Underground Land Use Regulations Threaten Projects

Land Use and Litigation too often are joined together. Underground land use regulations threaten development projects throughout California. An “underground land use regulation” arises when staff for a governmental reviewing agency imposes a submittal requirement or condition of approval which is not required by law and at times directly conflicts with law.

How do you know if it’s an “underground land use regulation”?

1. The demand or condition is not stated in any law or regulation.
2. When confronted with the argument that there is no legal basis for the demand or condition, the staff response is generally along the lines that everyone is required to do this (whatever this is).

What do you do if you or your client encounters an “underground land use regulation”?

1. The obvious first attempt is to work with staff to change the demand or condition.  Talking is not enough; be sure document your position to create a record.
2. If staff will not change the demand or condition, then it becomes a business decision as to whether the demand or condition is feasible.  If the demand or condition does not adversly affect the project, then move forward with the project.
3. If demand for certain items to consider the application complete is so unreasonable that your project is not feasible and you cannot comply, then you need to perform a cost-benefit analysis to determine whether filing litigation is the best move at this point.  
4. If a condition of approval is so unreasonable that your project is not feasible or seriously compromised, let the matter go forward.  BUT, there must be clear and credible evidence introduced prior to, and at the hearing(s) on the project to assure a complete public record. The public record is the accumlation of evidence that a court may consider in a Writ of Mandate (litigation) challenging the objectionable “underground land use regulations”.

Liam Perry is an Associate Attorney at The Loftin Firm. For questions relating to this blog post or any other California real estate, land use, corporate, or estate planning matter, contact The Loftin Firm at .