Risks to Open Space Designated in General Plan’s Open Space Element a Valid Ground for Denying Application to Subdivide a Mobilehome Park

A city may deny a proposed mobilehome park subdivision that is inconsistent with the open space element of its general plan, according to the recent court of appeal decision in Carson Harbor Village, Ltd. v. City of Carson, No. B25011 ( Second Dist. August 21, 2015.)

Carson Harbor Village applied to the City of Carson to convert its mobilehome park to a subdivision of resident-owned lots. The park consists of 420 rental spaces on 70 acres, 17 of which are federally and state regulated wetlands, and the only open space within the city.

Carson City

Carson City

The city rejected the park’s application, finding, among other things, that the proposed subdivision was inconsistent with the open space element of its general plan. Carson Harbor filed suit, and the trial court overturned the city’s decision. The court ruled that inconsistency with the city’s general plan was not a valid ground to deny the application under the state statute which governs mobilehome park conversions, Government Code section 66427.5. The court also found that, in any event, there was no evidence of a conflict.

The court of appeal reversed, holding that inconsistency with the city’s general plan was a legally permissible basis for denying the application, and that the city’s finding of inconsistency was supported by sufficient evidence.

In finding that the mobilehome park conversion statute does not prevent local agencies from considering consistency with the general plan when acting on a conversion application, the court of appeal applied the reasoning of a recent California Supreme Court decision in which the court considered whether a proposal to subdivide a mobilehome park in the coastal zone was subject to the Coastal Act and the Mello Act. Looking to the important policy considerations embodied in the Coastal Act and the Mello Act, the supreme court found that those policies favored an interpretation of the conversion statute that did not strip away Coastal Act and Mello Act jurisdiction over land use within the coastal zone.

The court of appeal found that the policy concerns that underlie the statutes mandating that general plan contain an open space element are strikingly similar to those of the Coastal Act, such as the policy that local agencies take positive action to protect open space, and that open space protection is “necessary” to promote the general welfare and protect the public’s interest in maintaining this limited and valuable resource. The court also noted the California Supreme Court’s ruling that the mobilehome park conversion statute is intended to operate in conjunction with other state laws, and that inconsistencies between statutory provisions must be reconciled whenever possible. Accordingly, the city properly considered whether the proposed conversion was consistent with the open space element of the city’s general plan.

The court also concluded that substantial evidence supported the city’s finding that conversion would be inconsistent with the open space element of its general plan because it would place at risk the state and federally regulated wetlands area within the confines of the mobilehome park. The area had a history of severe oil contamination, mandated annual maintenance totaled around $50,000, and several park residents testified about their reluctance to take on responsibility of maintaining the wetlands. Thus, the city reasonably concluded that the wetlands, which was the city’s only open space, would be at risk from the proposed conversion to a common interest ownership because upon conversion, the residents would become unwilling and unsuitable stewards of that natural resource.


$9 Billion School Bond Measure Headed for November 2016 Ballot

Almost a decade has passed since California last authorized a statewide school bond to build new schools and modernize existing schools. There is currently a backlog of over $2 billion in K-12 projects awaiting state funding and an equivalent backlog in funding for high-priority community college projects.

Yesterday, the California Secretary of State announced that a school bond initiative measure sponsored by Californians for Quality Schools – a coalition of building industry and school district organizations — had received sufficient signatures to qualify for the November 2016 ballot. If passed, the measure would authorize $9 billion in bond funding to build new schools, upgrade existing facilities and invest in community colleges and job training programs.

Under the measure, $3 billion would be allocated for new K-12 construction; $3 billion for K-12 modernization; $2 billion for community colleges (to be administered by the California Community Colleges Chancellor’s Office); $500 million for charter schools; and $500 million for career technical education;

The full text of the initiative can be found here.VOTE copy

Past statewide school bond measures have a strong track record of success, with 14 out of 15 ballot initiatives passing since 1982. Recent polling sponsored by Californians for Quality Schools has indicated that 63% of likely voters would support the measure.

Building Industry Seeks U.S. Supreme Court Review of San Jose Affordable Housing Case

The California Building Industry Association has filed a petition for certiorari in the United States Supreme Court seeking review of the California Supreme Court’s recent decision in California Building Industry Association v. City of San Jose, 61 Cal. 4th 435 (2015). In that decision, the California high court upheld San Jose’s affordable housing ordinance, rejecting the building industry’s argument that requirements imposed on new development to provide affordable housing bore no reasonable relationship to the impact of the development. (Our report on the California Supreme Court decision is available here).

San Jose’s affordable housing ordinance requires developers to set aside 15% of project units for low-income buyers or, alternatively, to pay an in-lieu fee (estimated to exceed $120,000 per unit) or substitute equivalent property. The California Supreme Court ruled it was irrelevant whether the affordable housing requirements were reasonably related to the impact of new development because the requirements did not constitute an “exaction” of property. Accordingly, it held, the constitutional limitations on a public agency’s ability to exact property for public use as a condition of development were inapplicable. Instead, the court found, the ordinance operated like zoning and other land use measures that restrict the use developers may make of their property by regulating matters such as permitted uses, unit size, maximum heights, and development density.

In its petition for certiorari, CBIA contends that the California court’s holding conflicts with the U.S. Supreme Court’s Nollan/Dolan line of cases and, if left in place, will effectively allow the government to circumvent the nexus and proportionality analysis set out in those cases whenever the permit condition is required by legislation. If the Supreme Court accepts the case, it will likely issue a decision by June of 2016.US 2

Ninth Circuit Blocks EPA Approval of Controversial Pesticide

A federal appellate court has invalidated the U.S. EPA’s approval of a new pesticide, sulfoxaflor, concluding that the agency’s decision was based on “flawed and limited data” and was unsupported by substantial evidence. Pollinator Stewardship Council v. United States Environmental Protection Agency, No. 13-722346 (9th Cir., Sept. 10, 2015). Sulfoxaflor is part of a subclass of neonicotinoids, systemic pesticides that are absorbed and distributed throughout the plant’s vascular system into tissues, pollen and nectar. Some studies have linked use of neonicotinoids to Colony Collapse Disorder and associated rapid declines in honey bee populations from long-term exposure to pollen and nectar containing the pesticide. The EPA determined that sulfoxaflor was “very highly toxic” to honey bees and that studies submitted by the applicant regarding its impact on bees were incomplete, but nonetheless approved the product for use at lower concentrations with specified mitigation measures. In setting aside the approval, the court said that “given the precariousness of bee populations, leaving the EPA’s registration of sulfoxaflor in place risks more potential environmental harm than vacating it.” The court’s decision precludes use of the insecticide pending new studies to determine its long-term impacts on bees. Read our full Update on the case here.B33 copy

California Supreme Court Sets Oral Argument in Key CEQA Case

The California Supreme Court has announced that the oral argument in California Building Industry Association v. Bay Area Air Quality Management District will take place on October 7, 2015, in San Francisco.  The CBIA case squarely presents an issue of critical importance under CEQA: is environmental impact analysis under CEQA limited to the effects of a project on the environment or must it also include analysis of the effects of the environment on the project and its occupants? The case involves a challenge to thresholds of significance adopted by BAAQMD to assess air quality impacts of proposed projects.  Bay Area Air Quality Management DistrictOne of the grounds for the challenge to these thresholds was that the Air District had improperly encouraged public agencies to evaluate the impact of existing air quality on future residents of proposed projects, which constituted “CEQA in reverse” and conflicted with several appellate decisions.  The Court of Appeal declined to address this argument, but hinted that there were reasons to question the “continued vitality” of cases holding that such “reverse CEQA” analysis was not required.  The specific issue the Supreme Court identified for consideration and decision is:  Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?  The high court’s decision in the case should be issued within 90 days of the oral argument.  Our discussion of the background and implications of the case is available here.

Failure to Make Findings Specified in Mitigation Fee Act Requires Refund of All Unexpended Development Fees

The Fourth District Court of Appeal has upheld an order requiring refund of over $10 million in accumulated development impact fees because the City’s findings “were mere conclusions, not the specific findings required under the [Mitigation Fee] Act.” Walker v. City of San Clemente, No. G050552 (Fourth Dist., Aug. 28, 2015).

Statutory Requirements. Under the Mitigation Fee Act, Gov’t. Code §§ 66000 et seq., each development fee must be deposited in a separate capital facilities account and may be expended only for the purposes for which it was collected. For all unexpended fees, the agency must make findings every five years that (1) demonstrate a reasonable relationship between the unexpended balance and the purpose for which the fee was charged; (2) identify the sources and funding for any as-yet uncompleted public improvements; and (3) designate the approximate date the agency expects the funding for uncompleted improvements to be deposited in the account. § 66001(d)(1) The Act provides that “[i]f the findings are not made as required by [the Act], the local agency shall refund the moneys in the account” to the current owners of the properties for which the fees were paid. § 66001(d)(2).

800px-San_Clemente_BeachThe Beach Parking Impact Fee. In 1989, the City of San Clemente adopted a “Beach Parking Impact Fee” whose stated purpose was to “mitigate the impact of the increased demand on beach parking caused by new residential development.” For some 20 years, the City collected the fee, but expended very little of it (less than 3%) on beach parking improvements. In 2009, the City Council “receive[d] and file[d]” a “Five-Year Required Report” prepared by staff to justify its continued retention of the fees under the Mitigation Fee Act. Plaintiffs challenged the City’s retention of the fees, contending that the Five-Year Report failed to satisfy the requirements of the Act. Continue Reading

Federal Court Blocks Enforcement of New Clean Water Act Rule

The U.S. District Court for the District of North Dakota yesterday issued a preliminary injunction that bars the EPA and the Army Corps of Engineers from enforcing a new rule defining federal jurisdiction under the Clean Water Act in 13 states.  North Dakota v. U.S. Environmental Protection Agency, 3:15-cv-00059 (D.N.D. Aug. 27, 2015).  The injunction (available here), issued the day before the rule was to go into effect, was sought by and granted in favor of Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.  In all other states, the rule went into effect today.  The court concluded that the states were likely to prevail in the case on the gounds that the EPA had violated its Congressional grant of authority in promulgating the rule and had failed to comply with the Administrative Procedures Act in adopting the rule.  Read our full Update here.


Court Rejects “Gotcha” Theory of Waiver Under Public Records Act

A California appellate court has ruled that inadvertent disclosure of documents containing attorney-client communications in response to a Public Records Act request does not result in a waiver of the privilege. Newark Unified School District v. Superior Court, No. A142963 (1st Dist. Ct. App., August 1, 2015). A contrary interpretation, the court concluded, would not advance the purposes of the statute and would create an irreconcilable conflict with Evidence Code section 912, under which accidental disclosure of attorney-client information does not constitute a “disclosure” triggering its waiver provisions.

Background.Confid - Attorney client priv Two community organizations requested documents from a school district under the Public Records Act. Within hours of releasing the documents, the district realized it had inadvertently included documents containing attorney-client communications. It immediately contacted the recipients, informing them of the inadvertent inclusion and seeking return of the privileged documents. The two organizations refused, contending that disclosure of the documents waived any privileges by operation of section 6254.5 of the Act, which states that disclosure of a public record to any member of the public waives otherwise applicable exemptions.

The Public Records Act broadly grants access by members of the public to all records relating to the public’s business. The Act contains a number of exemptions, including the exemption for records subject to privileges in the Evidence Code, such as the privilege that extends to records containing attorney-client communications.  Section 6254.5 of the Act, however, provides that “Notwithstanding any other provisions of law, whenever a state or local agency discloses a public record which is otherwise exempt from this chapter, to any member of the public, this disclosure shall constitute a waiver of the exemptions” specified in the Act. Continue Reading

District Court Strikes 30-Year Eagle Take Rule

The U.S. District Court for the Northern District of California has invalidated the U.S. Fish and Wildlife Service’s adoption of a new rule increasing the maximum duration of programmatic permits to “take” bald and golden eagles from 5 years to 30 years.  Shearwater v. Ashe, No.14-CV-02830-LHK (N. Dist. Ca, Aug. 11, 2015).  This 30-Year Rule was adopted in response to concerns by wind energy companies that the uncertainty surrounding renewal of programmatic eagle take permits (which allow for the incidental take of eagles from operation of wind turbines) was preventing operators from obtaining financing for wind energy projects that might last up to thirty years.  The Fish and Wildlife Service issued the 30-Year Rule without preparing either an Environmental Assessment or an Environmental Impact Statement under the National Environmental Policy Act, concluding that the 30-Year Rule was categorically exempt.  In striking the rule, the court found that the Service had not demonstrated an adequate basis in the administrative record for its decision not to prepare an EIS or EA and therefore failed to comply with NEPA’s procedural requirements.  Read our full Update here.800px-Golden_Eagle_1

Supplement to Curtin’s California Land Use and Planning Law (34th Ed.) Available as Free Download

The 2015 Supplement to the 34th edition of Curtin’s California Land Use & Planning Law is being made available as a free download on Solano Press.  It can be accessed here: Supplement — Curtin’s California Land Use

2015 SupplementThis Supplement is intended for use in conjunction with Curtin’s California Land Use & Planning Law, Thirty-Fourth Edition (2014), authored by Perkins Coie attorneys Cecily Talbert Barclay and Matthew S. Gray. In lieu of publishing the Thirty-Fifth Edition in 2015, the authors have prepared a Supplement containing analyses of the most important decisions published in 2014 and 2015 (through May 1st) affecting California land use and planning. Chaptering of the Supplement is consistent with the Thirty-Fourth Edition for ease of reference.

The hard-copy version of the 34th edition book is sold out on Solano Press, but it is still available as a Kindle e-book.