By Matthew Hinks
Sign litigation, especially litigation over the constitutionality of ordinances and regulations affecting signage, often involves familiar, but competing, concepts. Although the courts recognize that outdoor advertising signs are subject to certain protections as "commercial speech" under the First Amendment, municipalities and agencies nevertheless hold significant authority to regulate signage. So long as the regulations on signage are content neutral and further the recognized governmental interests in protecting traffic safety and eliminating visual blight, the regulations are generally upheld. However, where an ordinance or regulatory scheme affords local officials too much -- or in the courts' parlance, "unbridled" -- discretion over whether to approve, deny or condition the approval of a sign, the courts are willing to step in and strike down the offending regulation. Although not a sign case, a new opinion out of the Ninth Circuit, Kaahumanu v. State of Hawaii, 2012 DJAR 7472 (9th Cir., June 6, 2012), offers a wonderful illustration of these competing principles.
Continue reading "Attention Sign Companies and Outdoor Advertisers: New Ninth Circuit Decision Partially Invalidates on First Amendment Grounds Permit Scheme Regulating Commercial Weddings" »
by Matthew Hinks
The California Legislature and the courts have recognized that challenges to the California Environmental Quality Act (CEQA), if allowed to drag on, would impede the decisions of public agencies regarding land use. For this reason, CEQA imposes very short limitations periods and requires CEQA cases be given priority in both the trial courts and the courts of appeal.
But in a potentially troubling new case, the California Court of Appeal explicitly blessed the type of unreasonable litigation delay the Legislature protected against in enacting CEQA.
Continue reading "Development Rights and CEQA Challenges: Court of Appeal Upholds 3-Year Tolling Agreement in CEQA Lawsuit - Cause of action governed by a 30-day limitations period" »
By Matthew Hinks
May a property owner who sells property to a non-governmental entity as part of a government redevelopment project under the threat of eminent domain transfer the tax base of the original property to replacement property? Not on the record presented by the plaintiff in Duea v. County of San Diego, 204 Cal. App. 4th 691 (2012).
Continue reading "Litigant's Failure to Establish Basis for Property Tax Base Transfer Highlights the Need to Exercise Special Care in Administrative Proceedings to Ensure that Judicial Remedies are Preserved" »
by Scott Castro
This article was first published by Law360. © 2012 Portfolio Media, Inc.
In mid-March, the U.S. District Court for the Eastern District of California issued a nationwide injunction that significantly affects mining exploration activities within lands managed by the U.S. Forest Service. Until this ruling, the Forest Service has relied on a June 4, 2003 agency regulation (located at 36 C.F.R. Part 215) (the "215 Regulation") that exempted from public notice, comment and administrative appeals activities deemed to be categorically excluded ("categorical exclusions" or "CEs") from the National Environmental Policy Act ("NEPA").
In a March 19, 2012 summary judgment ruling in Sequoia ForestKeeper v. Tidwell, however, U.S. District Court Judge Lawrence J. O'Neill invalidated the 215 Regulation's exemption for categorical exclusions.
Continue reading "California U.S. District Court's Nationwide Injunction Affects Mining, Oil and Gas, and Timber Activities on National Forests" »
By Matthew Hinks
A trial court's order granting the motion of the City of Lake Forest for a preliminary injunction against the operations of a medical marijuana dispensary has gone -- well -- "up in smoke". Orange County Superior Court Judge Chafee had ruled that the city's zoning ordinances, which did not recognize dispensaries as a permitted use and expressly prohibited unpermitted uses, established a complete ban against medical marijuana dispensaries justifying preliminary injunctive relief. The Court of Appeal in City of Lake Forest v. Evergreen Holisitc Collective, 203 Cal. App. 4th 1413 (2012), disagreed and reversed that decision.
Continue reading "State Law Permitting Establishment of Medical Marijuana Dispensaries Trumps Local Zoning Ordinances; Are There Implications for Sign and Supergraphics Litigation?" »
by Scott Castro
On March 19, 2012, two new and 48 reissued Nationwide Permits (NWPs) for certain dredge and fill activities requiring authorization under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act took effect. Nationwide Permits are issued by the Corps under Section 404(e) to provide a streamlined authorization process for dredge and fill activities having minimal adverse effects on the aquatic environment. Every five years, the Army Corps of Engineers issues revised and/or new Nationwide Permits. The last permits were issued in 2007, and expired on March 18, 2012. The two new NWPs affect renewable energy facilities, and projects qualifying for these Nationwide Permits should benefit from significant reductions in the time, effort and money necessary to obtain a Section 404 permit.
Continue reading "Renewable Energy Update: Two New Nationwide Permits for Dredge and Fill Activities Under Section 404 of the Clean Water Act Now Effective for Renewable Energy Projects" »
by Scott Castro
On March 19, 2012, two new and 48 reissued Nationwide Permits (NWPs) for certain dredge and fill activities requiring authorization under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act took effect. Nationwide Permits are issued by the Corps under Section 404(e) to provide a streamlined authorization process for dredge and fill activities having minimal adverse effects on the aquatic environment. Every five years, the Army Corps of Engineers issues revised and/or new Nationwide Permits. The last permits were issued in 2007, and expired on March 18, 2012. The current NWPs will expire on March 18, 2017.
Two NWPs are specific to the mining industry: (1) NWP 21, specific to surface coal mining activities; and (2) NWP 44, applying to "mining activities" in general.
Continue reading "Mining Law Update: Army Corps Revised Nationwide Permits Affecting Mining Operations Now Effective" »
by Scott Castro
While there has been strong interest among the tribes to develop renewable energy projects on their lands, antiquated leasing rules have long served as a bar to such efforts. However, on November 28, 2011, the Department of Interior (DOI) announced a proposed rule revising the federal surface leasing regulations for American Indian lands that could dramatically reduce the timeline for solar and wind lease approvals on Indian land. If the proposed rule is adopted, it may help to stimulate investment in solar and wind projects on Indian lands by fast-tracking and streamlining agency review and approval of proposed solar and wind leases. Solar and wind companies would be well-served to understand the full scope of the proposed rule, and to evaluate -- or re-evaluate -- potential leasing opportunities on tribal lands, particularly given that DOI, acting as trustee, is charged with managing approximately 56 million surface acres of tribal lands.
Continue reading "Renewable Energy Update: Proposed Regulatory Changes For Tribal Leases Provide Promise for Solar and Wind Projects" »
By Matthew Hinks
In an earlier article on the California Land Use Blog, I wrote about the recent decision in Avenida San Juan Partnership v. City of San Clemente, 201 Cal.App.4th 1256 (2011), in which the court of appeal affirmed in large part a verdict in favor of a developer granting a writ of mandate and awarding damages as a result of a finding of a partial regulatory taking given what the court viewed as the "spot-zoning" of plaintiff's property. I noted there that the trial court conducted its proceedings in two phases: the writ of mandate phase and the damages trial on the inverse condemnation claim. I also noted that the trial court issued the writ of mandate while the damages claim remained pending and before a final judgment was entered.
Though the Avenida San Juan Partnership court did not discuss this aspect of the case, I mentioned that trial courts are often reluctant to issue writs of mandate before a final judgment is entered. This can have a dramatic impact on a developer's case against a local agency or city.
Continue reading "Following up on Avenida San Juan Partnership v. City of San Clemente: Judges' reluctance to issue a writ prior to final judgment demonstrates need for clarification of Palma footnote" »
By Matthew Hinks
In most instances, causes of action for inverse condemnation and regulatory takings in California are governed by the 5-year statute of limitations of Civil Procedure Code §§ 318 and 319. Preemption claims are governed by the 3-year statute of limitations of Civil Procedure Code § 338(a). Section 1983 claims in California state courts are governed by the 2-year personal injury statute of limitations of Code of Civil Procedure § 335.1. However, according to the court in Aiuto v. City and County of San Francisco, 201 Cal. App. 4th 1347 (2011), where such claims are brought in connection with a facial challenge to a local ordinance or administrative action enacted or taken pursuant to the Subdivision Map Act, the 90-day statute of limitations of Government Code § 66499.37 applies.
Continue reading "Heads Up Property Owners and Developers! Local challenges implicating Subdivision Map Act may impose 90-day statute of limitations - Aiuto v. City and County of San Francisco " »
by Matthew Hinks
Court judgments finding a regulatory taking are relatively rare. So too are decisions upholding the oft-heard complaint of "spot zoning". In the recent case of Avenida San Juan Partnership v. City of San Clemente, 201 Cal.App.4th 1256 (2011), the court (and the plaintiff) hit the daily double.
Continue reading "Spot-Zoning and Regulatory Takings: Developer Succeeds in California Court of Appeal - Avenida San Juan Partnership v. City of San Clemente " »
by Jon Welner
California's rural landscapes are some of the most productive farmlands in the world. However, some of the qualities that make these lands suitable for farming--sunshine and wide open spaces--also make them attractive for another kind of "farming": solar and wind farms. In recent years, the conflict between farming and renewable energy production has grown more pronounced in California. Central to this conflict is the California Land Conservation Act of 1965, generally known as the Williamson Act (Gov't Code §§ 51200-51297.4).
Continue reading "The Williamson Act: A Growing Obstacle for Solar and Wind Development In California" »
In an attempt to appease a well-heeled group of neighbors in Benedict Canyon who want to stop one particular project, the City of Los Angeles has adopted a new interpretation of its municipal code which will result in more than $1 billion worth of construction being delayed into 2013. This equates to the loss of several thousand jobs this year.
For the particulars, read my op-ed column from this week's Los Angeles Business Journal, reprinted with permission below.
Continue reading "City of LA Adopts Job Killer Policy" »
Ben Reznik and Sheri Bonstelle
In a blow to the more than 400 redevelopment agencies in California, the California Supreme Court issued an opinion today upholding the constitutionality of AB1X26, the Dissolution Bill and finding AB1X27, the Pay for Continuation Bill, unconstitutional in the California Redevelopment Agencies v. Matosantos case.
Continue reading "California Supreme Court Decision Eradicates Redevelopment Agencies" »
The Fourth District of the California Court of Appeal recently ruled that the California State University system could not use budgetary uncertainty as a basis for determining the feasibility of mitigation for off-campus impacts. In City of San Diego v. Board of Trustees of the California State University, 2011 DJDAR 17803, filed on December 13, the court upheld a broad-based challenge to the EIR for the San Diego State University Master Plan.
Among other things, the EIR claimed that the University could not feasibly mitigate project-related traffic impacts that would occur off-campus. Consistent with mitigation measures in the EIR, the resolution approving the project and certifying the EIR required the University to request from the State legislature the necessary funding for the University's fair share of off-campus traffic- and transit-related improvements. The resolution also stated that because the University ultimately relied on funding from the State legislature, the University could not guarantee the allocation of sufficient funds or the timing of that allocation, nor could the University guarantee that the local agencies would fund the measures for which those agencies were responsible. Nevertheless, the resolution directed the Chancellor of the University to proceed with the project even if the legislature allocated insufficient funds for mitigation, finding that due to the various funding uncertainties, the off-campus traffic impacts would remain significant and unavoidable, but "are necessarily outweighed by the Statement of Overriding Considerations adopted by [the University]."
Continue reading "CEQA: State Agencies and Extra-Jurisdictional Impacts " »