In Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261, the First District Court of Appeal rejected a series of CEQA challenges to San Francisco’s approval of a conditional use permit for the renovation of a historic cottage and the construction of a three-unit residential building. In upholding the city’s
Public Employees’ Personal E-mail and Text Messages May be Subject to Disclosure under the Public Records Act
The California Supreme Court has held that information relevant to public business contained in emails or text messages stored on private electronic devices of government officials is subject to disclosure under the Public Records Act. City of San Jose v. Superior Court (Smith), No. S218066 (Calif. Supreme Court, March 3, 2017).
The California Public…
CEQA YEAR IN REVIEW 2016
A Summary Of Published Appellate Opinions Under The California Environmental Quality Act
In 2016, the California appellate courts issued published opinions in 21 CEQA cases. In several of those opinions, including a ground-breaking decision by the California Supreme Court, the courts grappled with limits on the scope of required environmental review for a subsequent project…
City’s Attempt to Use Emergency Ordinance to Scuttle Unpopular Project Violates Developer’s Vested Right
In Stewart Enterprises Inc., v. City of Oakland (2016) 248 Cal.App.4th 410 the court of appeal provided important clarification on the limits of a local agency’s ability to use an emergency ordinance to reach back and prohibit a previously-approved project.
Stewart Enterprises involved a proposed crematorium in Oakland. After obtaining administrative zoning clearance for the…
EIR’s Energy Impacts Analysis Fails To Satisfy CEQA’s Requirements
In Ukiah Citizens for Safety First v. City of Ukiah, 248 Cal.App.4th 256 (2016) the First District Court of Appeal concluded that the City of Ukiah’s EIR for a proposed Costco failed to satisfy CEQA’s requirements for evaluating energy impacts.
The project involved the construction of a new Costco store and gas station.
Condemnation Does Not Result in Subdivision of Remaining Property under Map Act
A recent Court of Appeal decision, Save Mt. Diablo v. Contra Costa County, No. A142357 (First Dist., October 7, 2015), provides guidance concerning the concept of a “division” of land under Subdivision Map Act, clarifying that condemnation of portions of a parcel do not result in subdivision of the remaining private areas.
The Map Act requires a property owner to obtain approval of either a parcel map or a final map in order for property to be sold, leased, or used as collateral for financing. The principal purposes of the Map Act are to ensure the orderly development of land, control the design of improvements, guarantee the completion of public facilities, and protect the public from fraud.
In Save Mount Diablo, the Nunns purchased a tract of agricultural property recorded as a single parcel. The Contra Costa Water District (“CCWD”) had previously condemned two intersecting strips of land across the tract, one for a roadway and the other for a pipeline. The two strips effectively divided the Nunn’s property into four separate parcels.
The Nunns initially pursued approval of a parcel map to legally convert the property into four parcels with one remainder parcel. Save Mount Diablo objected to the application, citing potential environmental impacts from resulting development. The Nunns then abandoned the application, instead requesting certificates of compliance for each of the four parcels separated by the CCWD strips. Under section 66499.35 of the Map Act, a certificate of compliance may be issued upon a determination that property was previously divided consistent with the Map Act and local law. These certificates, if issued, would have allowed the Nunns to sell, lease, or finance the four parcels without obtaining approval of a parcel map.
The Nunns argued that the CCWD condemnation of the strips created a lawful “division” of the property into four discrete parcels and that the Nunns were entitled to certificates of compliance to recognize the prior division. The Contra Costa County Board of Supervisors ultimately agreed and ordered the issuance of the certificates. Save Mount Diablo sued to set aside this decision.
Court of Appeal Analysis
The appellate court first considered whether the Nunns were entitled to certificates of compliance based on a prior “de facto” legal division. While acknowledging that the condemnation created separate fee estates in the various portions of the property, the court determined that condemnation did not divide the property for purposes of the Map Act. It stated that “regardless of whether a piece of property can be characterized as a parcel, it is entitled to a certificate of compliance only if it was the result of a prior division recognized by the Act.” The court reasoned that the mere fact that parts of a property do not touch does not mean that a division has been achieved, and noted that, under the Map Act’s definition of “subdivision,” property may be considered a contiguous unit even if it is separated by roads, streets, utility easements, or railroad rights-of-way.
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Second District Court of Appeal Invalidates Approval of Elder Care Facility, Citing Lack of Evidence to Support Zoning Determination
A developer relying on financial hardship to obtain approval of an elder care facility exceeding the square footage permitted in a residential zone must present evidence of such financial hardship to sustain the required finding. Simply averring that a smaller project would not achieve economies of scale needed to provide adequate support services is inadequate. Walnut Acres v. City of Los Angeles, No. B254636 (2nd Dist., April 15, 2015).
In 2006, the City of Los Angeles adopted Municipal Code section 14.3.1 in order to consolidate the land use approvals required for eldercare facilities, including housing for Alzheimer’s/dementia care, assisted living, and skilled nursing. Section 14.3.1 applies as a permitting overlay to a site’s underlying zoning. One required finding is that “strict application of the land use regulations on the subject property would result in practical difficulties or unnecessary hardships…,” the same finding required in many jurisdictions (including Los Angeles) to obtain a zoning variance.
The developer in Walnut Acres sought to construct a 50,289 square-foot, 60-guest room elder care facility in a residential district, with 25 percent of the beds allocated to persons with Alzheimer’s or dementia. Application of the relevant zoning provisions to the site would have limited the facility to 12,600 square feet and 16 guest rooms.
The zoning administrator approved the project over objections from neighbors. To substantiate Section 14.3.1’s “undue hardship” requirement, the zoning administrator found that strict application of the code’s requirements would, among other things “result in significant underutilization of the site and would not permit the operator to achieve the economy of scale required to provide the level of on-site support services and amenities required for the elder care facility’s unique population.” The zoning administrator’s decision was affirmed by the City Council’s Planning and Land Use Management Committee.
Continue Reading Second District Court of Appeal Invalidates Approval of Elder Care Facility, Citing Lack of Evidence to Support Zoning Determination