On February 18, 2020, in Citizens for South Bay Coastal Access v. City of San Diego, __ Cal.App.5th __ (2020) (Case No. D075387), the Fourth District Court of Appeal rejected a project opposition group’s challenge, under the California Coastal Act, to San Diego’s approval of a conditional use permit to allow the City to convert an existing Super 8 motel into a transitional housing facility for homeless misdemeanor offenders.

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It is usually easy to understand when a local legislative body approves a given motion.  Indeed, a simply majority vote is all that is required for a motion to pass in most communities.  Thus, obtaining a four to one vote of a city council granting an appeal of a planning commission denial of a given development project would typically warrant celebration.  The appeal would have prevailed and the project would be approved.

But vote counting can become complicated in certain circumstances, particularly in communities that have their own unique appeal provisions.  Understanding applicable land use procedural requirements and “reading the tea leaves” is critical.


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California law contains several critical limitations on the exercise of the police power conferred in Article XI, Section 7 of the state constitution.  As set forth in Government Code section 65858, the moratorium statute allows cities and counties to adopt 45-day “interim ordinances” to prohibit land uses that may conflict with a contemplated general plan amendment or another land use proposal the legislative body is studying or intends to study within a reasonable period of time.  Such ordinances can be extended so that the maximum term of the moratorium does not exceed two years.

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California’s ongoing housing crisis has many causes, including, as prominently noted in the Housing Accountability Act, the “activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing.”  See, e.g, Cal. Gov’t Code § 65589.5(a)(1)(B).  Fortunately, however, these abuses of the police power are driving the legislature to act.  For example, in explaining the purpose of Senate Bill 50, which we wrote about here, California State Senator Scott Wiener explained that “absent state intervention, communities will continue to effectively prohibit people from living near transit and jobs by making it illegal to build small apartment buildings around transit and jobs, while fueling sprawl and inhumane supercommutes.”

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On April 3, 2019, in a case originally filed March 6, 2019, the First District Court of Appeal certified for publication Point San Pedro Road Coalition v. County of Marin, __ Cal.App.5th __ (Case No. A150002) (2019), an interesting opinion addressing the limits of the power local agencies have to approve changes to non-conforming land uses.

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Declaring there to be a statewide housing emergency, California state Senator Nancy Skinner (D-Berkeley) introduced Senate Bill 330, on February 19, 2019, to suspend certain regulatory restrictions on the development of new housing and to expedite the permitting of housing in certain high-cost regions for a 10-year period.

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On December 6, 2018, the California Attorney General issued an opinion (No. 14-403) in response to a request from Mendocino County Counsel Katherine L. Elliott to address three questions regarding the balance of land use regulatory authority between cities and counties.  According to the request, in 1993 an incorporated city acquired real property, outside the city limits, in an unincorporated area of the County.  When it acquired the property, the city assumed an existing lease that covered a portion of the property, becoming a lessor to the private business that was operating and continues to operate there.  The Attorney General was thus asked, in this context, to determine whether and under what circumstances a city and its private lessee may be exempt from the county’s building and zoning ordinances.

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California State Senator Scott Wiener is taking another whack at seriously addressing the state’s housing supply crisis with a bill that would create new state zoning requirements for high-density residential development near certain high-quality public transit.  And this time the bill would apply to certain communities that are considered to be “job-rich” by virtue of their proximity to jobs, high area median income, and high-quality public schools, even in the absence of high-quality transit.  This key part of the bill would help ensure that more affluent communities do their part to alleviate the state’s critical housing shortage.  At the same time, however, the bill seeks to protect against the displacement of renters and “sensitive communities” at risk of displacement.

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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.

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The harsh effects on property rights resulting from the California Coastal Act’s broad definition of “development” are on display again following the Second District Court of Appeal’s March 27, 2018 opinion, in Greenfield v. Mandalay Shores Community Association, __ Cal.App.5th __ (2018) (Case No.B281089), where the Court held that “[t]he decision to ban or regulate [short-term rentals] must be made by the City and Coastal Commission, not a homeowner’s association.”

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