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CHAPTERS AT A GLANCE
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ABOUT THE BOOK
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In this ALL-NEW 2008 edition you will find new and expanded discussions of the following—
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ABOUT THE AUTHORS
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Cecily T. Talbert is a partner in
Bingham McCutchen’s Walnut Creek
office and a member of the firm’s Land Use Group. Her practice focuses
on land use and local government law, with a particular emphasis on
processing entitlements for complex master-planned and mixed-use projects
throughout California. She regularly assists landowners, developers, and
public agencies in all aspects of land use processing, including compliance
with CEQA, and drafting, negotiating, and obtaining the approval of development
agreements, general plan amendments, specific plans, planned unit development
zoning, and tentative and final subdivision maps. Daniel
J. Curtin, Jr. practiced law in the Walnut Creek office of Bingham
McCutchen LLP, and was a member of the firm’s Land Use Group. The
practice emphasizes local government and land use law representing both
private and public sector clients. A graduate of the University of San
Francisco School of Law, Mr. Curtin served as assistant secretary of
the California State Senate, counsel to the Assembly Committee on Local
Government, and deputy city attorney for Richmond. |
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PREFACE (28th edition)
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For twenty-seven years, Dan Curtin authored this book as a handy desk reference for those interested in California land use and planning law. Beginning in 2000, Dan and I worked together drawing on our own and our partners’ decades of experience representing both public agencies and private developers. Dan unexpectedly passed away in November 2006. Like the 2007 edition, this edition is dedicated to him. It covers all aspects of land use law, and is updated annually to reflect changes in statutes, case law, and practice. This edition includes new or expanded discussions of several topics of interest, including: • A comprehensive review of recent CEQA decisions, with a particular emphasis on the principles governing the adequacy of an EIR’s analysis of water supply issues (chapter 6) • Significant updates to chapter 7 (Wetlands) and chapter 8 (Endangered Species), including an analysis of the Corps’ and the EPA’s joint guidance concerning the Rapanos decision and federal wetlands jurisdiction • Extensive review and analysis of affordable housing case law and legislation (chapter 20), with an extensive review of recent case law concerning density bonus incentives and concessions • A thorough discussion of the circumstances under which administrative remedies must be exhausted and what constitutes a “remedy” (chapter 21) • All of the significant 2007 California legislation, including flood control legislation in chapter 2 (General Plan) and chapter 4 (Zoning), strengthened housing element law in chapter 20 (Affordable Housing), and LAFCO law (chapter 16) • All of the significant 2007 California land use case law As in previous years, the 2008 edition has benefited from the contributions made by many of my partners and associates in Bingham McCutchen’s Environmental and Land Use Groups. Barbara Schussman, a partner with our Land Use Group in Walnut Creek, authored chapter 6 (CEQA). Ms. Schussman has extensive experience litigating land use and environmental cases on behalf of public agencies and private entities, as well as providing comprehensive CEQA compliance advice. Her recent practice includes advising the Ports of Oakland and Stockton for their maritime projects, defending the Ports in CEQA litigation regarding expansion of their projects, and advising Stanford University in securing land use entitlements for the coming decade of campus growth. Ms. Schussman received her law degree in 1989 from Boalt Hall School of Law at the University of California, Berkeley, where she was elected to the Order of the Coif. She received her bachelor’s degree in Communication Studies, magna cum laude, from the University of California, Los Angeles, where she was elected to Phi Beta Kappa. This year’s edition also has benefited from updated discussions on Federal and State Wetlands Regulation and the Endangered Species Protections (chapters 7 and 8) authored by Marc R. Bruner. Marc represents governmental entities and private companies in a wide variety of environmental and land use matters, focusing on litigation and counseling under the California Environmental Quality Act, the National Environmental Policy Act, the federal Clean Water Act, the Federal Endangered Species Act, and California laws and regulations regarding water quality and endangered species. Marc litigates in the state and federal courts, at both the trial and appellate level. He also advises clients in preparing environmental studies and processing environmental and land use permits and approvals for a broad range of public and private projects, including residential subdivisions, large commercial and mixed-use developments, airport and maritime expansion projects, industrial facilities, and major university campus projects. He speaks regularly on a variety of environmental and land use topics. Prior to joining the firm, Marc practiced environmental and land use law at Wilmer, Cutler & Pickering (now Wilmer Cutler Pickering Hale & Dorr) and Cutler & Stanfield (now Akin Gump) in Washington, D.C. He clerked for the Honorable Jose A. Cabranes, chief judge of the U.S. District Court for the District of Connecticut, from 1993 to 1994. Additionally, this edition continues to benefit greatly from the discussion of Land Use Litigation (chapter 21), co-authored by two of Bingham McCutchen’s top land use litigators, Geoffrey Robinson and Marie Cooper. Mr. Robinson and Ms. Cooper have brought their collective 40-plus years of land use litigation experience to bear in this practical and informative approach to land use litigation. Mr. Robinson is a partner in Bingham McCutchen’s Walnut Creek office. He graduated with distinction from the University of California, Berkeley in 1978 and attended law school at the University of Virginia and Hastings College of the Law, from which he received his law degree with honors in 1983. After serving as an extern and a law clerk in two federal courts, Mr. Robinson has represented clients in civil litigation and administrative proceedings involving real estate, planning and zoning laws, CEQA, development fees and exactions, and Mello-Roos community facilities financing. Ms. Cooper, counsel in Bingham McCutchen’s Walnut Creek office, graduated Order of the Coif from Boalt Hall School of Law in 1984. After serving as an extern for the California Supreme Court, Ms. Cooper has focused her practice on land use litigation and transactional work, at both the trial and appellate court levels. She frequently addresses issues arising under the planning and zoning laws, CEQA, and water rights law. She also has substantial experience challenging and defending land use entitlements, general plan and zoning enactments, fees and dedications, proceedings under the Cortese-Knox-Hertzberg Act, initiatives and referenda, and in inverse condemnation actions. Ms. Cooper also assisted in updating chapter 9 (Design Review and Other Development Regulations) and chapter 16 (LAFCOs). I also wish to thank the following individuals in the Walnut Creek office of Bingham McCutchen for their contributions to this 2008 edition: Camarin Madigan, associate attorney, for her extensive efforts in reviewing and editing the entire text of this edition, as well as for her assistance in revising and updating chapters 2 (General Plan), 4 (Zoning), 9 (Design Review and Other Development Regulations), 10 (Vested Rights), 12 (Takings), 13 (Exactions), 14 (Initiatives and Referendum), 16 (LAFCOs), 17 (Rights of the Regulated), 18 (Legal Liability of Local Agency and Its Personnel), and 19 (Enforcement of Land Use Laws); Matthew Gray, partner, for his assistance in updating chapter 5 (Subdivision Map Act); Joshua Safran, associate attorney, for his assistance in updating chapter 9 (Design Review and Other Development Regulations) and 20 (Affordable Housing); Nadia Costa, associate attorney, for her assistance in updating chapters 16 (LAFCOs) and 20 (Affordable Housing); Marcos Getchell, our legal assistant, for compiling new land use legislation and cite-checking; Marsha Curtis, Administrative Assistant, for preparing all of the revised text; Sam DeSa, our intern, for preliminary research and editing; and Cynthia Nall, Office Administrator, for production and scheduling. This book is not a substitute for the guidance and advice of an attorney, especially in complex matters in which refinements and interpretations of the law are essential before final conclusions are drawn about planning and development processes, property rights, due process, and procedural matters. In addition, although legal reference points are essential, in matters pertaining to local public planning and the development process, there is no substitute for an understanding of how the planning process works at the city and county levels. Much of the process is delineated by California law and indeed most of the process is mandated. The law does not say a great deal, however, about what local planning policies should be or how a city or county should organize its land uses. That is a local task. But the law does require cities and counties to prepare, adopt, and update general plans before making land use and land use-related decisions, and it requires that certain procedures be followed to carry out public policies, protect private rights, and ensure due process prior to making decisions. I hope you find this book a helpful guide to better understanding how those mandates and procedures may be applied at the local level.
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