Zoning Ordinance, Timber Harvest, Tax matters Head To High Court

The California Supreme Court in July accepted four cases with direct and indirect land use implications.

The case that is likely of most interest to planners involves a City of Hanford ordinance regulating who may sell furniture. The ordinance prohibits furniture sales outside of downtown with the exception that stores of at least 50,000 square feet may devote up to 2,500 square feet to furniture displays.

The Fifth District Court of Appeal ruled the ordinance was unconstitutional because it divided retailers into two classes and treated them separately. The separate treatment did not "bear a rational relationship" to the city's goal of preserving downtown (see CP&DR Legal Digest, May 2006).

The decision came down only one week after the same court upheld a City of Turlock ordinance banning stores of more than 100,000 square feet from selling groceries. "Despite the court's attempt to distinguish the two decisions, it is difficult to reconcile the disparate holdings," Bingham McCutchen land use attorneys Dan Curtin, Cecily Talbert and Allison Krumbein wrote in an analysis for the Los Angeles Daily Journal.

The case is Hernandez v. City of Hanford, No. S143287. The court rejected Wal-Mart's request to hear the Turlock case.

A second case concerns three timber harvest plans in Tuolumne County that the state Department of Forestry and Fire Protection (CDF) approved for Sierra Pacific Industries.

The Fifth District ruled that CDF's biological assessment was inadequate because the agency used the same "assessment area" when determining the planned logging's cumulative impact on the California spotted owl and the Pacific fisher. Assessment areas should be chosen separately based on the characteristics and needs of each species, the appellate court concluded. The court also ruled that CDF's study of the impacts of post-harvest herbicide use was inadequate.

The state Supreme Court agreed to decide whether CDF did in fact correctly interpret and apply the Forest Practice Act and the Forest Practice Rules. The case is Ebbetts Pass Forest Watch v. Department of Forestry and Fire Protection, No. S143689.

A third case concerns the formation of the Downtown Pomona Property and Business Improvement District. A property owner contended that a required public hearing was conducted at the wrong time and that the assessments are not proportional to the benefits received. The Second District Court of Appeal ruled against the property owner.

The Supreme Court accepted the Pomona case but deferred action until the court decides a different case (Silicon Valley Taxpayers' Assn., Inc. v. Santa Clara County Open Space Authority, No. S136468) that also concerns the justification for special assessments.

The case is Dahms v. Downtown Pomona Property and Business Improvement District, No. S143165.

Finally, the state's high court accepted a case involving a dispute between the City of Dinuba and Tulare County. The county had incorrectly coded for tax purposes certain parcels within Dinuba's redevelopment project area. The error shortchanged the city tax increment for four years. Instead, the money went to the county and nine other local government agencies.

The county agreed to correct the error prospectively, but the Fifth District ordered the county to pay the city all of the underpaid tax increment (see CP&DR Legal Digest, May 2006). The question for the Supreme Court is whether state law provides the county immunity for its mistake. The case is City of Dinuba v. County of Tulare, No. S143326.