On February 18, 2020, in Citizens for South Bay Coastal Access v. City of San Diego, __ Cal.App.5th __ (2020) (Case No. D075387), the Fourth District Court of Appeal rejected a project opposition group’s challenge, under the California Coastal Act, to San Diego’s approval of a conditional use permit to allow the City to convert an existing Super 8 motel into a transitional housing facility for homeless misdemeanor offenders.

Continue Reading Court Rejects Coastal Act Preemption Challenge to San Diego’s Approval of Conditional Use Permit for Transitional Housing Facility

It is usually easy to understand when a local legislative body approves a given motion.  Indeed, a simply majority vote is all that is required for a motion to pass in most communities.  Thus, obtaining a four to one vote of a city council granting an appeal of a planning commission denial of a given development project would typically warrant celebration.  The appeal would have prevailed and the project would be approved.

But vote counting can become complicated in certain circumstances, particularly in communities that have their own unique appeal provisions.  Understanding applicable land use procedural requirements and “reading the tea leaves” is critical.

Continue Reading Rough Justice: 4-1 Supermajority Vote of City Council Not Enough to Grant Appeal of Planning Commission’s Denial of Conditional Use Permit Applications Because 80% < 71%

On February 10, 2020, in Fowler v. City of Lafayette, __ Cal.App.5th __ (2020), the First District Court of Appeal affirmed a trial court decision challenging the City of Lafayette’s approval of a tennis cabana on a residential property.  The petition alleged that the City violated the Ralph M. Brown Act by discussing the application in closed sessions and that the plaintiffs were therefore deprived of their right to a fair hearing.

Continue Reading Court Holds That City Violated Ralph M. Brown Act by Discussing Threatened Litigation Over Development Project in Closed Sessions, but Concludes Project is Not Null and Void Because There Was No Prejudice

The Religious Land Use and Institutionalized Persons Act of 2000, known as “RLUIPA,” is a federal civil rights law that protects individuals and religious assemblies and institutions from discriminatory and unduly burdensome land use regulations.  Among several key parts of the statute, RLUIPA contains an “equal terms” provision that prohibits any government entity from imposing or implementing a land use regulation in a manner that treats a religious assembly or institution on “less than equal terms” with a nonreligious assembly or institution.  The equal terms provision seeks to address the problem of a local zoning ordinance, either facially or as applied, excluding places of worship where secular assemblies are allowed.

Continue Reading Ninth Circuit Rejects “Equal Terms” RLUIPA Challenge to Riverside Zoning Ordinance

Senate Bill 330, referred to as the Housing Crisis Act of 2019, contains two major parts intended to accelerate housing production over the next five years by streamlining permitting and ensuring no net loss in housing capacity.  Governor Newsom signed SB 330 into law on October 9, 2019, and it will be in effect from January 1, 2020 until January 1, 2025 unless extended via additional legislation.

The first major part of SB 330 establishes various “good government” requirements that affect the processing of housing development projects in every California city and county.  The second part of the law limits the ability of “affected” cities and counties—a smaller but substantial subset of agencies that are designated by the U.S. Census Bureau as “urbanized areas or urban clusters”—to downzone property and regulates the ability of developers to replace existing housing with new housing.

The focus of this blog post is the powerful new, and applicant-friendly, statutory form of vested rights referred to as a “preliminary application,” contained in the first part of SB 330, over which cities and counties have no discretion.

Continue Reading Establishing Vested Rights Through SB 330’s Preliminary Application: Understanding the Key Differences Between “Deemed Complete” and “Determined to be Complete” in the “Housing Crisis Act of 2019”

In a recent opinion certified for publication on December 18, 2019, Citizens for Positive Growth & Preservation v. City of Sacramento, __ Cal.App.5th __ (2019), the Third District Court of Appeal rejected a citizens group’s challenge under California’s Planning and Zoning Law and CEQA to the City of Sacramento’s recently updated 2035 General Plan.  The group contended that a single sentence in the introductory paragraph of the City’s updated General Plan allegedly violates and conflicts with state planning laws and that the EIR for the project contained substantial supplemental changes that required recirculation.

Continue Reading Court Rejects Facial General Plan Consistency Challenge Based on Single Sentence in Sacramento’s 2035 General Plan

California cities may be justified to be skeptical when officials from Sacramento offer broad solutions to the state’s pernicious housing crisis.  But the decades-old crisis highlighted by a severe and unsustainable underproduction of new housing is real and getting worse, and the legislature is finally grappling with land use and housing policy proposals that would put meaningful guardrails on otherwise unfettered local control that has long stifled new housing supply.

Continue Reading Judicial NIMBYism? Overreaching San Mateo Trial Court Decision Takes on Legislature and Governor, Declaring Nearly 40-Year Old Housing Production Law Inapplicable to Charter Cities

In a case of first impression published on October 25, 2019,  Denham, LLC v. City of Richmond,  Cal.App.5th __ (2019) (Case No. A154759), the First District Court of Appeal agreed with a trial court that a ballot initiative to preclude development on 430 acres in Richmond’s El Sobrante Valley caused the Richmond General Plan to become impermissibly inconsistent.  But the Court reversed as to the appropriate remedy, and it ordered the trial court to issue a writ of mandate directing the City to cure the inconsistency.

Continue Reading Court Orders City to Cure Internal Inconsistency in Richmond General Plan Created by Citizen-Sponsored Ballot Initiative

The California Coastal Act governs land use planning for California’s entire coastal zone, directing the state Coastal Commission to maximize the public access to and along the coast consistent with the rights of property owners.  The Act protects public access by, among other things, precluding development from interfering with such use and protecting oceanfront land suitable for recreational use.  The Act also requires the Commission to minimize potential conflicts between the public and beachfront property owners and to resolve potential conflicts between the Coastal Act’s policies in a way that, on balance, is most protective of significant coastal resources.

Continue Reading Takings Challenge to Coastal Commission Setback Condition Fails for Not Presenting “Exact Issue” to the Agency

Senate Bill 330, known as the Housing Crisis Act of 2019 and authored by State Senator Nancy Skinner (D-Berkeley), passed the California legislature on Friday, September 6, 2019, with strong support from numerous organizations supportive of the production of new housing.  For a five-year period ending January 1, 2025, SB 330 would require local governments to process housing permits faster, prevent local governments from “changing the rules in the middle of the game,” and suspend certain housing limits.  Although various local agencies and groups that favor strong local land use control opposed SB 330, Governor Gavin Newsom has publicly championed substantial housing production goals and is certain to sign the bill.

Continue Reading Housing Crisis Act Passes in California Legislature, Will be Signed by Governor Newsom