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.

The use and abuse of the California Environmental Quality Act and the elections laws by special interests such as business competitors and labor unions is a pervasive and problematic feature of the California development process.  Although the state legislature has done little or nothing to correct this unfortunate and well-documented reality—and in fact the legislature is sometimes complicit in it, as my partner, Art Coon, and I recently wrote about here—the courts have been more willing to reject such abuses.  The First District Court of Appeal did just that in San Bruno Committee for Economic Justice v. City of San Bruno, __ Cal.App.5th __ (Sept. 20, 2017), rebuffing the efforts of a phony special interest group and a hotel and restaurant workers’ union to use the referendum process to thwart a private hotel development that would not employ union workers.

Continue Reading Court Rejects Labor Union’s Referendum Petition to Thwart City’s Sale of Land to Private Hotel Developer Whose Project Would Not Employ Union Workers

Since 1907, the Subdivision Map Act has “grandfathered” older subdivisions and the parcels they created if they were properly recorded under any law (including a local ordinance), regulating the design and improvement of subdivisions in effect at the time the map was recorded.  Over the years numerous cases have addressed these so-called “antiquated” subdivisions when landowners have sought affirmatively either to confirm the status of parcels or to obtain relief for land subdivided under older maps that predate the current version of the Map Act.

In Save Laurel Way v. City of Redwood City, __ Cal.App.5th __ (Aug. 29, 2017), the First District Court of Appeal addressed a challenge to the first phase of a two-phase development project on parcels created in a 1926 subdivision when the project area was in the jurisdiction of the County of San Mateo.  In the first phase, the City approved a development permit to construct elements such as a cul-de-sac for a fire truck turnaround, a fire hydrant, new streetlights, pedestrian pathways, an open space land dedication, and other civic improvements.  The second phase would involve additional permits and conditions for construction of residences on each lot.

Continue Reading Court of Appeal Rules That Subdivision Map Act Does Not Require City to Determine Legal Status of Lots Created by Older Map Before Approving Development Permit to Allow Construction of Infrastructure Improvements

Since California voters approved Proposition 13 in 1978 to limit property taxes, raising taxes to fund infrastructure, facilities, and services has required a vote at a general election.  In subsequent years, Propositions 62, 218, and 26 added a range of additional limitations on taxation and other forms of public finance.  Collectively, those measures have had myriad effects on the ways cities and counties accomplish the public’s business, including the “fiscalization of land use” and the creation of complicated alternative public finance techniques.

On August 28, 2017, a divided California Supreme Court issued an important new decision authored by Justice Cuéllar—California Cannabis Coalition v. City of Upland, __ Cal.5th __ (Case No. S234148)—that addresses whether constitutional measures such as Proposition 218, which limit the ability of “local governments” to impose, extend, or increase general taxes, also restrict the constitutional right of voters to impose taxes via ballot initiative.

Continue Reading California Supreme Court Decision Makes it Far Easier to Raise Taxes

In 2011, Pasadena was hit by a powerful storm carrying hurricane force winds that injured more than 5,000 City-owned trees, 2,000 of which were uprooted.  During the course of the storm, an approximately 110 foot tall Canary Island pine tree located on City property fell on a private residence, causing severe property damage.

The homeowners’ insurer paid more than $700,000 in insurance benefits.  As subrogee under the homeowners’ insurance policy, the insurer sued the City for inverse condemnation, under the California Constitution, on the theory that the City owned the tree and maintained and cared for it as part of the City’s tree protection regulations.  The trial court agreed and found the City liable in inverse condemnation on the grounds that the tree that fell was a public improvement maintained for a public purpose, the damage to the residence was proximately caused by the improvements, and the City is strictly liable for the property damage.  The court awarded the insurer approximately $800,000 in damages and $330,000 in costs.

On August 24, 2017, in Mercury Casualty Company v. City of Pasadena, __ Cal.App.5th __ (Case No. B266959 & B268452), the Court of Appeal for the Second Appellate District reversed the trial court judgment and cost order.

Continue Reading The Takings Tree?

The California Public Records Act provides for public inspection of records maintained by state and local agencies and declares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”  To effectuate the public’s right to see public records subject to disclosure, the PRA allows any person to institute proceedings for injunctive or declarative relief or writ of mandate.  Moreover, the “prevailing party” in PRA litigation is entitled to attorney fees.  The fee award “is mandatory if the plaintiff prevails.”

As the Court of Appeal for the Fourth Appellate District wrote on August 15, 2017 in Sukumar v. City of San Diego, __ Cal.App.5th __ (Case No. D071527), the “losing party may still be deemed a prevailing party entitled to an attorney fee award.”  The rationale is that the plaintiff has prevailed under the PRA when he or she files an action that results in the defendant public agency releasing a copy of a previously withheld document.  Thus, a plaintiff need not achieve a favorable final judgment to be a prevailing party in PRA litigation.  A defendant’s voluntary action in providing public records that is induced by a plaintiff’s lawsuit will still support an attorney fee award if the lawsuit “spurred defendant to act or was a catalyst speeding defendant’s response.”

Continue Reading Petitioner is Prevailing Party Entitled to Attorney Fees Where Undisputed Evidence Proves that Writ Petition Motivated City to Produce Responsive Documents

Martins Beach, near Half Moon Bay in the County of San Mateo, is the subject of protracted litigation on various fronts stemming from tech billionaire Vinod Khosla’s 2009, decision to change the public’s access to and use of Martins Beach by permanently closing and locking a gate to the public across Martins Beach Road, adding signs to the gate, changing the messages on a billboard on nearby Highway 1, and hiring security guards to deter the public from crossing or using the property to access the beach.  From the 1930s or earlier, Khosla’s predecessor encouraged the public to use the road to access Martin’s Beach.  They also erected the billboard, which invited the public to use the beach, and provided a general store, public toilets, and a parking area.  For some of that time they charged a $.25 entry fee.

We wrote about one strand of the litigation last year—Friends of Martin’s Beach v. Martin’s Beach 1 LLC, 246 Cal.App.4th 1312 (2016)—in which the California Court of Appeal for the First Appellate District addressed an unincorporated association’s lawsuit seeking access to the coast at Martins Beach based on claimed rights of access under various theories.  In Friends of Martins Beach, the Court of Appeal held that a plaintiff group had alleged facts sufficient to state a common law dedication claim and thus remanded that claim to the trial court.  Because the Friends of Martin’s Beach case is still pending there, the existence of public access rights to Martins Beach is presently undetermined.

Continue Reading California Court of Appeal Again Rules in Favor of Public Against Billionaire Owner of Martins Beach

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