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.

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.

Continue Reading Santa Barbara Liable for Taking Private Property When its Permit Denial Made Clear no Development Would be Allowed

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.

Continue Reading Supreme Court Wrestles with Line Drawing in an Important Property Rights Case Addressing Physical Taking Rules in the Context of Labor Union Organizing Laws

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.

Continue Reading Game Changer: Public Agency Cannot Mandate Payment of Attorney Fees Under Indemnity Agreement Without Specific Statutory Authority

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).


Continue Reading Supreme Court Again Declines to Hear Major Property Rights Case, Leaving in Place Hopelessly Muddled Takings Doctrine

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.

Continue Reading Landowner’s Efforts to Void and Redraw Subdivision Map Fails Under Laches Doctrine

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.

Continue Reading Proposed California Budget Would Create Housing Accountability Unit and Add New Targeted CEQA Exemptions Focused on 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.

Continue Reading Court Upholds Coastal Commission Cease and Deist Order Directing Homeowners to Remove Seawall Protecting $25 Million Home and Pay $1 Million Administrative Penalty

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.

Continue Reading City “Apartment Rent Ordinance” Survives Constitutional Challenge by Landlords

On November 13, 2020, the U.S. Supreme Court issued an order granting certiorari in Cedar Point Nursery v. Hassid.  The question presented in the successful cert petition is “whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.”

Continue Reading Supreme Court Decides to Hear Important Property Rights Case Addressing Whether Time-Limited Easements Are a Physical Taking Under Per Se Rules

On November 5, 2020, in AMCAL Chico LLC v. Chico Unified School District, __ Cal.App.5th __ (2020) (Case No. C087700), a case involving the Chico Unified School District’s imposition of school impact fees on a dormitory complex to house unmarried Chico State University students, the Third District Court of Appeal affirmed a trial court decision rejecting a developer’s suit seeking a refund of the fees.

Continue Reading School District Not Required to Evaluate Impact of Private University Housing Project Before Imposing Impact Fees