There is no question in California land use law that development projects need not comply with every goal or policy in a community’s general plan.  While a city’s or county’s land use decisions must be consistent with the goals and policies in its general plan, the courts have consistently held that a finding of general plan consistency requires only that a project be “compatible with,” and “not frustrate,” the goals and policies of the applicable general plan.  State law does not require precise conformity of a proposed project with the land use designation for a particular site or an exact match between the project and the general plan.  Instead, development projects must simply be in agreement or harmony with the terms of the general plan.

These fundamental principles are easily understood when dealing with qualitative general plan policies such as those addressing community character or those requiring open space preservation and resource conservation.  But general plan consistency principles are sometimes misapplied when the issue is whether a given project is consistent with quantitative general plan provisions, such as those dealing with a project’s size, if a proposed project would exceed such development standards.Continue Reading Development Project May be Declared Consistent with General Plan Even if Quantitative Standards Exceeded

The location of several National Football League franchises have been in flux for years, with teams such as the Chargers, Raiders, and Rams seeking modern, amenity-laden stadiums they have been unable to attain in their current locations. Although earlier this year the NFL approved the relocation of the Rams from St. Louis to Inglewood, the repercussions of the league’s decision to bypass Carson in favor of Inglewood continue to play out.

On May 31, 2016, in Rand Resources, LLC v. City of Carson, __ Cal.App.4th __ (2016) (Case No. B264493), the Court of Appeal for the Second Appellate District rejected Carson’s attempt to use California’s anti-SLAPP statute to defend a breach of contract claim. Carson had wanted to develop a new sports and entertainment complex, including a football stadium, to attract one, or even two, NFL franchises to the community. To advance that goal, the City entered into an exclusive agreement with Richard Rand and several entities to serve as the City’s exclusive agent in coordinating and negotiating with the NFL.Continue Reading Court Rejects City’s Anti-SLAPP Claim Regarding Would-Be NFL Stadium in Carson

In 2012, the California legislature amended the remedies available to address violations of the Ralph M. Brown Act. The amendment added section 54960.2 to the Government Code to require that anyone seeking to challenge past actions of a legislative body in violation of the Brown Act must first submit a “cease and desist” letter.  If the legislative body “unconditionally commits”—at an open and noticed regular or special meeting, and not on the consent agenda—“that it will cease, desist from, and not repeat the challenged past action,” then no judicial remedy is available.  Thus, the amendment allows local agencies to avoid litigation by promising to end practices that cause accusations of Brown Act violations—without admitting that they are unlawful.  The amendment also gives citizens the opportunity to demand and achieve such changes without having to file a lawsuit.

On May 31, 2016, in Center for Local Government Accountability v. City of San Diego, __ Cal.App.4th __ (2016) (Case No. D068432), the Court of Appeal for the Fourth Appellate District addressed the Brown Act’s cease and desist requirement in the context of San Diego’s adherence to an ordinance providing only for one non-agenda public comment period over the course of the City’s two-day regular weekly meetings.  At issue was the Brown Act’s requirement for the agenda of every regular meeting of a local legislative body to include an opportunity for members of the public to address the legislative body on matters within its purview, but not otherwise on its agenda for action.Continue Reading Court Clarifies that Brown Act “Cease and Desist” Requirements Apply to Past Actions of a Legislative Body and Awards Costs to Prevailing Plaintiff

In a final report issued June 21, 2016, the Alameda County Grand Jury found that an Oakland City Council member used her position and office to advocate for private gain, and not the good of the City, in interfering with the planning process for a small housing development next door to her home.  The report highlights the importance of state and local conflict of interest requirements, training, and compliance, as well as the right of developers to be treated fairly in any project approval process.

The civil grand jury report comes in response to a citizen complaint citing a news report of a council member using City staff for her personal benefit to oppose a development project.  While the report does not identify the council member by name, the facts in the report indicate that the project is next door to Oakland City Council President Lynette Gibson McElhaney.Continue Reading Grand Jury Finds Oakland City Council Member Broke Ethics Rules in Interfering with a Housing Development Next Door to Her Home

On June 23, 2016, in Stewart Enterprises, Inc. v. City of Oakland, __ Cal.App.4th __ (2016) (Case No. A143417), the Court of Appeal for the First Appellate District issued an important decision dealing with whether a new legislative enactment may constitutionally deprive a landowner of a vested right conferred by local ordinance. The case arose out of a May 2012 building permit the City of Oakland issued for the construction of a controversial crematorium and the City’s later enactment of an emergency ordinance purporting to require a conditional use permit on new crematoria, including any crematoria that have obtained building permit for which rights to proceed have not yet vested under state law.
Continue Reading Vested Rights Conferred Under Local Ordinance Trump Conditional Use Permit Requirement Later Imposed by Emergency Ordinance

On June 21, 2016, a three-judge panel of the Ninth Circuit denied a petition for review of a decision of the Bonneville Power Administration to proceed with a change in the operation of the Albeni Falls Dam during the winter months without first preparing an environmental impact statement under the National Environmental Policy Act. Idaho Conservation League v. BPA, __ F.3d __ (9th Cir., Case No. 12-70338).
Continue Reading Changed Dam Operations Not Subject to an Environmental Impact Statement under NEPA

The Mitigation Fee Act (Government Code § 66000 et seq.) provides the requirements for development impact fee programs. Most of the Act’s provisions were adopted in 1987 as AB 1600 and are sometimes referred to as “AB 1600 requirements.” In large part, the MFA codifies the requirements the U.S. Supreme Court established in its seminal decisions, Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 319 (1994). Those cases established the requirements that land use exactions must substantially advance the same government interest that would furnish a valid ground for denial of the permit and that such exactions must also be “roughly proportional” both in nature and extent to the impact of the proposed development.
Continue Reading The Mitigation Fee Act Provides the Sole Means for Challenging Development Impact Fees and Recovering Interest

On May 31, 2016, the U.S. Supreme Court substantially strengthened property rights for landowners whose property has been determined to contain wetlands subject to regulation under the Clean Water Act. In United States Army Corps of Engineers v. Hawkes Co., Inc., 578 U.S. __ (2016), the Court unanimously (8-0) held that an “approved jurisdictional determination” by the U.S. Army Corps of Engineers is a final agency action subject to judicial review.  As a result, landowners may now immediately challenge such determinations without having to first complete the exhausting, expensive, and uncertain Section 404 permitting process.
Continue Reading U.S. Supreme Court Unanimously Rules for Landowners Challenging Army Corps’ Wetlands Determination

The California Building Industry Association obtained a critical temporary restraining order against the State Allocation Board in connection with the Board’s 6-4 vote on May 25, 2016 finding, for the first time, that state funds for new school facility construction are not available.  Upon making that finding, the Board is obligated to notify the Secretary of the Senate and the Chief Clerk of the Assembly and that notice must be published in the journal of each house.  As soon as the notices are published, eligible school districts that already charge Level 2 fees may charge Level 3 school impact fees, which would immediately double the school fees in those districts.

CBIA filed suit the same day, seeking immediate injunctive and mandamus relief in the Sacramento Superior Court to prevent the SAB’s action from taking effect.  California Building Industry Association v. State Allocation Board (Case No. 34-2016-80002356, May 25, 2016).  The CBIA alleged, among other things, that Level 3 fees are not justified now because the SAB’s own records indicate that as of May 2016 the state has at least $150M available for new school facility construction.Continue Reading State Allocation Board Temporarily Stopped from Authorizing Level 3 School Impact Fees

The Second Amendment states that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” In District of Columbia v. Heller, the Supreme Court held that the Amendment guarantees an individual right to possess firearms for traditionally lawful purposes, such as self-defense. See 554 U.S. 570, 574–626 (2008). The Supreme Court has not yet clarified the entire field of Second Amendment jurisprudence, however, and given that there is an individual right to bear arms for self-defense, there is a growing split in the nation’s lower courts about whether gun sellers have Second Amendment rights.
Continue Reading When Land Use Regulations Collide with the Protections of the Second Amendment