Bryan Wenter

Bryan Wenter

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HUD and DOJ Release Updated Joint Statement on “State and Local Land Use Laws and Practices and the Application of the Fair...

On November 10, 2016, the U.S. Department of Housing and Urban Development and the U.S. Department of Justice released a “Joint Statement” providing updated guidance on the application of the federal Fair Housing Act to state...more

12/1/2016 - Discrimination DOJ Fair Housing Act (FHA) HUD State and Local Government

Kelo Gives a Reasonable and Long-Accepted Reading of the Fifth Amendment, but it Remains one of the Supreme Court’s Worst...

In 2005, the United States Supreme Court decided in Kelo v. City of New London, 545 U.S. 469 (2005), that the Constitution allows the government to take private property through eminent domain for the purpose of “economic...more

11/15/2016 - Eminent Domain Fifth Amendment Private Property Public Use Takings

Court Rules that California Coastal Commission Staff Members who Participate in Enforcement Proceedings Before the Agency May Also...

California’s courts have frequently addressed a party’s due process rights to a fair and impartial decision maker in quasi-judicial proceedings, holding that during such proceedings there must be separation of prosecutorial...more

11/14/2016 - Administrative Proceedings Appeals Due Process Preliminary Injunctions

Court Defers to City’s General Plan Consistency Findings, Upholding Infill Residential Development Project

On November 7, 2016, the Court of Appeal for the Third Appellate District reversed and remanded a trial court decision addressing a neighborhood group’s challenge to a 328-unit infill residential project in the City of...more

11/9/2016 - Construction Project Environmental Impact Report (EIR) General Plan Land Use Restrictions

Court Upholds City’s Communities Facilities District and Related Special Tax

The question of who should pay the cost of municipal services for new residential development is a vexing question. The answer is critically important to the developers and homebuilders who must finance and market their...more

10/26/2016 - Housing Developers Land Developers Real Estate Development Urban Planning & Development

Gubernatorial Action that has Land Use Consequences is not a an Illegal Exercise of Legislative Power

On October 13, 2016, the Court of Appeal for the Third Appellate District affirmed a trial court’s decision to grant a demurrer filed on behalf of Governor Jerry Brown following his concurrence with the Secretary of the...more

10/17/2016 - Land Use Restrictions Tribal Lands Zoning Laws

Recent Reports Highlight Negative Consequences of Local Barriers to New Housing Development, Call for State-Level Solutions

California’s housing crisis is well-understood and documented. A chief culprit is the fact that the state’s coastal urban areas, for various reasons, do not approve enough new housing to accommodate everyone who seeks to...more

10/14/2016 - Affordable Housing Housing Developers Real Estate Development Urban Planning & Development

Court Resolves Tensions Between Housing Laws and Coastal Act in Favor of Coastal Act

On September 29, 2016, in a case of first impression, the Court of Appeal for the Second Appellate District addressed the tensions between the requirements of the Housing Accountability Act, Density Bonus Law, and Mello Law...more

10/3/2016 - Affordable Housing Density Bonus Housing Developers Zoning Laws

Court Affirms Trial Court’s Denial of Writ of Administrative Mandamus Challenging City’s Revocation of Nude Entertainment Permit

On September 28, 2016, the Court of Appeal for the Fourth Appellate District affirmed a trial court decision denying a petition for writ of administrative mandamus filed by the owner of a nude entertainment business to...more

9/30/2016 - Appeals Permits Writ of Mandamus

Court Rejects Takings Challenge to City’s Imposition of $600,000 in Fees for 11-Unit Infill Project

On September 23, 2016, the Court of Appeal for the Second Appellate District affirmed a trial court decision denying a petition for writ of mandate filed by a developer challenging various fees—totaling nearly $600,000—in...more

9/27/2016 - Dolan v City of Tigard Fifth Amendment Koontz v St John's River Water Management Nollan v California Coastal Commission Permits Takings

Court Declines to Reweigh Conflicting Evidence, Holds that County Fully Considered its Land Use Policies and Extent to Which...

On August 31, 2016, the Court of Appeal for the First Appellate District affirmed a trial court decision denying a petition for writ of mandate filed by a citizens group challenging the third in a series of master use permits...more

9/8/2016 - Environmental Impact Report (EIR) Permits

Court Affirms Preliminary Injunction Against Medical Marijuana Collective

On August 30, 2016, the Court of Appeal for the Second Appellate District affirmed a preliminary injunction in a nuisance abatement action brought on behalf of the People of the State of California against a Los Angeles-based...more

8/31/2016 - Marijuana Marijuana Related Businesses Medical Marijuana Preliminary Injunctions

Court Denies Preliminary Injunction and Terminates Temporary Restraining Order, Allowing Imposition of Level 3 School Impact Fees

On May 26, 2016, the California Building Industry Association successful obtained a temporary restraining order from the Sacramento Superior Court preventing the State Allocation Board—and all others acting in concert with...more

8/29/2016 - California Building Industry Association (CBIA) Impact Fees Irreparable Harm Preliminary Injunctions Restraining Orders

Accidental Disclosure Of Public Records Does Not Waive The Attorney-Client And Attorney Work Product Privileges

On March 17, 2016, the California Supreme Court resolved an important case regarding the California Public Records Act, ruling unanimously that the inadvertent release of confidential documents does not waive the...more

8/23/2016 - Attorney-Client Privilege Inadvertent Disclosure Public Records Public Records Act Work Product Privilege

Enacting and Enforcing Local Ordinances to Prohibit Medical Marijuana Dispensaries – Up in Smoke?

California’s cities and counties have a long and growing track record successfully defending challenges to their land use authority filed on behalf of medical marijuana dispensaries. These successes are largely a product of...more

8/5/2016 - Compassionate Use Act Controlled Substances Act Dispensaries Fifth Amendment Local Ordinance Marijuana Related Businesses Medical Marijuana State and Local Government

Prevailing Parties in Land Use Litigation May Recover Attorney’s Fees for Preparation of Administrative Record

On July 28, 2016, in a case of first impression, the Court of Appeal for the Sixth Appellate District held that labor costs for attorneys and paralegals to prepare the administrative record in a land use case are recoverable...more

7/29/2016 - Attorney's Fees CEQA Prevailing Party

Unsubstantiated Challenges to an Agency’s Conditional Use Permit Findings Will Not Fly

Developing real property in California is notoriously difficult. Given minimal standing requirements, project opponents can and do tie up and delay new development for the mere cost of a filing fee. In order to prevail in...more

7/22/2016 - CEQA Conditional Use Permit Land Developers

Court Rejects General Plan Consistency Challenge Regarding City’s Approval of Franchise Retail Store Where Applicable Economic...

Numerous California communities regulate broad economic development objectives through general plan goals and policies intended to encourage and support small businesses or to ensure the compatibility of new commercial...more

7/15/2016 - CEQA Conditional Use Permit Environmental Impact Report (EIR) Mitigated Negative Declaration

Development Project May be Declared Consistent with General Plan Even if Quantitative Standards Exceeded

There is no question in California land use law that development projects need not comply with every goal or policy in a community’s general plan. While a city’s or county’s land use decisions must be consistent with the...more

7/6/2016 - General Plan Land Developers Residential Real Estate Market Urban Planning & Development

Court Rejects City’s Anti-SLAPP Claim Regarding Would-Be NFL Stadium in Carson

The location of several National Football League franchises have been in flux for years, with teams such as the Chargers, Raiders, and Rams seeking modern, amenity-laden stadiums they have been unable to attain in their...more

7/5/2016 - Anti-SLAPP Athletes Breach of Contract Football NFL

Court Clarifies that Brown Act “Cease and Desist” Requirements Apply to Past Actions of a Legislative Body and Awards Costs to...

In 2012, the California legislature amended the remedies available to address violations of the Ralph M. Brown Act. The amendment added section 54960.2 to the Government Code to require that anyone seeking to challenge past...more

6/28/2016 - Cease and Desist City Councils Public Comment Ralph M. Brown Act

Grand Jury finds Oakland City Council Member Broke Ethics Rules in Interfering With a Housing Development Next Door to Her Home

In a final report issued June 21, 2016, the Alameda County Grand Jury found that an Oakland City Council member used her position and office to advocate for private gain, and not the good of the City, in interfering with the...more

6/27/2016 - City Councils Conflicts of Interest Ethics Housing Developers

Vested Rights Conferred Under Local Ordinance Trump Conditional Use Permit Requirement Later Imposed by Emergency Ordinance

On June 23, 2016, in Stewart Enterprises, Inc. v. City of Oakland, __ Cal.App.4th __ (2016) (Case No. A143417), the Court of Appeal for the First Appellate District issued an important decision dealing with whether a new...more

6/24/2016 - Conditional Use Permit Land Developers Local Ordinance Vested Rights Doctrine

Changed Dam Operations Not Subject to an Environmental Impact Statement Under NEPA

On June 21, 2016, a three-judge panel of the Ninth Circuit denied a petition for review of a decision of the Bonneville Power Administration to proceed with a change in the operation of the Albeni Falls Dam during the winter...more

6/23/2016 - Environmental Assessments Environmental Impact Report (EIR) NEPA US Army Corps of Engineers

The Mitigation Fee Act Provides the Sole Means for Challenging Development Impact Fees and Recovering Interest

The Mitigation Fee Act (Government Code § 66000 et seq.) provides the requirements for development impact fee programs. Most of the Act’s provisions were adopted in 1987 as AB 1600 and are sometimes referred to as “AB 1600...more

6/14/2016 - Impact Fees Mitigation Nollan v California Coastal Commission

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