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2022 LAND USE AND LOCAL GOVERNMENT 1st BI-MONTHLY REVIEW

By Abbott & Kindermann, Inc., William W. Abbott, Diane G. Kindermann & Glen C. Hansen on February 8, 2022
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Welcome to Abbott & Kindermann’s 2022 1st Bi-Monthly cumulative Land Use and Local Government Review. This summary provides brief updates on recent land use and local government caselaw in 2022. The case names of the newest decisions start with Section 2 and are denoted by bold italic fonts.

CASES PENDING AT THE CALIFORNIA SUPREME COURT

There is 1 case pending at the California Supreme Court. The case and the Court’s summary is as follows:

Chevron U.S.A., Inc. v. County of Monterey, S271869. (H045791; 70 Cal.App.5th 153; Monterey County Superior Court; 16CV003978.) Petition for review after the Court of Appeal affirmed the judgment in a civil action. The court limited review to the following issue: Does Public Resources Code section 3106 impliedly preempt provisions LU-1.22 and LU-1.23 of Monterey County’s initiative “Measure Z”?

UPDATE

Planning, Development, and the Subdivision Map Act

Tran v. County of Los Angeles, (January 21, 2022) 2022 Cal.App. LEXIS 53.

Henry Tran (“Petitioner”), the owner of a liquor store in an unincorporated area south Los Angeles, applied for a renewal of the store’s conditional use permit (“CUP”) for the sale of alcohol. The County Department of Regional Planning (“Department”) processed the request and recommended certain limitations on the minimum size of liquor bottles, and limited the hours when alcohol sales could occur to 10:00 pm. The Regional Planning Commission (“Commission”) approved the CUP, but modified it to increase the hours of alcohol sales back to 2:00 am. Utilizing the County’s “call for review” procedures by one of the board members, the Board of Supervisors (“Board”) voted to hear the Commission’s decision and set the item for a public hearing. At the August 1, 2017, hearing, the Board heard testimony from the public and the Department and voted to approve a motion of intent to approve the CUP that added the time for alcohol sales limitation the Department recommended of 10:00 pm. On March 20, 2018, nearly eight months later, the Board formally adopted findings and conditions of approval consistent with the August 1, 2017 decision. Petitioner filed suit, arguing the delayed final decision violated County Code section 22.240.060, subdivision E.4, which requires the Board to act within 30 days of the close of the public hearing. (County Code §22.240.060(E)(4) [“Decisions on appeals or reviews shall be rendered within 30 days of the close of the public hearing” (emphasis added).].) The trial court rejected the claim, holding that the Board had rendered its decision on August 1, 2017, when it approved the motion of intent to approve the CUP with the modified hours requirements, and Petitioner appealed.

The Second District Court of Appeal reversed. The Court first focused on whether the Code’s apparent requirement was directive or mandatory—essentially determining whether the statutory provisions include a consequence for the failure to comply—the latter being required for the court to have the authority to invalidate the governmental action. Relying on the inclusion of an additional subdivision that mandates the affirmation of the lower body’s decision for the failure to timely act on the appeal, the Court held that the 30-day deadline to act was mandatory. Next, the Court considered whether the Board’s “decision” was “rendered” on August 1, 2017, with the motion of intent to approve and ultimately concluded it was not. It reasoned that because the right of judicial review and statute of limitations only flowed from the formality of adopting findings and the CUP with its final modifications of the Board’s final action on March 20, 2018, the August 1, 2017 decision did not “render” the Board’s “decision” as required by County Code section 22.240.060(E)(4). Thus, the Court ordered the trial court to issue a writ of mandate vacating the Board’s decision and deeming the Commission’s decision affirmed.

Protect Our Neighborhoods v. City of Palm Springs (2022) 73 Cal.App.5th 667.

Protect Our Neighborhoods (“Petitioners”), challenged the City of Palm Springs’ (“City”) adoption of an amended short-term rental ordinance in 2017. Specifically, petitioners challenged the City’s finding that the amended ordinance was consistent with the City’s zoning code, arguing that short-term rentals are commercial in nature and not residential. Petitioners also argued that because the ordinance defines short-term rentals as an “ancillary and secondary use,” single family homes cannot be used exclusively as short-term rentals. The trial court ruled in favor of the City, and Petitioners appealed.

The Fourth District Court of Appeal affirmed. The Court reasoned that though the language in the zoning code created a potential conflict, the City’s longstanding interpretation that “Vacation Rentals” are allowed in residential zones, and the later in time adoption of the amended ordinance reaffirming that interpretation to be applicable to short-term rentals warrants deference to the City’s interpretation of its own zoning code and held in favor of the City. The Court also rejected the claim that a single-family home could not be exclusively used for short-term rentals. It reasoned that even a “vacant” home retains its residential character, pointing to the zoning code’s definition of “dwelling” as “‘designed exclusively for residential occupancy’ [citations], not whether anyone actually resides there.”

William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

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Photo of William W. Abbott William W. Abbott

William W. Abbott is Of Counsel in Abbott & Kindermann, Inc., a Sacramento-based law firm focusing on land use issues.  Mr. Abbott’s clients include public agencies, private developers, and property owners concerned with real estate development throughout California.  A long time instructor in…

William W. Abbott is Of Counsel in Abbott & Kindermann, Inc., a Sacramento-based law firm focusing on land use issues.  Mr. Abbott’s clients include public agencies, private developers, and property owners concerned with real estate development throughout California.  A long time instructor in land use law, Mr. Abbott also serves as an expert witness on California land use proceedings in state and federal court.

Mr. Abbott has also participated in numerous training programs for local planning departments, County Supervisors Association of California, League of California Cities, and the County Planning Directors’ Association.

Practice Areas:

  • Land use and planning law
  • Real estate law
  • Local government
  • CEQA, NEPA

Education:

  • J.D., University of the Pacific, McGeorge School of Law, 1978
  • B.A., University of California at Davis, 1974
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Photo of Diane G. Kindermann Diane G. Kindermann

Diane G. Kindermann Henderson is a shareholder in Abbott & Kindermann, Inc. Ms. Kindermann represents numerous private and public agency clients, development, agricultural, industrial, mining and other landowner interests in matters concerning environmental, land use, planning and zoning laws, CEQA, Federal and State…

Diane G. Kindermann Henderson is a shareholder in Abbott & Kindermann, Inc. Ms. Kindermann represents numerous private and public agency clients, development, agricultural, industrial, mining and other landowner interests in matters concerning environmental, land use, planning and zoning laws, CEQA, Federal and State Endangered Species Acts, wetlands, water rights and water quality, mineral rights, timber and forestry resources, NEPA and hazardous waste matters, including CERCLA.

Ms. Kindermann is an Executive Committee Chairperson on the Sacramento Regional Transit Authority, Friends of Light Rail Board. She is also on the Council of Counsel and Environment Committee for the Construction Materials Association of California. Ms. Kindermann is a member of the American Planning Association and has also served on the Legal Affairs Committee, and the Wetlands/ Endangered Species Task Force for the Association of California Water Agencies.

Practice Areas:

  • Land use and planning law
  • Real estate law
  • Environmental law
  • Municipal law
  • Hazardous waste
  • Mining
  • Endangered species
  • Wetlands protection

Education:

  • J.D., University of Northern California, 1988
  • Certificate, Sorbonne Law School, Paris, France, 1985
  • B.A., University of San Diego, 1977
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Photo of Glen C. Hansen Glen C. Hansen

Glen C. Hansen is Senior Counsel at Abbott & Kindermann, Inc.  Mr. Hansen litigates disputes involving land use, real estate, constitutional takings, local government law and commercial transactions.  Mr. Hansen also advises clients on matters involving real property disputes, business law, environmental law…

Glen C. Hansen is Senior Counsel at Abbott & Kindermann, Inc.  Mr. Hansen litigates disputes involving land use, real estate, constitutional takings, local government law and commercial transactions.  Mr. Hansen also advises clients on matters involving real property disputes, business law, environmental law and local government matters. He often speaks at conferences and seminars on these issues.

Mr. Hansen served as the Chairman of the Real Property Section of the Sacramento County Bar Association and the Chairman of the Governmental Affairs Committee of the Elk Grove Chamber of Commerce. He is a member of the Executive Committee of the Environmental Section of the Sacramento County Bar Association, and serves on the Agribusiness Committee of the Business Law Section of the State Bar of California. He also serves as a Dispute Resolution Conference pro-tem judge for the El Dorado County Superior Court.

Practice Areas:

  • Land use and planning law
  • Real estate law
  • Local government law, including land use and planning
  • Constitutional takings
  • Commercial transactions

Education:

  • J.D., University of the Pacific, McGeorge School of Law, with distinction, 1993
  • B.A., Biola University, summa cum laude, 1986
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  • Posted in:
    Real Estate & Construction
  • Blog:
    Land Use Law Blog
  • Organization:
    Abbott & Kindermann, Inc.
  • Article: View Original Source

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