September 2006

In Ailanto Properties, Inc. v. City of Half Moon Bay, the First Appellate District clarified two issues of longstanding ambiguity under the Subdivision Map Act. First, the Court addressed the issue of the amount of time that the life of a vesting tentative map may be extended due to development moratoria. Government Code section 66452.6(b)(1) extends the life of a vesting tentative map for any period of time during which a development moratorium is in existence, but states that "the length of the moratorium shall not exceed five years." In this case, the City of Half Moon Bay approved a vesting tentative map for the developer's project, but subsequently imposed a sewer moratorium that lasted eight years. The Court held that the statute limits to five years the length of any moratorium-related tolling of the expiration of a tentative map.

The second issue under the Subdivision Map Act was whether the developer's filing of a phased final map with the city engineer constituted an effective filing entitling the developer to a 36-month extension of its vesting tentative map under Government Code section 66452.6(a)(1), where the phased final map did not conform to the requirements of the vesting tentative map and was not in a form that could be approved by the City. The Court held that section 66452.6(a)(1) was unambiguous, and that delivery of an admittedly nonconforming phased final map to the city engineer does not extend the life of the tentative map.

To read the decision, click here.

AB 2987 (Nunez/Levine) passed both the Assembly and Senate, and heads to the Governor for approval. The official site for California legislative information has not yet been updated with the version of AB 2987 as passed, but check back here for updates.

AB 2987 enacts the Digital Infrastructure and Video Competition Act of 2006 and creates a new statewide franchise for cable and video service providers to be administered by the Public Utilities Commission. The bill provides that cities, counties, cities and counties, or joint powers authorities shall receive state franchise fees in exchange for the use of public rights-of-way for the delivery of video services. In addition, the bill provides that local entities may establish a fee to support public, educational and governmental (PEG) channel facilities.

Please join us for a Public Law Education Series presentation on Affordable Housing Financing and Developer Negotiations at our Oakland office on Thursday, September 28 or at our Los Angeles office on Monday, October 9.

The Governor has fifteen days left to sign or veto the bills passed by the Legislature prior to its adjournment on August 31. To date, a number of bills that are of interest to the California Special Districts Association (CSDA), have been signed into law by the Governor. The following summary of the bills was published by the CSDA Legislative Update.

Assembly Bill 3074 (Assembly Local Government Committee): This bill was signed into law on August 28, and reflects the Assembly Local Government Committee's annual omnibus legislation. It contained a number of technical amendments to various local government statutes.

Senate Bills 1122 & 1123 (Senate Local Government Committee): These bills were also signed into law by the Governor on August 28. These two bills are the Senate Local Government Committee's annual Validation Acts.

Senate Bill 1605 (Margett): Signed into law on August 28, this bill by Senator Bob Margett (R-Arcadia), involves public works contracts requiring the digging of trenches or other excavations that extend deeper than four feet below the surface. This bill requires the contractor to notify the local public entity in writing of any subsurface or latent physical conditions that differ from the conditions indicated by information about the site made available to bidders prior to the deadline for submitting bids.

Assembly Bill 2435 (Coto): This bill was signed into law on September 14. It was sponsored by the Santa Clara Valley Water District, and proposes numerous changes to the district's act.

Senate Bill 511 (Hollingsworth): This bill was signed by the Governor on September 14. The bill mandates that a county water authority prepare and submit, at its own expense, a report to the Legislature (not before January 1, 2008, and not later than January 1, 2009), pertaining to the implementation of the procedures governing the meetings and actions of standing committees of its board of directors that were adopted by that board in 2004 or 2005.

Senate Bill 1169 (Cox): This bill was also signed by the Governor on September 14. The bill amends the Municipal Utility District Act provisions relating to purchases of supplies.

For more information about these bills, please visit:

http://www.leginfo.ca.gov/bilinfo.html

The City of San Diego won a reversal on two inverse condemnation claims, reversing the $65.3 million dollar judgment against it . (Border Business Park, Inc. v. City of San Diego, Sept. 1 9, 2006, Fourth Appellate District, Div. Two, E035881).

Border Business Park is a real estate development company which was developing a business park in Otay Mesa (an unincorporated area in San Diego County annexed by the City). Border alleged two inverse condemnation claims against the City . The first was a "Klopping" claim alleging that unreasonable "pre-condemnation" actions taken by the public agency directly affect ed the landowner to its detriment . According to Border,  the City acted unreasonably by "announcing" it was considering developing an international airport in Otay Mesa which went directly through Border's ( and other land owner's) property. The second inverse condemnation claim alleged that the City substantially impaired access to the business park by diverting truck traffic in such a way that the traffic backed up so no one could drive in or out of the park. Border alleged the congestion was so bad it was affecting sales of the property by preventing access to or limiting the number of prospective tenants. The jury awarded Border a total of $94.5 million dollars -  $25.5 million in damages for the City's airport planning activities; $39.8 million for the truck traffic; and $29.2 million for the City's breach of the development agreement with Border.

The City filed a motion for new trial on all three claims. The trial court granted the City's motion on the issue of the breach of contract. The City then appealed the judgment. On Border's Klopping claim, the City argued that Border failed to present evidence of an announced intention to condemn the property, and that the claim, therefore, failed as a matter of law. The City also argued that Border, like numerous other land owners in the vicinity, did not suffer a "distinct or unique injury" as the law required. On Border's second inverse claim, the City argued that the evidence did not support Border's position of complete "gridlock" and virtually no access. Rather, the City argued that the evidence showed that traffic flowed, albeit slowly at times, and there was always at least one access to and from park.

The court of appeal reversed the judgment.  On Border's Klopping claim, the appellate court did not determine whether an announcement of an intent to condemn is required. But, the appellate court did agree with the City in holding that there was "no evidence that the airport proposal directly and specially affected Border, as opposed to the entire area of Otay Mesa within the proposed airport site...."  As to the second inverse claim (relating to the traffic congestion and affect on access), the appellate court found that the evidence failed "to show that there was ever a time when there was no access by means of at least one entrance to the park" and "interference with access which merely requires greater "circuity of travel" is not compensable."  Finally, the court upheld the lower court's decision granting the City's motion for a new trial on Border's breach of contract claim.

According to press reports, Border is planning to petition the California Supreme Court for review of the appellate court's decision.

F or more information about this case, please contact David Skinner at (510) 808-2000 or dskinner@meyersnave.com.

For more information regarding "Klopping" claims, see the seminal case, Klopping v. City of Whittier, 8 Cal.3d 39, 52 (1972).

Claudia J. Gorham, Eminent Domain Department

Authored by Assemblymember Lois Wolk (Davis, CA), AB 573 adds a new section to the California Civil Code which makes unenforceable contract clauses that require design professionals to defend and indemnify public agencies against liability claims. There are exceptions for claims that arise out of the negligence, recklessness, or willful misconduct of a design professional, defined as architects, engineers and land surveyors. This bill is currently awaiting signature or veto by Governor Schwarzenegger. For the full text of the bill, click here.

On September 20, 2006, Governor Schwarzenegger signed six bills into law in an effort to better protect Californians against sexual predators. Based on a press release from the Office of the Governor, the legislation will increase penalties for child rapists, child pornographers and Internet predators, creates a sex offender management board to help better track dangerous parolees, makes the use of GPS to monitor sex offenders a permanent program, requires registered sex offenders to disclose their registration status to prospective employers when applying for certain jobs and prohibits child molesters from employing minors. A summary of the bills follows:

Senate Bill 1128 by Senator Alquist (D-Santa Clara) enhances penalties and implements new laws for registered sex offenders, including punishing continuous child sexual abuse by an automatic 25-year-to-life prison sentence, making possession of pornography depicting children a felony in some cases, discouraging plea bargains for violent sex offenders, and including youth recreational facilities in addition to schools when restricting access for sex offenders. Among the bill's many provisions, it also requires every person required to register as a sex offender to be subject to assessment using the State-Authorized Risk Assessment Tool for Sex Offenders, a valuable tool widely recognized by experts and used by law enforcement.

Senate Bill 1178 by Senator Speier (D-Hillsborough) requires high-risk sex offenders (HRSOs) to be fitted with Global Positioning Satellite (GPS) devices and monitored by local law enforcement, making a successful pilot program a permanent tool for law enforcement to better track and catch sexual predators on parole who may be committing or planning subsequent crimes.

Assembly Bill 1015 by Assemblymembers Chu (D-Monterey Park) and Spitzer (R-Orange) creates the Sex Offender Management Board under the jurisdiction of the California Department of Corrections and Rehabilitation (CDCR). The Board will bring together the stakeholders in the management of sex offenders to assess the current practices in managing adult sex offenders under supervision, identify best practices and make recommendations on how to implement these changes.

Assembly Bill 2263 by Assemblymember Spitzer (R-Orange) requires registered sex offenders, applying for jobs that involve physical contact with children, to disclose their registration status to prospective employers.

Assembly Bill 1683 by Assemblymember Shirley Horton (R-Chula Vista) requires the Department of Mental Health (DMH), when contracting with an entity that performs monitoring and supervision of a conditionally released sexually violent predator (SVP), to provide the court with a copy of the contract and proposed treatment plan. It permits the court to order DMH to provide copies of the terms and conditions of treatment (except confidential medical information) to specified local law enforcement officials. The bill also prohibits DMH from modifying the terms and conditions of a conditionally released SVP's treatment without approval of the court.

Assembly Bill 1900 by Assemblymember Lieu (D-Torrance) prohibits registered sex offenders who committed crimes against children under the age of 16 from employing minors or working near them. The bill closes a legal loophole by specifying that any person convicted of a sexual offense involving a child 15 years old or younger is prohibited from being an employer or an independent contractor where he or she would have direct, unaccompanied contact with minors on more than an occasional or incidental basis.

To read the entire press release regarding the Governor's recent actions regarding sex offenders, please visit:

http://gov.ca.gov/index.php?/press-release/3975/

For more information about these bills, please visit:

http://www.leginfo.ca.gov/bilinfo.html