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California Land Use Practice

Be ready to advise your clients with confidence and get cutting-edge analysis on all major topics in the complex world of California land use practice.

Be ready to advise your clients with confidence and get cutting-edge analysis on all major topics in the complex world of California land use practice.

  • Sustainability and climate change regulations
  • Affordable housing and density bonuses
  • Adopting and amending general plans and specific plans
  • Takings, exactions, and vested rights
  • Environmental regulation (CEQA) in summary
  • Zoning, variances, and conditional use permits
  • Subdivision Map Act in summary
  • Aesthetic regulation and design review
  • Litigating land use decisions
  • Compliance with wetlands and endangered species laws
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Be ready to advise your clients with confidence and get cutting-edge analysis on all major topics in the complex world of California land use practice.

  • Sustainability and climate change regulations
  • Affordable housing and density bonuses
  • Adopting and amending general plans and specific plans
  • Takings, exactions, and vested rights
  • Environmental regulation (CEQA) in summary
  • Zoning, variances, and conditional use permits
  • Subdivision Map Act in summary
  • Aesthetic regulation and design review
  • Litigating land use decisions
  • Compliance with wetlands and endangered species laws

1

Overview of Land Use Regulation

Adam U. Lindgren

  • I. POLICE POWER: THE SOURCE OF LAND USE AUTHORITY
    • A. Police Power
      • 1. Sources 1.1
      • 2. Scope 1.2
    • B. Limits on Police Power
      • 1. Governmental Purpose 1.3
      • 2. Preemption of Federal and State Laws 1.4
        • a. Federal Preemption 1.5
        • b. State Preemption 1.6
      • 3. First Amendment 1.7
        • a. Speech 1.8
        • b. Religion 1.9
      • 4. Fifth and Fourteenth Amendments 1.10
    • C. Other Sources of Land Use Law 1.11
    • D. Charter Cities Compared to General Law Cities 1.11A
    • E. State Land Use Laws Imposed on Charter Cities 1.11B
  • II. STRUCTURAL HIERARCHY OF LAND USE LAW 1.12
    • A. Does a Federal or State Constitutional Provision or Law Apply and Preempt Local Regulation? 1.13
    • B. Is the Desired Land Use Consistent With the City General Plan? 1.14
    • C. Does the General Plan Require a Specific Plan? 1.15
    • D. Does the Project Comply With the Zoning Code? 1.16
    • E. Does the Project Have the Desired Number and Configuration of Parcels? 1.17
    • F. Does the Project Require Building Permits? If So, Does It Comply With Applicable Building and Development Codes? 1.18
  • III. PLAYERS/PARTIES 1.19
    • A. Primary Land Use Agency
      • 1. City Council or Board of Supervisors 1.20
      • 2. Planning Commission or Agency 1.21
        • a. Responsibilities 1.22
        • b. Meetings 1.23
        • c. Appeal of Commission Decisions 1.24
      • 3. The Land Use and Planning Staff Team; Roles 1.25
        • a. Planning Director 1.26
        • b. City or County Engineer 1.27
        • c. Building Official 1.28
        • d. Code Enforcement Officer 1.29
        • e. City or County Clerk 1.30
        • f. City Manager 1.31
        • g. City Attorney 1.32
    • B. Other Regulatory Agencies With Permit Authority 1.33
    • C. Developers 1.34
    • D. Interested Parties Without Regulatory Authority
      • 1. Local Community, Labor, Business, and Environmental Groups 1.35
      • 2. Other Public Agencies 1.36
  • IV. COMMON STEPS IN THE LAND USE PERMITTING PROCESS 1.37
    • A. Preliminary Preparation 1.38
    • B. Project Design; Project Application 1.39
    • C. Submission of Project Application 1.40
    • D. Review of Project Application 1.41
    • E. Administrative Appeal of Project Decision 1.42
    • F. Judicial Appeal of Project Decision 1.43
  • V. FINDINGS
    • A. Generally 1.44
    • B. Findings Defined 1.45
    • C. Purposes of Findings 1.46
    • D. When Findings Are Required 1.47
      • 1. Legislative Actions 1.48
      • 2. Adjudicative Actions
        • a. Nature of Adjudicative Decisions 1.49
        • b. Appeal of Adjudicative Decisions 1.50
      • 3. Ministerial Actions 1.51
      • 4. Statutorily Required Findings 1.52
    • E. Legally Adequate Findings 1.53
      • 1. Adoption of Findings of Planning Commission, Other Lower Bodies, and Staff 1.54
      • 2. Oral Findings 1.55
      • 3. Boilerplate, Conclusory Findings 1.56
      • 4. Findings Unrelated or Irrelevant to Statutory Findings and Requirements 1.57
    • F. Table: Cases on Findings 1.58

2

General and Specific Plans

Steven T. Mattas

Adam U. Lindgren

  • I. GENERAL PLANS
    • A. General Functions
      • 1. Blueprint for Planning and Development 2.1
      • 2. Establishes Land Use Patterns 2.2
      • 3. Framework for Capital and Infrastructure Improvements 2.3
      • 4. Foundation for Development Impact Fees 2.4
      • 5. Provides CEQA Standards of Significance and Basis for Tiering 2.5
    • B. Mandatory Elements 2.6
      • 1. Land Use 2.7
        • a. Consistency With Airport Land Use Compatibility Plan 2.8
        • b. Consultation With School Districts 2.9
        • c. Consultation With Native American Tribes 2.10
        • d. Sphere of Influence 2.11
      • 2. Circulation 2.12
      • 3. Housing 2.13
        • a. Required Contents 2.14
        • b. Methods of Compliance 2.15
        • c. Land Suitable for Residential Development 2.16
        • d. Substantial Compliance 2.17
        • e. Reduction in Housing Opportunities 2.18
        • f. Periodic Review 2.19
      • 4. Conservation 2.20
      • 5. Open Space 2.21
      • 6. Noise 2.22
      • 7. Safety 2.23
      • 8. Environmental Justice 2.23A
    • C. Permissive Elements 2.24
      • 1. Urban Design 2.25
      • 2. Economic Development 2.26
    • D. Legal Adequacy
      • 1. Completeness 2.27
      • 2. Internal Consistency 2.28
      • 3. Presumption of Validity of Housing Element 2.29
    • E. Consistency of Project With General Plan 2.30
    • F. Adoption and Amendment 2.31
      • 1. Procedure
        • a. Planning Agency and Legislative Body 2.32
        • b. Other Agencies and Entities 2.33
      • 2. Public Hearing; Notice Requirements 2.34
      • 3. Planning Agency Recommendation 2.35
      • 4. City Council or Board of Supervisors Consideration 2.36
      • 5. Maximum Amendments Per Year 2.37
      • 6. Initiation of Adoption or Amendment Process
        • a. By Board of Supervisors or City Council 2.38
        • b. By Planning Staff 2.39
        • c. By Blue Ribbon Commission 2.40
        • d. By Developer or Interest Group 2.41
      • 7. Initiative Measure 2.42
      • 8. Statute of Limitations; Judicial Review 2.43
    • G. Administration 2.44
  • II. SPECIFIC PLANS
    • A. Overview 2.45
      • 1. Advantages 2.46
      • 2. Disadvantages 2.47
    • B. Content of Specific Plans
      • 1. Required Elements 2.48
      • 2. Permissive Content; Organization 2.49
    • C. Design Guidelines 2.50
    • D. Existing Commitments and Constraints 2.51
    • E. Zoning Standards 2.52
    • F. Imposing Conditions of Approval 2.53
    • G. Local Guidelines 2.54
    • H. Consistency With General Plan 2.55
    • I. Relation to Zoning and Other Plans 2.56
    • J. Procedures for Adoption, Amendment, and Repeal 2.57
    • K. Fees 2.58
    • L. CEQA Compliance 2.59
    • M. Referendum and Initiative; Judicial Review 2.60

3

Growth Management

Thomas Jacobson

  • I. INTRODUCTION
    • A. Growth Management Generally 3.1
    • B. History 3.2
    • C. Motivations for Growth Management 3.3
  • II. TYPES OF GROWTH CONTROL MEASURES
    • A. Local Implementation of Growth Measures 3.4
    • B. Residential Growth Limitations 3.5
    • C. Commercial and Industrial Growth Limitations 3.6
    • D. "Anti-Sprawl" Measures 3.7
      • 1. Urban Growth Boundaries (UGBs) 3.8
      • 2. "Smart Growth" 3.9
    • E. Resource-Based Growth Management 3.10
    • F. Voter Approval Requirements 3.11
  • III. GROWTH CONTROL: LEGAL AUTHORITY 3.12
  • IV. GROWTH CONTROL: LEGAL LIMITATIONS 3.13
    • A. Takings
      • 1. Regulatory Takings 3.14
      • 2. Applying the Takings Clause to Growth Control Measures 3.15
    • B. Due Process Challenges 3.16
    • C. Equal Protection Challenges 3.17
    • D. Growth Management and State Housing Law 3.18
      • 1. Challenges Based on Govt C §65008(b)(1)(C) 3.19
      • 2. Challenges Based on Govt C §65913.1 3.20
      • 3. Challenges Based on Govt C §65915 3.21
      • 4. Challenges Based on State "Housing Element" Law 3.22
      • 5. Factual Inquiry in Housing Law Challenges to Growth Control Measures 3.23
    • E. Findings Required for Certain Types of Growth Management Measures 3.24
      • 1. Government Code §65863.6 3.25
      • 2. Government Code §65302.8 3.26
    • F. Unique Characteristics of Growth Management Initiatives 3.27
      • 1. Limitations on Amendment and Repeal 3.28
      • 2. Notice and Hearing Requirements 3.29
      • 3. CEQA Review 3.30

4

Zoning

Vivian Kahn, FAICP

Daniel A. Muller

  • I. WHAT IS ZONING?
    • A. Introduction 4.1
    • B. Zoning Distinguished From Planning, Building, and Housing Codes 4.2
    • C. Zoning Implements and Must Be Consistent With the General Plan 4.3
  • II. ORIGINS AND HISTORY
    • A. Early U.S. Zoning Ordinances 4.4
    • B. Early California Ordinances 4.5
    • C. Federal Influence 4.6
  • III. APPROACHES TO ZONING
    • A. Use Zoning 4.7
    • B. Performance Zoning 4.8
    • C. Form Zoning 4.9
    • D. Character Zoning 4.10
    • E. Hybrid Zoning 4.11
  • IV. RECENT TRENDS IN ZONING APPROACHES 4.12
    • A. New Urbanism 4.13
    • B. Guidelines Versus Standards 4.14
    • C. Incentive-Based Regulation 4.15
    • D. User-Friendly Zoning Codes 4.16
  • V. SOURCES OF ZONING AUTHORITY
    • A. U.S. Constitution 4.17
    • B. California Constitution 4.18
    • C. Statutory Authorization 4.19
  • VI. FEDERAL AND STATE LIMITATIONS ON ZONING AUTHORITY
    • A. Federal Law 4.20
      • 1. Federal Housing Laws 4.21
      • 2. Religious Land Use and Institutionalized Persons Act 4.22
      • 3. Federal Environmental Laws and Regulations 4.23
      • 4. Sign Regulations 4.24
    • B. State Law
      • 1. General Plan Consistency and Local Coastal Plans 4.25
      • 2. California Fair Employment and Housing Act 4.26
      • 3. Accessory Dwelling Units 4.27
      • 4. Table: California Statutes That Limit Local Zoning Authority 4.28
  • VII. ADOPTING OR AMENDING ZONING
    • A. Requirements to Adopt or Amend Zoning
      • 1. Relation to Public Welfare 4.29
      • 2. Clarity, Vagueness, and Other Constitutional Issues 4.30
    • B. Procedural and Notice Requirements
      • 1. Types of Zoning Amendments: Rezonings and Text Amendments 4.31
      • 2. Procedural Requirements
        • a. Planning Commission and Legislative Body Hearings 4.32
        • b. Notice and Hearing Requirements 4.33
        • c. Conduct of Hearings 4.34
        • d. Adoption of Interim Urgency Ordinances 4.35
    • C. Zoning Amendment Versus Other Forms of Land Use Regulation 4.36
    • D. Planned Unit Developments: When Does a Project Require a Rezoning? 4.37
    • E. Initiative- and Referendum-Based Zoning
      • 1. Zoning Initiatives 4.38
      • 2. Zoning Referendums 4.39
  • VIII. ZONING CODE CONTENTS AND STRUCTURE
    • A. Structure of Zoning Ordinances 4.40
    • B. Discretion to Separate Districts and Uses 4.41
    • C. Table: Types of Zoning Districts 4.42
    • D. Designating Uses 4.43
    • E. Use Provisions 4.44
      • 1. Permitted, Conditional, and Prohibited Uses 4.45
      • 2. Primary and Accessory Uses 4.46
    • F. Table: Design Provisions 4.47
    • G. Moratorium Provisions 4.48
  • IX. INTERPRETATION OF ZONING CODE 4.49
    • A. Rules of Statutory Construction 4.50
    • B. Guidance From Zoning Ordinances 4.51
  • X. SPECIFIC TYPES OF BASE ZONING DISTRICTS
    • A. Residential 4.52
      • 1. Home Occupation Use in Residential Zone 4.53
      • 2. Uses Incidental to Residential Use 4.54
      • 3. Regulating Occupancy in Residential Zones 4.55
    • B. Commercial Zones 4.56
    • C. Industrial Zones 4.57
    • D. Agricultural Zones and the Williamson Act 4.58
    • E. Open-Space Zones 4.59
      • 1. Urban Reserves 4.60
      • 2. Urban Growth Boundaries 4.61
      • 3. Visual Corridors 4.62
      • 4. Conservation Easements 4.63
    • F. Public and Quasi-Public Zones 4.64
      • 1. School Sites 4.65
      • 2. Water Facilities of Other Local Agencies 4.66
    • G. Mixed-Use Zones 4.67
    • H. Planned Unit Development 4.68
    • I. Smart Growth 4.69
    • J. Transit-Oriented Development Zones 4.70
    • K. Airport Zones 4.71
    • L. Hazard Zones
      • 1. Flood Zones and the Cobey-Alquist Flood Plain Management Act 4.72
      • 2. Alquist-Priolo Fault Zones 4.73
      • 3. Cortese Sites 4.74
    • M. Historic District Zones 4.75
    • N. Solar Energy Rights and Easements 4.76
  • XI. FISCALIZATION OF LAND USE 4.77
    • A. Brief History of Why Fiscalization of Land Use Is Occurring 4.78
    • B. Long-Term Costs and Benefits of Residential Versus Commercial and Industrial 4.79
    • C. Tools for Assisting With Community Development
      • 1. Business Improvement Districts 4.80
      • 2. Mello-Roos Districts 4.81
    • D. Laws Regulating Sales Tax Generators 4.82
      • 1. Formula Business and Chain Store Regulation 4.83
      • 2. Large Format, Big Box Retail 4.84
      • 3. Auto Sales 4.85

5

Sustainability and Climate Change Regulations

Steven T. Mattas

  • I. INTRODUCTION 5.1
  • II. ACHIEVING GREENHOUSE GAS REDUCTION
    • A. California's Global Warming Solutions Act (AB 32) 5.2
    • B. Air Resources Board Scoping Plan 5.3
    • C. CEQA Guidelines on Greenhouse Gas Emissions 5.4
    • D. Transportation and Land Use Integration (SB 375) 5.5
      • 1. Regional Transportation and Land Use Planning to Achieve Greenhouse Gas Emissions Reduction 5.6
      • 2. CEQA Streamlining for Mixed-Use, Residential, and Transportation Priority Projects (SB 375) 5.7
      • 3. Regional Housing Needs Allocation (RHNA) 5.8
    • E. California's Cap-and-Trade Program 5.8A
  • III. GREEN BUILDING STANDARDS
    • A. State Green Building Standards 5.9
    • B. Energy Commission Standards 5.10
    • C. Local Regulations May Exceed State Green Building Code Requirements 5.11
    • D. Green Building Rating Systems 5.12
  • IV. LOCAL GOVERNMENT SUSTAINABILITY REGULATIONS 5.13
    • A. General Plan Updates—Sustainability Element 5.14
    • B. Climate Action Plans 5.15
    • C. Local Green Building Ordinances 5.16
    • D. Methods for Public Financing of Energy Efficiency and Renewable Energy 5.17
    • E. Local Solar Programs 5.18
    • F. Laws Related to Use and Regulation of Solar Energy Systems 5.19
    • G. Localities May Adopt Building Standards for Graywater Use in Buildings 5.20
    • H. Regulation of Small Wind Energy Systems 5.21
    • I. Streamlining of Renewable Energy and Energy Efficiency Projects 5.22

6

Housing

Steven T. Mattas

  • I. INTRODUCTION 6.1
    • A. Inclusionary Housing 6.2
    • B. Residential Accessory Dwelling Units 6.3
    • C. Density Bonuses for Affordable Housing, Senior, Youth, Veteran, and Homeless Person Housing, and Child Care Facilities
      • 1. Introduction to Density Bonuses 6.4
      • 2. "Housing Developments" Defined in Context of Density Bonus 6.5
      • 3. Density Bonus Standards 6.6
        • a. Lower-Income Housing Density Bonus 6.7
        • b. Very Low-Income Housing Density Bonus 6.8
        • c. Moderate-Income Housing Density Bonus for Common Interest Units 6.9
        • d. Density Bonuses for Senior Housing and Housing for Transitional Youths, Disabled Veterans, and Homeless Persons 6.10
        • e. Child Care Facilities 6.11
        • f. Donation of Land by Developer 6.12
      • 4. Restrictive Covenant Required to Receive Bonus 6.13
      • 5. Regulatory and Financial Concessions and Incentives 6.14
      • 6. Parking Requirements for Density Bonus Units 6.15
      • 7. Required Findings for Denial of or Conditions on an Emergency Shelter or Affordable Housing and Other Housing Projects 6.16
      • 8. Prohibition of Discrimination Related to Residential Development 6.16A
  • II. RESIDENTIAL CARE HOMES 6.17
    • A. Residential Care for Six or Fewer Persons 6.18
    • B. Residential Care and the Fair Housing Act 6.19
  • III. MOBILEHOME PARKS 6.20

7

Conditions of Land Use and Development Approval; Variances; Conditional Use Permits; and Planned Unit Developments

Jeri L. Burge

David P. Lanferman

  • I. CHAPTER OVERVIEW 7.1
  • II. CONDITIONS OF LAND USE AND DEVELOPMENT APPROVAL
    • A. Wide Range of Requirements 7.2
    • B. Conditions of Approval May Include, But Are Not Limited to, Exactions 7.3
    • C. General Process for Creating Conditions of Approval 7.4
    • D. Findings Related to Conditions of Approval 7.5
    • E. Purpose of Conditions 7.6
    • F. Sources of Authority to Impose Conditions of Approval 7.7
      • 1. Police Power 7.8
      • 2. Public Infrastructure Statutes 7.9
        • a. School Impact Fees 7.10
        • b. Parks and Recreational Facilities: The Quimby Act 7.11
        • c. Subdivision Map Act Conditions 7.12
        • d. Mitigation Fee Act Conditions 7.13
        • e. California Environmental Quality Act 7.14
        • f. Assessment Districts 7.15
      • 3. General and Specific Plans, and Subdivision and Zoning Ordinances 7.16
    • G. General Principles and Limitations Common to Land Use Conditions 7.17
    • H. Compliance With Lawfully Imposed Conditions of Approval Is Required 7.18
  • III. VARIANCES AND CONDITIONAL USE PERMITS
    • A. Overview of Variances and Use Permits 7.19
    • B. Variances
      • 1. Authorization and Purpose 7.20
      • 2. Requirements for Granting a Variance; "Hardship" 7.21
      • 3. Procedures Required for Consideration of Variance 7.22
      • 4. Imposing Conditions on Variances 7.23
      • 5. Findings Required for Variances
        • a. Statutory Requirements 7.24
        • b. Table: Examples of Case Findings 7.25
        • c. Documenting the Findings; Adequacy 7.26
      • 6. Standard of Review for Challenges to Variances 7.27
    • C. Conditional Use Permits (CUPs)
      • 1. Authorization and Purpose 7.28
      • 2. Requirements for Consideration of a CUP 7.29
      • 3. Procedure for Consideration of a CUP
        • a. Generally 7.30
        • b. When First Amendment Protections Are Implicated 7.31
      • 4. Procedure for Imposing Conditions as Part of the Consideration of a CUP 7.32
      • 5. Findings Required for Issuance of a CUP 7.33
      • 6. Effectiveness of CUPs; Termination 7.34
      • 7. Revocation 7.35
        • a. Authorization 7.36
        • b. Procedure 7.37
        • c. Findings 7.38
        • d. Standard of Review 7.39
  • IV. PLANNED UNIT DEVELOPMENTS (PUDS)
    • A. Definition and Purpose 7.40
    • B. Establishment and Validity of a PUD 7.41
  • V. CONTESTING CONDITIONS OF DEVELOPMENT APPROVAL 7.42
    • A. Challenging Variances, CUPs, and PUDs by Writ of Mandate
      • 1. Evidentiary Standard 7.43
      • 2. Statute of Limitations 7.44
      • 3. Mediation 7.45
    • B. Challenging Fees, Dedication Requirements, and Other Exactions Imposed as Development Conditions 7.46

8

Nonconforming Uses

Mary Jo Lanzafame

  • I. NATURE OF NONCONFORMING USE
    • A. Background 8.1
    • B. Definition of Nonconforming Use 8.2
    • C. Nonconforming Use as a Vested Right 8.3
    • D. Types of Nonconformities
      • 1. Nonconforming Uses in the Zoning Context 8.4
      • 2. Nonconforming Uses in the Nonzoning Context 8.5
    • E. Nonconforming Use Distinguished From Variance and Conditional Use Permit 8.6
  • II. CONTINUATION OF NONCONFORMING USES
    • A. Ordinances Allowing for Continuation of Nonconforming Use 8.7
    • B. Lawful Existence of Use Before Enactment of Precluding Ordinance; Burden of Proof 8.8
    • C. Policy Reasons for Continuing Nonconformity 8.9
  • III. ACTIVITY AFFECTING RIGHT TO CONTINUE NONCONFORMING USE
    • A. Prohibiting Expansion of Nonconforming Use 8.10
    • B. Extension, Increase, or Enlargement of Nonconforming Use
      • 1. General Rule 8.11
      • 2. Diminishing Asset Doctrine Exception: Hansen Decision 8.12
      • 3. Enlargement of Use Within a Building 8.13
      • 4. Expansion of Land Use Throughout Parcel 8.14
    • C. Effect of Similarity and Intensity of Changed Use 8.15
    • D. Repairs or Alterations 8.16
  • IV. TERMINATION OF NONCONFORMING USES
    • A. Evolution of Perspectives
      • 1. Historical Perspective 8.17
      • 2. Termination by Zoning Ordinance 8.18
      • 3. Emerging Perspective 8.19
    • B. Methods of Terminating Nonconforming Uses
      • 1. Conversion to a Less Intense Nonconforming Use 8.20
      • 2. Rebuilding After Damage or Destruction 8.21
      • 3. No Reuse After Abandonment 8.22
      • 4. Termination by Amortization 8.23
        • a. Amortization of Buildings and Structures 8.24
        • b. Amortization of Nonconforming Land Uses 8.25
      • 5. Immediate Termination on Nuisance Theory 8.26

9

Subdivision Map Act

Adam U. Lindgren

Sue A. Gallagher

  • I. OVERVIEW OF THE MAP ACT 9.1
    • A. Scope 9.2
    • B. Purpose 9.3
    • C. Local Agency Authority and Map Act Preemption 9.4
      • 1. Principles of Preemption 9.5
      • 2. Application of Preemption
        • a. Cases Favoring Preemption 9.6
        • b. Cases Finding No Preemption 9.7
    • D. Relation to Other State Laws 9.8
      • 1. Subdivided Lands Act 9.9
      • 2. Land Surveyors' Act 9.10
      • 3. Other Land Use Regulations 9.11
  • II. WHAT IS A SUBDIVISION AND WHEN IS A MAP REQUIRED 9.12
    • A. Elements of a Subdivision
      • 1. A "Division" of Land 9.13
      • 2. For Purposes of Sale, Lease, or Finance 9.14
      • 3. "Any Unit or Units of Land" 9.15
      • 4. "By a Subdivider" 9.16
    • B. Specific Transactions 9.17
      • 1. Deed of Trust or Other Financing Instrument 9.18
      • 2. Divisions of Airspace (Condominiums, Community Apartments, Stock Cooperatives) 9.19
      • 3. Gifts and Devises 9.20
      • 4. Life Estates 9.21
      • 5. Tax Foreclosure Sales 9.22
      • 6. Environmental Subdivisions 9.23
  • III. EXEMPTIONS AND EXCLUSIONS 9.24
    • A. Leases Excluded From Map Act 9.25
      • 1. Financing and Lease of Apartment, Office, and Mobilehome Space 9.26
      • 2. Financing and Lease of New Commercial Buildings 9.27
      • 3. Financing and Lease of Existing Commercial Buildings 9.28
      • 4. Mineral, Oil, and Gas Leases 9.29
      • 5. Agricultural Leases 9.30
      • 6. Leases for Agricultural Labor Housing 9.30A
      • 7. Wind-Powered and Solar Electrical Generators 9.31
      • 8. Biogas Projects 9.31A
      • 9. Cellular Transmission Facilities 9.32
    • B. Lot-Line Adjustments 9.33
      • 1. Four or Fewer Parcels 9.34
      • 2. Adjoining Parcels 9.35
      • 3. No Additional Parcels Created 9.36
      • 4. Local Agency Approval 9.37
      • 5. Recordation of Deed 9.38
    • C. Condominium Conversions 9.39
      • 1. Conversion of Community Apartment Project 9.40
      • 2. Conversion of a Stock Cooperative 9.41
    • D. Accessory Dwelling Units 9.42
    • E. Miscellaneous Exemptions
      • 1. Cemeteries 9.43
      • 2. State Lands Commission; Tidelands 9.44
      • 3. Separate Assessments 9.45
      • 4. Small Removable Commercial Buildings 9.46
      • 5. Short-Term Lease of Railroad Right-of-Way 9.47
  • IV. RECOMBINING PARCELS: MERGER, REVERSION, RESUBDIVISION, AND EXCLUSION 9.48
    • A. Voluntary Merger 9.49
    • B. Reversion to Acreage 9.50
    • C. Resubdivision 9.51
    • D. Involuntary Merger 9.52
      • 1. Eligibility for Involuntary Merger 9.53
      • 2. Procedure for Involuntary Merger 9.54
        • a. Notice of Intention to Determine Status 9.55
        • b. Hearing 9.56
        • c. Determination 9.57
      • 3. Unmerger 9.58
      • 4. Exclusive Means for Involuntary Merger 9.59
    • E. Exclusions From Map Itself 9.60
  • V. DETERMINING WHICH TYPE OF MAP IS REQUIRED
    • A. Tentative and Final Maps
      • 1. Two-Step Process for Larger Subdivisions 9.61
      • 2. General Rule: Subdivisions Creating Five or More Parcels or Units Require Tentative and Final Map 9.62
      • 3. Exceptions to General Rule Requiring Tentative and Final Map 9.63
      • 4. Counting Parcels
        • a. Remainder Parcels 9.64
        • b. Conveyances to Public Entities and Public Utilities 9.65
        • c. Successive Divisions by Same Subdivider 9.66
      • 5. Vesting Tentative Maps 9.67
    • B. Parcel Maps
      • 1. General Rule: Subdivisions of Four or Fewer Parcels Require a Parcel Map 9.68
      • 2. Exceptions to Rule Requiring Parcel Map 9.69
      • 3. Local Agency May Also Require a Tentative Map 9.70
  • VI. PROCESSING TENTATIVE MAPS AND PARCEL MAPS
    • A. Processing Tentative Maps 9.71
      • 1. Who Processes Tentative Maps 9.72
      • 2. Filing Tentative Maps 9.73
      • 3. Review by Other Agencies 9.74
      • 4. Local Agencies Apply Laws in Effect When Map Application Deemed Complete 9.75
      • 5. Role of Findings in Approval or Denial of Map 9.76
      • 6. Grounds for Denial of Tentative Map 9.77
    • B. Processing Parcel Maps 9.78
    • C. Processing Vesting Tentative Maps
      • 1. Vested Rights 9.79
      • 2. Procedures Established by Local Law 9.80
      • 3. Information Required 9.81
      • 4. Maps Not in Compliance With Zoning Ordinances 9.82
  • VII. CONDITIONS FOR MAP APPROVAL
    • A. Basis for Imposition of Conditions: Police Power and Map Act 9.83
    • B. Practical Considerations in Addressing Conditions 9.84
    • C. General Conditions Authorized by the Map Act 9.85
      • 1. Design and Improvement of Subdivisions 9.86
      • 2. Consistency With General Plan 9.87
      • 3. Environmental Protections 9.88
    • D. Specific Conditions Authorized for Subdivisions of Four or Fewer Parcels 9.89
    • E. Specific Conditions Authorized for Subdivisions of Five or More Parcels
      • 1. Dedications 9.90
        • a. Roads and Transportation 9.91
        • b. Solar Access Easements 9.92
        • c. Parks and Recreation (Quimby Act) 9.93
        • d. Elementary Schools 9.94
      • 2. Mandatory Public Access to Public Resources 9.95
      • 3. Reservations 9.96
      • 4. Fees 9.97
        • a. Storm Drainage and Sanitary Sewer Facilities 9.98
        • b. Bridges and Major Thoroughfares 9.99
        • c. Groundwater Recharge Facilities 9.100
      • 5. Other Conditions
        • a. Grading and Erosion Control 9.101
        • b. Adequacy of Water for Large Subdivisions 9.102
        • c. Safety in Fire Hazard Zones 9.102A
        • d. Passive or Natural Heating and Cooling 9.103
        • e. Cable and Communication Systems 9.104
        • f. Indemnification 9.105
    • F. Procedural Issues Related to Imposition of Conditions
      • 1. What Standards Apply? 9.106
      • 2. Conditions for Subsequent Building Permits in Residential Subdivisions: "One Bite of the Apple" 9.107
      • 3. Acceptance of Dedications 9.108
      • 4. Reconveyance of Dedication 9.109
      • 5. Refund of Fees 9.110
      • 6. Reimbursement Agreements for "Oversized" Improvements 9.111
      • 7. Timing of Construction of Required Improvements 9.112
      • 8. Waiver of Off-Site Improvements 9.113
      • 9. Challenging the Conditions 9.114
  • VIII. LIFE OF TENTATIVE MAPS
    • A. Generally 9.115
    • B. Initial Duration and Discretionary Extensions 9.116
    • C. Legislative Extensions 9.117
    • D. Multiple Final Maps 9.118
    • E. Conditions Imposed on Extensions 9.119
    • F. Development Agreements and Related Permits 9.120
    • G. Tolling of a Tentative Map's Life 9.121
      • 1. Development Moratorium 9.122
      • 2. Litigation Stay 9.123
      • 3. Table: Summary of Extensions 9.124
  • IX. FINAL MAPS 9.125
    • A. Final Map Must Be Filed Before Expiration of Tentative Map 9.126
    • B. Final Map in Substantial Compliance With Tentative Map Must Be Approved 9.127
    • C. Grounds for Disapproval of Final Map 9.128
    • D. Improvement Security 9.129
      • 1. Types of Improvement Agreements 9.130
      • 2. Off-Site Improvements 9.131
      • 3. Security for Agreements
        • a. Obligations Secured 9.132
        • b. Forms of Security 9.133
        • c. Amount of Security 9.134
        • d. Release of Security 9.135
    • E. Final Map Standards and Requirements 9.136
  • X. CERTIFICATES OF COMPLIANCE AND ANTIQUATED MAPS 9.137
    • A. Significance 9.138
    • B. Procedure for Issuance 9.139
    • C. Grounds for Issuance 9.140
      • 1. Was the Parcel Lawfully Created? 9.141
        • a. Creation of Parcel by Deed or Patent 9.142
        • b. Creation of Parcel by Map 9.143
        • c. Other Grounds for Issuance of Certificates of Compliance 9.144
      • 2. Has the Parcel Been Extinguished? 9.145
    • D. Conditional Certificates of Compliance 9.146
  • XI. ENFORCEMENT, PENALTIES, AND JUDICIAL REVIEW OF DECISIONS UNDER THE MAP ACT
    • A. Prohibited Activities 9.147
    • B. Remedies
      • 1. Buyer's Remedies
        • a. Invalidation of Conveyance, Sale, or Purchase Agreement 9.148
        • b. Damages 9.149
        • c. Injunction or Other Equitable Remedy 9.150
      • 2. Local Agency's Remedies
        • a. Injunction or Other Equitable Remedy 9.151
        • b. Criminal Penalties 9.152
        • c. Notice of Violation 9.153
        • d. Denial of Permits 9.154
      • 3. Third Party Remedies 9.155
        • a. Invalidation of the Local Agency Decision 9.156
        • b. Injunction or Other Equitable Remedy 9.157
      • 4. Stay of Expiration of Tentative Map 9.158
    • C. Judicial Review of Local Agency Action 9.159
      • 1. Statute of Limitations 9.160
      • 2. Exhaustion of Administrative Remedies 9.161
      • 3. Standard of Review 9.162

10

Aesthetic Regulation and Design Review

Thomas Jacobson

  • I. AESTHETIC REGULATION GENERALLY
    • A. Legal Authority 10.1
    • B. Legal Limitations
      • 1. Preemption 10.2
        • a. Preemption by First Amendment to the U.S. Constitution 10.3
        • b. Preemption by the Lanham Act 10.4
      • 2. Vagueness 10.5
    • C. California Environmental Quality Act 10.6
  • II. DESIGN REVIEW
    • A. Defined 10.7
    • B. Design Review versus Private Homeowners' Association Design Regulations 10.8
    • C. Motivation 10.9
    • D. Legal Authority
      • 1. Police Power 10.10
      • 2. Case Law 10.11
    • E. The Design Review Process
      • 1. General Plans 10.12
      • 2. Specific Plans 10.13
      • 3. Design Review Ordinances 10.14
      • 4. Design Guidelines; Design Review Flowchart 10.15
    • F. Enforcement 10.16
    • G. Legal Issues 10.17
      • 1. Preemption 10.18
      • 2. Judicial Review
        • a. Substantial Evidence Test 10.19
        • b. Burden of Proof; Deference to Local Agency 10.20
        • c. "Heightened Scrutiny" Standard 10.21
        • d. Expert Testimony Not Required 10.22
      • 3. Challenges Based on Vagueness 10.23
      • 4. Relationship to Zoning 10.24
    • H. Design Review Under CEQA 10.25

11

Building Regulations

Joseph J. Chapman

  • I. INTRODUCTION 11.1
  • II. CALIFORNIA BUILDING STANDARDS LAW 11.2
    • A. State Building Standards versus Model Codes 11.3
    • B. Local Adoption and Amendment 11.4
      • 1. Effective Date of Local Changes 11.5
      • 2. Adoption Requirements; Effect of Failure to Adopt 11.6
      • 3. Maintenance of Copy of Title 24 11.7
    • C. Adoption and Amendment by Local Fire District 11.8
    • D. State Housing Law 11.9
      • 1. Local Adoption 11.10
      • 2. Local Amendment 11.11
  • III. SPECIAL STANDARDS
    • A. Accessibility for Individuals With Disabilities
      • 1. Federal Standards 11.12
      • 2. California Standards 11.13
      • 3. Universal Design 11.14
    • B. Earthquake Protection 11.15
      • 1. Local Government Enforcement 11.16
      • 2. Alquist-Priolo Earthquake Fault Zoning Act 11.17
    • C. Historical Buildings 11.18
    • D. Mobilehomes, Special Occupancy Units, and Factory-Built Housing
      • 1. Mobilehomes and Special Occupancy Units 11.19
      • 2. Construction Within Mobilehome and Special Occupancy Parks 11.20
      • 3. Factory-Built Housing 11.21
    • E. Green Building 11.21A
      • 1. Rating Systems 11.21B
      • 2. State Law 11.21C
        • a. Green Building Standards Code 11.21D
        • b. Building Energy Efficiency Standards 11.21E
      • 3. Local Green Building Ordinances 11.21F
      • 4. Incentives 11.21G
    • F. Graywater Systems 11.21H
  • IV. PERMITS AND ENFORCEMENT
    • A. Submission and Processing of Plans; Plan Checking 11.22
    • B. Inspections and Certificates of Occupancy 11.23
    • C. Local Enforcement Obligations 11.24
    • D. Stop Work Orders and Other Remedies for Violations 11.25
    • E. Role of Building Permits in Conditions of Approval 11.26
    • F. Permit Issuance: Avco Vested Rights 11.27
    • G. Defense of Equitable Estoppel 11.28

12

Specially Regulated Land Uses

Steven T. Mattas

  • I. INTRODUCTION 12.1
  • II. FIRST AMENDMENT ISSUES
    • A. Adult Business Regulation 12.2
      • 1. General Overview 12.3
      • 2. Substantial Government Interests Justifying Regulation 12.4
      • 3. Appropriate Government Findings 12.5
      • 4. Adult Business Zones 12.6
      • 5. Regulation of Patron and Performer Conduct and Hours of Operation 12.7
      • 6. Procedural Requirements for Licensing Schemes and Permits 12.8
    • B. Newspaper Rack Regulation 12.9
    • C. Sign Regulation 12.10
      • 1. Authority to Regulate 12.11
      • 2. Outdoor Advertising Act 12.12
      • 3. Regulation of Sign Content 12.13
      • 4. Commercial Speech and Preferential Treatment 12.14
      • 5. Political Signs: Public Versus Private Property 12.15
      • 6. Discretionary Approval for Sign Permits 12.16
      • 7. Amortization of Nonconforming Signs 12.17
      • 8. Mobile Billboard Advertising 12.18
    • D. Right of Assembly and Public Forum Issues
      • 1. Federal Cases 12.19
      • 2. California Cases 12.20
    • E. Fortune-Telling 12.21
    • F. Religious Institutions
      • 1. Religious Land Use and Institutionalized Persons Act 12.22
        • a. RLUIPA and Land Use Decisions 12.23
        • b. Free Exercise of Religion 12.24
        • c. Substantial Burden on Exercise of Religion 12.25
        • d. RLUIPA and Strict Scrutiny Review of Land Use Actions 12.26
          • (1) Compelling Government Interest 12.27
          • (2) Least Restrictive Means Possible 12.28
      • 2. State Law Restrictions 12.29
    • G. Religious Monuments on Public Property 12.30
  • III. GAMBLING
    • A. Native American Lands
      • 1. Indian Gaming and Regulatory Act 12.31
      • 2. Classes of Gambling Under IGRA 12.32
      • 3. Tribal-State Compacts 12.33
    • B. Cardrooms 12.34
  • IV. NATIVE AMERICAN LANDS
    • A. Land Use Ordinances On and Off Indian Land 12.35
    • B. Sovereign Immunity of Tribes 12.36
    • C. Regulation of Non-Indian Activity on Indian Lands 12.37
    • D. Regulation of Tribal-Owned Lands Outside of Indian Country and of Possible Burial Grounds and Remains 12.38
  • V. FEDERAL AND STATE FACILITIES
    • A. Regulation of Federal Land 12.39
      • 1. Preemption Analysis and Conflict of Laws 12.40
      • 2. Application of State and Local Laws to the Federal Government 12.41
      • 3. Regulation of Activity Versus Regulation of Use 12.42
      • 4. Federal Consent to Local Control 12.43
    • B. Regulation of State Land 12.44
      • 1. State Procedures and Special Exceptions 12.45
      • 2. State Sovereign Immunity 12.46
      • 3. Regulation of State Contractors 12.47
      • 4. Regulation of Local Agencies of the State 12.48
      • 5. Supremacy of the California Coastal Act 12.49
  • VI. AIRPORT LAND USE ISSUES
    • A. Background 12.50
    • B. Airport Land Use Commissions 12.51
    • C. County and City Zoning Related to Airports 12.52
    • D. Federal Laws Relating to Airports
      • 1. Restrictions on Objects Affecting Navigable Airspace 12.53
      • 2. Other Restrictions Near Runway 12.54
      • 3. Noise Restrictions/Guidelines 12.55
    • E. State Laws Relating to Airports 12.56
  • VII. COASTAL HARBORS AND PORTS 12.57
    • A. Public Works Plans and Port Master Plans 12.58
    • B. Other Statutory Regulation of Ports and Harbors 12.59
  • VIII. ALCOHOLIC BEVERAGE SALE REGULATIONS
    • A. State Regulation 12.60
    • B. Nuisance Ordinances and Off-Site Alcohol Sales 12.61
  • IX. CANNABIS (MARIJUANA) ACTIVITIES 12.62
  • X. GUN SHOPS, CLUBS, AND SHOWS 12.63
  • XI. DAY CARE
    • A. Small-Family Day Care 12.64
    • B. Large-Family Day Care 12.65
    • C. Commercial Day-Care Facilities for Children 12.66
  • XII. MASSAGE ESTABLISHMENTS 12.67
  • XIII. WIRELESS TELECOMMUNICATIONS AND CELLULAR TOWERS 12.68
  • XIV. RECREATIONAL VEHICLES 12.69
  • XV. COTTAGE FOOD OPERATIONS 12.70

13

Environmental Review and Mitigation

Kathleen Faubion

R. Clark Morrison

  • I. CEQA: AN INTRODUCTION 13.1
    • A. The CEQA Guidelines 13.2
    • B. The CEQA Process: An Overview 13.3
  • II. PUBLIC AGENCIES 13.4
    • A. Lead Agency 13.5
    • B. Responsible Agencies 13.6
    • C. Effect of Lead Agency Decisions 13.7
    • D. Trustee Agencies 13.8
    • E. Other Consulting Agencies 13.9
  • III. PROJECTS SUBJECT TO CEQA 13.10
    • A. Is the Agency Decision Discretionary? 13.11
    • B. Is the Activity a Project? 13.12
      • 1. Whole of an Action 13.13
      • 2. Direct or Indirect Physical Change 13.14
      • 3. Agency Approval 13.15
    • C. Is the Project Exempt From CEQA Review? 13.16
      • 1. Statutory Exemptions 13.17
      • 2. Categorical Exemptions 13.18
      • 3. The General Exemption 13.19
      • 4. Exemption Procedures 13.20
      • 5. Standard of Review for Exemption Decisions 13.21
  • IV. CEQA PROCESS
    • A. Initial Study 13.22
    • B. Negative Declaration
      • 1. Preparation and Adoption of a Negative Declaration 13.23
      • 2. Form: Notice of Intent to Adopt a Negative Declaration 13.24
      • 3. Form: Negative Declaration 13.25
    • C. Mitigated Negative Declaration 13.26
    • D. Environmental Impact Report
      • 1. Determining Scope, Notice of Preparation, and Contents of EIR 13.27
      • 2. Preparation of Draft EIR 13.28
        • a. EIR Must Be Legally Adequate 13.29
        • b. Checklist: Required Contents of Draft EIR 13.30
        • c. Methods to Simplify Format of EIRs 13.31
        • d. Discussion of Significant Environmental Effects 13.32
        • e. Analysis of Particular Impacts Required 13.33
        • f. Cumulative Impacts 13.34
        • g. Economic and Social Impacts 13.35
        • h. Disagreements Over Methodology and Significance of Impacts 13.36
        • i. Mitigation Measures 13.37
          • (1) Payment of Fees as Mitigation 13.38
          • (2) Mitigation of Cumulative Impacts 13.39
          • (3) Mitigation for Particular Impacts 13.40
          • (4) Authority to Mitigate Impacts 13.41
        • j. Project Alternatives
          • (1) Reasonable Range of Alternatives 13.42
          • (2) No-Project Alternative 13.43
      • 3. Notice of Completion 13.44
      • 4. Consultation and Comment on Draft EIR 13.45
      • 5. Final EIR 13.46
      • 6. Response to Comments on the Draft EIR 13.47
      • 7. Recirculation of EIR 13.48
      • 8. Project Approval and Findings 13.49
        • a. Adoption or Rejection of Mitigation Measures 13.50
        • b. Findings Concerning Project Alternatives 13.51
        • c. Statement of Overriding Considerations 13.52
      • 9. Mitigation Monitoring Program 13.53
      • 10. Notice of Determination; California Department of Fish and Wildlife Filing Fee 13.54
      • 11. Project Approvals by Responsible Agencies 13.55
  • V. STREAMLINING THE CEQA PROCESS THROUGH REUSE OF ENVIRONMENTAL DOCUMENTS
    • A. Tiering Principles 13.56
    • B. Subsequent or Supplemental EIRs, Negative Declarations 13.57
    • C. Addendum to an EIR or Negative Declaration 13.58
    • D. Program EIRs 13.59
  • VI. CEQA AND OTHER LAWS 13.60
    • A. NEPA 13.61
    • B. Water Supply Planning and CEQA
      • 1. Water Supply Assessments and Water Supply Verification 13.62
      • 2. The Vineyard Area Citizens Case 13.62A
    • C. Greenhouse Gas Emissions and CEQA 13.62B
    • D. Sustainable Communities Strategies and Transit Priority Projects (SB 375) 13.62C
  • VII. JUDICIAL REVIEW
    • A. Statutes of Limitation 13.63
    • B. Judicial Standard of Review 13.64
    • C. Effect of Failing to File a CEQA Challenge 13.65
  • VIII. GLOSSARY OF CEQA ACRONYMS 13.66
  • IX. CEQA PROCESS FLOW CHART 13.67
  • X. FORM: CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE NO EFFECT DETERMINATION REQUEST FORM 13.68

14

Compliance With Federal, State, and Regional Agency Requirements

Adam U. Lindgren

Steven T. Mattas

Edgar B. Washburn

  • I. INTRODUCTION 14.1
  • II. FEDERAL AGENCIES
    • A. United States Army Corps of Engineers
      • 1. History and Mission 14.2
        • a. The Corps, the EPA, and the Clean Water Act 14.3
        • b. Section 404 Permit Program 14.4
      • 2. Clean Water Act Jurisdiction Over Navigable Waters 14.5
        • a. The Corps and the SWANCC Decision 14.6
        • b. Post-SWANCC Case Law; Rapanos and EPA Guidance Document 14.7
      • 3. Wetland Jurisdiction 14.8
      • 4. Application of the Wetlands Definition 14.9
      • 5. The Process for Determining Jurisdiction 14.10
      • 6. Special Situations
        • a. Wetland Delineation on Agricultural Lands 14.11
        • b. Isolated Waters and Wetlands 14.12
      • 7. Administrative Appeals From Jurisdictional Determination 14.13
      • 8. Activities for Which a Permit Is Required
        • a. Section 10 of the Rivers and Harbors Act (33 USC §403) 14.14
        • b. Section 404 of the Clean Water Act 14.15
        • c. Farming and Silviculture Exemption 14.16
        • d. Maintenance of Serviceable Structures and Drainage Ditches 14.17
      • 9. Section 404 Permitting Process
        • a. Introduction 14.18
        • b. Nationwide Permits 14.19
        • c. The Individual Permit Review Process 14.20
        • d. Section 404(b)(1) Guidelines 14.21
      • 10. State Water Quality Certification Under Section 401 of the Clean Water Act 14.22
      • 11. After-the-Fact Permits 14.23
      • 12. Mitigation of Effects of Wetland Development 14.24
        • a. Sequencing of Mitigation Efforts 14.25
        • b. Mitigation Banks 14.26
        • c. Mitigation Ratios 14.27
      • 13. NEPA and the Corps' Scope of Analysis 14.28
        • a. The "Small Federal Handle" 14.29
        • b. Current NEPA Focus 14.30
    • B. Environmental Protection Agency 14.31
      • 1. CWA Statutory Framework 14.32
        • a. Point Source Pollution and NPDES Permits 14.33
        • b. Regulation of Storm Water Discharges 14.34
        • c. Total Maximum Daily Loads 14.35
        • d. State Water Quality Management Plans 14.36
      • 2. Implementation of Water Quality Regulation Within California 14.37
    • C. U.S. Fish and Wildlife Service (FWS) and NOAA (National Oceanic and Atmospheric Administration) Fisheries
      • 1. Introduction 14.38
        • a. Protection of Listed Species Under ESA 14.39
        • b. Incidental Take of Listed Species 14.40
      • 2. Section 7 Interagency Consultations 14.41
      • 3. Implementation of the Taking Permit Process—Survival and Recovery 14.42
      • 4. The Services' Response to Gifford Pinchot 14.43
  • III. OTHER AREAS OF FEDERAL LAND USE INTERVENTION
    • A. The Americans with Disabilities Act 14.44
      • 1. Title II of the ADA 14.45
      • 2. Title III of the ADA 14.46
    • B. National Historic Preservation Act 14.47
    • C. Federal Land Policy and Management Act 14.48
  • IV. CALIFORNIA AGENCIES
    • A. Resource Agencies 14.49
      • 1. California Environmental Protection Agency 14.50
      • 2. California Department of Fish and Wildlife 14.51
        • a. Regulation of Waterways 14.52
        • b. California Endangered Species Act 14.53
      • 3. Department of Toxic Substance Control 14.54
      • 4. California Energy Commission 14.55
      • 5. State Lands Commission 14.56
        • a. The Public Trust Doctrine 14.57
        • b. Title Issues, Boundaries, Leases 14.58
      • 6. California Historic Preservation Law
        • a. Public Resources Code 14.59
        • b. State Historical Building Code 14.60
    • B. Regional Agencies
      • 1. California Coastal Commission 14.61
        • a. The California Coastal Zone 14.62
        • b. Local Coastal Programs and Development Permits 14.63
        • c. Constitutional Challenges to Coastal Act 14.64
        • d. Open Issues Under the Coastal Act 14.65
      • 2. Local Air Quality Districts 14.66
      • 3. State and Regional Water Quality Control Boards 14.67
        • a. Implementing Water Quality Objectives 14.68
        • b. Water Quality Control Permits 14.69
      • 4. Groundwater Sustainability Agencies 14.69A
      • 5. Bay Conservation and Development Commission (BCDC) 14.70
        • a. San Francisco Bay Plan 14.71
        • b. BCDC and the Coastal Zone Management Act 14.72
      • 6. Lake Tahoe Regional Planning Agency 14.73
      • 7. Transportation Agencies 14.74
        • a. Regional Transportation Planning 14.75
        • b. Congestion Management and Other Regional Plans 14.76
      • 8. Councils of Governments 14.77
      • 9. Delta Protection Commission 14.77A
      • 10. Delta Stewardship Council 14.77B
    • C. School Districts and Other Local Agencies 14.78
    • D. Local Agency Formation Commission (LAFCO) 14.79
      • 1. Commissioners 14.80
        • a. Term 14.81
        • b. Role 14.82
      • 2. Key LAFCO Terms 14.83
      • 3. LAFCO Powers 14.84
      • 4. Limitations on Powers and Jurisdiction of LAFCOs 14.85
      • 5. Spheres of Influence 14.86
      • 6. Required Procedures for Change of Organization or Reorganization
        • a. Boundary Changes 14.87
        • b. Prezoning for Annexation 14.88
        • c. Procedures for Requesting Boundary Changes 14.89
        • d. LAFCO Review of Boundary Change Applications 14.90
        • e. Notice and Hearing 14.91
        • f. Factors to Consider 14.92
        • g. Approval or Disapproval 14.93
        • h. Reconsideration 14.94
        • i. Protest Proceedings; Measure of Protests 14.95
        • j. Elections 14.96
        • k. Completion of Proceedings 14.97
        • l. Judicial Review of LAFCO Determinations 14.98
      • 7. Transfer of Assessment District Obligations as Part of Annexation 14.99
      • 8. Extension of Public Services Into Unincorporated Areas 14.100

15

Laws Related to Land Use Regulation

Adam U. Lindgren

  • I. RELATED LAWS GENERALLY 15.1
  • II. CONFLICT-OF-INTEREST LAWS 15.2
    • A. Duty to Publicly Disclose Personal Economic Interests 15.3
    • B. Duty to Disqualify From Participation in Agency Decisions
      • 1. Political Reform Act 15.4
        • a. Duty to Disqualify Because of Impact on Economic Interest 15.5
        • b. Duty to Disqualify Because of Receipt of Campaign Contributions 15.6
      • 2. Common Law Duty to Disqualify Because of Bias 15.7
    • C. Duties Regarding Contractual Conflicts of Interest: Govt C §1090 15.8
    • D. Restrictions on Receipt of Gifts and Honoraria 15.9
  • III. OPEN AND PUBLIC MEETINGS: RALPH M. BROWN ACT 15.10
    • A. Legislative Bodies Subject to the Brown Act 15.11
    • B. Meetings Subject to the Brown Act 15.12
      • 1. Serial Meetings 15.13
      • 2. Content of Information [Deleted] 15.14
    • C. Brown Act Requirements for Agenda Posting and Content 15.15
    • D. Rights at Brown Act Meetings 15.16
      • 1. Agendas and Printed Materials 15.17
      • 2. Opportunity to Comment 15.18
    • E. Closed Sessions 15.19
    • F. Brown Act Violations 15.20
  • IV. PERMIT STREAMLINING ACT (PSA)
    • A. Purpose of the PSA 15.21
    • B. Basic Requirements of the PSA 15.22
    • C. PSA Applies Only to Development Projects 15.23
    • D. PSA Applies Only to Adjudicatory Decisions 15.24
    • E. Complete Application Triggers Initial PSA Time Limits 15.25
    • F. CEQA Trigger for PSA Time Limits 15.26
    • G. CEQA Documentation 15.27
    • H. Project Approval 15.28
    • I. Extensions 15.29
      • 1. Extensions for CEQA Processing 15.30
      • 2. Extensions for Project Approval 15.31
    • J. Result of Noncompliance With the PSA 15.32
      • 1. Notice of Deemed Approval 15.33
      • 2. Right to Appeal Deemed Approval 15.34

16

Vested Rights

Adam U. Lindgren

  • I. INTRODUCTION TO VESTED RIGHTS 16.1
  • II. COMMON LAW VESTED RIGHTS: THE AVCO RULE
    • A. Current Common Law Vested Rights Test 16.2
    • B. The Avco Case 16.3
      • 1. Facts 16.4
      • 2. Basic Rule of Avco; Building Permit Requirement Upheld 16.5
      • 3. Soft Costs Incurred Before Building Permit Do Not Create a Vested Right 16.6
      • 4. Exception for Functional Equivalent of Building Permit 16.7
      • 5. Earlier Vesting Rejected 16.8
    • C. Clarifications, Interpretations, and Refinements of Avco
      • 1. Historical View of Avco 16.9
      • 2. What Permit Is Required to Vest?
        • a. Building Permit Generally Required 16.10
        • b. Building Permit and Its "Functional Equivalent" Are Sufficient to Vest 16.11
          • (1) Functional Equivalent of a Building Permit 16.12
          • (2) Condominium Conversions 16.13
          • (3) Growth Management Allocations 16.14
        • c. Last Discretionary Permit 16.15
        • d. Phased Projects 16.16
        • e. Invalid Permit Vests No Rights 16.17
        • f. Scope of Permit Defines Scope of Vested Right 16.18
        • g. Duration of Vested Right 16.19
      • 3. Nature of Developer's Reliance for Vesting Rights
        • a. Soft Costs and Costs Not Incurred in Reliance on Building Permit Do Not Vest Rights 16.20
        • b. Unjustified Reliance Does Not Create a Vested Right 16.21
        • c. No Vested Right When Permit Issued on Basis of Developer's Misrepresentation 16.22
        • d. Reliance Must Be in Good Faith 16.23
      • 4. Vested Right May Be Impaired If Necessary to Protect Public Health and Safety 16.24
  • III. DEVELOPMENT AGREEMENTS
    • A. Introduction 16.25
    • B. Timing of Development Agreement 16.26
    • C. Scope of Rights Vested by Development Agreement 16.27
    • D. Drafting Development Agreements
      • 1. Requirements and Mandatory Terms
        • a. Required Property Interest 16.28
        • b. Location of Property 16.29
        • c. Duration 16.30
        • d. Permitted Uses and Specifications of the Developed Property 16.31
      • 2. Other Common Terms 16.32
      • 3. Compliance With State and Federal Law 16.33
    • E. Processing and Approval 16.34
      • 1. Hearings 16.35
      • 2. Required Findings 16.36
      • 3. Subject to CEQA 16.37
    • F. Recordation and Effective Date 16.38
    • G. Amendments 16.39
    • H. Enforcement, Compliance Review, and Termination 16.40
    • I. Challenges to Development Agreements 16.41
  • IV. VESTING TENTATIVE MAPS
    • A. Generally 16.42
    • B. Vested Right Conferred 16.43
    • C. What Constitutes an Ordinance, Policy, or Standard? 16.44
    • D. Imposition of New Conditions 16.45
    • E. Impairment of a Vested Right Conferred by a Vesting Tentative Map 16.46
    • F. Duration 16.47
    • G. Amendments 16.48
    • H. Processing and Approval 16.49
  • V. ADDITIONAL LIMITATIONS ON AUTHORITY OF AGENCIES TO APPLY NEW LAWS TO DEVELOPMENT PROJECTS
    • A. Limitations Under the Subdivision Map Act
      • 1. Government Code §65961 16.50
      • 2. Government Code §66474.1 16.51
      • 3. Government Code §66474.2 16.52
      • 4. Government Code §66473 16.53
    • B. Vested Rights Under Local Ordinances 16.54
    • C. Administrative Requirements for Determining Applicability of Certain Statutes 16.54A
  • VI. CHART: COMPARISON OF CALIFORNIA VESTED RIGHTS STATUTES WITH COMMON LAW 16.55

17

Regulatory Takings

Daniel L. Siegel

  • I. INTRODUCTION 17.1
    • A. Eminent Domain Versus Inverse Condemnation: How Land Use Decisions Can Be Takings 17.2
    • B. Types of Takings
      • 1. Physical 17.3
      • 2. Regulation of Use 17.4
      • 3. Fees and Dedications 17.5
  • II. HISTORY
    • A. Origin of Regulatory Takings 17.6
    • B. Development of California's Takings Provision and Relationship to Federal Takings Clause 17.7
  • III. BASIC PRINCIPLES 17.8
    • A. Regulation "Goes Too Far" 17.9
    • B. Fairness and Justice 17.10
    • C. Functionally Equivalent to a Direct Condemnation 17.11
  • IV. THE PROPERTY INTEREST REQUIREMENT 17.11A
  • V. GENERAL TESTS 17.11B
    • A. Penn Central and Beyond
      • 1. Penn Central Factors 17.12
        • a. Economic Impact 17.13
        • b. Investment-Backed Expectations 17.14
        • c. Character of Governmental Action 17.15
      • 2. Additional Factors Recognized in Kavanau 17.16
    • B. Per Se, or Categorical, Takings 17.17
      • 1. Permanent Physical Occupation 17.18
      • 2. All Economically Beneficial Use
        • a. Original Formulation in Lucas 17.19
        • b. Loss of Value, Not Loss of Use 17.20
    • C. Repudiation of the "Substantially Advance" Test 17.21
    • D. Lingle's Repudiation of the "Substantially Advance" Test [Deleted] 17.22
  • VI. OTHER CONSIDERATIONS
    • A. Background Principles of State Law
      • 1. Articulation of Background Principles Exception in Lucas 17.23
      • 2. Subsequent Treatment in Courts 17.24
      • 3. Related Emergency Exception 17.25
    • B. Parcel as a Whole 17.26
      • 1. Supreme Court Jurisprudence 17.27
      • 2. Lower Federal Court Decisions 17.28
      • 3. California Decisions 17.29
    • C. Average Reciprocity of Advantage 17.30
  • VII. TEMPORARY TAKINGS 17.31
    • A. Moratoria 17.32
    • B. Permitting Delays 17.33
      • 1. Extraordinary Delays 17.34
      • 2. Erroneous Delays 17.35
  • VIII. ULTRA VIRES ACTIONS 17.36
  • IX. RENT CONTROL 17.37
    • A. Fair Rate of Return 17.38
    • B. Penn Central Analysis 17.38A
    • C. Former "Substantially Advance" Test 17.39
    • D. Public Use 17.39A
    • E. Rejection of Physical Appropriation Challenges 17.40
  • X. KEY PROCEDURAL ISSUES 17.41
    • A. Ripeness 17.42
      • 1. Final Decision Requirement 17.43
      • 2. Utilization of State Procedures
        • a. Overview 17.44
        • b. California's Procedures 17.45
      • 3. Issue Preclusion/Collateral Estoppel 17.46
    • B. Statutes of Limitations
      • 1. Time Period
        • a. Federal Court Claims Against Federal Government 17.47
        • b. Federal Court Claims Against Nonfederal Entities 17.48
        • c. California State Court Claims 17.49
      • 2. Accrual of Cause of Action 17.50
        • a. Facial Claims 17.51
        • b. As-Applied Claims 17.52
      • 3. Tolling 17.53
        • a. Continuing Wrong 17.54
        • b. Effect of Moratorium 17.55
        • c. Regulation Extensions 17.56
        • d. Negotiations 17.57
        • e. Intentional Concealment 17.58
    • C. Jury Trial 17.59
    • D. Standing 17.60
    • E. Eleventh Amendment Immunity 17.61
      • 1. Limitations 17.62
      • 2. Federal Court 17.63
      • 3. State Court 17.64
  • XI. JUDICIAL TAKINGS 17.64A
  • XII. REMEDIES 17.65
    • A. Calculating Damages 17.66
      • 1. Permanent Taking 17.67
      • 2. Temporary Taking 17.68
        • a. Fair Rental Value 17.69
        • b. Cash Flow (Bass Enterprises) 17.70
        • c. Before-and-After Value 17.71
        • d. Option Value 17.72
        • e. Market Rate of Return (Nemmers) 17.73
        • f. Equity Interest (Wheeler) 17.74
        • g. Probability Formula (Herrington) 17.75
    • B. Injunction When Damages Are Unavailable 17.76
    • C. Attorney Fees 17.77
  • XIII. RELATED CONSTITUTIONAL PROTECTIONS: DUE PROCESS AND EQUAL PROTECTION 17.78

18

Exactions: Dedications and Development Impact Fees

Kenneth B. Bley

Andrew W. Schwartz

  • I. INTRODUCTION
    • A. Scope of Chapter 18.1
    • B. Historical Background of Development Fees and Dedications
      • 1. Taxpayer Revolt 18.2
      • 2. Effects of Proposition 13 on Revenue 18.3
      • 3. Infrastructure Funding Gap 18.4
      • 4. Role of Dedications and Development Fees 18.5
    • C. Comparison of Taxes, Assessments, and Fees 18.6
      • 1. Development Fees and Dedications 18.7
      • 2. Taxes
        • a. General Taxes 18.8
        • b. Special Taxes 18.9
        • c. Excise Taxes 18.10
      • 3. Assessments 18.11
      • 4. User Fees 18.12
  • II. AUTHORITY FOR EXACTIONS 18.13
    • A. Constitutional Authority 18.14
    • B. Statutory Authority
      • 1. Subdivision Map Act 18.15
        • a. Direct Authority for Dedications 18.16
        • b. Direct Authority for Development Impact Fees 18.17
        • c. Indirect Authority to Impose Exactions 18.18
        • d. Limitations on Authority 18.19
          • (1) Tentative Map 18.20
          • (2) Vesting Tentative Map 18.21
          • (3) Four or Fewer Lots 18.22
      • 2. Educational Facilities 18.23
        • a. School Impact Fees 18.24
          • (1) Purpose and Application 18.25
          • (2) Process for Imposing School Impact Fees
            • (a) Adoption of Resolution 18.26
            • (b) Limitations on Fees
              • (i) Maximum Fees 18.27
              • (ii) Special Rules for Manufactured Homes and Mobilehomes 18.28
            • (c) Commercial and Industrial Development 18.29
            • (d) Reasonable Relationship Requirement; Nexus Studies 18.30
            • (e) Alternative Calculation of Fee 18.31
            • (f) Overlapping Districts 18.32
          • (3) Exemptions 18.33
          • (4) Refunds and Challenges 18.34
        • b. The School Facilities Act 18.35
          • (1) Process for Imposing Exactions 18.36
          • (2) Limitations 18.37
          • (3) Relationship With Other Statutes; Challenges 18.38
      • 3. Building Permits 18.39
      • 4. Development Agreements 18.40
      • 5. The Mello Act 18.41
      • 6. The San Marcos Legislation 18.42
      • 7. CEQA 18.43
      • 8. Community Redevelopment 18.44
      • 9. Regional Plans
        • a. Air Quality Management Districts 18.45
        • b. Regional Planning Districts 18.46
      • 10. Additional Limitations on Authority
        • a. Housing 18.47
        • b. Maintenance and Operation of Public Facilities 18.48
  • III. PROCEDURES FOR ADOPTION OF DEVELOPMENT FEES 18.49
    • A. Application of Mitigation Fee Act 18.50
      • 1. Definitions 18.51
      • 2. Limitations 18.52
    • B. Fee Adoption Process 18.53
    • C. Reasonable Relationship Requirement 18.54
    • D. Nexus Studies 18.55
      • 1. Studies Examined by Courts 18.56
      • 2. Preparing a Nexus Study 18.57
      • 3. Nexus Study Examples
        • a. San Francisco's Transit Impact Development Fee Ordinance Nexus Study 18.58
        • b. Residential Nexus Studies 18.58A
      • 4. Data Supporting Fee 18.59
      • 5. Update of Study 18.60
    • E. Collecting and Expending Development Fees
      • 1. Fee Collection 18.61
      • 2. Accounting and Expenditure 18.62
      • 3. Findings Related to Unexpended Funds 18.63
      • 4. Refunds 18.64
  • IV. CHALLENGES TO DEVELOPMENT FEES AND DEDICATIONS
    • A. Overview of Statutory Authority 18.65
    • B. Standards of Judicial Review 18.65A
      • 1. Constitutional Standards 18.66
        • a. Development Fees
          • (1) Generally Applicable Fees
            • (a) "Substantially Advance State Interest" Test 18.67
            • (b) "Rational Basis" Test 18.68
          • (2) Ad Hoc Fees 18.69
        • b. Dedications
          • (1) Ad Hoc Dedications 18.70
          • (2) Generally Applicable Dedications 18.71
        • c. Special Taxes 18.72
      • 2. Statutory Standards
        • a. Mitigation Fee Act 18.73
        • b. Vesting Tentative Maps 18.74
    • C. Procedures for Challenging Exactions
      • 1. Government Code §§66020 and 66021 18.75
        • a. Procedural Variations 18.76
        • b. Effect of Successful Challenge Under Govt C §66020 18.77
      • 2. Government Code §66022 18.78
      • 3. Statute of Limitations: Facial Challenge to Development Fee Ordinance 18.79
      • 4. Independent Audit 18.80
    • D. Class Actions 18.81
    • E. Challenges Alleging Misuse of Development Fees 18.82
  • V. ASSESSMENT DISTRICTS
    • A. Procedures for Levying Special Assessments 18.83
    • B. Special Districts
      • 1. Landscaping and Lighting Act 18.84
      • 2. Mello-Roos Community Facilities District 18.85
        • a. Types of Services and Facilities Financed 18.86
        • b. Procedures for Establishing a District 18.87
      • 3. County Service Areas 18.88

19

Substantive and Procedural Due Process and Equal Protection Claims

Andrew B. Sabey

Katherine E. Stone

  • I. INTRODUCTION 19.1
  • II. SUBSTANTIVE DUE PROCESS
    • A. Substantive Due Process in Land Use Decisions 19.2
    • B. Differences Between Federal and State Substantive Due Process Claims 19.3
    • C. Federal Substantive Due Process Claims
      • 1. Case Law Background 19.4
      • 2. Essential Elements
        • a. Protected Property Interest 19.5
        • b. Arbitrary and Irrational Government Action 19.6
      • 3. Ripeness 19.7
      • 4. Substantive Due Process Claims After Armendariz and Lingle 19.8
      • 5. Distinguishing Substantive Due Process From Takings, Equal Protection, and Other Claims 19.9
    • D. State Substantive Due Process Claims 19.10
      • 1. The Regional Welfare Doctrine 19.11
      • 2. Arbitrary and Discriminatory Action 19.12
      • 3. Arbitrary and Capricious Standard 19.13
      • 4. Repeated Denials of Project Applications and Procedural Errors 19.14
      • 5. Damages Are Not Available for Violation of Substantive Due Process Under the California Constitution 19.15
  • III. PROCEDURAL DUE PROCESS
    • A. Procedural Due Process Under Federal Law
      • 1. Essential Elements of Claim 19.16
        • a. Adjudicatory versus Legislative Proceedings 19.17
        • b. Deprivation of Protected Property Interest 19.18
      • 2. Ripeness 19.19
    • B. Procedural Due Process Under State Law
      • 1. Introduction 19.20
      • 2. Essential Elements
        • a. Adjudicatory Action 19.21
        • b. Deprivation of Significant Property Interest 19.22
        • c. Notice 19.23
        • d. Fair Hearing 19.24
          • (1) Bias 19.25
          • (2) Ex Parte Contacts 19.26
          • (3) Separation of Investigatory/Advocacy Role From Advisory/Decision-Making Role 19.27
          • (4) Necessity of Findings 19.28
      • 3. Due Process in Administrative Proceedings (Administrative Procedure Act) 19.29
    • C. California Conflict of Interest Law; Bias 19.30
    • D. Fact Patterns Giving Rise to Procedural Due Process Claims 19.31
  • IV. EQUAL PROTECTION
    • A. Federal Law
      • 1. The Equal Protection Clause 19.32
      • 2. Suspect Classification; Strict Scrutiny Test 19.33
      • 3. Rational Relationship Test 19.34
      • 4. Similarly Situated Property Treated Differently 19.35
      • 5. Class of One 19.36
      • 6. Fundamental Right 19.37
      • 7. Vindictive Action, Illegitimate Animus, Ill Will 19.38
      • 8. Pretextual Rationale 19.39
      • 9. Ripeness 19.40
    • B. State Constitutional Law 19.41
      • 1. Elements of a State Equal Protection Claim 19.42
        • a. Similarly Situated Property Treated Differently 19.43
        • b. Rational Basis 19.44
        • c. Strict Scrutiny
          • (1) Fundamental Rights 19.45
          • (2) Protected Class 19.46
      • 2. Damages Are Not Available Under the California Constitution 19.47
    • C. Fact Patterns That Give Rise to Equal Protection Claims
      • 1. Selective Enforcement 19.48
      • 2. Deviation From Government's Own Rules 19.49
      • 3. Spot Zoning 19.50
  • V. THE CIVIL RIGHTS ACT (42 USC §1983)
    • A. Section 1983 Provides a Remedy, Not a Separate Claim 19.51
    • B. Attorney Fees 19.52

20

Code Enforcement

Michael E. Gogna

  • I. INTRODUCTION 20.1
    • A. What Is Code Enforcement? 20.2
    • B. Typical Goals and Methods of Code Enforcement 20.3
    • C. Organizational Structure for Code Enforcement 20.4
    • D. Authority for Code Enforcement
      • 1. Constitutional Authority 20.5
      • 2. Statutory Authority
        • a. Regulatory State Statutes 20.6
        • b. Local Agencies' Nuisance Abatement Ordinances 20.7
        • c. Local Agencies' Administrative Sanctions 20.8
  • II. IMPLEMENTATION OF CODE ENFORCEMENT 20.9
    • A. Code Enforcement Legislation 20.10
    • B. Policies and Procedures 20.11
    • C. Property Inspections
      • 1. Due Process Considerations 20.12
      • 2. Is a Warrant Necessary? 20.13
  • III. METHODS OF CODE ENFORCEMENT
    • A. Introduction to Enforcement Methods 20.14
    • B. Criminal Prosecution
      • 1. Initiating Criminal Prosecution 20.15
      • 2. Strict Liability and Criminal Intent 20.16
      • 3. Procedures for Violations Charged as Misdemeanors 20.17
      • 4. Procedures for Violations Charged as Criminal Infractions 20.18
      • 5. Remedies in Criminal Prosecution 20.19
      • 6. Probation Conditioned on Compliance 20.20
      • 7. Alternative Methods of Criminal Disposition
        • a. Bail Forfeiture 20.21
        • b. Community Service 20.22
    • C. Civil Action
      • 1. Civil Injunctions 20.23
      • 2. Contempt Proceedings for Enforcement of Injunction 20.24
      • 3. Abatement by Local Agency Under Court Order 20.25
      • 4. Civil Fines or Penalties 20.26
      • 5. Appointment of Receiver 20.27
      • 6. Recordation of Lis Pendens 20.28
    • D. Administrative Enforcement 20.29
      • 1. Due Process Considerations 20.30
      • 2. Adequate Notice 20.31
      • 3. Opportunity for Hearing 20.32
        • a. Hearing Process 20.33
        • b. Burden of Proof 20.34
        • c. Informal Proceeding 20.35
      • 4. Fair and Impartial Hearing
        • a. Hearing Officer or Hearing Body 20.36
        • b. Agency's Legal Counsel 20.37
      • 5. Summary Abatement of Nuisance Conditions Without Due Process 20.38
      • 6. Administrative Remedies 20.39
  • IV. AGENCY'S COST RECOVERY IN CODE ENFORCEMENT CASES
    • A. General Cost Recovery 20.40
    • B. Recovery of Costs Under Specific Statutes 20.41
      • 1. Unfair Business Practices 20.42
      • 2. Certain Specified Public Nuisances 20.43
    • C. No Cost Recovery for Criminal Prosecution; Restitution for Graffiti 20.44
    • D. Treble Damages for Repeat Violations 20.45
    • E. Punitive Damages 20.46
    • F. Collection
      • 1. Liens and Assessments 20.47
      • 2. Disallowance of State Tax Deductions 20.48
  • V. COMMON DEFENSES AND RESPONSES TO CODE ENFORCEMENT
    • A. Invalid Regulation 20.49
    • B. Vague or Overbroad Regulations 20.50
    • C. Laches and Estoppel 20.51
    • D. Vested Rights 20.52
    • E. Discriminatory or Selective Enforcement 20.53
  • VI. SUMMARY 20.54

21

Land Use Litigation

Julia L. Bond

Joseph P. DiCiuccio

Daniel L. Siegel

  • I. INTRODUCTION 21.1
  • II. OVERVIEW OF MANDATE PROCEEDINGS
    • A. Types of Mandate 21.2
    • B. Deadlines for Filing Petition 21.3
      • 1. Administrative Mandate 21.4
      • 2. Traditional Mandate 21.5
  • III. THE MANDATE LITIGATION PROCESS
    • A. Preliminary Preparation
      • 1. Obtaining Information 21.6
      • 2. Participating in the Administrative Process 21.7
    • B. Drafting the Mandate Petition
      • 1. The Parties 21.8
      • 2. Substantive Allegations 21.9
    • C. Pretrial Proceedings
      • 1. Obtaining Stay Pending Hearing: Administrative Mandate 21.10
      • 2. Obtaining Stay Pending Hearing: Traditional Mandate 21.11
      • 3. Requesting Administrative Record 21.12
      • 4. Responding to the Mandate Petition 21.13
      • 5. Setting a Hearing Date 21.14
      • 6. Briefing the Case 21.15
      • 7. Oral Argument 21.16
    • D. Evidence at Trial
      • 1. Administrative Mandate 21.17
      • 2. Traditional Mandate 21.18
    • E. Standard of Review 21.19
      • 1. Administrative Mandate 21.20
      • 2. Traditional Mandate 21.21
  • IV. AFFIRMATIVE DEFENSES TO MANDATE ACTIONS
    • A. Statute of Limitations 21.22
      • 1. Determining Which Statute Applies 21.23
      • 2. When Service Is Required 21.24
      • 3. When Statute Begins to Run 21.25
    • B. Table: Statutes of Limitations in Land Use Challenges 21.26
    • C. Exhaustion of Administrative Remedies 21.27
      • 1. Raising Issues at Administrative Proceedings 21.28
      • 2. Taking Required Administrative Appeals 21.29
      • 3. Exceptions to Exhaustion Requirement 21.30
    • D. Indispensable Parties 21.31
    • E. Standing 21.32
  • V. MANDATE REMEDIES, APPEALS, AND ADR
    • A. Remedies 21.33
      • 1. Remedies Available in Administrative Mandate 21.34
      • 2. Remedies Available in Traditional Mandate 21.35
      • 3. Return on Writ 21.36
    • B. Appeals
      • 1. Stay Pending Appeal 21.37
      • 2. Final Judgment Rule 21.38
    • C. Settlement or Alternative Dispute Resolution 21.39
  • VI. SPECIAL LAND USE LITIGATION PROCEEDINGS
    • A. CEQA Cases
      • 1. Statutes of Limitations 21.40
      • 2. Limitations Periods for Challenges Based on CEQA 21.41
      • 3. Litigation Procedures 21.42
        • a. Service of Summons; Notice 21.43
        • b. Public Agency List 21.44
        • c. Request for Administrative Record 21.45
        • d. Settlement Meeting 21.46
        • e. Response; Statement of Disputed Issues 21.47
        • f. Scheduling Hearing and Briefing 21.48
        • g. Expedited Appeal Process 21.49
      • 4. Judicial Standard of Review 21.50
      • 5. Remedies 21.51
      • 6. Effect of Failing to File a CEQA Challenge 21.52
    • B. Validation Actions
      • 1. Nature of Validation Actions 21.53
      • 2. Table: Certain Statutes Requiring Use of Validation Action 21.54
      • 3. Statute of Limitations 21.55
      • 4. Procedural Requirements 21.56
        • a. Publication of Summons; Notice of Action 21.57
        • b. Response and Cross-Complaint 21.58
        • c. Reverse Validation Action 21.59
        • d. Consolidation and Trial Preference 21.60
        • e. Effect of Dismissal 21.61
        • f. Validation Remedy Exclusive 21.62
      • 5. Judgment; Expedited Appeal 21.63
    • C. Declaratory Relief
      • 1. Available to Challenge Validity of Statute or Regulation 21.64
      • 2. Not Available to Challenge Adjudicatory Actions 21.65
    • D. SLAPPs and Anti-SLAPP Motions to Strike 21.66
      • 1. Definition of SLAPPs 21.67
      • 2. Defenses to SLAPPs
        • a. Constitutionally Protected Free Speech 21.68
        • b. Right to Petition Government for Redress 21.69
        • c. Anti-SLAPP Motions to Strike 21.70
          • (1) Scope of Anti-SLAPP Statute 21.71
          • (2) Procedures Under Anti-SLAPP Statute 21.72
          • (3) Attorney Fees Under Anti-SLAPP Statute 21.73
          • (4) Table: Anti-SLAPP Motions in Selected Reported Land Use Cases 21.74
  • VII. TAKINGS, DUE PROCESS, AND EQUAL PROTECTION LITIGATION
    • A. Overview of Litigation Procedures
      • 1. Normal Litigation Rules Apply 21.75
      • 2. Federal Civil Rights Act (42 USC §1983) 21.76
    • B. Affirmative Defenses
      • 1. Ripeness 21.77
        • a. Final Decision Requirement
          • (1) Federal Court Actions 21.78
          • (2) State Court Actions 21.79
          • (3) Exceptions to the Final Decision Requirement 21.80
            • (a) Facial Challenge 21.81
            • (b) Futility 21.82
        • b. Federal Suits: Must First Utilize State Procedures
          • (1) State Procedures Must Be Adequate 21.83
          • (2) California Procedures Held Adequate 21.84
          • (3) Effect of Issue Preclusion 21.85
        • c. Application to Substantive Due Process Claims 21.86
        • d. Application to Procedural Due Process Claims 21.87
        • e. Application to Equal Protection Claims 21.88
        • f. State Suits: Must Exhaust State Judicial Remedies 21.89
        • g. Relationship to Statute of Limitations 21.90
      • 2. Statute of Limitations
        • a. Time Periods for Section 1983 Claims 21.91
        • b. Time Periods for Takings and Other Claims 21.92
        • c. Accrual 21.93
          • (1) Facial Claims 21.94
          • (2) As-Applied Claims 21.95
        • d. Tolling 21.96
          • (1) Continuing Wrong 21.97
          • (2) Moratorium 21.98
          • (3) Regulation Extensions 21.99
          • (4) Negotiations 21.100
          • (5) Intentional Concealment 21.101
      • 3. Standing 21.102
      • 4. Eleventh Amendment Immunity 21.103
    • C. Discovery Issues
      • 1. Normal Rules Apply 21.104
      • 2. Legislative Privilege
        • a. Legal Basis; Application 21.105
        • b. Exceptions 21.106
        • c. Federal Privilege Narrower 21.107
    • D. Pretrial Dispositive Motions 21.108
    • E. Trial Issues
      • 1. Jury Trial 21.109
      • 2. Bifurcation 21.110
      • 3. Use of Experts 21.111
    • F. Remedies
      • 1. Damages for Takings Claims 21.112
        • a. Permanent Taking 21.113
        • b. Temporary Taking 21.114
      • 2. Damages for Due Process and Equal Protection Claims 21.115
      • 3. Injunction 21.116
      • 4. Attorney Fees 21.117

Selected Developments

October 2017 Update

This update addresses the most significant statutory and regulatory changes since the previous update was published. It also includes discussion and analysis of relevant cases. Among the most significant developments and improvements in this book since the last update are the following:

General and Specific Plans

Effective January 1, 2017, Govt C §65302(g) was amended to require that, on each revision of the housing element, the safety element must also be reviewed and revised, if necessary, to identify new information relating to flood and fire hazards not available during the previous revision of the safety element. See Govt C §65302(g)(6), discussed in §2.23.

Effective January 1, 2017, Govt C §65302 was also amended to add environmental justice as a new mandatory element of a city's or a county's general plan. See new Govt C §65302(h), discussed in §2.23A.

In a case on the consistency of a development project with a city's general plan, Spring Valley Lake Ass'n v City of Victorville (2016) 248 CA4th 91, the court explained that "a project's consistency with a general plan's broader policies cannot overcome a project's inconsistency with a general plan's more specific, mandatory and fundamental policies." See §2.30.

In Orange Citizens for Parks & Recreation v Superior Court (2016) 2 C5th 141, the court rejected a city's attempt to overcome a successful referendum (which repealed a general plan amendment) through an "administrative correction" to the property's permitted land uses. The court also found the city abused its discretion in finding a residential development project consistent with its general plan when a land use policy map and the text of a specific plan showed a different land use designation for the property. See §§2.36, 4.25, 10.12.

Zoning

Under the 2017 amendments to the statutes governing "second units" (now called "accessory dwelling units," see §6.3), a local government may not adopt an ordinance prohibiting accessory dwelling units, and under certain circumstances, must ministerially approve an application for a building permit to create within a single-family residential zone one accessory dwelling unit per single family lot. See Govt C §65852.2, discussed in §4.27.

In Hernandez v Town of Apple Valley (2017) 7 CA5th 194, the court held that a zoning ordinance adopted by initiative may not name or identify any private corporation to perform any function or have any power or duty, citing Cal Const art II, §12. See §4.38.

Sustainability and Climate Change Regulations

In 2016, California expanded its existing goals for reducing greenhouse gas (GHG) emissions by adopting Health & S C §38566, which requires statewide GHG emissions to be reduced to at least 40 percent below 1990 levels by December 31, 2030. See §§5.1—5.2.

In February 2017, CARB released its draft 2017 Climate Change Scoping Plan Update to meet the new statewide GHG reduction goal of 40 percent below 1990 emission levels by December 31, 2030. The draft plan promotes land use planning that is based on smart growth and infill development. See §5.3.

For those of you following the litigation challenging the air quality guidelines of the Bay Area Air Quality Management District (BAAQMD) (containing thresholds of significance for GHG emissions and standards for adopting GHG Reduction Plans), you will recall that in 2015, the California Supreme Court held that BAAQMD's guidelines are valid only in part (reversing the appellate court's decision), and remanded the case for the court of appeal to address further arguments. California Bldg. Indus. Ass'n v Bay Area Air Quality Mgmt. Dist. (2015) 62 C4th 369. On remand, the First District held that although an air quality district's thresholds may be used to analyze whether a proposed project would worsen existing environmental conditions, the lead agency may not require an EIR or mitigation measures solely because future residents, employees, or users of a project may be exposed to health risks from a nearby generator of air pollution. California Bldg. Indus. Ass'n v Bay Area Air Quality Mgmt. Dist. (2016) 2 CA5th 1067. Both decisions are discussed in §5.4.

Housing

Effective January 1, 2017, the statutes governing residential "second units" (primarily Govt C §65852.2) were extensively amended to make it generally easier for property owners to get approval for creation of second units. Under the revised statutes, the term "second unit" has been replaced with "accessory dwelling unit." See §6.3.

Effective January 1, 2017, California's density bonus laws have been expanded to apply to housing for transitional youths, disabled veterans, and homeless persons. See §§6.4, 6.6, 6.10.

Also effective January 1, 2017, the California State Legislature created a new "development bonus" for certain partnered housing projects that build affordable housing. See new Govt C §65915.7, discussed in §6.14.

The parking ratio requirements for density bonus developments under Govt C §65915(p) have been reduced for (1) developments consisting of the maximum percentages of affordable units and near a major transit stop, (2) rental housing developments for persons aged 62 and older, and (3) special needs housing developments with available transit options. See §6.15.

The parties who may enforce the requirements set forth in Govt C §65589.5 (regarding approval or denial of projects for emergency shelters or certain affordable housing) have been expanded to include a "housing organization" as defined in Govt C §65589.5(k)(2). See §§6.16, 18.47.

Conditional Use Permits; Conditions of Land Use Approval

In a case involving a vested right in an approved building permit for construction of a crematorium, Stewart Enters., Inc. v City of Oakland (2016) 248 CA4th 410, the court found that a later-enacted emergency ordinance requiring a conditional use permit to operate crematoria was not sufficiently necessary to the public welfare to justify impairment of the landowner's vested right. See §7.33.

In July 2017, the California Supreme Court affirmed the Fourth District Court of Appeal's ruling that coastal blufftop homeowners' acceptance of the benefits of a permit issued by the Coastal Commission barred them from challenging various conditions of that permit. Lynch v California Coastal Comm'n (2017) 3 C5th 470. See §7.44.

Specially Regulated Land Uses

In Lamar Cent. Outdoor, LLC v City of Los Angeles (2016) 245 CA4th 610, the court upheld the city's ban on alterations to legally existing offsite signs—billboards with commercial messages in locations other than at a property owner's business—because the ban was not content-based and it directly related to the city's stated objectives of traffic safety and aesthetics. The Lamar opinion has a detailed analysis of commercial sign regulation jurisprudence. See §12.11.

Another sign regulation case, Citizens for Free Speech, LLC v County of Alameda (ND Cal 2016) 194 F Supp 3d 968, held that an ordinance that favors official public signs over other non-public signs is likely content-based and subject to strict scrutiny. See §12.13.

In 2016, the California State Legislature enacted the Control, Regulate and Tax Adult Use of Marijuana Act (AUMA), which was approved by California voters as Proposition 64. See §12.62 for discussion of AUMA's key provisions.

Effective June 27, 2017, the California State Legislature enacted the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) (Bus & P C §§26000—26231.2), which effectively repealed and replaced the Medical Cannabis Regulation and Safety Act (MCRSA) (former Bus & P C §§19300—19360 and former Health & S C §§11362.769, 11362.777, enacted in 2015), made several amendments to the AUMA, and combined medical and recreational cannabis laws into one comprehensive piece of legislation. See §12.62.

Adding to the well-established case law upholding local agencies' authority to regulate medical marijuana activity, is Safe Life Caregivers v City of Los Angeles (2016) 243 CA4th 1029 ("neither the CUA nor the MMPA creates АШa state right to cultivate, distribute, or otherwise obtain marijuana collectively, and thereafter to possess and use it, for medical purposes'"). See §12.62.

CEQA; Environmental Review and Mitigation

The most significant recent CEQA cases include the following:

  • Union of Med. Marijuana Patients v City of Upland (2016) 245 CA4th 1265 (ordinance that restates existing prohibition on mobile medical marijuana dispensaries is not a project for CEQA purposes); see §13.14.

  • Union of Med. Marijuana Patients v City of San Diego (review granted Jan. 11, 2017, S238563; superseded opinion at 4 CA5th 103) (ordinance regulating number and location of medical marijuana dispensaries is not a project, absent showing it may cause either a direct or reasonably foreseeable indirect physical change to environment); see §13.14.

  • Delaware Tetra Technols., Inc. v County of San Bernardino (2016) 247 CA4th 352 (MOU establishing process for completing groundwater management plan not a project when county retained full discretion to approve or disapprove plan after consideration of final EIR); see §13.15.

  • Walters v City of Redondo Beach (2016) 1 CA5th 809 (small structure exemption for car wash and coffee shop); see §13.18.

  • In California Bldg. Indus. Ass'n v Bay Area Air Quality Mgmt. Dist. (2015) 62 C4th 369, the California Supreme Court confirmed that CEQA generally does not require analysis of the effect of the environment on a project ("reverse CEQA"—as opposed to the project's effects on the environment), but held that CEQA does require analysis of how the project exacerbates or worsens existing environmental conditions. On remand, the court of appeal explained, "while CEQA cannot be used by a lead agency to require a developer or other agency to obtain an EIR or implement mitigation measures solely because the occupants or users of a new project would be subjected to [existing environmental hazards], an agency may do so voluntarily on its own project." California Bldg. Indus. Ass'n v Bay Area Air Quality Mgmt. Dist. (2016) 2 CA5th 1067, 1083. See §13.22.

  • Friends of the Willow Glen Trestle v City of San Jose (2016) 2 CA5th 457 (substantial evidence standard applies to agency determination that EIR was not required for demolition of railroad trestle bridge alleged by project opponents to be historic resource); see §13.22.

  • East Sacramento Partnerships for a Livable City v City of Sacramento (2016) 5 CA5th 281, 301 (compliance with general plan in and of itself does not insulate project from EIR requirement when it can be fairly argued that project will generate significant environmental effects); see §13.22.

  • Mission Bay Alliance v Office of Community Inv. & Infrastructure (2016) 6 CA5th 160 (land use impacts of arena project were appropriately scoped out during initial study process; quantitative assessment of GHG emissions not required when EIR includes qualitative assessment of project's adherence to regulatory program with performance-based methodology for reducing GHG emissions); see §§13.27, 13.62B.

  • Spring Valley Lake Ass'n v City of Victorville (2016) 248 CA4th 91, 108 (extensive redesign of stormwater management plan and resulting 350 pages of new technical information required recirculation of EIR); see §§13.48—13.49.

  • Friends of the College of San Mateo Gardens v San Mateo County Community College Dist. (2016) 1 C5th 937 (whether initial environmental document remains relevant despite changed circumstances to project is predominantly factual question for agency to answer); see §13.57.

  • San Diegans for Open Gov't v City of San Diego (2016) 6 CA5th 995 (CEQA does not require public agency to provide right to administrative appeal of its determination that a project modification does or does not require subsequent CEQA review); see §13.57.

  • Ukiah Citizens for Safety First v City of Ukiah (2016) 248 CA4th 256 (use of addendum to remedy EIR's deficient energy analysis was improper); see §§13.33, 13.58.

  • Center for Biological Diversity v Department of Fish & Wildlife (2016) 62 C4th 204 (Fish & Game Code §5515 prohibits taking or possession of fully protected fish species as CEQA mitigation of project impacts; consistency with meeting statewide emissions reduction goals was acceptable threshold of significance, but EIR analysis invalid when it did not correlate statewide goals with individual project emissions reductions). See §§13.40, 13.62B.

  • Bay Area Citizens v Association of Bay Area Gov'ts (2016) 248 CA4th 966 (in developing their regional plans, regional planning agencies should not include GHG emissions reductions expected to occur from statewide reduction requirements); see §13.62C.

Federal and Regional Regulations; Coastal Commission; Water Pollution; LAFCOs

In U.S. Army Corps of Eng'rs v Hawkes Co., Inc. (2016) ___ US ___, 136 S Ct 1807, the U.S. Supreme Court held that an approved jurisdictional determination is a final agency action which is judicially reviewable under the federal Administrative Procedure Act. See §14.10.

In a case regarding point source pollution and exemptions from the NPDES permit requirements, Pacific Coast Fed'n of Fishermen's Ass'ns v Murillo (ED Cal 2016) 2016 US Dist Lexis 119325, the court held that the application of the "irrigation return flow" exemption requires an inquiry into whether a majority of the total commingled discharge is related to crop production. See §14.33.

Regarding the Endangered Species Act (ESA) (16 USC §§1531—1544), the regulatory definition of "destruction or adverse modification" of critical habitat under 50 CFR §402.02 was amended in 2016 to cover activities that may "alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features." See §14.43.

Effective January 1, 2017, the California statute prohibiting water pollution was amended to subject water polluters to a civil penalty of not more than $10 for each gallon or pound of material discharged. However, the total amount of the civil penalty will be reduced for every gallon or pound of the illegally discharged material that is recovered and properly disposed of by the responsible party. See §14.52, and Fish & G C §5650.1(i) as amended.

Other Laws Related to Land Use Regulation

The Brown Act requirements for posting agendas for meetings of legislative bodies have been amended to require the online posting to appear on the agency's "primary" website homepage, accessible through a prominent direct link from the homepage, unless the agency has an "integrated agenda management platform" meeting certain requirements. See Govt C §54954.2(a)(2) discussed in §15.15.

Under a recent amendment to Govt C §65950, for a development project consisting of either (1) residential units only or (2) mixed uses in which nonresidential units comprise less than 50 percent of the total square footage, the time period within which the lead agency must approve or disapprove the project is 120 days from the date of certification of the CEQA document. Under a related amendment to Govt C §65952(b), for a responsible agency other than the California Coastal Commission, the time limit to take action on such a development project is the longer of either 90 days from the date the lead agency approves the project or 90 days from the date the responsible agency has accepted the application as complete. See §15.28.

Vested Rights

In Stewart Enters., Inc. v City of Oakland (2016) 248 CA4th 410, the court applied the rule established in Davidson v County of San Diego (1996) 49 CA4th 639 (allowing agencies to impair vested rights if necessary to protect public health and safety) to an ordinance requiring a conditional use permit to operate a crematorium adopted after the crematorium obtained a building permit. See §16.24.

Regulatory Takings; Rent Control

The U.S. Supreme Court clarified the parcel-as-a-whole rule in its much-anticipated decision in Murr v Wisconsin (2017) ___ US ___, 137 S Ct 1933. The case concerned the takings claims of petitioners who own two adjacent lots, but under a county zoning ordinance can build only one residence. The underlying question was how to assess the economic impact of that ordinance. In a 5—3 vote, the Court ruled that, for purposes of calculating the loss to the property owners, the two adjacent properties may be considered as a single unit because state law had merged the lots, the physical characteristics supported treatment as a unified parcel, and the parcels could not be sold or built on separately. See §17.28.

In City of Perris v Stamper (2016) 1 C5th 576, the supreme court ruled that in inverse condemnation actions, the court (not the jury) decides whether there has been a taking, citing Hensler v City of Glendale (1994) 8 C4th 1 and other cases. See §17.59.

General and Special Taxes; Exactions

In 616 Croft Ave., LLC v City of W. Hollywood (2016) 3 CA5th 621, the court held that Govt C §66477 does not preclude local agencies from imposing a development impact fee based on the total number of housing units rather than the net number of units. The court also held that because an in-lieu fee to subsidize low-income housing is not a special tax, the government does not bear the burden to show the reasonableness of the fee. See §§18.56, 18.67, 18.72, 18.76.

In Coyne v City & County of San Francisco (2017) 9 CA5th 1215, the court held that San Francisco's controversial relocation fee ordinance No. 54—14 was preempted by the Ellis Act. See §18.71.

In Building Indus. Ass'n of the Bay Area v City of San Ramon (2016) 4 CA5th 62, the city established a community facilities district under the Mello-Roos Act to fund provision of essential services to a new 48-acre townhouse project. The court held that the district, which would address "increased demand" created by the project for existing services, was consistent with Govt C §53313. See §18.86.

Due Process and Equal Protection

In Center for Powell Crossing, LLC v City of Powell (SD OH 2016) 173 F Supp 3d 639, the court held that the city did not violate substantive due process with respect to a voter-approved amendment to the city charter that required a commission comprised of five private citizens to draft a new comprehensive zoning and development plan for the city, because the amendment was placed on the ballot pursuant to a writ of mandamus issued by the state court. See §§19.2, 19.36.

In Drakes Bay Oyster Co. v California Coastal Comm'n (2016) 4 CA5th 1165, the court ruled that due process did not preclude Coastal Commission employees who had acted as advocates for the enforcement orders in the administrative proceedings from participating in the litigation. See §19.27.

Land Use Litigation

In 2016, the California Supreme Court decided two cases involving anti-SLAPP motions under CCP §425.16. First, in Baral v Schnitt (2016) 1 C5th 376, the Court held that when a challenged claim alleged to be supported by protected activity appears alongside other claims within a single cause of action, the plaintiff may not defeat the defendant's anti-SLAPP motion to strike by demonstrating a probability of prevailing on "any part" of the aggregate cause of action; rather, the plaintiff must demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated to warrant a favorable judgment. See §21.71.

The second anti-SLAPP case was City of Montebello v Vasquez (2016) 1 C5th 409 (waste-hauling contract voided by judicial order after city filed action against city council members and city administrator for declaratory relief to void contract and for disgorgement of campaign contributions made to council members allegedly having financial interest in the contract; city administrator and city council members' alleged acts in connection with waste-hauling contract were protected activities). See §21.72.

A third anti-SLAPP case was decided by a court of appeal and is now pending review by the California Supreme Court. See Rand Resources, LLC v City of Carson (review granted Sept. 21, 2016, S235735; superseded opinion at 247 CA4th 1080) (denying motion to strike filed by city and developer in NFL stadium development project), discussed in §21.74.

About the Authors

ADAM U. LINDGREN, author of chapters 1, 15, and 16, and coauthor of chapters 2, 9, and 14, is a principal at Meyers Nave and in charge of the firm's Sacramento office. He received his B.A. (cum laude) from Columbia College, Columbia University, in 1990, and his J.D. (with distinction as Public Interest Law Scholar) from Georgetown University Law Center in 1993. Mr. Lindgren specializes in land use and municipal law, and is the City Attorney for the City of Rancho Cordova, and the former City Attorney and current Assistant City Attorney for the City of Fort Bragg. He is an active member of the League of California Cities City Attorneys Department, and he has served as a member of the Ad Hoc Committee on Ethics and Practice Management (2004), Municipal Law Handbook Revision Committee (2003—2004), and chair of the Municipal Law Handbook 2003 Editorial Board. He was co-chair of the American Bar Association Committee on State and Local Government Subcommittee on Education and Impact Fees in 1997—1998. In 2005 Mr. Lindgren was designated a Northern California "Super Lawyer" by Law and Politics magazine (appearing in San Francisco magazine). Mr. Lindgren regularly makes land use presentations to conferences sponsored by the League of California Cities and the State Bar. Mr. Lindgren has written and edited numerous publications on land use topics, including CEB's California Zoning Practice Update from 2001 to 2005.

STEVEN T. MATTAS, author of chapters 5, 6, and 12, and coauthor of chapters 2 and 14, is a principal at Meyers Nave and chair of that firm's Land Use Practice Group. He received his B.A. in social ecology from the University of California, Irvine, in 1986, his M.A. in urban planning from the University of California, Los Angeles, in 1988, and his J.D. from the University of California, Davis, School of Law in 1991. Mr. Mattas specializes in land use, environmental, and redevelopment law, and advises public agencies. Mr. Mattas serves as City Attorney for the City of South San Francisco (1994—present) and the Town of Los Altos Hills (2002—present). Mr. Mattas previously served as City Attorney in Milpitas and Half Moon Bay. He is a member of the State Bar Environmental Law Section, was a League of California Cities Municipal Law Handbook contributing author (1999—2001), and was author of "SB 1818 Density Bonus Law, the New Math" (League of California Cities, 2005). Mr. Mattas regularly makes land use presentations to conferences sponsored by the League of California Cities and the State Bar. He also served as coauthor for CEB's California Zoning Practice Update from 2001 to 2005.

KENNETH B. BLEY, coauthor of chapter 18, is a partner in the Los Angeles office of Cox, Castle & Nicholson and formerly chaired its Land Use Group. He received his J.D. (magna cum laude) from Harvard Law School in 1974; before receiving his law degree, he was an aerospace engineer, having received his B.S. and M.S. degrees from the University of California, Berkeley, and his Ph.D. from the University of California, Los Angeles. Mr. Bley specializes in land use law and eminent domain, representing developers in obtaining land use approvals and litigation. He serves on the Legal Action Committees of the National Association of Home Builders, the California Building Industry Association, and the Building Industry Association of Southern California, where he is also a director of the Building Industry Legal Defense Foundation. He has also served as a member, vice-chair, and chair of the State Bar Committee on Appellate Courts. He has published numerous articles and has lectured widely in the fields of land use and land use litigation, taught remedies and land use at the University of Southern California Law School for 25 years as an adjunct professor, and taught courses on land use to trial judges in California and other states.

JULIA L. BOND, coauthor of chapter 21, is of counsel at Meyers Nave, specializing in CEQA and land use litigation. She is also a member of the firm's Appellate Group. She received her B.A. in mathematics and government from Smith College (cum laude; Phi Beta Kappa) in 1990 and her J.D. from the University of California, Los Angeles, School of Law in 1993, where she served as editor for the UCLA Law Review. Ms. Bond represents primarily public entity clients in litigation involving a wide range of land use, environmental, and other laws. She represented the City of Rancho Cordova and the developer in a California Supreme Court CEQA case involving water supply issues, and the Los Angeles World Airports in a California Supreme Court case concerning the Public Records Act. She has also served as a Deputy City Attorney for the cities of Yorba Linda and Villa Park (1994—1998), and also has represented private clients in CEQA and land use litigation. She is a member of the State Bar Environmental Law Section.

JERI L. BURGE, author of chapter 7, is the Managing Assistant City Attorney for the Land Use Division of the Los Angeles Office of the City Attorney. She received her undergraduate degree from the University of California, Los Angeles, in 1977 and her J.D. from Loyola Law School in 1981.

JOSEPH J. CHAPMAN, author of chapter 11, is an attorney for the State of California and former associate with Meyers Nave in its Sacramento office. He received his B.A. from the University of Missouri, Columbia, in 1966 and his J.D. from the University of Washington School of Law in 2000. Mr. Chapman specializes in municipal law and is a member of the Sacramento County Bar Association.

JOSEPH P. DICIUCCIO, coauthor of chapter 21, is a Senior Deputy City Attorney for the City of San Jose. He received his B.A. from the University of California, Berkeley, in 1970 and his J.D. from the University of California, Berkeley, School of Law (Order of the Coif), where he was a member of the California Law Review. Mr. DiCiuccio specializes in land use litigation, CEQA, mandamus, and intergovernmental litigation. He is a member of the Santa Clara County Bar Association and is a Judge Pro Tem for the Santa Clara County Superior Court.

KATHLEEN FAUBION, coauthor of chapter 13, is of counsel at Meyers Nave in its Oakland Office. She received her B.A. from Pitzer College, Claremont, California, in 1973, her M.S.W. from the University of Michigan in 1975, and her J.D. from the University of California, Davis, School of Law in 1987. Ms. Faubion specializes in CEQA and land use law and is a member of the American Institute of Certified Planners, the State Bar Public Law Section, and the Association of Environmental Professionals. She is the Legislative Director for the Northern Section California Chapter of the American Planning Association.

SUE A. GALLAGHER, coauthor of chapter 9, is a Deputy County Counsel for the County of Sonoma. She received her B.A. from the University of California, Santa Cruz, in 1977, her M.A. from the University of Chicago in 1981, and her J.D. from the University of California, Berkeley, School of Law in 1985. Ms. Gallagher specializes in land use and local government law and litigation. She is a vice-chair of the Zoning and Land Use Subsection-North of the State Bar Real Property Section, a member of the County Counsels' Association Land Use Section, and a member of the State Bar Environmental Law Section. She has lectured on Subdivision Map Act issues, has testified before the state legislature on local government matters, and was the recipient of the Litigation Award from the County Counsels' Association of California in both 2003 and 2006.

MICHAEL E. GOGNA, author of chapter 20, is an associate with Meyers Nave in its Santa Rosa office. He received his B.A. degree from the University of California, Davis, (cum laude), and his J.D. at Empire School of Law in Santa Rosa (with honors). Mr. Gogna serves as city attorney and redevelopment agency counsel for the cities of Healdsburg and Fort Bragg, assistant town attorney for the Town of Windsor, and as general counsel for the Sweetwater Springs Water District in western Sonoma County. He specializes in land use, municipal, and environmental law, and code enforcement, and has assisted in drafting code enforcement legislation for the cities of Healdsburg, Windsor, Half Moon Bay, San Leandro, Clearlake, and Pinole. He served as chapter editor for the code enforcement chapter for the League of California Cities, Municipal Law Handbook.

THOMAS JACOBSON, author of chapters 3 and 10, is Director of the Institute for Community Planning Assistance at Sonoma State University. He received his B.A. from Sonoma State University, a Master's Degree in City Planning from the University of California, Berkeley, and a J.D. from the University of California, Hastings College of the Law. He has practiced as a land use and environmental attorney and as a planner throughout California, and has lectured widely on various aspects of land use law. He is a member of the American Institute of Certified Planners and the California Planning Roundtable, and was an adjunct professor at the University of San Francisco School of Law. His academic and professional interests include land use and environmental regulation, sustainable development, and environmental justice.

VIVIAN KAHN, FAICP, coauthor of chapter 4 and former chapter 5 (the latter was integrated into chapter 4 in 2009), is an associate principal with Dyett and Bhatia, Urban and Regional Planners, San Francisco, and a principal with Kahn Mortimer Associates, Oakland. Ms. Kahn received her B.A. (cum laude; Phi Beta Kappa) from the City College of New York in 1965. She has drafted general plans, planning studies, land use regulations, and telecommunication policies and regulations for a number of California cities and counties, as well as downtown zoning for Chicago, Illinois. Her clients include many other cities, developers, schools, and the State of California. She has lectured extensively in the fields of land use planning and CEQA and as an adjunct instructor at the University of California Extension (Berkeley and Davis) from 1996 to the present. She is a fellow and charter member of the American Institute of Certified Planners (AICP), a former board of directors and executive committee member of the American Planning Association, a member of the editorial advisory board of the Journal of the American Planning Association, and a current member of the California Planning Roundtable.

MARY JO LANZAFAME, author of chapter 8, is Senior Deputy County Counsel for the County of San Diego. She received her B.A. from the University of California, Santa Cruz, and her J.D. from California Western School of Law, San Diego. Ms. Lanzafame specializes in land use and municipal law, with 19 years of experience in the field. From 2004 to the present, she has been an adjunct professor for the graduate program in land use and environmental law at the San Diego State University School of Public Administration and Urban Studies.

R. CLARK MORRISON, coauthor of chapter 13, is a partner in Morrison & Foerster, LLP, in the firm's San Francisco Bay Area and Sacramento offices. He received his A.B. with High Distinction from the University of California, Berkeley, in 1984 and his law degree from the University of California, Berkeley, School of Law in 1987. He specializes in land use, CEQA, NEPA, natural resources, wetlands and endangered species regulation, mining and timber, public lands, water rights and water quality permitting, and litigation. His clients include public agencies, commercial and industrial developers, environmental organizations, agricultural concerns, energy companies and home builders. He has lectured and written extensively on land use, natural resource, and environmental issues for University of California Extension (Davis and Berkeley), University of California, Berkeley, School of Law, University of San Francisco Law School, Chapman University, San Jose State University, the American Bar Association, the Association of Environmental Professionals, CLE International, and a number of other professional organizations and periodicals. He also serves on the advisory board of the California Land Use Law and Policy Reporter.

DANIEL A. MULLER, coauthor of chapter 4 and former chapter 5 (the latter was integrated into chapter 4 in 2009), is a partner with Morgan Miller Blair, Walnut Creek. He received his B.S. and B.A. degrees from the University of California, Davis, and his J.D. degree from the University of California, Davis, School of Law. Mr. Muller specializes in land use law, eminent domain, and inverse condemnation. He represents property owners, business owners, home builders, and developers seeking project entitlements from, or facing condemnation of their property by, public entities such as cities, counties, state agencies, and special districts. He is a member of the State Bar Real Property Law, Environmental Law, and Civil Litigation Sections, and vice-chair of the Zoning and Land Use Subsection-North of the State Bar Real Property Law Section. From 2003 to 2005 he was president of the Litigation Section of the Contra Costa County Bar Association and has served as co-chair of the Contra Costa Council's Land Use Task Force since 2004.

ANDREW B. SABEY, coauthor of chapter 19, is a partner in the Walnut Creek office of Morrison & Foerster, LLP. He received his B.A. from St. Lawrence University in 1987 and his J.D. from the University of California, Davis, School of Law in 1992. Mr. Sabey specializes in complex commercial litigation with an emphasis on land use, energy, and construction contract issues. His litigation practice focuses on home builders and other project applicants in actions alleging violation of CEQA, state planning and zoning laws, the Subdivision Map Act, and water supply laws, as well as federal claims arising under NEPA and the Endangered Species Act.

ANDREW W. SCHWARTZ, coauthor of chapter 18, is of counsel in the firm of Shute, Mihaly & Weinberger LLP following 22 years in the San Francisco City Attorney's Office. He received his B.A. from Stanford University in 1976 and his J.D. from the University of California, Los Angeles, School of Law in 1979, where he was a member of the Law Review. Mr. Schwartz specializes in regulatory takings, eminent domain, development impact fees, real estate, and land use and real estate litigation. He represented the City of San Francisco in many precedent-setting land use cases, including San Remo Hotel v City & County of San Francisco, in which he won a unanimous decision in the United States Supreme Court. Mr. Schwartz's publications include the Takings Litigation Handbook: Defending Takings Challenges to Land Use Regulation (2000) and The Basics of Takings Law (Institute for Local Self Government of California 1999); the articles Reciprocity of Advantage: The Antidote to the Antidemocratic Trend in Regulatory Takings (UCLA Journal of Environmental Law & Policy, Fall 2003) and Overripe Takings Claims Produce Rotten Fruit for Regulatory Agencies (Policy Awareness Quarterly, Winter 1999); and California Municipal Law Handbook 2003 update (contributing editor). He received the County Counsels' Association of California Litigation Program Award for 2003, the American Bar Association Pro Bono Service Award in 2003, and the California Lawyer of the Year Award in 2006. He is a regular presenter at conferences of the Georgetown Environmental Law and Policy Institute and the National College of District Attorneys, an adjunct professor of law at Golden Gate University Law School, and a co-founder of the Community Land Use Project of California.

DANIEL L. SIEGEL, author of chapter 17 and coauthor of chapter 21, is the Supervising Deputy Attorney General in charge of the California Attorney General's Land Law Section in Sacramento. He obtained his undergraduate degree from Cornell University in 1972 and his law degree from New York University School of Law in 1975. Mr. Siegel represents various state agencies in complex state and federal land use lawsuits, including many takings actions, and represents the Attorney General directly regarding matters such as redevelopment and the protection of Lake Tahoe. Mr. Siegel represented the State of California at trial and during appeals in Tahoe-Sierra Preservation Counsel v TRPA, et al., and he authored amicus curiae briefs on behalf of the Attorney General in takings cases such as Brown v Legal Foundation of Washington (United States Supreme Court) and San Remo Hotel v City & County of San Francisco (California Supreme Court). Mr. Siegel regularly delivers speeches and writes articles concerning takings issues.

KATHERINE E. STONE, coauthor of chapter 19, is of counsel at Myers, Widders, Gibson, Jones and Schneider, LLP, Ventura. She received her B.A. from the University of Southern California in 1971, and her J.D. (cum laude) from Loyola Law School in 1974. Ms. Stone specializes in appellate law and environmental land use law, is special counsel to a variety of cities, counties, and special districts, and provides expertise to state agencies, including the California Coastal Commission. She is a frequent lecturer and has published articles and numerous amicus briefs. She is a member of the American Bar Association, the Ventura County Bar Association, and the Advisory Committee, Community Land Use Project, League of California Cities.

EDGAR B. WASHBURN, coauthor of chapter 14, is a partner in Morrison & Foerster, LLP, San Francisco. He received his B.A. from Stanford University in 1959, and his LL.B. from the University of California, Berkeley, School of Law in 1962. Mr. Washburn specializes in natural resource and environmental litigation. He represents various clients seeking development entitlements from local, regional, and state land use agencies, and has appeared in administrative proceedings and conducted permit acquisition concerning compliance with various federal and state statutes on waterfront development, water pollution, wetlands, water rights, endangered species, and waste disposal, as well as for matters concerning the preservation and securing of rights on federal lands. Mr. Washburn is a nationally recognized expert in the trial of complex environmental and natural resource cases, having tried more than 100 cases to decision and handled more than 40 appeals, including appeals before the United States Supreme Court. He has litigated complex property, tidelands, and resource issues in cases arising in Alaska, Florida, and the Missouri River and Colorado River basins, in addition to a large number of federal and state cases arising in California. He is a member of the State Bar Litigation and Environmental Law Sections and the American Bar Association Natural Resources and Litigation Sections.

About the 2017 Update Authors

ADAM U. LINDGREN, update coauthor of chapters 1, 3, 4, 7, 8, 9, 10, 11, 15, and 16. For a full bio, see the About the Authors section. Mr. Lindgren gratefully acknowledges the research assistance of the following Meyers Nave associates: Kate A. Cook (chapter 15), Alex J. Mog (chapter 16), Nicholaus W. Norvell (chapter 4), and Leticia Ramirez (chapter 1).

STEVEN T. MATTAS, update coauthor of chapters 2, 5, 6, 12, 14, 20, and 21. For a full bio, see the About the Authors section. Mr. Mattas gratefully acknowledges the research assistance of the following Meyers Nave associates: Denise S. Bazzano (chapter 20), Claire Lai (chapters 14 and 21), and Patrick Tuck (chapters 2, 6, and 12).

KENNETH B. BLEY, update coauthor of chapter 18. For a full bio, see the About the Authors section.

SUE A. GALLAGHER, update coauthor of chapter 9. For a full bio, see the About the Authors section.

PETER S. HAYES, update author of chapter 13, is Of Counsel to Meyers Nave. He specializes in trial and appellate litigation, representing clients in cases involving a wide range of state and federal land use and environmental laws, including the California Environmental Quality Act, the state Land Use and Planning Law, the Subdivision Map Act, the Cortese-Knox-Hertzberg Government Reorganization Act, the Mitigation Fee Act, the Religious Land Use and Institutionalized Persons Act, and constitutional civil rights claims in the land use context. Mr. Hayes also regularly advises clients on compliance with the laws listed above and with a variety of other state and federal environmental and land use laws, including the National Environmental Policy Act, the Coastal Zone Management Act, the California Coastal Act, the Endangered Species Act, and the National Historic Preservation Act.

JEFFREY C. HEEREN, update coauthor of chapters 7 and 8, is a Senior Deputy City Attorney with the City of Sacramento. He received his B.A. from California State University, Fresno, and his J.D. from San Joaquin College of Law (high honors). Mr. Heeren is the principal land use attorney for the City of Sacramento. Throughout his career, he has advised on a wide range of issues including land use, CEQA, floodplain management, the Political Reform Act, the Brown Act, the Public Records Act, historic preservation, assessment districts, community facilities districts, and other public financing; served as counsel for boards and commissions; and represented cities in various administrative and court proceedings.

JOSE M. SANCHEZ, update coauthor of chapters 10 and 20, is a Principal with Meyers Nave. He received his B.A. degree from the University of California at Davis, and his J.D. degree from the University of San Francisco School of Law. Mr. Sanchez provides advice on the full range of legal issues facing cities and special districts, including land use, code enforcement, the Public Records Act, the Brown Act, public contracting, and labor and employment matters. Currently, Mr. Sanchez serves as City Attorney for the City of Livingston and as Deputy City Attorney for the cities of Rancho Cordova and Atwater. Mr. Sanchez has assisted in preparing and reviewing municipal general plans and zoning codes and with implementing development impact fees, and he has worked extensively on negotiating and drafting development agreements and public contracts.

ANDREW W. SCHWARTZ, update coauthor of chapter 18. For a full bio, see the About the Authors section. Mr. Schwartz gratefully acknowledges the assistance of Joseph D. Petta, an associate at Shute, Mihaly & Weinberger LLP, in updating chapter 18.

DANIEL L. SIEGEL, update author of chapter 17. For a full bio, see the About the Authors section.

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