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Posts Tagged ‘municipal law’


First District Finds Design Review Does Not Make Entire Project Subject to Discretionary Review

Tuesday, January 15th, 2019

In McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 2018 Cal.App.LEXIS 1233, the First District Court of Appeal held that the City’s design review process did not require the separate invocation of CEQA; the City complied with CEQA where it was at its discretion to find the express content of the design review ordinance limited its review.

The City of St. Helena (City) approved a demolition permit and design review to demolish a single-family home and develop an eight-unit multifamily residential building (Project). The site’s zoning designation of “high density residential” established that multifamily housing was a permitted use, subject to design review. The Planning Commission found that the Project was a categorically-exempt infill project (CEQA Guidelines, § 15332) and approved it.  McCorkle Eastside Neighborhood Group (McCorkle) appealed the decision to the City Council.

The City Council found that the Project met the design standards under the applicable zoning designation and approved the Project. In doing so, the Council found that the Project met all 14 required design review factors and that the design review ordinance prevents the City from disapproving the Project for any non-design-related reasons. The Council also found that a Class 32 infill exemption to CEQA applied and the Project would not “result in any significant effects relating to traffic, noise, air quality or water quality.” The City’s resolution specifically stated that the exemption finding “was consistent with the City’s limited discretion to consider or address environmental impacts [where] ‘Multi-family residential land uses are permitted by right in the [zoning] District.’” The City thus concluded that “in the context of this design review approval, the [City’s] authority/discretion is limited to (design related) concerns stemming from the only discretionary actions required for project approval.” McCorkle filed suit.

McCorkle alleged that the City was incorrect to find that its design review process did not require the separate invocation of CEQA. Further, McCorkle alleged that the City improperly found the Project a categorically-exempt infill project and abused its discretion for not requiring the preparation of an EIR. McCorkle also alleged that the City Council improperly delegated CEQA authority to the Planning Commission. The trial court denied the petition for writ of mandate. McCorkle timely appealed.

The Appellate Court first held that there was no improper delegation of the City and City Council’s authority under CEQA. The Planning Commission was the initial reviewing agency, but that did not mean that the City Council had abdicated its project review duties to the Planning Commission. Instead, following an appeal of the Planning Commission’s decision, the City Council took independent action in finding the Project exempt and approving the Project. There was no improper delegation.

The Court then disagreed with McCorkle’s claim that, because the City had discretion to conduct design review, the entire Project was discretionary and subject to CEQA. McCorkle relied on the general rule that, where a project involves both discretionary and ministerial approvals, the entire project is deemed discretionary.  However, the Court concluded that the rule “applies only when the discretionary component of the project gives the agency the authority to mitigate environmental impacts.” Here, the design review process allowed the City to change the appearance of the Project, but the general plan and design review standards did not provide a means for the City to mitigate impacts to parking, traffic, safety and soil remediation. Thus, the City did not abuse its discretion in finding that the design review ordinance did not mandate that the City consider disapproving the Project for non-design related matters.

Echoing the holding in Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, the Court found that the City was not, pursuant to general law, required to have a design review ordinance. Where the City chose to impose an additional level of review, “it is for the City to determine the scope that such review will entail.” Thus, the City’s understanding of its own ordinance was afforded great deference as “the [CEQA] Guidelines recognize that the application of CEQA to a local ordinance is dependent upon the scope and interpretation of the local ordinance, rather than vice versa.” The Court found this explanation in line with CEQA Guidelines section 15040, which expressly limits an agency’s authority under CEQA to only powers expressly or impliedly granted to the agency by other laws. 

After finding that the City was not required to mitigate non-design related environmental impacts, the Court found it unnecessary to evaluate the City’s reliance on the CEQA exemption for infill projects. Because the Project was consistent with the general plan and the City addressed Appellants’ argument to the contrary “in great detail,” there was no need for the Court to continue its analysis.

The Court affirmed the trial court’s holding.

Key Point:

A municipality’s design review process does not always require the separate invocation of CEQA.


Note: This case was originally unpublished. January 11, 2019 the court ordered its publication on the request of the California Building Industry Association, California Infill Builders Federation, Treasury Wine Estates Americas LLC, and the California Chapter of the American Planning Association.

Public Interest Standing Not Automatically Precluded by Commercial Interest, Private Attorney General Doctrine Fee Award Upheld

Wednesday, November 7th, 2018

In Citizens for Amending Proposition L. v. City of Pomona, (2018) Cal.App.LEXIS 1014, the Second District Court of Appeal held an attorneys’ fees award, pursuant to Code of Civil Procedure section 1021.5, was appropriate where a residents’ group’s action to enforce a voter-approved proposition prohibiting additional billboards in the City of Pomona (City) had standing and conferred an important public interest of significant benefit, was necessary, and was financially burdensome for the group.

In May 1993, the City entered into an agreement with Regency Outdoor Advertising, Inc. (Regency) to erect and manage billboards along a City highway. In November 1993, City voters passed a ballot initiative, Proposition L, which prohibited the construction of additional billboards and grandfathered in already-existing agreements. In June 2014, the City’s agreement with Regency expired by its terms while the City was negotiating to extend it. In July 2014, the City and Regency entered into an agreement purporting to amend the 1992 agreement, including construction of digital billboards. Citizens for Amending Proposition L and Vernon Price (Citizens) filed suit against the City alleging that the July agreement was passed in violation of Proposition L.

The trial court held that the July agreement was in fact a new agreement enacted in violation of Proposition L. Because the City did not adopt the agreement until after the original agreement had expired, it was a new agreement subject to the rules, regulations, and official policies in effect at the time of its execution, July 2014.

Citizens moved for attorney’s fees pursuant to Code of Civil Procedure section 1021.5, the private attorney general doctrine. They asked for $189,990, representing 389.8 hours of work at a rate of $500 per hour. They also requested that a multiplier of three be employed in the calculation to account for the complexity of the case, their complete victory, and other factors. Thus, the total fee request was for $569,700. At its discretion, the trial court found that Citizens met the statutory criteria for Section 1021.5 and granted the motion. However, the number of hours billed and the billing rate were found to be excessive. Accordingly, the trial court reduced the award to 250.67 hours at a rate of $300 per hour. The trial court further found that there was no basis for enhancing the fees with a multiplier. As such, the trial court awarded $75,200.40 to Citizens. The City timely appealed the award.

On appeal, the Court reviewed the City’s claim that Citizens lacked standing to bring the mandamus action. The City claimed that Citizens lacked a beneficial interest in the litigation, equivalent to the Federal “injury in fact” test. This must be “direct and substantial.” The Court found no evidence that Citizens experienced any actual, imminent, or particularized invasion of a legally protected interest as a result of the City’s adoption of the ordinance.

The City then claimed that the public interest exception to the beneficial interest requirement did not apply to Citizens’ mandamus action. Public interest standing is established where “the object of the mandamus is to procure the enforcement of a public duty.” Reviewing the trial court’s decision for an abuse of discretion, the Court found that Citizens indeed had public interest standing where “the duty is sharp and the public need [for enforcement] is weighty.” Citizens specifically alleged that the City violated its own municipal law, a claim with a “sharp” public interest. Further, the record showed that, absent Citizens’ intervention in the negotiations, billboards might have been constructed without broad public awareness of any potential issue, thus demonstrating a “weighty public need.”

The Court specifically dismissed the City’s claim that Citizens’ personal interest in the suit precluded standing, as it did for the plaintiffs in Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223. First, there was no evidence that Vernon Price or Citizens for Amending Proposition L advanced a commercial interest in bringing the suit. Vernon Price was an individual living within the City and the group was an unincorporated association of City residents; neither situation demonstrated an individualized interest. Even so, following the holding in SJJC Aviation Services, LLC v. City of San Jose (2017) 12 Cal.App.5th 1043, 1058, the Court held that “a personal objective is one factor the court may consider when weighing the propriety of public interest.” The Court warned that to rule otherwise would be impractical as “truly neutral parties are unlikely to bring citizen suits.”

The Court separately held Citizens for Amending Proposition L had organizational standing. Following the holding in San Francisco Apartment Association v. City and County of San Francisco (2016) 3 Cal.App.5th 463, the Court held that the group had demonstrated “(1) its members otherwise would have standing to sue in their own right; (2) the interests it [sought] to protect [were] pertinent to the association’s purpose; and (3) neither the claim asserted nor the relief requested require[d] participation of the association’s individual members.” Vernon Price, a member of the group, had demonstrated his personal standing, the group’s purpose was to enforce Proposition L, as it did here, and compliance with Proposition L did not require the participation of other group members. Both Vernon Price and Citizens for Amending Proposition L had adequate standing.

The Court then turned to the merits of the appeal and established that Section 1021.5 allows for an award of attorneys’ fees at the discretion of the court where an action has resulted in “the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement …are such to make the award appropriate, and (c) such fees should not, in the interest of justice, be paid out of the recovery, if any.”

Considering this, the moving party must establish “(1) he or she is a ‘successful party,’ (2) the action has resulted in the enforcement of an important right affecting the public interest, (3) the action has conferred a significant benefit on the public or a large class of persons, and (4) an attorney fees award is appropriate in light of the necessity and financial burden of private enforcement.”

Reviewing the trial court decision for an abuse of discretion, and noting the broad deference conferred on the trail court, the Court affirmed the award.

The City contended that Citizens did not vindicate an important public interest, as required under 1021.5. The City argued that the trial court failed to analyze the benefit of the case “from a practical perspective” and did not evaluate the “significance of the benefit to the public.” The Court held that Citizens vindicated an important public right in ensuring that Proposition L was properly enforced, a benefit to the entire City. As such, Citizens conferred an important public interest of significant benefit.

Next, the City contended that the necessity and financial burden requirement was not met, that private enforcement was not necessary, and that the financial burden of private enforcement did not warrant subsidizing the successful party. The Court found that there was “ample” evidence in the record that Citizens’ goal of enforcing Proposition L was not self-serving, but benefitted all City residents. Further, there was no evidence in the record demonstrating that either Vernon Price or Citizens for Amending Proposition L would personally benefit from the July agreement being invalidated. Relying on Arnold v. California Exposition and State Fair (2004) 125 Cal.App.4th 498, a financial interest must be “specific, concrete, and significant and based on objective evidence.” Here, the Court found none. Even if one or both Respondents were competitors of Regency, the Court found there was no financial benefit in seeking the enforcement of the Proposition L prohibition.

The Court affirmed the trial court holding.

Key Point:

Public interest standing is not precluded by a petitioner’s commercial interest in a case where a sharp public interest and weighty public need outweigh an individual interest.

An award of attorney’s fees under the private attorney general doctrine is appropriate where a party conferred an important public interest of significant benefit, the action was necessary, and to bring the action was financially burdensome for the group.

CEQA Claims Separate from Municipal Code Claims Subject to More-Specific Public Resources Code Timing

Tuesday, October 23rd, 2018

In Save Lafayette Trees v. City of Lafayette (2018) 28 Cal. App. 5th 622, the First District Court of Appeal held that a letter of agreement for removal of protected trees was the equivalent of a permit under the municipal code and, therefore, challenges to its approval were subject to the filing and service limitations of Government Code section 65009(c)(1)(E) (Section 65009). However, CEQA claims related to the approval were subject to the more specific filing and service limitations in Public Resources Code sections 21167 and 21167.6.

On March 27, 2017, the City of Lafayette (City) approved a letter of agreement for removal of up to 272 trees in the local natural gas pipeline right-of-way by Real Party in Interest PG&E. On June 26, 2017 petitioners Save Lafayette Trees, Michael Dawson, and David Kosters (collectively Save Lafayette) filed a petition challenging the City’s action. The petition was served on the City on the next day.

The petition alleged that the City (1) failed to comply with CEQA; (2) violated the substantive and procedural requirements of the planning and zoning law, the city’s general plan, and the City’s tree ordinances; (3) violated the due process rights of the individual petitioners by failing to provide sufficient notice of the agreement review hearing; and (4) proceeded in excess of its authority and abused its discretion in completing each action.

PG&E filed a demurrer to the petition on the grounds that it was barred by Section 65009, which requires that an action regarding a zoning permit be filed and served within 90 days of the decision. Save Lafayette failed to meet this requirement by serving the City on the 91st day. The trial court sustained the demurrer without leave to amend and dismissed the petition. Save Lafayette timely appealed.

Reviewing de novo, the Appellate Court affirmed the demurrer in part and reversed in part. First, the Court set out that the filing and service limitations in Section 65009 are “to provide certainty for property owners and local governments regarding decisions by local agencies made pursuant to [the] planning and zoning law.” Further, the statute applies to all matters listed in the Section, including permits and variances when the applicable zoning ordinance provides. This interpretation, the Court clarified, “is to be applied broadly to all types of challenges to permits and permit conditions, as long as the challenge rests on a ‘decision’ of a local authority.”

Next, the Court outlined that, under the City’s municipal code, a permit is required for the removal of protected trees. An applicant may seek an exception when the tree must be removed “to protect the health, safety, and general welfare of the community.” The agreement approved by the City is to remove trees thus there is “no meaningful difference between [the agreement and a permit] in this instance.” Therefore, contrary to Save Lafayette’s contentions, the agreement “falls squarely within the scope of [Section 65009].”

Save Lafayette claimed that Section 65009 was only intended to apply to permits and variances related to relieving the state housing crisis and, thus, did not apply. The Court disagreed because courts have applied the statute to challenges in a broad range of local zoning and planning decisions.

The Court also dismissed Save Lafayette’s claim that the City was not the proper reviewing body for the statute. Save Lafayette claimed that the City was not explicitly listed as a legislative body whose actions were subject to Section 65009. Citing relevant precedent, the Court held that it is “the underlying decision being reviewed [that] determines the applicability of Section 65009,” not the body deciding it.

Save Lafayette claimed that the 180-day statute of limitations provided in the City’s Municipal Code applies here. The Court disagreed because “[i]nsofar as Section 65009 applies to the present action and expressly conflicts with the local ordinance, it preempts the local ordinance.”

Save Lafayette also argued that it should be excused from compliance with Section 65009 as the City failed to provide written notice of the approval prior to the meeting, as required by Government Code section 65905 and the due process clause of the Constitution. The Court held that the City complied with the Brown Act and provided adequate notice as Save Lafayette failed to present any facts to support a conclusion that they were entitled to personal service.

Finally, the Court held that the CEQA cause of action was timely filed and served and therefore reversed and remanded as to the CEQA cause of action. Relying on Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, the Court held “when two statutes relate to the same subject, the more specific one will control unless they can be reconciled.” Section 65009 and Public Resources Code sections 21167 and 21167.6 relate to the same subject, the time period for service. In Royalty Carpet, the court held that the shorter statute of limitation and service requirement set forth in Public Resources Code sections 21167(b) and 21167.6(a) do not require automatic dismissal and, therefore, can be harmonized with the 90-day service requirement set forth in Section 65009(c)(1)(E). Here, however, the Court concluded the longer 180-day requirement set forth in Public Resources Code section 21167(a) applied and that requirement could not be reconciled with Section 65009(c)(1)(E)’s shorter 90-day service requirement. As a result, unlike in Royalty Carpet, the two applicable statutory provisions could not be reconciled. Because the applicable statutory provisions could not be reconciled, the more specific Public Resources Code provisions set forth in Public Resources Code sections 21167(b) and 21167.6(a) prevailed.  Therefore, the Court concluded that Save Lafayette’s CEQA claims were timely.

The Court affirmed the trial court ruling in part, sustaining the demurrer as to the second, third, and fourth causes of action, and reversed in part, finding the demurrer improper as the CEQA cause of action.

Key Point:

The more-specific filing and service timing requirements of the Public Resources Code apply to CEQA claims rather than the service and timing requirements in the Government Code.

City Charter Must Explicitly Limit Municipal Power to Approve General Plan Amendment of Single Parcel Initiated with Project Proposal, Los Angeles Auto Mall Conversion Project Valid

Monday, October 1st, 2018

In Westsiders Opposed to Overdevelopment v. City of Los Angeles (2018) 27 Cal.App.5th 1079, the Second District Court of Appeal held that a charter city may approve a general plan amendment for a single project site, even if initially requested by a project applicant, so long as the city’s charter did not “clearly and explicitly” limit or restrict such an action.

In 2013, Real Party in Interest Philena Property Management, LLC (Philena) filed for a land use permit with the City of Los Angeles (City), a charter city, to convert an auto mall into residential, retail, and office space close to a new light rail station and other transit (Project). The Project required preparation of an EIR, a development agreement between Philena and the City, several conditional use permits, and, of chief concern here, an amendment to the City’s general plan to change the project site land use designation. The City reviewed the proposal, granted the project requirements, and approved the Project in September 2016. Westsiders Opposed to Overdevelopment (Westsiders), an association of neighborhood residents, filed suit.

Westsiders alleged that the City exceeded its authority in the Los Angeles City Charter section 555 subdivisions (a) and (b) (Sections 555(a) and 555(b)) by approving a general plan amendment for a single parcel and allowing Philena to effectively initiate the amendment. The trial court held that the City did not exceed its authority or abuse its discretion in amending the general plan. Further, the trial court denied Westsiders’ request for judicial notice of early drafts and proposed amendments to Section 555 where interpreting the statute did not require review of its legislative history. Westsiders timely appealed.

The Appellate Court first addressed whether it is proper to seek a writ of mandate or administrative mandamus for relief in this situation. Westsiders contended that Code of Civil Procedure section 1094.5 applied and the award of an administrative mandamus is appropriate here “to review the final adjudicative action of an administrative body.” The Court found that this claim misplaced as a general plan amendment is a legislative action and Government Code section 65301.5 explicitly says that a legislative action is to be reviewed for a writ of mandate, pursuant to Code of Civil Procedure section 1085.

The Court then laid out that such legislative acts are presumed valid per San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498. Further, the Court must be “[m]indful of the rule that [it] cannot construe a charter to restrict municipal power without a clear mandate in the charter itself.” Such a restraint requires “clear and explicit limitations or restrictions” in the charter itself. This standard is in addition to principles of statutory construction which require the Court to, in the first instance, rely on the plain language of the statute. If clear, the Court need not go any further in its inquiry. Ultimately, the City’s interpretation of its own charter is “entitled to great weight and respect unless shown to be clearly erroneous and must be upheld if it has a reasonable basis.”

With this in mind, the Court turned to Westsiders’ arguments that the City exceeded its authority in approving the general plan amendment. Section 555(a) permits general plan amendments for, as pertinent here, “geographic areas, provided that the part or area involved has significant social, economic, or physical identity.” Westsiders claimed that a single parcel of land could not qualify as a geographic area. Relying on the dictionary definitions for each word, the Court determined that “geographic area” means any physical region. The parcel was indeed a physical region that satisfied this definition despite its singularity and small size. Second, Westsiders claimed that the parcel did not have “significant social, economic, or physical identity” as it was a car lot in a busy area with no distinctive features. The Court held that the City had no “clear and explicit” categorical limits on what it could and could not determine to be significant. Consequentially, the Court held in favor of not restricting municipal power.

Westsiders alleged that the City was required to make explicit findings that the project site qualified as a geographic area of significant economic or physical identity. The Court, after pointing out that Westsiders did not cite any authority for this claim, held that the City was not required to make explicit findings for a legislative act per San Francisco Tomorrow. The City did find that the project site had a significant physical and economic identity near a transit-oriented area and was one of the largest underutilized parcels in the area. These findings, though unnecessary, supported the City’s decision to issue a general plan amendment for the site.

The Court then addressed Westsiders’ argument that the City violated Section 555(b) by allowing Philena to initiate a general plan amendment with a project proposal. The Section provides “[t]he Council, the City Planning Commission, or the Director of the Planning Commission may propose amendments to the General Plan.” The Court found that, while the Charter outlined certain permissions for initiating an amendment, it did not provide any “clear and explicit limitation” to do so. The Court held that, absent such a limitation, the City did not violate Section 555(b) in responding to Philena’s request for the amendment.

Finally, the Court addressed Westsiders’ contention that the City’s action constituted impermissible spot zoning where there was no “substantial public need.” Since Westsiders did not raise this claim at the trial level, they waived their right to appeal the issue.

The Court affirmed the trial court’s denial of the petition.

Key Point:

Claims against a charter city’s legislative action must be supported by “clear and explicit” limitations in the plain language of the city’s charter.

Governor Brown Signs Pro-Density, Pro-Housing Bills to Close Legislative Session

Sunday, September 30th, 2018

In the last evening of the last legislative session of his governorship, California Governor Jerry Brown signed two bills directed at increasing housing availability in the State. He signed each September 30, 2018 with no instructive message.

Senate Bill 828, proposed by San Francisco Democratic Senator Scott Wiener, requires local governments to report more data to the State in order to determine local housing needs pursuant to the Regional Housing Need Allocation (RHNA) law, including percentages of people spending more than 30 percent of their income on housing. The bill sets a minimum target vacancy rate of 5 percent as “healthy.” Areas that fail to meet this goal will need to zone for more housing.

Localities will also be required to zone for housing based on both projected needs and current shortages. Previously, the law only required local governments to zone for projected needs and, therefore, allowed shortages already prevalent in the community to be overlooked. As originally proposed, the bill required localities to zone for 200 percent of projected housing needs in order to boost housing production statewide. However, this figure was reduced to 100 percent in committee review and floor debates.

Developers around the State could see more dense residential zoning in cities that previously had few development opportunities. Opponents of the bill argued that the bill transfers too much planning power away from local governments and into the hands of the State.

Assembly Bill 1771, proposed by Santa Monica Democratic Assemblymember Richard Bloom, amends RHNA requirements by focusing more on job-housing balance metrics. RHNA previously required local governments to plan for an increase of the overall housing supply in a way that includes a mix of housing types and affordability across the region “in an equitable manner.” AB 1771 added that this must be done to “avoid displacement,” increase access of “high opportunity” jobs for low-income residents, and “affirmatively further fair housing.”

Proponents of the bill see it as forcing affluent municipalities to build their fair share of affordable housing. Specifically, the bill represents an effort to force wealthy cities like Beverly Hills and those surrounding San Francisco to plan for additional affordable housing so that existing low-income communities are not solely saddled with the burden of producing more housing.

Both bills support the Legislature’s recent push to use housing supply laws to make it harder for cities to say no to projects that would help alleviate the housing crisis in California.

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Other housing bills that the governor signed include the following

SB 1227 – Provides density bonuses for developments to be occupied by college students

AB 829 — Prohibits any letter of acknowledge requirement for state-assisted projects

AB 2238—Requires LAFCOs to consider regional housing need, fire hazard and other emergencies in project proposals

AB 2372—Allows city or county to award floor area ratio bonus by ordinance, upon developer request

AB 2753 –Requires city or county provide project applicant determination of density and parking bonus

AB 2797— Provides density, parking, and other bonuses be permitted in a manner consistent with the Coastal Act

AB 2923 –BART required to adopt transit oriented development (TOD) standards for each station