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.
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.
On August 23, 2018, the California Supreme Court held, in City of Morgan Hill v. Bushey, __ Cal.4th __ (2018) (Case No. S243042), that a referendum petition to challenge a zoning ordinance amendment that would bring the ordinance into compliance with the county’s or city’s general plan is valid, even though such a referendum would temporarily leave in place zoning that does not comply with the general plan, at least if the local agency has other means to make the ordinance consistent with the plan. The Court reasoned that such a referendum simply keeps the underlying inconsistency in place for a certain time––until the local agency can make the zoning ordinance consistent with general plan.
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.”
First term California State Senator Scott Wiener has quickly become a state leader on housing policy. Last year the San Francisco-based senator sponsored Senate Bill 35, which creates a streamlined approval process, in cities that do not meet their state-mandated housing goals, for certain multi-family residential projects that include affordable housing. SB 35 was a signature part of 15 housing bills Governor Jerry Brown signed last fall. Fresh on the heels of that success, Senator Wiener introduced a trio of bills, on January 3, 2018, that are part of what he describes as a “housing-first policy.”
According to Senator Wiener, the proposed bills would:
- Mandate denser and taller housing near transit (Senate Bill 827, co-authored by Senators Nancy Skinner of Berkeley and Phil Ting of San Francisco).
- Reform the Regional Housing Needs Assessment (RHNA) process by creating a clearer, more data-driven, and equitable process for assigning RHNA numbers to local communities, and require local communities to make up for past RHNA deficits (Senate Bill 828).
- Create a “by right” process that allows farm owners and operators to develop agricultural land for employee housing (Senate Bill 829, co-authored by Senator Andy Vidak of Hanford).
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.
We’ve come a long way since 1911, when the initiative and referendum processes were enshrined in the state constitution to address corruption in state government caused by special interests. For some reason that reality reminds me of a scene in Seinfeld’s “The Subway” episode, which had Elaine standing on a New York subway car carrying a large present. An older woman approaches Elaine and this dialogue ensues:
Woman: “I started riding these trains in the forties. Those days a man would give up their seat for a woman. Now we’re liberated and we have to stand.”
Elaine: “It’s ironic.”
Woman: “What’s ironic?”
Elaine: “This, that we’ve come all this way, we have made all this progress, but you know we’ve lost the little things, the niceties.”
Woman: “No, I mean what does ironic mean?”
On January 24, 2017, the Court of Appeal for the Sixth Appellate District interpreted Government Code section 53094 and held that, unlike school districts, county boards of education cannot be exempted from local zoning requirements. San Jose Unified School District v. Santa Clara County Office of Education, __ Cal.App.5th __ (2016) (Case No. H041088).
Section 53094 authorizes “the governing board of a school district” to “render a city or county zoning ordinance inapplicable to a proposed use of property by the school district,” under certain circumstances. Through the adoption of section 53094, the legislature intended to forestall local obstruction of state-sanctioned school construction and school location.
On November 29, 2016, the Court of Appeal for the First Appellate District rejected a challenge to the sufficiency of the San Francisco’s environmental analysis and upheld the City’s approval of an arena to house the Golden State Warriors basketball team, as well as other events, and the construction of adjacent facilities, in the Mission Bay South redevelopment plan area of San Francisco. Mission Bay Alliance v. Office of Community Investment and Infrastructure, __ Cal.App.5th __ (2016) (Case No. A148865). My partner, Art Coon, wrote about the CEQA issues in a post here.
On September 28, 2016, the Court of Appeal for the Fourth Appellate District affirmed a trial court decision denying a petition for writ of administrative mandamus filed by the owner of a nude entertainment business to challenge the City of San Diego’s revocation of her permit. Coe v. City of San Diego, __ Cal.App.5th __ (2016) (Case No. D068814).