October 2020 Update
This update addresses the most significant statutory and regulatory changes since the previous update was published. It also includes discussion and analysis of relevant cases. The most significant developments and improvements in this book since the last update (with reminders of important developments covered in prior updates) 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 (https://www.calbar.ca.gov/) to see both the previous and new rules.
Overview of Land Use Regulation
REMINDER: 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
REMINDER: 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, 2020, Govt C §65302(g)(5) was amended to require that, during the next revision of the housing element on or after January 1, 2020, the safety element be reviewed and updated as necessary to identify residential developments (in any hazard area identified in the safety element) that do not have at least two emergency evacuation routes. See §2.23.
In Denham, LLC v City of Richmond (2019) 41 CA5th 340, the court ruled that when a general plan is amended, and that amendment renders the plan internally inconsistent, the proper remedy is to order the city to bring its general plan into compliance with statutory requirements. See §2.28.
REMINDER: 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.
REMINDER: In City of Morgan Hill v Bushey (2018) 5 C5th 1068, the supreme 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
REMINDER: 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.
The California Green Building Standards were last revised in 2019 and took effect on January 1, 2020. See https://codes.iccsafe.org/content/CAGBSC2019/cover, discussed in §5.9.
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 were made in 2018, 2019, and 2020. Also, under Govt C §65852.22, local agencies may provide for the creation of “junior accessory dwelling units” (JADUs) in single-family residential zones. Numerous changes to the ADU and JADU statutes became effective January 1, 2020. See §6.3.
In 2019, we added a new section on the required notices and other procedures for processing density bonus applications to chapter 6. See §6.4A.
Effective January 1, 2020, if a developer offers 100 percent of the total units (excluding manager’s units) in a housing development as affordable units, the developer will be entitled to an 80 percent density bonus, under Govt C §65915(f)(3)(D). See §§6.7–6.8, 6.14.
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, 2020, California’s Housing Accountability Act was amended by SB 330 (Stats 2019, ch 654) (the Housing Crisis Act of 2019). As a reminder, effective January 1, 2018, the 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, and further amended effective January 1, 2020. For details, see §6.16.
Conditional Use Permits; Conditions of Land Use Approval
In Citizens for S. Bay Coastal Access v City of San Diego (2020) 45 CA5th 295, the court upheld the city’s issuance of a CUP under its certified local coastal plan (rather than under state Coastal Act regulation) allowing the city to convert a motel into a transitional housing facility for homeless misdemeanor offenders. See §7.28.
In Save Lafayette Trees v City of Lafayette (2019) 32 CA5th 148, the court ruled that the city’s agreement for tree removal was no different than a permit under the city’s tree ordinance, and was subject to the 90-day statute of limitations. See §7.44.
Subdivision Map Act
Once again, the California Legislature has extended the life of certain tentative maps. The most recent extension allows Butte County and cities within it “to preserve development applications that are set to expire to provide housing to persons displaced by the Camp Fire incident” (SB 249, Stats 2019, ch 366, §§2, 4). This special extension authorizes a discretionary extension for up to 36 months for any unexpired map approved between January 1, 2006, and March 31, 2019, “that relates to the construction of single or multifamily housing” and was still in effect on September 27, 2019. See new Govt C §66452.27, discussed in §§9.117, 9.124.
In North Murrieta Community, LLC v City of Murrieta (2020) 50 CA5th 31, the court upheld a development agreement that extended the term of a vesting tentative map and expressly provided that the city could impose new, generally applicable mitigation fees. See §9.120.
For purposes of the 90-day limitations period of §66499.37, a challenge to a local agency’s interpretation of a condition of approval accrues at the time of the interpretation, according to the court in Honchariw v County of Stanislaus (2020) ___ CA5th ___ (2020 WL 3478663, 2020 Cal App Lexis 579). The court also held that such a claim is distinct from a challenge to the underlying validity of the condition. See §9.160.
Specially Regulated Land Uses
In Center for Bio-Ethical Reform, Inc. v The Irvine Co., LLC (2019) 37 CA5th 97, the court held that a shopping complex owner cannot restrict “grisly or gruesome” imagery, but can impose content-neutral restrictions on permissible locations for speech, and can prohibit use of body-worn cameras to video-record passersby. See §12.20.
In Park Mgmt. Corp. v In Defense of Animals (2019) 36 CA5th 649, the court ruled that the exterior, unticketed area of privately owned amusement parks may, on a case-by-case basis and depending on the unique circumstances of each park, be considered a public forum for expressive activity. See §12.20.
The Ninth Circuit in Calvary Chapel Bible Fellowship v County of Riverside (9th Cir 2020) 948 F3d 1172 held that a church’s facial challenge to a zoning ordinance under RLUIPA failed because the ordinance treate religious assemblies and secular assemblies equally. See §12.25.
In American Legion v American Humanist Ass’n (2019) ____ US ____, 139 S Ct 2067, 2090, the Supreme Court held that a 32-foot-tall Latin cross sitting on public land, which was erected as a memorial to area soldiers who died serving in World War 1, did not violate the First Amendment establishment clause. See §12.30.
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.
REMINDER: 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 County of Kern v Alta Sierra Holistic Exch. Serv. (2020) 46 CA5th 82, the court held that local agencies must demonstrate “a material change in circumstances,” such as government resources spent on new dispensaries and information about the negative effects of legalization including increased traffic incidents and hospitalizations, to justify reenacting “essential features” of prior repealed local moratoria and declaring new public nuisances. See §12.62.
In T-Mobile W. LLC v City & County of San Francisco (2019) 6 C5th 1107, the California Supreme Court affirmed the appellate court 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:
Union of Med. Marijuana Patients v City of San Diego (2019) 7 C5th 1171 (zoning ordinance changes are not automatically “projects” subject to CEQA); see §13.14.
Lake Norconian Club Found. v Department of Corrections & Rehabilitation (2019) 39 CA5th 1044 (CEQA does not apply to agency inaction, even if the inactivity may have environmental consequences); see §13.15.
Berkeley Hills Watershed Coalition v City of Berkeley (2019) 31 CA5th 880 (as with “unusual circumstances” exception in 14 Cal Code Regs §15300.2(c), same bifurcated, two-part standard of review applies also to “location” exception under 14 Cal Code Regs §15300.2(a)); see §13.21.
Hollywoodians Encouraging Rental Opportunities v City of Los Angeles (2019) 37 CA5th 768 (mitigated negative declaration on conversion of apartments to hotel upheld because it was proper for baseline to exclude occupied apartments); see §13.26.
Stopthemillenniumhollywood.com v City of Los Angeles (2019) 39 CA5th 1 (rejected adequacy of project description for mixed-use development project that included several conceptual scenarios with limited detail); see §13.30.
South of Mkt. Community Action Network v City & County of San Francisco (2019) 33 CA5th 321 (upheld EIR that analyzed two “options” for mixed-use development project when project definition did not fluctuate during EIR process); see §13.30.
Chico Advocates for a Responsible Economy v City of Chico (2019) 40 CA5th 839 (loss of “close and convenient” shopping is not environmental impact); see §13.35.
Covington v Great Basin Unified Air Pollution Control Dist. (2019) 43 CA5th 867 (response to comments on EIR must be detailed and must provide reasoned, good faith analysis); see §13.47.
Citizens for Positive Growth & Preservation v City of Sacramento (2019) 43 CA5th 609 (recirculation of EIR not required because new information about traffic was not significant); see §13.48.
Center for Biological Diversity v Department of Conserv. (2019) 36 CA5th 210 (agency that prepared and certified “programmatic” or “first-tier” EIR to provide detailed information regarding potential environmental impacts of oil and gas well stimulation in response to legislative mandate, but did not approve a particular “project” under CEQA, was not required to adopt findings or mitigation monitoring and reporting program); see §13.51.
Sacramentans for Fair Planning v City of Sacramento (2019) 37 CA5th 698 (upheld “sustainable communities environmental assessment” under SB 375); see §13.62C.
Fudge v City of Laguna Beach (2019) 32 CA5th 193 (pending lawsuit challenging local agency’s grant of coastal development permit becomes moot if Coastal Commission accepts appeal); see §13.63.
Sierra Club v County of Fresno (2018) 6 C5th 502 (whether description of environmental impact is insufficient because it lacks analysis or omits magnitude of impacts may be subject to independent judicial review, but underlying factual determinations, such as agency’s choice of methodology, are factual questions reviewed for substantial evidence support); see §13.64.
Federal and Regional Regulations; Clean Water Act; Hazardous Substances
In County of Maui v Hawai’i Wildlife Fund (2020) ___ US ___, 140 S Ct 1462, the U.S. Supreme Court ended the split of authority over whether and when discharges of pollutants into groundwater are subject to the Clean Water Act (CWA). The Court rejected the Ninth Circuit’s “fairly traceable” standard for discharges to navigable waters, and held that CWA jurisdiction sometimes includes discharges to groundwater. See §§14.3, 14.12, 14.7A, 14.33. NOTE: Section 14.33 has been thoroughly updated and expanded to cover the County of Maui decision in detail.
REMINDER: 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.
On April 21, 2020, the EPA and the Army Corps of Engineers promulgated the Navigable Waters Protection Rule: Definition of “Waters of the United States.” 85 Fed Reg 22250 (Apr. 21, 2020). See §§14.3, 14.7A, 14.12. NOTE: Sections 14.7A and 14.12 have been thoroughly updated and expanded to cover the new Rule and recent related developments regarding the definition of “water of the United States.”
In Pacific Coast Fed’n of Fishermen’s Ass’ns v Glaser (9th Cir 2019) 945 F3d 1076, the Ninth Circuit ruled that a fishermen’s complaint asserting that a drainage system managed by the U.S. Bureau of Reclamation and a local water district discharged pollutants into surrounding waters (in violation of the CWA) required remand to determine if all discharges underneath the solar project originated from the project itself (not exempted), rather than from other nearby agricultural lands (exempted)). See §§14.33–14.34.
Effective January 1, 2020, Govt C §65040.12 revised the definition of “environmental justice,” for purposes of the Office of Planning and Research’s coordination of state agency programs, to include meaningful involvement of people of all races, cultures, incomes, and national origins. See §14.50.
In People v Wetle (2019) 43 CA5th 375, the court refused to impose strict liability standards when the prosecutor failed to prove that the defendant was responsible for injuring marine resources when defendant’s tenant (rather than defendant) illegally trapped crabs using defendant’s boat. See §14.52.
In Citizens for S. Bay Coastal Access v City of San Diego (2020) 45 CA5th 295, the court ruled that the city properly issued a conditional use permit under its certified LCP (rather than under Coastal Act regulation), allowing the city to convert a motel into a transitional housing facility for homeless misdemeanor offenders. See §14.63.
Other Laws Related to Land Use Regulation
In Taxpayers Action Network v Taber Constr., Inc. (2019) 42 CA5th 824, the court held that the conflict of interest rule under Govt C §1090 applies only if the independent contractor “can be said to have been entrusted with transacting on behalf of the Government”). See §15.8.
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.
REMINDER: 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 Cedar Point Nursery v Shiroma (9th Cir 2019) 923 F3d 524, the Ninth Circuit held that a state regulation giving union organizers access to agricultural employees at employer work-sites for 360 hours per year did not constitute a permanent physical taking of the employers’ property. See §17.18.
In Bridge Aina Le’a, LLC v State Land Use Comm’n (9th Cir 2020) 950 F3d 610, the Ninth Circuit reviewed Lucas, Tahoe-Sierra, and subsequent Supreme Court decisions, and explained that while “value is determinative,” use is relevant in assessing value. See §17.20.
In Pakdel v City & County of San Francisco (9th Cir 2020) 952 F3d 1157, the Ninth Circuit noted that courts have the discretion to waive the “final decision” ripeness requirement in takings cases (because it is “prudential, not jurisdictional”), but declined to exercise discretion after reviewing cases that did exercise it. See §17.43.
REMINDER: 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) 588 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.
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.
Effective January 1, 2020, Govt C §65589.5 was amended to further limit cities’ and counties’ ability to impose new exactions on housing development projects. For details, see §18.47.
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 §§18.54–18.56.
Due Process and Equal Protection Claims
In Vaquero Energy, Inc. v County of Kern (2019) 42 CA5th 312, the court addressed a due process claim based on a county ordinance allowing expedited oil and gas drilling when the surface rights owner consented, but imposing a more lengthy and expensive permitting process if the surface rights owner did not consent. The court found that the Kern County ordinance passed constitutional muster because, unlike ordinances that truly vested veto power in a neighboring landowner, the county ordinance reserved ultimate approval authority in the county, albeit after a more burdensome process. See §§19.11A, 19.35.
REMINDER: 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 Canyon Crest Conservancy v County of Los Angeles (2020) 46 CA5th 398, the landowner was not entitled to recover attorney fees under CCP §1021.5 because the litigation (challenging a single tree removal permit) did not confer a “significant benefit” on the public. See §21.51.
The court in Long Beach Unified Sch. Dist. v Margaret Williams, LLC (2019) 43 CA5th 87 ruled that a refusal to tender the indemnity of plaintiff’s own action against a school district was protected activity under the anti-SLAPP statute, as conduct in furtherance of litigation. Also, the district had no probability of prevailing because the contract was procedurally and substantively unconscionable. See §§21.72, 21.74.
As noted more fully under “Regulatory Takings” above, in Knick v Township of Scott (2019) 588 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.