Environmental and Land Use Litigation

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

Continuing a trend toward stricter application of the administrative exhaustion doctrine, an appellate court held that plaintiffs could not bring a takings claims against the Coastal Commission because they did not “present the exact issue” during the administrative proceedings. Greene v. California Coastal Commission, 40 Cal.App.5th 1227 (2019).

Plaintiffs’ beachfront duplex bordered the designated

A plaintiff challenging a city council’s interpretation of a local ballot measure was entitled to recover costs and attorney fees when successful on only one cause of action because the primary relief sought was granted. Friends of Spring Street v. Nevada City, 33 Cal.App.5th 1092 (2019).

In 1991, the Kendalls received a Conditional Use Permit

Planning and zoning decisions by a non-legislative body or public official authorized under a municipal code are subject to the 90-day statute of limitations of Government Code section 65009(c)(1), the court of appeal ruled in 1305 Ingraham, LLC v. City of Los Angeles, 32 Cal. App. 5th 1253 (2019).

In June 2016, the planning

A court challenge to a local agency’s decision to grant a coastal development permit becomes moot when the Coastal Commission accepts an appeal of the decision, the California court of appeal ruled in Fudge v. City of Laguna Beach, No. G05571 (4th Dist., Feb. 13, 2019).

In 2017, the Laguna Beach City Council approved

In an unsurprising decision, the Second District Court of Appeal upheld Ventura County’s decision to a deny a use permit that would allow tigers to be kept on property located within a half-mile of a residential area. Hauser v. Ventura County Board of Supervisors, 20 Cal.App.5th 572 (2018).

Background. Plaintiff Irena Hauser applied for a conditional use permit that would allow five tigers to be kept on a 19-acre parcel in an unincorporated area of Ventura County. The proposed project would include several tiger enclosures and an arena within a seven-acre area surrounded by a chain link fence. The plaintiff planned to use the tigers in the entertainment business and transport them for that purpose up to 60 times per year.

Neighbors strongly opposed the project and presented a petition to the county which contained roughly 11,000 signatures in opposition.  The planning commission denied the permit application, and on appeal, the board of supervisors did the same, finding the plaintiff failed to prove two elements necessary for a use permit: that the project was compatible with the planned uses in the general area, and that it was not detrimental to the public interest, health, safety or welfare.

The Court of Appeal’s Decision. The court of appeal upheld the trial court’s decision rejecting the plaintiff’s challenge. The court first explained that, as the permit applicant, the plaintiff had the burden to show she was legally entitled to a use permit. She had, however, failed to persuade the board of supervisors that the requirements for a use permit were met. In passing, the court stated that the board’s determination that the requirements were not met did not have to be supported by substantial evidence because it is the absence of evidence of sufficient weight and credibility to convince the trier of fact that leads to that conclusion. Nevertheless, the court undertook a thorough review of the record and found that the board’s decision was amply supported by substantial evidence.
Continue Reading Applicant Challenging Denial of Use Permit Must Prove It Is Legally Entitled to Permit