On August 31, 2016, the Court of Appeal for the First Appellate District affirmed a trial court decision denying a petition for writ of mandate filed by a citizens group challenging the third in a series of master use permits for a Buddhist retreat center that has operated in the County of Sonoma since the mid-1970s. Coastal Hills Rural Preservation v. County of Sonoma, __ Cal.App.5th __ (2016) (Case No. A145573) addresses the group’s allegations that the County violated CEQA by approving the permit without an EIR, that the permit violates federal and state constitutional provisions against the establishment of religion, that the permit is inconsistent with the County’s general plan and zoning policies, and that the permit constitutes spot zoning. My partner, Art Coon, wrote about the CEQA issues on his blog, CEQA Developments, here.

Continue Reading Court Declines to Reweigh Conflicting Evidence, Holds that County Fully Considered its Land Use Policies and Extent to Which Project Conforms to Those Policies

On August 30, 2016, the Court of Appeal for the Second Appellate District affirmed a preliminary injunction in a nuisance abatement action brought on behalf of the People of the State of California against a Los Angeles-based medical marijuana collective doing business as “Weedland” and its principal. The People ex rel. v. FXS Management, Inc, __ Cal.App.4th __ (2016) (Case No. B263965).

Continue Reading Court Affirms Preliminary Injunction Against Medical Marijuana Collective

On May 26, 2016, the California Building Industry Association successful obtained a temporary restraining order from the Sacramento Superior Court preventing the State Allocation Board—and all others acting in concert with the SAB or under its direction—from implementing Level 3 school impact fees or sending notice to the Legislature that state funds for new school construction are not available.  The TRO temporarily halted the ability of school districts statewide to impose Level 3 fees.  We wrote about the California Building Industry Association v. State Allocation Board case on May 27, 2016.

The case proceeded to a preliminary injunction hearing on July 22, 2016, and exactly one month later the court denied the request and terminated the TRO.

Continue Reading Court Denies Preliminary Injunction and Terminates Temporary Restraining Order, Allowing Imposition of Level 3 School Impact Fees

It is not often that the California Supreme Court steps in to reform legislation that would otherwise be unconstitutional, but that’s what it did in Property Reserve, Inc. v. Superior Court (S.Ct. No. S217738), issued July 21, 2016.  The legislation was Code of Civil Procedure sections 1245.010-1245.060, which authorizes precondemnation entry and testing activities by the government on property being considered for condemnation.  The statute contemplates a petition being filed by the government describing the entry and testing desired, which the court can authorize after hearing.  The court may also require a deposit into court to compensate the property owner for damage to his or her property resulting from the government’s activities.

Continue Reading California Supreme Court Salvages Precondemnation Entry Statute by Reforming to Include Right to Jury

On March 17, 2016, the California Supreme Court resolved an important case regarding the California Public Records Act, ruling unanimously that the inadvertent release of confidential documents  does not waive the attorney-client and attorney work product privileges.  Ardon v. City of Los Angeles, 62 Cal.4th 1176 (2016).  The privileges are only waived when the disclosure of otherwise confidential public records is intentional.

Continue Reading Accidental Disclosure Of Public Records Does Not Waive The Attorney-Client And Attorney Work Product Privileges

In its second major eminent domain opinion in as many months, the California Supreme Court in City of Perris v. Richard C. Stamper (S.Ct. No. S213468), issued on August 15, 2016, deals with two issues:  First, is it the role of a judge or a jury to make the preliminary determination of whether a public dedication requirement affecting valuation in an eminent domain case is constitutional?  Second, to what extent does such a dedication requirement constitute a “project effect” which must be ignored in determining the value of condemned property.  The 50 page opinion, complete with a concurrence and dissent by Justice Cuellar, is thorough and comprehensive.

A little background to set the context:  The City of Perris sought to condemn a 1.6 acre strip through the middle of defendant’s property in order to build a road.  The property was undeveloped agricultural land, but the property owner argued that he should be compensated based on the highest and best use of the property, namely light industrial land.  The City responded that any development of the property to light industrial use would trigger a requirement by the City that the same strip of land be dedicated for road construction.  Thus, the rule articulated in City of Porterville v. Young (1987) 195 Cal.App.3d 1260, applied: when a city takes a portion of undeveloped property that it would have lawfully required the owner to dedicate to the city as a condition of developing the remainder of the property, the owner is entitled to compensation based on the undeveloped state of the property (here, agricultural), rather than its highest and best use.

Continue Reading In A Condemnation Case, The Judge – Not Jury – Decides If A Dedication Requirement Meets Constitutional Muster

California’s cities and counties have a long and growing track record of successfully defending challenges to their land use authority filed on behalf of medical marijuana dispensaries.  These successes are largely a product of the broad and deep police power conferred to cities and counties under the California Constitution and the federal government’s inclusion of (and ongoing refusal to remove) marijuana from Schedule I of the Controlled Substances Act.  Schedule I drugs (including heroin and ecstasy) are defined as drugs with “no currently accepted medical use and a high potential for abuse.”  The federal government considers them “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.”

Continue Reading Enacting and Enforcing Local Ordinances to Prohibit Medical Marijuana Dispensaries – Up in Smoke?

On July 28, 2016, in a case of first impression, the Court of Appeal for the Sixth Appellate District held that labor costs for attorneys and paralegals to prepare the administrative record in a land use case are recoverable as expenses under Code of Civil Procedure 1094.5.

The case, No Toxic Air, Inc. v. Lehigh Southwest Cement Company, __ Cal.App.4th __ (2016) (Case No.H040047), arose over the Santa Clara County Board of Supervisors’ decision, in 2011, finding that the Permanente Quarry’s 3,510 acre surface mining operation, producing limestone and aggregate for the manufacture of cement, is a legal nonconforming use.  The quarry has been in operation since 1903 and has expanded substantially since The Permanente Corporation purchased it in 1939, opening new mining areas on the property and acquiring adjacent parcels.

Continue Reading Prevailing Parties in Land Use Litigation May Recover Attorney’s Fees for Preparation of Administrative Record

Developing real property in California is notoriously difficult. Given minimal standing requirements, project opponents can and do tie up and delay new development for the mere cost of a filing fee.  In order to prevail in such challenges, however, project opponents must do more than make empty arguments without adequate factual or legal support.

This principle is addressed in Walters v. City of Redondo Beach, __ Cal.App.4th __ (2016) (Case No. B258638).  In that case, the Court of Appeal for the Second Appellate District affirmed a trial court decision denying a challenge to the City of Redondo Beach’s approval of a conditional use permit for construction of a combination car wash and coffee shop on a vacant lot adjacent to existing homes.  The case also raised interesting CEQA issues regarding the scope of the categorical exemption for new construction or conversion of small structures and the unusual circumstances exception to categorical exemptions.  My partner, Art Coon, will write about those issues in his CEQA Developments blog.

Continue Reading Unsubstantiated Challenges to an Agency’s Conditional Use Permit Findings Will Not Fly

Numerous California communities regulate broad economic development objectives through general plan goals and policies intended to encourage and support small businesses or to ensure the compatibility of new commercial development with the community or neighborhood. Such objectives are susceptible to a range of reasonable interpretations that are difficult to successfully challenge. On July 13, 2016, the Court of Appeal for the Fourth Appellate District partially published Joshua Tree Downtown Business Alliance v. County of San Bernardino, __ Cal.App.4th __ (2016) (Case No. E062479), a case that illustrates the key legal principles—including the correct standard of review—that can make such challenges a little like tilting at windmills. The case also addresses several CEQA issues (including whether the County adequately considered whether project had the potential to cause urban decay and whether an EIR was required because there was substantial evidence to support a fair argument that the project could cause urban decay) my partner Art Coon wrote on this in his CEQA Developments blog.

Continue Reading Court Rejects General Plan Consistency Challenge Regarding City’s Approval of Franchise Retail Store Where Applicable Economic Development Goals and Policies are Alleged to Favor Small, Independent Businesses