Land Use

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On July 28, 2016, in a case of first impression, the Court of Appeal for the Sixth Appellate District held that labor costs for attorneys and paralegals to prepare the administrative record in a land use case are recoverable as expenses under Code of Civil Procedure 1094.5.

The case, No Toxic Air, Inc. v. Lehigh Southwest Cement Company, __ Cal.App.4th __ (2016) (Case No.H040047), arose over the Santa Clara County Board of Supervisors’ decision, in 2011, finding that the Permanente Quarry’s 3,510 acre surface mining operation, producing limestone and aggregate for the manufacture of cement, is a legal nonconforming use.  The quarry has been in operation since 1903 and has expanded substantially since The Permanente Corporation purchased it in 1939, opening new mining areas on the property and acquiring adjacent parcels.Continue Reading Prevailing Parties in Land Use Litigation May Recover Attorney’s Fees for Preparation of Administrative Record

Developing real property in California is notoriously difficult. Given minimal standing requirements, project opponents can and do tie up and delay new development for the mere cost of a filing fee.  In order to prevail in such challenges, however, project opponents must do more than make empty arguments without adequate factual or legal support.

This principle is addressed in Walters v. City of Redondo Beach, __ Cal.App.4th __ (2016) (Case No. B258638).  In that case, the Court of Appeal for the Second Appellate District affirmed a trial court decision denying a challenge to the City of Redondo Beach’s approval of a conditional use permit for construction of a combination car wash and coffee shop on a vacant lot adjacent to existing homes.  The case also raised interesting CEQA issues regarding the scope of the categorical exemption for new construction or conversion of small structures and the unusual circumstances exception to categorical exemptions.  My partner, Art Coon, will write about those issues in his CEQA Developments blog.Continue Reading Unsubstantiated Challenges to an Agency’s Conditional Use Permit Findings Will Not Fly

Numerous California communities regulate broad economic development objectives through general plan goals and policies intended to encourage and support small businesses or to ensure the compatibility of new commercial development with the community or neighborhood. Such objectives are susceptible to a range of reasonable interpretations that are difficult to successfully challenge. On July 13, 2016, the Court of Appeal for the Fourth Appellate District partially published Joshua Tree Downtown Business Alliance v. County of San Bernardino, __ Cal.App.4th __ (2016) (Case No. E062479), a case that illustrates the key legal principles—including the correct standard of review—that can make such challenges a little like tilting at windmills. The case also addresses several CEQA issues (including whether the County adequately considered whether project had the potential to cause urban decay and whether an EIR was required because there was substantial evidence to support a fair argument that the project could cause urban decay) my partner Art Coon wrote on this in his CEQA Developments blog.
Continue Reading Court Rejects General Plan Consistency Challenge Regarding City’s Approval of Franchise Retail Store Where Applicable Economic Development Goals and Policies are Alleged to Favor Small, Independent Businesses

There is no question in California land use law that development projects need not comply with every goal or policy in a community’s general plan.  While a city’s or county’s land use decisions must be consistent with the goals and policies in its general plan, the courts have consistently held that a finding of general plan consistency requires only that a project be “compatible with,” and “not frustrate,” the goals and policies of the applicable general plan.  State law does not require precise conformity of a proposed project with the land use designation for a particular site or an exact match between the project and the general plan.  Instead, development projects must simply be in agreement or harmony with the terms of the general plan.

These fundamental principles are easily understood when dealing with qualitative general plan policies such as those addressing community character or those requiring open space preservation and resource conservation.  But general plan consistency principles are sometimes misapplied when the issue is whether a given project is consistent with quantitative general plan provisions, such as those dealing with a project’s size, if a proposed project would exceed such development standards.Continue Reading Development Project May be Declared Consistent with General Plan Even if Quantitative Standards Exceeded

The location of several National Football League franchises have been in flux for years, with teams such as the Chargers, Raiders, and Rams seeking modern, amenity-laden stadiums they have been unable to attain in their current locations. Although earlier this year the NFL approved the relocation of the Rams from St. Louis to Inglewood, the repercussions of the league’s decision to bypass Carson in favor of Inglewood continue to play out.

On May 31, 2016, in Rand Resources, LLC v. City of Carson, __ Cal.App.4th __ (2016) (Case No. B264493), the Court of Appeal for the Second Appellate District rejected Carson’s attempt to use California’s anti-SLAPP statute to defend a breach of contract claim. Carson had wanted to develop a new sports and entertainment complex, including a football stadium, to attract one, or even two, NFL franchises to the community. To advance that goal, the City entered into an exclusive agreement with Richard Rand and several entities to serve as the City’s exclusive agent in coordinating and negotiating with the NFL.Continue Reading Court Rejects City’s Anti-SLAPP Claim Regarding Would-Be NFL Stadium in Carson

In a final report issued June 21, 2016, the Alameda County Grand Jury found that an Oakland City Council member used her position and office to advocate for private gain, and not the good of the City, in interfering with the planning process for a small housing development next door to her home.  The report highlights the importance of state and local conflict of interest requirements, training, and compliance, as well as the right of developers to be treated fairly in any project approval process.

The civil grand jury report comes in response to a citizen complaint citing a news report of a council member using City staff for her personal benefit to oppose a development project.  While the report does not identify the council member by name, the facts in the report indicate that the project is next door to Oakland City Council President Lynette Gibson McElhaney.Continue Reading Grand Jury Finds Oakland City Council Member Broke Ethics Rules in Interfering with a Housing Development Next Door to Her Home

On June 23, 2016, in Stewart Enterprises, Inc. v. City of Oakland, __ Cal.App.4th __ (2016) (Case No. A143417), the Court of Appeal for the First Appellate District issued an important decision dealing with whether a new legislative enactment may constitutionally deprive a landowner of a vested right conferred by local ordinance. The case arose out of a May 2012 building permit the City of Oakland issued for the construction of a controversial crematorium and the City’s later enactment of an emergency ordinance purporting to require a conditional use permit on new crematoria, including any crematoria that have obtained building permit for which rights to proceed have not yet vested under state law.
Continue Reading Vested Rights Conferred Under Local Ordinance Trump Conditional Use Permit Requirement Later Imposed by Emergency Ordinance

The Second Amendment states that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” In District of Columbia v. Heller, the Supreme Court held that the Amendment guarantees an individual right to possess firearms for traditionally lawful purposes, such as self-defense. See 554 U.S. 570, 574–626 (2008). The Supreme Court has not yet clarified the entire field of Second Amendment jurisprudence, however, and given that there is an individual right to bear arms for self-defense, there is a growing split in the nation’s lower courts about whether gun sellers have Second Amendment rights.
Continue Reading When Land Use Regulations Collide with the Protections of the Second Amendment

On May 13, 2016, Brown administration released the administration’s “May Revision” budget, which contains a bold proposal in a trailer bill to address California’s long-standing and consequential housing affordability problem, one that has been documented extensively by the Legislative Analyst’s Office.

In particular, the administration has proposed legislation—entitled Streamlining Affordable Housing Proposals—that would provide ministerial, or “by‑right,” land use entitlement provisions for multi-family infill housing developments that include an affordable housing component. The laudable goal of this important bill is to restrain development costs, improve the pace of housing production by increasing certainty and shortening the local approval process, and encourage an increase in housing supply.Continue Reading Governor Brown Proposes to Streamline Approval of Certain Local Housing Developments

At the conclusion of the Mexican-American War in 1848, the United States acquired California from Mexico through the Treaty of Guadalupe Hidalgo.  The Treaty promised to honor Spanish and Mexican land grants.  While it is decidedly not a land use statute, the Treaty played a key role in Friends of Martin’s Beach v. Martin’s Beach 1 LLC, 246 Cal.App.4th 1312 (2016), a fascinating case that addressed a clash between the public and a billionaire property owner over the use and eventual closure of a road,  parking area, and Martin’s Beach on 53 acres of land south of Half Moon Bay.
Continue Reading Surfers Break with Billionaire in Ongoing Battle over Historic Coastal Property