Planning, Zoning, & Development

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The City of Visalia amended its general plan pertaining to neighborhood commercial districts, adding a limitation that no tenant could occupy more than 40,000 square feet. A shopping center owner submitted expert testimony regarding the potential for urban decay, but the court held it was insufficient to demonstrate that the limitation may have a significant environmental effect as a result of urban decay.

In 2010, Visalia launched a general plan update. Among other issues under consideration, one of the policy changes under review was a square foot limitation on tenants in neighborhood commercial centers. Staff prepared a white paper on this issue, outlining policy issues with the size, tenant mix, and walkability, along with the pros and cons of store size limitations. Following a city council workshop, staff amended the draft policy to limit store size and to set minimum separation requirements for neighborhood centers. The draft plan also included a map change reducing the acreage of a neighborhood center site by converting some of the property from commercial to medium density residential. The City then prepared and circulated a draft and final EIR (June 26, 2014). In October, the property owner submitted a letter thru legal counsel objecting to the changes, which included a report written by a broker who opined that most grocers would not build less than 40,000 square feet and that smaller stores had gone out of business. The broker also argued that substitution of less successful, lower volume tenants would eventually lead to physical decay in centers as a result of reduced investment. The letter also complained of the reduction in commercial designation for the one commercial center site. The owner filed suit, challenging the EIR and arguing a lack of internal consistency in the general plan. The trial court ruled for the City.

The appellate court affirmed, finding that none of the evidence offered by the property owner was substantial in character. It reasoned that the fact that some grocery stores would not build at 40,000 square feet or less was not evidence that no grocery store would be constructed. The evidence that Tesco was unsuccessful (building in the 10,000 to 20,000 foot range), did not foreclose that another grocer could build a larger store that meets the 40,000 square-foot requirement (and in fact, the evidence was that Walmart had recently constructed a 38,000 square-foot store in Visalia). Further, there was a lack of evidence that urban decay would occur, just speculation.

Regrettably, the appellate court applies the analytical tools reserved for judicial review of negative declarations, rather than an EIR, focusing instead on substantial evidence of a fair argument. While the decision does not discuss what substantial evidence supported the lead agency’s determination, the decision is useful in its close scrutiny of what constitutes substantial evidence offered by a project opponent.

Visalia Retail, LP v. City of Visalia, (January 24, 2018) 2018 Cal.App. LEXIS 84.

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.

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.

By Glen Hansen

The California Supreme Court held in Lynch v. California Coastal Commission (2017) 3 Cal.5th 470, that plaintiff property owners forfeited their challenge to conditions attached to a permit to rebuild a seawall and beach access stairway because the plaintiffs accepted the benefits the permit conferred, even though they simultaneously filed an action challenging the conditions.

In Lynch, plaintiffs owned homes that sit on a coastal bluff that cascades steeply down to the beach and Pacific Ocean. Since 1986, the properties have been protected by a shared seawall at the base of the bluff and a mid-bluff erosion control structure. A shared stairway provided the only access from the bluff-top to the beach below. Plaintiffs applied to the City of Encinitas (“City”) for authorization to replace the wooden seawall and mid-bluff structure and rebuild the lower portion of the stairway. The City approved the project, but final approval required a coastal development permit from the California Coastal Commission (“Commission”). A heavy winter storm then caused part of the bluff to collapse and destroyed part of the seawall, the mid-bluff structure, and the stairway. Plaintiffs sought a new permit to rebuild the damaged structures. The Commission approved a permit that allowed seawall reconstruction and mid-bluff protection, but with special conditions, including the following: (1) reconstruction of the lower stairway is prohibited; (2) the seawall permit will expire in 20 years and prohibits future bluff-top redevelopment from relying on the seawall; and (3) before expiration of the 20-year period, plaintiffs must apply for a new permit to remove the seawall, change its size or configuration, or extend the authorization period. Plaintiffs submitted written objections to those conditions during the review process. But, then plaintiffs complied with the permit requirements and recorded deed restrictions stating that the special conditions of the permit were covenants, conditions and restrictions on the use and enjoyment of their properties. Plaintiffs also filed a petition for writ of administrative mandate challenging the 20-year expiration conditions and the condition prohibiting reconstruction of the lower stairway. While the mandate action was pending, however, plaintiffs satisfied all other conditions, obtained the permit, and built the seawall.

The trial court issued a writ directing the Commission to remove the challenged conditions and held that “by proceeding with the repairs,” plaintiffs “have not necessarily accepted the conditions in question. No action has been taken as to the twenty year condition[,] which can be removed after review of the instant petition.” The Court of Appeal reversed in a split decision. The California Supreme Court granted review and affirmed the Court of Appeal’s decision.

The Supreme Court held that “plaintiffs forfeited their right to challenge the permit’s conditions by complying with all pre-issuance requirements, accepting the permit, and building the seawall. The Court relied on the general rule in the land use context that “a landowner may not challenge a permit condition if he has acquiesced to it either by specific agreement, or by failure to challenge the condition while accepting the benefits afforded by the permit. Generally, challenges to allegedly unlawful conditions must be litigated in administrative mandate proceedings.” That general rule stems from the equitable concept that permit holders are obliged to accept the burdens of a permit along with its benefits. The general rule also serves the public purpose of “promptly alerting the [agency] that its decision is being questioned and allows the government to mitigate potential damages.” In this case, plaintiffs obtained all the benefits of their permit when they built the seawall and “[t]hey cannot now be heard to complain of its burdens.” The Court refused to create a new exception to that general forfeiture rule which would allow landowners to accept the benefits of a permit under protest if the challenged restrictions can be severed from the project’s construction.

The Court recognized that there is a “narrow exception” to the general rule for challenges to permit conditions imposing a fee or similar exaction. The Mitigation Fee Act (Govt. Code, §66000 et seq.) (“MFA”) contains a procedure by which developers may proceed with a project and still protest the imposition of “fees, dedications, reservations, or other exactions.” If a developer tenders payment of the disputed fee and gives written notice of the grounds for protest, local agencies cannot withhold project approval during litigation of the dispute, and local agencies must refund the fee if the challenge is successful. But that MFA procedure does not govern the type of land use restrictions that were imposed by the Commission on the project in this case.

Thus, the plaintiffs in Lynch forfeited their objections by constructing the project. The Court concluded:  “Without an express agreement with the agency providing otherwise, landowners who object to permit conditions not covered by the Mitigation Fee Act must litigate their objections in an administrative mandate proceeding before constructing the permitted project. Landowners who proceed with a project before the merits of their claims have been decided risk a finding that their objections were forfeited.”

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.

Diane G. Kindermann (2015-2017) and William W. Abbott (2004-2017) were again selected for the Northern California Super Lawyers List in the practice areas of Land Use and Zoning law. 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 real estate matters for more than 20 years.

In 2016, U.S. Supreme Court Justice Clarence Thomas issued this warning about legislative exactions: “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.” He stated there are “compelling reasons for resolving this conflict at the earliest practicable opportunity.” Abbott & Kindermann Inc.’s Senior Counsel, Glen Hansen, proposes a resolution to that conflict in his recently-published article, 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 (2017).

In that article, Mr. Hansen explains why the level of constitutional scrutiny that was developed by the U.S. Supreme Court in Nollan v. California Coastal Commission, and Dolan v. City of Tigard, should not apply to legislatively imposed exactions, provided that such exactions satisfy two key criteria: (1) The exaction is generally-applied; and (2) the exaction is applied based on a set legislative formula without any meaningful administrative discretion in that application. He argues that legislative exactions that fail to meet those two criteria should be governed by the Nollan/Dolan standard of review in the same manner as the ad hoc adjudicative exaction in Koontz v. St. Johns River Water Management District. Mr. Hansen then argues that legislative exactions that satisfy those two criteria also should not be governed by the ad hoc factored analysis in Penn Central Transportation Co. v. New York City. Instead, Mr. Hansen argues, a “reasonable relationship” test should be applied to legislative exactions that satisfy those two criteria.

The issue addressed in the article is timely and in need of resolution by the courts. In early 2016, Supreme Court Justice Clarence Thomas explained: “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.” Justice Elena Kagan similarly opined that, following the Koontz decision, there is now a “cloud on every decision by every local government” that requires a person seeking a permit to pay or spend money. Mr. Hansen’s article offers a practical resolution of that constitutional conflict based on the majority and dissenting opinions in Koontz, as well as the various rationales presented in lower court decisions that have squarely addressed the issue.

Mr. Hansen’s article can be found online at http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1803&context=pelr .

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.

Naraghi Lakes Neighborhood Preservation v. City of Modesto (June 7, 2016, F071768) ___ Cal.App.4th ___.

By William W. Abbott

Why Words Matter In Your General Plan: Resolving Issues Of Horizontal And Vertical Consistency.

When does language in a general plan regarding the size of a shopping center denote a mandatory or directory requirement for purposes of determining consistency? It all depends upon the wording according to the Fifth Appellate District.  At issue was the City of Modesto General Plan and the policies adopted (in 1974) in the general plan as part of the Neighborhood Plan Prototype (NPP). Within neighborhoods (estimated at 480 acres), the NPP called for a 7-9 acre shopping center with 60000-100,000 square feet of gross leasable area. In 2011, a developer proposed an 18 acre shopping center with approximately 170,000 square feet of gross leasable area. While the City initially processed a negative declaration, the CEQA processing shifted to an EIR. The project was opposed by neighboring property owners, and following City approval of the project, the neighbors filed suit on both land use and CEQA grounds. The trial court ruled for the City, and the neighbors appealed. The appellate court upheld the City’s decision, but published only the portion of the opinion pertaining to the land use claims.

The land use claim tested the consistency of the shopping center with the NPP, given that it was significantly larger than the acreage range contained within the NPP. The court cited the established rule that the consistency does not require exact conformity, but general compatibility. Sequoya Hills Homeowners Association v. City of Oakland (1993) 23 Cal.App.4th 704 and Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807. The court also noted that a city or county was entitled to deference when making those findings. The City’s findings had noted that the acreage notations in the NPP were for guidance purpose, and also noted that the City had approved a number of commercial centers in excess of the 7-9 acre range. While there was a legal debate as to whether the referenced centers were subject to the NPP, the appellate court concluded that it did not matter in the end. In the court’s view, there was substantial evidence in the record to support the City’s consistency determination in that the site fit the City’s location criteria for commercial centers and conformed to all of the other policies. One troubling argument involved the language of the NPP which recognized the need for potential minor adjustments to accommodate existing development in the area. The neighbors used this exception language to argue that the acreage range was in fact a mandatory standard. The appellate court concluded that this language, by its terms, only concerned itself with existing development and was not controlling as the question of whether or not the other NPP policies were mandatory and binding.

Comment: It is all about the staff report and findings. As this case illustrates, a city or county needs to make the case for consistency and other required determinations while the project is being processed. The reward for doing your homework is judicial deference, a worthy incentive.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor 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.

 

Stewart Enterprises, Inc. v. City of Oakland (2016) 248 Cal.App.4th 410

By William W. Abbott

A judicial determination that a vested right exists brings to mind one of those folksy truisms I occasionally like to quote: even the blind squirrel finds a nut once in a while. Simply stated, California’s common law rule on vested rights is hostile to land investment and development as rights are not protected until very late in the regulatory process. The Supreme Court invited the California Legislature to craft a different rule, and that invitation introduced development agreements, vesting tentative maps and the locking-in of subdivision standards into California land use practice. Other than those changes, there has been only microscopic adjustments to the common law rule which requires an applicant to acquire a building permit (or equivalent) and undertake substantial good faith expenditures based upon that permit in order to vest rights against regulatory changes since the seminal California Supreme Court decision in Avco Community Developers, Inc. v. South Coast Regional Commission (1976) 17 Cal. 3d 785.

But enough with ancient history. The latest vested rights case involves an applicant (Stewart) who obtains a permit to construct a crematorium. Stewart identified property zoned Commercial Industrial Mix 2, an intensive zoning district. City staff made a determination that a crematorium was an allowable use and granted a zoning clearance. BAAQMD issued an authority to construct in November 2011, and Stewart purchased the property in January 2012. Stewart obtained a building permit in May 2012, and at that time, the City’s code had general provisions [1]recognizing that the issuance of a building permit was a recognized vesting point against later changes in the zoning code. Stewart’s plans created community concerns, and the staff worked on an interim ordinance which then morphed into an urgency ordinance. The public supported the proposed regulatory changes. The City Council adopted the urgency ordinance which had the effect of adding the conditional use permit requirement. The ordinance contained the usual health, safety and welfare findings, and also recognized that applicants with vested rights would be exempt from the ordinance. Following passage of the ordinance, the planning director wrote Stewart advising it that a use permit was required. Stewart appealed the staff determination, and the Planning Commission, following consideration of public input opposed to the appeal, denied the appeal on a 3-2 vote. Stewart then brought suit to invalidate the Planning Commission decision, alleging eleven causes of action. The case went to trial on the administrative mandamus claim, and the trial court granted relief in favor of Stewart based upon the general vesting provisions of the City Code. Eventually, Stewart dismissed the balance of the case.

On appeal, the City argued that the later enactment requiring a conditional use permit trumped the general ordinance provisions which vested permit holders. Not according to the terms of the City’s own ordinance according to both the trial and appellate courts. The City also argued that the later ordinance which added a conditional use permit requirement was not in conflict with the vesting ordinance as it did not prohibit the activity, but simply added an additional discretionary permit requirement. Both the trial and appellate courts rejected this argument concluding the introduction of a discretionary permit requirement effectively prohibited what would have otherwise been permitted, and therefore conflicted with the local ordinance. The City’s final argument was that any impairment of Stewart’s rights were justified to protect the public welfare. The appellate decision discusses both the urgency enactment (the legislative act) and the adjudicatory act (denial of Stewart’s appeal) and refers to the evidence in front of the City in both proceedings. Looking at all of the evidence, but without distinguishing which hearing was the relevant hearing to evaluate the evidentiary support to apply a public welfare exception to the vested rights rule, the appellate court also concurred that the generalized objections presented to and by the City were insufficient to support a public welfare determination sufficient to denial Stewart of its vested rights.

PS.   The Cubs last won the Series in 1908. Perhaps the odds on vested rights in California are a better play.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor 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] A provision which is found in many local codes.

 

By William W. Abbott

City of Berkeley v. 1080 Delaware, LLC (2015) 234 Cal.App.4th 1144.

As the real estate market gathers steam post-recession, many development projects involve project approvals obtained during the height of the real estate market. At the time, the sky was the limit and development economics was cast aide well before a project application was even filed. Current developers frequently want to know: Can the conditions of approval of dubious legality now be challenged? As a recent appellate decision illustrates, the time to challenge the condition may have long since passed.

Continue Reading Buyer Beware: Project Conditions Of Approval Run With The Land