Coastal Commission

Before any landowner can build on the California coast, he or she typically must obtain a development permit from the local jurisdiction, which can then be appealed to the state Coastal Commission. As any landowner who has attempted this knows, the process in California is exceedingly difficult.

In many cases, this difficulty is caused by the Coastal Commission exceeding its statutory jurisdiction and attempting to impose constraints on the property even though it has no legal authority to do so.

Tom Roth has represented scores of property owners in court victories against Coastal Commission abuse.

In 2008, he argued a case before the First District Court of Appeal in San Francisco which resulted in the Court overturning a Coastal Commission denial of a hotel developer’s mixed use resort proposal on the Monterey Peninsula. Tom argued that the Commission had unlawfully declared the entire property site to be “environmentally sensitive habitat area,” even though in fact it was a former sand mine. The Court agreed and published the opinion in Security National Guaranty v. California Coastal Commission.

In another case, Tom represented nearly 100 homeowners in an enforcement action brought against each of them by the Commission. Tom convinced a trial court judge that for eight separate legal reasons, the Commission had no authority to extend affordable housing restrictions on their properties. As a result, the case settled, the Commission dropped the enforcement actions, and the restrictions were lifted.

Tom also represented the home building industry as amicus in a series of lawsuits against the Coastal Commission in the “Marine Forests” litigation which alleged that the Commission was unconstitutional. The Court of Appeal agreed that the Commission was unconstitutional, but emergency legislation in Sacramento purporting to fix the problem convinced the California Supreme Court otherwise.

Endangered Species

Tom Roth has represented clients in all aspects of the federal and state Endangered Species Acts, including litigation, Habitat Conservation Plans, Section 7 consultations, petitions to remove land from critical habitat designations, petitions to downlist and delist endangered species, and strategies to address “fully protected species.” Below are examples of the types of endangered species work that Tom has undertaken in recent years.

Tom successfully developed and implemented a comprehensive strategy for challenging the designation of more than 4 million acres of critical habitat for the California red-legged frog, resulting in the withdrawal of the rule by the U.S. Fish and Wildlife Service.

Separately, Tom has successfully petitioned the federal government for removal of private property throughout California from proposed and existing critical habitat for listed plant and animal species.

In addition to actions to remove critical habitat, Tom also has helped clients push the feds and California to remove recovered species from the endangered species list. In 2009, the firm negotiated a settlement with the U.S. Fish and Wildlife Service for a schedule to remove the California Brown Pelican from the endangered list, and the Service delisted the species within a matter of months after the settlement.

Similarly, Tom represented a nonprofit in litigation which resulted in the agreement of a schedule for the status review of numerous species, many of which needed to be downlisted or removed from the endangered species list.

The firm also assists clients with development project permitting requirements complicated by the alleged presence of endangered species. Recently, Tom developed an ESA section 7/NEPA permitting strategy to overcome opposition by the U.S. Fish & Wildlife Service and the Federal Aviation Administration for an on-airport commercial development project.

Tom routinely represents several clients in the negotiation of both site specific and regional Habitat Conservation Plans.

Finally, Mr. Roth negotiated a settlement for a 500-unit housing development in the Bay Area, which had been the subject of a lawsuit in federal court by an environmental group for alleged “take” of an endangered species.

Eminent Domain

Eminent Domain (or condemnation) is the governmental power to take private property for a necessary public purpose. Federal, state, and local governments and their agencies, and certain public utilities, have the power to condemn private property. Governments exercise this power directly by filing a lawsuit to take property.

The federal and state constitution require the payment of “just compensation” for the property and the law also may require the payment of “severance” damages for impacts to other property or a business.

Mr. Roth has represented private landowners in eminent domain lawsuits, to help ensure that “just compensation” is paid. In one recent case, Mr. Roth negotiated a settlement that increased a City’s initial offfer of $300,000 to $1.6 million, plus financial payments from other defendants.

Property Rights

The explosion of local, state and federal laws during the last 40 years has resulted in unprecedented regulation of private property, especially in California. In some cases, the Courts are starting to agree that this level of regulation results in a “taking” by the government, thus triggering the constitutional requirement to pay “just compensation” for the property.

To combat these efforts, Tom Roth represents land owners in lawsuits against the government for a “regulatory taking” or “inverse condemnation” to compel the government to pay fair market value for the property.

In 2014, Tom successfully represented a landowner in the settlement of a $250 million lawsuit against the State of California for a regulatory taking.

During the past 20 years, Tom Roth has counseled dozens of clients dealing with National Environmental Policy Act (NEPA) and California Environmental Quality Act (CEQA) compliance issues and litigation.

He served as a lead attorney in guiding the developer of the proposed largest landfill (in the world) through the joint NEPA/CEQA EIS/EIR process, and he successfully defended that study in a challenge before the Department of Interior Board of Land Appeals in Washington, D.C.

He also represented the developer of a large, cutting-edge hotel “eco-resort” in the CEQA update process, and has represented other developers building large commercial projects on CEQA mitigation compliance issues.

Tom’s experience on NEPA and CEQA is not limited to defending projects — he also has represented local governments and communities in challenging transportation projects on grounds that a federal agency violated NEPA.

The firm represents clients in all aspects of land use planning and litigation including challenges to general plans, general plan internal inconsistency, challenges to planning requirements and regulations, zoning disputes, mobile home park condo conversions, allegations of non-compliance, and jurisdictional disputes between land use agencies.

The firm represented several businesses and individuals in successfully stopping the establishment of a proposed medical marijuana facility in the City of South San Francisco that would have likely resulted in the client’s business losing a national anchor tenant in its office building.

The firm has also assisted several clients in establishing that their coastal property came from a Mexican land grant, which means that the beach on their property is not subject to the state’s public trust. These property owners have the legal right to exclude the public from their beach all the way to the water.

It is now commonplace for local governments to impose “development impact fees” on new housing built within their jurisdictions. These fees add significantly to the cost of housing.

Historically, local jurisdictions have tried to saddle new homes with paying for existing deficiencies in infrastructure such as roads, sewers and parks. The California Legislature expressly made that illegal by adopting a law called the Mitigation Fee Act, which lays down some rules on what impact fees can be imposed on new housing in the state. The Mitigation Fee Act was passed by the Legislature in response to concerns among developers that local agencies were imposing development fees for purposes unrelated to development projects.

Local jurisdictions can use general taxes or bonds to pay for bringing infrastructure up to par, but it can’t place that burden on new homes.

In order to evade these restrictions, local governments sometimes try accounting tricks. The Law Offices of Thomas D. Roth has been successful in ferreting out these tricks and obtaining court orders invalidating more than $39 million in impact fees.

In the published court of appeal opinion of Boatworks, LLC v. City of Alameda (2019) 35 Cal.App.5th 290 (brought by the Law Offices of Thomas D. Roth), the Court ruled that the City of Alameda violated the Mitigation Fee Act by attempting to charge developers for land for future parks when the City had obtained the land for free from the Navy. Since the City had paid nothing for the land, it was not reasonable to turn around and charge new homes tens of millions of dollars for the land.

The Law Offices of Thomas D. Roth also has successfully represented home builders in negotiations to reduce proposed development impact fees that had been promulgated based on questionable practices employed by local jurisdiction.

Sometimes through use property becomes contaminated with hazardous substances which require clean up. Unfortunately, there now exists a dizzying array of federal and state laws that don’t mesh well together.

Tom represents property owners faced with this challenge by helping them understand the numerous statutes governing this process, including more obscure laws such as the Polanco Redevelopment Act.

Tom currently represents a property owner in litigation involving hazardous substance clean up, and historically he has assisted both private and public owners in internal and due diligence investigations of alleged soil and groundwater contamination.

Tom Roth has represented private and public entities in litigation involving Clean Air Act and Clean Water Act claims.

In the 1990s, Tom represented a client in one of the first lawsuits challenging the U.S. Environmental Protection Agency’s application of its “general conformity” rules as they applied to airports. The case settled while pending before the Ninth Circuit Court of Appeals in San Francisco.

Tom also counsels clients on whether air quality management districts have authority to promulgate new air quality rules.

With respect to the Clean Water Act, Tom has represented entities charged with water quality violations.

Tom also has successfully represented a private property owner in obtaining priority groundwater rights in a basin adjudication in Monterey County.

The firm also represents clients in real property disputes with other landowners.

Recent cases include claims for fraud, concealment, nuisance, breach of contract, breach of covenants, violations of CC&Rs, misleading advertising and breach of easement.

The firm has represented more than 150 owners subject to affordable housing restrictions placed on their homes.

In one case, the California Coastal Commission brought an enforcement action against 90 owners of affordable housing. Tom Roth developed and pursued a legal defense strategy that resulted in the trial court ruling in favor of the homeowners in 8 out of 8 issues. The Coastal Commission quickly settled the case by agreeing to drop its enforcement action, allowing the restrictions to expire immediately.

In another case, Mr. Roth represented 40 affordable home owners in a fraud action against the original developer, arguing that the developers’ sales agents had misled the buyers at the time of purchase on how the affordable pricing mechanism worked. The case settled successfully without going to trial.

The possibility that your property contains “wetlands” means that you will be subject to a lengthy and often expensive process for obtaining permits to build on your land.

The firm helps clients through all aspects of this maze — from the initial determination of whether wetlands exist, and, if so, where the boundary is, to “alternatives” analysis, to developing a mitigation plan, to finally obtaining a “section 404″ dredge and fill” permit.