Real Estate and Construction Law Blog

Pacific Hills Homeowners Association v. Prun (Mar. 20, 2008, G038244) __ Cal.App.4th __

By S. Keith Garner

The California Court of Appeal for the Fourth District recently held that the five-year statute of limitations in the Code of Civil Procedure (CCP) section 336 for challenges to restrictions on the use of real property applies to a homeowners association's unrecorded rules or guidelines.  The case involved a dispute over the location and height of a fence and gate across a homeowner's driveway.  The homeowners association's CC&Rs, which were recorded, required homeowners to obtain written approval of plans for any improvements, such as fences, from the association's architectural committee before starting construction.  The association's architectural committee also adopted guidelines that imposed setback and height requirements on fences, which were not recorded.  In this case, the homeowner erected the fence and fate in November, 2000, without receiving the architectural committee's approval and in violation of the setback and height restrictions in the unrecorded guidelines.  The association immediately notified the homeowner of the violation, and, over the course of next few years, sporadically attempted to resolve the matter administratively with the homeowner.  After its requests for mediation were rebuffed, the association filed suit against the homeowner more than four years but less than five years after the installation of the gate and fence.  The homeowner argued in part that the action was barred by the four-year statute of limitations in CCP section 337.  The superior court found that the action was timely under CCP section 336(b) and issued an injunction requiring the gate and fence to be lowered or moved outside the setback.

SCOPE v. County of Los Angeles (November 26, 2007, B189116) 157 Cal. App. 4th 149

By Maria Pracher and Misti Schmidt

The California Court of Appeal for the Second District recently issued the first appellate opinion to apply the four principles delineated by the California Supreme Court in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, 40 Cal. 4th 412 ("Vineyard").  These principles govern whether the water services discussion in an Environmental Impact Report ("EIR") sufficiently analyzes the availability of future water supplies.  Santa Clarita Organization for Planning the Environment, et al.,  v. County of Los Angeles, 157 Cal. App. 4th 149, Civil No. B189116 at 9 (November 26, 2007) ("SCOPE").  Briefly, the Vineyard principles are:

By Michael B. Wilmar and Misti M. Schmidt

With a resounding no, the California Court of Appeal for the Fifth District answered the question of whether a county can permit the use of real property that is not allowed by the zoning ordinance even if the county grants a zoning exception in a development agreement.  Such an exception is invalid where the county has not rezoned the property, amended the text of the zoning ordinance, issued a conditional use permit consistent with the ordinance, or granted a variance.

Lincoln Place Tenants Assoc. v. City of Los Angeles (September 19, 2007, B193235 [2^nd Dist. , Div. 7]) ___ Cal. App. 4^th ____; http://www.courtinfo.ca.gov/cgi-bin/opinions

By Alexis M. Pelosi

In this case, the Second District Court of Appeal confirmed that the Ellis Act does not preempt CEQA and that cities have a continuing obligation to comply with mitigation measures required under CEQA.

By Maria Pracher and William Fleishhacker

On August 21, 2007, the California State Legislature ended a 52?day budget stalemate, agreeing to a $145 billion spending plan.  As part of that agreement, the lawmakers passed minor amendments to the California Environmental Quality Act (“CEQA”).  The amendments require the State Office of Planning and Research to develop and prepare guidelines addressing the analysis and feasible mitigation of greenhouse gas emissions, as required by CEQA.  These guidelines must be adopted by the Resources Agency by January 1, 2010.  The amendments also provide an exemption for certain projects from CEQA lawsuits based on claims that the effects of greenhouse gas emissions were not adequately analyzed or mitigated in an Environmental Impact Report (“EIR”) or other CEQA document prepared for the project.  The projects exempted are any transportation or flood protection projects funded by the $25 billion bond measures passed by the voters in 2006.  The CEQA exemptions are temporary, expiring on January 1, 2010.

By William M. Fleishhacker

In Mani Brothers Real Estate Group v. City of Los Angeles, the Second District Court of Appeal of California addressed the issue of whether the City of Los Angeles (the “City”) and the Los Angeles Community Redevelopment Agency (the “CRA”) properly relied on a 2005 Addendum to a 1989 environmental impact report (“EIR”) in approving a modified project. In doing so, the Court specifically rejected the analysis of a 2006 case which held that the initial inquiry should focus on whether the changes amount to a “new project” requiring an EIR.  Rather, under the substantial evidence standard of review, and based on CEQA and the CEQA Guidelines, the Court held that the proper question is whether the changes result in new significant impacts compared to the original project.

Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) __ Cal. __

By Arthur J. Friedman, David P. Lanferman and Elizabeth S. Anderson

In Muzzy Ranch Co. v. Solano County Airport Land Use Commission, the California Supreme Court unanimously held that the adoption of the Travis Air Force Base Land Use Plan (the "Plan") by the Solano County Airport Land Use Commission (the "Commission") was a "project" for purposes of CEQA.  In this particular case, however, the Court affirmed the Commission's determination that the adoption of the Plan was exempt from CEQA pursuant to the "common sense" exemption since the Plan simply reiterated existing Solano County General Plan land use policies.  This decision is significant in that the Court: (1) upheld the use of the "common sense" exemption from CEQA review, even though "legitimate questions were raised" about the possible environmental impacts of the adoption of the Plan and the Commission had erred by failing to identify substantial evidence in the record in support of its invocation of the exemption; and (2) also acknowledged that CEQA may require lead agencies to consider the effects of "displaced development" resulting from restrictive land use policies where such development can be reasonably anticipated.

LT-WR, L.L.C. v. California Coastal Commission et al, No. B187666 (Cal. Ct. App., 2d Dist. May 25, 2007)

By Jeffrey W. Forrest

The Second District Court of Appeal of California upheld a trial court decision that the California Coastal Commission (the “Commission”) exceeded its authority when the Commission denied a private landowner a permit for gates and “no trespassing” signs.  The appellate court found that the Commission’s ruling that there was a “potential” to establish prescriptive rights for public use on the property “speculative.”

Like “squatter’s rights”, prescriptive access rights are created when the public openly and repeatedly accesses private property for a sufficient period of time without the landowner’s permission.  The Commission’s denial of the permit in effect decreed the existence of such access rights and was inappropriate because the Coastal Act does not grant the Commission the authority to create prescriptive public access rights.  Only a court has the authority to adjudicate and determine whether prescriptive access rights exist.

By Arthur J. Friedman

On May 22, 2007, the Napa County Superior Court issued its ruling in American Canyon Community United for Responsible Growth et al. v. City of American Canyon et al. (Napa County Superior Court Case No. 26-27462), approving the City’s “addendum” to the previously approved mitigated negative declaration, and thereby authorizing the partially constructed and approved Wal-Mart supercenter in American Canyon to proceed with construction and operations.  The court’s ruling is significant in part because it rejected the petitioners’ novel claim that the City was required to perform “supplemental” environmental review of the project’s potential impacts on climate change in response to the California legislature’s recent enactment of Assembly Bill 32.

Feduniak et al., v. California Coastal Commission (2007) 148 Cal. App. 4th 1346.

By Michael R. Leake

The Sixth District Court of Appeals of California overturned a trial court decision and rejected the claim of a Monterey County coastal property homeowner that the Commission should be estopped from requiring the removal of a three-hole, pitch-and-putt golf course from the property and restoration of the area to its original landscape of native dune vegetation because the Commission failed to take any action regarding the existence of the golf course in violation of restrictions placed on the property by the Commission despite the fact that the golf course was easily visible and had been there for 18 years.

Uphold Our Heritage v. Town of Woodside  (filed January 10, 2007; certified for publication February 2, 2007, A113376) __ Cal.App.4^th__

By Lori Wider

Introduction

In this case plaintiff Uphold Our Heritage (Heritage) challenged the issuance by the Town of Woodside (Town) of a permit to Steve Jobs (Jobs) to demolish a mansion on his property to enable construction of a new single family residence.  The Court of Appeal held that Town's findings of infeasibility of certain EIR project alternatives involving rehabilitation of the existing structure rather than demolition were not supported by substantial evidence in the record. While the estimated costs of restoration of the mansion were before the Town Council (Council), the record was devoid of any information regarding the likely cost of a new residence (the proposed project). Without the information necessary to compare the restoration costs against the cost of the project, there was insufficient evidence to support the findings of infeasibility of rehabilitation alternatives.

McAllister v.County of Monterey et al.  (January 31, 2007, H028813) __ Cal.App.4^th__

By Lori Wider

Introduction

This case involved a challenge by the plaintiff McAllister to approval of a coastal development permit issued to his neighbors ("Real Parties") for a single family residence on the Big Sur coast.  The primary issues addressed by the court were McAllister's arguments that (1) the County of Monterey's ("County") approval of the permit was null and void since a prior owner's violation of conditions of a previously issued development permit for the same property constituted a violation of the County Code and, therefore, divested the County of jurisdiction to approve the permit; and (2) the County violated CEQA by failing to prepare an EIR rather than a mitigated negative declaration in connection with the permit.

Concerned McCloud Citizens v. McCloud Community Services District et al.  (Filed January 2, 2007; certified for publication January 31, 2007, C050811) __ Cal.App.4^th__

By Lori Wider

Introduction and Background

The California Court of Appeal, Third Appellate District, reversed the decision of the trial court  granting a petition for writ of mandate brought to challenge approval of an agreement between the McCloud Community Facilities District ("District") and Nestle Waters North America, Inc. ("Nestle") for the sale and purchase of spring water.  The lower court determined that the District had violated CEQA by failing to conduct environmental review prior to approving the agreement.  The appellate court disagreed, finding that approval of the agreement did not trigger the requirement for environmental review prior to District approval because (a) the agreement was expressly conditioned on future CEQA compliance; and (b) it did not commit the District to a course of action or commit it to issuance of any permits or other entitlements to Nestle.

California Farm Bureau Federation et al. v. California State Water Resources Control Board, (January 17, 2007, C050289) __ Cal.App.4th__ http://www.courtinfo.ca.gov/opinions

By David P. Lanferman and Ella Foley-Gannon

The Court of Appeals for the Third Appellate District has declared that regulatory fee schedules adopted by the State Water Rights Control Board (“Board”) in 2003, imposing new annual fees on holders of water rights permits and licenses are unconstitutional and invalid. The decision was based largely on the court’s finding that the Board failed to demonstrate the requisite “proportionality” between the costs of the Board’s regulatory program and the fees imposed on the targeted fee payors, and addressed several important issues frequently raised in the implementation and litigation of regulatory fees.

Black Hills Investments, Inc. v. Albertson's, Inc. - January 12, 2007

By Thomas B. Snyder

On November 22, 2004, Black Hills entered into a contract to purchase two parcels of real property in a retail shopping center.  At the time of the contract, the two parcels had not yet been created through subdivision of the property.  Black Hills deposited earnest money of $133,000 which was described as non-refundable.  The contracts contained a provision which permitted the seller, Albertson's, to terminate the contract if it failed to obtain the proper governmental approvals for creation of the two parcels.  Black Hills was given no such right.

American Canyon Community United for Responsible Growth v. City of American Canyon et al. (November 17, 2006; certified for partial publication December 18, 2006, A111278) __ Cal.App.4^th__ http://www.courtinfo.ca.gov/opinions

By Lori Wider

In this case, the Court of Appeal determined that the City of American Canyon (“City”) violated CEQA because the City’s determination that project changes would not substantially increase traffic impacts was not supported by substantial evidence and the City failed to proceed in accordance with law by refusing to consider potential extraterritorial urban decay effects of a proposed Wal-Mart supercenter.  The changes would have increased the size of the approved project by 6.5% and added 30 traffic trips.  The Court also determined that the City violated its zoning ordinance by approving the supercenter without approving a major modification application.  Only the CEQA portion of the decision is certified for publication; the last section of the decision, addressing the alleged zoning ordinance violations, is not.

City of Goleta v. Superior Court of Santa Barbara County  (December 21, 2006, S129125) __Cal.App.4th__http://www.courtinfo.ca.gov/opinions

By Maria Pracher

The California Supreme Court has held that the newly incorporated City of Goleta could disapprove a final subdivision map even though the vesting tentative subdivision map had been approved by Santa Barbara County.  Government Code section 66413.5(f), which provides for the mandatory approval of a final map by a newly incorporated city if the vesting tentative map has been approved by a county, did not apply given the facts in this case.  Additionally, the City's adoption of the County codes did not prevent it from denying the map, and nothing in the City's actions with respect to the project estopped it from denying the final map.

Calvert v. County of Yuba (December 5, 2006, C047857)__Cal.App.4^th__ http://www.courtinfo.ca.gov/opinions/

By Lori Wider

The Court of Appeal, Third Appellate District, held that a vested rights determination under the Surface Mining and Reclamation Act ("SMARA") regarding surface mining operations in the diminishing asset context is subject to the procedural due process requirements for reasonable notice and an opportunity to be heard.  The County of Yuba ("County") in this case made a determination that Western Aggregates LLC ("Western") had a vested right to mine aggregate from an area within the Yuba Goldfields.  The County had invited Western and other surface mining operators to apply for a vested rights determination following a decision by a superior court in a prior lawsuit that a zoning authorization was not an adequate substitute for a SMARA permit.  In determining that a public adjudicatory hearing, with reasonable notice and an opportunity to be heard, was required, the Court of Appeal specifically limited its holding to a vested rights claim to conduct a surface mining operation subject to the diminishing asset doctrine.  Therefore, it is not clear whether this decision has any broader application or implication beyond the facts of this case.

Wagner Farms, Inc. v. Modesto Irrigation District (Dec.6, 2006, F049966) __ Cal.App.4th __ http://www.courtinfo.ca.gov/opinions/

By Maria Pracher

In this case, the appellate court reversed an award of costs in favor of the Modesto Irrigation District (the District) granted by the trial court after the plaintiff's petition for a writ of mandate was denied.  The court found the District had failed to provide sufficient justification for the "unusually high" cost per page for preparing the record and to adequately document the time legitimately charged for assembling the record of the proceedings.

Wolfe v. City of Fremont (Oct. 31, 2006, A112386) __ Cal.App.4^th __ http://www.courtinfo.ca.gov/opinions/

By Julie Austin

This Court of Appeals’ decision under the Brown Act, which prohibits a majority of members of a local legislative body from reaching a “collective concurrence” outside a noticed public meeting, suggests that an improper consensus may be reached inadvertently during the course of individual conversations between members of a local legislative body.  The court found that the plaintiff alleged sufficient facts to demonstrate that an improper “collective concurrence” had occurred through a series of one-on-one conversations among the legislative members.  Specifically, the plaintiff alleged that all city council members expressed support for a policy before a formal public meeting and that at least one council member had been aware of the other members’ views.  The court noted that the city council’s lack of intent to create a consensus was not fatal to the plaintiff’s case because the Brown Act prohibits even unintentional “collective concurrences.”  This case suggests that in the future, while engaging in otherwise permissible one-on-one discussions with other members of a legislative body, local legislators must be careful not to reveal the views of any other members to avoid inadvertently creating an improper “collective concurrence.”

Western Placer Citizens for an Agricultural and Rural Environment v. County of Placer (3^rd Dist. Nov. 9, 2006)

By Maria Pracher and Julie Austin

In this new California Environmental Quality Act (CEQA) case, the Court of Appeal upheld the County's EIR for a sand, gravel, and granite mining and processing project.  The court ruled on two important issues.  First, the County did not violate CEQA by failing to include and analyze a slightly revised project description submitted by the applicant after the final environmental impact report (EIR) had been prepared.  Coupled with this holding, the court found that the County's decision not to prepare additional environmental review of the revised project was supported by substantial evidence in the record.  Second, the court determined that the EIR's water supply analysis was adequate.  The court also found that the plaintiff had exhausted its administrative remedies.

Citizens for Open Government v. City of Lodi (3^rd Dist. Nov. 9, 2006)

By Julie Austin

Two non-profit groups, Citizens for Open Government (Citizens) and Lodi First, opposed the City of Lodi’s certification of a Final Environmental Impact Report (FEIR) and approval of a use permit for a Wal-Mart-anchored shopping center.  The trial court found that Citizens had not exhausted all of its administrative remedies because, even though Lodi First filed an appeal to the City Council, Citizens had not filed its own appeal.  The Court of Appeals reversed this determination and found that Citizens had exhausted its administrative remedies under CEQA and the Municipal Code because Citizens appeared before the City Council to file its own objections and participated in the administrative process.  The court also found that Citizens’ claims were not moot even though a trial court had partially granted Lodi First’s petition and vacated the City Council’s approval of the project.

By John Scheuring

Late in September, the Court of Appeal effectively reversed a judgment against the City of San Diego which, with interest and attorney's fees, was on track to exceed $150 million.  Originally filed in 1995, Border Business Park sued the City on theories of inverse condemnation and breach of contract.  The trial court ruled that the City was liable for (i) publicly announcing that it was considering a proposal for to create an international airport in Otay Mesa (which interfered with sales of property within Border Business Park), and (ii) the City's diversion of truck traffic to a new border crossing with Mexico (which allegedly interfered with access to Border Business Park). The trial court also held the City liable for breach of a development agreement with the Border Business Park (but did grant a motion for new trial on res judicata issues stemming from a previous lawsuit).

By John Scheuring

An en banc panel of the 9th U.S. Circuit Court of Appeals has vacated an earlier decision by a three-judge panel that, pursuant to the minority language provisions of the federal Voting Rights Act ("VRA") (42 USC §1973aa-1a), California recall petitions must be translated into minority languages.  The Ninth Circuit now joins two other circuits that have found voter-circulated petitions need not be translated into other languages to comply with Section 203 of the VRA. The majority held that these petitions were not materials "provided by" the state and, therefore, petition proponents are not required to comply with the minority language provisions of the VRA.  An interesting aspect of the decision is the courts belief that a translation requirement would have a chilling effect on the petition process itself.  The Court reasoned that if a translation were to be required for a petition in Orange County, the petition would have to be printed in English, Spanish, Vietnamese, Korean and Chinese, the costs of which would fall directly on the proponents of the petition, which may deter participation in the electoral process.  This decision will also end speculation that the VRA might also apply to initiative and referendum petitions.

Preciado v. Wilde, California Court of Appeal, Second District, 42 Cal.Rptr.3d 792, 06 Cal. Daily Op. Serv. 3817, 2006 Daily Journal D.A.R. 5563

By Brenna Moorhead

Tenants in common have equal possessory rights in land, therefore more is required to establish title by adverse possession against a cotenant that by adverse possession against a stranger. In Preciado v. Wilde, Plaintiff Preciado and his wife filed an action to quiet title based on adverse possession against Wilde, Preciado's niece. Preciado and Wilde became tenants in common when Wilde inherited interests in two parcels of real property from her father after his death in 1984. 

Establishing title by adverse possession against a stranger requires:

1. actual possession providing reasonable notice to the owner;
2. possession hostile to the owner's title;
3. a claim to the property under color of title or claim of right;
4. five years of continuous, uninterrupted possession; and
5. payment of taxes levied and assessed upon the property during the period. 

Adverse possession against a cotenant requires more with respect to notice of the intent to oust the co-tenant of its interest in the common property. One tenant cannot by mere exclusive possession acquire title of the property.

Wal-Mart Stores, Inc., et al. v. City of Turlock

By Michael Wilmar and Michael Leake

In Wal-Mart Stores, Inc., et al. v. City of Turlock, (2006) 138 Cal.App.4th 273, the California Court of Appeal for the Fifth Appellate District upheld a City of Turlock zoning ordinance which amended the City's general plan to bar the development of “big box” retail stores containing full service grocery departments. Under the ordinance, the City banned the development of “discount superstores,” which it defined as discount stores that exceed 100,000 square fee of gross floor area and devote at least 5 percent of the total sales floor area to the sale of nontaxable merchandise, often in the form of a full-service grocery department. In Wal-Mart's appeal of its earlier Superior Court defeat, it argued that the ordinance was an unconstitutional use of the City's police power and that the ordinance failed to comply with the California Environmental Quality Act (CEQA).

By Donna Jones

The California Court of Appeal in Trancas Property Owners Association v. City of Malibu, 2006 WL 802483 (Cal.App. 2 Dist.)), upon a rehearing requested by the California League of Cities as Amicus Curiae, recently re-affirmed its decision (discussed in this blog on October 13, 2005) that the City's adoption of a settlement agreement in a closed session violated the Ralph M. Brown Act, Gov't Code section 54950 et seq. (Brown Act).

By Michael Wilmar

In the recent case of Padilla v. Lever, No. 03-56259, 429 F.3d 910 (9th Cir. Nov. 23, 2005), the Ninth Circuit (the "Court") held that Section 203 of the Voting Rights Act of 1965 (the "Act"), which requires voting materials in certain districts to be distributed in specified minority languages, applies to recall petitions circulated pursuant to California law. Specifically, the Court held that recall petitions were "other materials or information relating to the electoral process" and that the Orange County Registration and Elections Department (the "OCRED") "provided" the recall petitions within the meaning of the Act. The decision makes it likely, if not certain, that in every locale where bilingual or trilingual ballots are required, a similar requirement will also apply to initiative petitions.

By Robert J. Uram, Ella Foley-Gannon and S. Keith Garner

On February 6, 2006, in National Ass'n of Homebuilders v. U.S. Army Corps of Engineers, Nos. 04-5221 et al., 36 ELR 20032 (D.C. Cir. Feb. 6, 2006), the United States Court of Appeals for the D.C. Circuit issued a unanimous ruling in favor of several major trade associations, holding that the validity of the Army Corps of Engineers regulation of "incidental fallback" that can result from activities such as ditch digging and excavation is ripe for review, and requiring the lower court to consider the legality of permit requirements for this type of discharge of dredged material into waters of the United States.

By David P. Lanferman

The recent decision of the California Supreme Court in Barratt-American v. City of Rancho Cucamonga(37 Cal.Rptr.3d 149) [covered in an earlier update on this site] raises serious questions as to the way many jurisdictions calculate, collect, and apply fees from developers for building permits and building inspections. Back in 1993, the California Attorney General published an opinion which concluded that fees for building permits and inspections are required to be based on the actual or reasonable costs of providing such services, rather than on the value of the proposed construction or improvements [76 Ops.Cal.Atty.Gen. 4]. Nevertheless, many (perhaps most) cities and counties continue to charge building permit fees which are based on the valuation of the construction, rather than being based on staff time and costs of providing service. To the extent that such valuation-based fees may exceed the reasonable costs of providing those services, recent court decisions may now hold cities and counties accountable for the excess revenues collected.

By David P. Lanferman

In Barratt American, Inc. v. City of Rancho Cucamonga, the California Supreme Court clarified questions of procedure and potential remedies available in actions challenging building permit and inspection fees under the Mitigation Fee Act, California Government Code § 66000 et seq. (the "Act"). Appellant Barratt American had sued the City on the basis that its inspection and permit fees (1) exceeded the City's costs of providing building inspection services; and (2) the City was improperly accumulating excessive fee revenues from its building permit operations. The Court agreed with lower court holdings that, when building inspection and permit fees are at issue, the only statutory relief was an action for invalidation of the resolution pursuant to Gov. Code § 66022. However, the Court disagreed with lower courts that Barratt's action was barred by the 120-day statute of limitations applicable under § 66022, finding instead that the City's reenactment and minor modification of the building permit fee schedule started a new limitations period. Lastly, the Court held that, when building inspection and permit fees are at issue, the appropriate remedy under the Act was not a refund but rather to reduce the fees going forward.

Sierra Club v. United States Army Corps of Engineers, 2005 WL 2090028 (D.N.J. 2005)

By Robert J. Uram and Ella Foley-Gannon

This case involved a challenge to a Corps of Engineers 404 permit to allow the filling of 7.69 acres of wetlands for a redevelopment project within the Meadowlands Sports Complex in New Jersey. The district court denied plaintiff environmental groups' preliminary injunction claim that the Corps had defined the project purpose in improperly narrow terms thereby precluding any practicable alternatives determination. Specifically, plaintiffs contended that the Corps substituted a project description for a basic project purpose.

By Donna D. Jones and Michael B. Wilmar

In County of Alameda v. Superior Court, 133 Cal. App. 4th 558 (2005), the California Court of Appeal, First District, ruled that a developer seeking to bring an inverse condemnation action may not invoke the futility exception to the ripeness doctrine until the developer has submitted a development proposal to land use authorities and had it denied.

By Donna Jones

The California Court of Appeal recently re-affirmed the limits on a city's ability to contract away its police power and placed limits on actions that a government can take in closed session. The Court also re-affirmed development agreements as an appropriate method for a city and an owner-developer to exempt a described development from future changes in zoning and density requirements.

By Michael B. Wilmar

In Endangered Habitats League v. County of Orange, 131 Cal. App. 4th 777 (2005), the California Court of Appeal rejected a development plan in Orange County. The court did so on the grounds that the specific plan approved by the County conflicted with its general plan, and that the County compiled an inadequately detailed environmental impact report (EIR).

Kelo v. City of New London
05 CDOS 5466 No. 04-108 (U.S. Supreme Court, June 23, 2005)

By Michael B. Wilmar

In a 5-4 decision, the U.S. Supreme Court held that economic development constitutes a valid public purpose within the meaning of the U.S. Constitution Fifth Amendment "public use" clause. Relying heavily on previous U.S. Supreme Court takings cases, Justice Stevens, writing for the majority, found that the City's purpose of economic development fit safely within the Court's broad interpretation of public purpose. Justice O'Connor, writing for the dissent, distinguished past U.S. Supreme Court takings cases as involving harmful precondemnation use of the private property whereas in the present case, the precondemnation use was not harmful. The majority only addressed takings under the U.S. Constitution and noted that states may place greater restrictions on its eminent domain power. The majority also rejected Petitioners' argument that the City's economic development plan would provide only purely economic benefits.

San Remo Hotel v. City and County of San Francisco
05CD05 5313 No. 04-340 (U.S. Supreme Court, June 20, 2005)

By Michael B. Wilmar

In San Remo Hotel v. City and County of San Francisco, the U.S. Supreme Court barred Petitioners from raising federal takings claims in federal court after Petitioners advanced in state court, and the state court decided, federal takings claims congruently with state takings claims. The hotel owned by Petitioners was previously used for various purposes?tourist hotel, long-term rooms, and mixed use. In 1981, San Francisco enacted the Hotel Unit Conversion and Demolition Ordinance that required hotel owners to apply for permits and pay fees before they could convert residential units into tourist units. In 1990 when Petitioners applied to convert all of the rooms in the San Remo Hotel into tourist rooms, the City issued a permit that allowed the conversion but for a $567,000 conversion fee. Petitioners challenged the ordinance and the imposition of a conversion fee as unconstitutional.

Marine Forests Society v. California Coastal Commission
05 CDOS 5501 S113466 (Supreme Court of California, June 23, 2005)

By Michael B. Wilmar

In Marine Forests Society v. California Coastal Commission, the Supreme Court of California unanimously held that the current California Coastal Act (CCA) provisions governing the membership structure of the California Coastal Commission do not violate the California Constitution's separation of powers clause. After the lower courts enjoined the Coastal Commission from performing its functions and pending review of this decision by the Supreme Court, the Legislature passed an emergency measure to amend the challenged provisions of the CCA. Under the amended provisions, a majority of the Commission's voting members were still appointed by the Legislature but members were no longer removable at the pleasure of the Legislature.