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

The 2015 Supplement to the 34th edition of Curtin’s California Land Use & Planning Law is being made available as a free download on Solano Press.  It can be accessed here: Supplement — Curtin’s California Land Use

2015 SupplementThis Supplement is intended for use in conjunction with Curtin’s California Land Use & Planning Law, Thirty-Fourth

Property owners should not rely on courts to uphold equitable estoppel claims against local agencies to establish an entitlement to an existing use of property. Under the doctrine of equitable estoppel, a public agency may be barred, or “estopped,” from asserting that an existing use of property is invalid if the property owner justifiably relied

A city cannot prohibit development on more than one-third of an otherwise developable site in anticipation of future condemnation of that portion of the property. Such a restriction denies the landowner all economically beneficial use of the restricted land and constitutes a taking requiring just compensation. Jefferson Street Ventures, LLC v. City of Indio, No. G049899 (4th App. Dist., April 21, 2015).

Jefferson Street Ventures owned a vacant 27-acre parcel that included the site of a long-proposed highway interchange project. In 2005, Jefferson submitted a proposal to the City to develop a retail shopping center on its entire parcel. At the time, the federal and state agencies involved in the interchange project were in the process of completing environmental reviews to satisfy NEPA and CEQA. The City could not acquire property for the interchange until the environmental reviews were completed.

The City Council did not approve development of the entire 27-acre parcel, but rather conditioned approval of Jefferson’s master plan on leaving nine acres for the future interchange undeveloped and reserving a two-acre temporary no-build area for a highway off-ramp during the interchange construction. The City Council included the conditions based on the advice of its staff that it would be much more expensive to acquire property for the interchange project if Jefferson developed the entire site because the City would then incur additional condemnation costs for demolition of buildings and relocation of tenants

The court of appeal held that the City’s conditional approval of Jefferson’s development plan resulted in an uncompensated taking of the 11 acres. A regulation that deprives a landowner of all economically beneficial or productive use of its property is a per se taking that requires just compensation. Under all applicable land use regulations, Jefferson’s entire 27-acre property was developable, and its master plan was in full compliance with governing regulations.
Continue Reading Don’t Bank On It: Court of Appeal Takes Issue with City’s Development Prohibition

The Environmental Protection Agency and Army Corps of Engineers published a final rule on May 27, 2015 to redefine the critically important term “Waters of the United States” under the federal Clean Water Act.

  • The rule explains the agencies’ jurisdiction with respect to “tributaries” and “adjacent” waters and comes amidst considerable debate over where to

Perkins Coie attorneys — most of whom contribute regularly to this report — recently presented the 25th Annual Land Use & Development Law Breakfast Briefing in Palo Alto, San Francisco and Walnut Creek.   The presentation focused on 2014 developments and trends in land use, affordable housing, school facilities financing, CEQA, real estate and environmental and