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.
On September 30, 2018, Governor Jerry Brown signed into law Assembly Bill 2923, which gives the Bay Area Rapid Transit District land use authority for transit-oriented development on the land it already owns near existing and planned stations. The District intends to use the law to fully build out BART-owned land around its stations by 2040.
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.
Although the federal Controlled Substances Act prohibits the use, possession, manufacture, and sale of marijuana for all purposes, numerous states have loosened their own marijuana laws. For example, California’s Proposition 215 (the “Compassionate Use Act of 1996”) and its legislatively-adopted “Medical Marijuana Program” have removed certain state law obstacles from the ability of qualified patients to obtain and use marijuana for legitimate “medical” purposes. Among other things, these laws exempt the “collective[ ] or cooperative[ ] cultiva[tion]” of medical marijuana by qualified patients and their designated caregivers from prosecution or abatement under specified state criminal and nuisance laws that would otherwise prohibit such activities.
An ongoing torrent of cases have tested the scope of those state laws in the land use context. The resulting decisions have consistently underscored our long-held understanding that land use regulation in California has historically been a function of local government.
Last September we wrote about 616 Croft Ave., LLC v. City of West Hollywood, an opinion from the Court of Appeal for the Second Appellate District upholding a nearly $555,000 in-lieu fee on an 11-unit residential infill project because the fee was “related to the cost of constructing affordable housing units within the City.” Among other things, we noted that the case “underscores the ongoing need for the United States Supreme Court to finally address whether the heightened scrutiny of the Nollan, Dolan, and Koontz Fifth Amendment takings cases applies to legislatively imposed permit conditions.”
On December 21, 2016, the California Supreme Court denied a petition to review 616 Croft Ave., LLC. A petition for writ of certiorari was filed on March 15, 2017 (Case No. 16-1137), giving SCOTUS its opportunity to consider the case.
As we have previously reported, the California Supreme Court in Property Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151, ruled that the California statutes allowing precondemnation entry by the government to test and inspect property (Code Civ. Proc., §§1245.010 et seq.) are constitutionally valid, subject to reformation to permit a landowner to obtain a jury determination of damage caused by the entry. Having dealt with the issue of constitutionality of the precondemnation entry statutes, the Supreme Court remanded the matter to the Court of Appeal to resolve several remaining procedural issues.
The Court of Appeal’s opinion on remand, filed December 16, 2016, addresses those procedural issues and provides guidance as to how the Supreme Court’s holding will work in practice. The opinion on remand clarifies (i) that a landowner may seek discovery in connection with a petition for precondemnation entry, and the concurring opinion by Justice Blease (who dissented from the original Court of Appeal opinion) clarifies (ii) that in the event the government proceeds with acquisition of the property, the claim for precondemnation damage may be asserted by means of a cross-complaint in the main condemnation action.
In 2005, the United States Supreme Court decided in Kelo v. City of New London, 545 U.S. 469 (2005), that the Constitution allows the government to take private property through eminent domain for the purpose of “economic development,” which it held to constitute a “public use” under the Fifth Amendment. The 5-4 decision sparked a nationwide backlash in which more than 40 states and the federal government adopted eminent domain reform legislation designed to prevent these types of takings.
The case remains exceedingly controversial and has been compared to some of the Supreme Court’s worst decisions, including Dred Scott v. Sandford (denying citizenship to black people and expanding slavery), Plessy v. Ferguson (upholding state racial segregation laws for public facilities under the doctrine of “separate but equal”), and Bowers v. Hardwick (upholding a conviction under a state law criminalizing “homosexual sodomy” (in the privacy of one’s own home)).
On September 23, 2016, the Court of Appeal for the Second Appellate District affirmed a trial court decision denying a petition for writ of mandate filed by a developer challenging various fees—totaling nearly $600,000—in connection with an 11-unit subdivision and condominium complex in West Hollywood. 616 Croft Ave., LLC v. City of West Hollywood, __ Cal.App.5th __ (2016) (Case No. BC498004).
The case is the first reported appellate decision to rely upon the broad holding of the California Supreme Court’s blockbuster 2015 affordable housing case, California Building Industry Assn. v. City of San Jose, and it boldly highlights the far reaching implications of that ruling. In my opinion, it also underscores the ongoing need for the United States Supreme Court to finally address whether the heightened scrutiny of the Nollan, Dolan, and Koontz Fifth Amendment takings cases applies to legislatively imposed permit conditions. We wrote about that issue earlier this year after the U.S. Supreme Court denied certiorari in the CBIA case, and we note that the Court will soon have another opportunity to grant certiorari on this important issue.
On August 30, 2016, the Court of Appeal for the Second Appellate District affirmed a preliminary injunction in a nuisance abatement action brought on behalf of the People of the State of California against a Los Angeles-based medical marijuana collective doing business as “Weedland” and its principal. The People ex rel. v. FXS Management, Inc, __ Cal.App.4th __ (2016) (Case No. B263965).
California’s cities and counties have a long and growing track record of successfully defending challenges to their land use authority filed on behalf of medical marijuana dispensaries. These successes are largely a product of the broad and deep police power conferred to cities and counties under the California Constitution and the federal government’s inclusion of (and ongoing refusal to remove) marijuana from Schedule I of the Controlled Substances Act. Schedule I drugs (including heroin and ecstasy) are defined as drugs with “no currently accepted medical use and a high potential for abuse.” The federal government considers them “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.”