California Land Use & Development Law Report
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California Land Use & Development Law Report

California Land Use & Development Law Report offers insights into legal issues relating to development and use of land and federal, state and local permitting and approval processes.
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June 30, 2020

University Campus Was Not an Illusory Element of Project Under CEQA

 The court of appeal found the EIR for a master planned community sufficient because it adequately described and analyzed impacts of the proposed project, which included a university, and was not required to consider the speculative possibility that the university would never be built. View blog post
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June 29, 2020 Takings

Judgment Against Prior Owners Fixed Tidelands Boundaries, Barring Plaintiffs’ Quiet Title and Inverse Condemnation Claims.

The court of appeal held that plaintiffs' inverse condemnation and damages claims based on dredging in the bay adjacent to their properties was barred under the doctrine of res judicata based on a 1931 judgment conclusively establishing that the property alleged to have been taken or damaged was not owned by plaintiffs.

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June 26, 2020

Brown Act Violation Did Not Require Nullification of Project Approval Where No Prejudice Was Shown

 The City of Lafayette violated the Brown Act by not including a litigation threat discussed in closed session in the agenda packet made publicly available before the meeting, but plaintiffs failed to show any prejudice resulting from the violation. Fowler v. City of Lafayette, 46 Cal. App. View blog post
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June 18, 2020

EIR Improperly Deferred Formulation and Implementation of Mitigation Measures for New Oil and Gas Drilling

 The Fifth District Court of Appeal found multiple defects in a Kern County EIR for a proposed ordinance streamlining the permitting process for new oil and gas wells. King and Gardiner Farms v. View blog post
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June 18, 2020

Suit for Breach of Development Agreement Should Be Treated as a Breach-of-Contract Action, Not an Administrative Law Proceeding

 An action for breach of a statutory development agreement should be reviewed as a breach-of-contract case, not as an administrative law proceeding in which the court gives deference to the City's findings. View blog post
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June 16, 2020

Judicial Council Shortens Tolling Period for Statutes of Limitations

 As we previously reported, on April 6, 2020, the California Judicial Council adopted an emergency rule suspending (or "tolling") the running of statutes of limitations on civil claims View blog post
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June 15, 2020 Takings

Reclassification of Land From Urban to Agricultural Did Not Result in Unconstitutional Regulatory Taking

The State of Hawaii Land Use Commission's reversion of 1,060 acres from a conditional urban land use classification to the prior agricultural use classification was not an unconstitutional taking because the landowner could still reap economic benefits from the property, the reclassification did not substantially affect the overall valuation or any potential sales, and the landowner should have

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June 5, 2020

Agency Actions to Implement a Previously-Approved Project Are Not Subsequent Discretionary Approvals Requiring Supplemental Environmental Review

 After a public agency approves a project, the agency's actions to implement the project—in this case, applying for and accepting a streambed alteration agreement from the California Department of Fish and Wildlife—are not subsequent discretionary approvals that require supplemental environmental review under CEQA. View blog post
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May 29, 2020

How Much Leeway Does a Lead Agency Have to Define an Appropriate Baseline for CEQA Review?

 Several months ago, a court of appeal upheld a South Coast air district EIR for an oil refinery modernization project, concluding the district had discretion to use  "near-peak" emissions, rather than average emissions, as the baseline for calculating the air pollution expected from the project. Communities for a Better Environment v. View blog post
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May 22, 2020

California Courts May Shorten Tolling of Limitations Periods in Land Use Cases Under Emergency Rule

 On April 6, 2020, the California Judicial Council adopted Emergency Rule 9, which tolled statutes of limitations on civil causes of action for the duration of the state of emergency declared by Governor Newsom on March 4, 2020, and for 90 days thereafter. View blog post
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May 22, 2020

Public Water Running Through a Privately-Owned Pipe is Not Sufficient to Impose Liability on a Public Entity

 The County of San Diego could not be held liable for damage caused by leakage from a privately-owned storm drain pipe on private property merely because water from public property drained through it. Ruiz v. County of San Diego, 47 Cal. App. 5th 504 (2020). A storm drain pipe on plaintiffs' property rusted away, causing flooding that damaged their home. View blog post
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May 15, 2020

Project Denial Invalidated Where Councilmember’s Actions Crossed the Line Into Advocacy Against the Project

 The Court of Appeal held that where a city councilmember's actions evinced bias toward the project, the applicant did not receive a fair hearing and the City Council's denial of a conditional use permit would be set aside. View blog post
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May 5, 2020

Misrepresentations Can Bar Agency’s Reliance on CEQA Statute of Limitations

 An agency could be equitably estopped from relying on the 35-day statute of limitations applicable to a CEQA Notice of Exemption where the agency had misled the public into expecting the agency would instead circulate a Final EIR for public comment and file a Notice of Determination following project approval. Citizens for a Responsible Caltrans Decision v. View blog post
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May 5, 2020

No Coastal Development Permit Required Where Coastal Commission Had Certified City’s Local Coastal Program

 The City of San Diego was not required to obtain a coastal development permit for a transitional housing project because the Coastal Commission had certified the City's local coastal program, whose provisions therefore applied in lieu of the Commission's regulations. Citizens for South Bay Coastal Access v. City of San Diego, 45 Cal. App. View blog post
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April 29, 2020

Bay Area Construction Now Permitted Under Revised Shelter-in-Place Orders

Bay Area Public Health Officers issued revised shelter-in-place orders on April 29 allowing resumption of all construction projects, outdoor businesses and real estate transaction services, with safety protocols specified in the orders.

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