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 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

On February 28, 2017, just six days after oral argument in Wilson v. County of Napa, __ Cal.App.5th __ (2016) (Case No. A149153), the Court of Appeal for the First Appellate District affirmed a trial court decision in favor of the County of Napa, whose registrar of voters refused to place a land use initiative on the ballot because the initiative petition failed to include the “full text” of the measure.  My partner, Art Coon, successfully represented the County in the action.

Continue Reading Court of Appeal Clarifies Meaning of “Full Text” Requirement for Ballot Initiatives

Boundary disputes are one of the most actively litigated areas of real property law.  One common category of such disputes involves the trimming of a neighbor’s tree, either to remove branches that have grown over a property line or to maintain or improve views.  While California law generally provides no right to an unobstructed view, an issue we previously addressed here, an adjoining landowner may reasonably trim the branches of a neighbor’s tree to the property line.  Adjoining landowners may not, however, enter a neighbor’s property to abate the encroachment, and the potential cost of doing so just increased substantially.

On January 31, 2017, in a case of first impression, the Court of Appeal for the Second Appellate District ruled that annoyance and discomfort damages resulting from tortious injuries to timber or trees are subject to the statutory damage multiplier.  Fulle v. Kanani, __ Cal.App.5th __ (2016) (Case No. B271240).  The case involved contiguous properties, separated by a fence, in a hillside neighborhood of Encino.  The plaintiff’s property contained five mature eucalyptus trees and a black walnut tree, all of which provided her with aesthetic benefits, shade, and privacy.  The trees also partially blocked the defendant’s view of the San Fernando Valley.  Shortly after acquiring his property, the defendant hired a work crew that entered the plaintiff’s property without her permission, cut the trees to approximately half their height, and removed all of their branches.

Continue Reading Annoyance and Discomfort Damages Resulting from Injury to Trees are Subject to the Statutory Damage Multiplier

On January 24, 2017, the Court of Appeal for the Sixth Appellate District interpreted Government Code section 53094 and held that, unlike school districts, county boards of education cannot be exempted from local zoning requirements.  San Jose Unified School District v. Santa Clara County Office of Education, __ Cal.App.5th __ (2016) (Case No. H041088).

Section 53094 authorizes “the governing board of a school district” to “render a city or county zoning ordinance inapplicable to a proposed use of property by the school district,” under certain circumstances.  Through the adoption of section 53094, the legislature intended to forestall local obstruction of state-sanctioned school construction and school location.

Continue Reading County Boards of Education Cannot be Exempted from Local Zoning Requirements

On January 5, 2017, the Court of Appeal for the Fourth Appellate District partially published Hernandez v. Town of Apple Valley, __ Cal.App.5th __ (2016) (Case No. E063721).  The published portion of the opinion addresses important issues arising in connection with alleged violations of both the Ralph M. Brown Act and California Constitution.  In particular, the case centered on an allegedly defective agenda description for a land use initiative to amend a specific plan to allow a 30-acre commercial development anchored by a Walmart Supercenter.

Continue Reading Agenda with Superficial Description Violated Brown Act but Related Land Use Initiative for a Walmart Store did not Violate California Constitution