Recent Cases - Land Use and Entitlements

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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?

Union of Medical Marijuana Patients, Inc. v. City of Upland (3/25/16, D069293)

In 2007, the City of Upland banned both fixed and mobile medical marijuana dispensaries from any zone within the City’s limits. Presumably this ban applied to mobile dispensaries delivering marijuana into the City from locations outside the City.  However, in 2013, the City adopted an additional ordinance expressly prohibiting deliveries by mobile dispensaries headquartered outside the City.  The Union of Medical Marijuana Patients, Inc., challenged the 2013 ordinance, arguing the City was required to undertake a preliminary review of environmental impacts under the California Environmental Quality Act prior to its adoption.  The Union asserted that the ordinance had foreseeable environmental effects, including travel by residents seeking medical marijuana outside the City and increased electrical use, water consumption and waste due to higher levels of indoor marijuana cultivation.  The Court of Appeal found that, because the 2013 ordinance merely restated the 2007 ordinance, it did not constitute a “project” under CEQA and was therefore exempt from review.  Additionally, the environmental impacts cited by the Union were too speculative for the 2013 ordinance to be considered a project.
Continue Reading Challenge to Ordinance Prohibiting Mobile Medical Marijuana Dispensaries Goes Up in Smoke

California Building Industry Association, et al. v. City of San Jose, et al., (2016)

On February 29, 2016, the Supreme Court of the United States denied the California Building Industry’s…
Continue Reading Supreme Court Denies Certiorari in Challenge to San Jose’s Inclusionary Housing Ordinance; Justice Thomas Suggests The Issue is Far From Settled

Pacific Shores Property Owners Association v. Department of Fish and Wildlife (1/20/16, C070201)

On January 20, 2016, the Court of Appeal for the Second Appellate District of California ruled that where a state agency assumes control of a local flood control process, and it determines to provide less flood protection than historically provided by a local agency in order to protect environmental resources, the state agency is liable in inverse condemnation for a physical taking of plaintiffs’ property, and not liable for a regulatory one. However, the agency also acquires a flowage easement as a result of the taking and the compensation provided to the property‑owners.
Continue Reading State Agency’s Intentional Flooding for Environmental Protection Results in Physical Taking of Private Property – Strict Liability Applies

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)

Paulek v. Western Riverside County Regional Conservation Authority (Anheuser-Busch, LLC, Real Party in Interest) (6/19/2015, 4th Civil No. B253935) (opn. modified on denial of rehearing, http://www.courts.ca.gov/opinions/documents/E059133M.PDF.)

In Paulek v. Western Riverside County Regional Conservation Authority, the California Court of Appeals, Fourth District, held that removal of the protected status from a parcel of land still needs to comply with the environmental review requirement of the California Environmental Quality Act (CEQA).  In doing so, the court concluded that the Western Riverside County Regional Conservation Authority’s (“Conservation Authority”) re-classification of land was a fundamental land use decision, akin to a change in zoning laws or a municipal general plan.  …
Continue Reading Changing Protected Status of Land Requires CEQA Compliance

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

In California Building Industry Association v. City of San Jose (Case No. S212072, filed June 15, 2015), the California Supreme Court upheld an inclusionary housing ordinance imposing affordable housing requirements as a valid exercise of a municipality’s police power, rather than an exaction subject to a constitutional takings analysis. …
Continue Reading California Supreme Court Upholds San Jose’s Inclusionary Housing Ordinance

In Save Our Uniquely Rural Community Environment v. County of San Bernardino, __  Cal.App.4th ___, 2015 WL 1259781 (4th Dist., Div. 2, 2015) (SOURCE) , the Fourth District Court of Appeal affirmed the trial court’s decision to significantly reduce plaintiff Save Our Rural Community Environment’s (SOURCE) claim for attorney fees[1] from $231,098 to $19,176.  The Fourth District found that the court’s failure to provide an explicit analysis of its decision was not enough to indicate an abuse of discretion by the trial court.  The court determined reversal of the attorney fees award would require that the record contain some indication that the trial court had considered improper factors, or some evidence that the award had been snatched from “thin air.”…
Continue Reading Abuse of Discretion Not Shown By Court’s Failure To “Show Its Arithmetic” in Significantly Reducing Claimed Attorney Fees in CEQA Litigation

CREED-21 v. City of San Diego (2/18/2015, 4th Civil No. D064186)

The Fourth District Court of Appeal upheld a CEQA exemption related to the City of San Diego’s approval of a project comprising emergency storm drainage repair and site revegetation. The decision addressed various CEQA issues, including the environmental baseline determination, the “common sense” exemption, and the “unusual circumstances” exception.
Continue Reading CEQA “Common Sense” Exemption Upheld; Environmental Baseline for Project Following Improvements Pursuant to an Emergency Exemption Clarified