By William W. Abbott

So what happens if you host an election party, and not enough people vote for an assessment? According to the California Attorney General, a community service district is not obligated to provide road maintenance services and snow removal to an existing zone within the district if the voters reject an increase…

By Joel Ellinwood, AICP Although we are only entering the second quarter of 2006, it is safe to predict that the just published case of Branciforte Heights, LLC v. City of Santa Cruz (2006) 138 Cal.App.4th 914 will be one of the top ten land use cases for the year. The decision includes discussion of critical issues for litigation of cases involving the Subdivision Map Act (Gov. Code, § 66410 et seq.), the Quimby Act (the section of the Subdivision Map Act limiting park fees and dedications, Gov. Code, § 66477), the Mitigation Fee Act (Gov. Code, § 66000 et seq.), and the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.). Once again a court is required to parse the obtuse and conflicting statutory language adopted by the legislature to provide some semblance of clarity in these areas of California development law.
Continue Reading Branciforte Heights – Strong Bet for 2006 Top Ten Land Use Cases

By Elias E. Guzman

Effective March 1, 2006, the San Joaquin Valley Air Pollution Control District implemented Rule 9510, the Indirect Source Review program, which will increase the cost of development in the San Joaquin Valley. The program is a one time assessment that seeks to reduce the emissions of NOx and PM10 caused by…

by Joel Ellinwood, AICP

The California Mitigation Fee Act, Government Code sections 66000, et seq. (“MFA”), affords some limitation on developer fees and exactions that is generally consistent with the constitutional principles enunciated in the United States and California Supreme Courts case law (Nollan fn1, Dolan fn2, Ehrlich fn3, and San Remo Hotel fn4). The MFA provides a “payment under protest” remedy for claims of excessive fees charged to a particular project, but case law has qualified this remedy for various types of fee claims. Some categories of fees may not have a refund remedy under the MFA. However, other statutes may provide independent authority for the “payment under protest” remedy. One example is water, drainage and sewer connection fees adopted under Health and Safety Code section 5471.
Continue Reading Water & Sewer Connection Fee Payments Under Protest: Alternatives to Mitigation Fee Act, Government Code section 66020

by William W. Abbott Most developers are familiar with the use of development agreements (“DAs”) as a means of memorializing a land use agreement governing development. DAs are approved following traditional land use procedures of notice, hearing and environmental review. But what about deals made at the courthouse? The appellate court recently granted rehearing of Trancas Property Owners Association v. City of Malibu (2005) 132 Cal.App.4th 1245 (click here to read Abbott & Kindermann’s November 2005 article on the case). In Trancas, the appellate court defined the limits on settlement agreements, effectively precluding terms which would otherwise be required to follow a traditional land use approval procedure.
Continue Reading Let’s Make a Deal!

by Joel Ellinwood, AICP Ninth Circuit Prohibits Aesthetic Regulation of Cell Towers in Public Rights-of-Way Based on California Public Utilities Code In a unique twist to the preemption argument based on conflicts between the federal Telecommunications Act of 1999 (“TCA”) and state and local land use powers, the United States Court of Appeals for the 9th Circuit held that California Public Utilities Code section 7901 permitting installation of telephone facilities in public rights-of-way bans local governments from denying applications for cell phone facilities based on aesthetic considerations. Sprint PCS Assets LCC v. City of La Ca�ada-Flintridge, 2006 U.S.App.Lexis 1032 (9th Cir. 2006). The TCA explicitly allows local governments to apply traditional land use powers in regulating wireless telecommunications facilities. In applying those powers, local governments may not use health effect concerns about radio signals if the applicant demonstrates that the facility complies with Federal Communications Commission safety standards, discriminate between functionally equivalent service providers, or effectively frustrate provision of telecommunications services. The various Circuit Courts of Appeals have applied the TCA limitations inconsistently, but all apply the generally deferential “substantial evidence” standard of review. The 9th Circuit recently adopted a pragmatic but fact-intensive approach in MetroPCS v. City & County of San Francisco, 400 F3d 715 (2005) (click here to read Abbott & Kindermann’s July 2005 article on the case).
Continue Reading Can You Hear (er, See) Me Now?

by Sophie Rowlands

Many property owners are loathe to allow the public onto their land for any reason at all. That being said, many cities and counties routinely impose as a condition of approval a requirement that the project include publically accessible trails, maintained by the underlying property owner or homeowners’ association. The California legislature recognizes the potential hardship resulting from this situation, and has crafted special liability protections. Pursuant to Civil Code section 846, any landowner who permits the public to enter and use his land without charging a fee is completely absolved of all liability and responsibility when, as inevitably happens, a litigious member of the public gets injured for whatever reason on the property and decides to sue. Provided the owner didn’t willfully or maliciously fail to disclose some dangerous condition on the property, the statute is quite broad in its powers and has been interpreted to protect property owners from liability for injuries stemming from a wide range of activities, from spelunking to hunting to hang gliding.
Continue Reading They Sue Horses, Don’t They?