Requiring a landowner to provide an excess amount of infrastructure capacity - and reimbursing that landowner later with other county funds - does not fall under the state's conflict of interest laws if a county supervisor is one of the landowners, according to a new opinion from the state attorney general's office.
According to the attorney general, such a requirement - permitted under the state's Subdivision Map Act - is not a contract between the developer and the landowners and therefore does not fall under Government Code §1090, which prohibits public officers from being financially interested in contracts made by the boards to which they belong. The AG's opinion was requested by San Benito County in connection with a proposed agreement involving excess storm drain capacity.
Under Government Code §66485-66487 - part of the Subdivision Map Act - local governments can require landowners to provide excess infrastructure capacity and then pay the landowners back later (often with funds provided by nearby landowners wishing to develop). "If a local ordinance imposes the requirement authorized by section 66485 and the local agency determines that the supplemental capacity is needed to benefit property not within the subdivision, the subdivider must provide the supplemental capacity as a condition for obtaining approval of the subdivision map," noted Deputy Attorney General Gregory Gonot in the opniion. "Under the agreement, the subdivider must be reimbursed for the expense of constructing the supplemental capacity for the benefit of later subdivisions and uses of adjacent property."
However, Gonot added: "Even in the reimbursement could be viewed as a benefit, neither the subdivider nor the local agency has any choice in the matter; once the local agency orders the supplemental capacity, it is required by law to provide for reimbursement through an agreement." He said the situation is analogous to the situation laid out to the eminent domain procedure included in Santa Clara Valley Water District v. Gross, 200 Cal.App.3d 1362 (1988). In that case, the appellate court concluded that participating in a process required by statute does not constitute the making of a contract under §1090 even if a benefit may be conferred. "Similarly, here, the supplemental capacity reimbursement procedure for subdivisions is mandated by statute," Gonot wrote. "The reimbursement amount is dictated by the costs of construction; it is not subject to negotiation so as to cause an appearance of impropriety. The supervisor in question may only recover his actual costs - no more, no less - in being required to benefit property located outside the subdivision.
Attorney General's Opinion 98-1001, 98 C.D.O.S. 8739 (issued November 25, 1998).
Contact: Gregory L. Gonot, Deputy Attorney General, ((916) 324-7860.
The Second District Court of Appeal has reaffirmed its decision to overturn a $2 million takings judgment against the Coastal Commission - even after reconsidering the case in light of a California Supreme Court ruling in another coastal case.
However, the property owners' lawyers appear determined to fight on to the California Supreme Court on the very issue that caused the remand in the first place. Lawyer Thomas Banks said his client, Peggy Ann Buckley, plans to appeal the case to the Calif...
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"There is no substantial evidence in the administrative record to support a fair argument that the county's adoption of the summary plan and siting element may have a significant environmental impact, and thus the county did not ...
The California Supreme Court has agreed to review an appellate court decision that ruled the City of Los Angeles should not be held liable for landslide-related damage to a property in the Pacific Palisades even though it violated municipal code requirements.
In Haggis v. City of Los Angeles, Supreme Court Docket No. S074364, property owner Paul Haggis argued that his house was damaged by a landslide triggered in the 1994 Northridge earthquake, and later condemned and demolished by the city.
After t...
The City of South San Francisco isn't required to compensate a property owner for the city's own leasehold interest in the property - as well as the value of the property itself - in an eminent domain action, the First District Court of Appeal has ruled.
The case involves South San Francisco's decision to take the property of the Mayer family by eminent domain - property that the city had already leased from the Mayers for use as a city conference center.
The Mayers leased the property to the city ...
The U.S. Forest Service should have prepared an environmental impact statement before awarding a series of contracts for timber salvage sales in the Umatilla National Forest in eastern Oregon, the Ninth U.S. Circuit Court of Appeals has ruled.
The Ninth Circuit's ruling - the latest in a long series of decisions on Forest Service operations in the Northwest - reversed the ruling of U.S. District Court Judge Ann Aiken, who had granted summary judgment to the Forest Service against the claims brought by...
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The attorney for opponent Forster-Gill, Inc., argued that a telephone call to the court clerk within the 90-day period was adequate, but the appellate court disagreed, ruling that the law "plainly contemplates a written request that can be, and is, filed with the court."
A state appellate court has upheld the California Coastal Commission's denial of a development permit for a small mixed-use project in Morro Bay.
The court rejected developer Dan Reddell's arguments that the commission violated his due process and equal protection rights, and that its decision was a regulatory taking of property. Instead, the Second District Court of Appeal ruled that substantial evidence supported the commission's finding that Reddell's project was inconsistent with Morro Bay's local coastal plan (LCP).
A state appellate court has thrown out an Inyo County general plan amendment that the county argued was nothing more than a clarification of a longstanding policy.
A unanimous three-judge panel of the Fourth District Court of Appeal, Division Two, concluded that the amendment was more than a mere clarification and that the county should have completed an environmental impact report before approving the amendment.
A City of West Hollywood moratorium on new multi-family housing development has been declared invalid by the Second District Court of Appeal. The court ruled that the city had not made required findings for the moratorium.
The Ninth U.S. Circuit Court of Appeals has set back a plan to develop the country's largest solid waste landfill near Joshua Tree National Park. The court ruled that the environmental analysis for the project was inadequate and that the Bureau of Land Management undervalued land it would provide to the landfill developer.
A state appellate court has struck down a California Environmental Quality Act exemption for an air district rule permitting new power plants to offset emissions by paving roads. The court found that the Mojave Desert Air Quality Management District did not have adequate evidence to support its finding that the rule could not have a negative impact on the environment.
A developer is not entitled to reimbursement or damages from a consultant hired by a local government to complete an environmental impact report, the First District Court of Appeal has ruled. Even when the consultant fails to complete an EIR in a timely manner, the consultant owes no contractual duty to the developer that paid for the consultant, the court concluded.
