Category Archives: Land Use and Entitlements

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Court of Appeal Upholds Previous Decision, Finding That the Requirements for Exhausting Administrative Remedies Before Challenging CEQA Exemption Did Not Apply

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 … Continue Reading

Governor Schwarzenegger Signs Two Bills Providing Moderate CEQA Improvements

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, … Continue Reading

Coastal Commission’s No Substantial Issue Determination Will Be Upheld Even If Project Technically Not Consistent With LCP

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 … Continue Reading

County Approval of Conditional Siting Agreement Not A Project Approval Under CEQA

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 … Continue Reading

Supreme Court Says Florida’s Beach Preservation Activities Did Not Infringe Shoreline Property Rights; Justices Scrap Over Role Of Courts In Property Takings

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 … Continue Reading

Mitigation Fee Act May Not Require Specific Identification of New Facilities

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 … Continue Reading

San Francisco Distinction Between Drugstores and Supermarkets Goes Up in Smoke

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. … Continue Reading

General And Special Benefits Of Special Assessments Must Be Separated And Quantified

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 … Continue Reading

Notice Of Exemption Triggers A 35-Day Statute Of Limitations Under CEQA Despite Flaws in Underlying Approval

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 … Continue Reading

Supercenters Do Not Automatically Trigger Requirement To Study Urban Decay Effects In An EIR

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 … Continue Reading

Court Invalidates Housing Cap

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.… Continue Reading

Vested Rights Under Prior Permits Do Not Establish CEQA Baseline

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 … Continue Reading

California’s High Court Clarifies CEQA’s 30-Day Statute of Limitations

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 … Continue Reading

Supreme Court Refuses to Hear Palmer Case – Are Inclusionary Zoning Practices Due for Change?

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" … Continue Reading

New Construction General Permit Imposes Significant New Requirements for Storm Water Discharges

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 … Continue Reading

Administrative Fee for Tax Collection is an Unconstitutional Hidden Tax

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 … Continue Reading

Affordable Housing: Could California’s Inclusionary Zoning Laws be on the Brink of Collapse?

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 … Continue Reading


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, … Continue Reading

New Law Automatically Extends Existing Tentative Maps For Two Years, But Also Creates New Pitfalls, And Reduces Some Protections For Recorded Maps

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 … Continue Reading

Checklist Approval Of Design Plan Conforming To Guidelines Established Under Specific Plan Constitutes A Ministerial Act Under CEQA

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 … Continue Reading

Appellate Court Decision Invalidating Unjustified “Affordable Housing In Lieu Fees” Is Now Final

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 … Continue Reading

County Outside Counsel Work Product Not Part of CEQA Record Even If Disclosed To Real Party In Interest

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 … Continue Reading

City Not Required To Identify Specific Location For Off-Site Mitigation Under CEQA Because Standards Sufficient

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 … Continue Reading

Decision Overturning City’s “Affordable Housing in Lieu Fee” Ordered Published by Court of Appeal

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 … Continue Reading

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