American humorist Will Rogers once quipped, “The minute you read something that you can’t understand, you can almost be sure it was drawn up by a lawyer.”  There are, of course, many other similarly amusing criticisms of legal writing.  According to former Yale Law School professor Fred Rodell, for example, “There are two things wrong with almost all legal writing.  One is its style. The other is its content.”

To the extent such assessments ever ring true, they are especially unfortunate when given life in the form of a poorly-written published court opinion addressing important legal issues.  The Fourth District Court of Appeal’s October 31, 2017 opinion in The Kennedy Commission v. City of Huntington Beach, __ Cal.App.5th __ (2017) serves as a prime recent example.  The saving grace is that the Court reached the right legal conclusion.

Continue Reading Huntington Beach Specific Plan Exempt From General Plan Consistency Requirement

The threshold procedural requirements for litigating decisions made by California municipalities are critically important, and failure to meet such requirements generally leads to harsh results.  These issues were on full display in Los Globos Corporation v. City of Los Angeles, __ Cal.App.5th __ (2017), a recent decision of the Second District Court of Appeal, published on November 20, 2017, which highlights the importance of exhausting administrative remedies within the generally short statutes of limitation provided in state and local law.

The case arose out of a dispute over several issues regarding the operation of the Los Globos nightclub, including whether the club was required to have a permit to operate a “dance hall” and whether the club had a valid certificate of occupancy for dancing on the first floor of its two-story building.  City inspectors eventually confiscated the club’s occupancy load cards and certificate of occupancy, without a public hearing.  Under relevant provisions of the Los Angeles Municipal Code, the club had 15 days to appeal the “revocation, suspension, or denial” to a board of building and safety commissioners. Continue Reading Failure to Exhaust Administrative Remedies Dooms Nightclub’s Challenge to City Inspectors’ Administrative Reduction of Allowable Occupancy

The United States Supreme Court has had numerous opportunities in recent years to address an important and unsettled issue under the Takings Clause: whether heightened scrutiny under Nollan, Dolan, and Koontz applies in cases where an alleged taking arises from a legislatively imposed condition rather than an administrative one.  The Court’s most recent denial of certiorari in such a case occurred on October 30, 2017, in 616 Croft Ave., LLC v. City of West Hollywood (Case No. 16-1137).

616 Croft Ave. concerned the City of West Hollywood’s imposition of a $540,000 “in-lieu” affordable housing fee, under the City’s inclusionary housing ordinance, in connection with the development of an 11-unit condominium project.  The case addressed the California Supreme Court’s denial of a petition to review a Second District Court of Appeal decision that upheld the legality of the fee pursuant to the state Supreme Court’s decision in California Building Industry Association v. City of San Jose, 61 Cal. 4th 435 (2015).

Continue Reading U.S. Supreme Court Again Declines to Consider Important Property Rights Issue Regarding the Unconstitutional Conditions Doctrine

In Dryden Oaks, LLC v. San Diego County Regional Airport Authority, __ Cal.App.5th __ (October 19, 2017), the Fourth District Court of Appeal published a previously unpublished opinion addressing both regulatory takings and pre-condemnation damages claims.  The case arose out of a complicated set of facts involving two properties near McClellan Palomar Airport in Carlsbad.

In short, in 2002 the City approved permits for both lots despite the San Diego County Regional Airport Authority’s determination the projects were incompatible with the airport.  The developer completed construction of a commercial building on one of the lots in 2005, but the second permit expired in 2012 without commencement of any construction.  The developer filed an application to restart the process for the second lot, but by that time the Authority had adopted an Airport Land Use Compatibility Plan that designated the property within a higher risk safety zone.  Thus, despite its earlier decision to override the Authority’s objections under the predecessor plan to the ALUCP, the City now refused to do so.

Continue Reading Court Rejects Regulatory Takings and Pre-Condemnation Misconduct Claims Based on Airport Land Use Commission’s Reclassification of Property Within Different Safety Zone

Although the federal Controlled Substances Act prohibits the use, possession, manufacture, and sale of marijuana for all purposes, numerous states have loosened their own marijuana laws.  For example, California’s Proposition 215 (the “Compassionate Use Act of 1996”) and its legislatively-adopted “Medical Marijuana Program” have removed certain state law obstacles from the ability of qualified patients to obtain and use marijuana for legitimate “medical” purposes.  Among other things, these laws exempt the “collective[ ] or cooperative[ ] cultiva[tion]” of medical marijuana by qualified patients and their designated caregivers from prosecution or abatement under specified state criminal and nuisance laws that would otherwise prohibit such activities.

An ongoing torrent of cases have tested the scope of those state laws in the land use context.  The resulting decisions have consistently underscored our long-held understanding that land use regulation in California has historically been a function of local government.

Continue Reading Affirming Local Control of Land Use Regulation, Court Holds That <i>Ex Post Facto</i> Laws do Not Apply to Ordinances Regulating Marijuana Dispensaries

Since 1907, the Subdivision Map Act has “grandfathered” older subdivisions and the parcels they created if they were properly recorded under any law (including a local ordinance), regulating the design and improvement of subdivisions in effect at the time the map was recorded.  Over the years numerous cases have addressed these so-called “antiquated” subdivisions when landowners have sought affirmatively either to confirm the status of parcels or to obtain relief for land subdivided under older maps that predate the current version of the Map Act.

In Save Laurel Way v. City of Redwood City, __ Cal.App.5th __ (Aug. 29, 2017), the First District Court of Appeal addressed a challenge to the first phase of a two-phase development project on parcels created in a 1926 subdivision when the project area was in the jurisdiction of the County of San Mateo.  In the first phase, the City approved a development permit to construct elements such as a cul-de-sac for a fire truck turnaround, a fire hydrant, new streetlights, pedestrian pathways, an open space land dedication, and other civic improvements.  The second phase would involve additional permits and conditions for construction of residences on each lot.

Continue Reading Court of Appeal Rules That Subdivision Map Act Does Not Require City to Determine Legal Status of Lots Created by Older Map Before Approving Development Permit to Allow Construction of Infrastructure Improvements

On July 2, 2017, the California Supreme Court issued its opinion in Lynch v. California Coastal Commission, __ Cal.5th __ (Case No. S221980), holding that the owners of two coastal bluff properties in Encinitas forfeited their right to challenge the California Coastal Commission’s permit conditions by complying with all pre-issuance requirements, accepting the permit, and building the seawall.

Since 1986, the properties have been protected by a shared seawall, with wooden poles, at the base of the bluff and a midbluff erosion control structure.  A shared stairway provided the only access from the blufftop to the beach below.  In 1989, the Commission retroactively approved a coastal development permit for the seawall, midbluff structure, and stairway.  In 2009, the owners applied to the City to replace the aging seawall and midbluff structure with an integrated concrete wall and to rebuild the lower portion of the stairway.  The City approved the project, subject to the Commission’s approval of a coastal development permit.  But while the owner’s permit was pending, heavy winter storms caused the bluff below one of the owner’s homes to collapse, destroying portions of the seawall, midbluff structure, and stairway.

Continue Reading California Supreme Court Holds that Landowners Forfeited Right to Challenge Conditions of Permit to Build New Seawall by Proceeding with Construction

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.

Continue Reading Voters May Not Usurp City’s Administrative Land Use Authority Through Initiative Process

We’ve come a long way since 1911, when the initiative and referendum processes were enshrined in the state constitution to address corruption in state government caused by special interests.  For some reason that reality reminds me of a scene in Seinfeld’s “The Subway” episode, which had Elaine standing on a New York subway car carrying a large present.  An older woman approaches Elaine and this dialogue ensues:

Woman: “I started riding these trains in the forties.  Those days a man would give up their seat for a woman. Now we’re liberated and we have to stand.”

Elaine: “It’s ironic.”

Woman: “What’s ironic?”

Elaine: “This, that we’ve come all this way, we have made all this progress, but you know we’ve lost the little things, the niceties.”

Woman: “No, I mean what does ironic mean?”

Continue Reading What’s Ironic?

On April 4, 2017, in Young v. City of Coronado, __ Cal. App. 5th __ (2017) (Case No. D070210), the Court of Appeal for the Fourth Appellate District affirmed a trial court decision denying a challenge to the City of Coronado’s designation of a small cottage as a historic local resource.

The cottage owners sought a permit to demolish the structure, built in 1924, but the City’s Historic Resource Commission reviewed the property before issuing the permit and designated the cottage a historic resource under the Coronado Municipal Code.  Under the Code, a resource that is at least 75 years old and meets at least two of five criteria may be designated historic.  City staff identified evidence that the cottage met two of the criteria, and the Commission agreed.

Continue Reading Findings May be Legally Adequate Even if They Merely Recite the Language of the Ordinance