Real Estate, Land Use and Environmental Law Blog - Up-to-date information on Real Estate, Land Use and Environmental Law

By Judy Davidoff and Alex Merritt

In the 2011 session, the California Legislature and the Governor passed several bills to amend CEQA. As summarized below, these bills streamline the review process for green projects, environmental leadership projects, and a proposed football stadium; relax water supply assessment requirements for photovoltaic and wind energy projects; and clarify requirements for naming and serving real parties in interest in CEQA lawsuits.

Pfeiffer v. City of Sunnyvale, No. H036310 (Cal. Ct. App. 6th Dist; October 28, 2011)

By Maria Pracher and Alex Merritt

The 6th District Court of Appeal recently denied a challenge to the proposed expansion of a medical complex in the City of Sunnyvale. The decision reaffirms the standard for evaluating general plan consistency and, in the wake of Sunnyvale West Neighborhood Assn v. City of Sunnyvale City Council, 190 Cal.App.4th 1351 (2010), reaffirms the use of future baselines in analyzing traffic impacts.

Promenade at Playa Vista Homeowners Association v. Western Pacific Housing, No. B225086 (2nd Dist. November 8, 2011)

By Alex Merritt and Michael Wilmar

This month the Second District Court of Appeal concluded that the developer of a condominium complex lacked standing to enforce the declaration of covenants, conditions, and restrictions (CC&R's) after it had sold all the units in the complex.

Western Pacific Housing and Playa Capital Company (the "Developers") constructed and sold a 90-unit condominium complex in Playa Vista, California. The homeowners association ("HOA") for the complex later filed suit against the Developers, alleging construction defects. The Developers sought to enforce a binding arbitration provision in the CC&R's.

The Second District Court of Appeal upheld the trial court's rejection of a motion to compel arbitration. It reasoned that the Developers could have enforced an arbitration provision in a contract. However, CC&R's are not contracts, but rather equitable servitudes, which may only be enforced by a property owner or an HOA.

By Michael B. Wilmar & Alex Merritt

Last month the San Francisco Bay Conservation and Development Commission (BCDC) amended the San Francisco Bay Plan to include new findings and policies addressing climate change and sea level rise.

By James Rusk

The Court of Appeal for the Fifth Appellate District of California held this month that the Environmental Impact Report for the Tesoro Viejo mixed use development project in southeastern Madera County failed to comply with the California Environmental Quality Act. The court's opinion articulates a new standard for analysis and mitigation of impacts to archeological sites that are historical resources. It also adopts the Sixth Appellate District's recent holding that agencies do not have discretion to use predicted future conditions as the baseline for analysis of project impacts. Finally, the opinion reiterates that an EIR must contain a full disclosure of uncertainties affecting a project's water supply.

Arcadia Development Co. v. City of Morgan Hill et al., Case No. H035519 (CA Dist. 6 Ct. App., Aug. 5, 2011)

By Alexis Pelosi

Thirty years after Arcadia annexed almost 80 acres into the City of Morgan Hill urban service area, the Sixth District Court of Appeal upheld the City’s right to restrict development on 69 of those acres, finding, among other items, that the City’s goal of discouraging non-contiguous development and urban sprawl was a legitimate exercise of its police powers. In, the court held an ordinance restricting the density of development on lands in the City’s service area, but outside its core, did not give rise to spot zoning or violate Arcadia's right to equal protection of the law.

Clover Valley Foundation et al. v. City of Rocklin et al., C061808, 2011 WL 2671250 (Cal. Ct. App. July 8, 2011)

By James Pugh, Alexis Pelosi and Kira Teshima

In this case, the Third District Court of Appeal rejected claims raised by Clover Valley Foundation, the Sierra Club and the Town of Loomis that the City abused its discretion in certifying an environmental impact report on a residential project because the EIR failed to adequately analyze the project's impact on cultural, biological and visual resources and failed to adequately consider the project's growth-inducing impacts and water supply. The court also rejected opponents’ claims regarding the project's consistency with the City's General Plan, deciding in favor of the City and its analysis on all counts. The first line of the decision says it all: "This is a case where CEQA worked."

Del Cerro Mobile Estates v. City of Placentia (July 7, 2011, G043709)

By James Pugh & Shoshana Zimmerman
 
In this case, the Court of Appeal for the Fourth District held that a city may defend itself against a California Environmental Quality Act challenge by invoking a statutory exemption even if the city has prepared an EIR for the project. The court also rejected the argument that because the exemption was written in the singular, it could not apply to a project involving multiple railway crossings. Section 21080.13 exempts from CEQA “any railroad grade separation project which eliminates an existing grade crossing or which reconstructs an existing grade separation.” Finally, the petitioner’s non-CEQA claims that the City of Placentia (“City”) and Orange Country Transportation Authority (“OCTA”) were planning to possibly violate the City’s resolutions, were held not ripe for adjudication.

Save the Plastic Bag Coalition v. City of Manhattan Beach (July 14, 2011, S180720)

By James Pugh & Shoshana Zimmerman

Corporations now have the ability to file citizen suits to assert public interests without facing heightened scrutiny by the courts. The California Supreme Court ruled that a coalition of plastic bag manufacturers and distributors (“Plaintiff”) had standing to maintain a citizen suit to vindicate the asserted public interest in environmental quality. This means more generally that a corporation has greater freedom to bring a CEQA-based citizen suit to further the public interest in environmental quality. Additionally, the court ruled that any corporation or business interest whose operations are directly affected by a government project has standing in their own right to raise a CEQA challenge.

Citizens for Responsible Equitable Environmental Development ("CREED") v. City of Chula Vista, Docket No. D05779

By Jeff Forrest and Ashley Hirano

In this clean-tech era, Citizens for Responsible Equitable Environmental Development ("CREED") v. City of Chula Vista marks only the third time that a court has published a case addressing greenhouse gases in California. In CREED, the City of Chula Vista certified a mitigated negative declaration ("MND") and approved development permits for a project that would demolish an existing Target store, a smog check facility, and a small market, and construct in its place a larger Target store. CREED filed suit, claiming that CEQA required the City to certify a full environmental impact report because the project would have a significant environmental impact on hazardous materials, air quality, particulate matter and ozone, and greenhouse gas emissions. While the court held that an EIR was likely required for other reasons, the court also held that, to demonstrate the project’s consistency with the GHG emissions reduction goals established by California's "Global Warming Solutions Act" (AB 32), the City had properly relied upon evidence the project’s emissions were below the GHG threshold of significance.   The City established this threshold of significance using what has become known as the "Business-As-Usual" ("BAU") method. The court also held that the City properly relied on the thresholds of significance in the South Coast Air Quality Management District's CEQA Air Quality Handbook to conclude that the project's air quality impacts (particulate matter and ozone) were not cumulatively considerable even though the San Diego air basin is in non‑attainment for particulate matter pollution.

Chawanakee Unified School District v. County of Madera (June 21, 2011, F059382) __ Cal.App.4th __ (certified for partial publication)

By Robyn Christo

In a partially published opinion, the Court of Appeal for the Fifth Appellate District, interpreted Government Code Section 65596(a) (as revised by the Leroy F. Greene School Facilities Act of 1998 [“Senate Bill 50”]), and examined the effect of language restricting the “methods of considering and mitigating [project-related] impacts on school facilities” (italics added) on an environmental impact report (“EIR”). In the published portion of its opinion, the court found that impacts directly related to school facilities do not require consideration under the California Environmental Quality Act (“CEQA”). On the other hand, the reasonably foreseeable non-school impacts caused by a project must be analyzed in an EIR.

Oakland Heritage Alliance v. City of Oakland (May 19, 2011, A126558) __ Cal.App.4th __

By Maria Pracher & Robyn Christo

In this case, the Court of Appeal for the First Appellate District rejected all of petitioner’s arguments regarding the adequacy of the seismic impact analysis and mitigation measures in a revised Environmental Impact Report (“EIR”) prepared for a project that proposed to convert 64 acres of maritime and industrial land along Oakland’s waterfront into residential, retail/commercial, open space and marina uses (“Project”).

Citizens for Responsible Equitable Environmental Development v. City of San Diego (May 19, 2011, D057524) __ Cal.App.4th __

By Jeffrey Forrest & Robyn Christo

On May 19, 2011, the California Court of Appeal for the Fourth Appellate District upheld an Addendum to an Environmental Impact Report (“EIR Addendum”) over claims that the lead agency failed to follow statutory procedures for adopting a Water Supply Assessment (“WSA”) and that a supplemental EIR (“SEIR”) was required to analyze “new” environmental impacts related to drought and global warming.

By Jeffrey Forrest

In Santa Monica Baykeeper v. City of Malibu, the Court of Appeal considered Santa Monica Baykeeper’s (“Plaintiff”) claim that the City of Malibu (“City”) abused its discretion in certifying the environmental impact report (“EIR”) for the City’s Legacy Park project (“Project”) because it failed to adequately analyze (1) construction-related water quality impacts; (2) the impact of using treated effluent from the adjoining Malibu Lumber Yard; and (3) cumulative groundwater impacts of the project. The appellate court concluded that the construction-related water quality impacts were moot since the Project had already been constructed during the pendency of the appeal[1], and that there was substantial evidence to support the City’s findings that the Project’s use of Lumber Yard wastewater effluent and stormwater did not create a cumulative groundwater impact within an area of the City known for significant groundwater problems.

Bollay v. Cal. Office of Admin. Law (Cal. State Lands Commission, Real Party in Interest) (March 1, 2011, C063268) __Cal.App.4th __

By Michael Wilmar

“’In the beginning God created the heaven and the earth.’ With this immortal sentence, the Bible memorialized the first and longest-running boundary dispute.” (Flushman, Water Boundaries (1st ed. 2002) p. xvii, quoting Genesis 1.1.) In the meantime, more earthly boundary disputes have also continued to flourish.

By Deborah Rosenthal

Nonconforming uses, the natural by-products of zoning, are created when zoning rules change over time and the old uses are grandfathered in under the original approvals. How the grandfathered uses are treated, how long they survive, and how much they are allowed to change are all decided, in the first instance, by the planning commission.

By Bram Hanono and Greg Woodard

Azusa Land Partners v. Department of Industrial Relations, 191 Cal.App.4th 1 (2010)

California Labor Code sections 1720 et seq. (the Prevailing Wage Law) ("PWL") require employers engaged in public works projects to pay the prevailing wage to their employees if the project is "paid for in whole or in part out of public funds." The Second Appellate District Court of Appeal recently ruled that private developers must pay prevailing wages for the construction of all public improvements in connection with a development project if public funds are used to finance any part of the public improvements, even if the remaining public improvements are paid for with private funds. The decision, if it stands, subjects developers to increased project costs not previously anticipated.

The Wilderness Society; Prairie Falcon Audubon, Inc. v. U.S. Forest Service, et al., No. 09-35200 (9th Cir. Jan. 14, 2011)

By Jessica Johnson

On January 14, 2011, the United States Court of Appeals for the Ninth Circuit filed its opinion upon review of a decision by the Idaho District Court to deny a motion to intervene in a case under the National Environmental Policy Act ("NEPA"). In The Wilderness Society; Prairie Falcon Audubon, Inc. v. U.S. Forest Service, et al., No. 09-35200 (9th Cir. Jan. 14, 2011) ("Wilderness Society"), the Ninth Circuit abandoned the "federal defendant rule," which categorically prohibited intervention on the merits, or liability phase, of NEPA actions.

Villa Vicenza Homeowners Ass'n v. Nobel Court Dev., LLC, No. D054550 (4th Dist. Jan. 11, 2011)

By Jessica A. Johnson

In Villa Vicenza Homeowners Ass'n v. Nobel Court Dev., LLC, No. D054550 (4th Dist. Jan. 11, 2011, the Fourth District of the California Court of Appeal held that a provision in a declaration of covenants, conditions and restrictions (CC&R's) that required a homeowners association (HOA) and homeowners to arbitrate claims against the developer are not enforceable.

Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council, No. H035135 (6th Dist., December 16, 2010)

By Kyndra Joy Casper

In Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council ("Sunnyvale"), the California Court of Appeal, Sixth District (the "Court") invalidated the use of a baseline consisting of future, post-project approval conditions to analyze a project's impacts in an Environmental Impact Report (“EIR”). This decision may have widespread effects because the use of a future baseline has become a widespread industry practice particularly for analysis of traffic and circulation impacts.

Cherry Valley Pass Acres and Neighbors, et al. v. City of Beaumont, E049651 (4th Dist. Div. 2, November 22, 2010)

By Daniel Bane

In Cherry Valley Pass Acres and Neighbors, et al. v. City of Beaumont, the Court of Appeal considered Plaintiffs Cherry Valley Pass Acres and Neighbors and Cherry Valley Environmental Planning Group (“Plaintiffs”) claim that the City of Beaumont (“City”) abused its discretion in certifying the environmental impact report (“EIR”) for the Sunny-Cal Specific Plan (“SCSP” or “Project”) because it failed to properly address the Project’s significant impacts on area water supplies and agricultural land uses. Both claims were rejected. The appellate court concluded that the use of existing entitlements for baseline conditions was legitimate when it corresponds to an conditions “on the ground” at the time environmental review commenced. It also concluded that there was substantial evidence to support the City’s findings related to agricultural impacts.

Environmental Protection Information Center, et al. v. California Department of Forestry and Fire Protection, et al., A108410 (1st Dist. Div. 5, November 19, 2010)

By Daniel Bane

In Environmental Protection Information Center, et al. v. California Department of Forestry and Fire Protection, et al., the Court of Appeal considered whether an attorneys' fees award issued by the trial court must be reevaluated in light of the final outcome of the underlying litigation in the California Supreme Court. The Court of Appeal concluded that the attorney fee awards may be warranted even if some of the environmental protections attained at trial are reversed on appeal if the plaintiff still prevailed on some key issues. The court also concluded that attorney fee awards may also depend on whether a reasonable settlement offer might have prevented a lawsuit. Finally, the appellate court held that the amount of fees may be reduced where plaintiffs are only partially successful, depending in part on whether the claims are related.

National Association of Home Builders v. San Joaquin Valley Unified Air Pollution Control District, No. 08-17309, (9th Cir., December 7, 2010)

By Kyndra Joy Casper

In NAHB v. San Joaquin Valley UAPCD, the United States Court of Appeal for the Ninth Circuit held that Rule 9510, the San Joaquin Valley Unified Air Pollution Control District's (the “District”) rule requiring development sites to reduce the amount of air pollutants they emit, was not preempted by the Clean Air Act (the “CAA”). The Court found that Rule 9510 was a proper “indirect source review program” and thus, was not preempted.

Colony Cove Properties, LLC v. City of Carson, No. B219352, (2nd Dist., Div. 4, August 31, 2010)

Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles, No. B216515 (2nd Dist., Div. 4, August 31, 2010)

By Aaron J. Sobaski

On August 31, 2010, the Second District of the California Court of Appeals (the “Appellate Court” or “Court”) issued two separate rulings in the above described matters (“Colony Cove” and “Palisades Bowl”) addressing the conversion of a rental mobile home park to resident ownership under the Subdivision Map Act (Gov. Code §66410 et seq.). The two decisions clarified to the role of a local legislative body or advisory agency (“Local Agency”) with respect to its approval, conditional approval, or disapproval of a tentative map or parcel map for the conversion of a rental mobile home park to resident ownership under Government Code §66427.5. They also highlighted some potential issues that Local Agencies may face in implementing the statute as currently written.

Tomlinson v. County of Alameda, No. A125471 (1st Dist. Div. 5, October 6, 2010)

By Misty L. Calder

In Tomlinson v. County of Alameda, the First Appellate District reexamined its decision in Tomlinson v. County of Alameda (2010) 185 Cal.App.4th 1029, where the Court found that the County of Alameda ("County") abused its discretion in deeming a proposed subdivision project exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) ("CEQA"), under the categorical exemption for in-fill development (Cal. Code Regs., tit. 14 (CEQA Guidelines), § 15332). After the publication of the case, Division Two of the First Appellate District certified its opinion in Hines v. California Coastal Com. (2010) 186 Cal.App.4th 830 for publication, which held that Public Resources Code section 21177's exhaustion requirement did apply in circumstances similar to those presented in this case. The Division Five court granted rehearing on its own motion to allow for further consideration of the Hines decision.

By Misty L. Calder

Senate Bill ("SB") 1456, authored by Senator Joe Simitian (D-Palo Alto), and Assembly Bill ("AB") 231, authored by Assembly Member Alyson Huber (D-El Dorado Hills), were signed by Governor Arnold Schwarzenegger on September 29, 2010. As urgency statutes, both bills became effective immediately, and both will sunset as of January 1, 2016.

Hines v. California Coastal Commission, No. A125254 (1st Dist. June 17, 2010)

By Michael Wilmar and Alex Merritt

In Hines v. California Coastal Commission, the First District Court of Appeal upheld the Coastal Commission’s determination that an appeal raised no substantial issue under the California Coastal Act, and went so far as to state in dicta that even if a development were technically inconsistent with a Local Coastal Program ("LCP"), the Commission could still reject an appeal of the approval of that development as not presenting a substantial issue.

City of Santee v. County of San Diego, No. D055310 (4th Dist. June 7, 2010)

By Michael Wilmar and Alex Merritt

Last month the California Court of Appeal for the Fourth District provided important guidance on the issue of when approval of an agreement affecting a development constitutes approval of a “project” that requires review under the California Environmental Quality Act ("CEQA"). In City of Santee v. County of San Diego, the Fourth District held that a siting agreement between the County of San Diego and the California Department of Corrections and Rehabilitation ("DCR") for a state prison facility did not commit the County to a definite course of action, and therefore did not constitute a project approval requiring CEQA review. The court reached this conclusion after noting that the agreement did not preclude any alternatives or mitigation measures, and that implementation of the agreement was contingent on a number of factors, including future environmental review.

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al., 560 U. S. _(June 17, 2010)

By Michael Wilmar & Aaron Kleven

On June 17, 2010, the Supreme Court unanimously ruled that the State of Florida did not infringe on private property interests by engaging in a beach preservation effort. But though the participating justices agreed on the decision (Justice Stevens did not participate), they disagreed sharply on a point of constitutional law underlying the complaint.

Home Builders Ass'n of Tulare/Kings Counties v. City of Lemoore, No. 07C0185 (5th Dist. June 9, 2010)

By David Lanferman

On June 9, 2010, a panel of the Court of Appeal for the Fifth Appellate District rejected challenges by a builders association to six out of seven "development fees" recently adopted by the City of Lemoore. The Mitigation Fee Act (Gov. Code §§ 66000 – 66025) requires that a local agency seeking to establish or impose development fees to finance public facilities must "identify" the new public facilities purportedly justifying the fees. Two justices held that the City had satisfied these statutory requirements by adopting a consultant's report that listed examples of the "types" of new facilities that the City may in the future decide to construct to accommodate growth from new developments, but the third justice wrote separately to question whether such lack of specificity complied with the statute.

Walgreen Co. v. City and County of San Francisco, No. A123891 (June 8, 2010)

By Brenna Moorhead

Walgreen Co. prevailed against the City and County of San Francisco in California court and can proceed with its challenge to San Francisco’s ordinance banning the sale of tobacco products at certain retail establishments that contain a pharmacy. San Francisco defined "pharmacy" as "a retail establishment in which the profession of pharmacy by a [licensed] pharmacist is practiced and where prescription drugs are offered for sale." The prohibition applied to a store as a whole, even if the licensed pharmacy was situated within a larger store selling other merchandise. Thus, the ordinance would have included drugstores, grocery stores, chain stores, supermarkets, and big box stores that contain a pharmacy. However, San Francisco elected to exclude general grocery stores and big box stores.

Beutz v. County of Riverside, No. RIC457351 (4th Dist. May 26, 2010)

By David Lanferman & Michael Cato

In Beutz v. County of Riverside, No. RIC457351 (4th Dist. May 26, 2010), the California Court of Appeal held that a special assessment imposed by the County of Riverside was invalid because the engineer's report commissioned by the County failed to separate and quantify the general and special benefits to be realized from the public parks that were the subject of the special assessment district. By failing to both separate and quantify the general and special benefits, the agency failed to satisfy its two-part constitutional burden.

Stockton Citizens for Sensible Planning v. City of Stockton _____ Cal. ___ (April 1, 2010, No. S159690)

By Phillip Tate

On April 1, 2010, the California Supreme Court unanimously ruled that flaws in the decision making process underlying a facially valid and properly filed Notice of Exemption ("NOE") do not prevent the NOE from triggering a 35-day statute of limitations period for challenging the agency's determination under the California Environmental Quality Act ("CEQA"). The decision ended a lawsuit challenging the approval of a Wal-Mart Supercenter in Stockton, California (the "City"). In overturning the lower courts, the Supreme Court held that when an NOE minimally complies with CEQA, it is sufficient to trigger the 35-day statute of limitations under CEQA. and a plaintiff can not argue the merits of the underlying approval as a means of circumventing the statute of limitations.

Patricia Melom v. City of Madera, __ Cal. App. __ (March, 24, 2010, No. MCV037258)

By Phillip Tate

Retail "supercenters" do not automatically trigger the need to study urban decay effects in an environmental impact report ("EIR"). Rather, the project or the change in the project should be the focus of the inquiry as to whether additional study is needed, and not the type of retail store.

By Claudia Gutierrez

The Alameda County Superior Court recently invalidated the housing cap in a voter-approved measure limiting the number of residences that could be built in the City of Pleasanton, California. The court also noted that the City's planning process, as well as its planning documents, were flawed and inadequate in multiple ways.

By Claudia Gutierrez

Communities for a Better Environment v. South Coast Air Quality Management District et al. ___Cal.__) (March 15, 2010; Case No. S161190)

In this case, the Supreme Court of California held that neither the statute of limitations, the principles of vested rights, nor the CEQA case law on which ConocoPhillips relied, justified employing the maximum capacity allowed under prior equipment permits as an analytical baseline for a new project, rather than the physical conditions actually existing at the time of the analysis. The court therefore concluded that the South Coast Air Quality Management District (District) abused its discretion in determining ConocoPhillips' proposed project would have no significant environmental effects compared to a baseline of maximum permitted capacity.

Committee for Green Foothills v. Santa Clara County Board of Supervisors, __ Cal.4th __ (February 2, 2010, No. S163680)("Green Foothills")

By Robyn Christo

On February 11, 2010, the California Supreme Court unanimously decided that a lead agency's filing of a Notice of Determination ("NOD") sets off the 30-day statute of limitations (found in Public Resources Code section 21167, subdivisions (b), (c) and (e)) for all California Environmental Quality Act ("CEQA") lawsuits brought to challenge the decision announced in the NOD.

By James Pugh & Dave Lanferman

On October 22, 2009, the California Supreme Court decided not to review the Court of Appeal's decision in the landmark Palmer/Sixth Street Properties v. City of Los Angeles case. [See SMRH Blog 08/18/2009, for detailed discussion of Palmer decision.] This decision, although favorable for Palmer, could launch "inclusionary zoning" and similar affordable housing laws across the state into uncertain legal waters as municipalities attempt to enforce now-questionable inclusionary zoning requirements.

By Robert Uram & Keith Garner

On September 2, 2009, the State Water Resources Control Board (“State Board”) adopted a new General Permit for Discharges of Storm Water Associated with Construction Activities (“CGP”) that imposes significant new and potentially burdensome requirements for discharging storm water from construction sites. The CGP would apply to all construction activities disturbing one or more acres of land or to smaller areas that are part of a common plan for development, as well as to construction activities related to linear overhead/underground projects, which were previously covered under a separate general permit. Unless the CGP is challenged and set aside, the new permit will become effective on July 1, 2010, allowing current dischargers to get through the 2009-2010 rainy season before the new standards go into effect.

Weisblat, et al., v. City of San Diego, ___ Cal. App. 4th ____ (Aug. 18, 2009, No. D052787)

By Jeffrey W. Forrest and David P. Lanferman

In 1997, in an attempt to clarify the sometimes blurry distinction between a government “fee” and a government “tax,” the California Supreme Court explained that “taxes are imposed for revenue purposes, rather than in return for a specific benefit conferred or a privilege granted.” (Sinclair Paint Co. v. State Bd. of Equalization (1997) 15 Cal.4^th 866, 874.) Recently, on August 18, 2009, California’s Court of Appeal for the Fourth Appellate District further clarified the distinction in Weisblat, et al., v. City of San Diego (Super. Ct. No. GIC871893). The issue was whether the City of San Diego’s “Tax Collection Fee” charged to landowners to cover the expense of collecting and administering the City’s rental unit business tax was, in fact, a general tax. The court held that it was a general tax because the purpose of the Tax Collection Fee was not to provide a government service to landlords (such as building inspection), but rather to facilitate the City’s general tax collection efforts (processing rental tax applications, answering taxpayer questions, and generating and mailing out billing statements to collect the rental tax). As a general tax, the court voided the Tax Collection Fee because the City Council levied it in 2004 without approval of a majority of qualified voters in the City as required by the California Constitution. The City’s underlying rental unit business tax, which was established in 1942 and generates $11 million annually, was not challenged and remains in effect.

by James Pugh

On July 22, 2009, the California Court of Appeals issued a ruling that could send California’s affordable housing laws into a tailspin. The case is Palmer/Sixth Street Properties, L.P., et al., v. City of Los Angeles, and it questioned whether cities can impose mandatory affordable housing, also known as inclusionary zoning, requirements on the development of market-rate apartment projects. The Second Appellate District Court believes not.

Lin v. City of Pleasanton., ___ Cal. App. 4th ____, No. A121147 (1st App. Dist. 2009)

by James Rusk

A referendum petition challenging the approval of a development plan need not include the text of the plan itself, if the plan was neither attached to the ordinance approving the plan nor explicitly incorporated by reference, the First District Court of Appeal has held.  Although the content of the development plan clearly was relevant to a decision on the referendum, the court in Lin v. City of Pleasanton declined to extend the "text" requirement of Election Code section 9238(b) to require that the petition include the development plan, in addition to the text of the challenged ordinance.  Expanding the text requirement would force citizens to guess at the documents that must be included in a valid referendum petition—a burden the court found unwarranted, absent "extreme circumstances" that otherwise would render the petition "affirmatively misleading."
 

By David P. Lanferman & Jeffrey W. Forrest

On July 15, 2009, the Governor signed new "urgency" legislation to automatically extend the life of existing tentative subdivision maps, vesting tentative maps ("VTMs") and parcel maps for two additional years -- provided that they were still valid and in effect on July 15, and would otherwise expire before January 1, 2012. The new law, AB 333 (Fuentes) (Stats. 2009, ch. 18), included urgency provisions so that it took effect immediately upon signature by the Governor. The urgency of this measure, intended to preserve the many approved projects which were otherwise in danger of map expiration and loss of valuable rights, was apparently recognized so that it was able to receive the Governor's signature notwithstanding the hold on most other new legislation pending resolution of the State budget situation.

Health First v. March Joint Powers Authority (Tesco Stores West, Inc.), ___ Cal. App. 4th ___ (June 10, 2009, No. RIC458367)

By Katharine E. Allen

The California Court of Appeal for the Fourth Appellate District determined that the act of reviewing and approving a design permit application for a warehouse facility by the March Joint Powers Authority (the "Authority") in accordance with the Specific Plan for the March Business Center constituted a ministerial act and thus did not require further environmental review under the California Environmental Quality Act ("CEQA"). In reversing the trial court's holding on this issue, the Court of Appeal emphasized the Authority's use of fixed standards and objectives embodied in a checklist for conformance with certain Design Guidelines established under the Specific Plan and the lack of any discretionary or subjective judgment in granting approval. The Court of Appeals also briefly addressed lesser issues relating to the application of certain mitigation measures called for in the Specific Plan to the development of the facility and the standing of the plaintiff in the trial court.

BIACC v. City of Patterson (2009) 171 Cal.App.4th 886

By David P. Lanferman

On June 17, 2009, the California Supreme Court denied the City of Patterson's petition for review of the Court of Appeals decision invalidating the City of Patterson's "affordable housing in lieu fees" and holding that the City violated a development agreement by demanding the new fees from the approved project. The Fifth Appellate District had initially issued its unanimous decision in January, holding that the City had failed to demonstrate that the amount of its new $22,000 per market-rate home fee was reasonably related to any deleterious impacts on the community's need for affordable housing. The appellate court later denied the City's petition for rehearing, slightly modified the text of its decision, and ordered the decision to be published in March. The Supreme Court's recent ruling means the decision now stands as "final" (at least as to the California judicial system).

California Oak Foundation v. County of Tehama et al. (Del Webb California Corp. et al.), ____ Cal. App. 4th ____ (June 11, 2009, No. CI58258)

By Katharine E. Allen

Four letters sent to the County of Tehama and the Tehama County Board of Supervisors (collectively “Tehama”) and disclosed to real parties in interest by a law firm retained as outside counsel for the purpose of providing advice on compliance with the California Environmental Quality Act (“CEQA”) maintained their privileged status under the attorney-client and work product privileges despite the disclosure and thus did not need to be included in the administrative record. In so holding, the Court of Appeal for the Third Appellate District relied on the common interest doctrine to maintain the privileged status of the letters. The court did, however, reverse the judgment of the Superior Court of Tehama County on a separate issue related to the investigation of the financial feasibility of certain mitigation fees, with directions that the superior court enter a judgment requiring Tehama to reconsider the standard used in determining the economic feasibility of the underlying project.

California Native Plant Society v. City of Rancho Cordova, ____ Cal. App. 4th _____ (March 24, 2009, No. C057018)

By Elizabeth S. Anderson

The California Court of Appeal for the Third Appellate District determined that the City of Rancho Cordova did not improperly defer mitigation under the California Environmental Quality Act ("CEQA") when it adopted a mitigation measure that required the applicant to develop (1) a habitat mitigation and monitoring plan for off site mitigation pursuant to standards which would ensure no net loss of habitat as a result of on site construction; and (2) a wetland avoidance/mitigation plan to address the potential impacts of any off-site creation activities contemplated in the habitat mitigation and monitoring plan. In reversing the trial court's holding on this point, the court found that the habitat mitigation and monitoring plan did not need to identify specific off-site locations for mitigation. The court did, however, affirm the trial court's holding that the City's approval of the entitlements was inconsistent with a General Plan policy that required the City to design mitigation "in coordination with" other public agencies because the City merely solicited, considered, and responded to the agencies' comments on the EIR. Although the holding on this latter issue may require public agencies that use this language in their general plan to "cooperate with" the specified agencies, the court upheld the principle that a project need not be in "perfect conformity" with every general plan policy. Rather, a project would be consistent with the general plan if it would "further the objectives and policies of the general plan and not obstruct their attainment."

Building Industry Association of Central California v. City of Patterson (2009) __ Cal App. 4th ____

By David P. Lanferman

The Court of Appeal for the Fifth Appellate District certified its decision in Building Industry Association of Central California v. City of Patterson for publication on March 2, 2009. The court had previously issued an opinion on Jan. 30, 2009, holding that the City of Patterson’s “affordable housing in lieu fee” was invalid, because the amount of the fee was not shown to be reasonably related to costs of the City’s affordable housing program attributable to new development, as required by the terms of a statutory development agreement between the City and the developer. (See previous Affordable Housing in Lieu Fees blog article). The City had increased the fee to $20,946 from its previous rate of $734 per new residential building permit. The development agreement with the homebuilder permitted the City to impose increased fees if they were “reasonably justified,” and the City argued that this language permitted the increased fees. The Court of Appeal held that (1) the contractual limitation incorporated the legal standards generally applicable to development impact fees and exactions; (2) the fees in this case were therefore not free from a “meaningful means ends review”; and (3) the City had failed to show that its new fees met those standards.

By David P. Lanferman

“Affordable housing in lieu fees” imposed by the City of Patterson on new residential development projects were invalidated by the California Court of Appeal for the Fifth Appellate District, in an unpublished decision issued on January 30, 2008.  (Building Industry Association of Central California v. City of Patterson).  The court unanimously held that the amount of the City’s housing in lieu fee (nearly $21,000 per home) was not calculated in conformity with “the legal standards generally applicable to development fees,” and that the fees were therefore not “reasonably justified” as required by the terms of a development agreement.  The court invalidated the fee, awarded costs to the plaintiffs, and remanded the case to the lower court with directions to determine an appropriate remedy for the City’s imposition of unjustified and invalid fees. 

By Olivier F. Theard and Bram Hanono

In a significant step towards achieving required reductions in greenhouse gas (GHG) emissions, the California Air Resources Board (CARB) approved the AB 32 Climate Change Scoping Plan on December 11, 2008 (Res. 08-47).  CARB Chairperson Mary Nichols described the Scoping Plan as "California's prospectus for a more secure and sustainable economy."

Save Tara v City of West Hollywood, ___ Cal. 4th ___ (Oct. 30, 2008, Case No. S151402)

By David Collins

In this case, the California Supreme Court invalidated agreements by the City of West Hollywood (“City”) for a housing project that was conditioned on future environmental review.  The court avoided establishing a bright-line rule that would define CEQA approvals as either entering into any agreement for development of a well-defined project, or the execution of unconditional agreements that irrevocably vest development rights.  Instead it articulated the general principle that before conducting CEQA review, agencies must not take any action that significantly furthers a project in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of the project.  Surrounding circumstances along with the agency’s agreements should be evaluated by the courts when applying this general principle.  To assist in making the determination, the court set forth a two-step approach: (i) whether the agency, in taking action indicates it will perform environmental review before making any further commitment to the project, and if so, whether the agency nevertheless limits its discretion regarding environmental review; and (ii) whether the record shows the agency committed significant resources to shape the project and thereby foreclosed consideration of meaningful alternatives.

By Rafael F. Muilenburg, James E. Pugh, and Michael Hansen

On September 30, 2008, the rules governing regional planning changed dramatically when Governor Schwarzenegger signed Senate Bill No. 375 ("SB 375") into law. SB 375, in its essence, attempts to control greenhouse gas ("GHG") emissions by curbing urban sprawl through the implementation of "sustainable community strategies" in land use and transportation planning, along with various related incentives relating to housing development.

California Coastal Commission, etc., et al. v. Michael A. Allen, ___ Cal. App. 4th ___ (Oct. 1, 2008, Case No. B197974)

By David Collins

In this case, California Court of Appeal affirmed an order for sale of dwelling pursuant to California Code of Civil Procedure section 704.740 (part of the state’s Enforcement of Judgments Law) finding the Coastal Commission's assignee of a $1,469,000 judgment lien had properly secured a valid assignment of the judgment and that the homestead exemption did not apply because the subject dwelling was not owned by a natural person.

Stonehouse Homes v. City of Sierra Madre, ___ Cal. App. 4th ___ (Oct. 9, 2008, Case No. B195552)

By David Collins

The California Court of Appeal found developer Stonehouse Homes’ (Stonehouse) challenge to an April 2006 moratorium resolution adopted by the City of Sierra Madre (City) did not present a justiciable controversy.  The moratorium resolution directed staff to prepare recommendations and zoning amendments for consideration by city council and provided notice to the public of such contemplated legislative actions.  The court found Stonehouse’s legal challenge not ripe for litigating because the City had not yet adopted the land use ordinance contemplated by the moratorium resolution.

By Ella Foley-Gannon and James Rusk

Responding to an order from the Orange County Superior Court, the State Water Resources Control Board (the “State Board”) has lifted a two-week-old moratorium on new construction in the Los Angeles region.  The State Board announced on Friday that it would resume processing new enrollments under the statewide NPDES Construction General Storm Water Permit (the “Construction General Permit”) and other statewide NPDES permits.  The State Board had suspended such enrollments just two weeks earlier, in response to a writ of mandate issued by the court in the Arcadia II litigation.  However, the court clarified on Friday that the writ does allow the State Board to implement the terms of NPDES permits, so long as those terms are not used to enforce numeric water quality standards.

Witt Home Ranch, Inc. v. County of Sonoma (July 29, 2008, Case No. A118911 __ Cal.App.4th ___

By Misty Calder

Plaintiff Witt Home Ranch, Inc. (“Ranch”) argued that a 1915 subdivision map qualified under a statutory grandfather provision, section 66499.30(d) of the Government Code, which recognizes antiquated subdivision maps that were recorded in compliance with “[l]aws . . . regulating the design and improvement of subdivisions” in effect at the time of the map’s recordation.  The Ranch also argued that the County’s conduct during the application process violated its constitutional right to due process.  The California Court of Appeal upheld the trial court ruling that the laws governing subdivision maps in 1915 did not regulate the “design and improvement of subdivisions,” as required by the grandfather clause, and that the County did not violate the Ranch’s right to due process.

By Ella Foley-Gannon and James Rusk

The State Water Resources Control Board (the “State Board”) has effectively imposed a moratorium on new construction within the Los Angeles region, in response to the Orange County Superior Court’s recent ruling in the Arcadia II litigation.  The State Board last week published two memoranda interpreting a writ of mandate issued on July 2 in the Arcadia II case, which involves a challenge to the storm water quality standards set forth in the Basin Plan for the Los Angeles Region.  According to the memoranda, the writ requires the State Board to stop processing enrollments under the statewide Construction General Storm Water Permit.  This interpretation will halt virtually all new construction projects that have not already obtained storm water permit coverage.  The State Board also has interpreted the writ as prohibiting any approvals or other actions to implement new TMDLs for receiving waters in the Los Angeles Region.

By Dave Lanferman

Silicon Valley Taxpayers Ass’n v. Santa Clara County Open Space Authority (July 14, 2006, Case No. S136468) ___ Cal.4^th ___.

The California Supreme Court declared that Proposition 218 “changed the law governing assessments” in this unanimous decision issued on July 14, 2008, and applied the “new law” to invalidate assessments levied by a special district to fund the acquisition of unspecified “open space.” The opinion lays out the new rules for the establishment, and judicial review, of assessments under the new substantive and procedural standards mandated by Proposition 218. Since these new requirements were added to the State constitution (Articles XIII C and D), the Court explained that the determination of the validity of an assessment “is now a constitutional question” subject to a more rigorous “independent judgment” standard of judicial review. The Court held that Prop. 218 shifted the burden of proof to the assessing agency. Then, applying its “independent judgment,” the Court found the agency had not met its burden of proof and these open space assessments were fatally deficient in at least two respects: (a) the assessments did not meet the new requirements that they be limited to “special benefits” enjoyed by the assessed properties; and (b) the assessments did not meet the new requirements that the amounts assessed to parcels be “proportional” to the special benefits conferred on the assessed properties.

By Dave Lanferman & Jeffrey Forrest

“Urgency” legislation to automatically extend the life of existing tentative maps, vesting tentative maps (“VTMs”) and parcel maps (so long as the map was valid on July 15, 2008, and would otherwise expire before January 1, 2011) for an additional year was approved by the Legislature and Governor on July 15^th. The new law, SB 1185 (Lowenthal) (Stats. 2008, ch. 124), included urgency provisions so that it took effect immediately upon passage and signature by the Governor.  This automatic extension is in addition to any other extension provided by the Subdivision Map Act or local ordinance.  The bill also authorizes local governments to approve an additional year of discretionary extensions to the life of a tentative map, up to a total of six years (from the current five‑year limit).

Significantly, this legislation also extends the life of other existing state agency approvals that pertain to a development project included in a map extended by this bill.  However, the legislation does not extend the life of local agency project approvals (other than tentative or parcel map approvals), and developers, lenders, and others therefore need to be careful that such local agency approvals or entitlements do not expire and render moot the benefits of the automatic tentative map extension.

Sunset Skyranch Pilots Association v. County of Sacramento (July 2, 2008, C055224) ___ Cal.App.4th ___

By Misty Calder

In this case, Sacramento County (“County”) denied renewal of a conditional use permit (“CUP”) needed for the continued operation of a privately-owned, public-use airport.  The trial court held that (1) denial of the CUP renewal did not constitute a “project” under the California Environmental Quality Act (“CEQA”); and (2) denial of the CUP renewal was not preempted by or violative of the State Aeronautics Act (“SAA”).  The Court of Appeal reversed as to the CEQA claim, holding that denial of the CUP would have the practical effect of closing the airport, and airport closure had the potential to cause significant environmental impacts.  Therefore, notwithstanding section 15270 of the CEQA Guidelines, the closure of the airport was a “project” under CEQA and not exempt from environmental review under CEQA.

Pacific Hills Homeowners Association v. Prun (Mar. 20, 2008, G038244) __ Cal.App.4th __

By S. Keith Garner

The California Court of Appeal for the Fourth District recently held that the five-year statute of limitations in the Code of Civil Procedure (CCP) section 336 for challenges to restrictions on the use of real property applies to a homeowners association's unrecorded rules or guidelines.  The case involved a dispute over the location and height of a fence and gate across a homeowner's driveway.  The homeowners association's CC&Rs, which were recorded, required homeowners to obtain written approval of plans for any improvements, such as fences, from the association's architectural committee before starting construction.  The association's architectural committee also adopted guidelines that imposed setback and height requirements on fences, which were not recorded.  In this case, the homeowner erected the fence and fate in November, 2000, without receiving the architectural committee's approval and in violation of the setback and height restrictions in the unrecorded guidelines.  The association immediately notified the homeowner of the violation, and, over the course of next few years, sporadically attempted to resolve the matter administratively with the homeowner.  After its requests for mediation were rebuffed, the association filed suit against the homeowner more than four years but less than five years after the installation of the gate and fence.  The homeowner argued in part that the action was barred by the four-year statute of limitations in CCP section 337.  The superior court found that the action was timely under CCP section 336(b) and issued an injunction requiring the gate and fence to be lowered or moved outside the setback.

SCOPE v. County of Los Angeles (November 26, 2007, B189116) 157 Cal. App. 4th 149

By Maria Pracher and Misti Schmidt

The California Court of Appeal for the Second District recently issued the first appellate opinion to apply the four principles delineated by the California Supreme Court in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, 40 Cal. 4th 412 ("Vineyard").  These principles govern whether the water services discussion in an Environmental Impact Report ("EIR") sufficiently analyzes the availability of future water supplies.  Santa Clarita Organization for Planning the Environment, et al.,  v. County of Los Angeles, 157 Cal. App. 4th 149, Civil No. B189116 at 9 (November 26, 2007) ("SCOPE").  Briefly, the Vineyard principles are:

Douda v. California Coastal Commission (February 6, 2008, B188210) ___ Cal.App.4th ___

By Aaron Foxworthy

The Second Appellate District affirmed a lower court decision that when acting as the issuing agency for a Coastal Development Permit (CDP) application, the California Coastal Commission may designate a portion of the subject property as an Environmentally Sensitive Habitat Area (ESHA) during consideration of the CDP application.  And, the Commission may then reject the CDP application based in part on potential impacts to the newly designated ESHA.  The decision is a cautionary tale for parties seeking to develop – or purchase for development – property in the Coastal Zone, that the Commission retains broad authority to designate ESHAs and restrict development.

Security National Guaranty, Inc. v. California Coastal Commission (January 25, 2008, A114647)  ___ Cal. App.4^th ___

The First Appellate District held that the California Coastal Commission does not have the authority to designate property an "environmentally sensitive habitat area" (ESHA) where a certified Local Coastal Program (LCP) is in place, and the LCP has neither designated the property as an ESHA, nor contains language anticipating later designation of the property as an ESHA through administrative action.  The decision stands to protect developers and local governments by recognizing the LCP as a bulwark against the uncertainty created by potential ESHA determinations rendered by the Coastal Commission in the appeals process.

Environmental Defense Project of Sierra County v. County of Sierra, et al. (January 9, 2008, C055448) __Cal. App. 4th

In a victory for public participation advocacy groups and a defeat to efforts to increase efficiency in the planning and development process, the California Court of Appeals for the Third District struck down Sierra County’s “streamlined zoning process,” which had permitted the county to provide notice of a legislative public hearing on a zoning ordinance or zoning ordinance amendment before the legislative body received a planning commission recommendation.  The court held that, under California Government Code sections 65854, 65856, 65090, and 65094, the local agency must give notice of the legislative body’s public hearing on a zoning ordinance or zoning ordinance amendment only after the planning commission has submitted its recommendation to the legislative body, and the public notice must contain the planning commission’s recommendation.

By Michael B. Wilmar and Misti M. Schmidt

With a resounding no, the California Court of Appeal for the Fifth District answered the question of whether a county can permit the use of real property that is not allowed by the zoning ordinance even if the county grants a zoning exception in a development agreement.  Such an exception is invalid where the county has not rezoned the property, amended the text of the zoning ordinance, issued a conditional use permit consistent with the ordinance, or granted a variance.

Lincoln Place Tenants Assoc. v. City of Los Angeles (September 19, 2007, B193235 [2^nd Dist. , Div. 7]) ___ Cal. App. 4^th ____; http://www.courtinfo.ca.gov/cgi-bin/opinions

By Alexis M. Pelosi

In this case, the Second District Court of Appeal confirmed that the Ellis Act does not preempt CEQA and that cities have a continuing obligation to comply with mitigation measures required under CEQA.

By Maria Pracher and William Fleishhacker

On August 21, 2007, the California State Legislature ended a 52?day budget stalemate, agreeing to a $145 billion spending plan.  As part of that agreement, the lawmakers passed minor amendments to the California Environmental Quality Act (“CEQA”).  The amendments require the State Office of Planning and Research to develop and prepare guidelines addressing the analysis and feasible mitigation of greenhouse gas emissions, as required by CEQA.  These guidelines must be adopted by the Resources Agency by January 1, 2010.  The amendments also provide an exemption for certain projects from CEQA lawsuits based on claims that the effects of greenhouse gas emissions were not adequately analyzed or mitigated in an Environmental Impact Report (“EIR”) or other CEQA document prepared for the project.  The projects exempted are any transportation or flood protection projects funded by the $25 billion bond measures passed by the voters in 2006.  The CEQA exemptions are temporary, expiring on January 1, 2010.

By William M. Fleishhacker

In Mani Brothers Real Estate Group v. City of Los Angeles, the Second District Court of Appeal of California addressed the issue of whether the City of Los Angeles (the “City”) and the Los Angeles Community Redevelopment Agency (the “CRA”) properly relied on a 2005 Addendum to a 1989 environmental impact report (“EIR”) in approving a modified project. In doing so, the Court specifically rejected the analysis of a 2006 case which held that the initial inquiry should focus on whether the changes amount to a “new project” requiring an EIR.  Rather, under the substantial evidence standard of review, and based on CEQA and the CEQA Guidelines, the Court held that the proper question is whether the changes result in new significant impacts compared to the original project.

Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) __ Cal. __

By Arthur J. Friedman, David P. Lanferman and Elizabeth S. Anderson

In Muzzy Ranch Co. v. Solano County Airport Land Use Commission, the California Supreme Court unanimously held that the adoption of the Travis Air Force Base Land Use Plan (the "Plan") by the Solano County Airport Land Use Commission (the "Commission") was a "project" for purposes of CEQA.  In this particular case, however, the Court affirmed the Commission's determination that the adoption of the Plan was exempt from CEQA pursuant to the "common sense" exemption since the Plan simply reiterated existing Solano County General Plan land use policies.  This decision is significant in that the Court: (1) upheld the use of the "common sense" exemption from CEQA review, even though "legitimate questions were raised" about the possible environmental impacts of the adoption of the Plan and the Commission had erred by failing to identify substantial evidence in the record in support of its invocation of the exemption; and (2) also acknowledged that CEQA may require lead agencies to consider the effects of "displaced development" resulting from restrictive land use policies where such development can be reasonably anticipated.

LT-WR, L.L.C. v. California Coastal Commission et al, No. B187666 (Cal. Ct. App., 2d Dist. May 25, 2007)

By Jeffrey W. Forrest

The Second District Court of Appeal of California upheld a trial court decision that the California Coastal Commission (the “Commission”) exceeded its authority when the Commission denied a private landowner a permit for gates and “no trespassing” signs.  The appellate court found that the Commission’s ruling that there was a “potential” to establish prescriptive rights for public use on the property “speculative.”

Like “squatter’s rights”, prescriptive access rights are created when the public openly and repeatedly accesses private property for a sufficient period of time without the landowner’s permission.  The Commission’s denial of the permit in effect decreed the existence of such access rights and was inappropriate because the Coastal Act does not grant the Commission the authority to create prescriptive public access rights.  Only a court has the authority to adjudicate and determine whether prescriptive access rights exist.

By Arthur J. Friedman

On May 22, 2007, the Napa County Superior Court issued its ruling in American Canyon Community United for Responsible Growth et al. v. City of American Canyon et al. (Napa County Superior Court Case No. 26-27462), approving the City’s “addendum” to the previously approved mitigated negative declaration, and thereby authorizing the partially constructed and approved Wal-Mart supercenter in American Canyon to proceed with construction and operations.  The court’s ruling is significant in part because it rejected the petitioners’ novel claim that the City was required to perform “supplemental” environmental review of the project’s potential impacts on climate change in response to the California legislature’s recent enactment of Assembly Bill 32.

Feduniak et al., v. California Coastal Commission (2007) 148 Cal. App. 4th 1346.

By Michael R. Leake

The Sixth District Court of Appeals of California overturned a trial court decision and rejected the claim of a Monterey County coastal property homeowner that the Commission should be estopped from requiring the removal of a three-hole, pitch-and-putt golf course from the property and restoration of the area to its original landscape of native dune vegetation because the Commission failed to take any action regarding the existence of the golf course in violation of restrictions placed on the property by the Commission despite the fact that the golf course was easily visible and had been there for 18 years.

Friends Of The Sierra Railroad v. Tuolumne Park and Recreation District  (filed January 12, 2007; certified for publication February 8, 2007, F050117) __ Cal.App.4^th__

By Lori Wider

Introduction

In this case plaintiff Friends of the Sierra Railroad (Friends) challenged the approval and sale of land from Tuolumne Park and Recreation District (District) to Tuolumne Band of Me-Wuk Indians (Real Party).  The land sold contained a portion of an historic railroad right?of?way.  Friends contended that the sale constituted a “project” under CEQA, requiring prior environmental review.  The Court of Appeal held that the transfer of the land was not a “project” under CEQA under the circumstances of this case.  While some development of the property was reasonably foreseeable, review of possible impacts to the historical resource would be premature in the absence of any specific proposal for development.

Uphold Our Heritage v. Town of Woodside  (filed January 10, 2007; certified for publication February 2, 2007, A113376) __ Cal.App.4^th__

By Lori Wider

Introduction

In this case plaintiff Uphold Our Heritage (Heritage) challenged the issuance by the Town of Woodside (Town) of a permit to Steve Jobs (Jobs) to demolish a mansion on his property to enable construction of a new single family residence.  The Court of Appeal held that Town's findings of infeasibility of certain EIR project alternatives involving rehabilitation of the existing structure rather than demolition were not supported by substantial evidence in the record. While the estimated costs of restoration of the mansion were before the Town Council (Council), the record was devoid of any information regarding the likely cost of a new residence (the proposed project). Without the information necessary to compare the restoration costs against the cost of the project, there was insufficient evidence to support the findings of infeasibility of rehabilitation alternatives.

McAllister v.County of Monterey et al.  (January 31, 2007, H028813) __ Cal.App.4^th__

By Lori Wider

Introduction

This case involved a challenge by the plaintiff McAllister to approval of a coastal development permit issued to his neighbors ("Real Parties") for a single family residence on the Big Sur coast.  The primary issues addressed by the court were McAllister's arguments that (1) the County of Monterey's ("County") approval of the permit was null and void since a prior owner's violation of conditions of a previously issued development permit for the same property constituted a violation of the County Code and, therefore, divested the County of jurisdiction to approve the permit; and (2) the County violated CEQA by failing to prepare an EIR rather than a mitigated negative declaration in connection with the permit.

Concerned McCloud Citizens v. McCloud Community Services District et al.  (Filed January 2, 2007; certified for publication January 31, 2007, C050811) __ Cal.App.4^th__

By Lori Wider

Introduction and Background

The California Court of Appeal, Third Appellate District, reversed the decision of the trial court  granting a petition for writ of mandate brought to challenge approval of an agreement between the McCloud Community Facilities District ("District") and Nestle Waters North America, Inc. ("Nestle") for the sale and purchase of spring water.  The lower court determined that the District had violated CEQA by failing to conduct environmental review prior to approving the agreement.  The appellate court disagreed, finding that approval of the agreement did not trigger the requirement for environmental review prior to District approval because (a) the agreement was expressly conditioned on future CEQA compliance; and (b) it did not commit the District to a course of action or commit it to issuance of any permits or other entitlements to Nestle.

California Farm Bureau Federation et al. v. California State Water Resources Control Board, (January 17, 2007, C050289) __ Cal.App.4th__ http://www.courtinfo.ca.gov/opinions

By David P. Lanferman and Ella Foley-Gannon

The Court of Appeals for the Third Appellate District has declared that regulatory fee schedules adopted by the State Water Rights Control Board (“Board”) in 2003, imposing new annual fees on holders of water rights permits and licenses are unconstitutional and invalid. The decision was based largely on the court’s finding that the Board failed to demonstrate the requisite “proportionality” between the costs of the Board’s regulatory program and the fees imposed on the targeted fee payors, and addressed several important issues frequently raised in the implementation and litigation of regulatory fees.

Black Hills Investments, Inc. v. Albertson's, Inc. - January 12, 2007

By Thomas B. Snyder

On November 22, 2004, Black Hills entered into a contract to purchase two parcels of real property in a retail shopping center.  At the time of the contract, the two parcels had not yet been created through subdivision of the property.  Black Hills deposited earnest money of $133,000 which was described as non-refundable.  The contracts contained a provision which permitted the seller, Albertson's, to terminate the contract if it failed to obtain the proper governmental approvals for creation of the two parcels.  Black Hills was given no such right.

American Canyon Community United for Responsible Growth v. City of American Canyon et al. (November 17, 2006; certified for partial publication December 18, 2006, A111278) __ Cal.App.4^th__ http://www.courtinfo.ca.gov/opinions

By Lori Wider

In this case, the Court of Appeal determined that the City of American Canyon (“City”) violated CEQA because the City’s determination that project changes would not substantially increase traffic impacts was not supported by substantial evidence and the City failed to proceed in accordance with law by refusing to consider potential extraterritorial urban decay effects of a proposed Wal-Mart supercenter.  The changes would have increased the size of the approved project by 6.5% and added 30 traffic trips.  The Court also determined that the City violated its zoning ordinance by approving the supercenter without approving a major modification application.  Only the CEQA portion of the decision is certified for publication; the last section of the decision, addressing the alleged zoning ordinance violations, is not.

City of Goleta v. Superior Court of Santa Barbara County  (December 21, 2006, S129125) __Cal.App.4th__http://www.courtinfo.ca.gov/opinions

By Maria Pracher

The California Supreme Court has held that the newly incorporated City of Goleta could disapprove a final subdivision map even though the vesting tentative subdivision map had been approved by Santa Barbara County.  Government Code section 66413.5(f), which provides for the mandatory approval of a final map by a newly incorporated city if the vesting tentative map has been approved by a county, did not apply given the facts in this case.  Additionally, the City's adoption of the County codes did not prevent it from denying the map, and nothing in the City's actions with respect to the project estopped it from denying the final map.

Calvert v. County of Yuba (December 5, 2006, C047857)__Cal.App.4^th__ http://www.courtinfo.ca.gov/opinions/

By Lori Wider

The Court of Appeal, Third Appellate District, held that a vested rights determination under the Surface Mining and Reclamation Act ("SMARA") regarding surface mining operations in the diminishing asset context is subject to the procedural due process requirements for reasonable notice and an opportunity to be heard.  The County of Yuba ("County") in this case made a determination that Western Aggregates LLC ("Western") had a vested right to mine aggregate from an area within the Yuba Goldfields.  The County had invited Western and other surface mining operators to apply for a vested rights determination following a decision by a superior court in a prior lawsuit that a zoning authorization was not an adequate substitute for a SMARA permit.  In determining that a public adjudicatory hearing, with reasonable notice and an opportunity to be heard, was required, the Court of Appeal specifically limited its holding to a vested rights claim to conduct a surface mining operation subject to the diminishing asset doctrine.  Therefore, it is not clear whether this decision has any broader application or implication beyond the facts of this case.

Wagner Farms, Inc. v. Modesto Irrigation District (Dec.6, 2006, F049966) __ Cal.App.4th __ http://www.courtinfo.ca.gov/opinions/

By Maria Pracher

In this case, the appellate court reversed an award of costs in favor of the Modesto Irrigation District (the District) granted by the trial court after the plaintiff's petition for a writ of mandate was denied.  The court found the District had failed to provide sufficient justification for the "unusually high" cost per page for preparing the record and to adequately document the time legitimately charged for assembling the record of the proceedings.

Wolfe v. City of Fremont (Oct. 31, 2006, A112386) __ Cal.App.4^th __ http://www.courtinfo.ca.gov/opinions/

By Julie Austin

This Court of Appeals’ decision under the Brown Act, which prohibits a majority of members of a local legislative body from reaching a “collective concurrence” outside a noticed public meeting, suggests that an improper consensus may be reached inadvertently during the course of individual conversations between members of a local legislative body.  The court found that the plaintiff alleged sufficient facts to demonstrate that an improper “collective concurrence” had occurred through a series of one-on-one conversations among the legislative members.  Specifically, the plaintiff alleged that all city council members expressed support for a policy before a formal public meeting and that at least one council member had been aware of the other members’ views.  The court noted that the city council’s lack of intent to create a consensus was not fatal to the plaintiff’s case because the Brown Act prohibits even unintentional “collective concurrences.”  This case suggests that in the future, while engaging in otherwise permissible one-on-one discussions with other members of a legislative body, local legislators must be careful not to reveal the views of any other members to avoid inadvertently creating an improper “collective concurrence.”

Western Placer Citizens for an Agricultural and Rural Environment v. County of Placer (3^rd Dist. Nov. 9, 2006)

By Maria Pracher and Julie Austin

In this new California Environmental Quality Act (CEQA) case, the Court of Appeal upheld the County's EIR for a sand, gravel, and granite mining and processing project.  The court ruled on two important issues.  First, the County did not violate CEQA by failing to include and analyze a slightly revised project description submitted by the applicant after the final environmental impact report (EIR) had been prepared.  Coupled with this holding, the court found that the County's decision not to prepare additional environmental review of the revised project was supported by substantial evidence in the record.  Second, the court determined that the EIR's water supply analysis was adequate.  The court also found that the plaintiff had exhausted its administrative remedies.

Citizens for Open Government v. City of Lodi (3^rd Dist. Nov. 9, 2006)

By Julie Austin

Two non-profit groups, Citizens for Open Government (Citizens) and Lodi First, opposed the City of Lodi’s certification of a Final Environmental Impact Report (FEIR) and approval of a use permit for a Wal-Mart-anchored shopping center.  The trial court found that Citizens had not exhausted all of its administrative remedies because, even though Lodi First filed an appeal to the City Council, Citizens had not filed its own appeal.  The Court of Appeals reversed this determination and found that Citizens had exhausted its administrative remedies under CEQA and the Municipal Code because Citizens appeared before the City Council to file its own objections and participated in the administrative process.  The court also found that Citizens’ claims were not moot even though a trial court had partially granted Lodi First’s petition and vacated the City Council’s approval of the project.

By John Scheuring

Late in September, the Court of Appeal effectively reversed a judgment against the City of San Diego which, with interest and attorney's fees, was on track to exceed $150 million.  Originally filed in 1995, Border Business Park sued the City on theories of inverse condemnation and breach of contract.  The trial court ruled that the City was liable for (i) publicly announcing that it was considering a proposal for to create an international airport in Otay Mesa (which interfered with sales of property within Border Business Park), and (ii) the City's diversion of truck traffic to a new border crossing with Mexico (which allegedly interfered with access to Border Business Park). The trial court also held the City liable for breach of a development agreement with the Border Business Park (but did grant a motion for new trial on res judicata issues stemming from a previous lawsuit).

By John Scheuring

An en banc panel of the 9th U.S. Circuit Court of Appeals has vacated an earlier decision by a three-judge panel that, pursuant to the minority language provisions of the federal Voting Rights Act ("VRA") (42 USC §1973aa-1a), California recall petitions must be translated into minority languages.  The Ninth Circuit now joins two other circuits that have found voter-circulated petitions need not be translated into other languages to comply with Section 203 of the VRA. The majority held that these petitions were not materials "provided by" the state and, therefore, petition proponents are not required to comply with the minority language provisions of the VRA.  An interesting aspect of the decision is the courts belief that a translation requirement would have a chilling effect on the petition process itself.  The Court reasoned that if a translation were to be required for a petition in Orange County, the petition would have to be printed in English, Spanish, Vietnamese, Korean and Chinese, the costs of which would fall directly on the proponents of the petition, which may deter participation in the electoral process.  This decision will also end speculation that the VRA might also apply to initiative and referendum petitions.
 

Preciado v. Wilde, California Court of Appeal, Second District, 42 Cal.Rptr.3d 792, 06 Cal. Daily Op. Serv. 3817, 2006 Daily Journal D.A.R. 5563

By Brenna Moorhead

Tenants in common have equal possessory rights in land, therefore more is required to establish title by adverse possession against a cotenant that by adverse possession against a stranger. In Preciado v. Wilde, Plaintiff Preciado and his wife filed an action to quiet title based on adverse possession against Wilde, Preciado's niece. Preciado and Wilde became tenants in common when Wilde inherited interests in two parcels of real property from her father after his death in 1984. 

Establishing title by adverse possession against a stranger requires:

1. actual possession providing reasonable notice to the owner;
2. possession hostile to the owner's title;
3. a claim to the property under color of title or claim of right;
4. five years of continuous, uninterrupted possession; and
5. payment of taxes levied and assessed upon the property during the period. 

Adverse possession against a cotenant requires more with respect to notice of the intent to oust the co-tenant of its interest in the common property. One tenant cannot by mere exclusive possession acquire title of the property.

Wal-Mart Stores, Inc., et al. v. City of Turlock

By Michael Wilmar and Michael Leake

In Wal-Mart Stores, Inc., et al. v. City of Turlock, (2006) 138 Cal.App.4th 273, the California Court of Appeal for the Fifth Appellate District upheld a City of Turlock zoning ordinance which amended the City's general plan to bar the development of “big box” retail stores containing full service grocery departments. Under the ordinance, the City banned the development of “discount superstores,” which it defined as discount stores that exceed 100,000 square fee of gross floor area and devote at least 5 percent of the total sales floor area to the sale of nontaxable merchandise, often in the form of a full-service grocery department. In Wal-Mart's appeal of its earlier Superior Court defeat, it argued that the ordinance was an unconstitutional use of the City's police power and that the ordinance failed to comply with the California Environmental Quality Act (CEQA).

By Donna Jones

The California Court of Appeal in Trancas Property Owners Association v. City of Malibu, 2006 WL 802483 (Cal.App. 2 Dist.)), upon a rehearing requested by the California League of Cities as Amicus Curiae, recently re-affirmed its decision (discussed in this blog on October 13, 2005) that the City's adoption of a settlement agreement in a closed session violated the Ralph M. Brown Act, Gov't Code section 54950 et seq. (Brown Act).

By Michael Wilmar

In the recent case of Padilla v. Lever, No. 03-56259, 429 F.3d 910 (9th Cir. Nov. 23, 2005), the Ninth Circuit (the "Court") held that Section 203 of the Voting Rights Act of 1965 (the "Act"), which requires voting materials in certain districts to be distributed in specified minority languages, applies to recall petitions circulated pursuant to California law. Specifically, the Court held that recall petitions were "other materials or information relating to the electoral process" and that the Orange County Registration and Elections Department (the "OCRED") "provided" the recall petitions within the meaning of the Act. The decision makes it likely, if not certain, that in every locale where bilingual or trilingual ballots are required, a similar requirement will also apply to initiative petitions.

By Robert J. Uram, Ella Foley-Gannon and S. Keith Garner

On February 6, 2006, in National Ass'n of Homebuilders v. U.S. Army Corps of Engineers, Nos. 04-5221 et al., 36 ELR 20032 (D.C. Cir. Feb. 6, 2006), the United States Court of Appeals for the D.C. Circuit issued a unanimous ruling in favor of several major trade associations, holding that the validity of the Army Corps of Engineers regulation of "incidental fallback" that can result from activities such as ditch digging and excavation is ripe for review, and requiring the lower court to consider the legality of permit requirements for this type of discharge of dredged material into waters of the United States.

By David P. Lanferman

The recent decision of the California Supreme Court in Barratt-American v. City of Rancho Cucamonga(37 Cal.Rptr.3d 149) [covered in an earlier update on this site] raises serious questions as to the way many jurisdictions calculate, collect, and apply fees from developers for building permits and building inspections. Back in 1993, the California Attorney General published an opinion which concluded that fees for building permits and inspections are required to be based on the actual or reasonable costs of providing such services, rather than on the value of the proposed construction or improvements [76 Ops.Cal.Atty.Gen. 4]. Nevertheless, many (perhaps most) cities and counties continue to charge building permit fees which are based on the valuation of the construction, rather than being based on staff time and costs of providing service. To the extent that such valuation-based fees may exceed the reasonable costs of providing those services, recent court decisions may now hold cities and counties accountable for the excess revenues collected.

Sierra Club v. United States Army Corps of Engineers, 2005 WL 2090028 (D.N.J. 2005)

By Robert J. Uram and Ella Foley-Gannon

This case involved a challenge to a Corps of Engineers 404 permit to allow the filling of 7.69 acres of wetlands for a redevelopment project within the Meadowlands Sports Complex in New Jersey. The district court denied plaintiff environmental groups' preliminary injunction claim that the Corps had defined the project purpose in improperly narrow terms thereby precluding any practicable alternatives determination. Specifically, plaintiffs contended that the Corps substituted a project description for a basic project purpose.

By Michael Cato

If you own property near a military installation, you may want to obtain a copy of the Advisory Planning Handbook soon to be issued by the Governor's Office of Planning and Research (OPR). Or, you can participate in one of the workshops on the issue being scheduled by OPR. The purpose of the Advisory Planning Handbook is to "promote land use compatibility near military installations." While technically the Handbook is intended to serve only as a "guideline," project opponents often interpret such "guidelines" as regulations that govern a property's allowable uses. As a result, developers or other owners of property near any military installation should review and comment on the draft to assure that the guidelines that appear in the final Advisory Planning Handbook are not overly restrictive.

By Donna Jones

The California Court of Appeal recently re-affirmed the limits on a city's ability to contract away its police power and placed limits on actions that a government can take in closed session. The Court also re-affirmed development agreements as an appropriate method for a city and an owner-developer to exempt a described development from future changes in zoning and density requirements.

By Michael Wilmar

Former Section 6307 permitted the State Lands Commission to make exchanges of tide and submerged terminating the public trust for commerce, navigation, and fishery in the best interests of the state for the following purposes:

• Improvement of navigation
• Aid in reclamation
• Flood control protection
• To enhance the configuration of the shoreline for the improvement of the water and upland on navigable rivers, sloughs, streams, lakes, bays, estuaries, inlets, or straits

By Michael B. Wilmar

In Endangered Habitats League v. County of Orange, 131 Cal. App. 4th 777 (2005), the California Court of Appeal rejected a development plan in Orange County. The court did so on the grounds that the specific plan approved by the County conflicted with its general plan, and that the County compiled an inadequately detailed environmental impact report (EIR).

On Wednesday, August 24, 2005, the California Supreme Court granted the petitions for review filed by the City of Long Beach and Developers Diversified Realty Corporation, the developer of the Queensway Bay Development Project in Long Beach. This action invalidates the opinion of the Court of Appeal in California Earth Corps v. California State Lands Commission (3rd Dist. 2005) 128 Cal.App. 4th 756. The court of appeal had ruled that the California State Lands Commission had only limited authority under Section 6307 of the Public Resources Code to exchange tidelands held in public trust for lands not held in public trust.

For more information please contact a member of the Real Estate and Construction Law Blog Editorial Team.

By Doug Van Gessel

On August 4 the California Supreme Court ruled, in Grafton Partners v. Superior Court (Pricewaterhouse Coopers LLP), 2005 DJDAR 9387 that California contractual provisions in which the parties thereto pre-agree to waive the right to a trial by jury are unenforceable. The unanimous opinion stated that a right to a jury trial is a fundamental constitutional entitlement that cannot be waived in advance of a dispute between the contracting parties unless such a waiver is permitted by statute. Thus, the court has left the door open for the legislature to pass a statute allowing such waivers, and the forum for interests pursuing this debate will likely shift to the legislature now.

Kelo v. City of New London
05 CDOS 5466 No. 04-108 (U.S. Supreme Court, June 23, 2005)

By Michael B. Wilmar

In a 5-4 decision, the U.S. Supreme Court held that economic development constitutes a valid public purpose within the meaning of the U.S. Constitution Fifth Amendment "public use" clause. Relying heavily on previous U.S. Supreme Court takings cases, Justice Stevens, writing for the majority, found that the City's purpose of economic development fit safely within the Court's broad interpretation of public purpose. Justice O'Connor, writing for the dissent, distinguished past U.S. Supreme Court takings cases as involving harmful precondemnation use of the private property whereas in the present case, the precondemnation use was not harmful. The majority only addressed takings under the U.S. Constitution and noted that states may place greater restrictions on its eminent domain power. The majority also rejected Petitioners' argument that the City's economic development plan would provide only purely economic benefits.

San Remo Hotel v. City and County of San Francisco
05CD05 5313 No. 04-340 (U.S. Supreme Court, June 20, 2005)

By Michael B. Wilmar

In San Remo Hotel v. City and County of San Francisco, the U.S. Supreme Court barred Petitioners from raising federal takings claims in federal court after Petitioners advanced in state court, and the state court decided, federal takings claims congruently with state takings claims. The hotel owned by Petitioners was previously used for various purposes?tourist hotel, long-term rooms, and mixed use. In 1981, San Francisco enacted the Hotel Unit Conversion and Demolition Ordinance that required hotel owners to apply for permits and pay fees before they could convert residential units into tourist units. In 1990 when Petitioners applied to convert all of the rooms in the San Remo Hotel into tourist rooms, the City issued a permit that allowed the conversion but for a $567,000 conversion fee. Petitioners challenged the ordinance and the imposition of a conversion fee as unconstitutional.

Marine Forests Society v. California Coastal Commission
05 CDOS 5501 S113466 (Supreme Court of California, June 23, 2005)

By Michael B. Wilmar

In Marine Forests Society v. California Coastal Commission, the Supreme Court of California unanimously held that the current California Coastal Act (CCA) provisions governing the membership structure of the California Coastal Commission do not violate the California Constitution's separation of powers clause. After the lower courts enjoined the Coastal Commission from performing its functions and pending review of this decision by the Supreme Court, the Legislature passed an emergency measure to amend the challenged provisions of the CCA. Under the amended provisions, a majority of the Commission's voting members were still appointed by the Legislature but members were no longer removable at the pleasure of the Legislature.

By Donna Jones

The San Diego Board of Supervisors approved a Transportation Impact Fee (TIF) that threatens to cripple commercial and industrial development in the unincorporated areas.

By Rafael F. Muilenberg and Donna Jones

"Conversion" of industrial properties to residential use, and "collocation" of residential units near industrial or commercial uses, has attracted concern from some industrial users and environmentalists.

Yet given the housing crisis and the scarcity of residential land available, urban infill and other "smart growth" developments are vital -- and, by their nature, are often located near other uses, including industrial.

Horwitz v. City of Los Angeles (Beglari)
124 Cal. App. 4th 1344 (2d Dist. Dec. 15, 2004) (review filed Jan. 24, 2005)

Trial court properly issued writ commanding the City to revoke all building permits and the certificate of occupancy related to a particular residence where permits were issued in violation of mandatory requirements of zoning ordinance. Los Angeles Planning Commission's ruling in favor of resident - which allowed renovation to the residence to encroach approximately 14 feet into the area of the required front-yard setback - was clearly erroneous because City has no discretion to issue a permit in the absence of compliance with the mandatory set-back requirements.

For more information please contact a member of the Real Estate and Construction Law Blog Editorial Team.

Housing shortages throughout California and the economic and social needs of local communities have sparked a growing interest in infill housing, which is higher density housing, often created in the midst of existing neighborhoods. Infill housing can involve the creation or modification of condominiums, apartments, townhouses, and single-family homes. Infill housing represents not only a response to a housing shortage but also an attempt to address other problems facing California communities. Successful infill housing can only be achieved, however, by understanding the problems, needs, and limitations of each individual community.

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For more information please contact a member of the Real Estate and Construction Law Blog Editorial Team.

CEQA:The Environmental Quality Act

(June 29, 2004) 04 C.D.O.S. 5877

By Lori Wider

Introduction

The decision of the Fourth Appellate District in this case reflects a common sense approach to implementing CEQA and its requirements. In upholding an EIR prepared by the City of Irvine for development of the Northern Sphere project on a 7,743-acre site located northeast of the former Marine Corps Air Station at El Toro, the California Court of Appeal agreed with the trial court and rejected all of Petitioner's claims that the EIR was inadequate and should be set aside. Petitioner Defend the Bay raised a number of issues under the following three primary grounds.