The law is replete with references to famous passages from literature and poetry, perhaps to follow Mark Twain’s pithy observation that “plain clarity is better than ornate obscurity.” So began Hauser v. Ventura County Board of Supervisors, __ Cal.5th __ (2018), in which the Second District Court of Appeal’s February 20, 2018 opinion started with the following:

“This case calls to mind the poem ‘The Tyger’ from Songs of Experience by William Blake, the last stanza of which reads: ‘Tyger! Tyger! Burning bright In the forests of the night, What immortal hand or eye Dare frame thy fearful symmetry!’ ”

The case involved a quixotic challenge to the Ventura County Board of Supervisor’s 4-1 decision to deny a conditional use permit (“CUP”) to keep five tigers on a 19-acre property in the unincorporated Deer Creek Canyon area of the County, near Malibu. There are 46 homes within a mile, and two children’s camps within two to three miles, of the property. The project would include three tiger enclosures, a 13,500-square-foot arena, and an eight-foot-high chain link perimeter fence encompassing more than seven acres.

Continue Reading Court Rejects Challenge to Ventura County’s Denial of Conditional Use Permit

The law has many terms for the word “fairness,” including due process, good faith, neutral, and unbiased. And among the basic principles of fairness, the Latin maxim “nemo debet esse judex in propria causa” stands out. It provides, essentially, that no one should be a judge in their own case or in a case in which they have an interest.

This famous legal maxim was squarely addressed in a recent case of first impression, Lippman v. City of Oakland, __ Cal.5th__ (2018), where California’s First District Court of Appeal reversed a trial court decision that rejected a landowner’s challenge to a building code violation reviewed by a single hearing officer appointed by the same branch of the City that issued the disputed citation. The decision was originally filed December 22, 2017 and later certified for publication on January 22, 2018.

Continue Reading City of Oakland’s Building Code Appeal Process Violates State Law and Infringes Private Property Rights the State of California Has an Interest in Protecting

First term California State Senator Scott Wiener has quickly become a state leader on housing policy.  Last year the San Francisco-based senator sponsored Senate Bill 35, which creates a streamlined approval process, in cities that do not meet their state-mandated housing goals, for certain multi-family residential projects that include affordable housing.  SB 35 was a signature part of 15 housing bills Governor Jerry Brown signed last fall.  Fresh on the heels of that success, Senator Wiener introduced a trio of bills, on January 3, 2018, that are part of what he describes as a “housing-first policy.”

According to Senator Wiener, the proposed bills would:

  • Mandate denser and taller housing near transit (Senate Bill 827, co-authored by Senators Nancy Skinner of Berkeley and Phil Ting of San Francisco).
  • Reform the Regional Housing Needs Assessment (RHNA) process by creating a clearer, more data-driven, and equitable process for assigning RHNA numbers to local communities, and require local communities to make up for past RHNA deficits (Senate Bill 828).
  • Create a “by right” process that allows farm owners and operators to develop agricultural land for employee housing (Senate Bill 829, co-authored by Senator Andy Vidak of Hanford).

Continue Reading Ambitious “Housing-First Policy” for “Transit-Rich Housing” Would Require Greater Density and Height for Housing Near Transit, Potentially Adding Millions of New Homes

On December 7, 2017, a three judge panel of the U.S. Court of Appeals for the Ninth Circuit held that the County of Ventura’s land use regulations, which require a conditional use permit for “temporary outdoor” events, violate the First Amendment’s protections of free speech and expression.

The case, Epona, LLC v. County of Ventura, __ F.3d __ (9th Cir. 2017), arose out of a CUP application to use a 40-acre working ranch and vineyard known as the Epona Estate for up to 60 outdoor events per year, including weddings.  The property is zoned for agricultural use, and neighboring properties are designated either as agricultural or as open space.

Continue Reading Ninth Circuit: Ventura County Outdoor Wedding Regulations Violate First Amendment

American humorist Will Rogers once quipped, “The minute you read something that you can’t understand, you can almost be sure it was drawn up by a lawyer.”  There are, of course, many other similarly amusing criticisms of legal writing.  According to former Yale Law School professor Fred Rodell, for example, “There are two things wrong with almost all legal writing.  One is its style. The other is its content.”

To the extent such assessments ever ring true, they are especially unfortunate when given life in the form of a poorly-written published court opinion addressing important legal issues.  The Fourth District Court of Appeal’s October 31, 2017 opinion in The Kennedy Commission v. City of Huntington Beach, __ Cal.App.5th __ (2017) serves as a prime recent example.  The saving grace is that the Court reached the right legal conclusion.

Continue Reading Huntington Beach Specific Plan Exempt From General Plan Consistency Requirement

The threshold procedural requirements for litigating decisions made by California municipalities are critically important, and failure to meet such requirements generally leads to harsh results.  These issues were on full display in Los Globos Corporation v. City of Los Angeles, __ Cal.App.5th __ (2017), a recent decision of the Second District Court of Appeal, published on November 20, 2017, which highlights the importance of exhausting administrative remedies within the generally short statutes of limitation provided in state and local law.

The case arose out of a dispute over several issues regarding the operation of the Los Globos nightclub, including whether the club was required to have a permit to operate a “dance hall” and whether the club had a valid certificate of occupancy for dancing on the first floor of its two-story building.  City inspectors eventually confiscated the club’s occupancy load cards and certificate of occupancy, without a public hearing.  Under relevant provisions of the Los Angeles Municipal Code, the club had 15 days to appeal the “revocation, suspension, or denial” to a board of building and safety commissioners. Continue Reading Failure to Exhaust Administrative Remedies Dooms Nightclub’s Challenge to City Inspectors’ Administrative Reduction of Allowable Occupancy

Early last summer the U.S. Supreme Court released its long-awaited, and deeply flawed decision in Murr v. Wisconsin, __ U.S. __ (2017).  We wrote about this unfortunate new takings case here and in “Missed Opportunity In Takings Decision,” Daily Journal (July 13, 2017).

The short story is that the Murr family bought two adjacent parcels at separate times in the early 1960s near the St. Croix River in Wisconsin, a designated wild and scenic river.  They built a small, 950-square foot cabin on one of the parcels and kept the other parcel vacant as an investment.  The Murr children later acquired both parcels and sought to sell the vacant parcel in the 1990s to finance improvements to the rustic, 57-year old, cabin.  But a Wisconsin statute and county zoning ordinance, enacted in the 1970s, prevented the Murrs from selling or developing the vacant parcel because it was smaller than the minimum size deemed suitable for development even though it has a half acre of developable land, meets all environmental regulations and setbacks, and is surrounded by development on similarly sized parcels.  Because the parcel was still undeveloped, now held in common ownership, and deemed substandard, it was treated as “merged” with the developed parcel.

Continue Reading <i>Murr</i> Epilogue: Wisconsin Lawmakers Pass “Homeowners Bill of Rights,” Effectively Reversing Flawed U.S. Supreme Court Decision

The United States Supreme Court has had numerous opportunities in recent years to address an important and unsettled issue under the Takings Clause: whether heightened scrutiny under Nollan, Dolan, and Koontz applies in cases where an alleged taking arises from a legislatively imposed condition rather than an administrative one.  The Court’s most recent denial of certiorari in such a case occurred on October 30, 2017, in 616 Croft Ave., LLC v. City of West Hollywood (Case No. 16-1137).

616 Croft Ave. concerned the City of West Hollywood’s imposition of a $540,000 “in-lieu” affordable housing fee, under the City’s inclusionary housing ordinance, in connection with the development of an 11-unit condominium project.  The case addressed the California Supreme Court’s denial of a petition to review a Second District Court of Appeal decision that upheld the legality of the fee pursuant to the state Supreme Court’s decision in California Building Industry Association v. City of San Jose, 61 Cal. 4th 435 (2015).

Continue Reading U.S. Supreme Court Again Declines to Consider Important Property Rights Issue Regarding the Unconstitutional Conditions Doctrine

In Dryden Oaks, LLC v. San Diego County Regional Airport Authority, __ Cal.App.5th __ (October 19, 2017), the Fourth District Court of Appeal published a previously unpublished opinion addressing both regulatory takings and pre-condemnation damages claims.  The case arose out of a complicated set of facts involving two properties near McClellan Palomar Airport in Carlsbad.

In short, in 2002 the City approved permits for both lots despite the San Diego County Regional Airport Authority’s determination the projects were incompatible with the airport.  The developer completed construction of a commercial building on one of the lots in 2005, but the second permit expired in 2012 without commencement of any construction.  The developer filed an application to restart the process for the second lot, but by that time the Authority had adopted an Airport Land Use Compatibility Plan that designated the property within a higher risk safety zone.  Thus, despite its earlier decision to override the Authority’s objections under the predecessor plan to the ALUCP, the City now refused to do so.

Continue Reading Court Rejects Regulatory Takings and Pre-Condemnation Misconduct Claims Based on Airport Land Use Commission’s Reclassification of Property Within Different Safety Zone

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