Construction Litigation and City Zoning Restrictions News in California

For my second discussion in this series about recent cases dealing with real estate law in California decided by the California Court of Appeal I wanted to mention these two decisions from the Fourth District, Division Three, and Fifth District in California—one involving construction litigation and the other involving city zoning restrictions.

YOU SPOT ZONE IT, YOU BUY IT.  Here the City of San Clemente imposed an RVL, (residential, very low land restriction), on undeveloped property, which limited parcels to one dwelling per 20 acres.  At trial, the court determined the city engaged in spot zoning and issued a writ of mandate, giving the City the choice of either complying with the writ, or paying damages for the value of the property taken by the RVL restrictions.  The appellate court affirmed, stating the City’s actions were arbitrary and capricious.  Avenida San Juan Partnership v. City of San Clemente  (Cal. App. Fourth Dist., Div. 3;  December 14, 2011) 201 Cal.App.4th 1256.

MUST FOLLOW CONTRACTUAL ALTERNATIVE TO RIGHT TO REPAIR ACT.  Plaintiffs, owners of 32 homes built by a developer, brought a construction defect action.  Civil Code sections 895 through 945.5, the Right to Repair Act, prescribe non-adversarial pre-litigation procedures a homeowner must initiate prior to bringing a civil action against a builder for alleged construction deficiencies.  Plaintiffs contended the developer did not give the required notice under section 912.  The trial court ordered plaintiffs to observe certain contractual procedures.  The appellate court denied the plaintiff’s writ, finding the developer’s failure to comply with section 912 did not bar enforcement of its alternative contractual non-adversarial procedures.  Baeza v. Superior Court (Castle & Cooke California, Inc.) (Cal. App. Fifth Dist.;  December 14, 2011) 201 Cal.App.4th 1214.