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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. View posts by topic. Subscribe 🡢

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California Supreme Court Holds Governor’s Executive Order Setting 2050 GHG Targets Need Not Be Used As CEQA Significance Threshold

In November 2014, we reported on the controversial court of appeal decision that overturned the environmental impact report for the San Diego Association of Governments' 2050 Regional Transportation Plan and Sustainable Communities Strategy.

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Supreme Court Announces New Test for Regulatory Takings Claims

Under the doctrine of regulatory takings, a regulation of property that goes "too far" in burdening property rights will be recognized as a Fifth Amendment taking. The Supreme Court's recent decision in Murr v. Wisconsin (U.S. Supreme Court No.

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Double Trouble - Is Black Sky Capital Blue Skies for Lenders?

An annoying question for lenders is whether a lender can enforce two loans to the same borrower and secured by the same property. The nagging issue is usually raised when a lender makes (1) a first loan and an additional advance to the borrower secured by the same property, (2) a first secured loan followed by a secured credit line, or (3) a first secured loan and a new secured second

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Action to Invalidate Building Permit Barred by Failure to File Timely Challenge to Underlying Site Development Permit

In Citizens for Beach Rights v.

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Referendum that Leaves in Place Zoning That is Inconsistent With General Plan Upheld

Rejecting prior case law, the Sixth District Court of Appeal held that citizens may referend a zoning ordinance even when the result of doing so is to leave in place pre-existing zoning that is inconsistent with the general plan. City

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Court Must Defer to Local Agency Decisions if Supported by Substantial Evidence

The court of appeal reaffirmed that a court should not second guess or "micro-manage" the development decisions of municipal governments; rather, the courts are simply charged with reviewing whether there is substantial evidence in the record supporting the city's decision.

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Promised Public Subsidies Need Not Actually Be Received to Trigger Prevailing Wage

A contractual commitment by a public agency to provide financial subsidies to a project triggers prevailing wage even if the subsidies are ultimately never received. Cinema West, LLC. v. Baker, 3 Cal. App.

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Attorney Neglect Not Grounds For Relief From Summary Judgment For Failure to Lodge Administrative Record

A party against whom summary judgment is entered as a result of attorney neglect may not seek relief under a statute that provides relief from a default judgment or dismissal resulting from attorney neglect. The Urban Wildlands Group, Inc. v. City of Los Angeles, 10 Cal. App.

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CEQA Action Challenging Oil Well Permits Not Barred By Res Judicata

The court of appeal held that the doctrine of res judicata (which precludes relitigation by the same parties of issues previously adjudicated on the merits) does not apply when a prior judgment was based on mootness and ripeness grounds because it is not a judgment on the merits.

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Ninth Circuit Upholds Biological Opinion for Silver State South Solar Project in Nevada

In Defenders of Wildlife v. Zinke, the Ninth Circuit upheld the Biological Opinion prepared by the U.S.

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Tie Vote Decision Resulting in Upholding Permit Approval was Subject to Challenge Under CEQA

The court of appeal rejected a claim that a tie vote of the air quality management district's hearing board resulted in "no action" and hence was not subject to judicial challenge.

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An Attorney Fee Award Is Not Available To A Project Proponent That Successfully Defends A Challenge To Project Approvals Unless The Lawsuit Was Detrimental To The Public Interest.

A project sponsor can successfully defend an action brought to challenge a permit for its project, and satisfy the standards in Code of Civil Procedure section 1021.5 for an award of attorneys' fees, but still have its fee claim rejected, if the court concludes the aim of the lawsuit was to protect, rather than curtail, important public rights, according to the decision in Save Our Heritage Or

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Court of Appeal Rejects CEQA Piecemealing Challenge to County’s “Zoning Modernization” Ordinances

The court in Aptos Council v. County of Santa Cruz (6th District, No.

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Court Finds CARB's New Analysis of Biodiesel Low Carbon Fuel Regulations Still Doesn’t Comply With CEQA But Leaves Current Regulations In Place Pending Compliance

In 2013, the fifth district court of appeal ruled that the California Air Resources Board violated CEQA when it adopted its 2009 Low Carbon Fuel Standard regulations, and the court directed issuance of a writ of mandate requiring that CARB take corrective action. The court allowed the LCFS regulations to remain in effect while CARB completed a new CEQA anal

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A Project Is Not Discretionary If the Agency Lacks Authority to Require Mitigation

In Sierra Club v.