The City of Rancho Palos Verdes is the site of the ancient Portuguese Bend and Abalone Cove landslides, both of which remain active. In 1978, in response to movement of the Abalone Cove landslide, the City adopted an “urgency ordinance” establishing the “Landslide Moratorium Area,” which generally prohibits new residential development in the landslide area. The moratorium area is divided into eight zones of varying stability. The ordinance and subsequent amendments created various categories of exceptions to and exclusions from the moratorium that have been the subject of extensive litigation.
California Supreme Court Confirms That Referendum Petition Can Challenge Zoning Intended to be Made Consistent with General Plan
By Bryan W. Wenter, AICP on
On August 23, 2018, the California Supreme Court held, in City of Morgan Hill v. Bushey, __ Cal.4th __ (2018) (Case No. S243042), that a referendum petition to challenge a zoning ordinance amendment that would bring the ordinance into compliance with the county’s or city’s general plan is valid, even though such a referendum would temporarily leave in place zoning that does not comply with the general plan, at least if the local agency has other means to make the ordinance consistent with the plan. The Court reasoned that such a referendum simply keeps the underlying inconsistency in place for a certain time––until the local agency can make the zoning ordinance consistent with general plan.
House of Representatives Again Passes Private Property Rights Protection Act
By Bryan W. Wenter, AICP on
Posted in Takings
On July 23, 2018, the U.S. House of Representatives unanimously passed the Private Property Rights Protection Act of 2017 (H.R. 1689). Sponsored by Wisconsin Congressman F. James Sensenbrenner, Jr. and California Congresswoman Maxine Waters, the Act intends to address Kelo v. City of New London, the controversial 2005 U.S. Supreme Court decision that affirmed the right of a city to use the power of eminent domain to take and transfer property from one private party to another for the “public purpose” of economic development.
Continue Reading House of Representatives Again Passes Private Property Rights Protection Act
California Appellate Court Rules in Favor of Defunct National Conference of Black Mayors and Controversial Former Sacramento Mayor Kevin Johnson in Novel Public Records Act Attorney Fee Litigation
By Bryan W. Wenter, AICP on
Posted in Public Records
On July 25, 2018, the Third District Court of Appeal published Nat’l Conference of Black Mayors v. Chico Community Publishing, Inc. , __ Cal.App.5th __ (2018) (Case No. C083956), a case of first impression addressing whether the Public Records Act allows an award of attorney fees to a requester who litigates against an officer of a public agency in a mandamus action the officer initiated to prevent the public agency from disclosing records the agency agreed to disclose.
California Appellate Court Upholds Settlement Agreement for $100M Malibu Beach Restoration Project
By Bryan W. Wenter, AICP on
On June 12, 2018, in County of Ventura v. City of Moorpark and Broad Beach Geologic Hazard Abatement District, __ Cal.App.5th __ (2018) (Case No. B282466), the Second District Court of Appeal published a decision addressing whether the California Environmental Quality Act’s broad definition of “project also applies to statutory exemptions, questions of state law preemption, the limits of a city’s contractual authority, and the abdication of a government entity’s police power. My partner, Art Coon, wrote about the CEQA issues here.
Court Holds that HOA’s Short-Term Rental Regulations Constitute “Development” Under the California Coastal Act
By Bryan W. Wenter, AICP on
Posted in Coastal Act, Miscellaneous
The harsh effects on property rights resulting from the California Coastal Act’s broad definition of “development” are on display again following the Second District Court of Appeal’s March 27, 2018 opinion, in Greenfield v. Mandalay Shores Community Association, __ Cal.App.5th __ (2018) (Case No.B281089), where the Court held that “[t]he decision to ban or regulate [short-term rentals] must be made by the City and Coastal Commission, not a homeowner’s association.”
Attorney General Confirms that Disposition of Real Property Under Long Range Property Management Plan is an Administrative Act not Subject to Referendum
By Bryan W. Wenter, AICP on
Posted in Initiatives and Referenda, Miscellaneous
On April 27, 2018, the California Attorney General published an opinion (No. 17-702) concluding that a City of Hollister resolution approving the execution of an agreement to sell real property for development, pursuant to an approved plan for disposing a dissolved redevelopment agency’s property, is not subject to referendum.
The question arose following the City’s adoption of a resolution authorizing its city manager to enter into a disposition and development agreement for the sale and development of real property that would implement the Long Range Property Management Plan approved by the oversight board and the state Department of Finance. (Interestingly, the resolution was adopted by the City Council rather than the Successor Agency, a separate legal entity charged with winding down and completing the activities of the former redevelopment agency). The project would consist of two buildings: one two-story, 9,000 square foot philanthropic center and new headquarters for the Community Foundation for San Benito County; and a second, three-story building with 8,000 to 11,000 square feet of ground floor commercial retail space and 14 to 22 condominiums.
Court Holds that for Purposes of Calculating Level 1 School Impact Fees, “All Interior Space is Assessable”
By Bryan W. Wenter, AICP on
On March 29, 2018, in 1901 First Street Owner, LLC v. Tustin Unified School District, __ Cal.App.5th __ (2018) (Case No. G054086), the Fourth District Court of Appeal addressed an important case of first impression regarding the question whether the square footage of interior space outside individual apartment units—i.e., interior common area—should be included in the calculation of Level 1 school impact fees. Interpreting the key provisions of the relevant school fee statutes, the Court of Appeal concluded that “assessable space” includes all interior common area.
Another Day, Another Challenge to Local Zoning of Medical Marijuana Dispensaries Goes Down in Smoke
By Bryan W. Wenter, AICP on
In the year of the 25th anniversary of Groundhog Day, starring Bill Murray, about a weatherman named Phil Connors who finds himself repeatedly living the same frustrating day, a California court rejected yet another lawsuit by a medical marijuana dispensary to a city’s determination that dispensaries are not a valid local land use and, accordingly, ordering the dispensary to close. The Sixth District Court of Appeal opinion in J. Arthur Properties, II, LLC v. City of San Jose, __ Cal.App.5th __ (2018) (Case No. H042938), filed and published on March 19, 2018, calls to mind several quotable quotes from Groundhog Day, including this gem: “Am I upsetting you, Princess? You know, you want a prediction about the weather, you’re asking the wrong Phil. I’ll give you a winter prediction: It’s gonna be cold, it’s gonna be gray, and it’s gonna last you for the rest of your life.”
U.S. Supreme Court Agrees to Hear Case Requesting Reconsideration of Williamson County’s Unfair and Unworkable State Court Exhaustion Requirement
By Bryan W. Wenter, AICP on
On March 5, 2018, the U.S. Supreme Court granted certiorari in Knick v. Township of Scott (Case No. 17-647) to address the requirement, established in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-96 (1985), that landowners must first unsuccessfully seek compensation in state court before bringing a Fifth Amendment takings claim in federal court. No other category of plaintiffs desiring to vindicate their constitutional rights under 42 U.S.C. § 1983 is subject to this onerous requirement.