California Land Use Blog

California U.S. District Court's Nationwide Injunction Affects Mining, Oil and Gas, and Timber Activities on National Forests

SCastro@JMBM.com (Scott N. Castro of Jeffer Mangels Butler & Mitchell LLP) — Tue, 01 May 2012 16:13:47 -0800

by Scott Castro

In mid-March, the U.S. District Court for the Eastern District of California issued a nationwide injunction that significantly affects mining exploration activities within lands managed by the U.S. Forest Service. Until this ruling, the Forest Service has relied on a June 4, 2003 agency regulation (located at 36 C.F.R. Part 215) (the "215 Regulation") that exempted from public notice, comment and administrative appeals activities deemed to be categorically excluded ("categorical exclusions" or "CEs") from the National Environmental Policy Act ("NEPA").

In a March 19, 2012 summary judgment ruling in Sequoia ForestKeeper v. Tidwell, however, U.S. District Court Judge Lawrence J. O'Neill invalidated the 215 Regulation's exemption for categorical exclusions.

City of Los Angeles: Planning Department's ambitious zoning code overhaul will have far-reaching implications for development

ADeGood@jmbm.com (Alex DeGood of Jeffer Mangels Butler & Mitchell LLP) — Wed, 25 Apr 2012 10:37:48 -0800

by Alex DeGood

June 1, 1946. World War II had been over for nine months, neither Mitt Romney nor Barack Obama was born, and the City of Los Angeles completed the last comprehensive update of its zoning code. In the intervening 66 years, the code has grown from a manageable 84 pages to over 600 nearly impenetrable pages. Over the decades, the City responded to every new issue or situation not covered or contemplated by the 1946 code with layer upon layer of new zones, entitlements, overlays, or property-specific development limitations. The result is a code that satisfies no one, from developers to neighborhood groups, and confuses almost everyone.

In the face of a code that has become unmanageable, the City's Planning Department recently requested funding to embark upon a five year overhaul of the code.

State Law Permitting Establishment of Medical Marijuana Dispensaries Trumps Local Zoning Ordinances; Are There Implications for Sign and Supergraphics Litigation?

MHinks@jmbm.com (Matthew Hinks of Jeffer Mangels Butler & Mitchell LLP) — Fri, 13 Apr 2012 14:02:15 -0800

By Matthew Hinks

A trial court's order granting the motion of the City of Lake Forest for a preliminary injunction against the operations of a medical marijuana dispensary has gone -- well -- "up in smoke". Orange County Superior Court Judge Chafee had ruled that the city's zoning ordinances, which did not recognize dispensaries as a permitted use and expressly prohibited unpermitted uses, established a complete ban against medical marijuana dispensaries justifying preliminary injunctive relief. The Court of Appeal in City of Lake Forest v. Evergreen Holisitc Collective, 203 Cal. App. 4th 1413 (2012), disagreed and reversed that decision.

Regulatory Justice: In Key Decision, U.S. Supreme Court Makes It Easier To Challenge EPA Orders

DWaite@JMBM.com (David Waite of Jeffer Mangels Butler & Mitchell LLP) — Mon, 26 Mar 2012 13:11:27 -0800

by David Waite and Rick McNeil

The Supreme Court's ruling last week in Sackett v. EPA, unanimously rejecting the United States Environmental Protection Agency's prohibition against judicial review of administrative compliance orders issued under the Clean Water Act, may be hailed as one of the most significant environmental rulings in recent memory.

The high court's decision is a major victory for the regulated community and property rights advocates. Until now, the regulated community was faced with a Hobson's choice of responding to compliance orders by capitulating with the regulatory directive, or facing the prospect of strict enforcement penalties (up to $75,000 per day in this case) by waiting to raise a legal challenge in response to an EPA enforcement action. Prior to yesterday's ruling, there was no legal remedy available to challenge the administrative order judicially because the Clean Water Act itself precludes pre-enforcement judicial review of compliance orders. Time and again, regulated companies and individuals have been forced into a high-stakes gamble: comply with an administrative order, or risk enormous additional liability by refusing to comply and forcing EPA to bring a judicial enforcement action.

Renewable Energy Update: Two New Nationwide Permits for Dredge and Fill Activities Under Section 404 of the Clean Water Act Now Effective for Renewable Energy Projects

SCastro@JMBM.com (Scott N. Castro of Jeffer Mangels Butler & Mitchell LLP) — Thu, 22 Mar 2012 10:34:26 -0800

by Scott Castro

On March 19, 2012, two new and 48 reissued Nationwide Permits (NWPs) for certain dredge and fill activities requiring authorization under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act took effect. Nationwide Permits are issued by the Corps under Section 404(e) to provide a streamlined authorization process for dredge and fill activities having minimal adverse effects on the aquatic environment. Every five years, the Army Corps of Engineers issues revised and/or new Nationwide Permits. The last permits were issued in 2007, and expired on March 18, 2012. The two new NWPs affect renewable energy facilities, and projects qualifying for these Nationwide Permits should benefit from significant reductions in the time, effort and money necessary to obtain a Section 404 permit.

Mining Law Update: Army Corps Revised Nationwide Permits Affecting Mining Operations Now Effective

SCastro@JMBM.com (Scott N. Castro of Jeffer Mangels Butler & Mitchell LLP) — Wed, 21 Mar 2012 10:52:17 -0800

by Scott Castro

Two NWPs are specific to the mining industry: (1) NWP 21, specific to surface coal mining activities; and (2) NWP 44, applying to "mining activities" in general.

Renewable Energy Update: Proposed Regulatory Changes For Tribal Leases Provide Promise for Solar and Wind Projects

SCastro@JMBM.com (Scott N. Castro of Jeffer Mangels Butler & Mitchell LLP) — Mon, 19 Mar 2012 09:11:23 -0800

by Scott Castro

While there has been strong interest among the tribes to develop renewable energy projects on their lands, antiquated leasing rules have long served as a bar to such efforts. However, on November 28, 2011, the Department of Interior (DOI) announced a proposed rule revising the federal surface leasing regulations for American Indian lands that could dramatically reduce the timeline for solar and wind lease approvals on Indian land. If the proposed rule is adopted, it may help to stimulate investment in solar and wind projects on Indian lands by fast-tracking and streamlining agency review and approval of proposed solar and wind leases. Solar and wind companies would be well-served to understand the full scope of the proposed rule, and to evaluate -- or re-evaluate -- potential leasing opportunities on tribal lands, particularly given that DOI, acting as trustee, is charged with managing approximately 56 million surface acres of tribal lands.

Following up on Avenida San Juan Partnership v. City of San Clemente: Judges' reluctance to issue a writ prior to final judgment demonstrates need for clarification of Palma footnote

MHinks@jmbm.com (Matthew Hinks of Jeffer Mangels Butler & Mitchell LLP) — Thu, 08 Mar 2012 15:23:48 -0800

By Matthew Hinks

In an earlier article on the California Land Use Blog, I wrote about the recent decision in Avenida San Juan Partnership v. City of San Clemente, 201 Cal.App.4th 1256 (2011), in which the court of appeal affirmed in large part a verdict in favor of a developer granting a writ of mandate and awarding damages as a result of a finding of a partial regulatory taking given what the court viewed as the "spot-zoning" of plaintiff's property. I noted there that the trial court conducted its proceedings in two phases: the writ of mandate phase and the damages trial on the inverse condemnation claim. I also noted that the trial court issued the writ of mandate while the damages claim remained pending and before a final judgment was entered.

Though the Avenida San Juan Partnership court did not discuss this aspect of the case, I mentioned that trial courts are often reluctant to issue writs of mandate before a final judgment is entered. This can have a dramatic impact on a developer's case against a local agency or city.

Heads Up Property Owners and Developers! Local challenges implicating Subdivision Map Act may impose 90-day statute of limitations - Aiuto v. City and County of San Francisco

MHinks@jmbm.com (Matthew Hinks of Jeffer Mangels Butler & Mitchell LLP) — Wed, 07 Mar 2012 17:01:54 -0800

By Matthew Hinks

In most instances, causes of action for inverse condemnation and regulatory takings in California are governed by the 5-year statute of limitations of Civil Procedure Code §§ 318 and 319. Preemption claims are governed by the 3-year statute of limitations of Civil Procedure Code § 338(a). Section 1983 claims in California state courts are governed by the 2-year personal injury statute of limitations of Code of Civil Procedure § 335.1. However, according to the court in Aiuto v. City and County of San Francisco, 201 Cal. App. 4th 1347 (2011), where such claims are brought in connection with a facial challenge to a local ordinance or administrative action enacted or taken pursuant to the Subdivision Map Act, the 90-day statute of limitations of Government Code § 66499.37 applies.

Spot-Zoning and Regulatory Takings: Developer Succeeds in California Court of Appeal - Avenida San Juan Partnership v. City of San Clemente

MHinks@jmbm.com (Matthew Hinks of Jeffer Mangels Butler & Mitchell LLP) — Wed, 07 Mar 2012 16:48:56 -0800

by Matthew Hinks

Court judgments finding a regulatory taking are relatively rare. So too are decisions upholding the oft-heard complaint of "spot zoning". In the recent case of Avenida San Juan Partnership v. City of San Clemente, 201 Cal.App.4th 1256 (2011), the court (and the plaintiff) hit the daily double.

The Williamson Act: A Growing Obstacle for Solar and Wind Development In California

JWelner@jmbm.com (Jon Welner of Jeffer Mangels Butler & Mitchell LLP) — Mon, 05 Mar 2012 16:10:33 -0800

by Jon Welner

California's rural landscapes are some of the most productive farmlands in the world. However, some of the qualities that make these lands suitable for farming--sunshine and wide open spaces--also make them attractive for another kind of "farming": solar and wind farms. In recent years, the conflict between farming and renewable energy production has grown more pronounced in California. Central to this conflict is the California Land Conservation Act of 1965, generally known as the Williamson Act (Gov't Code §§ 51200-51297.4).

California Redevelopment: The Winding Road Ahead

DWaite@JMBM.com (David Waite of Jeffer Mangels Butler & Mitchell LLP) — Wed, 15 Feb 2012 15:53:08 -0800

by David Waite

The end of California's redevelopment agencies has left many developers, affordable housing advocates, property owners and even public agencies themselves wondering if existing and approved development projects will be stuck in a state of regulatory limbo for the foreseeable future.

Who controls existing contracts with the agencies such as owner participation agreements and other development agreements? Where will the money come from to finish projects? What responsibilities do successor agencies have to implement existing projects? Who will implement ongoing redevelopment plans and exercise control over land use decisions? How much discretion do successor agencies have to modify a previously agreed project scope of work and schedule of performance? Who will monitor post construction covenants?

City of LA Adopts Job Killer Policy

BMR@JMBM.com (Benjamin M. Reznik of Jeffer Mangels Butler & Mitchell LLP) — Fri, 20 Jan 2012 11:54:45 -0800

Ben Reznik

In an attempt to appease a well-heeled group of neighbors in Benedict Canyon who want to stop one particular project, the City of Los Angeles has adopted a new interpretation of its municipal code which will result in more than $1 billion worth of construction being delayed into 2013. This equates to the loss of several thousand jobs this year.

For the particulars, read my op-ed column from this week's Los Angeles Business Journal, reprinted with permission below.

California Supreme Court Decision Eradicates Redevelopment Agencies

BMR@JMBM.com (Benjamin M. Reznik of Jeffer Mangels Butler & Mitchell LLP) — Thu, 29 Dec 2011 13:43:56 -0800

Ben Reznik and Sheri Bonstelle

In a blow to the more than 400 redevelopment agencies in California, the California Supreme Court issued an opinion today upholding the constitutionality of AB1X26, the Dissolution Bill and finding AB1X27, the Pay for Continuation Bill, unconstitutional in the California Redevelopment Agencies v. Matosantos case.

CEQA: State Agencies and Extra-Jurisdictional Impacts

NBrower@jmbm.com (Neill Brower of Jeffer Mangels Butler & Mitchell LLP) — Fri, 16 Dec 2011 14:28:02 -0800

Neill Brower

The Fourth District of the California Court of Appeal recently ruled that the California State University system could not use budgetary uncertainty as a basis for determining the feasibility of mitigation for off-campus impacts. In City of San Diego v. Board of Trustees of the California State University, 2011 DJDAR 17803, filed on December 13, the court upheld a broad-based challenge to the EIR for the San Diego State University Master Plan.

Among other things, the EIR claimed that the University could not feasibly mitigate project-related traffic impacts that would occur off-campus. Consistent with mitigation measures in the EIR, the resolution approving the project and certifying the EIR required the University to request from the State legislature the necessary funding for the University's fair share of off-campus traffic- and transit-related improvements. The resolution also stated that because the University ultimately relied on funding from the State legislature, the University could not guarantee the allocation of sufficient funds or the timing of that allocation, nor could the University guarantee that the local agencies would fund the measures for which those agencies were responsible. Nevertheless, the resolution directed the Chancellor of the University to proceed with the project even if the legislature allocated insufficient funds for mitigation, finding that due to the various funding uncertainties, the off-campus traffic impacts would remain significant and unavoidable, but "are necessarily outweighed by the Statement of Overriding Considerations adopted by [the University]."