Land Use

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On November 10, 2016, the U.S. Department of Housing and Urban Development and the U.S. Department of Justice released a “Joint Statement” providing updated guidance on the application of the federal Fair Housing Act to state and local land use laws and practices.

The FHA prohibits a broad range of practices that discriminate against individuals on the basis of race, color, religion, sex, national origin, familial status, and disability.  Among other things, the FHA applies to local government entities and prohibits them from making zoning or land use decisions or implementing land use policies that exclude or otherwise discriminate against protected persons, including individuals with disabilities. The FHA does not pre-empt local zoning laws, however, which are is traditionally reserved to state and local governments, except to the extent such laws may conflict with requirements imposed by the FHA or other federal laws.Continue Reading HUD and DOJ Release Updated Joint Statement on “State and Local Land Use Laws and Practices and the Application of the Fair Housing Act”

On November 7, 2016, the Court of Appeal for the Third Appellate District reversed and remanded a trial court decision addressing a neighborhood group’s challenge to a 328-unit infill residential project in the City of Sacramento.  East Sacramento Partnership for a Livable City v. City of Sacramento, __ Cal.App.5th __ (2016) (Case No. C079614).
Continue Reading Court Defers to City’s General Plan Consistency Findings, Upholding Residential Infill Project

The question of who should pay the cost of municipal services for new residential development is a vexing one.  The answer is critically important to the developers and homebuilders who must finance and market their projects, the residents who will eventually foot the bills, and the communities seeking funds to ensure that new development pays for itself.

On October 13, 2016, the Court of Appeal for the First Appellate District addressed this issue in Building Industry Association of the Bay Area v. City of San Ramon, __ Cal.App.5th __ (2016) (Case No. A145575).  The Court affirmed a trial court decision supporting the City of San Ramon’s formation of a community facilities district and a special tax levied on a 48-unit townhouse project under the Mello-Roos Community Facilities Act of 1982.Continue Reading Court Upholds City’s Communities Facilities District and Related Special Tax

On October 13, 2016, the Court of Appeal for the Third Appellate District affirmed a trial court’s decision to grant a demurrer filed on behalf of Governor Jerry Brown following his concurrence with the Secretary of the Interior to allow a gaming facility in Yuba County. United Auburn Indian Community of the Auburn Rancheria v. Brown, __ Cal.App.5th __ (2016) (Case No. C075126).
Continue Reading Gubernatorial Action that has Land Use Consequences is not a an Illegal Exercise of Legislative Power

California’s housing crisis is well-understood and documented.  A chief culprit is the fact that the state’s coastal urban areas, for various reasons, do not approve enough new housing to accommodate everyone who seeks to live there.

The lack of new housing development is a function, in part, of the fact that California’s local finance structure essentially incentivizes nonresidential development.  There is also limited vacant developable land in coastal urban areas.Continue Reading Recent Reports Highlight Negative Consequences of Local Barriers to New Housing Development, Call for State-Level Solutions

On September 29, 2016, in a case of first impression, the Court of Appeal for the Second Appellate District addressed the tensions between the requirements of the Housing Accountability Act, Density Bonus Law, and Mello Law (establishing minimum requirements for affordable housing within the coastal zone) with the California Coastal Act. Kalnel Gardens, LLC v. City of Los Angeles, __ Cal.App.5th __ (2016) (Case No. B264434).
Continue Reading Court Resolves Tensions Between Housing Laws and Coastal Act in Favor of Coastal Act

On September 28, 2016, the Court of Appeal for the Fourth Appellate District affirmed a trial court decision denying a petition for writ of administrative mandamus filed by the owner of a nude entertainment business to challenge the City of San Diego’s revocation of her permit. Coe v. City of San Diego, __ Cal.App.5th __ (2016) (Case No. D068814).
Continue Reading Court Affirms Trial Court’s Denial of Writ of Administrative Mandamus Challenging City’s Revocation of Nude Entertainment Permit

On August 31, 2016, the Court of Appeal for the First Appellate District affirmed a trial court decision denying a petition for writ of mandate filed by a citizens group challenging the third in a series of master use permits for a Buddhist retreat center that has operated in the County of Sonoma since the mid-1970s. Coastal Hills Rural Preservation v. County of Sonoma, __ Cal.App.5th __ (2016) (Case No. A145573) addresses the group’s allegations that the County violated CEQA by approving the permit without an EIR, that the permit violates federal and state constitutional provisions against the establishment of religion, that the permit is inconsistent with the County’s general plan and zoning policies, and that the permit constitutes spot zoning. My partner, Art Coon, wrote about the CEQA issues on his blog, CEQA Developments, here.
Continue Reading Court Declines to Reweigh Conflicting Evidence, Holds that County Fully Considered its Land Use Policies and Extent to Which Project Conforms to Those Policies

On August 30, 2016, the Court of Appeal for the Second Appellate District affirmed a preliminary injunction in a nuisance abatement action brought on behalf of the People of the State of California against a Los Angeles-based medical marijuana collective doing business as “Weedland” and its principal. The People ex rel. v. FXS Management, Inc, __ Cal.App.4th __ (2016) (Case No. B263965).
Continue Reading Court Affirms Preliminary Injunction Against Medical Marijuana Collective

California’s cities and counties have a long and growing track record of successfully defending challenges to their land use authority filed on behalf of medical marijuana dispensaries.  These successes are largely a product of the broad and deep police power conferred to cities and counties under the California Constitution and the federal government’s inclusion of (and ongoing refusal to remove) marijuana from Schedule I of the Controlled Substances Act.  Schedule I drugs (including heroin and ecstasy) are defined as drugs with “no currently accepted medical use and a high potential for abuse.”  The federal government considers them “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.”
Continue Reading Enacting and Enforcing Local Ordinances to Prohibit Medical Marijuana Dispensaries – Up in Smoke?