On May 4, 2021, the Second District Court of Appeal affirmed a trial court decision, in Kracke v. City of Santa Barbara, __ Cal.App.5th __ (2021) (Case No. B300528), enjoining the City of Santa Barbara’s enforcement of a short-term vacation rental ban in the coastal zone, through proactive enforcement of existing zoning regulations, unless it obtains Coastal Commission approval or a waiver of such requirement.
In Ruegg & Ellsworth v. City of Berkeley, __ Cal.App.5th __ (2021) (Case No. A159218), the first published appellate decision addressing Senate Bill 35, the First District Court of Appeal reversed a trial court decision in favor of the City of Berkeley regarding a project with apartments over retail filed under the provisions of Senate Bill 35. The Court of Appeal rejected all of the City’s arguments, reversed the trial court in all respects, including its use of a deferential standard of review, and required the City to issue the requested ministerial permit approving the project.
In a case that exists only because of the choices a city made in both application decision-making and litigation, the Second District Court of Appeal held, in Felkay v. City of Santa Barbara, __ Cal.App.5th __ (2021), that multiple applications are not required where the permit denial makes clear that no development of the property would be allowed under any circumstance.
During California’s strawberry harvesting season in the summer of 2015, union activists entered a nursery’s property under the authority granted by a California regulation that allows union organizers to enter the private property of agriculture businesses for three hours at a time, 120 days per year, to recruit potential new members. The organizers entered the nursery’s property with bullhorns in hand, distracting and intimidating hundreds of employees who were preparing young strawberry plants for shipment. For three consecutive days during the same summer, the organizers also attempted to enter the private property of a family-owned grower and shipper of fresh produce.
In a low-profile but important new decision, San Luis Obispo Local Agency Formation Commission v. City of Pismo Beach, __ Cal.App.5th __ (2021) (Case No. B296968), the Second District Court of Appeal affirmed a trial court decision and held that the Cortese-Knox-Hertzberg Act (Gov. Code § 56000 et seq.) does not authorize a local agency formation commission (“LAFCO”) to require an indemnification agreement or to require the payment of attorney fees based on such an agreement.
As former U.S. Supreme Court Justice John Paul Stevens famously explained, more than 30 years ago, about the Supreme Court’s takings cases:
“Even the wisest of lawyers would have to acknowledge great uncertainty about the scope of this Court’s takings jurisprudence.”
Nollan v. California Coastal Comm’n, 483 U.S. 825, 866 (1987) (dissenting opinion).
The often invoked but rarely successful laches doctrine is an equitable defense when a party unreasonably delays enforcing a right and when granting the relief sought would prejudice the adverse party. A petition for “exclusion” is an equitable process under California’s Subdivision Map Act, to compel a local agency to redraw or discard a recorded subdivision map, and it is even rarer. These issues recently collided in Decea v. County of Ventura, __ Cal.App.5th __ (2020) (Case No. B302086), a Second District Court of Appeal case involving a landowner’s attempt to seek a court order declaring void a 1974 parcel map that was prepared and recorded under prior ownership and to restore the prior lot lines of a 1923 map.
On January 8, 2021 California Governor Gavin Newsom proposed an expansive state budget that includes $1.75 billion to purchase additional motels, develop short-term community mental health facilities, and purchase and preserve housing dedicated to seniors, $500 million in low income housing tax credits, and $250 million for infill infrastructure intended to facilitate housing.
On December 18, 2020, the Fourth District Court of Appeal published 11 Lagunita, LLC v. California Coastal Commission, __ Cal.App.5th __ (2020) (Case No. G058436), a case involving a Coastal Development Permit issued by the California Coastal Commission in 2015 for the reinforcement of an existing seawall that was installed years earlier, before the Coastal Act, at the base of a 1950’s era Laguna Beach home.
In a concise December 7, 2020 opinion, Hotop v. City of San Jose, __ F.3d __ (2020) (Case No. 18-16995), a 3-0 panel of the Ninth Circuit Court of Appeals affirmed the district court’s dismissal of an action alleging that portions of San Jose’s “Apartment Rent Ordinance” violated the Fourth, Fifth, Fourteenth, and Contracts Clause rights of individual apartment owners and an unincorporated trade association of San Jose landlords. The challenged regulations require landlords to disclose information about rent stabilized units to the City and condition landlords’ ability to increase rents on providing that information. In essence, the regulations limit rent increases on approximately 38,000 apartments in San Jose. Although the regulations have existed in various forms since 1979, San Jose remains one of the least affordable communities in the United States.