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Bryan W. Wenter, AICP

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Bryan W. Wenter, AICP, is a shareholder in Miller Starr Regalia’s Walnut Creek office and co-chair of the firm’s Land Use Department. 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.

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The question of who should pay the cost of municipal services for new residential development is a vexing one.  The answer is critically important to the developers and homebuilders who must finance and market their projects, the residents who will eventually foot the bills, and the communities seeking funds to ensure that new development pays for itself.

On October 13, 2016, the Court of Appeal for the First Appellate District addressed this issue in Building Industry Association of the Bay Area v. City of San Ramon, __ Cal.App.5th __ (2016) (Case No. A145575).  The Court affirmed a trial court decision supporting the City of San Ramon’s formation of a community facilities district and a special tax levied on a 48-unit townhouse project under the Mello-Roos Community Facilities Act of 1982.Continue Reading Court Upholds City’s Communities Facilities District and Related Special Tax

On October 13, 2016, the Court of Appeal for the Third Appellate District affirmed a trial court’s decision to grant a demurrer filed on behalf of Governor Jerry Brown following his concurrence with the Secretary of the Interior to allow a gaming facility in Yuba County. United Auburn Indian Community of the Auburn Rancheria v. Brown, __ Cal.App.5th __ (2016) (Case No. C075126).
Continue Reading Gubernatorial Action that has Land Use Consequences is not a an Illegal Exercise of Legislative Power

California’s housing crisis is well-understood and documented.  A chief culprit is the fact that the state’s coastal urban areas, for various reasons, do not approve enough new housing to accommodate everyone who seeks to live there.

The lack of new housing development is a function, in part, of the fact that California’s local finance structure essentially incentivizes nonresidential development.  There is also limited vacant developable land in coastal urban areas.Continue Reading Recent Reports Highlight Negative Consequences of Local Barriers to New Housing Development, Call for State-Level Solutions

On September 29, 2016, in a case of first impression, the Court of Appeal for the Second Appellate District addressed the tensions between the requirements of the Housing Accountability Act, Density Bonus Law, and Mello Law (establishing minimum requirements for affordable housing within the coastal zone) with the California Coastal Act. Kalnel Gardens, LLC v. City of Los Angeles, __ Cal.App.5th __ (2016) (Case No. B264434).
Continue Reading Court Resolves Tensions Between Housing Laws and Coastal Act in Favor of Coastal Act

On September 28, 2016, the Court of Appeal for the Fourth Appellate District affirmed a trial court decision denying a petition for writ of administrative mandamus filed by the owner of a nude entertainment business to challenge the City of San Diego’s revocation of her permit. Coe v. City of San Diego, __ Cal.App.5th __ (2016) (Case No. D068814).
Continue Reading Court Affirms Trial Court’s Denial of Writ of Administrative Mandamus Challenging City’s Revocation of Nude Entertainment Permit

On September 23, 2016, the Court of Appeal for the Second Appellate District affirmed a trial court decision denying a petition for writ of mandate filed by a developer challenging various fees—totaling nearly $600,000—in connection with an 11-unit subdivision and condominium complex in West Hollywood.  616 Croft Ave., LLC v. City of West Hollywood, __ Cal.App.5th __ (2016) (Case No. BC498004).

The case is the first reported appellate decision to rely upon the broad holding of the California Supreme Court’s blockbuster 2015 affordable housing case, California Building Industry Assn. v. City of San Jose, and it boldly highlights the far reaching implications of that ruling.  In my opinion, it also underscores the ongoing need for the United States Supreme Court to finally address whether the heightened scrutiny of the Nollan, Dolan, and Koontz Fifth Amendment takings cases applies to legislatively imposed permit conditions.  We wrote about that issue earlier this year after the U.S. Supreme Court denied certiorari in the CBIA case, and we note that the Court will soon have another opportunity to grant certiorari on this important issue.Continue Reading Court Rejects Takings Challenge to City’s Imposition of $550,000 in Fees for 11-Unit Infill Project

On August 31, 2016, the Court of Appeal for the First Appellate District affirmed a trial court decision denying a petition for writ of mandate filed by a citizens group challenging the third in a series of master use permits for a Buddhist retreat center that has operated in the County of Sonoma since the mid-1970s. Coastal Hills Rural Preservation v. County of Sonoma, __ Cal.App.5th __ (2016) (Case No. A145573) addresses the group’s allegations that the County violated CEQA by approving the permit without an EIR, that the permit violates federal and state constitutional provisions against the establishment of religion, that the permit is inconsistent with the County’s general plan and zoning policies, and that the permit constitutes spot zoning. My partner, Art Coon, wrote about the CEQA issues on his blog, CEQA Developments, here.
Continue Reading Court Declines to Reweigh Conflicting Evidence, Holds that County Fully Considered its Land Use Policies and Extent to Which Project Conforms to Those Policies

On August 30, 2016, the Court of Appeal for the Second Appellate District affirmed a preliminary injunction in a nuisance abatement action brought on behalf of the People of the State of California against a Los Angeles-based medical marijuana collective doing business as “Weedland” and its principal. The People ex rel. v. FXS Management, Inc, __ Cal.App.4th __ (2016) (Case No. B263965).
Continue Reading Court Affirms Preliminary Injunction Against Medical Marijuana Collective

On May 26, 2016, the California Building Industry Association successful obtained a temporary restraining order from the Sacramento Superior Court preventing the State Allocation Board—and all others acting in concert with the SAB or under its direction—from implementing Level 3 school impact fees or sending notice to the Legislature that state funds for new school construction are not available.  The TRO temporarily halted the ability of school districts statewide to impose Level 3 fees.  We wrote about the California Building Industry Association v. State Allocation Board case on May 27, 2016.

The case proceeded to a preliminary injunction hearing on July 22, 2016, and exactly one month later the court denied the request and terminated the TRO.Continue Reading Court Denies Preliminary Injunction and Terminates Temporary Restraining Order, Allowing Imposition of Level 3 School Impact Fees

On March 17, 2016, the California Supreme Court resolved an important case regarding the California Public Records Act, ruling unanimously that the inadvertent release of confidential documents  does not waive the attorney-client and attorney work product privileges.  Ardon v. City of Los Angeles, 62 Cal.4th 1176 (2016).  The privileges are only waived when the disclosure of otherwise confidential public records is intentional.
Continue Reading Accidental Disclosure Of Public Records Does Not Waive The Attorney-Client And Attorney Work Product Privileges