The Week in Land Law - SB 9, SB 10, Cedar Point Nursery and Coastal Commission cases

Real estate and land use law in California is rapidly changing. I am going to keep tabs on it and share information here.

Pending Legislation

This week, a number of housing bills passed out of committee and moved on to the Assembly floor. If the Assembly votes to adopt them, they will move to the Governor’s desk and become law unless vetoed. The bills are as follows:

1. SB9. Axes single family zoning in favor of fourplexes, and requires ministerial approval of certain lot splits (more here, here and here).

2. SB10. Authorizes local government to adopt an ordinance to zone any parcel for up to 10 units of residential density per parcel, at a height specified in the ordinance, if the parcel is located in a transit-rich area or an urban infill site.

3. SB477. Requires local planning agencies to include in their annual housing element report to HCD specified information on costs, standards, and applications for proposed housing development projects and specified information on housing development projects within the jurisdiction.

4. SB478. Prohibits local agencies from imposing a floor-to-area ratio standard that is less than 1.0 on a housing development project that consists of 3 to 7 units, or less than 1.25 on a housing development project that consists of 8 to 10 units. Prohibits local agencies from imposing a lot coverage requirement that would preclude a housing development project from achieving these floor-to-area ratios. Prohibits local agencies from denying a housing development project located on an existing legal parcel solely on the basis that the lot area of the proposed lot does not meet the local agency’s requirements for minimum lot size.

Case Law

1. Cedar Point Nursery v. Hassid, _ U.S. _ (2021) (Case No. 20-107). In a June 23, 2021 decision, the United States Supreme Court delivered a win to property owners. The Court determined that California’s regulation forcing agricultural employers to allow union organizers on their property for up to three hours per day 120 days per year constitutes a per se physical taking under the Fifth and Fourteenth Amendments. From the syllabus:

“California’s access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties (here union organizers) the owners’ right to exclude. The right to exclude is “a fundamental element of the property right.” Kaiser Aetna v. United States, 444 U. S. 164, 179–180. The Court’s precedents have thus treated government-authorized physical invasions as takings requiring just compensation. As in previous cases, the government here has appropriated a right of access to private property. Because the regulation appropriates a right to physically invade the growers’ property—to literally “take access”—it constitutes a per se physical taking under the Court’s precedents.”

2. Linovitz Capo Shores v. California Coastal Commission - filed June 25, 2021, Fourth District, Div. Three

Homeowners emerged victorious against the Coastal Commission in this case. Faced with a potential need to demolish completed second story additions to their mobile homes, appellant homeowners unsuccessfully petitioned for a writ of mandate declaring that the coastal development permits they sought from the California Coastal Commission were deemed approved by operation of law under the Permit Streamlining Act (Gov. Code, § 65921 et seq.) In denying the petition, the trial court concluded the Coastal Commission had jurisdiction to require appellants to obtain coastal development permits and the prerequisite public notice to deemed approval under the Streamlining Act did not occur. The Court of Appeal disagreed.

The Court of Appeal determined that the Coastal Commission has concurrent jurisdiction with the California Department of Housing and Community Development (“HCD”) over mobile homes located in the coastal zone, and that homeowners who obtain a development permit from HCD are also required to obtain a permit from the Coastal Commission. However, the Court of Appeal found that the Coastal Commission’s failure to act on appellants’ applications for costal development permits resulted in the applications being deemed approved under the Permit Streamlining Act.

Aside from passage of the necessary amount of time, the only precondition to a permit being deemed approved by operation of law is provision of “the public notice required by law.” (Gov. Code, section 65956(b).) The Coastal Commission’s notices of a public hearing concerning the homeowners’ permit applications satisfied Government Code §65956(b)’s public notice requirement, and accordingly, the Court of Appeal determined that the writ petition should have been granted.

Have I missed anything important? Let me know at julie@justiceca.com.