Land Use

Subscribe to Land Use

A development agreement cannot be adopted by initiative, the California court of appeal ruled in Center for Community Action and Environmental Justice v. City of Moreno Valley, 26 Cal. App. 5th 689 (2018).

The Development Agreement Statute

The Development Agreement Statute (Government Code sections 65864–65869.5) allows a municipal government and a property owner to enter into a contract that vests development rights by freezing the land use regulations applicable to a property. The statute includes procedural and substantive requirements for development agreements, including that “[a] development agreement is a legislative act that shall be approved by ordinance and is subject to referendum.” (Government Code section 65867.5(a).)

Background

The project at issue in this case was a proposed logistics center in Moreno Valley. In 2015, the Moreno Valley City Council approved project entitlements, including a development agreement. Opponents then filed a CEQA lawsuit to challenge the environmental impact report for the project. A group backed by the developer responded by filing a petition for an initiative that would repeal the development agreement ordinance and approve a new development agreement. The initiative development agreement was substantially the same as the agreement the City Council approved for the project. The City Council adopted the initiative, rather than submitting it to the voters. Because voter-sponsored initiatives are not subject to CEQA, no environmental review was completed before the City Council adopted the initiative. Opponents then filed this lawsuit, asserting that a development agreement cannot be adopted by initiative.

The Court’s Decision

Based on the statutory language, statutory scheme, and legislative history, the court determined that the Development Agreement Statute did not permit adoption of a development agreement by initiative.
Continue Reading Development Agreements Cannot Be Adopted By Initiative

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

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…

The Court of Appeal ruled that the Ellis Act preempted measures mandating relocation assistance payments of “the difference between the tenant’s current rent and the prevailing rent for a comparable apartment in San Francisco over a two-year period” because such mitigation constituted a prohibitive price for landlords to exit the rental business. Coyne v. City …

The court of appeal has overturned a local initiative because the City Council failed to agendize its consideration of Walmart’s offer to fund election costs. The court also determined that the initiative measure did not run afoul of the constitutional prohibition against naming or benefitting a corporation, since it applied to any developer of the…

The California Court of Appeal has upheld municipal regulation of telecommunications equipment in the public right-of-way against the argument that such regulations are preempted by state law. T-Mobile West LLC v. City and County of San Francisco, No. A144252 (1st Dist., Sept. 15, 2016).

At issue was a San Francisco ordinance passed in 2011…

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…

The City of Modesto’s General Plan includes a policy providing that certain neighborhoods “should” include a “7-9 acre neighborhood shopping center, containing 60,000 to 100,000 square feet.” The Fifth District Court of Appeal upheld against challenge the city’s determination that development of an approximately 170,000 square foot shopping center on about 18 acres in one…

CEQA generally does not require that public agencies analyze the impact existing environmental conditions might have on a project’s future users or residents, according to the California Supreme Court’s decision in California Building Industry Association v Bay Area Air Quality Management District (S213478, December 17, 2015).  An agency must analyze how environmental conditions might adversely…

A city may deny a proposed mobilehome park subdivision that is inconsistent with the open space element of its general plan, according to the recent court of appeal decision in Carson Harbor Village, Ltd. v. City of Carson, No. B25011 ( Second Dist. August 21, 2015.)

Carson Harbor Village applied to the City of Carson to convert its mobilehome park to a subdivision of resident-owned lots. The park consists of 420 rental spaces on 70 acres, 17 of which are federally and state regulated wetlands, and the only open space within the city.

The city rejected the park’s application, finding, among other things, that the proposed subdivision was inconsistent with the open space element of its general plan. Carson Harbor filed suit, and the trial court overturned the city’s decision. The court ruled that inconsistency with the city’s general plan was not a valid ground to deny the application under the state statute which governs mobilehome park conversions, Government Code section 66427.5. The court also found that, in any event, there was no evidence of a conflict.

The court of appeal reversed, holding that inconsistency with the city’s general plan was a legally permissible basis for denying the application, and that the city’s finding of inconsistency was supported by sufficient evidence.

In finding that the mobilehome park conversion statute does not prevent local agencies from considering consistency with the general plan when acting on a conversion application, the court of appeal applied the reasoning of a recent California Supreme Court decision in which the court considered whether a proposal to subdivide a mobilehome park in the coastal zone was subject to the Coastal Act and the Mello Act. Looking to the important policy considerations embodied in the Coastal Act and the Mello Act, the supreme court found that those policies favored an interpretation of the conversion statute that did not strip away Coastal Act and Mello Act jurisdiction over land use within the coastal zone.
Continue Reading Risks to Open Space Designated in General Plan’s Open Space Element a Valid Ground for Denying Application to Subdivide a Mobilehome Park