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by Joel Ellinwood, AICP

California’s Court of Appeal buried the vested rights argument of a Los Angeles (“City”) business six feet under in upholding the City’s revocation of a building permit and denial of a certificate of occupancy. The court ruled for the City despite the purchaser’s purported reliance on the permit in acquiring the building and the expenditure of nearly a quarter million dollars on improvements in the six month period after the original issuance of the permit. The City pulled the permit after the applicant, doing business as “1-800-AUTOPSY,” applied for a sign permit which would prominently display the name. It was then, the City claimed, when it first realized the nature of the business and determined that it is a prohibited use within the applicable zone in the Foothill Boulevard Corridor Specific Plan area. The business, Autopsy/Post Services, Inc., (“APS”) applied for an exception to the use restrictions, but the Planning Commission denied it, ruling that an private autopsy business was the equivalent of a morgue or mortuary which are permitted uses only in an industrial zone. After administrative appeals within City government, APS filed a mandate action claiming vested rights. The trial court denied the writ and APS appealed.
Continue Reading Vested Rights? Over My Dead Body!

by Joel Ellinwood, AICP

California provided the battleground for two recent significant cases that clarified the Telecommunications Act of 1996 (TCA) as it pertains to local zoning powers and the siting of wireless communication antenna facilities. The United States Supreme Court ruled in City of Rancho Palos Verdes v. Abrams, 125 S.Ct. 1453 (2005) that remedies for violation of the TCA are limited to injunctive relief and do not include the award of damages or attorney’s fees under the federal Civil Rights Act. The Ninth Circuit Court of Appeals decided in MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715 (2005) to balance the needs of wireless companies to provide effective service and local governments to exercise zoning controls over location and appearance of sites. Taken together, the two decisions set out the “rules of engagement” for future wireless facility siting battles in California.
Continue Reading Can You Hear Me Now? Proposed Cell Tower Sites Result in Controversy

The correlation requirement…I wonder if Crockett and Tubbs ever arrested anyone for possession of an uncorrelated general plan?

by William W. Abbott

What do Miami Vice, “We Built this City” by Jefferson Starship, and the Best Picture of the Year “The Color Purple” have in common? It’s the year 1985. It is the same year that the Court of Appeal initially defined the boundaries of the correlation requirement for general plans. Concerned Citizens of Calaveras County v. Board of Supervisors (1985) 166 Cal.App.3d 90. That is, the court was the first to apply the statutory requirement that the circulation element be “correlated” with the land use element. Government Code section 65302(b). fn1 In the Citizens case, the appellate court found that Calaveras County had run afoul of the correlation requirement in that the land use element provided for significant population growth while at the same time, the circulation element acknowledged an inability to build the supporting roadway infrastructure, and no likelihood of obtaining the funds necessary to close the gap in the future (perhaps the sin of too much honesty?). Flash forward twenty years, and in a fashion similar to how general plans have evolved, so has the judicial thinking on this same topic.
Continue Reading Correlating Land Use and Circulation Elements of a General Plan

by William W. Abbott

In 1990, Terry Parkin, obtained approval of a tentative parcel map for a four lot residential development located in Orange County. The map approval included 37 conditions, some of which pertained to site grading. Sixteen months later, the Board of Supervisors adopted the Foothill/Trabuco Specific Plan (“FTSP”). The FTSP approval included development regulations, and development and design guidelines. In regards to grading, the FTSP development requirements specified that no grading could be approved unless the County first approved a site development permit or use permit.
Continue Reading Appellate Court Reaffirms the Rule that the Rights Attached to an Approved Tentative Map are Limited

By William W. Abbott

As a further effort to promote affordable housing, the Legislature once again amended the density bonus law (Gov. Code, § 65915) to create additional opportunities for developers. With these revisions, the Legislature has incentivized construction and donation of land for inclusionary units as well as childcare facilities. Effective January 1, 2005, the law will operate as follows:
Continue Reading Supersize this Project! The New Rules for Density Bonuses

by William W. Abbott and Heather Gerken

Land use applicants frequently fail to appreciate the deference that a reviewing court must give a city council or board of supervisors. Disgruntled with an adverse decision, an adversely affected applicant often believes that they are entitled to re-argue the merits of their position. As the following cases illustrate, judicial review of controversial land use regulations does not start with a blank canvas.
Continue Reading California Courts Reaffirm the Broad Discretion Held by Cities and Counties in Enacting Land Use Regulations and Setting Policy

by William W. Abbott and Robert T. Yamachika

California landowners frequently live under two sets of land use regulations: one public and one private. Private land use restrictions may be as simple as reciprocal easements, or increasingly, multi-page covenants, conditions and restrictions (“CC&Rs”). Common interest subdivisions, with extensive private land use restrictions are becoming more commonplace in the development landscape. With that growth comes the natural increase in legal issues triggered by private land use control disputes.
Continue Reading California Supreme Court Affirms the Authority of Homeowner Associations to Amend CC&Rs and Apply New Use Restrictions to Existing Residents

by William W. Abbott and Robert T. Yamachika

Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916, reaffirms the California rule that the granting of a variance, even in a charter city, is the exception rather than the rule. The case involves a longstanding non-conforming use; a gas station located in a residential neighborhood. The station had been at the location in question since 1922. It became non-conforming in 1925 when the area was zoned and annexed to the City of Los Angeles.
Continue Reading The Court of Appeal Affirms Once Again High Legal Standard Required for Variances

by William W. Abbott and Robert T. Yamachika

The Governor recently signed AB 2370 which amends portions of the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 (“LAFCo law”). This legislation takes effect on January 1, 2003, but does not apply to changes of organization or reorganization initiated prior to January 1, 2003. In a nutshell, AB 2370 prohibits local agency formation commissions (“LAFCos”) from approving a change of organization or reorganization or a change in the sphere of influence of a local government agency that would result in the annexation to cities or special districts, land that is subject to a farmland security zone (“FSZ”) contract or Williamson Act contract except under specified conditions. Thus, the net effect of the legislation is to further protect contracted lands from conversion to urban type uses.
Continue Reading Analysis of AB 2370 New Legislation Regarding LAFCos and Williamson Act Lands (Chap. 614, Stats. 2002)