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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 16, 2015

California Supreme Court Broadly Construes Municipal Power to Enact Affordable Housing Measures

In a case closely watched by home builders, low-income housing advocates, and cities and counties throughout the state, the California Supreme Court has strongly endorsed inclusionary housing ordinances, ruling that they are legally permissible as long as it can be shown the ordinance is reasonably related to the public welfare.

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June 1, 2015

Controversial Clean Water Act Rule Published

The Environmental Protection Agency and Army Corps of Engineers published a final rule on May 27, 2015 to redefine the critically important term "Waters of the United States" under the federal Clean Water Act.

The rule explains the agencies' jurisdiction with respect to "tributaries" and "adjacent" waters and comes amidst considerable debate over where to draw the lines of federal permit

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May 27, 2015

Fish and Wildlife Service Launches Regulatory Initiative on Migratory Bird Incidental Take

For the first time since the Migratory Bird Treaty Act was enacted in 1918, the federal government is proposing a permit system to authorize the incidental take of the more than 1,000 species of migratory birds.

The Migratory Bird Treaty Act is strict liability criminal law, and it has been the subject of several recent high-profile enforcement actions against energy project developers.

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May 25, 2015

Vesting Rights Restrictions of Subdivision Map Act Do Not Bind Water District

A water district is not subject to the same vesting rights as a local agency under the Subdivision Map Act. Thus, the Subdivision Map Act does not restrict a municipal utility district's authority to require an easement as a condition of providing water service to a residential lot on a newly-subdivided parcel. Tarbet v.

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May 21, 2015

Court Rejects Another Attempt to Stop New Kings Arena

Opponents of the Sacramento Arena project took another shot at halting the new Kings arena project, challenging the city's certification of the project EIR on a variety of grounds.

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May 21, 2015

Mello-Roos Financing May Be Used to Acquire a Private Water Utility Through Eminent Domain.

An agency may acquire the assets of a private utility through condemnation using Mello-Roos bond financing, including intangible property incidental to the real or tangible property being acquired.

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May 20, 2015

Failure to Challenge Affordable Housing Condition Barred Subsequent Claim of Invalidity of Enabling Ordinance under Costa-Hawkins Act

While acknowledging that the City's affordable housing ordinance was no longer enforceable under the Costa-Hawkins Act, an appellate court dismissed a challenge to a permit condition requiring compliance with the ordinance because the owner failed to seek timely review of the permit condition through administrative mandamus.

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May 14, 2015

California Department of Fish and Wildlife's EIR for Fish-Stocking and Hatchery Program Upheld

A court of appeal has held that the first-ever environmental impact report for the state's fish hatchery and stocking programs complies with CEQA, but also found that three of the EIR's mitigation measures constituted "underground regulations" in violation of the Administrative Procedure Act. Center for Biological Diversity v.

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May 13, 2015

Second District Court of Appeal Invalidates Approval of Elder Care Facility, Citing Lack of Evidence to Support Zoning Determination

A developer relying on financial hardship to obtain approval of an elder care facility exceeding the square footage permitted in a residential zone must present evidence of such financial hardship to sustain the required finding. Simply averring that a smaller project would not achieve economies of scale needed to provide adequate support services is inadequate.

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May 11, 2015

Court of Appeal Sinks Challenge to TMDL for Lake Bed Sediment

A Court of Appeal has upheld the Regional Board's adoption of the total maximum daily load (TMDL) for concentration of pollutants in the sediment in McGrath Lake, rejecting the claim that TMDLs may not be stated in terms of concentrations of pollutants in lake bed sediments.

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May 9, 2015

Appellate Court Reaffirms Broad Discretion of Trial Courts to Determine Appropriate Attorneys’ Fees

The Fourth Appellate District upheld the trial court's award of less than 10% of the fees requested by the prevailing petitioner in a CEQA case, finding no abuse of the broad discretion accorded trial courts in awarding fees.

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March 13, 2015

California Supreme Court Grants Review of Decision Invalidating SANDAG Regional Transportation Plan

The California Supreme Court has agreed to review the appellate court decision Cleveland National Forest Foundation v.

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March 5, 2015

Council Member Barred From Considering Own Appeal

In Woody's Group, Inc. v.

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March 3, 2015

California Supreme Court Upholds Most Commonly Used CEQA Categorical Exemptions

The California Supreme Court has issued its long-awaited decision in Berkeley Hillside Preservation v. City of Berkeley, No. S201116 (March 2, 2015). The Court's decision clears up some of the ambiguity that has surrounded the standard of review for challenges to CEQA exemptions under the unusual circumstances exception.

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February 9, 2015 CEQA

CEQA Year in Review 2014

A Summary of Published Appellate Opinions Under CEQA

By Stephen Kostka, Julie Jones, Barbara Schussman, Alan Murphy, Ned Washburn, Laura Zagar, Kathryn Bilder, Christopher Chou and Marie Cooper