Category: Land Use

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Annexation To District Is Not Authorized For Sole Purpose Of Extending Right To Vote In District Elections

“No taxation without representation”  is a powerful rallying cry, but it’s not enough to justify an application for annexation of territory to a special district, according to recent court of appeal decision. City of Patterson v Turlock Irrigation District  (5th Dist. F067629 June 25, 2014).  The court held that there is no statutory authorization for expansion … Continue Reading

Compliance With FAA Regulations Provides Adequate CEQA Mitigation For Aviation Safety Impacts

Reliance on compliance with FAA regulations as a mitigation measure to reduce impacts to air safety to less than significant levels is appropriate under CEQA, according to the Court of Appeal  in Citizens Opposing A Dangerous Environment v. County of Kern, 228 Cal.App.4th 360 (5th Dist. July 25, 2014). Two wind energy companies applied to … Continue Reading

CEQA Compliance Not Required For Council-Adopted Land Use Initiative Measure

Developers, project opponents, agencies and courts often lose the forest for the trees when considering CEQA issues.  A prime example is the conflicting appellate authority and public debate on the question whether a city council’s adoption of a voter-sponsored initiative measure is subject to CEQA. In Tuolumne Jobs & Small Business Alliance v. Superior Court, … Continue Reading

New Proposed CEQA Guidelines on Traffic Impacts Issued: It’s How Far You Go, Not How Slow

By Stephen Kostka and Barbara Schussman Senate Bill 743, enacted in 2013, was designed to create a process for changing the way traffic impacts are examined under CEQA. The concept was to take the focus away from vehicle delay, measured by level of service, which has resulted in mitigation requirements to increase intersection and road … Continue Reading

Renewal of Interim Contracts For Delivery of Central Valley Project Water to Districts an Ongoing Project Exempt from CEQA

In February 2012, the Westlands Water District and related water distribution districts entered into two-year interim renewal contracts with the U.S. Bureau of Reclamation relating to the Bureau’s ongoing provision of Central Valley Project water to the Districts.  The purpose of the interim contracts was to continue the existing terms for water delivery in advance … Continue Reading

Santa Cruz Becomes First County to Ban Fracking

Santa Cruz County has become the first California county to permanently ban the controversial oil and gas drilling technique known as fracking. By a 5-0 vote, the Board of Supervisors this week amended its General Plan to prohibit all facilities for oil and gas exploration and development within the unincorporated County. The ban replaces a … Continue Reading

Conditions of Approval: “No Do-Overs” On A Condition The Landowner Failed To Challenge When First Imposed.

A landowner’s attack on a condition of approval of a development permit was barred by the landowner’s failure to contest the same condition when it was imposed on an earlier permit, according to a recent court of appeal decision.  Bowman v California Coastal Commission, B243015 (2d Dist 2014).  San Luis Obispo County issued a coastal … Continue Reading

Challenge To Annexation Dismissed Due To Failure To Comply With Required Procedures

CEQA and other claims challenging a completed annexation were dismissed because they had not been brought in a reverse validation proceeding.  Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (No. F066544, 1/28/14) The Stanislaus County Local Agency Formation Commission approved annexation of land into the City of Ceres, relying on an EIR the … Continue Reading

Spot Zoning For Senior Housing Project Upheld

“Spot-zoning” refers to the discriminatory zoning of a small parcel that is surrounded by land within a different zone. Some had thought the doctrine only applies where a small parcel is zoned more restrictively than the property surrounding it. But in the recently decided case of Foothill Communities Coalition v. County of Orange, the court … Continue Reading

California Supreme Court Makes It Easier To Challenge Local Affordable Housing Requirements

Under the Mitigation Fee Act, when a city imposes a fee, dedication, reservation or other exaction on a development project, the developer has the right to pay under protest, obtain the necessary project approvals and proceed with construction, while at the same time disputing the legality of the requirement.  In Sterling Park v. City of … Continue Reading

Even After Winning Housing Accountability Act Suit, Developer Denied Attorney Fees

The California Housing Accountability Act — commonly known as the “Anti-NIMBY” statute — restricts a local agency’s ability to disapprove, or require reduced densities in, certain residential projects.  Although the statute provides for attorney fee awards, a recent court of appeal decision shows there is no guarantee a pot of attorney fees will always be … Continue Reading

City Council’s Interpretation of General Plan Prevails Despite Conflict With Plan’s Land Use Map

A city council has sweeping authority to interpret the city’s general plan.  That authority trumped a successful referendum campaign designed to block a residential development project, according to the court’s decision  in Orange Citizens for Parks and Recreation v. Superior Court, Case No. G047013 (4th App. Dist., July 10, 2013).  The court held that the city didn’t need … Continue Reading

Offsite Conservation Easements Are Feasible Mitigation For Loss Of Agricultural Resources According to Appellate Court

The First District Court of Appeal has ruled an EIR inadequate for failure to explore fully the use of conservation easements to mitigate impacts to agricultural resources. Masonite Corporation v. County of Mendocino, No. A134896 (First Dist., July 25, 2013). Mendocino County certified an EIR for a proposed sand and gravel quarry that would have … Continue Reading

Coastal Commission May Not Review City Nuisance Abatement Ordinance Passed In Good Faith

The California Coastal Commission lacks jurisdiction to review a city’s adoption of a nuisance ordinance because a municipality’s enactment of an ordinance is not an appealable action.  However, the city must demonstrate that it exercised its nuisance abatement power, pursuant to Coastal Act section 30005(b), in good faith, and not as a pretext for avoiding its … Continue Reading

County Could Not Make Density Bonus Conditional Upon Compliance With Local Affordable Housing Requirements

A local agency may not condition the availability of a density bonus upon provision of more affordable housing than the minimum required under the State Density Bonus Law.  Latinos Unidos Del Valle De Napa Y Solano v. County of Napa, No. A135094 (First District, July 11, 2013).  California’s Density Bonus Law, Government Code § 65915, … Continue Reading

Large Solar Energy Project Survives Williamson Act And CEQA Challenge

The Sixth District Court of Appeal has given a boost to utility-scale solar projects by rejecting the types of Williamson Act and CEQA challenges that are often brought against those projects.  Save Panoche Valley v. San Benito County, No. HO37599 (6th Dist. June 25, 2013). The case concerns the Panoche Valley Solar Farm, a solar photovoltaic facility in … Continue Reading

CEQA and Land Use Bills — An Update

SB 731 (Steinberg)  CEQA Modernization Act of 2013.  (Last amended May 24, 2013.  Passed to Assembly May 30, 2013)  Aesthetic Impacts in Transit Priority Areas Not Significant. Bill would provide that aesthetic impacts of a residential, mixed-use residential, or employment center project, as defined, within a “transit priority area,” shall not be considered significant impacts … Continue Reading

Legislature Winnows CEQA Bills

Out of 26 CEQA bills introduced early this year, eight have met the Legislature’s May 31 deadline to move from the state Senate to the Assembly or vice versa, and therefore are still considered viable.  (For more details, and an update on these bills, see our June 14 post).  For the most part, these bills … Continue Reading

California Cities and Counties Can “Just Say No” to Medical Marijuana Dispensaries

The California Supreme Court has unanimously upheld a local ban on medical marijuana dispensaries, holding the ban was not preempted by state statutes governing medical marijuana. The decision does not come as a surprise, given that state court of appeal decisions consistently have upheld local land use regulation of dispensaries. In City of Riverside v. … Continue Reading

Federal Agencies Cannot Use Consent Decrees To Adopt Stricter Regulatory Requirements, According to Ninth Circuit

Can a district court “approve resolution of litigation involving a federal agency though a consent decree, which substantially and permanently amends regulations that the agency could only otherwise amend by complying with statutory required rulemaking procedures”?  The Ninth Circuit’s answer was no.  Conservation Northwest v. Sherman (9th Cir. Case No. 11-35729, Apr. 25, 2013).  The case … Continue Reading
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