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
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
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
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
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
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
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
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
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
Giving a green light to construction of a new bridge in the historic Balboa Park, a court has reaffirmed a city’s discretion to interpret and apply its own general plan and zoning ordinances notwithstanding conflicts with specific general plan policies protecting historic resources. Save Our Heritage Organization v. City of San Diego et al., No. … Continue Reading
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
While acknowledging that the City’s affordable housing ordinance was no longer enforceable under the Costa-Hawkins Act, an appellate court dismissed a challenge to a permit condition requiring compliance with the ordinance because the owner failed to seek timely review of the permit condition through administrative mandamus. City of Berkeley v. 1080 Delaware, LLC, 234 Cal.App.4th … Continue Reading
A developer relying on financial hardship to obtain approval of an elder care facility exceeding the square footage permitted in a residential zone must present evidence of such financial hardship to sustain the required finding. Simply averring that a smaller project would not achieve economies of scale needed to provide adequate support services is inadequate. … Continue Reading
In Woody’s Group, Inc. v. City of Newport Beach, the Fourth District Court of Appeal held that the City Council of Newport Beach “violated two basic principles of fairness: you can’t be a judge in your own case, and you can’t change the rules in the middle of the game.” Thus, a council member who … Continue Reading
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 resources … Continue Reading
The tension between demand for high-quality, ubiquitous cell phone service and opposition to cell towers in residential neighborhoods has resulted in significant disputes between wireless carriers and municipalities over siting of such towers. Typically, the fight begins and ends at a city council. Recently, however, one such dispute resulted in a U.S. Supreme Court decision, … Continue Reading
The Northern District of California has struck down part of San Francisco’s rent control ordinance as an unconstitutional taking under the Fifth Amendment in Levin v. City and County of San Francisco, Dist. Court, ND California 2014, No. 3:14-cv-03352-CRB (N.D. Ca Oct 21, 2014). The case may have important implications for monetary exactions in local … Continue Reading
Developers, project opponents, agencies and courts often lose the forest for the trees when considering CEQA issues. A prime example is the conflicting appellate authority and public debate on the question whether a city council’s adoption of a voter-sponsored initiative measure is subject to CEQA. In Tuolumne Jobs & Small Business Alliance v. Superior Court, … Continue Reading
By Stephen Kostka and Barbara Schussman Senate Bill 743, enacted in 2013, was designed to create a process for changing the way traffic impacts are examined under CEQA. The concept was to take the focus away from vehicle delay, measured by level of service, which has resulted in mitigation requirements to increase intersection and road … Continue Reading
An opponent of a Wal-Mart project was thwarted in his attempts to use an admittedly defective hearing notice as a basis for overturning project approvals. The court ruled that his claims were defeated by his failure to present evidence of prejudice and by a prior appellate decision. Roberson v. City of Rialto, No. E058187 (4th … Continue Reading
Santa Cruz County has become the first California county to permanently ban the controversial oil and gas drilling technique known as fracking. By a 5-0 vote, the Board of Supervisors this week amended its General Plan to prohibit all facilities for oil and gas exploration and development within the unincorporated County. The ban replaces a … Continue Reading
“Spot-zoning” refers to the discriminatory zoning of a small parcel that is surrounded by land within a different zone. Some had thought the doctrine only applies where a small parcel is zoned more restrictively than the property surrounding it. But in the recently decided case of Foothill Communities Coalition v. County of Orange, the court … Continue Reading
Affordable housing advocates have lost a claim that Napa’s new General Plan Housing Element required a new environmental impact report. Latinos Unidos de Napa v. City of Napa, No. A134959 (1st Dist., Oct. 10, 2013, publication ordered Nov. 5, 2013). The court upheld the city’s decision that its 2009 Housing Element was not a new … Continue Reading
Can a city protect itself from discriminatory zoning claims by adopting a facially neutral ordinance that treats similarly situated land uses the same? Apparently not, said the Ninth Circuit in Pacific Shores Properties v. City of Newport Beach (Case No. 11-55460), decided on September 20. In a challenge brought against a City of Newport Beach zoning … Continue Reading
