California law contains several critical limitations on the exercise of the police power conferred in Article XI, Section 7 of the state constitution. As set forth in Government Code section 65858, the moratorium statute allows cities and counties to adopt 45-day “interim ordinances” to prohibit land uses that may conflict with a contemplated general plan amendment or another land use proposal the legislative body is studying or intends to study within a reasonable period of time. Such ordinances can be extended so that the maximum term of the moratorium does not exceed two years.
On May 8, 2019, in Cedar Point Nursery v. Shiroma, __ F.3d __ (Case No. 16-16321) (2019), a 2-1 Ninth Circuit panel majority held that a California regulation allowing union organizers access to agricultural employees on employers’ private property, to communicate about union organization under certain limited circumstances, is not a Fifth Amendment taking.
On April 5, 2019, in a case originally filed March 8, 2019, the Second District Court of Appeal certified for publication York v. City of Los Angeles, __ Cal.App.5th __ (Case No. B278254) (2019), an inverse condemnation case filed when the City of Los Angeles approved the construction of an 8,000 square foot home, 1,300 square foot guest house, driveway, swimming pool, tennis court, storage sheds, retaining walls, and “wine caves” on a 40-acre parcel in the Hollywood hills but denied the landowners’ request for approximately 79,000 cubic yards of grading that accompanied the proposed project.
Under the then-applicable version of the City’s grading ordinance, the maximum grading permitted on the property as a matter of right was 3,300 cubic yards. But the ordinance provides the zoning administrator discretion to grant a “deviation” to allow additional grading in excess of the maximum allowed “by-right” if the zoning administrator makes certain required findings.
California’s ongoing housing crisis has many causes, including, as prominently noted in the Housing Accountability Act, the “activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing.” See, e.g, Cal. Gov’t Code § 65589.5(a)(1)(B). Fortunately, however, these abuses of the police power are driving the legislature to act. For example, in explaining the purpose of Senate Bill 50, which we wrote about here, California State Senator Scott Wiener explained that “absent state intervention, communities will continue to effectively prohibit people from living near transit and jobs by making it illegal to build small apartment buildings around transit and jobs, while fueling sprawl and inhumane supercommutes.”
On April 3, 2019, in a case originally filed March 6, 2019, the First District Court of Appeal certified for publication Point San Pedro Road Coalition v. County of Marin, __ Cal.App.5th __ (Case No. A150002) (2019), an interesting opinion addressing the limits of the power local agencies have to approve changes to non-conforming land uses.
On March 7, 2019, the Fourth District Court of Appeal published Southcott v. Julian-Cuyamaca Fire Protection District, __ Cal.App.5th __ (Case No. D074324) (2019), another in a long line of cases addressing the limitations on the scope of the constitutional referendum process.
Takings cases involving transportation agencies such as Caltrans typically involve physical occupations of land under the law of eminent domain. In a twist on such physical occupation, in a case originally filed on December 12, 2018, and published January 11, 2019, the Third District Court of Appeal held, in Prout v. Department of Transportation, 31 Cal.App.5th 200 (2019), that Caltrans’ physical occupation, without compensation, of a strip of land fronting State Highway 12 in the County of Calaveras to make highway improvements was a valid acceptance of an offer of dedication that did not amount to a taking under the law of inverse condemnation.
Continue Reading Caltrans’ Acceptance of Offer of Dedication by Physical Occupation Does Not Lead to Takings Liability
Declaring there to be a statewide housing emergency, California state Senator Nancy Skinner (D-Berkeley) introduced Senate Bill 330, on February 19, 2019, to suspend certain regulatory restrictions on the development of new housing and to expedite the permitting of housing in certain high-cost regions for a 10-year period.
“Out here, due process is a bullet!” – John Wayne
As a general principle, the federal and state constitutions prohibit governmental entities from depriving persons of property without due process of law. But as the Second District Court of Appeal reminded us on January 9, 2019, in Venice Coalition to Preserve Unique Community Character v. City of Los Angeles, __ Cal.App.5th __ (2019), not all governmental actions in land use matters sufficiently implicate property interests to require the procedural due process protections of reasonable notice and an opportunity to be heard.
On December 6, 2018, the California Attorney General issued an opinion (No. 14-403) in response to a request from Mendocino County Counsel Katherine L. Elliott to address three questions regarding the balance of land use regulatory authority between cities and counties. According to the request, in 1993 an incorporated city acquired real property, outside the city limits, in an unincorporated area of the County. When it acquired the property, the city assumed an existing lease that covered a portion of the property, becoming a lessor to the private business that was operating and continues to operate there. The Attorney General was thus asked, in this context, to determine whether and under what circumstances a city and its private lessee may be exempt from the county’s building and zoning ordinances.