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By William W. Abbott

In California Building Industry Assn. v. City of San Jose (June 6, 2013, H038563) ___ Cal.App.4th ___, the City of San Jose adopted an inclusionary ordinance, requiring that new residential projects include units affordable to specified income ranges. Alternatively, the ordinance permitted the developer to pay an in lieu fee or dedicate land. The California Building Industry Association (“CBIA”) filed suit, challenging the validity of the ordinance on its face on the basis that the ordinance lacked any nexus to the deleterious effects of new residential development. CBIA did not allege that a compensable takings had occurred, but rather argued that the City lacked sufficient justification for the ordinance. The trial court agreed with CBIA and invalidated the ordinance. The City appealed.Continue Reading Appellate Court Reverses Trial Court Invalidation Of Local Inclusionary Ordinance; Remanded For Further Review

By Glen Hansen

In Freeny v. City of San Buenaventura (June 4, 2013, B240893) ___ Cal.App.4th ___, the Court of Appeal for the Second Appellate District held, in an action against a city and five city council members for compensatory and punitive damages for voting against an application for building permits and variances, that public employees’ tort immunity for legislative decision-making under Government Code sections 820.2, 821 and 821.2 applies even when that decision-making is also alleged to involve the making of misrepresentations motivated by actual fraud, corruption or actual malice.Continue Reading Public Officials Are Immune From Tort Liability For Legislative Actions Involving Misrepresentations That Are Motivated By Fraud, Corruption Or Actual Malice.

By William W. Abbott

Three recent cases land at the periphery of the zone of interest for land use practitioners. While not warranting an exhaustive review, these decisions can and should be slated away for potential future use.Continue Reading A Trifecta Of Outliers: Three Cases On The Outer Edges Of Land Use And Environmental Practice

By William W. Abbott

County of Los Angeles v. City of Los Angeles (March 14, 2013, B236732) ___Cal.App.4th ___. The latest illustration of intergovernmental non-cooperation examines the circumstances in which cities can route sewer lines through county rights of way, all without county approval. The facts involve the City of Los Angeles upgrading the capacity of its line to its Hyperion Treatment Plant in Playa Del Rey. Serving the coastal portions of the City, the existing 48 inch line was installed in 1958 but lacked the capacity to serve major storm events. The City studied various options for installing a new 54 inch diameter line. Most of the routing would take place in City streets, but one route involved use of public streets and a public parking lot located in the jurisdiction of the County. For environmental reasons, the City ultimately approved the alignment which involved County streets. The County filed a petition for writ of mandate, alleging violations of the Public Utilities Code and CEQA. The trial court rejected the CEQA claim, but granted relief pursuant to the Public Utilities Code claims, effectively holding that County approval was required. The City appealed. The appellate court reversed the trial court.Continue Reading City May Install Sewer Line in County Right Of Way Without County Permission

By William W. Abbott

Reed v. Town of Gilbert, Arizona (9th Cir. Feb. 8, 2013, No. 11-15588) ___F.3d ___.

As part of its overall regulatory code, the City of Gilbert, Arizona enacted various sign regulations. The regulations generally require a City issued sign permit unless the sign qualifies under one of nineteen different exceptions. Three of the nineteen exceptions involved (1) temporary directional signs for a qualifying event, (2) political signs and (3) ideological signs. Temporary directional signs subject to the exemption were subject to specific limitations not applicable to political and ideological signs including size, location (excluded from public right of way), and duration (same day only).Continue Reading Born (again) Under a Bad Sign: Ninth Circuit Upholds Ordinance Restricting Duration, Location, Quantity, And Size Of Directional Signs for Church Services

By William W. Abbott

Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (November 29, 2012, S187243) ___Cal.4th ___. In a 6 to 1 decision, the California Supreme Court concluded that mobilehome park conversions subject to Government Code section 66427.5 of the Subdivision Map Act are also subject to the Coastal Act and Mello Act (the latter for affordable housing in the Coastal zone.) In 1991, the Legislature enacted Government Code section 66427.5. This new code section set forth the particular determinations under the Subdivision Map Act when local government was processing a subdivision map application for conversion of a rental park to an owner occupied park and was intended to narrow the scope of local government inquiry which might otherwise be permitted by the Subdivision Map Act when processing other types of proposed subdivisions. The 1991 legislation included language which stated, in conjunction with local government review of the tentative map, that “The scope of the hearing shall be limited to the issue of compliance with this section.”Continue Reading Mobilehome Park Conversions Trigger Coastal and Mello Act Compliance Requirements

By Katherine J. Hart

In Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899 (Rialto Citizens), the City of Rialto (City) and Walmart appealed a trial court’s grant of writ of mandate invalidating the City’s approval of a 230,000-square-foot commercial shopping center to be anchored by a 24-hour Walmart Supercenter. In its decision, the Court of Appeal, Fourth Appellate District, discussed public interest standing to challenge a CEQA project, the import of defective notice of a public hearing, whether the approval of the development agreement missing a general/specific plan consistency finding was valid, and a myriad of other CEQA issues such as the adequacy of (1) the project description, (2) cumulative impact analyses on traffic and air quality, (3) the greenhouse gas analysis, and (4) mitigation measures for biological impacts, and whether the City properly rejected the reduced density alternative as infeasible.Continue Reading Multiple Harmless Errors Do Not Require Project Approvals Be Overturned Unless Prejudice Is Shown

By Katherine J. Hart

In addressing their fair share regional housing needs, cities are required to include in their housing elements, site inventory for parcels able to be developed with multifamily housing for seniors and low income residents. However, when surrounding parcels have been built out, existing homeowners may object to the inclusion of such housing in their neighborhood.Continue Reading General Plan Inconsistencies Created By Revisions To Housing Element Can Be Remedied Through Timely Implementation Plan To Conform Inconsistent Elements

In Chung v. City of Monterey Park (October 23, 2012, B233859) ___Cal.App.4th ___, the City Council directed staff to prepare a ballot measure that would require the City to seek competitive bids for trash service when the current contractor’s contract was complete in 2017, and provide a new bidding opportunity every five years thereafter. Chung, a resident of the City and signatory to the ballot arguments against the measure, filed suit to remove the measure from the ballot arguing the City violated the California Environmental Quality Act (CEQA) by failing to perform environmental review and because the Council “had deemed Measure BB a voter ‘initiative,’” but failed to follow the initiative measure requirements for a petition and thus, unconstitutionally restricted the actions of future City Councils.Continue Reading No Commitment, No “Project”