Update: February 2018 Issue of California Supremes Now Available

I’ve just published the February 2018 Issue of the California Supremes on Land and Water. In this issue we review the Supreme Court decision in Lynch Versus The California Coastal Commission.

The dispute, in this case, revolves around a permit to rebuild a seawall protecting two homes on top of a cliff on the California Coast.

I’ve chosen to review this court decision because it is a recent California Supreme Court case that raises and answers important questions about permits and permit conditions regulating land use in California.

You can download the February 2018 Issue of the California Supremes on Land and Water as a PDF.

I hope you enjoy reading the issue.


Update: In The Hopper

I wanted to give you guys a quick update on some of the articles I’m currently working on. These should all be published before the end of the year. In the Fall 2016 Issue of the California Surveyor Magazine I should have 4 new articles:

  • A Review of Brothers Inc Versus Johnsons: This is the first article in a short series looking at the role of the land surveyor in adverse possession. In this first article we discuss the recent court decision from Louisiana in which an erroneous survey led to a successful claim of adverse possession against a 170 foot wide strip of land between two parcels.
  • A Review of IBLA 99-363 (Part 1):  This is the first article in a series of articles reviewing IBLA decisions related to land surveying and land title. This article is the first part of a set of articles in the series examining a recent IBLA decision from Washington state in which the BLM’s rejection of a corner stone led to major building encroachments onto federal land.
  • Understanding Survey Error Adjustment (Part 1): This is the first article in a series that will explain survey error adjustment basics using an easy-to-understand teaching style and basic math. It will also feature working error adjustment software written in Java and Groovy and released under an open source license. Although the article series will teach the weighted least squares adjustment method popular among surveyors today, it will cover a variety of other topics related to error adjustment. These topics will include alternate adjustment methods, creating measurement error statements for maps, analyzing and reporting measurement error, and creating error budgets when planning surveys. The goal of the article series is to put basic error adjustment tools into the hands of every surveyor. The first article in this series will provide basic definitions, will look at the components of a survey measurement system, and will look at the 3 main types of errors in survey measurements.
  • The Structure of California Land Planning Authority: This is an introductory article on land use planning law in California. It will look at the structure of land use planning authority, with a basic description of the general plan, specific plan, zoning regulations, and subdivision regulation. It will be the first article in a series that explains land use planning to land surveyors, and examines real life examples from the plans and regulations of two very different California Cities.
  • The 5 Mistake Public Agencies Make When Issuing an RFP for Land Surveying Services: In this article series members of the ACEC California Qualifications Based Selection Committee will examine common mistakes, misunderstandings and best practices for the acquisition of land surveying services in California. The first article in the series will examine the worst mistakes a public agency can make when issuing an RFP.

I’ll make regular posts in the future to this category on our web site about upcoming work on articles, workshops, and online courses.


Article: California Supremes on Land and Water – CRLS Versus The City of Fresno

This article is also available with graphics as a PDF.

Article Series Introduction

I’ve written more than once about how important it is for land surveyors to stay current with changes and clarifications in real property law. This is important because these changes impact how they practice land surveying and the advice they give to their clients.

Understanding the law isn’t always easy. Legal matters can be complicated to begin with, while judges and lawyers don’t always write clearly and succinctly. In addition, court decisions often blend arguments about legal procedures and jurisdiction with the arguments about land and water. That can make it difficult for a land surveyor to isolate the parts of a court decision that they are really interested in. However, this difficulty in understanding the law doesn’t excuse the land surveyor from his responsibility to know and understand the law as it relates to the land he surveys.

This is new article series on California Supreme Court decisions. It’s goal is to comprehensively review California Supreme Court decisions related to land and water. In this series we will review one court decision in each article, starting with the most recent decisions and working our way back in time. We’ll review the decisions from the perspective of the boundary surveyor, and will try to isolate the legal arguments and principles that are most important to land surveyors from the other legal arguments in the decision.

The decisions we are going to review won’t only be related to boundary surveying. We look at all cases related to land development, land use planning, property taxes, land title and water rights. Why? For far too long the focus of most boundary surveyors has been on only the boundary survey. Our clients (and the public) need us to be more broadly focused on all other areas of the real property system in our state. No other land professional is more qualified to serve as an expert consultant on these other areas. As we will see from these cases (including the first case reviewed in this article) these other areas of law greatly impact the land surveyor and his clients.

I’m releasing all articles in this series under the Attribution-NonCommercial 4.0 International License. That means you can copy, modify, combine, publish, and distribute the articles for non-commercial purposes. I hope this will eventually result in the articles being used in the future to train land surveyors and land professionals. I will also be posting the articles to the following web page after they are published in the CLSA Orange County Chapter Newsletter:

California Supremes

Article Introduction

In this first article we are going to review the case Citizens for the Restoration of L Street (CRLS) Versus the City of Fresno. This case considers the requirements of CEQA for a redevelopment project in a historic downtown of the California Central Valley. Before we identify the key legal questions raised by the case that we want to consider, let’s look at the important facts and timeline for the case.

Important Facts

  1. Granville Homes proposed an urban infill project in Downtown Fresno in the L Street Neighborhood. As part of the project 28 townhouses would be built as part of 14 duplex structures on a 1.29 acre parcel of land.
  2. Two historic homes existed on the 1.29 acre parcel before construction began on the project. The first was known as the “Crichton Home”. The second was known as the “Sayre Home”.
  3. In 2011 the Crichton Home had been vacant for 5 years and was in a state of disrepair. In 2011 the Sayre Home was used as an office by a non-profit, but was also in a state of disrepair. In addition, a number of alterations had reduced the historic character of the Sayre Home.
  4. The City of Fresno failed to form a historic district for the L Street area even though survey and proposals for such a district were made on at least 3 separate occassions.


1906: Judge William Crichton builds his home on the project site.

1910: The Julia Sayre Home is built on the project site.

1980: The first survey and proposal for a historic district in the L Street area is made.

1994: The second survey of of downtown historic resources occurs. The Crichton and Sayre Homes are noted as historical contributors to a potential historic district.

2006: The Fresno Preservation Committee designates the Crichton Home as a “Heritage Site”.

2007: The third survey of a downtown historic district is conducted.

8/2010: The Fresno Housing Authority and Granville Homes enter an agreement for the sale of the parcel for the project. The sale was conditioned on the issuance of a demolition permit for the two (2) homes and approval of a conditional use permit for the project.

1/2011: Granville Homes submits a conditional user permit application and a vesting tentative tract map for the project.

4/2011: The Fresno Housing Authority submitted applications for demolition permits on the Crichton Home and Sayre Home as part of the project.

6/2011: An initial CEQA study and mitigated negative declaration is completed for the project. It finds the project will have no significant environmental impacts.

6/7/2011: The City of Fresno issues a notice-of-intent to adopt a negative declaration for the project. The notice lacked key elements required by law.

6/27/2011: The Fresno Historic Preservation Committee votes 4-to-1to approve the CEQA review and mitigated negative declaration for the project.

6/30/2011: The City files a final notice-of-determination on the environmental review for the project.

8/1/2011: CRLS sends the City of Fresno a letter appealing the decision on the environmental review for the project.

11/3/2011: The City Council denies the CRLS appeal.

12/5/2011: CRLS files a petition claiming an environmental impact report (EIR) and not a negative declaration was required for the project.

12/9/2011: The City issues a demolition permit for the project. The homes are destroyed as part of demolition in preparation for construction on the site.

2/2012: The City of Fresno seeks a dismissal of the CRLS petition because the homes have already been destroyed. The trial court denies the City of Fresno request.

4/2012: A 4,416 page administrative record related to the dispute is submitted to the court for review.

1/2013: CRLS files a challenge to the trial court decision that an EIR was not required for the project.

Key Legal Issues

There are two (2) key legal issues in this case that interest us:

  1. Did the City property delegate authority to review and approve the environmental review to the Historic Preservation Committee?
  2. Was a proper analysis of the historical resources impacted by the project made by the City?

The Court’s Decision

Issue #1: The court determines that although the Historic Preservation Committee had the authority to approve the demolition permit for the two (2) homes, it did not have the authority to approve the overall environmental review for the project. The City of Fresno argued this authority was granted to the commission by implication because of statements in the municipal code. The supreme court rejected this argument. It wanted to see a clear grant of this authority for enviromental review to the Historic Preservation Committee in the municipal code…which it didn’t find.

The court also indicated that a later review and approval by the City Council of the decision by the commission wasn’t sufficient to meet the requirements of the law. That is because council members didn’t make a real independent review of the project’s environmental impacts. Instead, they merely approved the decision of the commission.

Issue #2: In order to determine if there was a proper analysis of historical resources impacted by the project, the supreme court needed to answer two (2) questions:

  1. Were the two (2) houses part of the “environment” protected by CEQA?
  2. Were the buildings a historical resource?

The law and regulation related to CEQA as it concerns the determination of buildings as historical resources is ambiguous and lacks clarity. Therefore, the supreme court relies on the legislative history for CEQA to determine how this decision needs to be made by a lead agency. The court determines, based on the legislative history, that lead agencies are given a good deal of discretion when it comes to identifying buildings as part of the historical resources protected by CEQA. This identification involves two (2) steps taken by the agency:

  1. Determine if the buildings are part of the protected environment.
  2. If the buildings are protected by CEQA, determine what the impacts of the project would be.

The court makes it clear that the standard of review for the second step is higher than the standard for the first step. In other words, the court has less room to question an agency’s decision to not identify a building as historic than it does to questions an agency’s steps to protect a building that was already identified as protected under CEQA.

In this instance, the supreme court decides that the review conducted by the City of the buildings historical value was sufficient. It said that the additional cost of an EIR wasn’t necessary. The supreme court noted in its decision that the City had failed on at least 3 occassions to set-up a historic district that included the two (2) homes and that it required the new townhouses to maintain the look and feel of the neighborhood in their architecture.

Unanswered Questions

After reading this case I had a number of unanswered questions:

  1. When did the City and developer realize there would be neighborhood opposition to the demolition of the two (2) homes? Was this early in the project?
  2. Did the City and developer work to identify neighborhood concerns? Did they consider restoring the homes as part of the redevelopment project? Were other mitigation measures considered?
  3. Why had the City failed to act on the previous efforts to set-up a downtown historic district? Was this because of community or landowner opposition? Or was it because of another reason? Do the citizens of Fresno see a real need to preserve historic places in their downtown, or are they more concerned about urban redevelopment and renewal?
  4. When did CRLS become concerned about the preservation of these two (2) homes? Did they make any effort to protect and restore the homes before the redevelopment project was proposed? Or did they only become active after the project became public? Where they involved in previous efforts to establish a historic district in this part of Fresno?
  5. Why did the City of Fresno fail to property provide notice about the demolition of the buildings? Why did they delegate approval of the environmental review to a body that wasn’t authorized? Was this because of ignorance about the law or was it part of an intentional effort by some within city government to speed the project through the approval process?
  6. How were the preservation and identification of historical resources handled in the tentative map conditions of approval for this project, if at all?


There are lessons in this case for land professionals at public agencies, for land professionals working with developers, and for citizens interested in historical preservation.

Public Agencies:
If you are going to work with a land developer on an urban infill project, be aware of the historical preservation issues that can impact your project. Work with community groups and members of the neighborhood to identify concerns early on in the project planning process. (This will allow your developer to adapt his project to address community concerns.) CEQA can be used to challenge an urban infill project later on. Even if your agency wins this CEQA project, it will cost time and money and will deter development of other infill projects.

Take good documentation on your agency’s steps to identify and catalog the condition of historical resources in a project area. This documentation could be key to proving your agency met the requirements of CEQA.

Make sure you follow the requirements of CEQA law and regulation. That includes taking the proper steps for CEQA notification to the public and making sure the CEQA review process is conducted properly. Understand who in your agency has the authority to perform and approve CEQA reviews. If the authorized body (like the City Council) is approving a review done by others in the agency, make sure its review is sufficiently independent, and document this.

Land Developers:
Urban infill development has plenty of challenges. Don’t let a CEQA quagmire be one of them. Work with the public agency, community groups, and neighborhood early in the project planning process to identify historic resources in the area of your project. Determine how you can work to protect and restore those resources. Successful community outreach will result in a successful project (without CEQA challenges) and a good reputation for your company. It will make your next urban infill project easier.

Citizens for Historic Preservation:
Don’t wait for a project approval to protect historic resources. Be proactive. Work with your local agency, other community groups, and members of the neighborhood to identify, protect, and restore historic resources. If the two (2) homes in this case had been in better condition at the time of the project, or had already been in a historic district, the result of the court’s decision may have been very different.

Article: California Supremes On Land and Water – Ehrlich Versus The City of Culver City

This article is also available with graphics as a PDF.

Article Introduction

In this second article we are going to review the case Ehrlich Versus the City of Culver City. This case considers the legality of a development impact fee imposed as a permit condition on a property owner in Culver City who wanted to convert a private tennis club into a high-density residential development.


1973: Ehrlich acquires a vacant 2.4 acre lot on Overland Avenue in Colver City and obtains city approval to develop the site as a private tennis club. The city amends its zoning and general plan to permit this land use.

1974: A report by city planning officials recommends approval of the development permit for the private tennis club because of the need for tennis facilities in the city.

1975 to 1991: Ehrlich operates a private tennis club on the 2.4 acre lot.

1981: Ehrlich makes an application to the city for a land use regulation change that will allow him to construct an office building on the 2.4 acre parcel. The city planning commission denies his application because of the need for a sports and tennis club in the city. The application is withdrawn.

1981 to 1988: Ehrlich continues to operate a private tennis club on the 2.4 acre lot.

1988: Ehrlich closes the tennis club. He applies to the city for a general plan amendment, zoning change, and specific plan amendment to allow for the construction of a 30 unit condo complex valued at $10,000,000.

1988: The city expresses an interest in acquiring the 2.4 acres for operation as a public sports facility.

1989: The city decides not to purchase the 2.4 parcel from Ehrlich because it lacks the funds to run a public sports facility at the site. The city council denies the application for land use regulation change on the parcel and denies him the ability to construct the condo complex project based on concerns over the loss of the recreational facility in the community.

1989: Ehrlich obtains a demolition permit, removes the buildings and tennis courts, and donates the tennis equipment (lights, lockers, nets) to the city.

1989: The city grants approval for the condo complex project, but requires Ehrlich to pay a fee of $280,000 as a condition of development. The fee is based on a study that indicates it will cost $280,000 to replace the tennis courts with a public sports facility at another location in the city.

2007: Ehrlich agrees to pay the fee under protest.

????: The trial court rules the $280,000 fee was illegal.

????: The appeals court rules the $280,000 fee was legal.

????: Ehrlich appeals to the California Supreme Court.

Important Facts

  1. Ehrlich operated the tennis sport facility at a financial loss for several years before closing it.
  2. The development fee was only imposed as a condition on the development of the 2.4 acre parcel owned by Ehrlich. Surrounding parcels of similar size did not have the same type of fee imposed.
  3. The tennis club replaced by the condo project was privately funded and operated.

Key Legal Issues

There are two (2) key legal issues in this case that interest us:

  1. Did the protest of payment of the development fee by Ehrlich meet the requirements of the California Mitigation Fee Act?
  2. Did the imposition of the $280,000 development fee by the city on the condo complex project meet the requirements for public taking of land required by the United States Constitution and the California Mitigation Fee Act? Did it need to meet these requirements?

Important Legal Background and Context

Before we consider the California Supreme Court’s decision in this case, we should review some legal background discussed by the court. The first is the Mitigation Fee Act. The second is the standard of review of property taking by the government as defined by the cases Nolan and Dolan. The court reviewed the imposition of the development fee in this case in light of the standards defined by both the California Mitigation Fee Act these two (2) cases.

The Mitigation Fee Act
The California Mitigation Fee Act was passed by the California Legislature after the land development community expressed concern about the tendency of local government agencies to impose development fees unrelated to the development taking place. The Act took effect on January 1, 1989. It accomplished two (2) main tasks. The first was to define a set of procedures for protesting fees and other charges imposed by a local government agency on a land development project. The second was to define a standard against which local government charges on a land development project would be measured. This standard requires a “reasonable relationship” between the use of a development fee and the amount of a development fee with the type of development on which the fee is imposed.

Nolan and Dolan Court Cases
In 1987 the US Supreme Court considered the Case of Nolan Versus the California Coastal Commission. In this decision the US Supreme Court determined that a government agency could demand an easement as a condition of a development permit without providing the land owner with monetary compensation. However, the government agency had to demonstrate that its demand for the easement met certain requirements defined in the decision. In 1994 the US Supreme Court further clarified these requirements in the case Dolan Versus the City of Tigard. In the Dolan case the US Supreme Court determined that the condition imposed by a local government agency on a development project had to be “roughly proportional” in both its type and extent to the impact of the proposed development on which it was imposed. Both of these cases further clarified the means by which the court would determine if the “takings” clause of the Fifth Amendment to the US Consitution had been violated by a government agency when imposing a condition on a development project.

In our current case, the California Supreme Court would determine if the City of Culver City had violated (1) the standards in the Mitigation Fee Act and (2) the takings clause of the Fifth Amendment in view of the Nolan and Dolan cases.

The Court’s Decision

Issue #1:
The court first considers this question:
Did the protest of payment of the development fee by Ehrlich meet the requirements of the California Mitigation Fee Act?
The court determines that Ehrlich did comply with the requirements of the California Mitigation Fee Act in this case. Why is that?

  1. Ehrlich filed the required written protest to the development fee.
  2. Ehrlich paid the fee under protest.

Issue #2:
The court then considers this question:
Did the imposition of the $280,000 development fee by the city on the condo complex project meet the requirements for public taking of land required by the United States Constitution and the California Mitigation Fee Act?

To answer this question, the court must examine the development fee in two (2) aspects. The first is the relationship between the fee imposed and the type of development. The second is the magnitude of the fee in relation to the impact of the development.

The court determines that the imposition of the $280,000 development fee did meet the requirements of the United States Constitution and the California Mitigation Act for the first element, but not for the second.
The court gives this reason for its determination that the $280,000 development fee met the reasonable relationship element of the takings requirements:

The rezoning of the subject parcel from recreational uses to other uses did have an impact on public access to recreation facilities, even though the club was privately owned and operated. In its decision the court said: “Although privately operated, plaintiff’s health club was a business establishment, accessible to the public on payment of a membership fee. The opportunity of Culver City residents to use such private recreational facilities created a public benefit by enlarging the availability of such facilities. Without such a facility, residents would have to travel farther, wait longer, and put up with other inconveniences and restricted choices in their recreational pursuits. Thus, the fact that a recreational facility is privately rather than publicly owned does not erase its value to the public.”

The court gives this reason for its determination that he $280,000 development fee failed to meet the reasonable magnitude element of the takings requirements:

  1. The city couldn’t claim the loss of the full value of the tennis facilities on the subject parcel. This is because the existing tennis club was a private club, not funded by the public. Any new tennis club that continued operation on the parcel would have also been a commercial business paid for by the private fees of its members.
  2. The city could be compensated for the loss of a parcel zoned for recreation, but not of the recreation facility itself. This cost could be calculated by determining the approximate administrative burden to rezone another similar parcel in the city to recreational use or the costs for the city to attract another private recreational development. The California Supreme Court determined in this case that this cost wouldn’t be the $280,000 the City sought (and obtained) from the developer.

Unanswered Questions

After reading this case I had a couple of unanswered questions:

  1. If there was a need for additional recreational facilities in the city, why wasn’t this need addressed in a broader and more equitable way? For example: A general development fee or tax on all parcels to support recreational opportunities. Was this because of opposition from city citizens to this additional tax?
  2. How would the City calculate the allowed development fee based on the cost to rezone another parcel or to attract another private residential development? How would this cost have compared to the $280,000 development fee it originally chose to impose? Would that calculation stand up to the scrutiny of the court?


There are lessons in this case for both land development professionals, public agency staff, and citizens interested in expanding recreational opportunities in their community.

Public Agencies:
Extra caution is needed when imposing a development fee on a specific, individual project. The California Supreme Court indicated in this case that a development fee imposed on a specific project will be subject to additional scrutiny in the court. It is easier to justify a development fee imposed by a local agency in a broad manner, across multiple projects.

Land Developers:
In this case the California Supreme Court takes a clear stand against what it identifies as “leveraging” by public agencies. This term is used to describe the enforcement of permit conditions against an individual project to achieve goals unrelated to the specific impacts of the individual project. When analyzing permit conditions imposed on your development project, consider if the permit condition is broadly imposed, or if your project is being singled out.

Although the California Supreme Court recognized in this case that there was a legitimate need to provide recreation opportunities in a community, it didn’t approve of forcing a single development project to fund these opportunties. This was true even in a case like this, when the development project involved the removal of a private recreation center. If additional parks, sports centers, or other recreational facilities are a legitimate need in your community, seek ways to fund additional recreational projects broadly, through widely applied fees, taxes, or other funding mechanisms. Avoid penalizing a single developer or development project to pay for a public recreation project if there isn’t a very clear relationship between the recreation project being funded and the direct impacts of the development project.

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