On November 10, 2016, the U.S. Department of Housing and Urban Development and the U.S. Department of Justice released a “Joint Statement” providing updated guidance on the application of the federal Fair Housing Act to state and local land use laws and practices.

The FHA prohibits a broad range of practices that discriminate against individuals on the basis of race, color, religion, sex, national origin, familial status, and disability.  Among other things, the FHA applies to local government entities and prohibits them from making zoning or land use decisions or implementing land use policies that exclude or otherwise discriminate against protected persons, including individuals with disabilities. The FHA does not pre-empt local zoning laws, however, which are is traditionally reserved to state and local governments, except to the extent such laws may conflict with requirements imposed by the FHA or other federal laws.Continue Reading HUD and DOJ Release Updated Joint Statement on “State and Local Land Use Laws and Practices and the Application of the Fair Housing Act”

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)).Continue Reading Kelo Gives a Reasonable and Long-Accepted Reading of the Fifth Amendment, but it Remains one of the Supreme Court’s Worst Decisions

California’s courts have frequently addressed a party’s due process rights to a fair and impartial decision maker in quasi-judicial proceedings, holding that during such proceedings there must be separation of prosecutorial functions from advisory functions. Those cases do not, however, address the litigation conduct of an administrative agency and its staff when (1) the agency is a party to litigation and, thus, not acting as a decision maker, and (2) staff’s participation cannot affect the fairness and impartiality of the decision maker, which is the court.

On October 28, 2016, in a case of first impression, the Court of Appeal for the First Appellate District ruled that the participation of California Coastal Commission staff members in litigation after they advocated for enforcement orders against Drakes Bay Oyster Company in Commission proceedings does not violate the company’s due process rights. Drakes Bay Oyster Company v. California Coastal Commission, __ Cal.App.5th __ (2016) (Case No. A142820).Continue Reading Court Rules that California Coastal Commission Staff Members who Participate in Enforcement Proceedings Before the Agency May Also Participate in Related Litigation

On November 7, 2016, the Court of Appeal for the Third Appellate District reversed and remanded a trial court decision addressing a neighborhood group’s challenge to a 328-unit infill residential project in the City of Sacramento.  East Sacramento Partnership for a Livable City v. City of Sacramento, __ Cal.App.5th __ (2016) (Case No. C079614).
Continue Reading Court Defers to City’s General Plan Consistency Findings, Upholding Residential Infill Project

The question of who should pay the cost of municipal services for new residential development is a vexing one.  The answer is critically important to the developers and homebuilders who must finance and market their projects, the residents who will eventually foot the bills, and the communities seeking funds to ensure that new development pays for itself.

On October 13, 2016, the Court of Appeal for the First Appellate District addressed this issue in Building Industry Association of the Bay Area v. City of San Ramon, __ Cal.App.5th __ (2016) (Case No. A145575).  The Court affirmed a trial court decision supporting the City of San Ramon’s formation of a community facilities district and a special tax levied on a 48-unit townhouse project under the Mello-Roos Community Facilities Act of 1982.Continue Reading Court Upholds City’s Communities Facilities District and Related Special Tax

On October 13, 2016, the Court of Appeal for the Third Appellate District affirmed a trial court’s decision to grant a demurrer filed on behalf of Governor Jerry Brown following his concurrence with the Secretary of the Interior to allow a gaming facility in Yuba County. United Auburn Indian Community of the Auburn Rancheria v. Brown, __ Cal.App.5th __ (2016) (Case No. C075126).
Continue Reading Gubernatorial Action that has Land Use Consequences is not a an Illegal Exercise of Legislative Power

California’s housing crisis is well-understood and documented.  A chief culprit is the fact that the state’s coastal urban areas, for various reasons, do not approve enough new housing to accommodate everyone who seeks to live there.

The lack of new housing development is a function, in part, of the fact that California’s local finance structure essentially incentivizes nonresidential development.  There is also limited vacant developable land in coastal urban areas.Continue Reading Recent Reports Highlight Negative Consequences of Local Barriers to New Housing Development, Call for State-Level Solutions

On September 29, 2016, in a case of first impression, the Court of Appeal for the Second Appellate District addressed the tensions between the requirements of the Housing Accountability Act, Density Bonus Law, and Mello Law (establishing minimum requirements for affordable housing within the coastal zone) with the California Coastal Act. Kalnel Gardens, LLC v. City of Los Angeles, __ Cal.App.5th __ (2016) (Case No. B264434).
Continue Reading Court Resolves Tensions Between Housing Laws and Coastal Act in Favor of Coastal Act

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).
Continue Reading Court Affirms Trial Court’s Denial of Writ of Administrative Mandamus Challenging City’s Revocation of Nude Entertainment Permit

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.Continue Reading Court Rejects Takings Challenge to City’s Imposition of $550,000 in Fees for 11-Unit Infill Project