In a low-profile but important new decision, San Luis Obispo Local Agency Formation Commission v. City of Pismo Beach, __ Cal.App.5th __ (2021) (Case No. B296968), the Second District Court of Appeal affirmed a trial court decision and held that the Cortese-Knox-Hertzberg Act (Gov. Code § 56000 et seq.) does not authorize a local agency formation commission (“LAFCO”) to require an indemnification agreement or to require the payment of attorney fees based on such an agreement.

Continue Reading Game Changer: Public Agency Cannot Mandate Payment of Attorney Fees Under Indemnity Agreement Without Specific Statutory Authority

Judge Amy Coney Barrett was nominated, for a reason, to replace the late Justice Ruth Bader Ginsburg as an Associate U.S. Supreme Court Justice.  As other commenters have noted, a Justice Barrett is expected to move the Court to the right on a wide range of issues, including health care, gun control, and abortion.  But what is far less clear at this point is how a Justice Barrett would influence or alter the Court’s property rights jurisprudence.

Continue Reading What Might Supreme Court Nominee Amy Coney Barrett Mean to Property Rights?

In an important new case certified for publication on May 8, 2020, Petrovich Development Company, LLC v. City of Sacramento, __ Cal.App.5th __ (2020) (Case No. C087283), the Third District Court of Appeal addressed the constitutional due process restraints imposed on city council members, who are normally policymakers and voices of their constituents except when they act in a quasi-judicial capacity as adjudicators of matters on appeal from an administrative body.

Continue Reading Court Invalidates City’s Denial of Conditional Use Permit Because Councilmember’s Pre-Hearing Actions Demonstrated Bias

Seeking to piggyback on the State of Emergency Governor Gavin Newsom declared on March 4, 2020 as part of the state’s response to address the global COVID-19 pandemic, California cities filed a letter with the Governor asking him to “pause” various important statutory timelines that apply to twelve parts of state law, including several that play a central role in the ongoing housing crisis.  In the six-page letter, dated March 22, 2020, the League of California Cities explains that

Continue Reading California Cities Seek Relief From Project Processing, Public Records Act, and Other Key Statutory Timelines During State of Emergency Resulting From COVID-19

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.

Continue Reading Court Rejects Coastal Act Preemption Challenge to San Diego’s Approval of Conditional Use Permit for Transitional Housing Facility

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.


Continue Reading Rough Justice: 4-1 Supermajority Vote of City Council Not Enough to Grant Appeal of Planning Commission’s Denial of Conditional Use Permit Applications Because 80% < 71%

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.

Continue Reading Court of Appeal Establishes Bright Line Rule That Pre-Application Inquiries and Meetings With City Staff Is Not “Current and Immediate Threat” for Valid Moratorium Ordinance

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.”

Continue Reading Attorney General Opines that Cities May Not Condition the Grant of a Density Bonus on the Payment of a “Public Benefit Fee”

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.

Continue Reading Court Rules That Extending Permit for Quarry Operation Was an Impermissible Extension, Enlargement, or Intensification of a Non-Conforming Use in Violation of County Zoning Ordinance

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.

Continue Reading “Housing Crisis Act” Introduced to Impose Substantial Limits on Local Land Use and Zoning Controls and Expedite Housing Production in High-Cost Regions