State Supreme Court Accepts Cases

The California Supreme Court has recently accepted for review three land use cases, including the court's fifth California Environmental Quality Act (CEQA) case since 2003.

The CEQA case concerns the definition of a project, a subject that has become increasingly sticky. The Second District Court of Appeal ruled that the City of West Hollywood should have completed an environmental impact report before entering into a conditional agreement with a nonprofit housing developer. The project involves the restoration of a Colonial revival mansion and the construction of a new apartment building on the same property, all to provide about 28 affordable apartments for senior citizens.

The city argued unsuccessfully that it did not have to conduct environmental review at the contract stage because the agreement was contingent upon completion of environmental review later (see CP&DR Legal Digest, April 2007). The Second District's decision appeared to conflict with a recent decision from the Third District, which ruled the McCloud Community Services District's conditional agreement with Nestlé for construction of a water bottling plant was not yet a project under CEQA (see CP&DR Legal Digest, March 2007).

The specific question in the case for the state Supreme Court is this: Does the agreement between the city and the developer that describes the proposal in detail — but which expressly withholds any commitment to a definite course of action and is conditioned upon CEQA compliance — constitute "approval" of a "project" necessitating environmental review?

The case is Save Tara v. City of West Hollywood, No. S151402.

The second case accepted for review is a familiar one to the state high court. It involves Santa Cruz County's regulation of second dwelling units.

Three years ago, the state Supreme Court reinstated property owner Steven Travis's lawsuit challenging second unit permit conditions imposed by the county that restricted unit occupancy to low-income households, senior citizens or family members, and imposed sliding-scale rent controls. The conditions were based on the county's second unit ordinance. The Sixth District Court of Appeal ruled that it was too late for the property owner to challenge the regulations, but the state Supreme Court in Travis v. County of Santa Cruz, 33 Cal.4th 757 (2004) ruled that the property owner could bring an "as applied" challenge to the restrictions (see CP&DR Legal Digest, September 2004).

The case then returned to Santa Cruz County Superior Court, where Travis again argued that the conditions were unconstitutional and violated various state laws, including the Unruh Civil Rights Act and the Costa-Hawkins Rental Housing Act, which limits local rent control regulations. The trial court ruled against Travis, and he appealed again. In an unpublished decision, the Sixth District rejected all of the claims except one. The court ruled that the ordinance's preference for senior citizens is age discrimination in violation of state law.

The case now heads back to the state Supreme Court for a final decision on the merits. The case is Travis v. County of Santa Cruz, No. S150695.

The third case accepted for review is a Proposition 218 case from the Town of Tiburon, in which the First District Court of Appeal ruled that a property owners' lawsuit challenging a special assessment to pay for undergrounding utilities was filed too late. The court rejected property owners' contention that they should be able to challenge the assessment under Proposition 218, which requires an election for special assessments (see CP&DR Legal Digest, April 2007).

The case is Bonander v. Town of Tiburon, No. S151370.