Environmental and Land Use Litigation

The Sixth District Court of Appeal held that a medical marijuana dispensary could recover its marijuana plants seized by law enforcement, finding that violation of the ordinance did not render medical marijuana plants “contraband” per se and subject to seizure.  Granny Purps, Inc. v County of Santa Cruz, 54 Cal.App.5th 1 (2020).

Under established caselaw,

The Third Appellate District held that the State Water Resources Control Board has the authority to issue temporary emergency regulations and curtailment orders which establish minimum flow requirements, regulate unreasonable use of water, and protect threatened fish species during drought conditions. Stanford Vina Ranch Irrigation Co. v. State of California, No. C085762 (3rd Dist.,

The court of appeal held that the City’s approval of mixed-used development projects was not an “artificial, arbitrary, or unnecessary barrier[]” to fair housing necessary to support disparate-impact claims under the FHA and FEHA.  AIDS Healthcare Foundation v. City of Los Angeles, No. B303308 (2nd Dist., June 15, 2020).

The City of Los Angeles

Nicholas Honchariw’s battles with the County of Stanislaus over his 9-lot subdivision have now resulted in a fourth published appellate decision. (See our prior reports, County Violates California’s Anti-NIMBY Law by Rejecting Housing Project With No Affordable Units; No Affordable Housing, No Attorney’s Fees Under Housing Accountability Act; and If At First You

An action for breach of a statutory development agreement should be reviewed as a breach-of-contract case, not as an administrative law proceeding in which the court gives deference to the City’s findings. Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, No. 18-16105 (9th Cir., May 26, 2020).

The City of Oakland entered into a statutory development agreement with the plaintiff to redevelop a portion of the decommissioned Oakland Army Base as a commercial shipping terminal. While development agreements generally freeze existing regulations in place, this agreement provided that the city could adopt and apply new regulations if the City determined “based on substantial evidence and after a public hearing that a failure to do so would place existing or future occupants or users . . . neighbors, in a condition substantially dangerous to health or safety.”

Subsequently, in response to public opposition to shipping coal through the terminal, the City Council held public hearings, analyzed evidence presented by experts, and approved an ordinance prohibiting coal shipping. The City Council adopted factual findings in support of its determination that shipment of coal created a substantially dangerous health or safety condition.

The appeal turned on whether the case should be treated as a breach-of-contract action (in which the trial court makes factual findings based on the evidence presented at trial, which are accorded deference on appeal) or as an administrative law proceeding (in which the evidence is limited to the record before the agency and the agency’s factual findings upheld if supported by substantial evidence). The court concluded that administrative law principles should not apply in a breach-of-contract action because, among other things, deferring to the government agency’s findings would “effectively create an escape hatch for the government to walk away from contractual obligations” through “self-serving regulatory findings insulated by judicial deference . . . .”  The court therefore concluded that the trial court owed no deference to the City’s factual determinations and did not err in considering evidence not presented at the public hearings to “shed light on the adequacy of the evidence that was actually before the City Council.”
Continue Reading Suit for Breach of Development Agreement Should Be Treated as a Breach-of-Contract Action, Not an Administrative Law Proceeding

As we previously reported, on April 6, 2020, the California Judicial Council adopted an emergency rule suspending (or “tolling”) the running of statutes of limitations on civil claims during the state of emergency declared by Governor Newsom on March 4, 2020. The emergency rule tolled all civil statutes of limitations from April 6 until 90 days after the Governor declares the state of emergency related to the COVID-19 pandemic to be over.

The Judicial Council has now amended the emergency rule to shorten the tolling period and to set different tolling periods based on the length of the statute of limitations. Under the rule as amended:

  • Statutes of limitations longer than 180 days are tolled from April 6 to October 1, 2020.
  • Statutes of limitations of 180 days are tolled from April 6 to August 3, 2020.

Land Use Claims

The shorter tolling period will apply to statutes of limitations for most claims involving land use decisions (including most claims under the planning and zoning law, CEQA, LAFCO, and the Coastal Act). The amended rule, for example, will effectively add 119 days to the 90-day limitations period for a claim involving planning and zoning decisions (Gov’t Code § 65009(c)), provided the 90-day deadline for that claim had not expired as of April 6, 2020.

The Council’s decision to set specific expiration dates (rather than basing the tolling period on the duration of the COVID-19 emergency) was prompted in part by concerns that the state of emergency potentially could be in effect for years. Suspending deadlines for challenges to governmental approvals for such a period would significantly impair the ability to secure construction financing and have a correspondingly debilitating effect on homebuilding throughout the state.
Continue Reading Judicial Council Shortens Tolling Period for Statutes of Limitations

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