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

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.

Continue Reading 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

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).

Continue Reading Ambitious “Housing-First Policy” for “Transit-Rich Housing” Would Require Greater Density and Height for Housing Near Transit, Potentially Adding Millions of New Homes

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

The threshold procedural requirements for litigating decisions made by California municipalities are critically important, and failure to meet such requirements generally leads to harsh results.  These issues were on full display in Los Globos Corporation v. City of Los Angeles, __ Cal.App.5th __ (2017), a recent decision of the Second District Court of Appeal, published on November 20, 2017, which highlights the importance of exhausting administrative remedies within the generally short statutes of limitation provided in state and local law.

The case arose out of a dispute over several issues regarding the operation of the Los Globos nightclub, including whether the club was required to have a permit to operate a “dance hall” and whether the club had a valid certificate of occupancy for dancing on the first floor of its two-story building.  City inspectors eventually confiscated the club’s occupancy load cards and certificate of occupancy, without a public hearing.  Under relevant provisions of the Los Angeles Municipal Code, the club had 15 days to appeal the “revocation, suspension, or denial” to a board of building and safety commissioners. Continue Reading Failure to Exhaust Administrative Remedies Dooms Nightclub’s Challenge to City Inspectors’ Administrative Reduction of Allowable Occupancy

The attorney-client privilege protects communications made in confidence by a client to its attorney for the purpose of obtaining legal advice.  The privilege can extent to consultants and experts hired by the attorney on behalf of a client so long as the communication involves the subject matter about which the attorney was consulted and the consultant or expert was retained by the attorney to assist the attorney in providing legal advice to the client.

A recent decision out of an Indiana federal court shows the limitations of the attorney-client privilege in this context, wherein communications made in the routine course of business that contain no privileged information and that are devoid of legal advice or requests for advice are not protected and can be discovered.

Continue Reading Court Holds that Attorney-Client Privilege Extends to Environmental Consultants Hired by an Attorney on Behalf of a Client, but Only to the Extent Communications are Made for the Purpose of Obtaining Legal Advice from the Attorney

California provides relatively short statutes of limitations for challenges in the land use context. For example, Government Code section 65009(c)(1) provides that “no action or proceeding shall be maintained [for a wide range of development approvals] by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision . . . .”  Under section 65009(c)(1)(E), any challenge to a “variance, conditional use permit, or any other permit” must be made within 90 days of the decision.  And section 65009(e) provides that once the time limit has expired “all persons are barred from any further action or proceeding.”

These types of short limitations periods are intended to provide certainty for property owners and local governments regarding land use decisions and to alleviate the chilling effect on the confidence with which property owners and local governments can proceed with projects  involving potential legal challenges to land use decisions.

Continue Reading Court Rejects Late Challenge to Permits for New Lifeguard Station on San Diego’s Mission Beach

Vampire Weekend may not “give a f— about an Oxford comma,” but I certainly do.  And so, too, does the United States Court of Appeals for the First Circuit, which opened a recent opinion, in a class action lawsuit about overtime pay for a dairy company’s delivery drivers, with these words:

“For want of a comma, we have this case.”

Also known as the serial comma, the Oxford comma is the comma after the second-to-last item in a list of three or more things.  It is, in other words, the comma that precedes the words “and” or “or.”

Continue Reading The Case of the Missing $10M Oxford Comma

Boundary disputes are one of the most actively litigated areas of real property law.  One common category of such disputes involves the trimming of a neighbor’s tree, either to remove branches that have grown over a property line or to maintain or improve views.  While California law generally provides no right to an unobstructed view, an issue we previously addressed here, an adjoining landowner may reasonably trim the branches of a neighbor’s tree to the property line.  Adjoining landowners may not, however, enter a neighbor’s property to abate the encroachment, and the potential cost of doing so just increased substantially.

On January 31, 2017, in a case of first impression, the Court of Appeal for the Second Appellate District ruled that annoyance and discomfort damages resulting from tortious injuries to timber or trees are subject to the statutory damage multiplier.  Fulle v. Kanani, __ Cal.App.5th __ (2016) (Case No. B271240).  The case involved contiguous properties, separated by a fence, in a hillside neighborhood of Encino.  The plaintiff’s property contained five mature eucalyptus trees and a black walnut tree, all of which provided her with aesthetic benefits, shade, and privacy.  The trees also partially blocked the defendant’s view of the San Fernando Valley.  Shortly after acquiring his property, the defendant hired a work crew that entered the plaintiff’s property without her permission, cut the trees to approximately half their height, and removed all of their branches.

Continue Reading Annoyance and Discomfort Damages Resulting from Injury to Trees are Subject to the Statutory Damage Multiplier

On January 24, 2017, the Court of Appeal for the Sixth Appellate District interpreted Government Code section 53094 and held that, unlike school districts, county boards of education cannot be exempted from local zoning requirements.  San Jose Unified School District v. Santa Clara County Office of Education, __ Cal.App.5th __ (2016) (Case No. H041088).

Section 53094 authorizes “the governing board of a school district” to “render a city or county zoning ordinance inapplicable to a proposed use of property by the school district,” under certain circumstances.  Through the adoption of section 53094, the legislature intended to forestall local obstruction of state-sanctioned school construction and school location.

Continue Reading County Boards of Education Cannot be Exempted from Local Zoning Requirements