By William W. Abbott

The right of California voters to control their own legislative fate derives from the national political reform movements at the beginning of the 20th Century, and in fact, Hiram Johnson was elected governor in 1910 in part due to his support for initiatives and political reform. In the following 100 years, this populist element of democracy has become part of local land use planning and development legal framework as local voters have used California’s constitutional initiative and referendum powers to shape growth. A recent case from the City of Santa Barbara illustrates a variation on the intersection of planning and voter control. Citizens Planning Association v. City of Santa Barbara (2011) ____ Cal.App.4th ____.

Continue Reading Having the Last Say: Use of Parkland for Road and Bridge Requires Local Voter Approval

By Glen C. Hansen

In 2008, the California Legislature enacted Civil Code section 2923.5. That statute requires, before a notice of default may be filed, that a lender contact the borrower in person or by telephone to “assess” the borrower’s financial situation and to “explore” options for the borrower to prevent foreclosure.  In Mabry v. Superior Court (June 2, 2010) 185 Cal.App.4th 208, the Court of Appeal for the Fourth Appellate District addressed a case where plaintiff borrowers brought an action that requested a restraining order to prevent a foreclosure sale based on the lender’s alleged failure to comply with section 2923.5. The trial court denied plaintiffs’ request on the grounds of no private right of enforcement and federal preemption. The Court of Appeal reversed, and disagreeing with the trial court on both grounds.

Continue Reading Borrowers May Sue to Postpone a Foreclosure if the Lender Does Not First Discuss Options with the Borrower to Prevent Foreclosure

By Glen Hansen

In Hashalom v. City of Santa Monica (No. B212733, November 22, 2010) 2010 Cal.App. LEXIS 1990, the Court of Appeal for the Second Appellate District held that an apartment complex did not fall within a statutory exemption from historic preservation provided by Government Code section 37361, subdivision (c), because the property had always been a commercial enterprise, both when the current owner purchased it and when the same owner later sought the exemption.

Continue Reading To be Exempt from Landmark Designation, a Property Must be Related to the Owner’s Religious Mission Before Application for the Exemption

By Cori Badgley

Regardless of the substantive merits of a case, the procedural requirements of the statute of limitations first must be met. In County of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, the owners of a medical marijuana dispensary (“plaintiff”) attempted to cast their lawsuit as an as-applied challenge to the county’s local ordinance regulating dispensaries. However, the appellate court held that the challenge was actually a facial challenge, and plaintiff failed to bring the challenge within 90 days of the effective date of the ordinance. Therefore, plaintiff was barred from bringing its lawsuit.

Continue Reading A Wolf in Sheep’s Clothing is Still a Wolf: Court Denies Medical Marijuana Case on Statute of Limitations Grounds

By Cori Badgley

As we previously learned in Building Industry Association of Central California v. City of Patterson (2009) 171 Cal.App.4th 886, the interpretation of development agreements is governed by contract law and not statutory interpretation principles. In the more recent case of Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (Dec. 30, 2010, No. C059239) __ Cal.App.4th __, we learned that the breach of a development agreement by a municipality can have a hefty price tag, and under contract law, there are no immunities protecting the municipality from having to pay up.

Continue Reading Town Forced to Pay $30 Million for Breach of a Development Agreement

By Cori Badgley

The long legal battle over Pacific Lumber Company’s logging of timberland in Humboldt County continues as the parties now fight over attorney’s fees. In Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2008) 44 Cal.4th 459, the Supreme Court finally resolved all of the substantive issues on the merits. In summary, the Supreme Court set aside the department’s approval of a sustained yield plan based on two of petitioner’s arguments, invalidated a portion of the incidental take permit, and upheld the department’s streambed alteration agreement and certification of the environmental impact report/environmental impact statement. Following the Supreme Court’s decision, the matter was remanded back to the appellate court, and the appellate court heard arguments on whether petitioner was entitled to attorney’s fees and in what amount. (Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2010) 190 Cal.App.4th 217.)

Continue Reading Money, Money, Money: Pacific Lumber Co. Litigation Ends in Battle over Attorney’s Fees

By Cori Badgley

In 2009, a three-judge panel for the Ninth Circuit Court of Appeals made a controversial determination that a rent control ordinance relating to mobilehome parks constituted a regulatory taking. (See “Take This! Wealth-Transfer under Rent Control Ordinance Constitutes a Regulatory Taking.”) In 2010 in Guggenheim v. City of Goleta (December 22, 2010, No. 06-56306) __ F.3d __ (“Guggenheim II”), the Ninth Circuit Court of Appeals sitting en banc reversed its previous decision, holding that the plaintiffs had no distinct investment-backed expectations when they purchased the property. Therefore, the rent control ordinance did not constitute a taking of their property.

Continue Reading You Get What You Pay For: Rent Control Ordinance Upheld by Ninth Circuit

By Kathrine J. Hart

In Azusa Land Partners v. Department of Industrial Relations, (Dec. 21, 2010, No. B218275) ____ Cal.App.4th ____, the Second Appellate District Court of Appeals upheld determinations by the Department of Industrial Relations (“DIR”) and trial court that (1) a master planned community project is a “public work” subject to prevailing wage laws applicable to public improvement work performed by private contractors where such work was a condition of project approval, (2) Mello-Roos proceeds are “public funds,” and (3) once a project is deemed a “public work” under Prevailing Wage Law, the entire project is subject to the law – including those improvements which are privately financed. This case is significant because it turns the historical interpretation of “public work” under the Prevailing Wage Law on its head; typically the analysis to ascertain whether each public improvement is a public work is based on whether any portion of the required public improvement work received a direct allocation of public funds. If this decision stands, developers will be subject to prevailing wages on all projects which include public improvements financed only partially by public funds.

Continue Reading Court Says Developers Must Pay Prevailing Wages on Privately-Financed Public Improvements

By Glen C. Hansen

In Vuki v. Superior Court (October 29, 2010) 189 Cal.App.4th 791, Lucy and Manatu Vuki filed an action against their mortgagee, HSBC Bank USA, initially seeking a temporary restraining order that would stay HSBC’s eviction of the Vukis after the Vukis lost their home to foreclosure. The Vukis alleged, among other things, that HSBC violated the requirements for a “comprehensive loan modification program” that are provided in Civil Code sections 2923.52 and 2923.53 (enacted in 2009). The trial court denied the application for a temporary restraining order and the Vukis filed a writ proceeding with the Court of Appeal for the Fourth Appellate District. The Court denied that writ petition on the grounds that neither section 2923.52 nor section 2923.53 provides any private right of action.

Continue Reading Mortgagors May Not Privately Enforce The Requirement Imposed On Lenders To Have A Comprehensive Loan Modification Program

By Leslie Z. Walker, Cori Badgley, Katherine J. Hart and William W. Abbott

Abbott & Kindermann, LLP’s annual California Environmental Quality Act (“CEQA”) review summarizes important developments over the past year. Among 2010’s highlights were three decisions from the California Supreme Court: two enforcing the abbreviated statutes of limitations set forth in Public Resources Code section 21167 subdivisions (d) and (e), and one holding the baseline for air quality emissions to existing physical conditions, not existing permitted conditions. The question of what constitutes the appropriate baseline for environmental review reverberated through the appellate courts as the Court of Appeal for the Fourth Appellate District held that adjudicated water rights, rather than actual water consumption, could serve as the baseline in a master plan; and the Sixth Appellate District held that the use of 2020 traffic conditions, as opposed to existing conditions, constituted an abuse of discretion.

Continue Reading 2010 CEQA UPDATE