October 2019 Update
This update addresses the most significant statutory and regulatory changes since the previous update was published and includes reminders of several important developments that were covered in the 2018 update. It also includes discussion and analysis of relevant cases. Among the most significant developments and improvements in this book since the last update are the following:
Ethics; Rules of Professional Conduct
REMINDER: On November 1, 2018, the new and amended Rules of Professional Conduct approved by the California Supreme Court went into effect. The contents of this book have been updated to incorporate the new rules. Visit the State Bar website (http://www.calbar.ca.gov/) to see both the previous and new rules.
Overview of Land Use Regulation
Effective January 1, 2019, a number of land use statutes were amended to apply to charter cities. See §§1.11B, 2.2, 2.18.
General and Specific Plans
Effective January 1, 2019, various statutes governing the housing element in city and county general plans were revised to add new requirements and objectives. See §§2.13, 2.16.
Effective January 1, 2018, as part of a major effort to spur development of affordable housing statewide, the California legislature passed several bills establishing new streamlined housing development plans, including Workforce Housing Opportunity Zones (SB 540) and Housing Sustainability Districts (AB 73). For details, see §2.59A.
Effective January 1, 2019, charter cities with populations under 2 million are no longer exempt from the consistency requirement of Govt C §65860 (requiring zoning ordinances to be consistent with the applicable general plan). See §4.25.
In City of Morgan Hill v Bushey (2018) 5 C5th 1068, the supreeme court held that the electorate’s referendum power applies even if a successful referendum would result in zoning being inconsistent with the general plan. See discussion in §§4.38, 12.45.
Sustainability and Climate Change Regulations
On December 28, 2018, the California Natural Resources Agency amended several provisions of the CEQA Guidelines, including those relating to analysis of greenhouse gas (GHG) emissions. See §5.4.
By September 1, 2018, and every 4 years thereafter (to align with GHG reduction target setting), the California Air Resources Board must prepare a report assessing the progress made by each metropolitan planning organization (MPO) toward meeting the regional GHG reduction targets. The report must include changes to the GHG emissions in each region, data-supported metrics for the strategies used to meet the targets, and discussion of best practices used and challenges faced by the MPOs. See Govt C §65080(b)(2)(J)(iv), discussed in §5.6.
Under amendments to Govt C §65584.05 effective January 1, 2018, each council of governments must distribute to each local government a proposed draft of the regional housing needs allocation (RHNA) at least 18 months before the scheduled revision of the RHNA. Effective January 1, 2019, the period of time within which a local government can request a revision of its allocation has been reduced from 60 days to 45 days after receiving the draft. Other provisions relating to the appeal process have been amended as well. See §5.8.
After the extensive revisions made in 2017 to the statutes governing residential “accessory dwelling units” (ADUs) (primarily Govt C §65852.2), which generally made it easier for property owners to get approval for creation of ADUs, further revisions went into effect January 1, 2018. For example, the 2018 amendments clarified that an ADU may be rented separate from the primary residence, but may not be sold or conveyed separate from the primary residence. Also, beginning in 2019, the ADU statutes apply to charter cities. See §6.3.
A new section on the required notices and other procedures for processing density bonus applications has been added to chapter 6. See §6.4A.
Beginning in 2019, Govt C §65915 was amended to provide a new density bonus for student housing set aside for lower-income students. For details, see §6.10.
Effective January 1, 2018, California’s new Housing Accountability Act provides standards for local agencies’ findings that an affordable housing development or emergency shelter is inconsistent with applicable plans or programs. Various provisions regarding those required findings were amended effective January 1, 2019. See §6.16.
Also effective in 2018, the California legislature enacted several new laws to expedite the approval of affordable housing developments, notably SB 35 and SB 329. For details, see new §6.16B.
Conditional Use Permits; Conditions of Land Use Approval
In Hauser v Ventura County Bd. of Supervisors (2018) 20 CA5th 572, the court upheld the board of supervisors’ denial of a conditional use permit allowing a landowner to keep up to five tigers on her residential property. See §7.28.
Subdivision Map Act
Once again, the legislature has provided for an extension the life of certain tentative maps. Effective January 1, 2019, Govt C §66452.26 authorizes a discretionary extension for up to 24 months for any unexpired map approved between January 1, 2006, and July 11, 2013, that was extended under Govt C §66452.25 and still in effect on January 1, 2019. See §§9.107, 9.117, 9.124.
Aesthetic Regulation and Design Review
In Georgetown Preservation Soc’y v County of El Dorado (2018) 30 CA5th 358 (a CEQA case), the court noted that design review can, but does not always, mitigate aesthetic impacts. See §10.25.
Specially Regulated Land Uses
In Citizens for Amending Proposition L v City of Pomona (2018) 28 CA5th 1159, the court declared invalid a development agreement amendment to extend the term of the agreement because the amendment violated the provisions set forth in an initiative measure approved by city voters. See §12.11.
In Eagle Point Educ. Ass’n/SOBC/OEA v Jackson County Sch. Dist. No. 9 (9th Cir 2018) 880 F3d 1097, the Ninth Circuit held that school district policies prohibiting picketing, strikers, and signs in a nonpublic forum were neither reasonable nor viewpoint-neutral. See §12.19.
In Save Lafayette v City of Lafayette (2018) 20 CA5th 657, the court held that a city must submit a citizen referendum to a public vote even if the referendum could result in zoning that would be inconsistent with the city’s general plan. See §12.45.
The California Supreme Court reversed the court of appeal in City & County of San Francisco v Regents of Univ. of Cal. (2019) 7 C5th 536 and upheld a San Francisco ordinance (enacted under home rule authority) requiring state universities to collect and remit a parking tax from users of university parking lots within the city’s jurisdiction. See discussion in §12.46.
In Westsiders Opposed to Overdevelopment v City of Los Angeles (2018) 27 CA5th 1079, the court upheld a charter city’s general plan amendment for a transit-oriented development project on the ground that the city’s interpretation of its own charter must be upheld if it has a reasonable basis. See §12.46.
In a case involving the supremacy of the California Coastal Act of 1976 (Coastal Act), Greenfield v Mandalay Shores Community Ass’n (2018) 21 CA5th 896, the court held that the banning of short-term rentals constitutes development under the Coastal Act and must be decided by the local government or the Coastal Commission, not by a homeowner’s association. See §12.49.
In another Coastal Act case, Fudge v City of Laguna Beach (2019) 32 CA5th 193, the court held that the Coastal Commission has de novo authority over a coastal zone development permit once it accepts an appeal because the Coastal Act takes precedence over CEQA. See §12.49.
In San Diego Unified Port Dist. v California Coastal Comm’n (2018) 27 CA5th 1111, the court ruled that the Coastal Commission properly exercised its statutory mandate in deciding that the port’s master plan amendment did not adequately protect lower-cost visitor and public recreational opportunities. See §12.57.
Effective June 27, 2017, the California legislature enacted the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) (Bus & P C §§26000–26231.2), which effectively repealed and replaced the former Medical Cannabis Regulation and Safety Act (MCRSA) (former Bus & P C §§19300–19360 and former Health & S C §§11362.769, 11362.777, enacted in 2015), and combined medical and recreational cannabis laws into one comprehensive piece of legislation. See §12.62.
In J. Arthur Props., II, LLC v City of San Jose (2018) 21 CA5th 480, the court ruled that a medical marijuana collective was not a medical office permitted by zoning ordinance, and thus was not a legal nonconforming use. See §12.62.
On January 16, 2019, the Office of Administrative Law officially approved new state regulations for cannabis businesses, which took effect immediately. The official regulations are available at https://www.bcc.ca.gov/law_regs/cannabis_regs.html. See Note in §12.62.
In T-Mobile W. LLC v City & County of San Francisco (2019) 6 C5th 1107, the California Supreme Court affirmed the court of appeal ruling that a local ordinance requiring additional aesthetic review for wireless equipment located in specific areas within the city was not preempted by Pub Util C §§7901 and 7901.1. See §12.68.
CEQA; Environmental Review and Mitigation
The most significant recent CEQA cases include the following:
County of Ventura v City of Moorpark (2018) 24 CA5th 377 (settlement agreement setting truck haul routes and staging areas for beach restoration project was part of whole of action); see §13.13.
John R. Lawson Rock & Oil, Inc. v State Air Resources Bd. (2018) 20 CA5th 77 (CARB’s issuance of regulatory advisory that it would temporarily forego enforcement action against small fleet operators before formal modification of regulations improperly committed CARB to definite course of action before CEQA compliance); see §13.15.
Aptos Residents Ass’n v County of Santa Cruz (2018) 20 CA5th 1039 (petitioner’s ambiguous and unreliable information about possible future cellular transmission facilities was insufficient to support fair argument that cumulative impact exception applied); see §13.21.
Friends of Riverside’s Hills v City of Riverside (2018) 26 CA5th 1137 (no substantial evidence to support fair argument that hillside subdivision would violate land use regulation intended to mitigate environmental impacts of development); see §13.22.
Jensen v City of Santa Rosa (2018) 23 CA5th 877 (non-expert noise analysis did not constitute substantial evidence of fair argument that signficiant noise impacts would occur); see §13.23.
Protect Niles v City of Fremont (2018) 25 CA5th 1129 (particularly sensitive context—an established historic district—required evaluation of aesthetic impacts in EIR, not mitigated negative declaration); see §13.23.
Georgetown Preservation Soc’y v County of El Dorado (2018) 30 CA5th 358 (comments expressing subjective opinion may constitute substantial evidence of potentially significant aesthetic impacts, requiring EIR, when they indicate broadly shared objection to project); see §13.23.
San Franciscans for Livable Neighborhoods v City & County of San Francisco (2018) 26 CA5th 596 (reliance on population projections as future baseline was appropriate because project [revisions to housing element of general plan] was growth-accommodating, rather than growth-inducing); see §13.32.
Sierra Club v County of Fresno (2018) 6 C5th 502 (EIR must provide sense of nature and magnitude of health and safety problems caused by physical changes resulting from project, including either (1) analysis that connects significant air quality effects to human health consequences or (2) showing that such analysis is infeasible); see §§13.32, 13.37.
Covina Residents for Responsible Dev. v City of Covina (2018) 21 CA5th 712 (review of traffic impacts in mitigated negative declaration was properly tiered from specific plan EIR); see §13.56.
Save Our Heritage Org. v City of San Diego (2018) 28 CA5th 656 (new findings are not required when agency approves changes to project based on addendum, but agency must substantiate its reasons for determining why those changes do not necessitate further environmental review); see §13.58.
Golden Door Props. v County of San Diego (2018) 27 CA5th 892 (“efficiency metric” threshold based on statewide GHG data must be supported with substantial evidence showing that threshold is appropriate for use for local projects); see §13.62B.
Rodeo Citizens Ass’n v County of Contra Costa (2018) 22 CA5th 214 (EIR was not deficient for failure to quantify GHG emissions from downstream users because such analysis would be speculative); see §13.62B.
Federal and Regional Regulations; Clean Water Act; Hazardous Substances
In National Ass’n of Mfrs. v Department of Defense (2018) ___ US ___, 138 S Ct 617, the U.S. Supreme Court held that challenges to the “waters of the United States” rule must first be brought in federal district courts. See §§14.5, 14.7A.
A new section has been added to chapter 14 on the regulatory revisions to the definition of “water of the United States” and related litigation. See §14.7A.
In Hawai’i Wildlife Fund v County of Maui (9th Cir 2018) 886 F3d 737, the Ninth Circuit held that wastewater discharges from wells into the groundwater require NPDES permits if the pollutants are “fairly traceable” from the point source to navigable waters. See §14.33.
In San Francisco Baykeeper, Inc. v State Lands Comm’n (2018) 29 CA5th 562, the court ruled that sand mining was not a public trust use and rejected the Commission’s claim that use of a boat for commercial sand dredging and transporting the resource was consistent with the public trust purposes of navigation and commerce. See §14.57.
Other Laws Related to Land Use Regulation
Under a recent amendment to Govt C §65950, for a development project consisting of either (1) residential units only or (2) mixed uses in which nonresidential units comprise less than 50 percent of the total square footage, the time period within which the lead agency must approve or disapprove the project is 120 days from the date of certification of the CEQA document. Under a related amendment to Govt C §65952(b), for a responsible agency other than the California Coastal Commission, the time limit to take action on such a development project is the longer of either 90 days from the date the lead agency approves the project or 90 days from the date the responsible agency has accepted the application as complete. See §15.28.
Effective January 1, 2019, certain provisions of the Development Agreement Law (Govt C §§65864–65869.5) have been amended to expressly apply to charter cities. See §16.25.
In Bottini v City of San Diego (2018) 27 CA5th 281, after the city erroneously determined that a residential project required CEQA review, the owner asserted that resultant construction delays imposed a taking. The court of appeal affirmed the trial court’s rejection of the claim, but disagreed with the trial court’s reasoning. See §17.35.
The Ninth Circuit continues to apply the Penn Central factors in reviewing challenges to rent control measures. Its most recent such decision is Colony Cove Props., LLC v City of Carson (9th Cir 2018) 888 F3d 445. See §§17.38A, 17.45.
The U.S. Supreme Court overruled the state-litigation requirement established in Williamson County Reg’l Planning Comm’n v Hamilton Bank (1985) 473 US 172, 105 S Ct 3108, concluding Williamson was poorly reasoned, “imposes an unjustifiable burden on takings plaintiffs,” and conflicts with the rest of the Court’s takings jurisprudence. Knick v Township of Scott (2019) ___ US ___, 139 S Ct 2162. The Court did not disturb the “final decision” requirement of Williamson, which was not at issue in Knick. See §§17.42, 17.44, 17.63, 19.4, 19.7–19.8, 19.19, 21.77–21.78, 21.83.
In York v City of Los Angeles (2019) 33 CA5th 1178, a takings claim was held not ripe when the city had denied the owner’s request to allow 79,700 cubic yards of grading in connection with a proposed new residence, but the owner had not sought permission for a smaller amount of grading, nor established that the full amount was the minimum needed for the home. See §17.43.
The court in Sierra Palms Homeowners Ass’n v Metro Gold Line Foothill Extension Constr. Auth. (2018) 19 CA5th 1127 ruled that, in state court takings actions, homeowners associations may have standing under CC §5980 to assert the ownership claims of their members. See §17.60.
A new section on equitable forfeiture has been added to chap 17, discussing the California Supreme Court’s decision in Lynch v California Coastal Comm’n (2017) 3 C5th 470. See §17.64A.
General and Special Taxes; Exactions
In Paradise Irrig. Dist. v Commission on State Mandates (2019) 33 CA5th 174, the court held that a water district is not relieved from collecting fees to pay for compliance with the California Water Conservation Act of 2009, if the fees are otherwise authorized, even if those fees are subject to majority protests under Proposition 218. See §18.2.
The case of Johnson v County of Mendocino (2018) 25 CA5th 1017 involved a ballot measure approved by 63 percent of the voters imposing a tax on commercial cannabis businesses, describing it as a “business tax.” An accompanying advisory (but nonbinding) measure stated that the revenues from the tax should be used for specified government services. Both the trial and appellate courts held that the suggested uses of the revenues did not transform what was otherwise a general tax into a special tax (one which would have required a two-thirds vote for passage). See §18.8.
In Citizens for Fair REU Rates v City of Redding (2018) 6 C5th 1, a city-owned utility made annual payments to the city’s general fund to pay the cost of services provided to the utility by other city departments, called “PILOT payments.” Plaintiffs argued that the PILOT payments were essentially being “passed through” to rate payers via rate increases, and constituted a “back-door” tax in contravention of Proposition 26. The supreme court disagreed, and held that the PILOT payment was merely an interagency transfer of funds. See discussion in §18.12.
The court in SummerHill Winchester LLC v Campbell Union Sch. Dist. (2018) 30 CA5th 545 held that a school fee will be invalid if the related nexus study fails to conduct the analysis required to satisfy all three prongs of the test established in Shapell Indus., Inc. v Governing Bd. of the Milpitas Unified Sch. Dist. (1991) 1 CA4th 218. Because the school fee was based on an invalid nexus study, the court ordered the district to refund $500,000 in school fees to the plaintiff-developer. See §§18.30, 18.56, 18.73.
In Tanimura & Antle Fresh Foods, Inc. v Salinas Union High Sch. Dist. (2019) 34 CA5th 775, the court of appeal held that a school district need not treat agricultural employee housing that would exclude dependent school-age children as a separate “type” of residential housing, and thus was entitled to require payment of the school fees at the normal residential rate. See §§18.30, 18.73.
In Boatworks, LLC v City of Alameda (2019) 35 CA5th 290, the court ruled that the nexus study for a parks and recreation fee was flawed because it included the cost of (1) acquiring land that the city already owned (and had received for free from the Navy) and (2) constructing recreational facilities that which were not yet available for use by the public. See §18.56.
Due Process and Equal Protection Claims
In Tucker v City of Chicago (7th Cir 2018) 907 F3d 487, the Seventh Circuit held that the plaintiff’s failure to avail herself of post-deprivation remedies was highly relevant to her claim of due process violation. See discussion in §19.16.
The maximum fines for violation of local building or safety codes have increased. See §§20.19, 20.26.
Land Use Litigation
In Save Lafayette Trees v City of Lafayette (2019) 32 CA5th 148, the court held that the 90-day limitations period for claims based on violations of planning and zoning laws (rather than 180-day period provided under municipal code) applied to causes of action challenging the city’s agreement with an electric company to remove numerous trees, because Govt C §65009 preempted the municipal code provisions due to an express conflict. See §§21.23, 21.43.
In LandWatch San Luis Obispo County v Cambria Community Servs. Dist. (2018) 25 CA5th 638, a community services district was awarded costs for preparing the administrative record after the petitioner elected to prepare the record but unreasonably delayed in preparing it beyond the 60-day time limit. See §21.45.
In Santa Clara Waste Water Co. v County of Ventura Envt’l Health Div. (2017) 17 CA5th 1082, the court ruled that the Health Division had made a prima facie case that the action against it arose from an act in furtherance of its right and responsibility to make a statement involving a public issue and that action was barred by the anti-SLAPP law. See §§21.72, 21.74.
In Takhar v People ex rel Feather River Air Quality Mgmt. District (2018) 27 CA 5th 15, the court granted a motion to strike a taxpayer waste action brought by a property owner who was allegedly creating fugitive dust emissions, because the property owner neither demonstrated that he qualified for the public interest exemption to the anti-SLAPP statute nor showed a probability of prevailing on the merits. See §§21.71, 21.74.
As noted more fully under “Regulatory Takings” above, in Knick v Township of Scott (2019) ___ US ___, 139 S Ct 2162, the U.S. Supreme Court overruled the state-litigation requirement established in Williamson County Reg’l Planning Comm’n v Hamilton Bank (1985) 473 US 172, 105 S Ct 3108. The Court did not disturb the “final decision” requirement of Williamson, which was not at issue in Knick. See §§17.42, 17.44, 17.63, 19.4, 19.7–19.8, 19.19, 21.77–21.78, 21.83.