Land Use Matters: December 2021

By Andrea S. Warren, Kathleen A. Hill : Alston and Bird : alston – excerpt
(Includes a downloadable pdf)

Los Angeles Department of City PlanningNew City Planning Application Fees Take Effect on December 27, 2021

California Environmental Quality Act & Land Use Cases:…

Farmland Protection Alliance v. County of Yolo (3rd App. Dist., November 2021)

Save Berkeley’s Neighborhoods v. Regents of University of California (1st App. Dist., October 2021)

McCann v. City of San Diego (4th App. Dist., October 2021)

Protect Tustin Ranch v. City of Tustin (4th App. Dist., September 2021)

California Renters Legal Advocacy & Education Fund v. City of San Mateo (1st App. Dist., September 2021)


United States: California Rules Of Court Amendments Lead To Requests For Clarification Regarding CEQA Lawsuits

by Jennifer Hernandez , Ryan Michael Leaderman and Daniel Golub: Holland and Knight : mondaq – excerpt

In response to the COVID-19 pandemic, the California Judicial Council on April 6, 2020, introduced amendments to the California Rules of Court, which are effective immediately and impact a broad suite of criminal and civil judicial proceedings. With respect to civil complaints, for example, California Judicial Council Emergency Rule 9 tolls the statutes of limitations for civil causes of action “from April 6, 2020, until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted.”

Emergency Rule 9 does not differentiate between the full “lifting” of the state of emergency and any interim steps that California Gov. Gavin Newsom may take, such as allowing more people to return to work. Because Emergency Rule 9 does not start a 90-day statute of limitations until the Governor “lifts” the state of emergency regarding the COVID-19 crisis, statutes of limitations in civil actions do not commence for the foreseeable future – and won’t end until 90 days thereafter.

The California Environmental Quality Act (CEQA), unlike many civil lawsuits such as contract and property disputes, statutorily prescribes much shorter statutes of limitations. Lawsuits challenging projects approved with a Negative Declaration or Environmental Impact Report must be filed within 30 days of the filing of the required notice, and lawsuits challenging categorical exemptions must be challenged in 35 days. (Cal. Pub. Res. Code Section 21167.)

A CEQA lawsuit is a petition for writ of mandate as opposed to a standard civil complaint. The emergency rule applies to “civil causes of action,” which are distinct from special proceedings such as writs of mandate. See generally Code Civ. Proc. §§ 21-24.

Because Emergency Rule 9 does not address modified rules for writs (including CEQA writs), stakeholders are requesting clarifications from the Judicial Council. Petitioners who assume that Emergency Rule 9 has effectively eliminated the CEQA statute of limitations for the foreseeable future (90 days after the end of the COVID-19 emergency) do so at the risk of having such lawsuits deemed barred by CEQA’s statutorily prescribed statute of limitations… (more)

This appears to be different from what other legal opinions have suggested re: statutes of limitation for writ of mandate filings (Code Civ. Proc. §§ 21-24).


UBC study links living near highways to risk of neurological disorders

By Tiffany Crawford :vancouversun – excerpt

Researchers at the University of B.C. have found a link between living near highways and an increased risk of several major neurological disorders, including dementia and Parkinson’s disease.

The study, published this week in Environmental Health, found proximity to major roads may also increase the risk for multiple sclerosis and Alzheimer’s diseases, likely because of exposure to more air pollution such as nitrogen dioxide and particulate matter.

Lead author Weiran Yuchi, and a team of researchers at the UBC school of population and public health, analyzed data for 678,000 adults between the ages of 45 and 84 in Metro Vancouver. The subjects were interviewed from 1994 to 1998, and again during a follow-up period from 1999 to 2003…(more)

And, as some are pointing out, living in close quarters is also unhealthy when it comes to spreading pathogens. Note: The “city” of Wuhan under quarantine has a population of 14 million people. That is big as the state of Ohio and dwarfs US Cities. These are the megalopolis “cities of tomorrow” pushed by the urbanists and world government enthusiasts. I prefer Jefferson’s ideal of independence and self reliance.

Another reason to oppose SB50 and state-ordered dense cities.

Gov. and Legislature Ignoring Appellate Court’s Order to Return ‘Unlawfully Diverted’ Subprime Crisis Funds

By Katy Grimes : californiaglobe – excerpt

The settlement funds would have directly helped low-income families and people of color

In 2018, Gov. Jerry Brown was ordered by the state’s 3rd Appellate District Court to repay more than $331 million in funds the state illegally diverted from a national fund intended to help homeowners struggling with foreclosures from the housing crisis. Instead of complying with the court order, Democrats pushed through a bill to legitimize the theft of funds.

Governor Gavin Newsom just signed Senate Bill 113, which will allow his administration to take a year or more to set up a nonprofit trust that would invest the funds, in still-unknown ways, rather than distributing the money to wronged homeowners. The administration said it would only spend investment profits, not the actual settlement funds.

The settlement funds would have directly helped many California homeowners, including low-income families and people of color…

Stealing money intended to help people damaged by what Democrats called “predatory lenders” and “Wall Street” in order to bail out the gross abuses by the Governor’s and Legislature’s wasteful spending is probably among the lowest actions.

Notably, the Legislature just passed AB 539, a bill to bar “predatory lenders,” like payday small loan companies, from imposing excessively high-interest rates on people who borrow $2,500 up to $10,000, while also passing legislation to allow cities to open public government banks. Perhaps this settlement is seed money for the government banks… (more)

No wonder his popularity is slipping. Too much money and too much power are a dangerous combination that seems to go to everyone’s head. In this case, the governor wants to double down on the crime the state was accused of to continue the illegal action that brought on the lawsuit. Are the funds unavailable because they are tied up in long-term investments? The plot thickens. He is giving non-profits a bad name by using them to funnel the funds. But, if the goal is to rid the state of unwanted single-family homeowners, the delay tactic makes perfect sense.

San Francisco Libertarians File an Election Contest to Invalidate November’s Proposition A Election Due To Violations of New Law

by: Michael Denny : lips – excerpt

The complaint was filed in the Superior Court of California, County of San Francisco, Friday April 5, 2019. This is an independent action taken by two members of the Libertarian Party of San Francisco, Note: This is an independent action taken by two members of the Libertarian Party of San Francisco, Michael Denny and Nicholas Smith, in a citizen’s effort to check the power of Government. The LPSF itself is not listed nor eligible to be listed as a complainant on the suit.

San Francisco Libertarians File an Election Contest to Invalidate November’s Proposition A Election Due To Violations of New Law

There has been an ongoing problem of collusion between government officials and municipal bond advisors who often actually write the bond bills for profit. And then deceptively work with government to sell them to an unsuspecting public. To address this issue, the California State Assembly passed AB-195 which was approved by Governor Jerry Brown and on January 1, 2018 became Law. Sections of that law governs the way local governments can present bond measures on ballots:

  1. Measure shall be a true and impartial synopsis of the purpose of the proposed measure,
  2. and shall be in language that is neither argumentative nor likely to create prejudice for or against the measure.
  3. If the proposed measure imposes a tax or raises the rate of a tax, the ballot shall include in the statement of the measure to be voted on the amount of money to be raised annually and the rate and duration of the tax to be levied.

Section 18401 of the California Elections Code says election officials who allow non-compliant ballots to be put before the public are criminally liable…(more)

California Supreme Court Clarifies Scope of De Novo and Substantial Evidence Standards Of Review In CEQA Cases

In Sierra Club v. County of Fresno (S219783), the California Supreme Court unanimously reaffirmed that the substantial evidence standard of review does not always apply when a lead agency prepares an environmental impact report (“EIR”) for a development project. Rather, the court determined that the less deferential de novo standard applies if the EIR’s discussion of a potentially significant impact has been omitted or is factually insufficient. In other words, while a lead agency has considerable discretion as to the methodology and analysis it employs to analyze a potentially significant impact, an EIR must reasonably describe the nature and magnitude of the impact (i.e., include a meaningful explanation of why an impact is significant or not) if it is to survive judicial scrutiny. In County of Fresno, the court employed the de novo standard, the Court held that the EIR’s air quality analysis was inadequate because it did not explain the connection between the project pollutants and negative health effects or explain why it could not make such a connection… (more)

Gavin Newsom’s housing lawsuit put 47 California cities on notice. Is yours on the list?

 By Bryan Anderson and Madeline Ashmun : sacbee – excerpt (includes map)


Sue you, and you, and you! by SF Blue Comics

In his State of the State address, California Gov. Gavin Newsom acknowledged the state’s housing problem. While he doesn’t intend to sue all of the cities for their failures to meet their housing obligations, he vowed to hold them all accountable.

Encinitas is just the kind of place Gavin Newsom might want to sue.

A local voter-approved initiative from 2013 makes planning for affordable homes nearly impossible, preventing the wealthy city of 60,000 from complying with a state law that requires local governments to build more housing.

The city has already spent $3.5 million in the last few years fighting a pair of housing-related lawsuits. The bill could climb if Newsom follows through on a threat to hold local governments accountable to the state housing law.

“I don’t feel proud to be the mayor of a city that is in the midst of costing millions of taxpayer dollars,” said Catherine Blakespear, the city’s mayor. “I want to free up some of our planning ability to talk about other issues. This housing (issue) dominates everything that we talk about.”

Encinitas of San Diego County is one of 47 California cities under scrutiny by the Newsom administration for not complying with a state law that requires them to plan for the construction of affordable housing. Newsom’s administration recently sued Huntington Beach for not keeping up with its housing promises, alarming other local governments… (more)

My turn: Don’t blame environmental law for California’s housing crisis

By Ashley Werner : calmatters – excerpt

California is facing a housing crisis of unprecedented proportions. Lower-income residents across the state must choose whether to pay for rent or food. People who can’t cover housing costs are forced to leave their homes, their neighborhoods and even the state.

But as legislators resume discussions regarding policy solutions, we must be clear: California’s environmental regulations did not cause the housing crisis and eviscerating the California Environmental Quality Act would harm disadvantaged communities.

Some developers claim the California Environmental Quality Act is a major factor behind the state’s unmet housing needs. But multiple studies have shown this act, a bedrock of California environmental law, plays a limited role in determining whether and where housing is built…

These policies would move us closer to ensuring all Californians have an affordable, decent quality home. We can and must address the housing crisis without sacrificing California’s core environmental protections.

Ashley Werner is a senior attorney for the Leadership Counsel for Justice and Accountability in Fresno, She wrote this commentary for CALmatters... (more)

City Attorney Outlines Impacts on Santa Barbara of State Housing Legislation

By Giana Magnoli : noozhawk – excerpt

With laws ‘basically designed to strip local control,’ city planners are working to create objective design standards for development projects.

Santa Barbara city planners will spend the next year creating objective design standards for development projects in response to the package of state housing legislation that then-Gov. Jerry Brown approved for California in 2017.

Assistant City Attorney Tava Ostrenger presented a breakdown of the legislation’s local impact to the Planning Commission on Thursday and said it was “basically designed to strip local control.”

The intent of the legislation is to boost housing development and affordability, streamline development, and increase accountability and enforcement of cities’ and counties’ housing goals… (more)

What Happened When I Bought a House With Solar Panels

By Esmé E. Deprez : bloomberg – excerpt

Third-party ownership and decades-long contracts can create real headaches.

On a rare rainy day early last year, my husband, Alex, and I toured what, with any luck, would become the most exciting and daunting purchase of our lives: a cream-colored bungalow-style fixer-upper, built in 1924, a few blocks from our rental in Santa Barbara, Calif. What the house lacked in curb appeal, it more than made up for in charm and utility: the original built-in cupboards in the dining room, the way the light streamed in from copious windows, the fenced backyard for our wirehaired mutt. Moldy linoleum in the bathroom would be easy to rip up. A shower head inexplicably hanging above the kitchen sink would be easy to rip out. The location was a big draw, as was, at least initially, the fact that the red pitched roof of the two-car garage was outfitted with 17 solar panels. We’d get to do our bit for the planet…

I’d soon learn that the system was tied to the title of the house. It appeared that if we bought Jug’s place, we’d have to assume his lease arrangement with Sunrun. I wasn’t sure how I felt about this as a buyer, but it definitely piqued my curiosity as a journalist. I set out to examine the value proposition carefully…

There’s more to the story, including the fact that Jug’s solar panels never worked at full efficiency. This was because of what Sunrun characterized as “severe shading” caused by the next-door neighbor’s tree. That’s right: Sunrun installed the system beneath a big old tree. This makes me again question the judgment of Jug’s salesperson. Sunrun has a production guarantee—if the system underperforms, you get a credit. In Jug’s case, $203 was credited to his account on July 17, 2017, half a year after his death… (more)

We need to push the state legislators to fix the”severe shading” problem caused by both trees and higher denser buildings going up nearby solar panel powered roof systems. Now that they are required on some homes, they should be protected from shadows. Perhaps this is a case for the courts to decide?

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