In Real v. City of Long Beach, (9th Cir. 2017) 852 F.3d 929, the Ninth Circuit Court of Appeals ruled that the owner of a California tattoo shop, Mr. James Real (“Real”), may rightfully bring an action pursuant to 42 U.S.C. § 1983 alleging that the City of Long Beach’s (“City”) zoning restrictions violate the First Amendment by unreasonably restricting Real’s ability to open and operate a tattoo shop in the City.
In San Jose Unified School District v. Santa Clara County Office of Education, (6th Dist. 2017) 7 Cal.App.5th 967, the California Court of Appeal for the Sixth District (San Jose) held that county boards of education lack the statutory authority under CA Government Code section 53094 to issue zoning exemptions for charter schools.
NEW CEQA CASE: “Flexible” Traffic Standards Under General Plan Do Not Establish Level Of Significance Criteria For Purposes of Environmental Analysis.
In East Sacramento Partnership for a Livable City v. City of Sacramento, (2016) 5 Cal.App.5th 281, petitioners challenged the City of East Sacramento’s certification of an EIR for a 336–unit residential development with a community recreation center and three parks on a 48.75–acre site. The Court of Appeal held that: the EIR adequately disclosed development agreement; the project description was not defective; the EIR did not engage in improper piecemealing; BUT, the EIR provided an inadequate explanation for its conclusion that traffic impacts were not significant.
NEW CEQA CASE: Court Upholds Environmental Review For New Golden State Warriors Arena Complex In S.F.
In Mission Bay Alliance v. Office of Community Investment and Infrastructure, (2016) 6 Cal.App.5th 160, the court upheld the environmental review conducted for the new basketball arena for the Golden State Warriors (and related development), in what is known as the Mission Bay South Redevelopment Plan Area in San Francisco. (See http://www.chasecenter.com/.)
Committee for Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency, (2016) 6 Cal.App.5th 1237, involved a CEQA challenge to the San Francisco MUNI’s approval of a project to construct a new streetcar loop in the southeastern part of the City. MUNI determined that the loop project was part of a larger light rail extension project to provide service to that part of the City. MUNI determined that no new environmental review was required because the earlier project was approved in 1998 in conjunction with a full environmental impact report, and that this project did not involve any new information, project changes or additional impacts that were not previously addressed (pursuant to Public Resources Code section 21166). Following the Friends of the College of San Mateo Gardens case (discussed above), the court applied the deferential substantial evidence standard and affirmed MUNI’s decision.
©2017 Miles J. Dolinger
In Friends of the College of San Mateo Gardens v. San Mateo Community College District, (2016) 1 Cal.5th 937, the California Supreme Court resolved some issues about using the environmental review that was conducted for a previous project for a new or significantly changed project. Essentially, the Court held that an an approving agency can rely on an old EIR as the environmental review for a new project as long as the old EIR retains some informational value to the analysis of the new project.
Case Update: Appellate Court Holds That Affordable Housing “In-Lieu” Fees Are Not Exactions And Thus Not Subject To The Reasonable Relationship Test (Following California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435).
In 616 Croft Ave., LLC v. City of West Hollywood, (2016) 3 Cal.App.5th 621, the court of appeal held that the City’s in-lieu affordable housing fee was not subject to the reasonable relationship test under the Nollan/Dolan line of cases. The subject project, an 11-unit condominium development on two combined lots, was approved in 2005, but because of the economic downturn the developer did not request building permits until 2011. During that time, the City’s in-lieu housing fee under its 2011 fee schedule had increased to $540,000.00. The developer paid under protest, and then sued the City for a refund in 2012, arguing that the fee was an illegal “exaction”.
Case Update: Appellate Court Holds That Coastal Act Protections Supersede State Affordable Housing and Density Bonus Rules.
In Kalnel Gardens, LLC v. City of Los Angeles, (2016) 3 Cal.App.5th 927, the court of appeal held that affordable housing requirements set forth in the Density Bonus Act (Gov. Code § 65915 et seq.) and the Mello Act (Gov. Code § 65590 et seq.) were superseded by development restrictions set forth in the California Coastal Act (Pub. Resources Code § 30001 et seq.). The subject project included five new duplexes and five new single family homes in an old neighborhood in Venice comprised mostly of single-story 1920s-era bungalows. The project also included density bonus concessions under the City’s density bonus ordinance, including higher rooflines and shorter setbacks. Plaintiffs argued that the project violated the Coastal Act because its height, density, setbacks and other visual and physical characteristics were out of character of the existing neighborhood.
ADUs: California Legislature Passes Easier, Statewide Permitting Requirements and Restrictions For Granny Units.
The California Legislature recently passed new rules making it easier, faster, and presumably less expensive, for people to get permits for new “granny units” otherwise referred to as “accessory dwelling units” (“ADUs”). Senate Bill 1069, which was signed by Governor Brown on September 27, 2016 and takes effect on January 1, 2017, amends Government Code section 65852.2 to require local agencies statewide to amend their zoning ordinances to implement several uniform development requirements and restrictions on ADUs – both substantive and procedural.
The new substantive rules include the following:
- ADUs shall not be required to provide fire sprinklers if they are not required for the primary residence;
- Off-street parking requirements (not more than 1 per ADU or bedroom), may be provided as tandem parking on a driveway;
- No off-street parking requirements may be imposed on ADUs that meet any of the following criteria:
- The ADU is located within one-half mile of public transit.
- The ADU is located within an architecturally and historically significant historic district.
- The ADU is part of the existing primary residence or an existing accessory structure.
- When the local jurisdiction requires on-street parking permits but does not offer them to the occupant of an ADU.
- When there is a car share vehicle located within one block of the ADU.
- In addition, a local agency may reduce or eliminate parking requirements for any ADU located within its jurisdiction;
- ADUs shall not be considered new residential uses for the purposes of calculating local agency connection fees or capacity charges for utilities, including water and sewer service;
- For certain types of ADUs, a local agency shall not require the applicant to install a new or separate utility connection directly between the ADU and the utility or impose a related connection fee or capacity charge;
- The floor area of an attached ADU shall not exceed 50 percent of the existing living area of the existing structure (increased from 30 percent). (Note: Unchanged are the existing restrictions that for attached ADUs the maximum increase in floor area is 1,200 square feet, and that the maximum total floorspace for a detached ADU is 1,200 square feet);
- A local agency may require an applicant to be an owner-occupant and may require that the property not be used for rentals for terms shorter than 30 days.
Railroad Trestle/Historical Resource. In Friends of the Willow Glen Trestle v. City of San Jose, (6th Dist. 2016) 2 Cal.App.5th 457, petitioners challenged the City of San Jose’s decision to not to prepare a full environmental impact report (EIR) for a project to replace an old wooden trestle with a new steel bridge. The trestle is a wooden railroad bridge that was built in 1922 as part of a “spur line” to provide “rail freight access” to “canning districts” near downtown San Jose. The trial court struck down the City’s approval of the project, holding that petitioners had demonstrated that there was a “fair argument” that the project would have significant environmental impacts (thereby requiring an EIR), because there was a fair argument that the bridge was a historical resource. However, the appellate court reversed, holding that the more deferential “substantial evidence” standard of judicial review applied to the City’s determination that the bridge was not a historical resource.