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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.

Continue Reading Court Denies NIMBY Challenge to West Los Angeles Mixed-Use Project

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.

Continue Reading New Law Provides Land Use Authority to BART to Create Transit-Oriented Development Near Stations

In 2005, in Lingle v. Chevron U.S.A. Inc., the U.S. Supreme Court unanimously overruled the first prong of a regulatory takings test established 25 years earlier, in Agins v. City of Tiburon.  In Agins, the Court held that a regulation effects a taking if it (1) does not “substantially advance legitimate state interests” or (2) “denies an owner economically viable use of his land.”  Writing for a unanimous Court in Lingle, then Justice Sandra Day O’Connor recognized that “the language the Court selected [in Agins] was regrettably imprecise” and “reveals nothing about the magnitude or character of the burden a particular regulation imposes upon private property rights.”

Continue Reading City’s Mishandling of CEQA and Resulting Construction Delay Does Not Create Takings Liability

The City of Rancho Palos Verdes is the site of the ancient Portuguese Bend and Abalone Cove landslides, both of which remain active.  In 1978, in response to movement of the Abalone Cove landslide, the City adopted an “urgency ordinance” establishing the “Landslide Moratorium Area,” which generally prohibits new residential development in the landslide area.  The moratorium area is divided into eight zones of varying stability.  The ordinance and subsequent amendments created various categories of exceptions to and exclusions from the moratorium that have been the subject of extensive litigation.

Continue Reading Court Rejects Residents’ Takings Lawsuits for Failure to Exhaust Administrative Remedies

On August 23, 2018, the California Supreme Court held, in City of Morgan Hill v. Bushey, __ Cal.4th __ (2018) (Case No. S243042), that a referendum petition to challenge a zoning ordinance amendment that would bring the ordinance into compliance with the county’s or city’s general plan is valid, even though such a referendum would temporarily leave in place zoning that does not comply with the general plan, at least if the local agency has other means to make the ordinance consistent with the plan.  The Court reasoned that such a referendum simply keeps the underlying inconsistency in place for a certain time––until the local agency can make the zoning ordinance consistent with general plan.

Continue Reading California Supreme Court Confirms That Referendum Petition Can Challenge Zoning Intended to be Made Consistent with General Plan

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.

Continue Reading California Appellate Court Upholds Settlement Agreement for $100M Malibu Beach Restoration Project

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.

Continue Reading Court Holds that for Purposes of Calculating Level 1 School Impact Fees, “All Interior Space is Assessable”

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.”

Continue Reading Another Day, Another Challenge to Local Zoning of Medical Marijuana Dispensaries Goes Down in Smoke

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.

Continue Reading U.S. Supreme Court Agrees to Hear Case Requesting Reconsideration of <i>Williamson County’s</i> Unfair and Unworkable State Court Exhaustion Requirement