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 1144 (2015).

In 2004, the City issued a conditional use permit for construction of 51 residential rental units. One of the permit conditions required that 20% of the units be rented at rates affordable to below-median-income households pursuant to the City’s affordable housing ordinance. Market conditions delayed construction of the building for several years, after which the owner declared bankruptcy and the property was acquired by 1080 Delaware through foreclosure. In the interim, the court in Palmer/Sixth Street Properties, L.P. v. City of Los Angeles, 175 Cal. App. 4th 1396 (2009), invalidated an affordable housing ordinance similar to the City’s under the Costa-Hawkins Act, which generally precludes cities from restricting the initial rents that may be charged by landlords.

After 1080 Delaware notified the City that it viewed the affordable housing requirements as unenforceable in light of Palmer/Sixth Street, the City filed suit seeking a declaratory judgment that the permit condition remained valid and enforceable. In response, 1080 Delaware argued that the invalidity of the ordinance on which the permit condition was based necessarily rendered the condition itself invalid.
Continue Reading Failure to Challenge Affordable Housing Condition Barred Subsequent Claim of Invalidity of Enabling Ordinance under Costa-Hawkins Act

The Sixth District Court of Appeal has given a boost to utility-scale solar projects by rejecting the types of Williamson Act and CEQA challenges that are often brought against those projects.  Save Panoche Valley v. San Benito County, No. HO37599 (6th Dist. June 25, 2013).

The case concerns the Panoche Valley Solar Farm, a solar photovoltaic facility in San Benito County.  The project site has been used primarily for cattle grazing, and most of it was under Williamson Act contracts.  The county approved a reduced-scale 399-MW alternative designed to mitigate the environmental impacts of the project as proposed.  Not satisfied, three local groups — Save Panoche Valley, the Audubon Society and the Sierra Club — sued to challenge the approvals.  The court of appeal rejected each of their claims.

Need For Renewable Energy Supported Cancellation Of Williamson Act Contract In The Public Interest. 

The Williamson Act was designed to protect farmers from the economic pressures of encroaching development.  In exchange for entering into a contract with the city or county restricting the property to agricultural uses, the landowner is taxed on the agricultural value of the land, rather than the fair market value (which often accounts for development potential).  A contract must have an initial term of ten years, and an additional year is automatically added every year unless one of the parties gives notice the contract will not be renewed.

Contracts may also be cancelled at any time, provided either the cancellation is consistent with the purposes of the Williamson Act or the cancellation is in the public interest.  The county cancelled the Panoche Valley contracts on public interest grounds.  A public interest cancellation requires two separate findings: (1) other public concerns substantially outweigh the objectives of the Williamson Act and (2) there is no proximate noncontracted land that is available and suitable for the proposed use, or development of the contracted land would provide more contiguous patters of urban development.

Citing the Global Warming Solutions Act of 2006 and the Renewables Portfolio Standard requirements enacted by the State Legislature, the court had little trouble concluding the county’s finding that the public interest in renewable energy outweighed the purpose of the Williamson Act was supported by substantial evidence.  “Though completion of the solar project by itself will not fulfill the state’s renewable energy goals, each additional renewable energy project helps the state advance toward meeting the requirements of the RPS.”

The court then addressed the county’s finding there was no proximate noncontracted land suitable for the proposed use and again found substantial evidence supporting the county’s determination.  It noted that “proximate” land under the Williamson Act means “property close enough to the restricted parcel to serve as a practical alternative for the proposed use.”  The court rejected the opponents’ claim that another potential solar project site was a proximate alternative.  There was evidence before the county showing the alternative was located approximately 60 miles away, in two different counties, was itself encumbered by Williamson Act contracts, and did not appear to be available in any event

Continue Reading Large Solar Energy Project Survives Williamson Act And CEQA Challenge

Navigating the hazardous shoals of writ practice, attorneys often face the question whether a request for preparation of the record extends the very short, 90-day period to file a petition for writ of mandate. Both the Administrative Procedure Act and Code of Civil Procedure § 1094.6 state that a request for the record extends the