On July 2, 2017, the California Supreme Court issued its opinion in Lynch v. California Coastal Commission, __ Cal.5th __ (Case No. S221980), holding that the owners of two coastal bluff properties in Encinitas forfeited their right to challenge the California Coastal Commission’s permit conditions by complying with all pre-issuance requirements, accepting the permit, and building the seawall.

Since 1986, the properties have been protected by a shared seawall, with wooden poles, at the base of the bluff and a midbluff erosion control structure.  A shared stairway provided the only access from the blufftop to the beach below.  In 1989, the Commission retroactively approved a coastal development permit for the seawall, midbluff structure, and stairway.  In 2009, the owners applied to the City to replace the aging seawall and midbluff structure with an integrated concrete wall and to rebuild the lower portion of the stairway.  The City approved the project, subject to the Commission’s approval of a coastal development permit.  But while the owner’s permit was pending, heavy winter storms caused the bluff below one of the owner’s homes to collapse, destroying portions of the seawall, midbluff structure, and stairway.Continue Reading California Supreme Court Holds that Landowners Forfeited Right to Challenge Conditions of Permit to Build New Seawall by Proceeding with Construction

In The Park at Cross Creek LLC v. City of Malibu (2nd Dist. 2017), ___Cal.App.5th___ (Case No. B271620), the Court addressed the validity of a voter enacted initiative, Measure R, designed to limit large developments and chain stores.

The first component of Measure R required the Malibu City Council to prepare a specific plan for every proposed commercial or mixed use development in excess of 20,000 square feet, addressing a number of development specifics including floor area, traffic, view corridors, public facilities and the like.  Following the City Council’s approval, the plan must then be placed on the ballot for voter approval and until such approval, the City may take “no final action on any discretionary approval relating to” the development.  Moreover, once approved, all subsequent permits and approvals must be consistent with the approved development.Continue Reading Voters May Not Usurp City’s Administrative Land Use Authority Through Initiative Process

On June 23, 2017, the Supreme Court of the United States finally decided Murr v. Wisconsin, __ U.S. __ (2017) (Case No. 15-214), a case that addressed land use regulations that “merged” adjacent parcels (the first of which was developed with a cabin, and the second of which was undeveloped) into one, for environmental reasons, despite the fact they were separately acquired, owned, taxed. The regulations ultimately prevented the development or sale of the second, undeveloped parcel.

The case sought an answer to the fundamental question, in a regulatory taking case, whether the “parcel as a whole” concept described in Penn Central Transportation Company v. City of New York establishes a rule that two legally distinct, but commonly owned contiguous parcels, must be combined for takings analysis purposes? The State of Wisconsin argued for a rule that would tie the definition of the parcel to state law, considering the two parcels in this case merged under the challenged regulations. The landowners argued for a rule that the lot lines define the relevant parcel.Continue Reading SCOTUS Announces New Multi-Factor Test to Determine the Relevant Parcel in Regulatory Takings Cases

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?”

Continue Reading What’s Ironic?

On April 4, 2017, in Young v. City of Coronado, __ Cal. App. 5th __ (2017) (Case No. D070210), the Court of Appeal for the Fourth Appellate District affirmed a trial court decision denying a challenge to the City of Coronado’s designation of a small cottage as a historic local resource.

The cottage owners sought a permit to demolish the structure, built in 1924, but the City’s Historic Resource Commission reviewed the property before issuing the permit and designated the cottage a historic resource under the Coronado Municipal Code.  Under the Code, a resource that is at least 75 years old and meets at least two of five criteria may be designated historic.  City staff identified evidence that the cottage met two of the criteria, and the Commission agreed.Continue Reading Findings May be Legally Adequate Even if They Merely Recite the Language of the Ordinance

On May 23,2017, the Court of Appeal for the Fourth Appellate District granted a request to publish Kutzke v. City of San Diego, __ Cal. App. 5th __ (2017) (Case No. D070288), another opinion that shows the deference courts give to local land use findings for development projects.

The case involved an application for a vesting tentative map and related permits to subdivide two adjacent lots into four lots, retain an existing home on one lot, and build new homes on the other three lots. A provision in the San Diego Municipal Code allows certain types of projects, including sustainable building projects, to deviate from applicable development regulations if certain findings are made. The project would be a sustainable building project because it would use photovoltaic panels to generate 50 percent of the homes’ electricity needs. The project would deviate from applicable development regulations regarding minimum setbacks and street frontage and maximum height for side yard retaining walls.

Continue Reading Courts Will Not Second-Guess Development Decisions When the Findings are Supported by Substantial Evidence

The attorney-client privilege protects communications made in confidence by a client to its attorney for the purpose of obtaining legal advice.  The privilege can extent to consultants and experts hired by the attorney on behalf of a client so long as the communication involves the subject matter about which the attorney was consulted and the consultant or expert was retained by the attorney to assist the attorney in providing legal advice to the client.

A recent decision out of an Indiana federal court shows the limitations of the attorney-client privilege in this context, wherein communications made in the routine course of business that contain no privileged information and that are devoid of legal advice or requests for advice are not protected and can be discovered.Continue Reading Court Holds that Attorney-Client Privilege Extends to Environmental Consultants Hired by an Attorney on Behalf of a Client, but Only to the Extent Communications are Made for the Purpose of Obtaining Legal Advice from the Attorney

California provides relatively short statutes of limitations for challenges in the land use context. For example, Government Code section 65009(c)(1) provides that “no action or proceeding shall be maintained [for a wide range of development approvals] by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision . . . .”  Under section 65009(c)(1)(E), any challenge to a “variance, conditional use permit, or any other permit” must be made within 90 days of the decision.  And section 65009(e) provides that once the time limit has expired “all persons are barred from any further action or proceeding.”

These types of short limitations periods are intended to provide certainty for property owners and local governments regarding land use decisions and to alleviate the chilling effect on the confidence with which property owners and local governments can proceed with projects  involving potential legal challenges to land use decisions.Continue Reading Court Rejects Late Challenge to Permits for New Lifeguard Station on San Diego’s Mission Beach

Who is responsible for the housing crisis in San Francisco, and what can government do to solve it?  As property values have climbed in San Francisco and surrounding areas, that problem has increasingly vexed elected officials and the courts.  The First District of the Court of Appeal is the most recent to weigh in, with a decision invalidating a local pro-tenant ordinance.  But first, some background.

The Ellis Act is a state statute that prohibits a city or county from “compelling the owner of any residential real property to offer, or to continue to offer, accommodations in the property for rent or lease . . . .”  (Gov. Code, § 7060, subd. (d)(a).)  In short, the Ellis Act allows a landlord to withdraw a rental unit from the market.  In 2014, San Francisco Supervisor David Campos sponsored an ordinance requiring landlords to pay a relocation benefit to tenants being displaced due to the landlord’s “repossession” of the rental unit under the Ellis Act.  The payment required was 24 times the difference between the unit’s current rental rate and the “fair market value” of the unit, as calculated by a prescribed schedule.  In theory, the displaced tenant was to be compensated for two years’ worth of the differential between what the tenant was paying and what the tenant would pay as fair market rent.  Tenants were entitled to the payment regardless of needs or assets, and there was no requirement that the payment actually be spent on expenses of relocation.Continue Reading Landlords Win San Francisco Legal Battle

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.Continue Reading New Cert Petition Asks SCOTUS if Legislatively Mandated Permit Conditions are Subject to Heightened Scrutiny