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.
In a decision filed December 4, 2018 and published December 20, 2018, the Sixth District Court of Appeal, in SummerHill Winchester LLC v. Campbell Union School District, __ Cal.App.5th __ (2018) (Case No. H043253), affirmed a trial court decision invalidating the Campbell Union School District’s fee on new residential development because the underlying fee study failed the leading test for ensuring school facilities fees are limited to the cost of increased services made necessary by the development.
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 September 26, 2018, the First District Court of Appeal partially published Atwell v. City of Rohnert Park, __ Cal.App.5th __ (2018) (Case Nos. A151896, A153011), a decision originally filed on September 18, 2018, addressing important procedural defenses in connection with the approval and subsequent re-approval of a Wal-Mart expansion project.
On October 17, 2018, in Beach and Bluff Conservancy v. City of Solana Beach, __ Cal.App.5th __ (2018) (Case No. D072304), the Fourth District Court of Appeal ruled against a coastal property owner’s group in its facial challenge to amendments to the City of Solana Beach’s Local Coastal Program Land Use Plan. The amendments adopted policies encouraging greater public access and restricting the use of seawalls and other shoreline protection devices.
On October 1, 2018, in Westsiders Opposed to Overdevelopment v. City of Los Angeles, __ Cal.App.5th __ (2018) (Case No. B285458), the Second District Court of Appeal denied an appeal challenging the City of Los Angeles’ approval of the Martin Expo Town Center, an 800,000 square foot mixed-use project on a five-acre site in West Los Angeles. The project includes the demolition of Martin Cadillac, along with the construction of 516 residential units in a seven story building, 99,000 of ground floor retail space, and 200,000 square feet of office floor area in a ten story building.
On September 30, 2018, Governor Jerry Brown signed into law Assembly Bill 2923, which gives the Bay Area Rapid Transit District land use authority for transit-oriented development on the land it already owns near existing and planned stations. The District intends to use the law to fully build out BART-owned land around its stations by 2040.
On October 1, 2018, the U.S. Supreme Court denied certiorari in Martins Beach 1, LLC v. Surfrider Foundation (Docket No. 17-119), a high-profile property rights case involving Martin’s Beach in the County of San Mateo.
In 2005, in Lingle v. Chevron U.S.A. Inc., the U.S. Supreme Court unanimously overruled the first prong of a regulatory takings test established 25 years earlier, in Agins v. City of Tiburon. In Agins, the Court held that a regulation effects a taking if it (1) does not “substantially advance legitimate state interests” or (2) “denies an owner economically viable use of his land.” Writing for a unanimous Court in Lingle, then Justice Sandra Day O’Connor recognized that “the language the Court selected [in Agins] was regrettably imprecise” and “reveals nothing about the magnitude or character of the burden a particular regulation imposes upon private property rights.”
The City of Rancho Palos Verdes is the site of the ancient Portuguese Bend and Abalone Cove landslides, both of which remain active. In 1978, in response to movement of the Abalone Cove landslide, the City adopted an “urgency ordinance” establishing the “Landslide Moratorium Area,” which generally prohibits new residential development in the landslide area. The moratorium area is divided into eight zones of varying stability. The ordinance and subsequent amendments created various categories of exceptions to and exclusions from the moratorium that have been the subject of extensive litigation.