Michael M. Berger

Senior Counsel Manatt, Phelps & Phillips LLP

2049 Century Park East
Los Angeles , CA 90067

Phone: (310) 312-4185

Fax: (310) 996-6968

Email: mmberger@manatt.com

USC Law School

Michael M. Berger is senior counsel at Manatt, Phelps & Phillips LLP, where he is co-chair of the Appellate Practice Group. He has argued four takings cases in the U.S. Supreme Court.

There has been a bit of an uproar lately about a ruling by a Los Angeles Superior Court judge allowing a 67-unit apartment building to be built on a lot in an area both zoned for and occupied by single-family homes. Say what? Can it be true that someone could throw up a 67-unit building next door to my modest home in a quiet neighborhood of modest homes?

At this point, we had better stop for a refresher course in acronyms. Some of you may be familiar with one that has been around for many years: NIMBY, meaning "not in my back yard." It is the title generally hung on people who do not want certain types of development built near them, i.e., the developments might be objectively fine, but not in their back yards. More recently, however, a counterpart movement has emerged that is concerned with the lack of available housing and wants to see additional housing in otherwise unconventional areas, which calls itself YIMBY, or "yes in my back yard."

What does all this have to do with anything? Planning and zoning. Generally dreadfully dull stuff that takes place in the basements of governmental buildings and is attended by acolytes who rarely see the light of day. Each city is required by the state to have a general plan. That plan has many required parts, and was likened by a California appellate court more than half-a-century ago to a "constitution" for a city's future development. O'Loane v. O'Rourke, 231 Cal.App.2d 774, 782 (1965); see also Lesher Communications, Inc. v. City of Walnut Creek, 52 Cal.3d 531, 540 (1990).

One of the tools used to bring a general plan to life is zoning, by which broad planning designations (e.g., "commercial") are made more specific at local levels. The legislature has long required that all zoning be "consistent" with the general plan. Govt. Code § 65860.

But cities have become adept at evading such consistency requirements or finding loopholes through which to escape them. The legislature has repeatedly sought to plug those loopholes and tighten the requirements in the planning and zoning laws. It is no secret that California has fallen short in producing an adequate housing supply for many years. Indeed, recent legislation found that California is in the midst of a "housing crisis" that is "partially caused by activities and policies of many local governments ..." Govt. Code § 65589.5(a)(1)(B). Nor is it any secret that the legislature has sought to put some restraints on local government (which may have been overly solicitous to some of the local NIMBY constituents).

Enter Yes in My Backyard, et al. v. City of Los Angeles, Los Angeles Superior Court case no. 21STCP03883. The case involved a lot in Woodland Hills located within the Canoga Park-Winnetka-Woodland Hills-West Hills Community Plan area. That plan designates the property as "Limited Commercial," a designation calling for commercial and multi-family residential use. The problem at the heart of the case is that, in spite of that general plan designation, the city zoned the property RA-1, which prohibits both commercial development and multi-family housing and allows no more than one detached dwelling unit per lot.

A bit of a conundrum, eh? The owner of one of those lots took the general plan at its word and, after appropriating a density bonus for designating some of the proposed units for low and very low income residents, sought permission to construct 67 units on a single family lot. City functionaries rebelled. Noting the conflict between the zoning and the proposed development, they denied the proposal.

The owner, along with an organization calling itself YIMBY, sued. The plaintiffs tied together all the recent anti-loophole legislation and the other legislation aimed at tying the hands of local government (you have certainly seen the newspaper headlines about how the legislature was retaking some control over housing development) and asked the superior court to order the permit issued. The court issued a 42-page, single-spaced opinion that we don't have the time or space to go into in detail. However, we can highlight salient spots and try to consider some of the consequences.

The key statute is called the Housing Accountability Act, Govt. Code § 65589.5 et seq. Part of it (declaring a "housing crisis" at least "partially caused" by local government) is quoted above. Another key provision reversed a standing rule that accorded deference to a city's interpretation of its own laws. Rather, the legislature decided that the true manner of review should rely on what a "reasonable person" would believe. Govt. Code § 65589.5(f)(4). So the question here is whether a reasonable person, rather than a city bureaucracy accustomed to essentially making up the rules as it goes along, would conclude that when the overriding legislation requires "consistency" between the general plan and the zoning, the general plan prevails. The Density Bonus Law confirms the consistency rule, providing that "[i]f the density allowed under the zoning ordinance is inconsistent with the density allowed under the land use element of the general plan, the general plan density shall prevail." Govt. Code § 65919(o)(5). The trial judge concluded that "[n]o reasonable person would conclude that a zoning district is consistent with the general plan where the zoning prohibits the two principal categories of uses specifically authorized by the general plan."

It is hardly "man bites dog" news when a court reads a statute and concludes that the legislature actually meant what it said. In this case, the court merely looked at a statute that said that the zoning must be "consistent" with the general plan and that, in the event of conflict, the plan (which is superior in the hierarchy) prevails over the zoning, concluding that zoning which prohibits commercial and multi-family use cannot be "consistent" with a general plan which designates property for commercial use.

This is hardly the City of LA's first rodeo. There is much discussion in the briefing and the court's opinion about a similar contretemps involving development at Warner Ridge. Warner Ridge Associates v. City of Los Angeles, 3 Cal.Rptr.2d 306 (1991). There, the trial court did exactly what this one did and held that zoning that prohibits commercial use in a commercially planned area by zoning it for single family residential use is not consistent with the general plan. That was confirmed on appeal and the case eventually settled. Even though the appellate opinion was depublished, the plaintiffs in YIMBY claimed collateral estoppel (as the case involved the same issue and the same defendant). The trial court agreed. For a full, contemporaneous discussion of that case see Robert I. McMurry & Gideon Kanner, "Shootout at Warner Ridge," LA Lawyer, Feb. 1995, p. 24.

Well, so much for the developer. What about the neighbors? Surely, they have an interest in what goes on across the fence from their modest homes. Can they be compelled, for the good of society (as determined by local government), to endure living next to something that looks nothing at all like the neighborhood they moved into? There are a couple of legal theories worth looking at, and we suspect that - if this judgment is sustained on appeal by a reviewing court that believes it understands how to read plain English (I am reminded of the late Senator Sam Ervin who, during the Watergate break-in hearings, proclaimed that "English is mah mother tongue; Ah have read the statyoote and heah is what it says") - they will find their way to court.

As this is nominally a column about takings law, we should probably begin there. Could one say that placing such a seemingly out-of-place structure in a neighborhood of detached single-family homes is a taking of a property interest from at least those who are closest to it? After all, the U.S. Supreme Court has become enamored of viewing property not as a mere thing, but as a group of rights (or a bundle of sticks, as your old property professor may have said), and the taking of any of those rights/sticks from the bundle is a taking of property within the meaning of the constitution. See, most recently, Cedar Point Nursery v. Hassid, 141 S.Ct. 2063 (2021). Could, say, the placement of an apartment building next door be said to have taken the neighbor's right to a view? Or the right to peaceful enjoyment?

Various kinds of intangible intrusions have been found sufficient to establish a taking, e.g., Varjabedian v. City of Madera, 20 Cal.3d 285 (1977) (odors), Harding v. State of California ex rel. Dept. of Transportation, 159 Cal.App.3d 359 (1984) (noise, dust and debris from a freeway embankment), Aaron v. City of Los Angeles, 40 Cal.App.3d 471 (1974) (aircraft noise). Why not view? Unfortunately, California courts have held that a landowner has no right to an unobstructed view over adjoining property. Boxer v. City of Beverly Hills, 246 Cal.App.4th 1212 (2016); Katcher v. Home Sav. & Loan Ass'n, 245 Cal.App.2d 425 (1966).

A more promising theory might be nuisance. After all, under Civil Code §3479, "Anything which is injurious to health ... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property ... is a nuisance." That statute is the one that was foundationally employed to render airport operators liable for the adverse by-products of airport operation. See Nestle v. City of Santa Monica, 6 Cal.3d 920 (1972); Greater Westchester Homeowners Assn. v. City of Los Angeles, 26 Cal.3d 86 (1979). A possible defense that we can elaborate on at a later date is that Civ. Code §3482 provides broadly that "[n]othing which is done or maintained under the express authority of a statute can be deemed a nuisance." Thus, one might expect the defendant in a nuisance action to argue that construction of the apartment tower in a single-family zone was authorized by statute. The defense didn't work in any of the cases cited above. The key to the statute is the word "express." In order to operate as a defense, courts have long held that the manner of execution must be "expressly" authorized, e.g., Hassell v. San Francisco, 11 Cal.2d 168 (1938). In this context, the issue will be whether the general plan's designation is sufficiently specific to immunize an apartment tower next door despite its obvious conflict with Civ. Code §3479's protection against "[a]nything which is ... offensive to the senses ... so as to interfere with the comfortable enjoyment of life or property ....". We shall undoubtedly see.

We will no doubt return to these intertwined issues in the future. The relationships among developers, regulators, and neighbors are complex enough to occupy a standard law review article. We will need to examine them in pieces in this format.