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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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Plaintiffs Failed to Exhaust Administrative Remedies When Their Consultant Did Not Expressly Raise Takings Claim

Continuing a trend toward stricter application of the administrative exhaustion doctrine, an appellate court held that plaintiffs could not bring a takings claims against the Coastal Commission because they did not "present the exact issue" during the administrative proceedings. Greene v.

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Action for Refund of Developer Fees Was Subject to One-Year Statute of Limitations

The Third District Court of Appeal held that a suit for refund of developer fees based on failure to make findings required under the Mitigation Fee Act was an action for a "penalty or forfeiture" subject to the one-year limitations period under Code of Civil Procedure section 340(a). County of El Dorado v. Superior Court (Austin), No. C088409 (3rd Dist. Oct.

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Unlicensed Treatment Facility Operating in Violation of Local Zoning Code Not Eligible for Safe Harbor Provisions of Health and Safety Code

Operators of an unlicensed alcohol and drug treatment facility in violation of a city's zoning ordinance could not avail themselves of the California Health and Safety Code's safe harbor provisions. City of Dana Point v. New Method Wellness, 39 Cal. App.

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New California Law Restricts Municipalities’ Ability to Limit Housing

California Governor Gavin Newsom has signed into law a major set of restrictions on the actions California cities and counties may take to impede housing development.

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Local Ban on Airbnb and Other Short-Term Rentals Did Not Violate Dormant Commerce Clause

An ordinance that banned short-term residential rentals and related activities did not violate the Dormant Commerce Clause, which prohibits discrimination against interstate commerce by state and local governments. Rosenblatt v. City of Santa Monica, 940 F.3d 439 (9th Cir.

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Award of Attorney’s Fees Warranted Where Plaintiff Lost on Most Claims But Achieved Primary Litigation Objective

A plaintiff challenging a city council's interpretation of a local ballot measure was entitled to recover costs and attorney fees when successful on only one cause of action because the primary relief sought was granted. Friends of Spring Street v.

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Agency Inaction Is Not a CEQA Project

An agency's failure to maintain a historic building—"demolition by neglect"—is not a "project" subject to CEQA. Lake Norconian Club Foundation v. California Department of Corrections and Rehabilitation, No. A154917 (First District Court of Appeal, Sept. 13, 2019). The Lake Norconian Club is a former hotel that is listed on the National Register of Historic Places.

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California Supreme Court Clarifies What Is a “Project” Subject to CEQA

The California Supreme Court clarified what activities are subject to CEQA in its recent decision in Union of Medical Marijuana Patients, Inc. v. City of San Diego, No. S238563, 2019 WL 3884465 (Aug. 19, 2019). First, the court held that enactment of a zoning ordinance is not necessarily a project in all circumstances.

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City Not Required to Evaluate Impacts of Loss of Rental Units from Already-Vacant Building

A lead agency was not required to evaluate the housing-related impacts of a proposed hotel in a vacant building that was formerly used for rental housing. Hollywoodians Encouraging Rental Opportunities v. City of Los Angeles, 37 Cal. App.

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Regulation Finalizes Repeal of Obama-Era Clean Water Rule

A new final regulation issued on September 12, 2019 by the Environmental Protection Agency and the Army Corps of Engineers repealed the Obama administration's

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Local Agencies Cannot Challenge State Project Approvals on Constitutional Grounds in Federal Court

Cities and other political subdivisions lack standing to mount a constitutional challenge in federal court against an administrative decision by a state agency. City of San Juan Capistrano v. California Public Utilities Commission, 937 F.3d 1278 (9th Cir.

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Court Decision Compounds Confusion Over Scope of Clean Water Act Jurisdiction

A decision by the U.S. District Court for the Southern District of Georgia issued on August 21, 2019, highlights the continuing confusion over the definition of "waters of the United States" under the Clean Water Act.

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EPA Proposes Narrowing of Water Quality Certification Authority Under Clean Water Act

The Environmental Protection Agency has issued a lengthy proposed rule clarifying the substantive and procedural requirements for water quality certifications under Section 401 of the Clean Water Act.

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Federal Agencies Issue Major Changes to Endangered Species Act Regulations

The U.S. Fish and Wildlife Service and National Marine Fisheries Service has issued a set of three new final rules that substantially revise regulations implementing the Endangered Species Act.

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EIR’s Project Description May Present Alternative Development Options and the Agency May Approve A Variant of an Analyzed Alternative

An EIR's project description may identify alternative development schemes proposed for a single project, and the agency may approve a modified version of the project that incorporates elements of one of the alternatives reviewed in the EIR. South of Market Community Action Network v.