Land Use, Environmental, and Real Estate Law in California
By Katherine J. Hart
On August 16, 2013, CEQA attorney Tina Thomas filed a depublication request with the California Supreme Court over the Fifth District Court of Appeal’s decision in Citizens for Ceres v. Ceres v. Superior Court 217 Cal.App.4th 889 (Citizens for Ceres). For a copy of the depublication letter, click here.Continue Reading California Infill Builders Federation Files Request for Depublication of Citizens for Ceres Case
By Katherine J. Hart
In Masonite Corporation v. County of Mendocino (July 25, 2013) 215 Cal.App.4th 230, the Court of Appeal, First Appellate District, reversed a trial court’s decision denying a petition for writ of mandate, and directed Mendocino County (County) to decertify its EIR, set aside its project approvals (a conditional use permit and reclamation plan), and prepare and circulate a supplemental EIR to address concerns related to an endangered frog, mitigation of impacts to prime agricultural farmland, and mitigation measures related to cumulative traffic impacts, for an aggregate mining project.Continue Reading Court Puts Onus On County To Demonstrate Infeasibility Of Agricultural Conservation Easements To Mitigate Loss Of Prime Farmland
Kate Hart was selected in the practice areas of Environmental, Environmental Litigation and Land Use/Zoning and William Abbott in the practice areas of Land Use/Zoning and Real Estate. More information is available at http://www.superlawyers.com/california-northern/. The firm is pleased to continue to serve private and public clients in Northern California on land use, environmental and…
By William W. Abbott
As developers pursue infill or re-use opportunities, a predictable question regarding impact fees will arise: To what extent is the developer entitled to a credit for the existing uses onsite which ultimately are displaced by a new project? At least in the case of school facilities, we know from the recent decision in Cresta Bella, LP v. Poway Unified School District (July 31, 2013, D060789) ___ Cal.App.4th ___,that the burden is on the agency to justify the fee, and in the absence of sufficient justification, that the developer may be entitled to a fee refund. Continue Reading School District Failed to Document Justification For Applying Full School Fees to Demolition of and Development of a Multi-family Project
By William W. Abbott
Save the Plastic Bag Coalition v. County of Marin (July 25, 2013, A133868) ___Cal.App.4th ___.
In January 2011, the Board of Supervisors for the County of Marin enacted an ordinance generally banning the use of single use plastic bags and adopting a fee for paper bags. The ordinance also required retailers covered by the ordinance to offer reusable bags for purchase. This ordinance came about after some period of County study. A trade group, Save the Plastic Bag Coalition, submitted comments in opposition to the proposed ordinance, including a demand for an EIR. Initially, the Board continued the hearing. At the continued hearing, the Board considered, among other items, a letter from the County Counsel’s office suggesting that the Board should complete the hearing and could act based upon a categorical exemption (classes 7 and 8; maintenance and restoration of a natural resource and maintenance, restoration, enhancement or protection of the environment, respectively.) Relying upon the two exemptions, the Board approved the use of the two exemptions and approved the ordinance. The Coalition sued. The trial court upheld the Board’s decision and the Coalition appealed.Continue Reading Appellate court upholds ordinance restricting single use plastic bags and adopting a fee for paper bags based upon a categorical exemption in CEQA.
Vested Rights, Vesting Maps and Development Agreements(131LUP154)
When: August 16, 2013: Fri., 9 a.m.-4:30 p.m.
Where: Sutter Square Galleria, 2901 K St, Sacramento, CA
Development agreements are an effective avenue for a community and developer to come together and process a project. Both sides of the table need to carefully consider the terms …
By Glen C. Hansen
In Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161, the Court of Appeal for the First Appellate District affirmed a trial court judgment that found that the County of Alameda was liable for $989,640.96 in damages for a temporary taking of plaintiff’s property, where the county stopped work on plaintiff’s project in light of a growth control initiative, even though the project fell within an exemption in the initiative and county officials failed to even consider such exemption, and where the county’s action in stopping the project constituted an unreasonable change from the County’s prior representations made to the property owner. Continue Reading County’s Unreasonable Change In Position To Stop Project Results In $1 Million Temporary Takings Award.
By William W. Abbott
Orange Citizens for Parks and Recreation v. The Superior Court of Orange County (July 10, 2013, G047013) ___ Cal.App.4th ___.
While not exactly a Dan Brown novel, the most recent planning law case illustrates the resulting agony which follows imprecise record keeping as to the status of previously adopted planning and regulatory documents, and how they fit in with updated general plans and other land use requirements. Without retracing all the subtle nuanced facts, this case starts with the adoption of the 1973 Orange Park Acres Specific Plan. When the City Council adopted the plan, it included amendments as recommended by the Planning Commission, nearly 40 years later, it was not clear as to what exactly those amendments were, a matter of some consequence in a later land use dispute. Over time, the City dropped the word “specific” from the plan document. The Orange Park plan was amended in later years, and was incorporated in the local general plan in 1989 and again in 2010 in the updated general plan. The descriptions of the planning document, and well as reference to the applicable land use standards varied overtime. As planners, developers, commissioners and elected officials come and go, an inconsistent understanding of the document over time is hardly surprising.Continue Reading Now You See It, Now You Don’t: The Mystery Of The Orange Park Acres Specific Plan.
By Katherine J. Hart
In reversing the U.S. District Court, the U.S. Court of Appeal for the Ninth Circuit held in California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., ___ F.3d ___, 2013 U.S. App. LEXIS 14777 (9th Cir., No. 11-16959, July 22, 2013), that where the state of California had not brought either a court action to require compliance with the Clean Water Act (“CWA”), or commenced an administrative penalty action comparable to one under the CWA, neither 33 U.S.C. section 1365(b)(1)(B) nor section 1319(g)(6)(A)(ii) barred a citizen suit to enforce California’s storm water general NPDES permit.Continue Reading Citizen Suit Under The Clean Water Act Is Not Barred Where State Of California Had Not Brought Either A Court Action To Enforce Compliance With The Act, Or Commenced An Administrative Penalty Action Comparable To One Under The Act.
By William W. Abbott
The last market downturn has resulted in Subdivision Map Act (“SMA”) cases involving circumstances in which the parties to a purchase or option agreement pertaining to a portion of a legal parcel failed to include express language as a contingency requiring compliance with the SMA. Depending upon whether the real estate market is rising or falling, both buyers and sellers have taken advantage of the limitations of Government Code section 64499.30. To date, these cases include Black Hills Investments, Inc. v. Albertson’s, Inc. (2007) 146 Cal.App.4th 883 and Sixells, LLC v. Cannery Business Park (2008) 170 Cal.App.4th 648.Continue Reading Buyer And Seller Can Cure A SMA Violation Under Black Hills Through Subsequent Agreement Modification
