California’s cities and counties have a long and growing track record of successfully defending challenges to their land use authority filed on behalf of medical marijuana dispensaries. These successes are largely a product of the broad and deep police power conferred to cities and counties under the California Constitution and the federal government’s inclusion of (and ongoing refusal to remove) marijuana from Schedule I of the Controlled Substances Act. Schedule I drugs (including heroin and ecstasy) are defined as drugs with “no currently accepted medical use and a high potential for abuse.” The federal government considers them “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.”
Continue Reading Enacting and Enforcing Local Ordinances to Prohibit Medical Marijuana Dispensaries – Up in Smoke?
Prevailing Parties in Land Use Litigation May Recover Attorney’s Fees for Preparation of Administrative Record
On July 28, 2016, in a case of first impression, the Court of Appeal for the Sixth Appellate District held that labor costs for attorneys and paralegals to prepare the administrative record in a land use case are recoverable as expenses under Code of Civil Procedure 1094.5.
The case, No Toxic Air, Inc. v. Lehigh Southwest Cement Company, __ Cal.App.4th __ (2016) (Case No.H040047), arose over the Santa Clara County Board of Supervisors’ decision, in 2011, finding that the Permanente Quarry’s 3,510 acre surface mining operation, producing limestone and aggregate for the manufacture of cement, is a legal nonconforming use. The quarry has been in operation since 1903 and has expanded substantially since The Permanente Corporation purchased it in 1939, opening new mining areas on the property and acquiring adjacent parcels.Continue Reading Prevailing Parties in Land Use Litigation May Recover Attorney’s Fees for Preparation of Administrative Record
Unsubstantiated Challenges to an Agency’s Conditional Use Permit Findings Will Not Fly
Developing real property in California is notoriously difficult. Given minimal standing requirements, project opponents can and do tie up and delay new development for the mere cost of a filing fee. In order to prevail in such challenges, however, project opponents must do more than make empty arguments without adequate factual or legal support.
This principle is addressed in Walters v. City of Redondo Beach, __ Cal.App.4th __ (2016) (Case No. B258638). In that case, the Court of Appeal for the Second Appellate District affirmed a trial court decision denying a challenge to the City of Redondo Beach’s approval of a conditional use permit for construction of a combination car wash and coffee shop on a vacant lot adjacent to existing homes. The case also raised interesting CEQA issues regarding the scope of the categorical exemption for new construction or conversion of small structures and the unusual circumstances exception to categorical exemptions. My partner, Art Coon, will write about those issues in his CEQA Developments blog.Continue Reading Unsubstantiated Challenges to an Agency’s Conditional Use Permit Findings Will Not Fly
Court Rejects General Plan Consistency Challenge Regarding City’s Approval of Franchise Retail Store Where Applicable Economic Development Goals and Policies are Alleged to Favor Small, Independent Businesses
Numerous California communities regulate broad economic development objectives through general plan goals and policies intended to encourage and support small businesses or to ensure the compatibility of new commercial development with the community or neighborhood. Such objectives are susceptible to a range of reasonable interpretations that are difficult to successfully challenge. On July 13, 2016, the Court of Appeal for the Fourth Appellate District partially published Joshua Tree Downtown Business Alliance v. County of San Bernardino, __ Cal.App.4th __ (2016) (Case No. E062479), a case that illustrates the key legal principles—including the correct standard of review—that can make such challenges a little like tilting at windmills. The case also addresses several CEQA issues (including whether the County adequately considered whether project had the potential to cause urban decay and whether an EIR was required because there was substantial evidence to support a fair argument that the project could cause urban decay) my partner Art Coon wrote on this in his CEQA Developments blog.
Continue Reading Court Rejects General Plan Consistency Challenge Regarding City’s Approval of Franchise Retail Store Where Applicable Economic Development Goals and Policies are Alleged to Favor Small, Independent Businesses
Development Project May be Declared Consistent with General Plan Even if Quantitative Standards Exceeded
There is no question in California land use law that development projects need not comply with every goal or policy in a community’s general plan. While a city’s or county’s land use decisions must be consistent with the goals and policies in its general plan, the courts have consistently held that a finding of general plan consistency requires only that a project be “compatible with,” and “not frustrate,” the goals and policies of the applicable general plan. State law does not require precise conformity of a proposed project with the land use designation for a particular site or an exact match between the project and the general plan. Instead, development projects must simply be in agreement or harmony with the terms of the general plan.
These fundamental principles are easily understood when dealing with qualitative general plan policies such as those addressing community character or those requiring open space preservation and resource conservation. But general plan consistency principles are sometimes misapplied when the issue is whether a given project is consistent with quantitative general plan provisions, such as those dealing with a project’s size, if a proposed project would exceed such development standards.Continue Reading Development Project May be Declared Consistent with General Plan Even if Quantitative Standards Exceeded
Court Rejects City’s Anti-SLAPP Claim Regarding Would-Be NFL Stadium in Carson
The location of several National Football League franchises have been in flux for years, with teams such as the Chargers, Raiders, and Rams seeking modern, amenity-laden stadiums they have been unable to attain in their current locations. Although earlier this year the NFL approved the relocation of the Rams from St. Louis to Inglewood, the repercussions of the league’s decision to bypass Carson in favor of Inglewood continue to play out.
On May 31, 2016, in Rand Resources, LLC v. City of Carson, __ Cal.App.4th __ (2016) (Case No. B264493), the Court of Appeal for the Second Appellate District rejected Carson’s attempt to use California’s anti-SLAPP statute to defend a breach of contract claim. Carson had wanted to develop a new sports and entertainment complex, including a football stadium, to attract one, or even two, NFL franchises to the community. To advance that goal, the City entered into an exclusive agreement with Richard Rand and several entities to serve as the City’s exclusive agent in coordinating and negotiating with the NFL.Continue Reading Court Rejects City’s Anti-SLAPP Claim Regarding Would-Be NFL Stadium in Carson
Court Clarifies that Brown Act “Cease and Desist” Requirements Apply to Past Actions of a Legislative Body and Awards Costs to Prevailing Plaintiff
In 2012, the California legislature amended the remedies available to address violations of the Ralph M. Brown Act. The amendment added section 54960.2 to the Government Code to require that anyone seeking to challenge past actions of a legislative body in violation of the Brown Act must first submit a “cease and desist” letter. If the legislative body “unconditionally commits”—at an open and noticed regular or special meeting, and not on the consent agenda—“that it will cease, desist from, and not repeat the challenged past action,” then no judicial remedy is available. Thus, the amendment allows local agencies to avoid litigation by promising to end practices that cause accusations of Brown Act violations—without admitting that they are unlawful. The amendment also gives citizens the opportunity to demand and achieve such changes without having to file a lawsuit.
On May 31, 2016, in Center for Local Government Accountability v. City of San Diego, __ Cal.App.4th __ (2016) (Case No. D068432), the Court of Appeal for the Fourth Appellate District addressed the Brown Act’s cease and desist requirement in the context of San Diego’s adherence to an ordinance providing only for one non-agenda public comment period over the course of the City’s two-day regular weekly meetings. At issue was the Brown Act’s requirement for the agenda of every regular meeting of a local legislative body to include an opportunity for members of the public to address the legislative body on matters within its purview, but not otherwise on its agenda for action.Continue Reading Court Clarifies that Brown Act “Cease and Desist” Requirements Apply to Past Actions of a Legislative Body and Awards Costs to Prevailing Plaintiff
Grand Jury Finds Oakland City Council Member Broke Ethics Rules in Interfering with a Housing Development Next Door to Her Home
In a final report issued June 21, 2016, the Alameda County Grand Jury found that an Oakland City Council member used her position and office to advocate for private gain, and not the good of the City, in interfering with the planning process for a small housing development next door to her home. The report highlights the importance of state and local conflict of interest requirements, training, and compliance, as well as the right of developers to be treated fairly in any project approval process.
The civil grand jury report comes in response to a citizen complaint citing a news report of a council member using City staff for her personal benefit to oppose a development project. While the report does not identify the council member by name, the facts in the report indicate that the project is next door to Oakland City Council President Lynette Gibson McElhaney.Continue Reading Grand Jury Finds Oakland City Council Member Broke Ethics Rules in Interfering with a Housing Development Next Door to Her Home
Vested Rights Conferred Under Local Ordinance Trump Conditional Use Permit Requirement Later Imposed by Emergency Ordinance
On June 23, 2016, in Stewart Enterprises, Inc. v. City of Oakland, __ Cal.App.4th __ (2016) (Case No. A143417), the Court of Appeal for the First Appellate District issued an important decision dealing with whether a new legislative enactment may constitutionally deprive a landowner of a vested right conferred by local ordinance. The case arose out of a May 2012 building permit the City of Oakland issued for the construction of a controversial crematorium and the City’s later enactment of an emergency ordinance purporting to require a conditional use permit on new crematoria, including any crematoria that have obtained building permit for which rights to proceed have not yet vested under state law.
Continue Reading Vested Rights Conferred Under Local Ordinance Trump Conditional Use Permit Requirement Later Imposed by Emergency Ordinance
Changed Dam Operations Not Subject to an Environmental Impact Statement under NEPA
On June 21, 2016, a three-judge panel of the Ninth Circuit denied a petition for review of a decision of the Bonneville Power Administration to proceed with a change in the operation of the Albeni Falls Dam during the winter months without first preparing an environmental impact statement under the National Environmental Policy Act. Idaho Conservation League v. BPA, __ F.3d __ (9th Cir., Case No. 12-70338).
Continue Reading Changed Dam Operations Not Subject to an Environmental Impact Statement under NEPA