The Ninth Circuit upheld the Federal Aviation Administration’s decision to study only the project and the no action alternative in an EIS for a new passenger terminal. However, the court found the FAA violated NEPA by failing to account for the combined noise that could result from the simultaneous operation of different types of construction
California Allows Housing on Commercial Lands and Limits Required Parking
In what has become a near-annual ritual, California Governor Gavin Newsom has signed into law a large package of bills aimed at addressing the state’s glaring housing shortage. This Update summarizes two key bills in this package (AB 2011 and SB 6) that enable housing development on commercial lands, as well as another important land
Another Court Rules That Special Taxes Proposed By A Citizen-Sponsored Initiative May Be Enacted With A Simple Majority Vote
Another court of appeal has held that local special taxes adopted by a citizen-sponsored initiative do not require two-thirds voter approval. Howard Jarvis Taxpayers Association v. City and County of San Francisco, No. A157983 (1st Dist., Jan. 27, 2021, as modified Feb. 22, 2021).
In June 2018, 51 percent of San Francisco voters passed
Fifth Appellate District Agrees that Special Taxes Enacted by Initiative Do Not Require Two-Thirds Supermajority Vote.
Another court of appeal has held that local special taxes adopted by a citizen-sponsored initiative do not require two-thirds voter approval. City of Fresno v. Fresno Building Healthy Communities, No. F080264. (5th Dist., Dec. 17, 2020).
In 2018, Fresno voters approved Measure P, a citizen-sponsored initiative that imposed a tax to fund improvements
Special Taxes Enacted by Initiative Do Not Require Two-Thirds Supermajority Vote
A court of appeal ruled that provisions of the California Constitution requiring a supermajority vote for special taxes imposed by local government do not apply to a special tax enacted by local initiative. City and County of San Francisco v. All Persons Interested in the Matter of Proposition C, 51 Cal. App. 5th 703
California Courts May Shorten Tolling of Limitations Periods in Land Use Cases Under Emergency Rule
On April 6, 2020, the California Judicial Council adopted Emergency Rule 9, which tolled statutes of limitations on civil causes of action for the duration of the state of emergency declared by Governor Newsom on March 4, 2020, and for 90 days thereafter. The effect of the emergency rule was to suspend the running of
COVID-19 Shelter-In-Place Orders Exempt Activities Necessary for the Construction of Housing
On March 16, 2020, in response to the COVID-19 (coronavirus) global pandemic, seven counties – Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and Santa Cruz – issued orders requiring residents to shelter in place and mandating closure of many businesses. The orders exempt certain “essential” business operations, which include the “construction of housing,” from these restrictions. This article addresses the narrow question whether and to what extent the orders allow or prohibit activities related to the construction of housing.
The exact wording of each order differs slightly, but the substance is the same. Each contains language similar to the following:
For purposes of this Order, individuals may leave their residence to provide any services or perform any work necessary to the operations and maintenance of “Essential Infrastructure,” including, but not limited to, public works construction, construction of housing (in particular affordable housing or housing for individuals experiencing homelessness), airport operations, water, sewer, gas [and] electrical . . . provided that they carry out those services or that work in compliance with Social Distancing Requirements as defined this Section, to the extent possible.
The orders are new and untested. We expect to learn more in the next few days about how the orders will be interpreted and applied. However, applying common-sense meanings in light of the intent of the orders to allow continued homebuilding appears appropriate.
Work “Necessary” to Housing Construction. The orders expressly exempt housing construction activities, as confirmed in notices being distributed by some (but not all) city and county officials. The details of exactly which associated services are exempted is less clear. The California Building Industry Association is taking the position that permit, inspection and other services are also “necessary” to accomplish the construction of housing and therefore exempt, including plan checks, issuance of building and grading permits, inspections for permits and certificates of occupancy, utility hook-ups, and recordation of necessary documents such as mechanics liens, tax liens, easements, financing instruments, covenants, conditions and restrictions, and title transfers. The issue of whether title companies and recordation offices may remain open is especially complicated in light of factors other than these orders, but the position taken by the CBIA comports with the literal language of the orders. Another issue not expressly addressed is whether activities needed for occupancy of a residence, such as appraisals, home inspections, and visits by prospective homebuyers or tenants, may occur. The intent of the orders supports the conclusion that these activities are exempt as well.
Continue Reading COVID-19 Shelter-In-Place Orders Exempt Activities Necessary for the Construction of Housing
U.S. Supreme Court’s Knick Cemetery Decision Buries Williamson – Takings Claimants May Go Directly to Federal Courts
The United States Supreme Court overturned a 34-year-old precedent established by Williamson Planning Comm’n v. Hamilton Bank, holding that landowners pursuing takings claims need not seek redress in state courts before pursuing a federal claim. Knick v. Township of Scott, No. 17–647 (U.S. S.Ct. Jun. 21, 2019).
The Knick decision arose from a
Legislature Seeks To Prevent Local Voters From Enacting Many Types of Pro-Development Initiatives
The California Legislature just sent another “stop me before I vote again” bill to the Governor. Assembly Bill 890 proposes to limit severely the scope of voter-sponsored, pro-development land use initiatives. The Governor has until October 15th to decide whether to sign the bill into law. The actual effect of AB 890, if enacted, may need to be resolved in litigation.
*** Update: On October 15th, Governor Brown vetoed AB 890 ***
The bill would enact new provisions of the Government Code that delegate exclusive authority to city councils and boards of supervisors to determine certain general plan, specific plan and zoning decisions. Courts have determined that when the legislature delegates authority over an issue exclusively to councils and boards, voter action regarding those issues is precluded. However, AB 890 also purports to preserve to the voters their power of referendum, and to allow councils and boards of supervisors to place pro-development measures on the ballot. AB 890 also proposes to prohibit the approval or amendment of a development agreement by initiative, while retaining provisions of existing law which state that a development agreement is a legislative act subject to referendum. AB 890 states that it applies to charter cities as well as general law cities.
The general plan, specific plan and zoning decisions that would be exclusively delegated under AB 890 (and therefore could not be pursued in a voter-sponsored initiative) are those that would:
- Convert a discretionary land use approval necessary for a project to a ministerial approval.
- Change a land use designation or zoning district to a more intensive designation or district, with the most intense use defined as industrial uses, followed by commercial uses, office uses, residential uses, and then agricultural or open-space uses.
- Authorize more intensive land uses within an existing designation or district.
Air District Permit May Be Challenged Under CEQA
In an unsurprising decision, a court of appeal held that CEQA claims may be asserted against an air quality management district. Friends of Outlet Creek v. Mendocino County AQMD, (First Dist. Ct. App., No. A148508 (decided 3/23/17; ordered published 5/25/17)
The Mendocino County Air Quality Management District granted an “Authority to Construct” – a