Photo of Bryan W. Wenter, AICP

Bryan W. Wenter, AICP, is a shareholder in Miller Starr Regalia’s Walnut Creek office and a member of the firm’s Land Use Practice Group. His areas of expertise include general plans and specific plans, planned development zoning, vested rights, subdivision maps, development impact fees and exactions, conditional use permits, variances, initiatives and referenda, RLUIPA, CEQA, Ralph M. Brown Act, and Public Records Act. He previously served as City Attorney and Assistant City Attorney for the City of Walnut Creek.

On July 2, 2017, the California Supreme Court issued its opinion in Lynch v. California Coastal Commission, __ Cal.5th __ (Case No. S221980), holding that the owners of two coastal bluff properties in Encinitas forfeited their right to challenge the California Coastal Commission’s permit conditions by complying with all pre-issuance requirements, accepting the permit, and building the seawall.

Since 1986, the properties have been protected by a shared seawall, with wooden poles, at the base of the bluff and a midbluff erosion control structure.  A shared stairway provided the only access from the blufftop to the beach below.  In 1989, the Commission retroactively approved a coastal development permit for the seawall, midbluff structure, and stairway.  In 2009, the owners applied to the City to replace the aging seawall and midbluff structure with an integrated concrete wall and to rebuild the lower portion of the stairway.  The City approved the project, subject to the Commission’s approval of a coastal development permit.  But while the owner’s permit was pending, heavy winter storms caused the bluff below one of the owner’s homes to collapse, destroying portions of the seawall, midbluff structure, and stairway.

Continue Reading California Supreme Court Holds that Landowners Forfeited Right to Challenge Conditions of Permit to Build New Seawall by Proceeding with Construction

On June 23, 2017, the Supreme Court of the United States finally decided Murr v. Wisconsin, __ U.S. __ (2017) (Case No. 15-214), a case that addressed land use regulations that “merged” adjacent parcels (the first of which was developed with a cabin, and the second of which was undeveloped) into one, for environmental reasons, despite the fact they were separately acquired, owned, taxed. The regulations ultimately prevented the development or sale of the second, undeveloped parcel.

The case sought an answer to the fundamental question, in a regulatory taking case, whether the “parcel as a whole” concept described in Penn Central Transportation Company v. City of New York establishes a rule that two legally distinct, but commonly owned contiguous parcels, must be combined for takings analysis purposes? The State of Wisconsin argued for a rule that would tie the definition of the parcel to state law, considering the two parcels in this case merged under the challenged regulations. The landowners argued for a rule that the lot lines define the relevant parcel.

Continue Reading SCOTUS Announces New Multi-Factor Test to Determine the Relevant Parcel in Regulatory Takings Cases

We’ve come a long way since 1911, when the initiative and referendum processes were enshrined in the state constitution to address corruption in state government caused by special interests.  For some reason that reality reminds me of a scene in Seinfeld’s “The Subway” episode, which had Elaine standing on a New York subway car carrying a large present.  An older woman approaches Elaine and this dialogue ensues:

Woman: “I started riding these trains in the forties.  Those days a man would give up their seat for a woman. Now we’re liberated and we have to stand.”

Elaine: “It’s ironic.”

Woman: “What’s ironic?”

Elaine: “This, that we’ve come all this way, we have made all this progress, but you know we’ve lost the little things, the niceties.”

Woman: “No, I mean what does ironic mean?”

Continue Reading What’s Ironic?

On April 4, 2017, in Young v. City of Coronado, __ Cal. App. 5th __ (2017) (Case No. D070210), the Court of Appeal for the Fourth Appellate District affirmed a trial court decision denying a challenge to the City of Coronado’s designation of a small cottage as a historic local resource.

The cottage owners sought a permit to demolish the structure, built in 1924, but the City’s Historic Resource Commission reviewed the property before issuing the permit and designated the cottage a historic resource under the Coronado Municipal Code.  Under the Code, a resource that is at least 75 years old and meets at least two of five criteria may be designated historic.  City staff identified evidence that the cottage met two of the criteria, and the Commission agreed.

Continue Reading Findings May be Legally Adequate Even if They Merely Recite the Language of the Ordinance

On May 23,2017, the Court of Appeal for the Fourth Appellate District granted a request to publish Kutzke v. City of San Diego, __ Cal. App. 5th __ (2017) (Case No. D070288), another opinion that shows the deference courts give to local land use findings for development projects.

The case involved an application for a vesting tentative map and related permits to subdivide two adjacent lots into four lots, retain an existing home on one lot, and build new homes on the other three lots. A provision in the San Diego Municipal Code allows certain types of projects, including sustainable building projects, to deviate from applicable development regulations if certain findings are made. The project would be a sustainable building project because it would use photovoltaic panels to generate 50 percent of the homes’ electricity needs. The project would deviate from applicable development regulations regarding minimum setbacks and street frontage and maximum height for side yard retaining walls.

Continue Reading Courts Will Not Second-Guess Development Decisions When the Findings are Supported by Substantial Evidence

The attorney-client privilege protects communications made in confidence by a client to its attorney for the purpose of obtaining legal advice.  The privilege can extent to consultants and experts hired by the attorney on behalf of a client so long as the communication involves the subject matter about which the attorney was consulted and the consultant or expert was retained by the attorney to assist the attorney in providing legal advice to the client.

A recent decision out of an Indiana federal court shows the limitations of the attorney-client privilege in this context, wherein communications made in the routine course of business that contain no privileged information and that are devoid of legal advice or requests for advice are not protected and can be discovered.

Continue Reading Court Holds that Attorney-Client Privilege Extends to Environmental Consultants Hired by an Attorney on Behalf of a Client, but Only to the Extent Communications are Made for the Purpose of Obtaining Legal Advice from the Attorney

California provides relatively short statutes of limitations for challenges in the land use context. For example, Government Code section 65009(c)(1) provides that “no action or proceeding shall be maintained [for a wide range of development approvals] by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision . . . .”  Under section 65009(c)(1)(E), any challenge to a “variance, conditional use permit, or any other permit” must be made within 90 days of the decision.  And section 65009(e) provides that once the time limit has expired “all persons are barred from any further action or proceeding.”

These types of short limitations periods are intended to provide certainty for property owners and local governments regarding land use decisions and to alleviate the chilling effect on the confidence with which property owners and local governments can proceed with projects  involving potential legal challenges to land use decisions.

Continue Reading Court Rejects Late Challenge to Permits for New Lifeguard Station on San Diego’s Mission Beach

Last September we wrote about 616 Croft Ave., LLC v. City of West Hollywood, an opinion from the Court of Appeal for the Second Appellate District upholding a nearly $555,000 in-lieu fee on an 11-unit residential infill project because the fee was “related to the cost of constructing affordable housing units within the City.”  Among other things, we noted that the case “underscores the ongoing need for the United States Supreme Court to finally address whether the heightened scrutiny of the Nollan, Dolan, and Koontz Fifth Amendment takings cases applies to legislatively imposed permit conditions.”

On December 21, 2016, the California Supreme Court denied a petition to review 616 Croft Ave., LLC.  A petition for writ of certiorari was filed on March 15, 2017 (Case No. 16-1137), giving SCOTUS its opportunity to consider the case.

Continue Reading New Cert Petition Asks SCOTUS if Legislatively Mandated Permit Conditions are Subject to Heightened Scrutiny

Vampire Weekend may not “give a f— about an Oxford comma,” but I certainly do.  And so, too, does the United States Court of Appeals for the First Circuit, which opened a recent opinion, in a class action lawsuit about overtime pay for a dairy company’s delivery drivers, with these words:

“For want of a comma, we have this case.”

Also known as the serial comma, the Oxford comma is the comma after the second-to-last item in a list of three or more things.  It is, in other words, the comma that precedes the words “and” or “or.”

Continue Reading The Case of the Missing $10M Oxford Comma

On March 2, 2017, in what is easily the sunniest day in this long, wet winter, the Supreme Court of California issued a landmark ruling regarding the California Public Records Act (Cal. Govt. Code § 6250 et seq.), holding that communications related to the conduct of public business do not cease to be public records merely because they were sent or received using a personal account.  City of San Jose v. Superior Court (Smith), __ Cal.4th __ (2016) (Case No. S218066).  The Court’s cogent opinion ensures broad access to public records in all forms and in all locations, including emails and text messages located on private accounts, devices, and servers.

Continue Reading California Supreme Court Holds that Communications Related to Public Business do not Cease to be Public Records Just Because They Were Sent or Received Using a Personal Account or Device