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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Land Use
Court of Appeal Establishes Bright Line Rule That Pre-Application Inquiries and Meetings With City Staff Is Not “Current and Immediate Threat” for Valid Moratorium Ordinance
By Bryan W. Wenter, AICP on
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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Court Holds That Takings Claims Are Not Ripe Because City’s Denial of Grading Permit Was Not a Final Decision
By Bryan W. Wenter, AICP on
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.
Attorney General Opines that Cities May Not Condition the Grant of a Density Bonus on the Payment of a “Public Benefit Fee”
By Bryan W. Wenter, AICP on
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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Court Rules That Extending Permit for Quarry Operation Was an Impermissible Extension, Enlargement, or Intensification of a Non-Conforming Use in Violation of County Zoning Ordinance
By Bryan W. Wenter, AICP on
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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“Housing Crisis Act” Introduced to Impose Substantial Limits on Local Land Use and Zoning Controls and Expedite Housing Production in High-Cost Regions
By Bryan W. Wenter, AICP on
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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Court Rejects Citizens Group’s Challenge to Venice Development Permitting Process
By Bryan W. Wenter, AICP on
Posted in Coastal Act, Land Use
“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.
Attorney General Confirms Cities’ Freedom from County Zoning Regulations
By Bryan W. Wenter, AICP on
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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“More HOMES Act” Introduced to Facilitate Housing Near Existing Public Transportation and Job-Rich Communities
By Bryan W. Wenter, AICP on
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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Second General Plan Consistency Challenge to Re-Approval of Wal-Mart Expansion Project Fails on Procedural Grounds
By Bryan W. Wenter, AICP on
Posted in Land Use
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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