California cities may be justified to be skeptical when officials from Sacramento offer broad solutions to the state’s pernicious housing crisis.  But the decades-old crisis highlighted by a severe and unsustainable underproduction of new housing is real and getting worse, and the legislature is finally grappling with land use and housing policy proposals that would put meaningful guardrails on otherwise unfettered local control that has long stifled new housing supply.

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In a case of first impression published on October 25, 2019,  Denham, LLC v. City of Richmond,  Cal.App.5th __ (2019) (Case No. A154759), the First District Court of Appeal agreed with a trial court that a ballot initiative to preclude development on 430 acres in Richmond’s El Sobrante Valley caused the Richmond General Plan to become impermissibly inconsistent.  But the Court reversed as to the appropriate remedy, and it ordered the trial court to issue a writ of mandate directing the City to cure the inconsistency.

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The California Coastal Act governs land use planning for California’s entire coastal zone, directing the state Coastal Commission to maximize the public access to and along the coast consistent with the rights of property owners.  The Act protects public access by, among other things, precluding development from interfering with such use and protecting oceanfront land suitable for recreational use.  The Act also requires the Commission to minimize potential conflicts between the public and beachfront property owners and to resolve potential conflicts between the Coastal Act’s policies in a way that, on balance, is most protective of significant coastal resources.

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Senate Bill 330, known as the Housing Crisis Act of 2019 and authored by State Senator Nancy Skinner (D-Berkeley), passed the California legislature on Friday, September 6, 2019, with strong support from numerous organizations supportive of the production of new housing.  For a five-year period ending January 1, 2025, SB 330 would require local governments to process housing permits faster, prevent local governments from “changing the rules in the middle of the game,” and suspend certain housing limits.  Although various local agencies and groups that favor strong local land use control opposed SB 330, Governor Gavin Newsom has publicly championed substantial housing production goals and is certain to sign the bill.

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According to traditional urban economic models, developers in well-functioning housing markets will choose to build apartments where land is expensive and housing demand is strong.  The theory itself is sound: high rents provide strong financial incentives to developers that should lead to an increasing supply of new multi-family housing.

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On July 18, 2019, in Sacramentans for Fair Planning v. City of Sacramento, __ Cal.App.5th __ (2019), the Third District Court of Appeal affirmed a trial court decision denying a “vertical” consistency challenge filed by “Sacramentans for Fair Planning” after the City of Sacramento approved a15-story “high-rise” condominium building—known as the “Yamanee” project—in the City’s Midtown area.  The plaintiff group also challenged the City’s streamlined CEQA review of the project under a sustainable communities environmental assessment (“SCEA”).  My partner, Art Coon, analyzed those issues in the CEQA Developments blog.

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On June 21, 2019, the Supreme Court of the United States decided Knick v. Township of Scott, Pennsylvania, 588 U.S. __ (Case No. 17-647), a closely-watched property rights case that was argued first in October of 2018 and again in January of 2019 after Justice Brett Kavanaugh joined the Court.  Knick addressed the requirement, established in Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), that property owners must seek just compensation under state law in state court before bringing a federal takings claim under 42 U.S.C. section 1983.

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California law contains several critical limitations on the exercise of the police power conferred in Article XI, Section 7 of the state constitution.  As set forth in Government Code section 65858, the moratorium statute allows cities and counties to adopt 45-day “interim ordinances” to prohibit land uses that may conflict with a contemplated general plan amendment or another land use proposal the legislative body is studying or intends to study within a reasonable period of time.  Such ordinances can be extended so that the maximum term of the moratorium does not exceed two years.

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On April 5, 2019, in a case originally filed March 8, 2019, the Second District Court of Appeal certified for publication York v. City of Los Angeles, __ Cal.App.5th __ (Case No. B278254) (2019), an inverse condemnation case filed when the City of Los Angeles approved the construction of an 8,000 square foot home, 1,300 square foot guest house, driveway, swimming pool, tennis court, storage sheds, retaining walls, and “wine caves” on a 40-acre parcel in the Hollywood hills but denied the landowners’ request for approximately 79,000 cubic yards of grading that accompanied the proposed project.

Under the then-applicable version of the City’s grading ordinance, the maximum grading permitted on the property as a matter of right was 3,300 cubic yards.  But the ordinance provides the zoning administrator discretion to grant a “deviation” to allow additional grading in excess of the maximum allowed “by-right” if the zoning administrator makes certain required findings.


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California’s ongoing housing crisis has many causes, including, as prominently noted in the Housing Accountability Act, the “activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing.”  See, e.g, Cal. Gov’t Code § 65589.5(a)(1)(B).  Fortunately, however, these abuses of the police power are driving the legislature to act.  For example, in explaining the purpose of Senate Bill 50, which we wrote about here, California State Senator Scott Wiener explained that “absent state intervention, communities will continue to effectively prohibit people from living near transit and jobs by making it illegal to build small apartment buildings around transit and jobs, while fueling sprawl and inhumane supercommutes.”

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