Articles Posted in Land Use Litigation

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Here’s the continuing message from the courts to public agencies demanding money or land from developers: There must be a strong connection between your exaction and the impacts of a project or else the exaction violates the Constitution. Established more than two decades ago by the United States Supreme Court, the principles of “nexus” and “rough proportionality” can no longer be considered “new.” Yet, public agencies continue to explore the limits of the courts’ tolerance for “too much” in the way of exactions. In 2014, two California decisions, one state and one federal, told public agencies that they had gone too far.

The federal case (Levin v. City and County of San Francisco) addressed San Francisco’s rent control ordinance. Under the ordinance, if a landlord wants to remove a rent-controlled unit from the rental market, the landlord must pay the displaced tenant the lump sum equivalent of twenty-four months of the difference between the tenant’s controlled rent and the prevailing market rate rent for a similar unit. Additionally, that amount is increased based upon how long the tenant had resided in the unit, with many tenants owed well over $100,000 under the ordinance.

The federal district court found that a landlord’s decision to remove a unit from the rental market did not create the disparity between the controlled rental rate and the market rental rate. First, market rates are the product of economic factors that have nothing to do with the landlord. Second, the disparity between controlled rates and market rates exists only because the City chose to impose rent control. As a result, there was no valid connection between the rental disparity and the landlord’s removal of the unit from the rental market. Therefore, the court found that the ordinance was a taking without just compensation under the Fifth Amendment.

Similarly, in Bowman v. California Coastal Commission, a California court of appeal addressed a San Luis Obispo County requirement for dedication of a shoreline easement as a condition to the County’s approving the renovation of a house and barn on the same 400-acre site, but a mile from that shoreline. Continue reading →

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Welcome to “Lay of the Land.” The contributors to this blog come principally from the ranks of the Land Use and Natural Resources Practice Group of Cox, Castle & Nicholson LLP. We hope to share with you the unique perspectives of a deep, experienced, and skilled group of land use practitioners. We are honored that Cox Castle & Nicholson was recently named the nation’s 2015 “Law Firm of the Year” for Land Use & Zoning by U.S. News & World Report and Best Lawyers.

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You are entitling a large project to be built in phases which reflect market conditions, lending constraints, absorption rates, and your appetite for risk. The final phases of your project may not be built for ten or more years, when planning and marketing considerations may have changed. Your EIR cannot possibly evaluate every last detail of the overall project, but you want to get started with the initial phases NOW. So, you hear your CEQA consultants, your lawyers, and the agency’s staff anguishing over whether your EIR will be a “program” EIR or a “project” EIR. You’re hearing that what you call the EIR may be more important than what it says and that a wrong decision on the label may drop you into the black hole of CEQA litigation. Really? Can this be true? Continue reading →