Legal Digest


Overflight Easement Not A Taking, First District Rules

The First District Court of Appeal has argued that Humbolt County did not create a taking of property by requiring the owners of a mobile home underneath an airport flight path to provide an overflight easement in exchange for a permit to build a carport and porch that had been illegally built by the previous owners of the property.

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Spot zoning permissible for archdiocese's assisted living facility

Reversing the decision of an Orange County Superior Court judge, the Fourth District Court of Appeal has ruled that rezoning residential property in Tustin to accommodate an assisted living facility is a legitimate use of spot zoning.

“The creation of the new senior residential housing zoning district and its application to the Project site were in the public interest and were not arbitrary or capricious,” wrote Justice Richard Fybel for a unanimous three-judge panel.

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Legal Digest: Tuolumne CEQA Ruling Sets Stage For Supreme Court Showdown

In case you missed the recent legal tremor, be advised that land-use lawyers are looking closely at a new appellate court ruling from Tuolomne County on the application of the California Environmental Quality Act to citizen initiatives. The new ruling is in direct conflict to a ruling from a different appellate district in 2004, possibly setting the stage for a showdown in front of the California Supreme Court.

Attorney Fee Award Depends on Pecuinary Interests, Even for Public Agencies

When deciding whether to award a public litigant its attorneys’ fees against another public entity under Code of Civil Procedure section 1021.5, the trial court may only consider the public litigant’s “pecuniary interests and the pecuniary interests of its constituents” in determining the third requirement of that statute.  The court may not consider the nonpecuniary motives of the public litigant in bringing the lawsuit. 

Impact of Campus Expansion on Fire, Safety Not Considered Under CEQA

California State University East Bay undertook a dual-purpose environmental impact report for its campus master plan and two construction projects, meant to enable the campus to grow from roughly 12,000 to 18,000 students in the next 30 years. The construction projects consisted of a housing complex and a parking structure. The EIR included alternatives at both the master plan and construction project level. 

Concern for Corn Sets Back AB 32’s Regulation of Carbon

As California seeks to reduce greenhouse gas emissions in the state’s industries in order to implement provisions of California’s Global Warming Solutions Act of 2006 (Assembly Bill 32), entities and trade groups both inside and outside the state have looked to the “dormant” Commerce Clause in the U.S. Constitution as a legal means to challenge those efforts. The dormant clause implies that states cannot take actions that would, implicitly or explicitly, restrict interstate commerce—such as when California legally compels residents to consume less fuel. 

Homeowners Assoc. Can Strike Supermajority Voting Restriction

In Quail Lakes Owners Assn. v. Kozina, the Court of Appeal for the Third Appellate District affirmed a trial court’s decision to grant a verified petition by a homeowners’ association for an order under Civil Code section 1356. The petition asked to modify the association’s governing laws to reduce a supermajority voting restriction.    

Failure to Submit Comments Dooms Challenge to Categorical Exemption

In 2006, a developers Y.T. Wong and SMI Construction, Inc. proposed to divide two existing ‘R-1’ zoned parcels totaling 1.89 acres into 11 lots to allow for the development of single-family homes in the community of Fairview in unincorporated Alameda County, bordering the City of Hayward. The county sent out written notices to a number of agencies, neighbors, and other interested parties, including the group that would become the appellants, indicating the county’s intent to utilize the section 15332 (Infill Development) CEQA exemption.

Case Upholds Homeowners Associations’ Standing in Suit Against Realtor

In a case pitting a real estate brokerage against a homeowners association, the trial court sustained demurrers to the HOA’s complaint against real estate brokers who acted as dual agents in the developers’ sale of properties in the development to HOA members. 

Court Upholds Use Permit for Walmart Supercenter

Citizens for Open Government v. City of Lodi involves the consolidation of three separate actions revolving around the City of Lodi’s approval of a conditional use permit (CUP) for a shopping center to be anchored by a Wal-Mart Supercenter.