by William W. Abbott and Janell M. Bogue

In Dunn v. County of Santa Barbara (2006) 2006 Cal.App.Lexis 74, David Dunn submitted a subdivision application for his six acre parcel located in the unincorporated Summerland area of Santa Barbara County. His land had some unique characteristics: it was located on a sea cliff and was bisected diagonally by an earthquake fault. He wanted to divide it into two equal size parcels, as there were two possible building envelopes on the land and the area was zoned for a minimum sized lot of three acres. The property, because of its proximity to the coast, is under the jurisdiction of the California Coastal Commission and is subject to the County’s Local Coastal Plan (“LCP”). Continue Reading Subdivision Woes: A fault line, a sea cliff, and two wetlands…so what’s the problem here?

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 Elias E. Guzman

In a San Diego court, a petitioner recently argued that it failed to file its opening brief because the City held the administrative record for “ransom.” Yes, ransom. Well, in the world of administrative writ actions, there are two absolutes regarding the preparation of the administrative record. Someone has to prepare it and someone has to pay for it. Continue Reading City Holds Administrative Record for Ransom?

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?

by Robert T. Yamachika

The Subdivision Map Act has a long memory. This is what a prospective purchaser of several parcels in Ventura County recently found out in Fishback v. County of Ventura (2005) 133 Cal.App.4th 896. This decision is an excellent overview of the arcane world of antiquated subdivisions. Continue Reading Subdivision Map Act: Annual Quartering Exception

by William W. Abbott Although never verified as the source, Mark Twain is considered the originator of the quote “whiskey is for drinking and water is for fighting.” Had he lived until the enactment of CEQA, perhaps he would have added something to his saying. As land use practitioners know, the water supply/CEQA/Subdivision Map Act interface has raised the bar in terms of what it takes for large development projects to move forward. A repeated challenge in this area is the dichotomy between theoretical water deliveries by the state and federal water contractors and actual deliveries, the difference commonly referred to as “paper water.” As readers of this newsletter may remember, a development project EIR analysis of water supply which concludes that adequate water exists based upon paper water is likely to be set aside by a reviewing court (see the March 2003 Abbott & Kindermann article on Santa Clarita Organization for Planning the Environment v. County of Los Angeles). This has been the trend in a number of court decisions going back to at least the year 2000. Jump forward to 2005, and the water supply challenge is neither fixed nor improving, and EIRs are still being successfully challenged. Continue Reading Paper Water and Project Approval

by Sophie Rowlands

Apparently, you can still buy a home in California where the cattle (if not buffalo) do roam. Just look for property located within a designated Open Range area. Pursuant to California Food and Agriculture Code section 17124, the board of supervisors in any California county may pass an ordinance devoting the entire county or certain portions of it to livestock grazing. Such areas do not have to be limited to publically owned lands; they can and often do encompass privately owned lands. Continue Reading Don’t Fence Me In

Diane Kindermann recently helped secure Sacramento-Yolo Port Commission approval of a $12 million bulk cement import and distribution facility at the Port of Sacramento in West Sacramento. The center could potentially double the port’s annual cargo.

Joel Ellinwood and Bill Abbott assisted K. Hovnanian Forecast Homes, Inc. in final approval of contested Swainson’s hawk mitigation, offsite sewer line improvements, and reimbursement and final map approval for the Schmidt Ranch project. The project is located in Galt.

Are “losing” plaintiffs eligible to recover attorney’s fees under the private attorney general statute? According to Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, a recent decision from the First District Court of Appeal, the answer may be yes. Plaintiffs won their initial due process claim in superior court when the court found that they did not receive a fair hearing during their opposition to a proposed development project. After the City held another hearing and re-approved the project, the superior court denied the rest of plaintiffs’ claims and found for the City. This decision was affirmed on appeal in Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, and was discussed in a November 2004 Abbott & Kindermann article. The superior court subsequently awarded over $18,000 in attorney’s fees to the plaintiffs pursuant to the Code of Civil Procedure section 1021.5. On appeal, the City protested that plaintiffs’ “real concerns” were their interests in the project and not the procedural due process claims. The appellate court disagreed and held that attorney’s fees are recoverable: 1) by a successful party, 2) in an action that enforces an important public interest right, 3) if a significant benefit has been conferred on the public, and 4) the financial burden makes an award appropriate. Even though the plaintiffs lost in the traditional sense because the project was ultimately approved, the Court of Appeal found that they were a successful party under the statute and ordered the City to pay attorney’s fees. 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.