2011
CEQA and NEPA
Significant CEQA Streamlining Reform Bills Enacted
Three important reform bills designed to streamline California Environmental Quality Act (CEQA) processing and review for certain classes of projects have been enacted and will take effect January 1, 2012. SB 226 creates a new exemption for urban infill and renewable energy projects. It also makes a variety of amendments to both CEQA and SB 375, the landmark 2008 legislation designed to integrate California’s land use, transportation and greenhouse gas (GHG) reduction policies. AB 900 shortens the Court review for CEQA challenges to certified “leadership projects” by authorizing lawsuits to be brought directly in the Court of Appeal on an expedited schedule. “Leadership projects” must be certified LEED silver or higher, be carbon neutral, create “high-wage, highly skilled” jobs, and result in an investment of at least $100 million in California’s economy (among other requirements). SB 292 is a narrow bill designed to accommodate a new sports stadium and convention center in downtown Los Angeles by streamlining judicial review in exchange for reductions in GHG emissions and traffic impacts.
At the outset, it is important to note that these three new CEQA bills were rushed through at the very end of a legislative session and were not subjected to legislative staff review. Each bears some technical flaws and inconsistencies which may create difficulties for agencies applying these new provisions. Clean up legislation in the future may be warranted. As a result, we encourage public agencies and developers to consult with legal counsel before relying on the new legislation, especially the exemption for urban infill projects.
City Approval Of Preliminary Terms for New Football Stadium Was Not A Project Approval And Did Not Violate CEQA
In Cedar Fair, L.P. v. City of Santa Clara, the latest case interpreting Save Tara, the Sixth District Court of Appeal found that the City of Santa Clara did not violate CEQA when it approved preliminary terms for a new football stadium. The City had adopted a 39-page Stadium Term Sheet which detailed proposed construction, financing and other provisions for development of a stadium for the 49ers National Football League team. Despite the detailed description of the proposed stadium project and supportive statements by City officials, the court determined that the term sheet did not commit the City to approve the stadium project and did not rule out consideration of mitigation measures or alternatives in later CEQA reviews.
Court Rejects CEQA Challenge to GHG and Water Analysis in Addendum to 1994 EIR
In Citizens for Responsible Equitable Environmental Development (CREED) v. City of San Diego, the Court upheld the use of an Addendum to a 1994 environmental impact report (EIR) to approved a revised Project. The Court rejected two challenges: (1) that the Addendum failed to include an analysis of the impacts of greenhouse gases which was not addressed in the 1994 EIR; and (2) that the City improperly incorporated and approved a water supply assessment (WSA) as part of the Addendum. The challenges were rejected on the merits as well as for the failure to exhaust administrative remedies. The Court ruled that once an EIR is certified, the standards for requiring supplemental environmental review under CEQA are narrow and the challenger has the burden of proof to show additional review is required.
Climate Change
Court Rejects CEQA Challenge to GHG and Water Analysis in Addendum to 1994 EIR
In Citizens for Responsible Equitable Environmental Development (CREED) v. City of San Diego, the Court upheld the use of an Addendum to a 1994 environmental impact report (EIR) to approved a revised Project. The Court rejected two challenges: (1) that the Addendum failed to include an analysis of the impacts of greenhouse gases which was not addressed in the 1994 EIR; and (2) that the City improperly incorporated and approved a water supply assessment (WSA) as part of the Addendum. The challenges were rejected on the merits as well as for the failure to exhaust administrative remedies. The Court ruled that once an EIR is certified, the standards for requiring supplemental environmental review under CEQA are narrow and the challenger has the burden of proof to show additional review is required.
Climate Change and Green Initiatives
Court Rejects CEQA Challenge to GHG and Water Analysis in Addendum to 1994 EIR
In Citizens for Responsible Equitable Environmental Development (CREED) v. City of San Diego, the Court upheld the use of an Addendum to a 1994 environmental impact report (EIR) to approved a revised Project. The Court rejected two challenges: (1) that the Addendum failed to include an analysis of the impacts of greenhouse gases which was not addressed in the 1994 EIR; and (2) that the City improperly incorporated and approved a water supply assessment (WSA) as part of the Addendum. The challenges were rejected on the merits as well as for the failure to exhaust administrative remedies. The Court ruled that once an EIR is certified, the standards for requiring supplemental environmental review under CEQA are narrow and the challenger has the burden of proof to show additional review is required.
Economic Development, Real Estate and Housing
Court Upholds Redevelopment Dissolution Bill, Strikes Voluntary Payment Bill
The California Supreme Court today issued an opinion in the California Redevelopment Association v. Matosantos case, upholding Assembly Bill x1 26 (the "Redevelopment Dissolution" bill) and invalidating Assembly Bill x1 27 (the "Voluntary Payment" bill). The Court provided a four month extension for all deadlines contained in AB x1 26 that arise prior to May 1, 2012. As a result, effective February 1, 2012, all redevelopment agencies in California will be dissolved.
Prior to their dissolution, agency activities are limited to carrying out "enforceable obligations" as defined in AB x1 26. Following dissolution, the successor entity (the city or county that formed the agency, unless such jurisdiction elects not to fill this role) is charged with winding up the affairs of the dissolved agency, subject to review by an oversight board composed of representatives appointed by the city, the county, the local school district, the local community college district, and the largest local special district. By March 1, 2012, the successor entity is required to prepare a draft recognized obligation payment schedule describing enforceable obligations payable during the period from January through June 2012. The successor entity is directed to dispose of the assets of the former redevelopment agency with the proceeds to be transferred to the county auditor-controller for distribution to local taxing entities. The successor entity may elect to retain the housing assets and functions previously performed by the redevelopment agency; however, funds on deposit in the Low and Moderate Income Housing Fund are not retained by the successor entity.
The Court held that AB x1 27 (the measure that would have permitted cities and counties to continue the operation of their local redevelopment agency by agreeing to make specified payments for the benefit of schools and special districts) violates Proposition 22, the ballot measure adopted in 2010 that limits the legislature’s ability to require local government payments.
Six justices signed the majority opinion. The Chief Justice issued a dissenting and concurring opinion in which she opined that AB x1 27 does not on its face compel the violation of Proposition 22.
Please contact any member of the Meyers Nave Redevelopment Practice Group for further information.
Appellate Court Finds that Inclusionary Housing Requirement is Not an Exaction, Therefore Challenge is Time-Barred
In a decision supportive of local inclusionary housing ordinances, the Sixth District Court of Appeal ruled that a subdivider's challenge to a development condition requiring below market rate housing was not governed by the AB 1600 Mitigation Fee Act statute of limitations.
Proposed Legislation to Address Governor's Proposal to Disestablish Redevelopment Agencies
Late in the afternoon on Wednesday, February 23rd, the State Department of Finance released language for a proposed budget trailer bill that addresses the Governor’s proposal to disestablish redevelopment agencies. The 26-page bill has not yet been formally introduced, but may be introduced and considered by the Budget Conference Committee within the next few days. It is likely that the bill will undergo modification prior to consideration by the legislature, and if adopted, the bill may be subject to legal challenge.
California Supreme Court Revises Stay of Redevelopment Dissolution and “Opt-In” Legislation
California Redevelopment Association, et al. v. Ana Matosantos, et al.
The Supreme Court has revised its August 11 partial Stay of AB x1 26 and x1 27 by clarifying that the entirety of Part 1.8 (Health and Safety Code Sections 34161 through 34169.5) is excluded from the stay and remains in effect. This means that Health and Safety Code Section 34167.5, which permits the Controller to review post- January 1, 2011 asset transfers from the Agency to the City, and potentially order the return of assets where the City is not contractually committed to a third party for expenditure or encumbrance of the assets, is in effect. In addition, Section 34169, which requires agencies to adopt an enforceable obligation schedule by August 28, 2011, is no longer stayed.
Next Steps for Redevelopment Agencies After Passage of Dissolution and "Pay to Play" Assembly Bills
On Tuesday, the Legislature approved the latest budget proposal (SB 87) and sent the previously passed trailer bills, AB 1X 26 and 27, to the Governor for signature. The California Redevelopment Association and the League of California Cities will be filing legal actions in efforts to invalidate the legislation and obtain a stay on implementation.
If the legislation is upheld, redevelopment agencies will need to decide whether they should dissolve in accordance with AB1X26, or "pay to play" in accordance with AB1X27. This is a decision that should be analyzed in light of the particular circumstances of each redevelopment agency. Agencies should evaluate projects in process, property and other assets the city and agency may lose if the agency is dissolved, whether future net tax increment will be sufficient to fund planned redevelopment activities, and whether the agency can make the payments required by the legislation.
Environmental Law
CARB Adopts Final GHG Cap-and-Trade Program
After surviving a highly publicized ballot box challenge and lawsuit, the California Air Resources Board (“CARB”) unanimously adopted a final greenhouse gas (“GHG”) cap-and-trade program regulation. The
Significant CEQA Streamlining Reform Bills Enacted
Three important reform bills designed to streamline California Environmental Quality Act (CEQA) processing and review for certain classes of projects have been enacted and will take effect January 1, 2012. SB 226 creates a new exemption for urban infill and renewable energy projects. It also makes a variety of amendments to both CEQA and SB 375, the landmark 2008 legislation designed to integrate California’s land use, transportation and greenhouse gas (GHG) reduction policies. AB 900 shortens the Court review for CEQA challenges to certified “leadership projects” by authorizing lawsuits to be brought directly in the Court of Appeal on an expedited schedule. “Leadership projects” must be certified LEED silver or higher, be carbon neutral, create “high-wage, highly skilled” jobs, and result in an investment of at least $100 million in California’s economy (among other requirements). SB 292 is a narrow bill designed to accommodate a new sports stadium and convention center in downtown Los Angeles by streamlining judicial review in exchange for reductions in GHG emissions and traffic impacts.
At the outset, it is important to note that these three new CEQA bills were rushed through at the very end of a legislative session and were not subjected to legislative staff review. Each bears some technical flaws and inconsistencies which may create difficulties for agencies applying these new provisions. Clean up legislation in the future may be warranted. As a result, we encourage public agencies and developers to consult with legal counsel before relying on the new legislation, especially the exemption for urban infill projects.
Labor and Employment
California Supreme Court Holds Counties May be Bound by Implied Contracts to Provide Health Benefits to Retired Employees
In Retired Employees Association of Orange County, Inc. v. County of Orange (“REAOC”), the California Supreme Court addressed a question posed to it by the Ninth Circuit: “Whether, as a matter of California law, a California county and its employees can form an implied contract that confers vested rights to health benefits on retired county employees.” REAOC, No. S184059, at *1 (Cal., filed Nov. 21, 2011).
In Orange County, retirees and active employees of the County had traditionally been pooled together for the purposes of calculating a single set of health insurance premiums—generally resulting in lower premiums for retirees (which are paid largely by the retirees themselves) and higher premiums for actives (which are paid largely by the County). In REAOC, retired employees challenged the County’s 2007 decision to split active employees and retirees into separate pools.
Take Advantage of the Opportunity to Provide PERB with Feedback Regarding AB 646
Signed by Governor Brown on October 9, 2011, AB 646 amends the collective bargaining process for local public agencies by requiring the parties to proceed to fact finding after mediation and before a local public agency may unilaterally implement its last, best, and final offer. Several commentators have pointed out ambiguities with respect to the scope and application of the fact finding process. On November 8, 2011, the California Public Employment Relations Board (“PERB”) held the first of two meetings to introduce drafts of proposed emergency regulations for implementing AB 646 and to seek feedback regarding issues that might require regulatory action by PERB in advance of January 1, 2012, when the legislation takes effect.
The meeting was attended by attorneys and employees representing both labor and management for public agencies throughout the state. Multiple issues were discussed during the meeting, including: (1) whether local public agencies are allowed to adopt reasonable local rules to tackle issues that were not addressed by the legislation; (2) whether peace officers and managers are covered by AB 646; (3) what process is going to be used by PERB for appointing fact finders; (4) whether mediation after impasse is now mandatory; (5) whether fact finding is required if the parties do not proceed to mediation; and (6) how long the fact finding process typically takes. While PERB representatives did not provide much feedback or insight regarding these issues and questions, they did introduce proposed emergency regulations that they hope to adopt before January 1 and invited general feedback regarding issues that might require regulatory action.
To view the current drafts of PERB’s proposed emergency regulations click here. PERB has asked that feedback be sent by email to Division Chief Les Chisholm (lchisholm@perb.ca.gov) or General Counsel Suzanne Murphy (smurphy@perb.ca.gov) by no later than November 18, 2011. Mr. Chisholm indicated that all comments may be posted publicly on PERB’s website, so please keep that in mind if you decide to provide feedback. We would urge all public agency representatives to take advantage of this opportunity to provide feedback to PERB on this very important issue. To read a detailed explanation of AB 646 and some of the substantial ambiguities that exist within the legislation click here.
Effective January 1, 2012, Fact Finding Now Required After Mediation and Before Imposing Last, Best and Final Offer
Governor Brown signed AB 646 - which amends the Meyers-Milias-Brown Act ("MMBA") to require fact finding after mediation and before a local public agency may unilaterally implement its last, best and final offer.
Effective January 1, 2012, when a local public agency has reached an impasse during collective bargaining with representatives of a recognized employee organization, the employee organization will be able to require the bargaining impasse to be submitted to a fact finding panel. Specifically, if a mediator is unable to effect settlement between the parties within thirty (30) days of being appointed, the employee organization may request that the parties' differences be submitted to a tri-partite fact finding panel consisting of one representative from each of the sides and a chairperson selected by the Public Employment Relations Board ("PERB"). The parties may mutually agree on a different chairperson in lieu of the person selected by PERB within five (5) days after PERB selects the initial chairperson. The costs for the services of the panel chairperson shall be split equally between the parties.
Governor Brown Signs AB 646 - Fact Finding Now Required Before Imposing Last, Best and Final Offer
Governor Brown signed AB 646 - which amends the Meyers-Milias-Brown Act ("MMBA") to require fact finding before an agency may unilaterally implement its last, best and final offer.
The bill prohibits a public agency from implementing its last, best and final offer until at least 10 days after the "fact finders" (a tri-partite panel with one "neutral" selected by the parties) submit written findings of fact and recommend terms of settlement.
Ninth Circuit Re-Affirms March 2011 Decision Holding Employer’s Rule Against Hiring Job Applicants Who Have Previously Tested Positive for Drug or Alcohol Use Does Not Violate ADA or FEHA
In Lopez v. Pacific Maritime Association, __ F.3d __ (9th Cir. 2011), the Ninth Circuit U.S. Court of Appeals approved an employer’s rule against hiring job applicants who have previously tested positive for drug and alcohol use. The court’s initial ruling was released in March 2011, but on September 21, 2011, the court denied the job applicant’s petitions for rehearing.
The employer has a policy whereby any applicant who tests positive for drug and alcohol use during the pre-employment screening process may not ever again apply for a position. The applicant originally applied for a position with the employer in 1997 but was rejected after testing positive for marijuana despite having seven days notice of the pre-employment drug test. Under the employer’s “one-strike rule,” the applicant was rejected again when he re-applied in 2004 after allegedly kicking his drug habit.
Executive Summary: Bills to Watch
Various labor-related bills are currently making their way through the California Legislature. This executive summary provides a brief description of these bills and how each could potentially effect cities, counties and special districts around California.
Court of Appeal Approves Public Employee Termination for Posting Craigslist Sex Ad While Off-Duty
In San Diego Unified School District v. Commission on Professional Competence (Lampedusa), --- Cal. Rptr. 3d ---, 2011 WL 1234686 (ordered published May 3, 2011), the California Court of Appeal upheld a school district's dismissal of a schoolteacher who was terminated for posting a sexually explicit ad and photos of himself on Craigslist while off duty.
The Second Appellate District Provides Guidance Regarding an Employer’s Reasonable-Accommodation Duty
The Second Appellate District's recent case of Cuiellette v. City of Los Angeles (2011) __ Cal.Rptr.3d ___, 2011 WL 1522390, highlights two critical issues that employers must consider when conducting a reasonable-accommodation analysis under the Fair Employment and Housing Act ("FEHA").
Employer Liability for Biased Supervisor Who Influences Termination
The employment discrimination case, Staub v. Proctor Hospital, 131 S.Ct 1186, 2011 WL 691244 (U.S.), decided on March 1 by the U.S. Supreme Court highlights the critical importance in conducting an objective investigation that confirms the legitimate, nondiscriminatory reasons for discipline before taking action against an employee.
Title VII Anti-Retaliation Provisions Are Held Applicable to Complaining Employee's Fiancée
In Thompson v. North American Stainless LP, the United States Supreme Court unanimously held that the anti-retaliation provisions in Title VII of the Civil Rights Act of 1964 ("Title VII") protected an individual from being terminated in retaliation for his fiancée's prior complaint of discrimination to the Equal Employment Opportunity Commission ("EEOC").
Pension Amounts Received by Individuals Must Be Disclosed
In Sacramento County Employees’ Retirement System (SCERS) v. Superior Court of Sacramento County (The Sacramento Bee, et al.)(Case No. C065730, May 11, 2011), the Third Court of Appeal held that public agencies must disclose the names of pensioners and the amounts each pensioner receives (“individual pension information”).
The issue of whether or not individual pension information is subject to public disclosure arose after The Sacramento Bee and The First Amendment Coalition (collectively, “The Bee”) requested that SCERS disclose the names of retirees who receive over $100,000 annually, as wellas the gross amount received by each retiree, the department from which he or she retired, the last position held, and the date of retirement. The Bee stated that it needed this information to identify certain abuses of the pension system, such as cashing out vacation time or working overtime in the last year of employment (which would result in so-called “pension spiking”), members receiving both pension and salary in one year (“double-dipping”), and members receiving pension, salary, and unemployment benefits in one year (“triple-dipping”).
Land Use
Court Holds That CEQA Does Not Require Analysis Of The Environment’s Impacts On A Proposed Project
Ballona Wetlands Land Trust v. City of Los Angeles is the second in a series of challenges to CEQA review of a mixed-use residential development, the Playa Vista Phase Two Project. In a prior case concerning the same Project, the Court issued a writ of mandate invalidating a 2004 EIR for failing to consider “in-place” preservation of archeological artifacts, and for presenting a misleading project description and an inadequate analysis of wastewater impacts. The writ further instructed the City to vacate certification of the 2004 EIR and project approvals, and to revise the EIR to address the deficiencies pointed out by the court. In response to the Court’s writ, the City in 2010 certified a Revised EIR for the Project and sought to discharge the writ. Petitioners objected and filed a new petition for a writ of mandate. The Court consolidated the new petition with the pending case.
The most significant portion of the new ruling was only reached because, in addition to the revised analysis required by the writ, the City also included a new climate change impacts analysis in the Revised EIR. Petitioners attacked the climate change analysis for inadequately analyzing the impacts of sea-level rise caused by climate change on the project. Petitioners relied on CEQA Guidelines section 15126.2, which states that “[t]he EIR shall also analyze any significant environmental effects the project might cause by bringing development and people into the area affected” by environmental impacts or hazards. The Court disagreed that the Revised EIR was required to analyze the impacts of climate change on the Project, holding that “the purpose of an EIR is to identify the significant effects of a project on the environment, not the significant effect of the environment on the project.” The Court held that CEQA Guidelines section 15126.2 is only consistent with the CEQA statute to the extent it requires analysis of the project’s impacts on the environment, and not vice-versa. The Court went on to criticize Appendix G of the CEQA Guidelines, which is used to guide an agency’s initial study, for including questions that address the impacts of the environment on the project.
Anti-NIMBY Findings Apply to All Residential Development Projects, Not Just Affordable Housing
In a decision interpreting a long-standing statutory provision, the Fifth District Court of Appeal ruled that Stanislaus County erred when it denied a residential development but did not make findings under Government Code section 65589.5(j).
Cities and Counties May Ban Medical Marijuana Dispensaries
On November 9, 2011, the California Court of Appeal, Fourth Appellate District, issued a ruling holding that state law does not preempt the City of Riverside's ("City") ordinance banning medical marijuana dispensaries ("MMD"). (City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc., et al. (2011 Cal. App. LEXIS 1406).)
Having opened in the City in 2009, Inland Empire Patient's Health and Wellness Center, Inc. ("Inland Empire Center") was a non-profit mutual benefit corporation, established as a MMD. The City's municipal code prohibited MMDs on two grounds. First, the City's zoning ordinance specifically lists MMDs as a prohibited use, and secondly, the City's code proscribes any use that is prohibited by state and/or federal law. The City's code also declares that any use that violates the City's code is considered a public nuisance.
Significant CEQA Streamlining Reform Bills Enacted
Three important reform bills designed to streamline California Environmental Quality Act (CEQA) processing and review for certain classes of projects have been enacted and will take effect January 1, 2012. SB 226 creates a new exemption for urban infill and renewable energy projects. It also makes a variety of amendments to both CEQA and SB 375, the landmark 2008 legislation designed to integrate California’s land use, transportation and greenhouse gas (GHG) reduction policies. AB 900 shortens the Court review for CEQA challenges to certified “leadership projects” by authorizing lawsuits to be brought directly in the Court of Appeal on an expedited schedule. “Leadership projects” must be certified LEED silver or higher, be carbon neutral, create “high-wage, highly skilled” jobs, and result in an investment of at least $100 million in California’s economy (among other requirements). SB 292 is a narrow bill designed to accommodate a new sports stadium and convention center in downtown Los Angeles by streamlining judicial review in exchange for reductions in GHG emissions and traffic impacts.
At the outset, it is important to note that these three new CEQA bills were rushed through at the very end of a legislative session and were not subjected to legislative staff review. Each bears some technical flaws and inconsistencies which may create difficulties for agencies applying these new provisions. Clean up legislation in the future may be warranted. As a result, we encourage public agencies and developers to consult with legal counsel before relying on the new legislation, especially the exemption for urban infill projects.
Ninth Circuit Finds Anti-Solicitation Ordinance Aimed at Day Laborers Violates First Amendment
The Ninth Circuit invalidated a City of Redondo Beach ordinance that prohibits solicitation between day laborers and occupants of motor vehicles on streets and highways. In Comite De Jornaleros De Redondo Beach v. City of Redondo Beach, Ninth Circuit Case No. 06-55750, No. 06-56869, the Ninth Circuit en banc opinion reversed the prior panel decision that held the Redondo Beach ordinance constitutional. The Court held that the Redondo Beach ordinance is not narrowly tailored to the City’s objective and that the City could use less restrictive means to ensure traffic flow and safety.
Redondo Beach’s ordinance regulates "soliciting" employment, business, or contributions from the occupant of a motor vehicle. The Court rejected the City’s argument that the ordinance regulated only conduct, holding that solicitation is a form of protected speech. In reaching this finding, the Court overruled ACORN v. City of Phoenix, 798 F.2d 1260 (9th Cir. 1986), which had found that an almost identical ordinance regulated only conduct. Although streets and sidewalks are a public forum, the City can impose regulations that are content-neutral and a reasonable limit on the time, place, and manner of expression. To satisfy judicial scrutiny, the regulation must be "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication."
City Approval Of Preliminary Terms for New Football Stadium Was Not A Project Approval And Did Not Violate CEQA
In Cedar Fair, L.P. v. City of Santa Clara, the latest case interpreting Save Tara, the Sixth District Court of Appeal found that the City of Santa Clara did not violate CEQA when it approved preliminary terms for a new football stadium. The City had adopted a 39-page Stadium Term Sheet which detailed proposed construction, financing and other provisions for development of a stadium for the 49ers National Football League team. Despite the detailed description of the proposed stadium project and supportive statements by City officials, the court determined that the term sheet did not commit the City to approve the stadium project and did not rule out consideration of mitigation measures or alternatives in later CEQA reviews.
Appellate Court Finds that Inclusionary Housing Requirement is Not an Exaction, Therefore Challenge is Time-Barred
In a decision supportive of local inclusionary housing ordinances, the Sixth District Court of Appeal ruled that a subdivider's challenge to a development condition requiring below market rate housing was not governed by the AB 1600 Mitigation Fee Act statute of limitations.
Ninth Circuit Expounds on Burden Shifting Framework Established by the Supreme Court in City of Los Angeles v. Alameda Books
In the second published decision by the Ninth Circuit in this case, the Court addresses the new framework and burden shifting standard put in place by the United States Supreme Court when addressing constitutional challenges to ordinances aimed at reducing the secondary effects of adult entertainment businesses.
Ninth Circuit Establishes Test For Whether Zoning Ordinances Treat Religious Land Uses On Less Than “Equal Terms”
On July 12, 2011, in Centro Familiar Cristiano Buenas Nuevas, et al. v. City of Yuma, the Ninth Circuit Court of Appeals, with jurisdiction over California, established the test to interpret the “equal terms” provision of the federal “Religious Land Use and Institutionalized Persons Act,” or RLUIPA.
The Ninth Circuit, in striking down zoning regulations for a tourist district in Yuma, Arizona, held that local land use provisions may not treat religious uses less favorably than nonreligious uses that are “similarly situated with respect to an accepted zoning criteria.” The Court further held that such unequal treatment of religious uses may not be excused, even if the government has a “compelling” interest in discrimination. The case was remanded back to the district court for a determination of monetary damages.
The Court found it relatively easy to find a RLUIPA violation in Centro Familiar, since the challenged ordinance treated religious “membership organizations” less favorably than non-religious “membership organizations.” However, RLUIPA violations under the rule of Centro Familiar will not always be so easy to spot. Particularly with the potential that money damages are available for an “equal terms” violation, cities are well advised to undertake top-to-bottom review of their zoning ordinances, to ensure that no provision unlawfully discriminates against religious uses.
California Supreme Court Clarifies Corporate Standing Requirements for CEQA Lawsuits in Upholding Environmental Review of Plastic Bag Ban
In Save the Plastic Bag Coalition v. City of Manhattan Beach, the California Supreme Court clarified and, potentially, expanded the rights of corporations to bring CEQA lawsuits and sought to inject “common sense” into the CEQA process.
The Coalition had sought review under CEQA of the City’s adoption of a plastic bag ban ordinance. The City challenged the standing of petitioners, a coalition of plastic bag manufactures and distributors, to bring the lawsuit under CEQA, arguing that the corporate interests of the Coalition were insufficient to qualify the group for “public interest standing.” The Court rejected the heightened scrutiny test for corporate plaintiffs previously established in Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1238 (Waste Management). Instead, the Court held that corporate plaintiffs seeking to establish public interest standing need only meet the same requirements as any other litigant. The Court went a step further, however, and said that the Coalition did not need to rely on the public interest standing, holding that the Coalition need only show that it was “beneficially interested” in the City’s decision. Further, the Court ruled that the “beneficial interest” for purposes of a CEQA lawsuit did not need to be an environmental interest. Instead, potential litigants need only show that the government decision directly impacts their operations.
New CEQA Case Limits Disclosure Of Information About Vulnerable Cultural Resources And Clarifies Water Supply Availability Analyses
In Clover Valley Foundation v. City of Rocklin, the Third District Court of Appeal considered a challenge to the Environmental Impact Report (EIR) for a 558-home residential development in the City of Rocklin. While this case addresses a host of CEQA issues, the most notable holdings come with respect to the EIR’s analysis of impacts to cultural resources and water supply.
The case provides authority for agencies to withhold from public disclosure detailed information about the precise location and contents of potentially affected Native American cultural sites in order to safeguard those sites from looting, despite CEQA’s otherwise stringent information-disclosure mandates.
The Clover Valley case also provides public agencies with useful, practical clarification about the level of certainty needed to satisfy principles for analysis of water supply availability which were previously announced in the California Supreme Court’s decision in Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007), particularly when it is necessary for an EIR to identify and analyze replacement water supply sources.
180-day Statute of Limitations Applies Unless CEQA Notice of Determination is Posted for 30 Full Days
Latinos Unidos De Napa v. City of Napa
In Latinos Unidos, the First District Court of Appeal addressed calculation of the 30 day posting period for CEQA Notices of Determination. Applying Code of Civil Procedure § 12, the court determined that the 30 days commences on the first day after the Notice of Determination is posted and continues through the entire 30th day.
Court Rejects CEQA Challenge to GHG and Water Analysis in Addendum to 1994 EIR
In Citizens for Responsible Equitable Environmental Development (CREED) v. City of San Diego, the Court upheld the use of an Addendum to a 1994 environmental impact report (EIR) to approved a revised Project. The Court rejected two challenges: (1) that the Addendum failed to include an analysis of the impacts of greenhouse gases which was not addressed in the 1994 EIR; and (2) that the City improperly incorporated and approved a water supply assessment (WSA) as part of the Addendum. The challenges were rejected on the merits as well as for the failure to exhaust administrative remedies. The Court ruled that once an EIR is certified, the standards for requiring supplemental environmental review under CEQA are narrow and the challenger has the burden of proof to show additional review is required.
Litigation
Meyers Nave and the City of Oakland Successfully Obtain Preliminary Gang Injunction Against Norteños Gang Members
In a closely-watched and high-profile case involving a civil gang injunction against the violent Norteños gang, Meyers Nave attorneys Tricia Hynes and Britt Strottman, working with the Oakland City Attorney’s Office, succeeded in obtaining a civil gang injunction against Norteños gang members. Civil gang injunctions are court orders prohibiting a particular criminal street gang from engaging in various activities that are harmful and injurious to the community, its residents and business owners. The Honorable Robert Freedman of the Alameda County Superior Court granted the City of Oakland’s request for a preliminary civil gang injunction order in full, relying upon all of the evidence and testimony submitted by the City. What this means is that the individually named gang members in the first phase of the litigation are now prevented from engaging in a broad range of activities, some of which are already crimes in their own right, and some of which are not crimes, per se, but have the real propensity to lead to crimes. Within a designated “Safety Zone” covering the neighborhoods where the gang operates, the enjoined individuals will be prohibited from associating with one another, intimidating witnesses, recruiting youth into the gang, knowingly being in the presence of drugs or firearms, wearing gang colors or being on the streets between the hours of 10 p.m. and 5 a.m.
Municipal and Special District Law
Cities and Counties May Ban Medical Marijuana Dispensaries
On November 9, 2011, the California Court of Appeal, Fourth Appellate District, issued a ruling holding that state law does not preempt the City of Riverside's ("City") ordinance banning medical marijuana dispensaries ("MMD"). (City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc., et al. (2011 Cal. App. LEXIS 1406).)
Having opened in the City in 2009, Inland Empire Patient's Health and Wellness Center, Inc. ("Inland Empire Center") was a non-profit mutual benefit corporation, established as a MMD. The City's municipal code prohibited MMDs on two grounds. First, the City's zoning ordinance specifically lists MMDs as a prohibited use, and secondly, the City's code proscribes any use that is prohibited by state and/or federal law. The City's code also declares that any use that violates the City's code is considered a public nuisance.
Ninth Circuit Finds Anti-Solicitation Ordinance Aimed at Day Laborers Violates First Amendment
The Ninth Circuit invalidated a City of Redondo Beach ordinance that prohibits solicitation between day laborers and occupants of motor vehicles on streets and highways. In Comite De Jornaleros De Redondo Beach v. City of Redondo Beach, Ninth Circuit Case No. 06-55750, No. 06-56869, the Ninth Circuit en banc opinion reversed the prior panel decision that held the Redondo Beach ordinance constitutional. The Court held that the Redondo Beach ordinance is not narrowly tailored to the City’s objective and that the City could use less restrictive means to ensure traffic flow and safety.
Redondo Beach’s ordinance regulates "soliciting" employment, business, or contributions from the occupant of a motor vehicle. The Court rejected the City’s argument that the ordinance regulated only conduct, holding that solicitation is a form of protected speech. In reaching this finding, the Court overruled ACORN v. City of Phoenix, 798 F.2d 1260 (9th Cir. 1986), which had found that an almost identical ordinance regulated only conduct. Although streets and sidewalks are a public forum, the City can impose regulations that are content-neutral and a reasonable limit on the time, place, and manner of expression. To satisfy judicial scrutiny, the regulation must be "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication."
Appellate Court Finds that Inclusionary Housing Requirement is Not an Exaction, Therefore Challenge is Time-Barred
In a decision supportive of local inclusionary housing ordinances, the Sixth District Court of Appeal ruled that a subdivider's challenge to a development condition requiring below market rate housing was not governed by the AB 1600 Mitigation Fee Act statute of limitations.
Ninth Circuit Expounds on Burden Shifting Framework Established by the Supreme Court in City of Los Angeles v. Alameda Books
In the second published decision by the Ninth Circuit in this case, the Court addresses the new framework and burden shifting standard put in place by the United States Supreme Court when addressing constitutional challenges to ordinances aimed at reducing the secondary effects of adult entertainment businesses.
Non-elected members of public agency boards beware!
Under the broad language of proposed rules of the Securities and Exchange Commission (the “SEC”), intended to implement provisions of Section 975 (“Section 975”) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), non-elected members of the governing board of a municipal entity may fall under the definition of “municipal advisor” and thereby become subject to SEC registration, record-keeping requirements and expanded securities fraud liability.
Municipal Debt Restructuring
Governor Signs AB 506 (Wieckowski) Affecting Chapter 9 Bankruptcy Filings
On October 9, 2011, Governor Brown signed legislation that creates new requirements for local government entities considering Chapter 9 bankruptcy filings. The final bill allows a local government entity to file a bankruptcy petition so long as it has either declared a fiscal emergency or engaged in a specified mediation process with its major creditors.
This legislation was promoted by public sector labor unions, which have made several attempts following the City of Vallejo bankruptcy filing to restrict local government entities' access to the bankruptcy courts.
Local government entities took great interest in this legislation and, after significant negotiations, the bill was amended in the final days of the legislative session. As amended, the legislation provides that a Chapter 9 filer must either have engaged in mediation or declared a fiscal emergency by a majority vote of its governing board.
The Williamson Act: Agricultural Land Conservation and Solar Development
On March 11, the California Department of Conservation (“Department”) issued an opinion entitled “Considerations in Citing Solar Facilities on Land Enrolled in the Williamson Act” (“Opinion”). This provides suggestions to cities and counties for permitting solar development on agricultural land under contract in the California Land Conservation Act (“Williamson Act”).
Ninth Circuit Expounds on Burden Shifting Framework Established by the Supreme Court in City of Los Angeles v. Alameda Books
In the second published decision by the Ninth Circuit in this case, the Court addresses the new framework and burden shifting standard put in place by the United States Supreme Court when addressing constitutional challenges to ordinances aimed at reducing the secondary effects of adult entertainment businesses.
Public Contracts and Construction
Project Thresholds Change Under Uniform Public Construction Cost Accounting Act
Public entities that utilize the UPCCAA should take note that the monetary thresholds for bidding on public projects has changed as follows:
(a) Public projects of thirty thousand dollars ($30,000) or less may be performed by the employees of a public agency by force account, by negotiated contract, or by purchase order.
(b) Public projects of one hundred seventy-five thousand dollars ($175,000) or less may be let to contract by informal procedures as set forth in this article.
(c) Public projects of more than one hundred seventy-five thousand dollars ($175,000) shall, except as otherwise provided in this article, be let to contract by formal bidding procedure.
Local Agencies Now Required to Provide Electronic Copies of Project Documents to Contractor Plan Rooms
The California State legislature recently passed AB 2036, codified as Section 20103.7 of the Public Contract Code, which provides that "[a] local agency taking bids for the construction of a public work project or improvement, upon request from a contractor plan room service, must provide an electronic copy of a project's contract documents at no charge to the contractor plan room."
Public Finance
Governor Signs AB 506 (Wieckowski) Affecting Chapter 9 Bankruptcy Filings
On October 9, 2011, Governor Brown signed legislation that creates new requirements for local government entities considering Chapter 9 bankruptcy filings. The final bill allows a local government entity to file a bankruptcy petition so long as it has either declared a fiscal emergency or engaged in a specified mediation process with its major creditors.
This legislation was promoted by public sector labor unions, which have made several attempts following the City of Vallejo bankruptcy filing to restrict local government entities' access to the bankruptcy courts.
Local government entities took great interest in this legislation and, after significant negotiations, the bill was amended in the final days of the legislative session. As amended, the legislation provides that a Chapter 9 filer must either have engaged in mediation or declared a fiscal emergency by a majority vote of its governing board.