The Mitigation Fee Act (Government Code § 66000 et seq.) provides the requirements for development impact fee programs. Most of the Act’s provisions were adopted in 1987 as AB 1600 and are sometimes referred to as “AB 1600 requirements.” In large part, the MFA codifies the requirements the U.S. Supreme Court established in its seminal decisions, Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 319 (1994). Those cases established the requirements that land use exactions must substantially advance the same government interest that would furnish a valid ground for denial of the permit and that such exactions must also be “roughly proportional” both in nature and extent to the impact of the proposed development.
Continue Reading The Mitigation Fee Act Provides the Sole Means for Challenging Development Impact Fees and Recovering Interest
U.S. Supreme Court Unanimously Rules for Landowners Challenging Army Corps’ Wetlands Determination
On May 31, 2016, the U.S. Supreme Court substantially strengthened property rights for landowners whose property has been determined to contain wetlands subject to regulation under the Clean Water Act. In United States Army Corps of Engineers v. Hawkes Co., Inc., 578 U.S. __ (2016), the Court unanimously (8-0) held that an “approved jurisdictional determination” by the U.S. Army Corps of Engineers is a final agency action subject to judicial review. As a result, landowners may now immediately challenge such determinations without having to first complete the exhausting, expensive, and uncertain Section 404 permitting process.
Continue Reading U.S. Supreme Court Unanimously Rules for Landowners Challenging Army Corps’ Wetlands Determination
State Allocation Board Temporarily Stopped from Authorizing Level 3 School Impact Fees
The California Building Industry Association obtained a critical temporary restraining order against the State Allocation Board in connection with the Board’s 6-4 vote on May 25, 2016 finding, for the first time, that state funds for new school facility construction are not available. Upon making that finding, the Board is obligated to notify the Secretary of the Senate and the Chief Clerk of the Assembly and that notice must be published in the journal of each house. As soon as the notices are published, eligible school districts that already charge Level 2 fees may charge Level 3 school impact fees, which would immediately double the school fees in those districts.
CBIA filed suit the same day, seeking immediate injunctive and mandamus relief in the Sacramento Superior Court to prevent the SAB’s action from taking effect. California Building Industry Association v. State Allocation Board (Case No. 34-2016-80002356, May 25, 2016). The CBIA alleged, among other things, that Level 3 fees are not justified now because the SAB’s own records indicate that as of May 2016 the state has at least $150M available for new school facility construction.Continue Reading State Allocation Board Temporarily Stopped from Authorizing Level 3 School Impact Fees
When Land Use Regulations Collide with the Protections of the Second Amendment
The Second Amendment states that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” In District of Columbia v. Heller, the Supreme Court held that the Amendment guarantees an individual right to possess firearms for traditionally lawful purposes, such as self-defense. See 554 U.S. 570, 574–626 (2008). The Supreme Court has not yet clarified the entire field of Second Amendment jurisprudence, however, and given that there is an individual right to bear arms for self-defense, there is a growing split in the nation’s lower courts about whether gun sellers have Second Amendment rights.
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Governor Brown Proposes to Streamline Approval of Certain Local Housing Developments
On May 13, 2016, Brown administration released the administration’s “May Revision” budget, which contains a bold proposal in a trailer bill to address California’s long-standing and consequential housing affordability problem, one that has been documented extensively by the Legislative Analyst’s Office.
In particular, the administration has proposed legislation—entitled Streamlining Affordable Housing Proposals—that would provide ministerial, or “by‑right,” land use entitlement provisions for multi-family infill housing developments that include an affordable housing component. The laudable goal of this important bill is to restrain development costs, improve the pace of housing production by increasing certainty and shortening the local approval process, and encourage an increase in housing supply.Continue Reading Governor Brown Proposes to Streamline Approval of Certain Local Housing Developments
Surfers Break with Billionaire in Ongoing Battle over Historic Coastal Property
At the conclusion of the Mexican-American War in 1848, the United States acquired California from Mexico through the Treaty of Guadalupe Hidalgo. The Treaty promised to honor Spanish and Mexican land grants. While it is decidedly not a land use statute, the Treaty played a key role in Friends of Martin’s Beach v. Martin’s Beach 1 LLC, 246 Cal.App.4th 1312 (2016), a fascinating case that addressed a clash between the public and a billionaire property owner over the use and eventual closure of a road, parking area, and Martin’s Beach on 53 acres of land south of Half Moon Bay.
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Impairment of Views from (or to) Private Property Does Not Constitute a Taking Requiring the Payment of Just Compensation
On April 26, 2016, in Boxer v. City of Beverly Hills, 246 Cal.App.4th 1212 (2016), the Second District Court of Appeal roundly rejecting a takings lawsuit premised on alleged impairment of private views and speculative risk of fire danger caused by coastal redwood trees planted in a city park.
Continue Reading Impairment of Views from (or to) Private Property Does Not Constitute a Taking Requiring the Payment of Just Compensation
Rezoning Denial May Give Rise to Liability for Discriminatory Zoning Practices
The federal Fair Housing Act is one of the most important pieces of Congressional legislation in the last half-century or more. It was enacted in the 1960s after the assassination of Dr. Martin Luther King, Jr., at a time of considerable social unrest. In that era, governmental entities at all levels had explicit or implicit policies that prevented integration even when developers had an economic rationale for wanting to build more dense or more affordable housing. Congress thus enacted the FHA “to eradicate discriminatory practices within a sector of our Nation’s economy.”
Continue Reading Rezoning Denial May Give Rise to Liability for Discriminatory Zoning Practices
U.S. Supreme Court Denies Review of California Supreme Court Decision Upholding San Jose Inclusionary Housing Ordinance
February 29, 2016 was a notable leap year day for the United States Supreme Court. To the surprise of most in the courtroom that day, Justice Clarence Thomas asked his first question from the bench in more than 10 years. The Court also issued its first round of orders since the February 13 death of Justice Antonin Scalia, including a denial of certiorari in California Building Industry Association v. City of San Jose, 61 Cal. 4th 435 (2015).
Continue Reading U.S. Supreme Court Denies Review of California Supreme Court Decision Upholding San Jose Inclusionary Housing Ordinance