On January 26, 2023, in Save Livermore Downtown v. City of Livermore, __Cal.App.5th __ (2021) (Case No. A164987), the First District Court of Appeal affirmed a trial court decision rejecting a local NIMBY group’s challenge to an affordable housing project in downtown Livermore on the grounds that the project is inconsistent with state and local planning and zoning laws and that the project was not exempt from review under the California Environmental Quality Act.  The Court also affirmed the trial court’s decision to require the NIMBY group to post a bond as security for costs and damages the developer would incur as a result of litigation-related project delays.

Continue Reading Court Rejects Meritless Challenge to Livermore Affordable Housing Project

The Terraces of Lafayette is a 315-unit housing development project in Lafayette, California that is perhaps the poster child project under the state’s most important housing production law, known as the Housing Accountability Act (Gov. Code 65589.5’ “HAA”).  The project gave rise to the YIMBY movement and the notion of “suing the suburbs.”  Intensely opposed for years by an uncompromising local NIMBY group known as Save Lafayette, as well as by a longtime member of Save Lafayette who ran for office to oppose the project and became a councilmember in 2018, the project has been referred to in the press as many things, including “the project that started a housing war.”  The project has also twice been a direct catalyst for additional legislative strengthening of the HAA (see Senate Bills 167 and 330).  Miller Starr Regalia represented the developer, O’Brien Land Company, in the entitlement and litigation process and on November 30, 2022, two weeks after oral argument, prevailed in a landmark decision, Save Lafayette v. City of Lafayette, __Cal.App.5th __ (2021) (Case No. A164394), rejecting all of Save Lafayette’s claims attempting to thwart the project.

Continue Reading Miller Starr Regalia Prevails in Landmark Housing Accountability Act Case

California is in the midst of the 6th Regional Housing Needs Allocation cycle known as RHNA, a state-mandated process that requires all cities and counties to timely update the housing elements of their general plans to plan for their fair share of California’s housing needs to people of all income levels.  Many cities have failed to timely adopt an updated housing elements in substantial compliance with state housing element law and more are expected to follow, giving rise to the viable use of the colloquially-named “Builder’s Remedy” in the Housing Accountability Act.

Continue Reading “Builder’s Remedy” Provides Key Housing Production Opportunities in California

In late 2020, California Attorney General Rob Bonta announced the creation of a “Housing Strike Force” within the California Department of Justice (DOJ) to enforce state housing laws by beginning to put teeth into often-ignored laws that restrict local authority over new housing development.

Continue Reading California Attorney General Continues to Enforce State Housing Laws

On February 2, 2022, in Bankers Hill 150 v. City of San Diego, __ Cal.App.5th __ (Case No. D077963), the Fourth District Court of Appeal relied on fundamental provisions of California’s Density Bonus Law in rejecting a challenge by local NIMBY’s to a 20-story mixed-use project in San Diego on the grounds that the project is inconsistent with the neighborhood because it is too dense, too tall, and too close to the street.  The Court recognized that the NIMBY group sidestepped the implications of the Density Bonus Law, which shapes and limits a city’s discretion in reviewing a project.

Continue Reading State Housing Law Again Preempts Subjective Local Development Standards

On January 12, 2022, in Old East Davis Neighborhood Association v. City of Davis, __ Cal.App.5th __ (Case No. C090117), the Third District Court of Appeal reversed a trial court decision that granted a writ petition in favor of project opponents on the basis that the record did not support the City’s decision.  In so doing, the Court applied a deferential standard of review and affirmed the City’s general plan consistency determination, holding that the decision was not unreasonable and that substantial evidence supported approval of a mixed-use project.

Continue Reading Court Affirms City’s Determination That Substantial Evidence Supports Approval of Mixed-Use Development Project

For decades developers and landowners have considered San Francisco as a City that is unfriendly to property rights.  From the City’s Hotel Conversion Ordinance, which severely restricts the conversion of hotels from residential to tourist use, to the Community Opportunity to Purchase Act, which gives non-profit organizations the right of first offer and the right of first refusal to purchase certain multi-family properties offered for sale in the City, San Francisco has a longstanding reputation as being hostile to constitutionally-protected property rights.

Continue Reading California Department of Housing and Community Development Warns San Francisco About Potential Violations of State Housing Law

On May 4, 2021, the Second District Court of Appeal affirmed a trial court decision, in Kracke v. City of Santa Barbara, __ Cal.App.5th __ (2021) (Case No. B300528), enjoining the City of Santa Barbara’s enforcement of a short-term vacation rental ban in the coastal zone, through proactive enforcement of existing zoning regulations, unless it obtains Coastal Commission approval or a waiver of such requirement.

Continue Reading Landowner Prevails in Short-Term Vacation Rental Lawsuit Against Santa Barbara

The Third District Court of Appeal published an important new case on September 16, 2020—Parkford Owners for a Better Community v. County of Placer, __ Cal.App.5th __ (2020) (Case No. C087824)—holding that a project opponent’s challenge to the expansion of a development project was moot given that construction was nearly complete.  The case distinguishes other leading cases addressing “mootness” in the land use and CEQA context and provides important insights for those involved in the development process.

Continue Reading Completion of Development Project Rendered Opponent’s Challenge to County’s Issuance of a Building Permit Moot

The Religious Land Use and Institutionalized Persons Act of 2000, known as “RLUIPA,” is a federal civil rights law that protects individuals and religious assemblies and institutions from discriminatory and unduly burdensome land use regulations.  Among several key parts of the statute, RLUIPA contains an “equal terms” provision that prohibits any government entity from imposing or implementing a land use regulation in a manner that treats a religious assembly or institution on “less than equal terms” with a nonreligious assembly or institution.  The equal terms provision seeks to address the problem of a local zoning ordinance, either facially or as applied, excluding places of worship where secular assemblies are allowed.

Continue Reading Ninth Circuit Rejects “Equal Terms” RLUIPA Challenge to Riverside Zoning Ordinance