On June 12, 2018, in County of Ventura v. City of Moorpark and Broad Beach Geologic Hazard Abatement District, __ Cal.App.5th __ (2018) (Case No. B282466), the Second District Court of Appeal published a decision addressing whether the California Environmental Quality Act’s broad definition of “project also applies to statutory exemptions, questions of state law preemption, the limits of a city’s contractual authority, and the abdication of a government entity’s police power. My partner, Art Coon, wrote about the CEQA issues here.
Land Use
Court Holds that for Purposes of Calculating Level 1 School Impact Fees, “All Interior Space is Assessable”
By Bryan W. Wenter, AICP on
On March 29, 2018, in 1901 First Street Owner, LLC v. Tustin Unified School District, __ Cal.App.5th __ (2018) (Case No. G054086), the Fourth District Court of Appeal addressed an important case of first impression regarding the question whether the square footage of interior space outside individual apartment units—i.e., interior common area—should be included in the calculation of Level 1 school impact fees. Interpreting the key provisions of the relevant school fee statutes, the Court of Appeal concluded that “assessable space” includes all interior common area.
Another Day, Another Challenge to Local Zoning of Medical Marijuana Dispensaries Goes Down in Smoke
By Bryan W. Wenter, AICP on
In the year of the 25th anniversary of Groundhog Day, starring Bill Murray, about a weatherman named Phil Connors who finds himself repeatedly living the same frustrating day, a California court rejected yet another lawsuit by a medical marijuana dispensary to a city’s determination that dispensaries are not a valid local land use and, accordingly, ordering the dispensary to close. The Sixth District Court of Appeal opinion in J. Arthur Properties, II, LLC v. City of San Jose, __ Cal.App.5th __ (2018) (Case No. H042938), filed and published on March 19, 2018, calls to mind several quotable quotes from Groundhog Day, including this gem: “Am I upsetting you, Princess? You know, you want a prediction about the weather, you’re asking the wrong Phil. I’ll give you a winter prediction: It’s gonna be cold, it’s gonna be gray, and it’s gonna last you for the rest of your life.”
U.S. Supreme Court Agrees to Hear Case Requesting Reconsideration of Williamson County’s Unfair and Unworkable State Court Exhaustion Requirement
By Bryan W. Wenter, AICP on
On March 5, 2018, the U.S. Supreme Court granted certiorari in Knick v. Township of Scott (Case No. 17-647) to address the requirement, established in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-96 (1985), that landowners must first unsuccessfully seek compensation in state court before bringing a Fifth Amendment takings claim in federal court. No other category of plaintiffs desiring to vindicate their constitutional rights under 42 U.S.C. § 1983 is subject to this onerous requirement.
In Protracted Dispute Over Modest Residential Development, Court Orders Lafayette to Place Referendum Petition on Ballot
By Bryan W. Wenter, AICP on
On February 21, 2018, in Save Lafayette v. City of Lafayette, __ Cal.5th __ (2018) (Case No. A149342), the First District Court of Appeal overturned the City of Lafayette’s decision to not place a referendum petition on the ballot to challenge a rezoning for a 44-unit single-family residential development because the referendum, if successful, would resurrect prior zoning that would be inconsistent with a recently amended general plan. (Ironically, the City has also been sued by a group that prefers a larger, 315-unit apartment project instead). According to the City, because the referendum is the power of the voters to approve or reject new laws, a successful referendum would cause the zoning to revert from “Single Family Residential” to “Administrative Professional Office,” thereby creating an inconsistency with the general plan’s residential land use designation, in violation of state law that requires zoning ordinances to be consistent with general plans.
Court Rejects Challenge to Ventura County’s Denial of Conditional Use Permit
By Bryan W. Wenter, AICP on
Posted in Land Use, Miscellaneous
The law is replete with references to famous passages from literature and poetry, perhaps to follow Mark Twain’s pithy observation that “plain clarity is better than ornate obscurity.” So began Hauser v. Ventura County Board of Supervisors, __ Cal.5th __ (2018), in which the Second District Court of Appeal’s February 20, 2018 opinion started with the following:
“This case calls to mind the poem ‘The Tyger’ from Songs of Experience by William Blake, the last stanza of which reads: ‘Tyger! Tyger! Burning bright In the forests of the night, What immortal hand or eye Dare frame thy fearful symmetry!’ ”
The case involved a quixotic challenge to the Ventura County Board of Supervisor’s 4-1 decision to deny a conditional use permit (“CUP”) to keep five tigers on a 19-acre property in the unincorporated Deer Creek Canyon area of the County, near Malibu. There are 46 homes within a mile, and two children’s camps within two to three miles, of the property. The project would include three tiger enclosures, a 13,500-square-foot arena, and an eight-foot-high chain link perimeter fence encompassing more than seven acres.
Continue Reading Court Rejects Challenge to Ventura County’s Denial of Conditional Use Permit
City of Oakland’s Building Code Appeal Process Violates State Law and Infringes Private Property Rights the State of California Has an Interest in Protecting
By Bryan W. Wenter, AICP on
The law has many terms for the word “fairness,” including due process, good faith, neutral, and unbiased. And among the basic principles of fairness, the Latin maxim “nemo debet esse judex in propria causa” stands out. It provides, essentially, that no one should be a judge in their own case or in a case in which they have an interest.
This famous legal maxim was squarely addressed in a recent case of first impression, Lippman v. City of Oakland, __ Cal.5th__ (2018), where California’s First District Court of Appeal reversed a trial court decision that rejected a landowner’s challenge to a building code violation reviewed by a single hearing officer appointed by the same branch of the City that issued the disputed citation. The decision was originally filed December 22, 2017 and later certified for publication on January 22, 2018.
Ambitious “Housing-First Policy” for “Transit-Rich Housing” Would Require Greater Density and Height for Housing Near Transit, Potentially Adding Millions of New Homes
By Bryan W. Wenter, AICP on
First term California State Senator Scott Wiener has quickly become a state leader on housing policy. Last year the San Francisco-based senator sponsored Senate Bill 35, which creates a streamlined approval process, in cities that do not meet their state-mandated housing goals, for certain multi-family residential projects that include affordable housing. SB 35 was a signature part of 15 housing bills Governor Jerry Brown signed last fall. Fresh on the heels of that success, Senator Wiener introduced a trio of bills, on January 3, 2018, that are part of what he describes as a “housing-first policy.”
According to Senator Wiener, the proposed bills would:
- Mandate denser and taller housing near transit (Senate Bill 827, co-authored by Senators Nancy Skinner of Berkeley and Phil Ting of San Francisco).
- Reform the Regional Housing Needs Assessment (RHNA) process by creating a clearer, more data-driven, and equitable process for assigning RHNA numbers to local communities, and require local communities to make up for past RHNA deficits (Senate Bill 828).
- Create a “by right” process that allows farm owners and operators to develop agricultural land for employee housing (Senate Bill 829, co-authored by Senator Andy Vidak of Hanford).
Ninth Circuit: Ventura County Outdoor Wedding Regulations Violate First Amendment
By Bryan W. Wenter, AICP on
On December 7, 2017, a three judge panel of the U.S. Court of Appeals for the Ninth Circuit held that the County of Ventura’s land use regulations, which require a conditional use permit for “temporary outdoor” events, violate the First Amendment’s protections of free speech and expression.
The case, Epona, LLC v. County of Ventura, __ F.3d __ (9th Cir. 2017), arose out of a CUP application to use a 40-acre working ranch and vineyard known as the Epona Estate for up to 60 outdoor events per year, including weddings. The property is zoned for agricultural use, and neighboring properties are designated either as agricultural or as open space.
Continue Reading Ninth Circuit: Ventura County Outdoor Wedding Regulations Violate First Amendment
Huntington Beach Specific Plan Exempt From General Plan Consistency Requirement
By Bryan W. Wenter, AICP on
Posted in General and Specific Plans, Land Use
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