Conditional Use Permits

On December 7, 2017, a three judge panel of the U.S. Court of Appeals for the Ninth Circuit held that the County of Ventura’s land use regulations, which require a conditional use permit for “temporary outdoor” events, violate the First Amendment’s protections of free speech and expression.

The case, Epona, LLC v. County of Ventura, __ F.3d __ (9th Cir. 2017), arose out of a CUP application to use a 40-acre working ranch and vineyard known as the Epona Estate for up to 60 outdoor events per year, including weddings.  The property is zoned for agricultural use, and neighboring properties are designated either as agricultural or as open space.

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In The Park at Cross Creek LLC v. City of Malibu (2nd Dist. 2017), ___Cal.App.5th___ (Case No. B271620), the Court addressed the validity of a voter enacted initiative, Measure R, designed to limit large developments and chain stores.

The first component of Measure R required the Malibu City Council to prepare a specific plan for every proposed commercial or mixed use development in excess of 20,000 square feet, addressing a number of development specifics including floor area, traffic, view corridors, public facilities and the like.  Following the City Council’s approval, the plan must then be placed on the ballot for voter approval and until such approval, the City may take “no final action on any discretionary approval relating to” the development.  Moreover, once approved, all subsequent permits and approvals must be consistent with the approved development.

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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.

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