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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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July 27, 2015

The Importance of Independence: The Ninth Circuit Provides Helpful Clarification on Connected Actions in the Energy Project Development Context

The Ninth Circuit Court of Appeals has held that a right-of-way for an access road over Bureau of Land Management (BLM) land to connect a wind project to a state highway did not trigger formal consultation under the Endangered Species Act because the proposed access road would not have significant impacts to the environment.

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July 24, 2015

EIR Comments Should Improve The Environmental Review Process, Not Derail It

CEQA guidelines require only that a lead agency give detailed responses to comments that identify an important new matter not discussed in the draft environmental impact report or raise questions about a significant environmental issue, the Fourth District Court of Appeal ruled, allowing Orange County to proceed with a long-considered expansion of a county jail.

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June 30, 2015

Supreme Court Invalidates EPA Pollution Standards

The Supreme Court has struck down the Environmental Protection Agency's rule limiting the amount of mercury and air toxics emitted by coal- and oil-fired power plants, finding that the agency acted unreasonably in failing to consider the cost of the regulation.

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June 26, 2015

Court Defers to San Diego’s Approval of Bridge in Balboa Park

Giving a green light to construction of a new bridge in the historic Balboa Park, a court has reaffirmed a city's discretion to interpret and apply its own general plan and zoning ordinances notwithstanding conflicts with specific general plan policies protecting historic resources.

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June 24, 2015

Don’t Bank On It: Court of Appeal Takes Issue with City’s Development Prohibition

A city cannot prohibit development on more than one-third of an otherwise developable site in anticipation of future condemnation of that portion of the property. Such a restriction denies the landowner all economically beneficial use of the restricted land and constitutes a taking requiring just compensation.

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June 17, 2015

“True Lease” Required for Lease-Leaseback Exemption from Public Bidding

In a decision that may imperil many pending school construction transactions, the Fifth District Court of Appeal has held that, to qualify for exemption from public bidding, a lease-leaseback transaction must include "a financing component" and a "genuine lease" that provides for school district use of the facilities during the lease term.

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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.