Unlawful Development Permit Conditions Not Binding On Second Permit Applicant When Original Permit Expires Without Use – Second District Changes Mind On Changed Facts

A major fact correction on rehearing led the Second Appellate District to reverse its earlier ruling in Bowman v. California Coastal Commission (2nd Dist., Div. 6, 10/23/14, B243015 (on rehearing).  The court has now held that collateral estoppel does not prevent a landowner from letting a permit expire and then challenging imposition of the same conditions on a later replacement permit.  This conclusion replaces the original holding that reliance on an unchallenged permit estops the property owner from seeking changed conditions when applying for a revised permit.  Nevertheless, in a complete victory for the owner, the court has also found that the original condition should not have been imposed in the first place because it was an illegal taking under Nollan v. California Coastal Commission (1987) 483 U.S. 825.

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Governor Signs Off on New Tax-Increment Financing Structure

On September 29, Governor Brown signed legislation that is seen as creating a robust new financing tool which will expand the existing mechanism of Infrastructure Financing Districts (“IFDs”) and replicate some of the functions of the state’s abolished local redevelopment agencies.  SB 628 (Beall; D-San Jose) authorizes local officials to create Enhanced IFDs and issue bonds to finance capital improvement projects and other specified projects of communitywide significance.  Enhanced IFDs may include any portion of a former redevelopment project area.

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Missing Data Protocols Under AB1103 Energy Use Disclosure Rule And Other Important Facts You Need To Know

Many commercial property owners have approached us with questions about missing data protocols, how to properly comply with AB 1103 (and the consequences of non-compliance) and what buildings are affected.  Here is what you need to know.

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UPDATE: Comment Period for OPR Rethink of CEQA Guidelines on Transportation Impacts Extended Until November 21, 2014

The Governor’s Office of Planning and Research (OPR) has extended the comment period for its draft of changes to the way that transportation impacts are analyzed under the California Environmental Quality Act (CEQA).  The new deadline for submission of comments is November 21, 2014.  OPR is proposing significant changes in the way transportation impacts should be evaluated under CEQA.

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Tribe’s Gamble That Casino Land Transfer Approval Not Subject to CEQA Pays Off

Picayune Rancheria of Chukchansi Indians v. Brown, C074506 (9/24/2014)

In a recent Third District Court of Appeal published opinion, the court in Picayune Rancheria of Chukchansi Indians v. Edmund G. Brown, Jr. (3rd. Dist. 2014) strictly interpreted the California Environmental Quality Act’s definition of “public agency,” holding that it only applies to governmental bodies or offices, and not officials or individuals.  Under this holding, Governor Brown did not need to comply with CEQA requirements (see Pub. Res. Code §§ 21000 et seq.) as a prerequisite to concurring with the Secretary of the Interior’s determination that the North Fork Rancheria of Mono Indians’ (the “North Fork Tribe”) development of a new Indian gaming establishment would benefit the North Fork Tribe and not be detrimental to the surrounding community.

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“Change in Ownership” Can Trigger Documentary Transfer Tax

926 North Ardmore Avenue, LLC v. County of Los Angeles, (9/22/14, B248536)

The California Court of Appeals has recently held that, as a general rule, the Documentary Transfer Tax (“DTT”) applies whenever there is a “change in ownership” of real property under the California Revenue & Taxation Code. In the case, 926 North Ardmore Avenue, LLC v. County of Los Angeles, the court held that the phrase “realty sold” under the DTT Act includes a “change in ownership” (subject to the limited exceptions expressly included in the DTT Act).  San Francisco and Santa Clara Counties have already enacted amendments to their DTT ordinances to provide for this result, and there are several other counties (most notably Los Angeles and San Diego) that have taken this position without any change to their ordinances.

Homeowners “Bluffed” Out Of Challenge To Coastal Permit To Rebuild Private Access Stairs

Barbara Lynch et al. v. California Coastal Commission (9/9/14, D064120)

The Court of Appeals for the Fourth Appellate District (Division One) has held that homeowners who accepted the benefit of a coastal development permit (“CDP”) for seawall reconstruction to protect  their bluff-top homes cannot subsequently challenge the terms upon which the CDP was conditioned, even though the homeowners complied with those conditions “under protest.”  The court held that: (1) the homeowners waived their right to challenge the CDP conditions when they voluntarily submitted to those conditions and accepted the benefit of the permit by moving forward with construction, (2) the California Coastal Commission (the “Commission”) lawfully limited the CDP to a 20-year term because the Commission was anticipating the seawall’s long-term impacts in light of the changing landscape of California’s coastline, and (3) the restriction on rebuilding the homeowners’ private beach access stairs was lawful in light of the state-wide phasing-out of private access to beaches over bluffs.  The court’s ruling highlights that, unless circumstances fit into one of two narrow exceptions, a permittee cannot accept a Commission-issued CDP “under protest.” The decision also reinforces the Commission policy disfavoring private access to beaches over bluff tops.

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Level of Detail Adequate in High Speed Rail Authority’s Program EIR for Central Valley to Bay Area Rail Corridor

Town of Atherton v. California High‑Speed Rail Authority (7/24/14, C070877)

The appellate court upheld the California High‑Speed Rail Authority’s Program EIR for the Central Valley to Bay Area portion of the route, concluding that (1) the Authority properly limited its environmental analysis to a program level when it deferred site-specific analysis of the vertical profile options for alignment, (2) the Town’s experts could not show the Authority’s revenue and ridership model was inadequate or unsupported, and (3) the Authority’s Program EIR considered an adequate range of alternatives despite rejecting an alternative proposed by one expert consulting company.

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Mechanics Lien Subordination: Illinois Further Limits Construction Lenders’ Ability To Ensure Priority Against Mechanics Liens

On July 16, 2014, Illinois enacted Public Act 98-764 (Senate Bill 3023) (“SB 3023”), which amends the Illinois Mechanics Lien Act (770 ILCS 60/ et seq.) (the “Act”) to prohibit subordination of mechanics liens on Illinois construction projects, unless such subordination is to a construction mortgage lien made after 50% of the construction loan has been disbursed to fund construction costs.

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No CEQA Review Required For Initiative Measures, Whether Adopted By City Council Or Voters

Tuolumne Jobs & Small Business Alliance v. Wal-Mart Stores, Inc., et al. (8/7/14, S207173)

The Supreme Court of California has held that CEQA review was not required before the Sonora City Council adopted an initiative measure approving a specific plan for expansion of a Wal-Mart store.  The court held that: (1) the Elections Code, which requires at most an abbreviated review, provides the exclusive process regarding voter initiatives, (2) the legislative body does not have to obtain full CEQA review before it can directly adopt a voter initiative, and (3) a full CEQA review would be incompatible with the requirements of the Elections Code.  The court’s conclusion highlights the judiciary’s staunch protection of the initiative process.

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