Land Use

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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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On April 3, 2019, in a case originally filed March 6, 2019, the First District Court of Appeal certified for publication Point San Pedro Road Coalition v. County of Marin, __ Cal.App.5th __ (Case No. A150002) (2019), an interesting opinion addressing the limits of the power local agencies have to approve changes to non-conforming land uses.
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Declaring there to be a statewide housing emergency, California state Senator Nancy Skinner (D-Berkeley) introduced Senate Bill 330, on February 19, 2019, to suspend certain regulatory restrictions on the development of new housing and to expedite the permitting of housing in certain high-cost regions for a 10-year period.
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“Out here, due process is a bullet!” – John Wayne

As a general principle, the federal and state constitutions prohibit governmental entities from depriving persons of property without due process of law.  But as the Second District Court of Appeal reminded us on January 9, 2019, in Venice Coalition to Preserve Unique Community Character v. City of Los Angeles, __ Cal.App.5th __ (2019), not all governmental actions in land use matters sufficiently implicate property interests to require the procedural due process protections of reasonable notice and an opportunity to be heard.

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On December 6, 2018, the California Attorney General issued an opinion (No. 14-403) in response to a request from Mendocino County Counsel Katherine L. Elliott to address three questions regarding the balance of land use regulatory authority between cities and counties.  According to the request, in 1993 an incorporated city acquired real property, outside the city limits, in an unincorporated area of the County.  When it acquired the property, the city assumed an existing lease that covered a portion of the property, becoming a lessor to the private business that was operating and continues to operate there.  The Attorney General was thus asked, in this context, to determine whether and under what circumstances a city and its private lessee may be exempt from the county’s building and zoning ordinances.
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California State Senator Scott Wiener is taking another whack at seriously addressing the state’s housing supply crisis with a bill that would create new state zoning requirements for high-density residential development near certain high-quality public transit.  And this time the bill would apply to certain communities that are considered to be “job-rich” by virtue of their proximity to jobs, high area median income, and high-quality public schools, even in the absence of high-quality transit.  This key part of the bill would help ensure that more affluent communities do their part to alleviate the state’s critical housing shortage.  At the same time, however, the bill seeks to protect against the displacement of renters and “sensitive communities” at risk of displacement.
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On September 26, 2018, the First District Court of Appeal partially published Atwell v. City of Rohnert Park, __ Cal.App.5th __ (2018) (Case Nos. A151896, A153011), a decision originally filed on September 18, 2018, addressing important procedural defenses in connection with the approval and subsequent re-approval of a Wal-Mart expansion project.
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On October 17, 2018, in Beach and Bluff Conservancy v. City of Solana Beach, __ Cal.App.5th __ (2018) (Case No. D072304), the Fourth District Court of Appeal ruled against a coastal property owner’s group in its facial challenge to amendments to the City of Solana Beach’s Local Coastal Program Land Use Plan.  The amendments adopted policies encouraging greater public access and restricting the use of seawalls and other shoreline protection devices.
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On October 1, 2018, in Westsiders Opposed to Overdevelopment v. City of Los Angeles, __ Cal.App.5th __ (2018) (Case No. B285458), the Second District Court of Appeal denied an appeal challenging the City of Los Angeles’ approval of the Martin Expo Town Center, an 800,000 square foot mixed-use project on a five-acre site in West Los Angeles.  The project includes the demolition of Martin Cadillac, along with the construction of 516 residential units in a seven story building, 99,000 of ground floor retail space, and 200,000 square feet of office floor area in a ten story building.
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On September 30, 2018, Governor Jerry Brown signed into law Assembly Bill 2923, which gives the Bay Area Rapid Transit District land use authority for transit-oriented development on the land it already owns near existing and planned stations.  The District intends to use the law to fully build out BART-owned land around its stations by 2040.
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