California Land Use & Development Law Report
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.
New EIR and Senate Bill Mooted CEQA Challenge to Berkeley Enrollment Decisions
The Court of Appeal held that CEQA challenges to proposed student enrollment increases and development projects were moot due to an updated EIR that addressed the flaws in an earlier EIR, and in light of Senate Bill 118, which clarified that "enrollment or changes in enrollment, by themselves, do not constitute a project" for purposes of CEQA. Save Berkeley's Neighborhoods v.
Junipero Serra Statue Not Historically Significant
The Court of Appeal rejected a challenge to the City of Buenaventura's removal of a statue, finding there was substantial evidence for the City's conclusion that the statue was not historically significant. Coalition for Historical Integrity v. City of San Buenaventura, 92 Cal.App.5th 430 (2023).
Berkeley Ordinance Banning Natural Gas Infrastructure Preempted by Federal Statute
The Ninth Circuit held that a Berkeley ordinance prohibiting natural gas infrastructure in new buildings was preempted by the Energy Policy and Conservation Act ("EPCA"), 42 U.S.C. § 6297(c), which regulates the energy use of natural gas appliances used in household and restaurant kitchens. California Restaurant Association v. City of Berkeley, 65 F. 4th 1045 (9th Cir., 2023).
Neighbor’s Appeal of Planning Commission Decision Did Not Support Anti-SLAPP Motion
The Court of Appeal ruled that the protected speech or petitioning activity on which an anti-SLAPP motion is based must be a target of the suit and not merely an event that triggered claims unrelated to such speech or activity. Durkin v. City and County of San Francisco, 90 Cal.App.5th 643 (2023).
Court Held That Obligation to Further Fair Housing Requires More Than the Absence of Discrimination and That Base Zoning Allowing Lower Densities Violated Housing Element Law Even Though Overlay Zoning Required Minimum Densities
A court addressed the City of Clovis' repeated failures to accommodate lower-income housing needs.
General Request for EIR Insufficient to Exhaust Administrative Remedies When Challenging Reliance on Categorical Exemption
Plaintiff did not exhaust administrative remedies when challenging the City's approval of a homeowner's development project on the ground that a Class 1 categorical exemption was inapplicable. Arcadians for Environmental Preservation v. City of Arcadia, 88 Cal. App. 5th 418 (2023).
Project with Potentially Significant Greenhouse Gas Emissions Improperly Approved Based on an EIR Addendum
Units Converted from One Residential Use to Another Are Not Exempt from Rent Control under Costa-Hawkins
Remodeled residential units converted from space long dedicated to residential use are not considered new construction and are not exempt from local rent control under the Costa-Hawkins Rental Housing Act. NCR Properties, LLC v. City of Berkeley, No. A163003 (1st Dist., March 9, 2023).
Bond Properly Required for Challenge to Affordable Housing
A local organization appealed the denial of its challenge to the approval of an affordable housing project and disputed the trial court's order requiring it to post a bond. The Court of Appeal rejected plaintiff's contentions on the merits and held that the plaintiff was properly required to post a bond because it was delaying an affordable housing project. Save Livermore Downtown v.
Court of Appeal Upholds Most of EIR for New A’s Stadium
The First District Court of Appeal largely upheld the City of Oakland's EIR and CEQA findings for the Oakland A's proposed new baseball stadium and surrounding mixed-use development, with the exception of one mitigation measure that was improperly deferred. East Oakland Stadium Alliance v. City of Oakland, 89 Cal.App.5th 1226 (2023).
Denial of Affordable Housing Project Violated Both Streamlining Statute and Housing Accountability Act
A trial court had jurisdiction to find that a denial of a permit application violated the Housing Accountability Act (HAA) on remand, even though the Court of Appeal did not expressly instruct the trial court to address the HAA issue. Ruegg & Ellsworth v. City of Berkeley, No. 2487258 (1st Dist., March 14, 2023).
Court Orders Refund of All Unexpended Fees in Landmark Mitigation Fee Act Case
A recent case involving developer Charles Keenan and the City of Palo Alto highlights the importance of strict compliance with Mitigation Fee Act's requirement that findings be made every five years concerning unexpended fees.
First District Invalidates EIR for UC Berkeley’s Student Housing Project at People’s Park for Failure to Analyze Alternative Locations and Noise Impacts
The First Appellate District held that the Regents of the University of California failed to comply with CEQA in certifying the project EIR for its student housing project at People's Park. Make UC a Good Neighbor v. Regents of University of Cal. (2023 WL 2205638, Feb. 24, 2023).
Eldercare Facility Properly Approved Under Class 32 Infill Exemption from CEQA
The Court of Appeal upheld the approval of an eldercare facility, rejecting claims that the project was inconsistent with the zoning code based on architectural incompatibility and interference with views and ineligible for the Class 32 categorical exemption. Pacific Palisades Residents Association, Inc. v. City of Los Angeles, 88 Cal. App. 5th 1338 (2023).
City Lacked Authority to Close Public Street for Installation of Marilyn Monroe Statue
The City of Palm Springs' three-year closure of a public street for installation of a statue was unlawful because the Vehicle Code permits only temporary closure of streets for parades or other short-term events, not multi-year closure for installation of semi-permanent structures. Committee to Relocate Marilyn v. City of Palm Springs, 88 Cal.App.5th 607 (2023).