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

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.
Continue Reading Attorney General Confirms Cities’ Freedom from County Zoning Regulations

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.
Continue Reading “More HOMES Act” Introduced to Facilitate Housing Near Existing Public Transportation and Job-Rich Communities

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.
Continue Reading California Appellate Court Upholds Settlement Agreement for $100M Malibu Beach Restoration Project

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.”
Continue Reading Court Holds that HOA’s Short-Term Rental Regulations Constitute “Development” Under the California Coastal Act

On April 27, 2018, the California Attorney General published an opinion (No. 17-702) concluding that a City of Hollister resolution approving the execution of an agreement to sell real property for development, pursuant to an approved plan for disposing a dissolved redevelopment agency’s property, is not subject to referendum.

The question arose following the City’s adoption of a resolution authorizing its city manager to enter into a disposition and development agreement for the sale and development of real property that would implement the Long Range Property Management Plan approved by the oversight board and the state Department of Finance. (Interestingly, the resolution was adopted by the City Council rather than the Successor Agency, a separate legal entity charged with winding down and completing the activities of the former redevelopment agency). The project would consist of two buildings: one two-story, 9,000 square foot philanthropic center and new headquarters for the Community Foundation for San Benito County; and a second, three-story building with 8,000 to 11,000 square feet of ground floor commercial retail space and 14 to 22 condominiums.Continue Reading Attorney General Confirms that Disposition of Real Property Under Long Range Property Management Plan is an Administrative Act not Subject to Referendum

On March 29, 2018, in 1901 First Street Owner, LLC v. Tustin Unified School District, __ Cal.App.5th __ (2018) (Case No. G054086), the Fourth District Court of Appeal addressed an important case of first impression regarding the question whether the square footage of interior space outside individual apartment units—i.e., interior common area—should be included in the calculation of Level 1 school impact fees.  Interpreting the key provisions of the relevant school fee statutes, the Court of Appeal concluded that “assessable space” includes all interior common area.
Continue Reading Court Holds that for Purposes of Calculating Level 1 School Impact Fees, “All Interior Space is Assessable”

In the year of the 25th anniversary of Groundhog Day, starring Bill Murray, about a weatherman named Phil Connors who finds himself repeatedly living the same frustrating day, a California court rejected yet another lawsuit by a medical marijuana dispensary to a city’s determination that dispensaries are not a valid local land use and, accordingly, ordering the dispensary to close.  The Sixth District Court of Appeal opinion in J. Arthur Properties, II, LLC v. City of San Jose, __ Cal.App.5th __ (2018) (Case No. H042938), filed and published on March 19, 2018, calls to mind several quotable quotes from Groundhog Day, including this gem: “Am I upsetting you, Princess?  You know, you want a prediction about the weather, you’re asking the wrong Phil.  I’ll give you a winter prediction: It’s gonna be cold, it’s gonna be gray, and it’s gonna last you for the rest of your life.”
Continue Reading Another Day, Another Challenge to Local Zoning of Medical Marijuana Dispensaries Goes Down in Smoke

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