California Land Use Blog

By Matthew Hinks

Statues of limitations issues frequently loom large in litigation under the California Environmental Quality Act ("CEQA") and can confound litigants and their counsel. Depending on the challenge being made and the context in which it is made, claims brought under CEQA may be subject to a range of limitations periods -- from 30 to 180 days. Moreover, the date on which a CEQA claim accrues is not always clear. For example, an agency making a CEQA decision may file a Notice of Determination, which generally triggers the shorter CEQA limitations periods, but parties with an interest in that same decision may not always get notice of the filing. For these reasons, among others, calculating the correct statute of limitations period applicable to a CEQA claim can be risky business. A new opinion from the California court of appeal, Alliance for the Protection of the Auburn Community Environment v. County of Placer, raises the stakes even higher and holds that a party may not obtain relief from a late filing by reason of mistake, inadvertence, surprise, or excusable neglect.

By Scott Castro

On March 19, 2013, U.S. Supreme Court declined to hear an appeal of the ruling in Karuk Tribe of California v. U.S. Forest Service, a Ninth Circuit en banc decision broadly construing the scope of the Endangered Species Act (ESA) consultation requirements.

By denying the petition for certiorari brought by recreational miners and other interests, the Supreme Court lets stand the Ninth Circuit's ruling, which broadens the scope of when consultation is required under Section 7 of the ESA to include instances where an agency makes a decision not to regulate an activity.

For the mining industry and other operations on U.S. Forest Service lands, the Supreme Court's action makes clear that low-impact mining operations that could previously operate pursuant to notices to the Forest Service now are confronted with the likely need to undergo lengthy and expensive consultation under the ESA. For the regulated community in general, the implications are broader, because reach of the ESA's consultation requirement is effectively expanded to apply to instances of agency "inaction."

By Scott Castro

In a decision published on February 8, 2013, the Second Appellate District ruled in favor of the JMBM client Troesh Materials, LLC in a challenge brought pursuant to the California Environmental Quality Act ("CEQA") against the County of Santa Barbara's approval of Troesh's Diamond Rock Sand and Gravel Mine and Processing Facility (the "Diamond Rock Mine"). The decision, Save Cuyama Valley v. County of Santa Barbara (Case No. B233318), ruled on several important grounds under CEQA, and is further notable because it upholds the County's approval of an in-stream mining project within the bed of the Cuyama River. Troesh Materials, LLC was represented before the trial court and court of appeal by JMBM partner Scott N. Castro. The underlying County approval effort for Troesh's Diamond Rock Mine was led by JMBM partner Kerry Shapiro, leader of the Firm's land use group in San Francisco and co-chair of the Firm's Building Materials Group.

by Kerry Shapiro

As reported earlier this week in this blog, the recent Ninth Circuit Court of Appeals decision in Center for Biological Diversity v. Salazar allowed a uranium mine on federal lands in Arizona to re-open after being idled for seventeen years absent any new federal approval or supplemental environmental review. This decision is notable on its own, but carries added significance in California, where it now highlights a potential conflict between federal and state law regarding idle mines and the resumption of mining operations at such mines.

By Scott Castro

On February 4, 2013, a Ninth Circuit Court of Appeals panel issued a ruling in Center for Biological Diversity v. Salazar holding that a mine idled for seventeen years could restart operations without obtaining a new approval from the Bureau of Land Management (BLM) or conducting additional environmental review. The Ninth Circuit's ruling is notable because it clarifies that:

(1) The need for new ancillary permits for an already-approved federal project -- even after being idle for seventeen years -- does not create a "major Federal action" requiring supplemental environmental analysis under the National Environmental Policy Act (NEPA);

(2) A mine may be idle for extended periods of time if the mine is maintained in accordance with an interim management plan set forth in a plan of operations; and

(3) There is no provision under the BLM's surface management regulations (43 CFR subpart 3809) requiring a new plan of operations to restart mining operations following a period of idleness.

On February 5, 2013, Jeffer Mangels Butler & Mitchell (JMBM) filed a lawsuit in Los Angeles Superior Court (Case # BS141623) against the City of Los Angeles on behalf of Tower Lane Properties LLP whose beneficial owner is Saudi prince Abdul-Aziz ibn Abdul-Aziz al Saud, the current Deputy Foreign Minister of Saudi Arabia. The lawsuit seeks a writ of mandate to compel the city to issue the building permits and damages in the amount of $25 million caused by the city's allegedly illegal and discriminatory conduct.

By Matthew Hinks

Evidence of just compensation to be awarded in an eminent domain action is all but invariably put on through expert opinion. In a bit of good news for property owners facing eminent domain proceedings, the California Court of Appeal has issued a new opinion offering a relaxed view of the admissibility of expert opinions relating to comparable sales.

By Matthew Hinks

For those of us involved or merely interested in the seemingly endless spate of sign-related litigation, the Court of Appeal's opinion in Summit Media LLC v. City of Los Angeles has been long anticipated. The Summit case was unlike many of the sign cases winding their way through California's state and federal courts, which have largely involved constitutional challenges to various sign-related laws and actions or enforcement actions by local municipalities against non-complying signs. Summit involved litigation between sign companies -- including two of the largest sign companies in the country. The court of appeal's opinion in the Summit case, which holds that a city may not enter into a settlement agreement allowing for digital billboards when they are expressly prohibited by ordinance, is a stunning defeat for those two particular companies, but surely will not be the last we hear of digital sign conversions in the City of Los Angeles.

By Matthew Hinks

In a question of first impression, the California Court of Appeal has held in, People ex rel. Department of Transportation v. Dry Canyon Enters., LLC, that "a business owner is entitled to a jury trial on the amount of goodwill lost by a taking only if he or she first establishes, as a threshold matter, that the business had goodwill to lose." The court's analysis seems correct; nevertheless, the result is a troubling one for property owners.

Background Facts

Dry Canyon is a wine maker. As part of its business plan, Dry Canyon planned to develop a flagship wine to be made from grapes grown on property it owns in Paso Robles. In 2009, Caltrans initiated eminent domain proceedings to acquire a strip of Dry Canyon's Paso Robles property on which was located 21 percent of the vines Dry Canyon was growing for its new flagship wine. By the time the proceedings were initiated, Dry Canyon had blended and sold a few vintages but had yet to turn a profit on the new flagship brand. The parties agreed to a valuation of $203,500 for the real property, which was paid to Dry Canyon, leaving one remaining issue: the amount of lost goodwill.

Dry Canyon's expert testified that Dry Canyon lost $240,000 in goodwill as a result of the taking, which he calculated using two different methodologies. First, the expert utilized a "cost-to-create" methodology in which he added all expenses incurred in cultivating the new wine and divided by four (being that Caltrans took one-fourth of the vines). The second methodology was defined as a "premium pricing" approach in which the expert calculated that the new vintage would fetch a premium of $10.62 more per bottle than comparable wines, then multiplied that figure by the total number of bottles that would not be sold as a result of the taking. Both methodologies yielded a $240,000 lost goodwill figure.

Unfortunately for Dry Canyon, the trial court disagreed that Dry Canyon had any goodwill at all and granted a motion for judgment. The court of appeal affirmed.

By Matthew Hinks

The billboard wars rage on. In the latest battle, the court in West Washington Properties, LLC v. California Department of Transportation narrowly interpreted a provision of the Outdoor Advertising Act ("OAA"), which provides a rebuttable presumption of legality to advertising displays erected for more than five years without Caltrans enforcement, rejected equitable defenses and dismissed at the pleading stage plaintiff's inverse condemnation claims. The opinion should be a wake up call for companies engaged in or considering transactions involving the transfer of sign rights.

By Matthew Hinks

A new opinion from the Ninth Circuit out of the State of Washington -- Laurel Park Community, LLC v. City of Tumwater -- offers an interesting application of the Supreme Court's regulatory taking jurisprudence.

By Matthew Hinks

The Ninth Circuit has issued a new "chapter in 'the story of billboards.'" Billboard companies and advertisers should take note of the court's opinion. Although the opinion refused to extend full First Amendment protection to billboards and advertising related to underlying expressive works, the court -- recognizing its central role in defining the contours of Constitutional liberties -- rejected the trial court's reasoning that a municipality should be afforded deference to define the divide between commercial and noncommercial speech.

By Matthew Hinks

In an opinion containing echoes of the United States Supreme Court's controversial and much maligned decision in Kelo v. City of New London, 545 U.S. 469 (2005), the California Court of Appeal has limited the reach of California Code of Civil Procedure § 1240.350(a). That section provides that a condemning agency that takes property resulting in the property being "cut off from . . . access to a public road", may also take property belonging to another party to provide alternative access to the original property. The Court of Appeal in Council of San Benito County Governments v. Hollister Inn, Inc., limited Section 1240.350(a) to situations where the taking leaves the original property completely landlocked.

By Jon Welner

On July 20, Lawrence J. Goldzband was appointed Executive Director of the San Francisco Bay Conservation and Development Commission (BCDC).

We recently sat down with Mr. Goldzband to discuss his perspective on the opportunities and challenges that lie ahead.

By Matthew Hinks

The Takings Clause of the Fifth Amendment to the United States Constitution provides that "private property [shall not] be taken for public use, without just compensation." The Constitution does not prohibit the taking of private property by the government -- so long as the taking is done for a "public purpose", -- but instead places a condition on the exercise of that power: namely, the payment of "just compensation". As the Supreme Court has recognized, "[t]he paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property." Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005). In other words, situations where the government obtains title to or physically occupies private property present relatively uncomplicated issues as to whether a taking has occurred. More nuanced issues arise, however, where governmental actions cause less than permanent occupations. This principle was on display in a pair of recent opinions from the United States Court of Federal Claims, a court established by Congress to adjudicate monetary claims against the federal government.