Land Use

Subscribe to Land Use

For decades developers and landowners have considered San Francisco as a City that is unfriendly to property rights.  From the City’s Hotel Conversion Ordinance, which severely restricts the conversion of hotels from residential to tourist use, to the Community Opportunity to Purchase Act, which gives non-profit organizations the right of first offer and the right of first refusal to purchase certain multi-family properties offered for sale in the City, San Francisco has a longstanding reputation as being hostile to constitutionally-protected property rights.
…
Continue Reading California Department of Housing and Community Development Warns San Francisco About Potential Violations of State Housing Law

On September 16, 2021, Governor Gavin Newsom signed several new key housing bills, all of which take effect January 1, 2022, to increase the supply of new housing in California and address the state’s ongoing housing supply crisis.  In so doing, the Governor issued a statement explaining that the housing crisis “is undermining the California Dream for families across the state, and threatens our long-term growth and prosperity.  Making a meaningful impact on this crisis will take bold investments, strong collaboration across sectors and political courage from our leaders and communities to do the right thing and build housing for all.”
…
Continue Reading California Enacts New Housing Legislation to Increase Supply and Address Housing Crisis

Despite hyperbolic and misleading criticism from various NIMBY groups, California is one step closer to important new state-level land use and housing reform. Contrary to bald statements that these bills would “crush” single-family zoning or “end homeownership” in California, these are modest, incremental measures that preserve substantial local control and respect private property rights.
…
Continue Reading California Poised to Enact New Housing Production Laws Despite NIMBY Opposition

On June 28, 2021, the Supreme Court issued Pakdel v. City and County of San Francisco, 594 U.S. ____ (2021), a unanimous per curiam opinion vacating a ruling by the Ninth Circuit in favor of the City and County of San Francisco.  The petition for review was filed by a married couple who bought an interest in a six-unit apartment building in San Francisco’s Russian Hill neighborhood.  The couple’s interest gave them the right to occupy one of the units, which they planned to live in when they retired.  Until retirement, however, they rented the apartment to a tenant.
…
Continue Reading Supreme Court Issues Another Important Property Rights Decision

In a 6-3 opinion written by Chief Justice John Roberts, Cedar Point Nursery v. Hassid, __ U.S. __ (2021) (Case No. 20-107), the Supreme Court issued a major property rights decision in favor of landowners in a case addressing California labor union organizing laws that allow union organizers “access” to agricultural employees on employers’ private property.  But despite popular media accounts, the case is only nominally about labor laws.  Instead, it is principally about takings under the Fifth and Fourteenth Amendments, and it confirms that governmental entities may not force landowners to allow unwanted third parties to trespass on their private property.  In the clear words of the Court, “[w]henever a regulation results in a physical appropriation of property, a per se taking has occurred, and Penn Central has no place.”
…
Continue Reading Supreme Court Issues Major Property Rights Decision in Favor of Landowners, Confirming that Government-Sanctioned Physical Invasions of Private Property are Categorically Compensable Under the Takings Clause

On May 4, 2021, in Alliance for Responsible Planning v. Taylor (County of El Dorado), __ Cal.App.5th __ (2021) (Case No. C085712), the Third District Court of Appeal affirmed a trial court decision invalidating as a violation of the unconstitutional conditions doctrine certain County of El Dorado planning policies enacted via ballot initiative.
…
Continue Reading County’s Initiative-Enacted General Plan Traffic Mitigation Policies Are Unconstitutional Exactions

On May 4, 2021, the Second District Court of Appeal affirmed a trial court decision, in Kracke v. City of Santa Barbara, __ Cal.App.5th __ (2021) (Case No. B300528), enjoining the City of Santa Barbara’s enforcement of a short-term vacation rental ban in the coastal zone, through proactive enforcement of existing zoning regulations, unless it obtains Coastal Commission approval or a waiver of such requirement.
…
Continue Reading Landowner Prevails in Short-Term Vacation Rental Lawsuit Against Santa Barbara

In Ruegg & Ellsworth v. City of Berkeley, __ Cal.App.5th __ (2021) (Case No. A159218), the first published appellate decision addressing Senate Bill 35, the First District Court of Appeal reversed a trial court decision in favor of the City of Berkeley regarding a project with apartments over retail filed under the provisions of Senate Bill 35.  The Court of Appeal rejected all of the City’s arguments, reversed the trial court in all respects, including its use of a deferential standard of review, and required the City to issue the requested ministerial permit approving the project.
…
Continue Reading Developer Achieves Complete Victory in SB 35 Decision for New Mixed-Use Development in Berkeley

In a case that exists only because of the choices a city made in both application decision-making and litigation, the Second District Court of Appeal held, in Felkay v. City of Santa Barbara, __ Cal.App.5th __ (2021), that multiple applications are not required where the permit denial makes clear that no development of the property would be allowed under any circumstance.
…
Continue Reading Santa Barbara Liable for Taking Private Property When its Permit Denial Made Clear no Development Would be Allowed

During California’s strawberry harvesting season in the summer of 2015, union activists entered a nursery’s property under the authority granted by a California regulation that allows union organizers to enter the private property of agriculture businesses for three hours at a time, 120 days per year, to recruit potential new members.  The organizers entered the nursery’s property with bullhorns in hand, distracting and intimidating hundreds of employees who were preparing young strawberry plants for shipment.  For three consecutive days during the same summer, the organizers also attempted to enter the private property of a family-owned grower and shipper of fresh produce.
…
Continue Reading Supreme Court Wrestles with Line Drawing in an Important Property Rights Case Addressing Physical Taking Rules in the Context of Labor Union Organizing Laws