by William W. Abbott Concerned over the supply of affordable housing, the Legislature has in recent years sought to create incentives for developers. One incentive area involves density bonuses. (Gov. Code, § 65915.) Although this concept has been embodied in the state zoning law for a number of years, it failed to achieve its purpose…

by Elias E. Guzman

In Woodridge Escondido Property Owners Assn. v. Nielsen (2005) 130 Cal.App.4th 559, the court of appeal recently affirmed a trial court’s ruling that a homeowner’s construction of a wooden deck encroached upon a side yard easement in violation of the homeowner associations’ declaration of covenants, conditions, and restrictions (“CC&Rs”).
Continue Reading Woodridge: Encroaching Decks and CC&Rs?

by Joel Ellinwood, AICP

The anti-discrimination law of California (Fair Employment and Housing Act or “FEHA”) (Gov. Code, § 12900 et seq.) and the federal Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101 et seq.) require that newly constructed dwellings be accessible. Under the FEHA, “covered multi-family dwellings” for which building permits are applied after July 1, 2005, must be designed to be accessible for and useable by disabled persons. (Gov. Code, § 12955.1). This somewhat awkward term is even more inartfully and obscurely defined in Government Code section 12955.1.1, as meaning:

* A building with at least four condominium units or three rental units if the building has an elevator; or,
* The ground floor of dwelling units in buildings with at least four condominium units or three rental units if the building does not have an elevator.
Continue Reading California Multi-Family Development Accessibility Requirements (aka “Universal Design”)

The California Air Resources Board released an informational guide to air quality and land use issues. Among other suggestions, it recommends that planners avoid siting new sensitive land uses (residences, schools, daycare centers, playgrounds, or medical facilities) within 1,000 feet of major rail yards. For more information, download the handbook at http://www.arb.ca.gov/ch/landuse.htm.

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