Land Use, Environmental, and Real Estate Law in California
By Cori M. Badgley
There have been several attempts by medical marijuana dispensary proponents to get the courts to recognize a right to establish a dispensary, regardless of what the local zoning code allows. Thus far, these attempts have failed, and the most recent attempt in Traudt v. City of Dana Point (2011) 199 Cal.App.4th 886, is no different. This time the court did not even make it to the merits, but struck the case down at the demurrer stage for lack of standing.
By Glen C. Hansen
In Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406, the Court of Appeal for the First Appellate District applied the doctrine of implied easements and held that the water from a well dug by a mother on one of her two parcels of neighboring property should be reasonably shared by her sons after the mother died and her sons took separate possession of the parcels.
By William W. Abbott
The dividing line separating which privately undertaken improvements are subject to prevailing wage requirements from those which do not, has become less clear over time. The result is that some contractors, after bidding a project as a purely private undertaking, learn that they incorrectly bid their labor costs. It is common practice in construction agreements that this financial risk is borne by the contractor. Earlier this year, this blog reported the Azusa Land Partners decision. The most recent chapter in the story of prevailing wage comes from a challenged ground lease between the San Diego Unified Port District and a hotel developer.
By Cori M. Badgley
In Ardon v. City of Los Angeles (2011) 52 Cal.4th 241, the California Supreme Court held that class actions for tax refunds against a local governmental entity are permissible under section 910 of the Government Code (i.e., Government Claims Act) in the absence of a specific statutory tax refund procedure.
Continue Reading California Supreme Court Decides Class Action Permitted Under Government Claims Act
Read more: http://www.sacbee.com/2011/11/02/4022689/wine-buzz-seminars-for-budding.html#ixzz1cYzQsIJb
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By Katherine J. Hart
In West Chandler Boulevard Neighborhood Association v. City of Los Angeles (2011) 198 Cal.App.4th 1506, the Court of Appeal, Second Appellate District, considered the validity of the City of Los Angeles’ (“City”) grant of a conditional use permit, height variance and parking variance to a group (“Chabad”) operating a synagogue in a residential neighborhood within the City.
By Glen C. Hansen
In DeCicco v. California Coastal Commission (2011) 199 Cal.App.4th 947, Franco and Sonia DeCicco owned four contiguous lots in the coastal zone in San Luis Obispo County (County). They applied to the County for a permit that would allow them to subdivide their parcels into five parcels and construct four townhouses and a motel. Under the local coastal plan, the principal permitted uses for the DeCicco property were the type of residential multifamily and commercial retail proposed by the DeCiccos. The County approved the DeCiccos’ permit application and sent notice of the approval to the California Coastal Commission (“Commission”). The County and the Commission disagreed as to whether the permit was appealable to the Commission. The Commission made a determination that, although the DeCicco’s project involved principal permitted uses, it also required approval for a subdivision, which conferred appellate jurisdiction on the Commission under Public Resources Code section 30603, subdivision (a)(4). The DeCiccos filed a petition for writ of mandate challenging the Commission’s determination of jurisdiction of the matter. The Commission demurred to the petition on the ground that the DeCiccos failed to allege they exhausted administrative remedies. The trial court sustained the demurrer without leave to amend. Plaintiffs appealed. The Court of Appeal affirmed.
By Glen C. Hansen
Previously, this author explored how, under the doctrine of “equitable easements” (also known as “relative hardship”), courts may refuse to grant an injunction to a property owner to remove from his or her property an encroachment that is created or maintained by a neighboring owner. (See Glen C. Hansen, “‘The Court Let Me Keep My Fence On Your Land’: Neighborhood Boundary Encroachments and Exclusive Easements,” 29 Calif. Real Property Journal 10 (May 2011).) “Establishing the necessity for an equitable easement requires the owner [who built and/or maintains the encroachment] to prove that (a) the owner is innocent; (b) the neighbors’ injury caused by the encroaching structure is less than irreparable; and (c) the owner’s cost in removing the structure is greatly disproportionate to the neighbor’s injury caused by the structure.” (Id. at p. 14.) With no reported case law on point, this author suggested that “there is no ‘sword’ that the [encroaching] owner can wield to establish the right to maintain the encroaching structure [on neighboring property].” (Ibid.) Indeed, the Court of Appeal for the Sixth Appellate District held in unreported decision: “[W]e observe that the doctrine of relative hardship has only been invoked as a shield to defend against an injunction requiring the removal of an unlawful encroachment.” (Cobb v. Gabriele (2007) 2007 Cal.App. Unpub. LEXIS 3448, at *44 (emphasis added).)
By Cori M. Badgley, William W. Abbott, Katherine J. Hart and Leslie Z. Walker
In the third quarter of 2011, the California Supreme Court issued two CEQA opinions and the California Appellate Courts issued 12 CEQA opinions. Many of the cases deal with procedural issues such as when the violation of a notice requirement is prejudicial (Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949); the appropriateness of an interlocutory remedy in administrative mandamus (Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499); and the prevailing party’s recovery of attorneys fees for administrative time under Code of Civil Procedure section 1021.5 (Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312). The most notable opinion issued in the third quarter was the Supreme Court’s reversal of the appellate court in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155. Not only did the Supreme Court determine that an EIR was not required for an ordinance banning plastic bags, but it also overturned prior precedent requiring corporations to make a heightened showing to demonstrate public interest standing.
By Katherine J. Hart
In the case of South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal. App. 4th 1604 (“South Orange”), the Court of Appeal for the Fourth Appellate District was asked to order an environmental impact report (“EIR”) be prepared to assess the impact of the environment on a proposed project pursuant to the California Environmental Quality Act (“CEQA”). The Court of Appeal declined to order such an EIR. The Court of Appeal also addressed whether the adopted project was inconsistent with the city’s general plan and zoning ordinance, and found that the project was consistent.
Continue Reading Adjacent Landowners Can’t Use CEQA to Avoid Potential Nuisance Claims
