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By Brian Russell

Nick v. Department of Alcoholic Beverage Control (2014) 233 Cal.App.4th 194.

This is a case of one convenience store owner attempting to prevent another convenience store, 7-Eleven, from selling beer and wine by using the powers of the Department of Alcoholic Beverage Control (ABC). The petitioners, Adam and Sherry Nick (Nick) claimed in its complaint that under the Alcoholic Beverage Control Act (Bus. and Prof Code, Section 23000 et seq. or the “Act”) it prohibits the ABC from issuing a license that would result in or add to an undue concentration of licenses unless the local governing body of the area where the applicant’s premises is located determines that issuing the license would serve a “public convenience or necessity.”Continue Reading Did the California Alcoholic Beverage Control Cede its Authority?

By William W. Abbott

Woody’s Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012.

Woody%27s%20Wharf.jpgWhile formal court rules do not apply to local land use proceedings fundamental requirements for due process and fairness are part of land use decisionmaking as illustrated in Woody’s Group, Inc. v. City of Newport Beach. [Woody’s Wharf  –  www.woodyswharf.com] The planning commission had granted a use permit to the restaurant permitting a patio cover, approval to stay open until 2:00 a.m., and indoor dancing. Four days later, City Councilman Henn sent the city clerk an email making an “official request” for an appeal, indicating his belief that the use, as approved by the commission was inconsistent with existing and expected residential uses in the area and the City’s General Plan. The councilman did not file a formal appeal form and did not pay an appeal fee. The appeal went forward to the city council where the permit applicant challenged the informal appeal and the ability of the city councilman to act upon his own appeal. The councilman in question, based upon his previously prepared notes, led the charge to deny request permit. The council, with one member abstaining and one recusing themselves, voted on Henn’s motion to reverse the planning commission decision. The council’s action also reflected that there had previously been a number of appeals by councilmembers in the past which were acted upon by the city council, and these appeals followed similar informal steps as the appeal in Woody’s Wharf, and thus reflected city custom. Woody’s filed for a writ of mandate to set aside the appeal and alleged a civil rights violation. The city filed a cross complaint to enjoin operations after 11:00 p.m. or dancing. The trial court denied the writ and issued the preliminary injunction. Woody’s appealed.Continue Reading Footloose in Newport Beach: City Councilmembers Lack The Inherent Right To Appeal A Planning Commission Decision Then Vote On The Appeal

By William W. Abbott

Citizens for Fair REU Rates v. City of Redding (2015) 233 Cal.App.4th 402.

In Citizens for Fair REU Rates v. City of Redding, the Third District Appellate Court found that the City of Redding’s PILOT charge was subject to Proposition 26’s voter approval requirement unless the charge reasonably related to the cost of service.Continue Reading Court Grounds City’s PILOT For Unauthorized Taxing

By William W. Abbott

Reed v. Town Of Gilbert

A sign from the top? On January 12, 2015, the United States Supreme Court wrestled with local regulation of directional signage and whether the Town of Gilbert, Arizona had unpermissibly regulated sign content. During oral argument the court aggressively questioned the town’s defense of its regulations.

By William W. Abbott

Adam Nick v. City of Lake Forest (December 23, 2014, G047115) ___ Cal.App.4th ___.

Due to over concentration of liquor licenses, the Department of Alcoholic Beverage Control referred an application for a determination of public convenience or necessity to the City of Lake Forest. A competitor then sought to overturn a city council’s findings in support of the license based upon four arguments: the city’s failure to act timely; improper determination by the planning commission; failure of the operator to provide a unique goods; and improper advocacy by the planning director.Continue Reading Too Much Of A Good Thing? Court Upholds Findings Of Convenience/Necessity For A Liquor Sales Permit.

By William W. Abbott

San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498

Are general plan policies adopted by the citizens through an initiative, entitled to special consideration for purposes of determining consistency of projects with the general plan? Faced with that question in the context of planning policies adopted nearly 30 years ago in San Francisco, the Court of Appeal, First Appellate District, declined to elevate the legal significance of citizen crafted measures as compared to other regulatory requirements adopted through traditional means. Approximately 30 years ago, the voters in San Francisco adopted new land use requirements. Jumping ahead three decades, the court of appeal had to resolve whether a major private redevelopment undertaking was consistent with the relevant city regulations and policies, including those adopted by the voters.Continue Reading Court Of Appeal Applies Traditional Deferential Standard Of Review To Questions Of General Plan And Consistency Determinations Including Requirements Enacted By The Local Voters

By William W. Abbott

El Dorado Estates v. City of Fillmore,765 F.3d 1118(9th Cir. Cal.2014)

The Ninth Circuit has concluded that the improper handling of a subdivision application by a city can give rise to a claim of discrimination under the Fair Housing Act. The claim stems from city responses to an application to subdivide an existing mobilehome park. El Dorado Estates (“El Dorado”) is the owner of a mobilehome park for residents 55 and older, located in the City of Fillmore. In 2008, the city considered adopting a park rent control ordinance, and El Dorado publically discussed the opening of the park to families. El Dorado elected to pursue a different path, that being to exit as a park operator and to subdivide and sell the tenant spaces. The existing tenants were opposed, and El Dorado encountered obstacles in processing its subdivision application through the city. El Dorado sued the city twice in state court. El Dorado then filed in federal court, alleging that the city’s land use practices were discriminatory based upon family status (families with minor children). El Dorado alleged that it faced unreasonable delays and expenses as a result of the city’s allegedly discriminatory practices. The city successfully filed a motion to dismiss based upon El Dorado’s lack of standing. The district court agreed, dismissing the case, and El Dorado appealed.

The Ninth Circuit disagreed, finding that El Dorado met the minimum three elements to satisfy standing: injury in fact, causation and redressibility. The Ninth held that that El Dorado alleged sufficient injury: unreasonable delays and extralegal conditions imposed upon its land use requests. Satisfied with the allegations of injury, the court of appeals found the remaining two elements: causation could be linked back to the allegations pertaining to the city’s actions while processing the applications and redressibility in that the district could award monetary damages based upon the injuries suffered by El Dorado. Whether El Dorado can prove its claims at trial remains to be determined. More on the federal Fair Housing Act can be found here http://www.justice.gov/crt/about/hce/title8.php. Information concerning California’s Fair Employment and Housing Act can be viewed here http://www.dfeh.ca.gov/Publications_FEHADescr.htm.Continue Reading Local Land Use Permitting and Discrimination Under the Fair Housing Act

By William W. Abbott

Eskeland v. City of Del Mar (February 19, 2014) ___Cal.App.4th.___. While most land use debates involve projects of physical substance, even the single family home is capable of generating appellate opinions. The most recent case involves a grant, by the City of Del Mar, of a variance from a front yard setback requirement. The variance was granted so that the owners could construct a new single family home in the footprint of the existing single family home. The history suggested that the existing home was constructed before the current setback standard was adopted. The owner proposed to reconstruct in the same footprint, but would expand the footprint parallel to the front property line. As a result, there would be a linear expansion of the building including new additional square footage to be built within the setback restriction, but no additional perpendicular intrusion into the front yard setback area. The building lot included areas with a 25% slope, and buildable area was limited.Continue Reading Steep Lot Justified Grant Of A Variance For The Replacement Single Family Home

By William W. Abbott

Tower Lane Properties v. City of Los Angeles (February 28, 2014, B244092) ___ Cal.App.4th ___. This one is not complicated. Facing an applicant’s request for a grading permit on a hillside to construct three homes and accessory uses on three existing parcels, the city required the property owner to obtain a tentative map. The requirement stemmed from the city’s ordinance which specified that a map was required if grading activity involved a hillside site of 60,000 square feet or more. The city offered a waiver of the map requirement, conditioned upon completion of CEQA documentation. Passing on the waiver option, the applicant filed suit to set aside the requirement to process the tentative map as no subdivision was involved.Continue Reading City Subdivision Regulations Do Not Apply To Family Compound On Existing Lots

By Glen Hansen

In Tuthill v. City of San Buenaventura (2014) ___ Cal.App.4th ___, the Court of Appeal for the Second Appellate District held that a trial court could not apply equitable principles to circumvent the statutory scheme of public entity immunity embodied in Government Code section 815 et seq, in order to award damages against a city based on the city’s failure to disclose affordable housing restrictions that applied to plaintiffs’ townhomes.Continue Reading Even If The Policies Behind Affordable Housing Are Thwarted, A Court May Not Use “Equitable Principles” To Avoid Public Entity Immunity In The Tort Claims Act.