President's weekly report — March 5, 2015
Environment — Victory for common sense in permitting reviews
The California Supreme Court issued this opinion in Berkeley Hillside Preservation v. City of Berkeley Hillside Preservation v. City of Berkeley, a case dealing with environmental reviews under the California Environmental Quality Act (CEQA.) That statute, much like its federal analog the National Environmental Policy Act, requires a review of environmental impacts before a project can be permitted. But to avoid being even more cumbersome than it is, the legislature allows for categorical exemptions. The relevant exemption here is for the construction of individual single-family homes. The City approved a permit for a large home and neighbors objected, saying that an “unusual circumstances” exception to the exemption should make the home subject to an environmental analysis under CEQA. The “unusual circumstance” here was supposedly that the home would be one of the larger homes in Berkeley. The Court of Appeal agreed with the NIMBYs and required the home to go through the CEQA ringer. Much to the relief of land owners throughout the state who rely on various exemptions, the Supreme Court reversed. In a nutshell, the Court recognized the value to the exemption process and held that the “unusual circumstances” exception does not apply under these facts. For more, see our blog here.
Environment — Supreme Court delays deciding whether to decide
The United States Supreme Court put off deciding whether to take Kent Recycling v. United States, our challenge to the lower court’s ruling that jurisdictional determinations of wetlands are not subject to judicial review.
Property Rights — Raisins for sale
We filed this amicus brief in the United States Supreme Court in Horne v. United States. This is the case where the Department of Agriculture’s Raisin Advisory Council forces raisin producers to give up a portion of their raisins to the federal government in order to sell the remainder. Here, the raisin farmers were told to give up nearly a third of their crop one year and close to 20% the next. When the farmer refused, he was hit with a $650,000 fine and the farmer sued for a taking. After the Ninth Circuit totally botched takings law and ruled in favor of the government, the Supreme Court agreed to take the case. Our amicus brief points out that the Ninth Circuit’s analysis of cases like Nollan, Dolan, and Koontz is completely off-base and should be corrected.
Property Rights — Forced subsidies for low-income housing
The California Supreme Court set April 8 as the date for oral argument in Los Angeles for California Building Industry Association v. San Jose. This is our challenge to San Jose’s so-called affordable housing mandate, wherein developers of 20 or more market-rate homes must build 15% “affordable” units (i.e., sold at a price well below their actual value) – or pay an in-lieu fee of $122,000. Because building and selling market rate homes doesn’t create a need for more subsidized housing (in fact, quite the opposite) we think this demand violates the principles established in cases like Nollan, Dolan, and Koontz.
Property Rights — Shoreline buffers in Washington State
PLF attorneys filed an amicus brief in support of San Juan County’s shoreline property owners in the case, Common Sense Alliance v. Growth Management Hearings Board. At issue is San Juan County’s update to its critical areas ordinance which conditions approval of any new development of shoreline property on the dedication of a water quality buffer. Unfortunately, as our brief points out, this arbitrary imposition of buffers violates — you guessed it — the principles established in cases like Nollan, Dolan, and Koontz. For more, see our blog post here.
Property Rights — Going Coastal
We had a hearing in Beach & Bluff Conservancy v. City of Solana Beach last week. At issue is the approval of a land use plan by Solana Beach and the California Coastal Commission that severely diminishes the rights of coastal landowners in violation of — yes, Nollan, Dolan, and Koontz. The City and Coastal Commission are seeking to have the lawsuit dismissed, without getting to the merits of our arguments. The court is expected to issue an opinion within 90 days. For more information, see our blog post on the hearing here.
Victory for school children
The Alabama Supreme Court issued this opinion in Boyd v. McGee. After the Alabama legislature passed a scholarship statute designed to help low-income kids go to private schools with tax credits for scholarship funds, the usual union-before-children suspects sued, arguing the law violated the Alabama Constitution on a variety of grounds. In a lengthy 150 page opinion, the Alabama Supreme Court rejected all the challenges. PLF had filed this amicus brief supporting the state’s efforts to assist its school children and our related blog posts are here and here.
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