Land Use and Entitlements

In the months leading to the election, cities and counties began to adopt resolutions and other measures to advance potential rent control measures. In Los Angeles, the City Council approved a Resolution in support of Proposition 10 by a vote of 13-1 last month. The Resolution highlighted the increasingly high rental rates in the area and across California that have created a severe housing affordability crisis. The San Francisco Board of Supervisors approved a similar Resolution in support of Proposition 10 acknowledging the opportunity for policymakers to confront the housing affordability crisis by expanding rent control. On Tuesday, voters defeated Proposition 10 by a vote of 65% to 35%. Notwithstanding this defeat, we anticipate that local governments will continue to explore ways to address housing affordability, including rent control, as a policy priority concern.
Continue Reading Battle for Rent Control May Not be Over

State lawmakers passed over 1,200 bills this year, the most in more than a decade according to sources. Governor Brown signed 1,016 into law as of September 30th. Below is a summary of the bills signed into law regulating the planning and development of housing. The majority will take effect on January 1, 2019.
Continue Reading California Housing Legislation (2017-2018)

WildEarth Guardians v. United States Bureau of Land Management, et al., 870 F.3d 1222 (10th Cir. 2017). WildEarth Guardians and the Sierra Club (collectively, “Plaintiffs”) brought a claim under the Administrative Procedure Act (the “Act”) against the Bureau of Land Management’s (BLM), challenging the BLM’s decision to grant four coal leases in Wyoming’s Powder River Basin. The basin accounts for almost 40 percent of the United States’ total coal production, and the subject leases would extend the life of two mines that provide almost 20 percent of the United States’ annual domestic coal production. Id. at 1227. Plaintiffs alleged the BLM’s determination that the leases would not have a significant effect on national carbon dioxide emissions, as compared to the “No Action” alternative, was arbitrary and capricious because (1) it was not supported by the administrative record and (2) the BLM failed to acquire information “essential to a reasoned choice among alternatives.” Id. at 1233–34. The Tenth Circuit agreed the decision was not supported by the record and remanded to the district court with instructions to enter an order requiring the BLM to revise its Environmental Impact Statement (EIS) and Records of Decision, but refused to vacate the leases themselves. Id. at 1240.
Continue Reading Tenth Circuit Holds Bureau of Land Management Improperly Relied On Unsupported and Irrational Assumption in Analyzing Environmental Impacts of Coal Mining Leases

United States of America v. Osage Wind, LLC et al., 871 F.3d 1078 2017 WL 4109940 (10th Cir. Sept. 18, 2017). Causing heartburn for project applicants developing on tribal land, the Tenth Circuit reversed the District Court for the Northern District of Oklahoma’s grant of summary judgment and determined that the defendants’ large-scale excavation project, involving site modification and the use of excavated rock and soil in the installation of wind turbines, constituted “mining” under federal regulations addressing mineral development on Native American land. Id. at *1. This decision creates new obligations for developers, which could result in delay and additional costs.
Continue Reading Tenth Circuit Takes Expansive View of the Definition of the Term “Mining,” Holding Wind Farm Project Needs Permit Prior to Commencement of Excavation in Tribal Mineral Estate

Barbara Lynch et al. v. California Coastal Commission, Case No. S221980

The California Supreme Court has drawn a deeper line in the sand by (a) refusing to expand the Mitigation Fee Act to cover “land use restrictions” in permit conditions of approval that are unrelated to the project’s construction, and (b) requiring applicants to litigate their objections to final judgment before accepting the benefits of the permit. Though the case involved a Coastal Commission permit, it has broader implications discussed below.

Continue Reading Are You Sure You Want to Challenge That Permit Condition?

Voters this week approved Measure JJJ, otherwise known as the Build Better L.A. initiative (the “Initiative”), which establishes new labor and affordable-housing requirements for developers in Los Angeles seeking discretionary approvals for residential projects.  The Initiative was promoted by the L.A. County Federation of Labor, which cited the City’s inability to meet the increasing need for affordable housing as motivation for the Initiative.
Continue Reading Voters Overwhelmingly Approve ‘Build Better LA’ Initiative Resulting in New Affordable Housing and Local Hiring Requirements For Developers

After several failed attempts in previous years, the Legislature passed and the Governor signed AB 2 (Alejo) on September 22, 2015. (Stats. 2015, ch. 319.) AB 2 authorizes a new structure for tax increment financing—the planning and financing tool that redevelopment agencies (RDAs) had used to support revitalization projects until 2012, when California dissolved the sixty-year-long operation of RDAs.
Continue Reading Redevelopment Strikes Back

In Defend Our Waterfront v. California State Lands Commission (Sept. 17, 2015) __Cal.App.4th __, Case Nos. A141696 & A141697, the California Court of Appeal for the First District upheld the trial court’s grant of a petition for writ of mandate challenging a land exchange with the State Lands Commission in connection with the 8 Washington Street development project in San Francisco. The court held that (i) the petitioners were not required to exhaust administrative remedies due to ineffective notice by the State Lands Commission, and (ii) the exchange agreement was not statutorily exempt from the California Environmental Quality Act (“CEQA”).
Continue Reading State Lands Commission Land Exchanges Not Exempt from CEQA Review Absent a Title or Boundary Dispute; Actual Notice Doesn’t Satisfy CEQA Notice Requirements Under Public Resources Code Section 21177(e)

Schafer v. City of Los Angeles; Triangle Center, LLC, Real Party in Interest (6/17/2015, 3d Civil No. E059133)

The California Court of Appeal, Second District, recently re-affirmed the heightened standard for invoking equitable estoppel against the government.  In Schafer v. City of Los Angeles, the court rejected a claim that the City was estopped from requiring a property owner to abate a long‑standing parking lot use in violation of the City’s zoning code.
Continue Reading High Standard for Invoking Equitable Estoppel Against the Government Reaffirmed

A recent Supreme Court case may have a far-reaching impact on many of the United States’ “rails-to-trails” biking and jogging paths.  In March, the Supreme Court held in an 8-1 decision that rights of way granted to railroad companies during the nineteenth century were mere easements without reversionary interests to the United States government, triggering constitutional Takings Clause issues.
Continue Reading Trails-to-Rails-to-?: The Brandt Case and its Potential Impact on the Nation’s Trails