Land Use, Environmental, and Real Estate Law in California
By Glen C. Hansen
The recent decision by the Court of Appeal, Second Appellate District, Division Three in Hines v. Lukes (2008) 167 Cal.App.4th 1174 describes how a judgment entered pursuant to a settlement agreement under Code of Civil Procedure section 664.6 must include all of the material terms of the settlement.
Continue Reading When Settling Easement Disputes, Don’t Skimp on the Details
By Cori Badgley
In Gray v. County of Madera (2008) 167 Cal.App.4th 1099, the Court of Appeal, Fifth Appellate District grappled with several issues related to the California Environmental Quality Act (“CEQA”) along with the Senate Bill 610 water supply analysis, the Surface Mining and Reclamation Act, and general plan consistency. Among the court’s various holdings, the court found examples of improper deferral of mitigation under CEQA. Additionally, the court refined the definition of a “probable future project” for purposes of cumulative impacts. The project at issue involved the development of an aggregate mining operation in the unincorporated area of Madera County ("County").Continue Reading Court Discusses Improper Deferral of CEQA Mitigation and Provides Definition for “Probable Future Projects”
By William W. Abbott and Nathan Jones
While much is written about takings claims in the field of land use practice, the reality has been that for a number of reasons, it is extremely difficult for a California property owner to make a successful legal claim. In the context of a regulatory (as opposed to a physical) taking, the fact pattern to support a regulatory taking has to be extreme. The recent case of Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, vividly illustrates the types of extraordinary facts that must exist for a property owner to cross the finish line first.
Continue Reading Court Answers Monk’s Prayers: City, Thou Shall Not Take!
By Leslie Z. Walker and Cori M. Badgley
California’s land use planning structure has long been governed by a philosophy of home rule. Periodically, the legislature has identified specific typical areas for state intrusion: housing policy and airport land use planning are two examples. Among other provisions, SB 375 (Chapter 728, Statutes 2008) reflects a new area of state intervention, brought on by the rising concern over global warming. This time, it is through the regional transportation planning process, with the apparent thinking that once you control the purse strings, local governments will fall into line. SB 375’s major elements are:…
Continue Reading SB 375: A Subtle Shift in the State-Local Long Range Planning Paradigm
By Leslie Z. Walker
For the two years following passage of Assembly Bill 32 (Chapter 488, Statutes 2006), practitioners have wrestled with establishing the level at which a project’s contribution to global climate change is considered to be significant for the purposes of the California Environmental Quality Act (“CEQA”).
Continue Reading ARB Guidance on CEQA Thresholds: Not Every Bit Counts, and CEQA Exemptions Apply
By William W. Abbott and Nathan Jones
While green energy is on the rise, there are casualties of even the most well-intentioned projects. In Center for Biological Diversity v. FPL Group, Inc. (2008) 166 Cal.App.4th 1349, the Court of Appeal, First Appellate District upheld the dismissal of a public trust enforcement action against the owners and operators of wind turbines in the Altamont Pass area (the “Operators”). According to the Center for Biological Diversity (“CBD”), the turbines injure and kill raptors and other birds. Ultimately, CBD was successful in clarifying that the birds are a public trust resource of all the people of the state. However, the appellate court held that the proper party to bring an action against is the public agency with permitting authority, rather than the Operators.
Continue Reading Wildlife Protected by the Public Trust Doctrine, but Doctrine Can Only be Enforced Against Public Agencies
Bill Abbott, a founding partner of the firm, will be speaking at the Building Industry Associations event on Policy Series: Development Agreements on November 14, 2008, in Roseville. Bill will be presenting an overview of development agreements including a discussion on the potential to reopen existing agreements for re-negotiation. For more details, including RSVP information, visit…
By Glen Hansen
In Zanelli v. McGrath (2008) 166 Cal.App.4th 615, the Court of Appeal, First Appellate District clarified the circumstances under which easements may be extinguished under the doctrine of merger where the dominant and servient tenements are jointly owned by more than one person. As with most easement cases, the specific facts in Zanelli were critical to both the establishment and extinguishment of the easement in question.
Continue Reading Extinguishing Easements Through Merging Properties Under Common Ownership
By Glen Hansen
In T.O. IX, LLC v. Superior Court (2008) 165 Cal.App.4th 140, a contractor built a street through a nine-home subdivision developed by the property owners. The contractor alleged that he had not been paid. The contractor then recorded nine individual mechanic’s liens against each home; or, as the court summarized: “nine separate liens, at the full amount each, to secure the contractor’s right to be paid once.” The property owners applied ex parte for an order permitting them to release the parcels from the nine mechanic’s liens by posting a single surety bond in an amount equal to one and one-half times the total amount of the contractor’s claim, as provided under Civil Code section 3143. The trial court denied the owners’ application. The Court of Appeal, Second Appellate District, reversed.
Continue Reading “Unlike A Cat, The Mechanic’s Lien Here Has One Life, Not Nine,” Says Court of Appeal
By William W. Abbott
Sometimes, the moral of an appellate court decision is hard to find. In this case, I think it is buried in the footnotes. Many cities and counties now use administrative procedures including monetary citations as part of zoning and building code enforcement. Procedurally, a party subject of an adverse order has two avenues of appeal. First, a de novo appeal can be filed and heard by the superior court, or as illustrated in the recent case of Martin v. Riverside County Department of Code Enforcement (September 19, 2008) 2008 Cal.App.Lexis 1444, a challenge via a petition for writ of mandate serves as an alternative remedy. (Gov. Code § 53069.4(b)(1).)…
Continue Reading Zoning Citations: Next Time, Pay the Fine!
