Category: Planning and Zoning

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State Authorizes Rental Inclusionary Housing Requirements

One of the 15 housing-related bills signed recently by Governor Brown could have especially significant implications for market-rate, residential rental projects in many jurisdictions, as the new legislation, AB 1505, will authorize cities and counties to adopt inclusionary housing requirements for rental units.  AB 1505 takes effect January 1, 2018. Nearly a decade ago, the … Continue Reading

Governor Signs Housing Legislation, Including Streamlining Bill

Governor Brown has signed 15 bills designed to address the State’s severe shortage of affordable housing.  Among its other effects, the legislation will (1) generate funds for affordable housing developments; (2) require cities and counties, as they approve new development, to maintain a supply of adequate housing sites for all levels of income; (3) tighten several provisions in … Continue Reading

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 … Continue Reading

Property Owner Who Proceeds With Development Under a Permit Cannot Challenge Land-Use Conditions Attached to the Permit

The California Supreme Court has ruled that a landowner who accepts the benefits of a permit by constructing the project forfeits the right to challenge land-use conditions imposed on the project. Lynch v. California Coastal Commission (Calif. Supreme Court, No. S221980, July 6, 2017). Factual Background After storms damaged a seawall and stairway structure beneath … Continue Reading

Action to Invalidate Building Permit Barred by Failure to File Timely Challenge to Underlying Site Development Permit

In Citizens for Beach Rights v. City of San Diego, 10 Cal.App.5th 1301 (2017), the court of appeal held that a challenge to issuance of a building permit necessarily included a challenge to the validity of the underlying site development permit, which was barred by the 90-day statute of limitations in Government Code section 65009. … Continue Reading

Court Must Defer to Local Agency Decisions if Supported by Substantial Evidence

The court of appeal reaffirmed that a court should not second guess or “micro-manage” the development decisions of municipal governments; rather, the courts are simply charged with reviewing whether there is substantial evidence in the record supporting the city’s decision. Kutzke v. City of San Diego, 11 Cal. App. 5th 1034 (2017). A developer proposed … Continue Reading

Court of Appeal Rejects CEQA Piecemealing Challenge to County’s “Zoning Modernization” Ordinances

The court in Aptos Council v. County of Santa Cruz  (6th District, No. H042976, April 25, 2017) rejected a lawsuit claiming that three pro-development zoning ordinances the county adopted constituted a single project that that should have been reviewed together in an environmental impact report. The court of appeal found that the zoning ordinances could … Continue Reading

Findings supporting an agency’s administrative decision may mirror statutory language 

Findings in a city council resolution that recite language in the city’s municipal code may be sufficient to demonstrate the reasoning  supporting the council’s decision. Young v. City of Coronado, No. D070210 (4th Dist. April 4, 2017). The owners of a small dwelling in the City of Coronado applied for a permit to demolish the … Continue Reading

Initiative petition must include full text of every provision enacted into law

The Court of Appeal has held that because the proponents of an initiative failed to include the full text of the proposed initiative in the petition, the petition violated Elections Code section 9101 and was therefore invalid. Wilson v. County of Napa, 9 Cal.App.5th 178 (2017) Proponents filed an initiative petition with the Napa County … Continue Reading

California Supreme Court Rejects City’s Attempt To “Evade” General Plan Amendment Referendum

The California Supreme Court has unanimously denied an effort by the City of Orange to defend its approvals for a residential development project despite an intervening public vote that rejected a general plan amendment the city had passed to advance the project. By later attempting to make an “administrative correction” to its general plan, the … Continue Reading

California Coastal Act Trumps Statutes Awarding Density and Height Increase Bonuses

Statutes awarding housing density and height increase bonuses do not take precedence over the California Coastal Act, according to a decision of the Second Circuit Court of Appeal. Kalnel Gardens, LLC v. City of Los Angeles, No. B264434 (2nd Dist. Sept. 29, 2016). Kalnel Gardens, LLC, proposed to build a 15-unit housing complex in Venice. … Continue Reading

City’s Attempt to Use Emergency Ordinance to Scuttle Unpopular Project Violates Developer’s Vested Right

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 … Continue Reading

General Plan’s Size Ranges for Shopping Centers a “Flexible” Policy, Not a Rigid Mandate

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 … Continue Reading

County Board May Not Take Actions That Implement Essential Feature of a Referended Ordinance

When a referendum petition is presented against an ordinance and the board of supervisors decides to “entirely repeal the ordinance” rather than present it to the voters, the board must revoke the challenged ordinance in its entirety and may not take additional action that has the practical effect of implementing the essential feature of the … Continue Reading

Ordinance Prohibiting Mobile Medical Marijuana Dispensaries Was Not a “Project” Under CEQA

A California Court of Appeal has held that a city ordinance prohibiting mobile medical marijuana dispensaries within city boundaries did not constitute a “project” under the California Environmental Quality Act.  Union of Medical Marijuana Patients, Inc. v. City of Upland, 245 Cal.App.4th 1265 (2016). In 2007, the City of Upland adopted a zoning ordinance prohibiting … 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

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 … Continue Reading

$9 Billion School Bond Measure Headed for November 2016 Ballot

Almost a decade has passed since California last authorized a statewide school bond to build new schools and modernize existing schools. There is currently a backlog of over $2 billion in K-12 projects awaiting state funding and an equivalent backlog in funding for high-priority community college projects. Yesterday, the California Secretary of State announced that … Continue Reading

Building Industry Seeks U.S. Supreme Court Review of San Jose Affordable Housing Case

The California Building Industry Association has filed a petition for certiorari in the United States Supreme Court seeking review of the California Supreme Court’s recent decision in California Building Industry Association v. City of San Jose, 61 Cal. 4th 435 (2015). In that decision, the California high court upheld San Jose’s affordable housing ordinance, rejecting … Continue Reading

If At First You Succeed, Don’t Try, Try, Try Again

The Fifth District Court of Appeal has confirmed that the 90-day statute of limitations under the Subdivision Map Act includes takings claims arising out of Map Act decisions. Honchariw v. County of Stanislaus, No. F069145 (Fifth Dist., June 3, 2015).  (Honchariw III) This is the third published decision arising from denial of plaintiff Honchariw’s nine-lot … Continue Reading

Courts Continue to Reject Claims That Reasonable Reliance on Public Agency Representations Establishes an Entitlement to an Existing Use of Property

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 on the … Continue Reading

California Supreme Court Broadly Construes Municipal Power to Enact Affordable Housing Measures

In a case closely watched by home builders, low-income housing advocates, and cities and counties throughout the state, the California Supreme Court has strongly endorsed inclusionary housing ordinances, ruling that they are legally permissible as long as it can be shown the ordinance is reasonably related to the public welfare. California Building Industry Association v. … Continue Reading
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