According to traditional urban economic models, developers in well-functioning housing markets will choose to build apartments where land is expensive and housing demand is strong.  The theory itself is sound: high rents provide strong financial incentives to developers that should lead to an increasing supply of new multi-family housing.

Continue Reading Report Shows That Local Land Use Regulations Play a Key Role in Impeding Development of New Multi-Family Housing in California

On July 18, 2019, in Sacramentans for Fair Planning v. City of Sacramento, __ Cal.App.5th __ (2019), the Third District Court of Appeal affirmed a trial court decision denying a “vertical” consistency challenge filed by “Sacramentans for Fair Planning” after the City of Sacramento approved a15-story “high-rise” condominium building—known as the “Yamanee” project—in the City’s Midtown area.  The plaintiff group also challenged the City’s streamlined CEQA review of the project under a sustainable communities environmental assessment (“SCEA”).  My partner, Art Coon, analyzed those issues in the CEQA Developments blog.

Continue Reading Court Rejects Land Use Consistency Challenge to Sacramento Mixed-Use Project Providing “Significant Community Benefits”

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

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 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.

Continue Reading California Supreme Court Confirms That Referendum Petition Can Challenge Zoning Intended to be Made 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.”

Continue Reading Another Day, Another Challenge to Local Zoning of Medical Marijuana Dispensaries Goes Down in Smoke

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).


Continue Reading Ambitious “Housing-First Policy” for “Transit-Rich Housing” Would Require Greater Density and Height for Housing Near Transit, Potentially Adding Millions of New Homes