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.

Continue Reading New Law Provides Land Use Authority to BART to Create Transit-Oriented Development Near Stations

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.

Continue Reading U.S. Supreme Court Declines to Hear Important Martin’s Beach Public Access Case

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.”

Continue Reading City’s Mishandling of CEQA and Resulting Construction Delay Does Not Create Takings Liability

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.

Continue Reading Court Rejects Residents’ Takings Lawsuits for Failure to Exhaust Administrative Remedies

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

On July 23, 2018, the U.S. House of Representatives unanimously passed the Private Property Rights Protection Act of 2017 (H.R. 1689).  Sponsored by Wisconsin Congressman F. James Sensenbrenner, Jr. and California Congresswoman Maxine Waters, the Act intends to address Kelo v. City of New London, the controversial 2005 U.S. Supreme Court decision that affirmed the right of a city to use the power of eminent domain to take and transfer property from one private party to another for the “public purpose” of economic development.

Continue Reading House of Representatives Again Passes Private Property Rights Protection Act

On July 25, 2018, the Third District Court of Appeal published Nat’l Conference of Black Mayors v. Chico Community Publishing, Inc. , __ Cal.App.5th __ (2018) (Case No. C083956), a case of first impression addressing whether the Public Records Act allows an award of attorney fees to a requester who litigates against an officer of a public agency in a mandamus action the officer initiated to prevent the public agency from disclosing records the agency agreed to disclose.

Continue Reading California Appellate Court Rules in Favor of Defunct National Conference of Black Mayors and Controversial Former Sacramento Mayor Kevin Johnson in Novel Public Records Act Attorney Fee Litigation

On June 12, 2018, in County of Ventura v. City of Moorpark and Broad Beach Geologic Hazard Abatement District, __ Cal.App.5th __ (2018) (Case No. B282466), the Second District Court of Appeal published a decision addressing whether the California Environmental Quality Act’s broad definition of “project also applies to statutory exemptions, questions of state law preemption, the limits of a city’s contractual authority, and the abdication of a government entity’s police power.  My partner, Art Coon, wrote about the CEQA issues here.

Continue Reading California Appellate Court Upholds Settlement Agreement for $100M Malibu Beach Restoration Project

The harsh effects on property rights resulting from the California Coastal Act’s broad definition of “development” are on display again following the Second District Court of Appeal’s March 27, 2018 opinion, in Greenfield v. Mandalay Shores Community Association, __ Cal.App.5th __ (2018) (Case No.B281089), where the Court held that “[t]he decision to ban or regulate [short-term rentals] must be made by the City and Coastal Commission, not a homeowner’s association.”

Continue Reading Court Holds that HOA’s Short-Term Rental Regulations Constitute “Development” Under the California Coastal Act

On April 27, 2018, the California Attorney General published an opinion (No. 17-702) concluding that a City of Hollister resolution approving the execution of an agreement to sell real property for development, pursuant to an approved plan for disposing a dissolved redevelopment agency’s property, is not subject to referendum.

The question arose following the City’s adoption of a resolution authorizing its city manager to enter into a disposition and development agreement for the sale and development of real property that would implement the Long Range Property Management Plan approved by the oversight board and the state Department of Finance. (Interestingly, the resolution was adopted by the City Council rather than the Successor Agency, a separate legal entity charged with winding down and completing the activities of the former redevelopment agency). The project would consist of two buildings: one two-story, 9,000 square foot philanthropic center and new headquarters for the Community Foundation for San Benito County; and a second, three-story building with 8,000 to 11,000 square feet of ground floor commercial retail space and 14 to 22 condominiums.

Continue Reading Attorney General Confirms that Disposition of Real Property Under Long Range Property Management Plan is an Administrative Act not Subject to Referendum