Zoning

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Save Our Heritage Organisation v. City of San Diego (2015) 237 Cal.App.4th 163.

By Glen C. Hansen

Balboa Park, a large urban park in San Diego, includes the buildings and plazas constructed for the 1915 Panama-California Exposition and the adjoining buildings and improvements subsequently constructed for the 1935 California Pacific International Exposition (the Complex). Visitors enter the Complex via the Cabrillo Bridge (“Bridge”). The Bridge and the Complex are a National Historic Landmark and a National Historic Landmark District. A project was proposed to return the plazas to purely pedestrian zones. The project included a new “Centennial” bridge, reconfigured roadways and a new pay-parking structure. The City of San Diego (“City”) approved a site development plan for the project.Continue Reading ‘It’s Good Enough For Government Work’: Project May Violate Some General Plan Policies So Long As It Is Consistent With A Majority Of The General Plan

By William W. Abbott

City of Berkeley v. 1080 Delaware, LLC (2015) 234 Cal.App.4th 1144.

As the real estate market gathers steam post-recession, many development projects involve project approvals obtained during the height of the real estate market. At the time, the sky was the limit and development economics was cast aide well before a project application was even filed. Current developers frequently want to know: Can the conditions of approval of dubious legality now be challenged? As a recent appellate decision illustrates, the time to challenge the condition may have long since passed.Continue Reading Buyer Beware: Project Conditions Of Approval Run With The Land

By Brian Russell

Walnut Acres Neighborhood Assn. v. City of Los Angeles (2015) 235 Cal.App.4th 1303

The owners of the property and the developer Community MultiHousing, Inc. sought a permit under Los Angeles City code section 14.3.1 to build an eldercare facility at 6221 North Fallbrook Avenue in Woodland Hills. Section 14.3.1’s purpose is to “provide development standards for Alzheimer’s/Dementia Care Housing, Assisted Living Care Housing, Senior Independent Housing and Skilled Nursing Care Housing, create a single process for approvals and facilitate the processing of application of Eldercare Facilities. These facilities provide much needed services and housing for the growing senior population of the City of Los Angeles.” (§ 14.3.1, subd. A.) The proposed eldercare facility exceeded the maximum allowable density and floor area of the residential zone. Zoning regulations limited a structure to 12,600 square feet, and the proposed facility would contain 50,289 square feet, including over 20,000 square feet devoted to common areas. The proposed facility would have 60 guest rooms and 76 guest beds. Application of the zoning regulations would have limited the site to 16 guest rooms. Pursuant to section 14.3.1, subdivision E, to approve an eldercare facility, the zoning administrator is required to make several findings. “The Zoning Administrator shall not grant the approval unless he or she finds that the strict application of the land use regulations on the subject property would result in practical difficulties or unnecessary hardships inconsistent with the general purpose and intent of the zoning regulations.”Continue Reading Local Zoning Laws Prevent an Eldercare Facility from Proceeding with Plans for Development

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

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

Foothill Communities Coalition v. County of Orange (2014) 222 Cal.App.4th 1302. In the minds of most local planners, spot zoning is typically associated with downzoning of a smaller parcel in circumstances in which the surrounding property is similar in character, but which retains a more intensive zoning designation. From the perspective of the California’s Fourth Appellate District, a rezoning which creates the converse result (that is the donut hole being rezoned to a more intensive classification) can also trigger a claim of spot zoning. In the facts of Foothill Communities Coalition v. County of Orange, the trial court invalidated the rezoning. On appeal however, the appellate court found the rezoning to be a valid exercise of the police power and upheld the rezoning.Continue Reading Up Zoning Creating Special Benefits Can Trigger Spot Zoning Claims

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 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.