Although the federal Controlled Substances Act prohibits the use, possession, manufacture, and sale of marijuana for all purposes, numerous states have loosened their own marijuana laws.  For example, California’s Proposition 215 (the “Compassionate Use Act of 1996”) and its legislatively-adopted “Medical Marijuana Program” have removed certain state law obstacles from the ability of qualified patients to obtain and use marijuana for legitimate “medical” purposes.  Among other things, these laws exempt the “collective[ ] or cooperative[ ] cultiva[tion]” of medical marijuana by qualified patients and their designated caregivers from prosecution or abatement under specified state criminal and nuisance laws that would otherwise prohibit such activities.

An ongoing torrent of cases have tested the scope of those state laws in the land use context.  The resulting decisions have consistently underscored our long-held understanding that land use regulation in California has historically been a function of local government.

Continue Reading Affirming Local Control of Land Use Regulation, Court Holds That <i>Ex Post Facto</i> Laws do Not Apply to Ordinances Regulating Marijuana Dispensaries

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

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

In The Park at Cross Creek LLC v. City of Malibu (2nd Dist. 2017), ___Cal.App.5th___ (Case No. B271620), the Court addressed the validity of a voter enacted initiative, Measure R, designed to limit large developments and chain stores.

The first component of Measure R required the Malibu City Council to prepare a specific plan for every proposed commercial or mixed use development in excess of 20,000 square feet, addressing a number of development specifics including floor area, traffic, view corridors, public facilities and the like.  Following the City Council’s approval, the plan must then be placed on the ballot for voter approval and until such approval, the City may take “no final action on any discretionary approval relating to” the development.  Moreover, once approved, all subsequent permits and approvals must be consistent with the approved development.

Continue Reading Voters May Not Usurp City’s Administrative Land Use Authority Through Initiative Process

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

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

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

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