.

Judge Chhabria did not explicitly address another argument raised in Levin regarding the McClung decision.  In Levin, Judge Breyer concluded that Koontz abrogated the holding in McClung regarding legislative exactions because the monetary exactions is “intertwined with and underlies McClung’s assumptions about legislative conditions.” (71 F.Supp.3d at 1083 n.4.) In its briefing in Re:  BIA case, the Association similarly argued that “McClung’s discussion of legislative exactions is so entwined with its abrogated repudiation of monetary exactions that the two cannot be parceled out.”  (Opposition to Motion to Dismiss, at 11 fn. 5.)  Judge Chhabria did not address that issue in his order granting the City’s motion to dismiss. However, contrary to Judge Breyer’s statement in Levin, and the Association’s argument in BIA, the McClung court discussed the legislative/adjudicative distinction apart from the “monetary” nature of the particular exactions in that case.  For example:

Next, the McClungs attempt to recast the facts as involving an individualized, discretionary exaction as opposed to a general requirement imposed through legislation. The McClungs make this argument in recognition of the fact that at least some courts have drawn a distinction between adjudicatory exactions and legislative fees, which have less chance of abuse due to their general application. See San Remo Hotel, 41 P.3d at 104 (distinguishing between a fee condition applied to single property that would be subject to Nollan/Dolan review and a generally applicable development fee).  The facts do not support the McClungs falling within the former category. All new developments must have at least 12-inch storm pipe; there is no evidence on the record that the McClungs were singled out. [548 F.3d at 1228–1229.]

Judge Breyer’s decision in Levin did not discuss that analysis and case law in McClung, which is a separate ground that supported the Ninth Circuit’s holding about legislative exactions.  (Cf. United States v. Title Ins. & Trust Co., 265 U.S. 472, 486 (1924) [“where there are two grounds, upon either of which an appellate court may rest its decision, and it adopts both, ‘the ruling on neither is obiter, but each is the judgment of the court and of equal validity with the other’” (citation omitted)); Varshock v. Department of Forestry & Fire Protection (2011) 194 Cal.App.4th 635, 646 fn. 7 [“when a decision is based on two separate grounds, neither is dictum; rather, each ground is equally valid and constitutes an alternative holding in support of the judgment.” (Citation omitted.)])

It is important to note that Judge Chhabria did not decide in BIA whether or not the U.S. Supreme Court should extend Nollan/Dollan to legislative exactions; he merely determined that the High Court had not yet done so.  He explained:

Perhaps reasonable arguments could be made for expanding the reach of the exactions doctrine so that it can be invoked in facial challenges to a generally applicable regulations, rather than merely discretionary decisions regarding an individual property by land-use officials.  But the point, for purposes of this motion, is that it would be an expansion of the doctrine. If that occurs, it should be in the Supreme Court, not the Northern District of California.  [2018 U.S.Dist.LEXIS 18822 at *6 (citation omitted).] [1]

Thus, the District Court recognized, as Justice Thomas observed in early 2016, that the constitutional level of scrutiny for legislative exactions has not yet been decided by the U.S. Supreme Court even after Koontz.

The Association appealed the decision in BIA to the Ninth Circuit on March 5, 2018.  The briefing on that appeal is scheduled to begin on June 13, 2018.

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.

[1] For an extensive analysis of whether Nollan/Dolan applies to legislative exactions, see Glen Hansen, Let’s Be Reasonable: Why Neither Nollan/Dolan nor Penn Central Should Govern Generally-Applied Legislative Exactions After Koontz, 34 Pace Envtl. L. Rev. 237, 242 (2017).

Hauser v. Ventura County Board of Supervisors (2018) 20 Cal.App.5th 572

I will start with the cats. Irena Hauser applied for a conditional use permit to house up to five tigers on her property, located in a rural part of Ventura County. Ms. Hauser proposed three tiger enclosures, an area with a roof, and an eight-foot chain link fence enclosing seven acres. The animals were to be used for filming purposes. 57 residential lots with 28 existing homes were located within a one-half mile radius of the tiger enclosures, with a total of 46 existing homes within one mile. In addition, there were two children’s camps within 2-3 miles. The project site was located in “rugged topography … with dense vegetation.” Ms. Hauser proposed that one family member would always be onsite. She and another family member had attended an eight-day class on animal husbandry, safety and training (as the court noted, there was no written test, and everyone was assured a passing certificate).

As one might predict, the neighbors were opposed, presenting a petition with 11,000 signatures in opposition, news reports of animal maulings, and video of uncaged tigers on the Hauser property in Beverly Hills. The planning commission denied the use permit, as did the Board of Supervisors, the latter on a 4-1 vote. Ms. Hauser filed a writ of mandate challenging the findings adopted in support of the denial claiming a lack of substantial evidence. The appellate court largely deferred to the fact finding undertaken by the Board, noting that the Board was not compelled to believe Hauser’s uncontradicted testimony. With deference to the Board, the appellate court found that the evidence did in fact support the Board’s decision.

While the fate of five tigers is always interesting reading, more important is the court’s decision regarding the effect of communications to the Board members outside of the formal hearing process. The Board members disclosed pre-hearing contacts with both the applicant and opponents (in person and by email). The adopted county rules discouraged ex parte contacts and required disclosure, which the Board members fully complied. The appellate court noted that less formality is required for local government hearings as compared to a judicial hearing and with respect to ex parte contacts cited City of Fairfield v. Superior Court, 14 Cal.3d 768 (1975), in which the California Supreme Court noted “A councilman has not a right but an obligation to discuss issues of vital concern with his constituents.” The potential for bias is insufficient. There must be a probability of actual bias which is constitutionally intolerable. The court viewed that the pre-hearing contacts were quite typical, and no decision maker had promised to vote a certain way. All Board members disclosed the contacts as required by the local code. In the end, Ms. Hauser received a full and fair hearing.

Daniel S. Cucchi is an associate 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 one of four annual seminars taking place in early 2018 in Sacramento, Napa, Redding and Modesto.

In January 2018 Abbott & Kindermann, Inc. will present its 17th annual 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 2017 case law and legislative updates includes the following hot topics for 2018:

  • Air Quality and Climate Change – Including CEQA Guidelines, Cap-And-Trade
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands – Including New State Wetlands Programs
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Water Rights and Supply
  • Cultural Resources
  • Mining, Oil and Gas
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • Real Estate Acquisition and Development
  • Subdivision Map Act

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


Redding Conference (To Register for the Redding Location Click Here)

Date: Friday, January 19, 2018

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference (To Register for the Sacramento Location Click Here)

Date: Friday, January 26, 2018

Location: Sacramento Hilton Arden West, 2200 Harvard Street

Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast

Program: 9:00 a.m. – 12:00 noon

Modesto Conference (To Register for the Modesto Location Click Here)

Date: Friday, February 2, 2018

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Napa Conference (To Register for the Napa Location Click Here)

Date: Wednesday, February 7, 2018

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available.

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


Reserve your seat for one of four annual seminars taking place in early 2018 in Sacramento, Napa, Redding and Modesto.

In January 2018 Abbott & Kindermann, Inc. will present its 17th annual 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 2017 case law and legislative updates includes the following hot topics for 2018:

  • Air Quality and Climate Change – Including CEQA Guidelines, Cap-And-Trade
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands – Including New State Wetlands Programs
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Water Rights and Supply
  • Cultural Resources
  • Mining, Oil and Gas
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • Real Estate Acquisition and Development
  • Subdivision Map Act

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


Redding Conference (To Register for the Redding Location Click Here)

Date: Friday, January 19, 2018

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference (To Register for the Sacramento Location Click Here)

Date: Friday, January 26, 2018

Location: Sacramento Hilton Arden West, 2200 Harvard Street

Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast

Program: 9:00 a.m. – 12:00 noon

Modesto Conference (To Register for the Modesto Location Click Here)

Date: Friday, February 2, 2018

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Napa Conference (To Register for the Napa Location Click Here)

Date: Wednesday, February 7, 2018

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available.

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


Reserve your seat for one of four annual seminars taking place in early 2018 in Sacramento, Napa, Redding and Modesto.

In January 2018 Abbott & Kindermann, Inc. will present its 17th annual 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 2017 case law and legislative updates includes the following hot topics for 2018:

  • Air Quality and Climate Change – Including CEQA Guidelines, Cap-And-Trade
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands – Including New State Wetlands Programs
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Water Rights and Supply
  • Cultural Resources
  • Mining, Oil and Gas
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • Real Estate Acquisition and Development
  • Subdivision Map Act

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


Redding Conference (To Register for the Redding Location Click Here)

Date: Friday, January 19, 2018

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference (To Register for the Sacramento Location Click Here)

Date: Friday, January 26, 2018

Location: Sacramento Hilton Arden West, 2200 Harvard Street

Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast

Program: 9:00 a.m. – 12:00 noon

Modesto Conference (To Register for the Modesto Location Click Here)

Date: Friday, February 2, 2018

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Napa Conference (To Register for the Napa Location Click Here)

Date: Wednesday, February 7, 2018

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available.

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


Reserve your seat for one of four annual seminars taking place in early 2018 in Sacramento, Napa, Redding and Modesto.

In January 2018 Abbott & Kindermann, Inc. will present its 17th annual 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 2017 case law and legislative updates includes the following hot topics for 2018:

  • Air Quality and Climate Change – Including CEQA Guidelines, Cap-And-Trade
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands – Including New State Wetlands Programs
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Water Rights and Supply
  • Cultural Resources
  • Mining, Oil and Gas
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • Real Estate Acquisition and Development
  • Subdivision Map Act

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



Redding Conference (To Register for the Redding Location Click Here)

Date: Friday, January 19, 2018

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference (To Register for the Sacramento Location Click Here)

Date: Friday, January 26, 2018

Location: Sacramento Hilton Arden West, 2200 Harvard Street

Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast

Program: 9:00 a.m. – 12:00 noon

Modesto Conference (To Register for the Modesto Location Click Here)

Date: Friday, February 2, 2018

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Napa Conference (To Register for the Napa Location Click Here)

Date: Wednesday, February 7, 2018

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

 

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available.

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


Reserve your seat for one of four annual seminars taking place in early 2018 in Sacramento, Napa, Redding and Modesto.

In January 2018 Abbott & Kindermann, Inc. will present its 17th annual 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 2017 case law and legislative updates includes the following hot topics for 2018:

  • Air Quality and Climate Change – Including CEQA Guidelines, Cap-And-Trade
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands – Including New State Wetlands Programs
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Water Rights and Supply
  • Cultural Resources
  • Mining, Oil and Gas
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • Real Estate Acquisition and Development
  • Subdivision Map Act

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


Redding Conference (To Register for the Redding Location Click Here)

Date: Friday, January 19, 2018

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference (To Register for the Sacramento Location Click Here)

Date: Friday, January 26, 2018

Location: Sacramento Hilton Arden West, 2200 Harvard Street

Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast

Program: 9:00 a.m. – 12:00 noon

Modesto Conference (To Register for the Modesto Location Click Here)

Date: Friday, February 2, 2018

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Napa Conference (To Register for the Napa Location Click Here)

Date: Wednesday, February 7, 2018

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

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San Bruno Committee for Economic Justice v. City of San Bruno 2017 Cal.App. LEXIS 807

California land use nerds know well the origin of the right of initiative and referendum. A function of the national reform movement at the beginning of the twentieth century, California voters took matters into their own hands and inserted the right of initiative and referendum into the California Constitution.   It has been used for good and bad depending upon one’s perspective. When the Legislature proved inept at addressing Coastal zone planning, the voters stepped in and adopted coastal regulations.  When the Legislature failed to deal with property tax reform, Howard Jarvis and Paul Gann upended property tax law.  Sacramento utility voters closed the local nuclear reactor. Development project approvals have been set aside by the voters or on rare occasion, streamlined. The courts have stayed on the sideline, accepting the responsibility to protect the exercise of these constitutional rights.

Not every governmental action earns a spot before the voters: only legislative decisions.  In the land use world, that means general plans, area plans, specific plans and the like are fair game. Quasi-adjudicatory decisions such as tentative maps and use permits are off limits.  Because agency action takes many forms, there is room to debate the extent to which these constitutional powers apply to other government actions.  As a recent case on point, the City of San Bruno sold property to a developer to develop a hotel project. The city had previously approved a specific plan for the site for the purpose of encouraging redevelopment. Following City Council approval of a resolution approving the sale of the land, local voters with the support of a labor union (the latter perhaps seeking a labor agreement), qualified a referendum measure.  Given the particular history of the project and the prior planning efforts, the trial and appellate court concluded that the property sale was not a legislative act, but was an administrative act in furtherance of the prior legislative actions. The court’s holding is not to suggest that every property sale is immune from a referendum, but when the transaction is in furtherance of documented planning efforts, it may be protected.

Which brings me to the 2017 legislative session.  Apparently offended that the initiative process may be used to facilitate a land use decision, AB 890  forecloses attempts by voters to approve certain general plan amendments and zoning changes (for example, converting discretionary approvals into ministerial approvals or intensifying development intensity) by initiative.   Development agreements could similarly only be approved by the city council or board of supervisors.  There are a number of exceptions but those require the Court to determine what the “primary purpose” is of the initiative effort, which as many attorneys know, is a challenge for a reviewing court to ascertain given the lack of formal legislative history.  Given that the legislature is touting its efforts this year to break the housing backlog, this bill which recognizes that ability of voters to turn projects down or make development more difficult but creates barriers for voters to take the initiative (so to speak) is backwards, plain and simple.  To paraphrase Animal Farm, this legislation embraces the idea that some voter ideas are more equal than others.  If this becomes law, the courts will have to go back to the origins of initiative law in California and ask itself: is this what the voters had mind in 1911? That the legislature has the power to selectively dictate when the voters can act on their own?  Personally, my money is on the voter’s side.

Either way, let the Governor know what you think.

PRIVATE LAND USE SETTLEMENTS: The potential fallout when a private side settlement agreement fails to settle your legal woes.

In 2010, the County of San Benito granted a conditional use permit for a solar project to the Panoche Valley Solar, LLC.  The project was a 3,200 acre, 399-megawatt solar electric generation facility involving up to 4 million solar panels in the Panoche Valley, a semiarid open space and range land west of Interstate 5 in San Benito County.  The approved project would have become one of the largest solar farms in the world and could have powered over 100,000 homes.  The project would have given the County $5.4 million in sales tax from the purchase of the solar panels.  In August 2011, the San Benito County Superior Court denied a legal challenge under the California Environmental Quality Act and the Williamson Act.  The trial court’s judgment was affirmed by the Court of Appeal (Save Panoche Valley v. San Benito County (2013) 217 Cal.App.4th 503.)

In 2014, the project applicant sought to modify the conditional use permit.  The revised project was for a 2,506-acre, 247-megawatt solar generation facility, including an additional 24,176 acres for habitat conservation (which is more than the original project.)  The County expected to receive approximately $2.5 million in sales tax revenue from that revised project.  The County approved a revised use permit and certified the Final Supplemental Environmental Impact Report (SEIR) in 2015.  The SEIR addressed the project’s impact and mitigation measures for the certain animal and plant species, including the San Joaquin kit fox, giant kangaroo rat, and blunt-nosed leopard lizard, and numerous bird species.  However, the Sierra Club and Santa Clara Valley Audubon Society again filed a writ of mandate action and challenged the Final SEIR. The trial court rejected that challenge as well.  This year, in an unpublished opinion, the Court of Appeal for the Sixth District affirmed the trial court’s judgment.  (Sierra Club v. County of San Benito (March 22, 2017, case no. H042915), unreported decision, 2017 Cal.App.Unpub.LEXIS 1987.)

The project construction already began in the Fall of 2016 and is scheduled to be completed in 2018.  But those two fully litigated lawsuits, and that ongoing construction, are not the end of the story.

In a special public hearing about the project’s statute before the County Board of Supervisors on April 18, 2017 (less than a month after they prevailed on the second appeal), one Supervisor asked if the rumor that the project was being downsized was true.  An official of ConEdison Development, the company that acquired the project admitted that the office of Governor Brown wanted to reduce the size of the project.  However, the ConEdison official also stated:  “We have all of our permits for the project signed and we are building 100 percent of the Panoche Valley Solar project at this time.”  That led one County resident to exclaim to the Board of Supervisors: “…the rat people went to the governor to cut the project in half. If you guys take that sitting down you’re idiots because it affects every project in this county.”

But the rumor proved true.  In July 2017, ConEdison reached an agreement with Sierra Club, Santa Clara Valley Audubon Society, Defenders of Wildlife and the California State Department of Fish and Wildlife that dramatically reduced the project to 130 megawatts, about 1/3 the size of the original project.  According to a ConEdison official, the company signed the agreement because, even though the environmental groups had repeatedly lost in court, they purportedly still had cases they could appeal that could have slowed or killed the project.  The environmental groups are hailing the agreement as a “win-win.”  A Sierra Club spokesperson stated:  “As we work toward lowering carbon pollution, it’s critical that new clean energy development is not done at the expense of endangered animals and their habitat.”

The agreement essentially shifts 100-117 megawatts of the Panoche Valley project to another ConEdison solar project that is proposed for Imperial County in Southern California.  Not surprisingly, the environmental groups have indicated that they will not oppose that other project.  The Sierra Club announced: “Initially, 247 MW of solar generation was planned for development in the Panoche Valley, but now approximately 100 MW is instead proposed for development at a site in Imperial County, California. Development at the Imperial County site will have less impact on threatened and endangered species and their habitat. The relocation of that portion of the project is subject to approval by Southern California Edison (SCE) and the California Public Utilities Commission (CPUC). The settlement will also resolve several legal challenges commenced against the project by the Environmental Groups.”

The County Board of Supervisors, which approved the original and then the modified project, and which was the prevailing party in both lawsuits, was never included in those settlement talks or made a party to that agreement.  The Supervisors are furious because the County will lose out on millions of dollars in taxes that they were promised by the project developer.  According to the County’s clerk-auditor-recorder, the County will not be receiving any sales tax from the project now because ConEdison had purchased the panels in a way that made San Francisco the recipient of the sales tax rather than San Benito County. One Supervisor said:  “I can barely speak because I’m so angry.  This would have generated much-needed revenue. All you have to do is drive down there and see the conditions of our roads. We have minimal amounts of public safety. This was going to be a big thing, but the rug was pulled out from under us. And it was all done in secret.”  Another Supervisor exclaimed:  “[the developer] basically raped and pillaged us.”

The County is now considering filing a lawsuit against ConEdison, on the grounds that the company violated the project’s original 2010 development agreement with the county.  An official with PV2 Energy, the company that owned the project from 2011 to 2015, and then sold the project to ConEdison, said:  “By diverting half of the project’s value to a different project outside the county, ConEdison is clearly violating their commitments to the county and to PV2 Energy.” As to the sale tax issue, a ConEdison official said:  “We’re looking into that.  We understand we have obligations under the development agreement. We’re going to live up to them.” In short, there are still unresolved legal issues, even as the project is being built.

So here is an interesting legal question:  If the new settlement agreement constitutes a breach of the original development agreement, could the State of California be liable to the County of San Benito for the torts of intentional interference with contractual relations or intentional interference with prospective economic advantage?  The Director of DFW appears to concede such involvement:  “Con Edison Development’s leadership and the environmental groups deserve a lot of credit for opening a dialogue with the Department and asking whether it was better to negotiate and collaborate than litigate.”

This cautionary tale is not over yet.

Glen Hansen is a 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.