The court of appeal held that an attorney’s actions in filing and prosecuting a meritless challenge to construction of a single-family home supported a claim for malicious prosecution. Jenkins v. Brandt-Hawley, No A162852 (1st Dist., Dec 28, 2022).

The underlying lawsuit challenged permits issued by the Town of San Anselmo allowing the Jenkins family to demolish a small home and accessory cottage and to build a new home and detached studio on their property.  The petition for writ of mandate alleged that the town had violated CEQA, its Municipal Code, and its general plan. After a hearing on the petition, the trial court upheld the town’s actions. The Jenkinses subsequently filed a complaint for malicious prosecution against petitioners’ attorney and law firm.    The defendants responded with a motion to strike the complaint under the “anti-SLAPP” statute asserting the claims in the underlying case amounted to protected speech on a matter of public concern.  The court of appeal upheld the trial court’s decision denying the motion, finding the Jenkinses had shown a probability they would prevail on their claim for malicious prosecution.

The underlying lawsuit had been decided in the Jenkinses’ favor; the evidence showed that probable cause to file the underlying lawsuit was absent; and the record contained abundant evidence that the attorney for the plaintiff knew the claims in the petition were “untenable.”  In its concluding observations, the court rejected suggestions in several amicus briefs that CEQA litigation should be essentially insulated from malicious prosecution claims because CEQA is too uncertain and complicated to support such a claim, finding no basis for such a “carve out.”  The court also pointed to its opinion in another CEQA case, Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700 (summarized below), in which it described the possible misuse of CEQA actions and the harm they can cause as “a formidable tool of obstruction.”  The suit against the Jenkinses, the court observed, had “nothing to do with environmental protection and everything to do with the privacy and aesthetic design concerns of several of the Jenkinses neighbors.”

A suit seeking to set aside land-use approvals based on an alleged bribery scheme in violation of the Political Reform Act was subject to the 90-day statute of limitations for actions challenging land-use decisions. AIDS Healthcare Foundation v. City of Los Angeles, No. B311144 (2nd Dist., Dec. 14, 2022).

A federal criminal investigation revealed that two former Los Angeles City Councilmembers engaged in bribery and other corruption in connection with their work on the City Council’s Planning and Land Use Management committee, which makes recommendations to the Council concerning land-use decisions.

Petitioner sued under the Political Reform Act, seeking to set aside building permits issued during multiple years while the two Councilmembers allegedly were the beneficiaries of an ongoing bribery scheme. Petitioner contended that its PRA claims were subject to the three-year catch-all statute of limitations (CCP § 338(a)). The City countered that the more specific 90-day statute of limitation in Government Code § 65009 applied.

The court agreed with the City, finding that section 65009’s 90-day limitations period clearly encompassed the building permits petitioner sought to set aside. Section 65009 “contains no exceptions,” and uses “unqualified language manifesting a plain intent on the part of the Legislature to limit the time to seek review’ of an agency decision.” There was no exception for actions filed under the PRA.

The court rejected petitioner’s argument that the gravamen of its action was not principally a challenge to the permit decisions, but instead was “a challenge to the corruption.” It reasoned that while petitioner relied on the PRA as the basis for its action, the gravamen of its suit was an attack on, or review of, the committee’s decisions related to permitting and real estate project approvals, and Section 65009 applied directly to that challenge.

On February 15, 2023, the California Supreme Court issued an order depublishing this decision. While still binding on the parties to the case, the decision can no longer be cited or relied on as authority.

The City of Thousand Oaks violated the Ralph M. Brown Act by adopting a CEQA exemption without having listed the exemption as an item on its agenda for at least 72 hours before the meeting. G.I. Industries v. City of Thousand Oaks 84 Cal. App. 5th 814 (2022).     

Petitioner challenged a decision by the City to approve an exclusive solid waste franchise agreement with a competing entity. Petitioner asserted that the City violated the Brown Act by approving a Notice of Exemption under CEQA without adequate notice to the public.

The City posted an agenda that included consideration of the proposed franchise agreement, but the agenda made no mention of CEQA. It was not until the day of the City council meeting that a supplemental item was posted giving notice of the staff’s recommendation that the City find the agreement to be categorically exempt from CEQA. At the meeting, the City Council approved the franchise agreement and the CEQA exemption.

The court held that the Brown Act applied to the City’s determination that the franchise agreement was categorically exempt under CEQA, and that 72 hours’ prior notice was accordingly required. The court reasoned that the City’s CEQA determination was an item of business at a regular meeting of a local legislative body and the failure to provide the required notice of this agenda item deprived the public of a meaningful opportunity to be heard.

The court rejected the City’s claim that its adoption of the CEQA exemption was a component of the agenda item awarding the franchise agreement, reasoning that the CEQA exemption involved a separate action by the City and concerned discrete, significant issues of CEQA compliance. The court also rejected the City’s contention that the Brown Act was inapplicable because CEQA does not require a public hearing for a determination that a project is exempt. The Brown Act is not limited to actions that require a public hearing. The court observed that a finding that a project is exempt from CEQA is not a minor matter as such findings foreclose any analysis of the project’s environmental impact. The City’s determination regarding the CEQA exemption was “an aspect of the People’s business” and had to be appropriately included as an item on the City council agenda.

The City also argued that applying the Brown Act to a CEQA exemption would place an intolerable burden on local agencies, requiring basic administrative decisions such as the purchase of paperclips to be “agendized.” The Court dismissed this claim, pointing out that the specific section of the Brown Act at issue applies only to an item of business to be discussed at a regular meeting of the legislative body, and that “the vast majority of the City’s day-to-day business is not transacted or discussed at a regular meeting of the legislative body.” Moreover, for a categorical exemption to apply, the activity must qualify as a “project” under CEQA and “[m]ost of the City’s activities would not qualify as a project because they have no potential environmental effect.”

Under the Housing Accountability Act, a proposed residential development should be evaluated under the land-use standards that applied when the original application was deemed complete, not those at the time of the final decision on the project. Save Lafayette v. City of Lafayette, 85 Cal.App.5th 842 (2022).

In 2011, a developer applied for approval of a 315-unit apartment project on land zoned Administrative/Professional Office — a designation that allowed multi-family development — and the City certified an EIR for the project. Before final action on the project, the developer and the City agreed to suspend processing while the developer pursued an alternative, 45-unit single-family proposal. In 2018, the City approved the single-family project, but the approval was successfully overturned by referendum. A month after the referendum, the City changed the General Plan land-use designation and zoning of the subject parcel to single-family residential. The developer then reactivated the 2011 project application and the City approved the 315-unit apartment project.

Petitioners challenged the approval, contending that the project was inconsistent with the site’s General Plan designation and zoning when approved. Petitioners relied on the Permit Streamlining Act, which provides that if an agency fails to approve or disapprove a development project within 180 or 270 days after certifying an EIR, the applicant may provide public notice that the project will be deemed approved if the agency does not act within 60 days of the notice. Petitioners argued that because the developer did not pursue this course of action, the City’s power to approve the original application lapsed by operation of law.

The court rejected this reading of the PSA, pointing out that the PSA nowhere states that an application is deemed withdrawn, disapproved, or resubmitted if the agency fails to act within the PSA’s time limits. Under the PSA’s statutory scheme, the consequence of an agency’s failure to timely act is that a project is deemed approved, not disapproved.

The court also found that petitioners’ reading conflicted with the Housing Accountability Act’s goal of encouraging development of affordable housing by “curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects.” These considerations, together with the absence of any legal authority providing that an agency loses power to act on a project application within a particular time period, weighed in favor of applying the standards in effect at the time of the original application rather than at some later date after the City had changed the zoning of the property.

The City did not abuse its discretion in finding a residential project to be consistent with the City’s development standards since the project qualified for exemption from those standards under the Density Bonus Law. Bankers Hill 150 v. City of San Diego 74 Cal. App. 5th 755 (2022).

Petitioner, a community association, challenged a decision by the City of San Diego to approve a development application for a 20-story mixed-use building project with a total of 204 dwelling units in the Bankers Hill neighborhood near downtown San Diego.

Petitioner claimed the project was inconsistent with development standards and policies in the City’s General Plan and the Uptown Community Plan, arguing that the project’s design improperly obstructed views, failed to complement neighboring Balboa Park, and towered over adjacent smaller-scale buildings.

The court found that petitioners claims “sidestep[ed] a critical factor in the City’s decision-making process: the application of . . . the Density Bonus Law” (Gov. Code §§ 65915 et seq.), which is designed to encourage the construction of affordable housing. Under the Density Bonus Law, a developer may add additional housing units beyond the zoned capacity and take advantage of other incentives in exchange for including deed-restricted affordable units in a project. If a developer meets the requirements of the Density Bonus Law, the City must permit the increased density and waive any conflicting local development standards, unless certain limited exceptions apply.

Here, the developer included 18 units with deed restrictions to make them affordable to low-income households. With the density bonus, the developer sought to exceed the maximum zoned capacity of 147 units by 57 units. With the development incentives, the developer sought to avoid a setback on one street, eliminate two on-site loading spaces for trucks, and reduce the number of private storage areas for residents. The City could deny the project as inconsistent with these development standards only if it made specific findings that their waiver would (1) not result in any actual cost reductions; (2) adversely affect public health or safety; (3) be contrary to state or federal law. The City Council found there was no substantial evidence to support the denial of the requested incentives.

The court upheld the City Council’s determinations. The City did not abuse its discretion in finding that several policies cited by petitioner did not apply to the project and the record supported the City’s conclusion that the project did not conflict with the policies that were applicable. The record also demonstrated that including the affordable units in the project was only possible if the building was designed as proposed. If the City had denied the requested incentives or failed to waive the inconsistent design standards, it would have physically precluded construction of the project, including the affordable units–which would defeat the Density Bonus Law’s goal of increasing affordable housing.

The City Council properly concluded that the project qualified for the benefits of the Density Bonus Law and that the evidence did not justify refusal to waive the local development standards.

A traffic mitigation fee required for construction of a single-family home did not amount to an “unconstitutional condition” in violation of the takings clause of the Fifth Amendment, and the County complied with the Mitigation Fee Act in assessing the fee. Sheetz v. County of El Dorado, No. C093682 (4th Dist., Oct 19, 2022).

George Sheetz challenged a traffic mitigation fee imposed as a condition to a building permit for a new home on his property. He argued that the fee violated the unconstitutional conditions doctrine applied in the land-use context by Nolan and Dolan and that the County violated the Mitigation Fee Act in adopting and imposing the fee.

Under the unconstitutional conditions doctrine, the government may not ask a person to give up a constitutional right — such as the right to receive just compensation for a taking — in exchange for a development permit where the condition has little or no relationship to the development. Under Nolan and Dolan, there must be an essential nexus between the exaction and the governmental interest sought to be advanced and the government must make an individualized determination that the exaction is related both in nature and extent to the project’s impact. In Koontz v. St. John’s River Management Dist., 570 U.S. 595 (2013), the Court held that the doctrine applies to development fees, which it found to be “functionally equivalent” to the property dedications involved in Nolan and Dolan.                                                                                         

The California Supreme Court has held that the requirements of Nolan and Dolan apply only to fees imposed on an individualized or ad hoc basis, not to fees that are generally applicable to a broad class of property owners through legislative action. Relying on this authority, the Court of Appeal concluded that the unconstitutional conditions doctrine did not apply in this case because the traffic fee was imposed under a legislatively authorized fee program that generally applied to all new residential development within the County.

In support of his Mitigation Fee Act claim, Sheetz argued that the County had improperly failed to evaluate the traffic impacts attributable to his specific project in violation of section 66001(b) of the Act, which provides that the “local agency shall determine how there is a reasonable relationship between the amount of the fee and the cost of the public facility or portion [thereof] attributable to the development on which the fee is imposed.” Relying again on prior caselaw, the Court of Appeal held that section 66001(b) applies only to adjudicatory, case-by-case decisions to impose a fee on a particular project, not to legislatively adopted fees such as the traffic fee in question.

Assessing Sheetz’s broader claim that the County did not comply with the Mitigation Fee Act traffic in adopting and calculating the fee, the court found no error. The fee was adopted as part of the County’s 2004 General Plan, guided by policies designed to limit traffic congestion, including ensuring that roadway improvements were developed concurrently with new development. The fee was based on a transportation study that evaluated a range of factors, including the expected increase in traffic volumes (average daily vehicle trips) from each type of new development based on data published in the Institute of Transportation Engineers Trip Generation Manual, 7th Edition. The record reflected that the County considered the relevant factors and demonstrated a rational connection between those factors and the fee imposed. The limited portions of the record relied upon by Sheetz did not demonstrate that the fee was arbitrary, entirely lacking in evidentiary support, or otherwise invalid under the deferential standard applied to legislatively adopted fees.

­­The Ninth Circuit held that statutory language defining the scope of operations of Twitchell Dam was sufficiently broad to potentially include releases of water to facilitate migration of Southern California Steelhead to the ocean. San Luis Obispo Coastkeeper v. Santa Maria Valley Water Conservation District, No. 21-55479 (9th Cir., Sept. 23, 2022).

Environmental groups sued the agencies that operate the Twitchell Dam in San Luis Obispo County arguing that its operation interfered with endangered Southern California Steelhead migration and constituted an unlawful take under the Endangered Species Act. The groups contended that releases of water from the dam designed to maximize percolation in the riverbed resulted in insufficient flow to the Santa Maria River to sustain Southern California Steelhead migration to the ocean, preventing them from completing their reproductive cycle. They sought an order requiring properly timed releases to support Steelhead migration and reproduction.

Twitchell Dam was constructed in 1958 as authorized by Public Law 774 for the principal purpose of recharging the Santa Maria River Valley’s groundwater aquifer and minimizing the threat of flood damage. The District Court granted summary judgment to the agencies on the ground that PL 774 did not give them discretion to release water from Twitchell Dam for protection of endangered species,

The Ninth Circuit reversed, observing that PL 774 authorized Twitchell Dam to be operated for “other purposes” in addition to the enumerated purposes of “irrigation and the conservation of water, [and] flood control.” This expansive language, the court said, reflected congressional intent to grant the agencies authority to use the dam for a variety of purposes, including adjusting operations to accommodate changed circumstances such as the enactment of new laws. The court cited other instances in which Congress had used limiting rather than broad language in defining permissible dam operations. In the case of Twitchell Dam, Congress expressly provided that the dam could be used for purposes other than those specified in the statute.

The court acknowledged that PL 774 also required the agencies to operate the dam “substantially in accordance with” the plans and recommendations in the Secretary of the Interior’s Report, which contained a recommended flow rate for water releases. To avoid take of Southern California Steelhead, the dam’s flow rate would need to deviate slightly from the recommended flow rate at certain times during the year. But this, the court concluded, was consistent with the text of the statute, which required only substantial compliance rather than strict compliance with the Secretary’s Report.

Because PL 774 gave the agencies discretion to operate Twitchell Dam for purposes other than irrigation, conservation, and flood control, it was error for the District Court to grant summary judgment on the ground that the law did not provide that authority. However, the Ninth Circuit did not decide whether those purposes included adjusting water discharges to support Southern California Steelhead migration, leaving that issue to be considered by the District Court in the first instance.

A CEQA challenge to water allocations by the City of Los Angeles and its Department of Water and Power was barred by the statute of limitations because the allocations were under leases approved years earlier. County of Mono v. City of Los Angeles, 81 Cal.App.5th 657 (2022).

In 2010, the City approved a set of substantially identical leases covering about 6,100 acres of land owned by the City in Mono County. The City’s determination that the leases were categorically exempt from CEQA was not challenged. The leases provided that any supply of water by the City to the leased premises was conditioned upon the quantity in supply at any given time, and that “the amount and availability of water, if any, shall at all times be determined solely by the City of Los Angeles.”

Over the following eight years, the City provided varying amounts of water to lessees on an annual basis, ranging from zero to 5.4 acre-feet. In March 2018, the City sent lessees copies of a proposed new form of lease — termed the “Proposed Dry Leases” — under which the City would not furnish irrigation water but would, from time to time, provide “excess water” for spreading on the leased land. It also notified lessees that it was performing CEQA review of the Proposed Dry Leases and that the 2010 leases would remain operative in holdover status until completion of that review. In May 2018, the City informed lessees that the 2018-19 allocation under the 2010 leases would be 0.71 acre-feet per lease.

The County of Mono, one of the lessees, filed suit contending that the City improperly failed to conduct CEQA review before deciding upon the 2018-19 allocation because the allocation constituted a “new reduced water project,” either on its own or as part of the Proposed Dry Leases.

The Court of Appeal was unpersuaded. Examining the history of water allocations under the 2010 leases, the court found no indication that the 2018-19 allocation represented “a turning point toward a low-water policy or Proposed Dry Leases.” It rejected, as unsupported by the evidence, the County’s claim that the City’s prior water allocations had been closely tied to the snowpack and anticipated runoff and that the 2018-19 allocation represented a departure from this practice. Rather, the allocations were only loosely tied to snowpack and runoff estimates and depended on other factors, including the City’s own needs and conservation practices.  

The court also dismissed the County’s claim that the timing of the 2018-19 allocation relative to the Proposed Dry Leases indicated the City was engaging in de facto implementation of proposed new leases before completing CEQA review. The court pointed out that the City had announced its intention to perform environmental review before approving the new leases and expressly committed to abiding by the 2010 leases while proceeding with that review. The 2018-19 allocation was both within the City’s authority under the 2010 leases and consistent with its prior allocation practices.

Because Mono County’s suit was filed years after the approval of the 2010 leases, it was time-barred. The fact that the 2018-19 allocation was a discretionary decision did not remove it from the ambit of the project approved as part of the 2010 leases, as those leases plainly gave the City authority to make such subsequent discretionary decisions. If Mono County believed the reduction of water allocations in specific years would constitute a substantial change in practice that could have significant environmental effects, it should have raised that argument in 2010 when the City approved the leases that gave it authority to make such decisions.

The court of appeal held that the City’s determination that a mixed-use development project was consistent with applicable general plans policies and standards was supported by substantial evidence. Old East Davis Neighborhood Association v. City of Davis, 43 Cal. App. 5th 895 (2022). 

The Trackside Project is a planned four-story, 48,000-square-foot mixed-use building located in a “transition area” between the Downtown Core and the Old East Davis residential neighborhood.  Under the City’s General Plan, new buildings must “maintain scale transition,” as well as provide an “architectural ‘fit’ with existing scale for new development project[s].” The main issue on appeal was whether substantial evidence supported the City’s finding that Trackside met the “transition” requirements.

Reviewing the applicable policies for promoting, guiding, and regulating growth in the project area, the court observed that they did not provide a formulistic method for determining whether a proposed structure constituted a transition. Rather, this determination relied on subjective measures such as “architectural ‘fit,’” “appropriate scale and character,” and “sensitiv[ity] to the area’s traditional scale and character.”

The key policy at issue — transition — was thus “largely amorphous,” and the dispute was over conflicting evidence on matters such as “do the step-backs, mass shifting, extra wide alley, and other factors create an ‘appropriate scale’ that is ‘sensitive to the area’s traditional scale and character’”?  Under the governing standard of review, the City’s determinations of consistency with the relevant plans could be set aside only if “a reasonable person could not have reached the same conclusion” based on the evidence before the City. Reviewing each of the key consistency determinations, the court found no instances in which a reasonable person could not have reached the same conclusion. Accordingly, the City’s decision was supported by substantial evidence.

The court of appeal held that the Housing Accountability Act (HAA) does not apply to a one-unit single-family home project. Reznitskiy v. County of Marin, 79 Cal.App.5th 1016 (2022). 

Plaintiff applied to the Marin County Planning Commission to build a 4,000-square-foot single-family home on a plot of land in San Anselmo. The Commission denied the application on grounds that the proposed project would adversely affect the existing neighborhood through its relatively large size and environmental effects. Plaintiff sued, arguing that the project was wrongly denied under the HAA. 

On review, the court looked to the structure and purpose of the HAA, observing that the phrase “housing development project” has appeared in the HAA since its inception but has never been fully defined. It found that other references in the statute reflected legislative intent that the statute should apply to a project to construct a “housing development,” not to any project to “develop housing.” Additionally, the stated purpose of the HAA is “to significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects and emergency shelters.” Neither the language of the HAA nor its legislative history supported an interpretation of “housing development project” to include a one-unit single-family home.  Among the core purposes of the HAA is providing for the housing needs of lower income populations by reducing local agencies’ ability to deny higher-density projects — “a scenario that would never apply to a single-unit project.” The court reasoned it was therefore unlikely that the intent of HAA was to give those who could afford to build their own home enhanced protection against rejection of development application based on subjective criteria.