Photo of Bryan W. Wenter, AICP

 

Bryan W. Wenter, AICP, is a shareholder in Miller Starr Regalia’s Walnut Creek office and a member of the firm’s Land Use Practice Group. For nearly 20 years, his practice has centered on land use and local government law, with a focus on obtaining and defending land use entitlements for a wide range of complex development projects including, in-fill, mixed-use, residential, retail/commercial, and industrial. His areas of expertise include general plans and specific plans, planned development zoning, vested rights, subdivision maps, development impact fees and exactions, conditional use permits, variances, initiatives and referenda, RLUIPA, CEQA, Ralph M. Brown Act, and Public Records Act. He previously served as City Attorney and Assistant City Attorney for the City of Walnut Creek.

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.”

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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.

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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.

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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.

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“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.


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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.

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In a decision filed December 4, 2018 and published December 20, 2018, the Sixth District Court of Appeal, in SummerHill Winchester LLC v. Campbell Union School District, __ Cal.App.5th __ (2018) (Case No. H043253), affirmed a trial court decision invalidating the Campbell Union School District’s fee on new residential development because the underlying fee study failed the leading test for ensuring school facilities fees are limited to the cost of increased services made necessary by the development.

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California State Senator Scott Wiener is taking another whack at seriously addressing the state’s housing supply crisis with a bill that would create new state zoning requirements for high-density residential development near certain high-quality public transit.  And this time the bill would apply to certain communities that are considered to be “job-rich” by virtue of their proximity to jobs, high area median income, and high-quality public schools, even in the absence of high-quality transit.  This key part of the bill would help ensure that more affluent communities do their part to alleviate the state’s critical housing shortage.  At the same time, however, the bill seeks to protect against the displacement of renters and “sensitive communities” at risk of displacement.

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On September 26, 2018, the First District Court of Appeal partially published Atwell v. City of Rohnert Park, __ Cal.App.5th __ (2018) (Case Nos. A151896, A153011), a decision originally filed on September 18, 2018, addressing important procedural defenses in connection with the approval and subsequent re-approval of a Wal-Mart expansion project.

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