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Starting in January 2015, the City will not issue demolition permits for structures more than 45 years old until the applicant has conspicuously posted a demolition notice on the property, sent letters to abutting neighbors and notified the applicable City Council District Office at least 30 days in advance of demolition.  This 30-day delay gives community groups and elected officials additional time to seek the designation of structures or districts as historic resources, in particular as a City “Historic-Cultural Monuments”, before they are razed.
Continue Reading City of Los Angeles Delays Issuance of Demolition Permits for Most Structures More Than 45 Years Old

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

Roberson v. City of Rialto (4th Dist., Div. 2, 5/21/2014, E058187)

The Fourth District Court of Appeal affirmed a judgment denying a petition for writ of mandate to invalidate project approvals for the construction of a large commercial retail center in the City of Rialto (the “City”) to be anchored by a Wal-Mart Supercenter.  The court held that: (1) the appellant had not demonstrated that the trial court committed reversible error by failing to credit the appellant’s “evidence of prejudice,” and (2) appellant’s defective notice claims were barred by res judicata.  The court’s conclusion that the parties were in privity with one another, despite the appellant’s assertion he brought the case in his own interest, demonstrates how defendants may be able to more effectively apply the doctrine of res judicata to bar subsequent claims in litigation under the California Environmental Quality Act.


Continue Reading Collateral Estoppel Bars Copy-Cat Environmental Plaintiff in New Case After Judgment

SPRAWLDEF et al. v. San Francisco Bay Conservation and Development Commission et al., (Waste Connections, Inc.) (1st Dist., Div. 1, 05/28/2014, A137619)

In a precedent-setting decision, the First District Court of Appeal approved the alternatives analysis used to support a massive 35-year landfill expansion in the Suisun Marsh.  Challengers argued that more evidence was required to reject a reduced-size, shorter-term alternative on the ground of economic infeasibility.  The unanimous three-judge panel held that project alternatives can be rejected as infeasible under the California Environmental Quality Act on the basis of cost comparisons submitted by a developer.


Continue Reading Developer-Prepared Cost Comparisons Can Show Economic Infeasibility Under CEQA

Simply stated: “[a] collateral attack is not a substitute for an appeal” reasoned the Second Appellate District Court in Bowman v. California Coastal Commission (2nd Dist., Div. 6, 03/18/2014, B243015) ___Cal.App.2nd___, 2014).[1]  This is a case where the Coastal Commission and environmental groups found common ground challenging a coastal development permit issued by the County of San Luis Obispo.  The case reiterates the importance of exhausting remedies during – not after – permit approval proceedings.  However, the rationale for the decision—collateral estoppel—because of the issuance of a prior coastal development permit at the same location for a similar project was unusual.  Perhaps too unusual, as the court on April 15, 2014 granted a rehearing on its own motion and indicated it contemplated further briefing.
Continue Reading Bright Line Rule: Collateral Estoppel Precludes Attacks on Quasi-Judicial Permit Decisions (But Stay Tuned: Rehearing Granted on the Court’s Own Motion)

Koontz v. St. Johns River Water Management District, No. 11-1447 (U.S. Supreme Court, June 25, 2013)

In Koontz v. St. Johns River Water Management District, the Supreme Court cleared up two important, nagging issues with wide applicability and importance to property owners across the country. First, the 5-member majority, led by Justice Alito, held that a government cannot avoid Fifth Amendment takings liability by denying a permit unless the applicant agrees to a potentially unconstitutional condition. The Court saw this as a procedural ploy to circumvent the effect of Nollan-Dolan. According to Justice Alito, denial of a permit because an applicant will not accept an unconstitutional condition does not insulate the condition from constitutional review any more than when the condition is imposed over the applicant’s objection and the permit is granted. In California, state law already generally allows applicants to accept a permit and still challenge illegal conditions under Nollan-Dolan, but many states saw the granting of the permit as barring a later challenge. The majority’s second ruling was the one that caused sparks to fly with the dissent. Justice Alito held that monetary exactions are subject to the same scrutiny under the Nollan-Dolan “nexus” and “rough proportionality” tests as land dedication requirements. This has generally been the rule for many years in states like California and Texas.


Continue Reading The Supreme Court Gets It Right On Takings – And Wrong – A View from “Inside the Curtilage”: The Property Owner’s Perspective

California already in line with decision; major impact expected in other states

By a 5-4 vote, the conservative wing of the United State Supreme Court answered two big questions in favor of the landowner, changing the way local government can condition development permits across the country. In the Koontz case, a Florida water management district rejected a development permit application because the landowner refused to reduce the size of the project or pay for off-site wetland mitigation. After trial, the lower court awarded damages to the landowner. The Florida Supreme Court reversed, holding that taking claims cannot be brought for permit denials or monetary exactions.


Continue Reading Supreme Court Hands Major Win To Landowners