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Land Use & Litigation Archives

Property Owners Diminished Due Process Rights

Property owners have diminished due process rights when dealing with the regulatory morass of governmental entities.  The best article I have read regarding this problem was written by Jeremy Talcotta, Attorney, entitled "Due Process:  Criminals vs. property owners" published in PLF's Sword&Scales, Spring 2018 issue.

A Commerical Development Approved in Your Neighborhood - Now What?

You read in a newspaper or online a new commercial development has been approved by the City/County in your neighborhood.  You do not want the commercial development.  What can you do to stop it?

SCOTUS Declines to Hear Challenge to San Jose's "Inclusionary Housing Ordinance"

As this Firm anticipated back in September, the Supreme Court recently declined to hear a challenge to the California Supreme Court's decision in California Building Industry Association v. City of San Jose, 61 Cal. 4th 435 (2015), cert. denied, 577 U.S. __ (2016). At issue in BIA's Petition for Writ of Certiorari was whether the city's "Inclusionary Housing Ordinance," which required that residential developments of at least twenty (20) homes sell at least fifteen percent (15%) of the homes at below-market prices (as determined by the City) to buyers with qualifying income levels, was an unconstitutional taking under the Fifth and Fourteenth Amendments of the U.S. Constitution.

Social Issues Can Effect Local Land Use

Land use for real property is rarely considered when potential legislative acts are considered. The resolution of social issues can affect local land use ordinances and regulations, by which a local juridiction controls the legal use of the real property. The most typical examples involve residential and commerical developments. Additionally, local jurisdictions may impose other ordinances or regulations that limit a certain number of business to a specific geographic area (e.g., only a limited number of hair salons may be licensed).

UPDATE: SeaWorld San Diego Sues California Coastal Commission

As promised in October 2015, SeaWorld LLC dba SeaWorld San Diego has commenced litigation against the California Coastal Commission over a decision to condition SeaWorld's new orca enclosure on numerous onerous conditions, including those that dealt with the husbandry practices and transportation restrictions of the orcas. The initial Petition for Writ of Mandate and Complaint for Declaratory Relief was filed on Tuesday, December 29, 2015 after an agreement by the parties to extend the time period for which SeaWorld had to file its lawsuit.

Recent CA Coastal Commission Decisions - SeaWorld and San Onofre

In another sweeping decision, the California Coastal Commission has seemingly overstepped its jurisdiction of regulating the use of land and water in the coastal zone by imposing certain breeding restrictions on SeaWorld's orca breeding practices. Specifically, the Coastal Commission approved SeaWorld's replacement and expansion of its existing orca facility subject to several special conditions. One such condition is the discontinuation of SeaWorld's practice of breeding captive orcas, or transporting whales from other facilities. As SeaWorld prepares to challenge this condition, Californians must ask whether, as a public policy, the Coastal Commission should have jurisdiction over the use of land and water within the coastal zone and the animal husbandry practices of trained veterinarian professionals. Although the Coastal Commission's most recent decision appears facially inconsistent with the legislative intent of the Coastal Act and potentially in conflict with the federal law governing such practices, it will certainly be interesting to follow SeaWorld's impending legal challenge.

San Jose Affordable Housing Decision Appealed to U. S. Supreme Court

In litigation with broad impact for residential real estate development and affordable housing, the Building Industry Association has appealed their loss in CBIA v. City of San Jose, 61 Cal. 4th 435 (2015), to the U. S. Supreme Court. In that decision, the California Supreme Court sided with the City of San Jose, saying that the City's affordable housing ordinance, which requires that new developments sell 15 percent of their units at reduced prices, is not an "exaction" triggering a strict analysis under the California and U.S. Constitutions, as to whether a government has taken property without compensation (takings). Instead, the ordinance and its development conditions would be analyzed like any other municipal ordinance.

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.

Update: SB 968 Signed Into Law by Gov. Brown

As previously noted on this blog, a clash between private property owners and coastal access advocates has been raging in the court system. By signing SB 968 on September 30, 2014, the State of California is now meddling with the previously private dispute. SB 968 will be codified in Section 6213.5 of the California Public Resources Code.

Legislation Authorizing Taking of Private Property Through Eminent Domain Ready for Governor's Signature

On August 28, 2014, proposed legislation to allow greater public access to Martins Beach in San Mateo County was presented to Governor Brown for his signature or veto. Senate Bill 968 was authored by Sen. Jerry Hill, D-San Mateo, and originally sought to require the State Lands Commission ("SLC") to use eminent domain to seize a private road that connects to Martins Beach. After an amendment proposed by Sen. Hill, the legislation now requires the SLC "to consult, and enter into any necessary negotiations, with the owners of a specified property known as the Martins Beach acquire a right-of-way or easement for the creation of a specified public access route to and along the shoreline." If those year-long negotiations fail to result in a mutual agreement, and the private property owner does not voluntarily provide public access by January 2016, the SLC will be authorized to acquire a right-of-way or easement by eminent domain. If signed by the Governor, the specific impact of the legislation will be determined by the three elected officials that serve on the SLC: Lt. Gov. Gavin Newsom, Controller John Chiang, and Finance Director Michael Cohen.

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