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.

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

Attorneys are undoubtedly familiar with the adage that “bad facts make bad law.”  When an agency makes a general plan consistency determination, bad facts can also result in a court concluding that the deference typically owed to the agency’s exercise of its land use discretion has exceeded its limits.

On December 15, 2016, in a case keenly followed by land use practitioners throughout California, the state Supreme Court rejected the City of Orange’s determination that a 39-unit residential development project in the Santa Ana Mountains is consistent with its current 2010 General Plan even though the plan designates the property as open space because a resolution from a 1973 specific plan purports to allow residential development on the property.  Orange Citizens for Parks and Recreation v. Superior Court of Orange County, __ Cal.4th __ (2016) (Case No. S212800).  The case is replete with facts that gave the Court reason to conclude the City abused its discretion because “no reasonable person could interpret that plan to include the 1973 resolution.”

Continue Reading California Supreme Court Overturns City’s General Plan Consistency Determination, Holding that 1973 Resolution is Not Part of its Current 2010 General Plan

On November 29, 2016, the Court of Appeal for the First Appellate District rejected a challenge to the sufficiency of the San Francisco’s environmental analysis and upheld the City’s approval of an arena to house the Golden State Warriors basketball team, as well as other events, and the construction of adjacent facilities, in the Mission Bay South redevelopment plan area of San Francisco.  Mission Bay Alliance v. Office of Community Investment and Infrastructure, __ Cal.App.5th __ (2016) (Case No. A148865).  My partner, Art Coon, wrote about the CEQA issues in a post here.

Continue Reading Court Upholds Golden State Warriors’ Mission Bay Event Center and Mixed-Use Development Project

On November 10, 2016, the U.S. Department of Housing and Urban Development and the U.S. Department of Justice released a “Joint Statement” providing updated guidance on the application of the federal Fair Housing Act to state and local land use laws and practices.

The FHA prohibits a broad range of practices that discriminate against individuals on the basis of race, color, religion, sex, national origin, familial status, and disability.  Among other things, the FHA applies to local government entities and prohibits them from making zoning or land use decisions or implementing land use policies that exclude or otherwise discriminate against protected persons, including individuals with disabilities. The FHA does not pre-empt local zoning laws, however, which are is traditionally reserved to state and local governments, except to the extent such laws may conflict with requirements imposed by the FHA or other federal laws.

Continue Reading HUD and DOJ Release Updated Joint Statement on “State and Local Land Use Laws and Practices and the Application of the Fair Housing Act”

In 2005, the United States Supreme Court decided in Kelo v. City of New London, 545 U.S. 469 (2005), that the Constitution allows the government to take private property through eminent domain for the purpose of “economic development,” which it held to constitute a “public use” under the Fifth Amendment. The 5-4 decision sparked a nationwide backlash in which more than 40 states and the federal government adopted eminent domain reform legislation designed to prevent these types of takings.

The case remains exceedingly controversial and has been compared to some of the Supreme Court’s worst decisions, including Dred Scott v. Sandford (denying citizenship to black people and expanding slavery), Plessy v. Ferguson (upholding state racial segregation laws for public facilities under the doctrine of “separate but equal”), and Bowers v. Hardwick (upholding a conviction under a state law criminalizing “homosexual sodomy” (in the privacy of one’s own home)).

Continue Reading <i>Kelo</i> Gives a Reasonable and Long-Accepted Reading of the Fifth Amendment, but it Remains one of the Supreme Court’s Worst Decisions

California’s courts have frequently addressed a party’s due process rights to a fair and impartial decision maker in quasi-judicial proceedings, holding that during such proceedings there must be separation of prosecutorial functions from advisory functions. Those cases do not, however, address the litigation conduct of an administrative agency and its staff when (1) the agency is a party to litigation and, thus, not acting as a decision maker, and (2) staff’s participation cannot affect the fairness and impartiality of the decision maker, which is the court.

On October 28, 2016, in a case of first impression, the Court of Appeal for the First Appellate District ruled that the participation of California Coastal Commission staff members in litigation after they advocated for enforcement orders against Drakes Bay Oyster Company in Commission proceedings does not violate the company’s due process rights. Drakes Bay Oyster Company v. California Coastal Commission, __ Cal.App.5th __ (2016) (Case No. A142820).

Continue Reading Court Rules that California Coastal Commission Staff Members who Participate in Enforcement Proceedings Before the Agency May Also Participate in Related Litigation

On November 7, 2016, the Court of Appeal for the Third Appellate District reversed and remanded a trial court decision addressing a neighborhood group’s challenge to a 328-unit infill residential project in the City of Sacramento.  East Sacramento Partnership for a Livable City v. City of Sacramento, __ Cal.App.5th __ (2016) (Case No. C079614).

Continue Reading Court Defers to City’s General Plan Consistency Findings, Upholding Residential Infill Project

The question of who should pay the cost of municipal services for new residential development is a vexing one.  The answer is critically important to the developers and homebuilders who must finance and market their projects, the residents who will eventually foot the bills, and the communities seeking funds to ensure that new development pays for itself.

On October 13, 2016, the Court of Appeal for the First Appellate District addressed this issue in Building Industry Association of the Bay Area v. City of San Ramon, __ Cal.App.5th __ (2016) (Case No. A145575).  The Court affirmed a trial court decision supporting the City of San Ramon’s formation of a community facilities district and a special tax levied on a 48-unit townhouse project under the Mello-Roos Community Facilities Act of 1982.

Continue Reading Court Upholds City’s Communities Facilities District and Related Special Tax