Client Alerts

Municipal and Special District Law

• New Law Creates Streamlined, Ministerial Approval Process for Certain Housing ProjectsOctober 12, 2017Governor Brown recently signed SB 35 into law, creating a streamlined approval process for certain housing projects. SB 35 requires local agencies to ministerially approve multifamily housing projects that meet a long list of standards if the Department of Housing and Community Development ("HCD") ... read more
• Broad Affordable Housing Bill Package Signed by GovernorSeptember 29, 2017A package of fifteen bills designed to help communities combat California’s affordable housing crisis was signed into law by the Governor on September 29, 2017.  The approved bills take several different approaches to the housing dilemma, including bills which provide more funding for affordable housing development, bills aimed at streamlining of local government approval of housing projects, ... read more
• California’s New Cannabis Regulatory System: What Everyone Needs to KnowJuly 6, 2017Governor Jerry Brown signed Senate Bill 94 last week, merging California's marijuana laws into a single regulatory system for medical and nonmedical commercial cannabis businesses.  The budget trailer bill ("SB 94") took effect immediately and covers everything from local control to county fair weed tastings to delivery businesses. The extensive legislation repeals the Medical Cannabis ... read more
• Drone Law Update: Appellate Court Bars FAA from Requiring Hobbyists to RegisterMay 24, 2017The Federal Aviation Administration estimates that small unmanned aerial systems ("UAS") in the U.S. will increase from 2.5 million in 2016 to 7 million in 2020, 4.3 million hobbyist and 2.7 million commercial. In ... read more
• Cannabis Regulation Update: Governor’s Trailer Bill Reconciles AUMA, MCRSA and Prop 215May 12, 2017Governor Jerry Brown recently released the "Cannabis Regulation Trailer Bill," (trailer bill) which is attached to the Governor's 2017-2018 budget.  The trailer bill makes recommendations on reconciling the Control, Regulate, and Tax Adult Use Adult Use of Marijuana Act (Proposition 64 or AUMA) ... read more
• Update on Local Government Challenges in Implementing Proposition 64March 2, 2017Recently, the California Assembly's Committee on Local Government held an informational hearing titled "How Local Governments are Implementing Proposition 64 - the Adult Use of Marijuana Act (AUMA)."  The purpose was to learn how cities and counties are preparing to implement Proposition 64 and to discuss ... read more

Public Contracts

• Public Contract Code Section 9204: New Challenges for Drafting and Administering Public Works ContractsOctober 11, 2017Public Contract Code section 9204 became effective January 1, 2017 and requires that construction contracts of all local agencies and certain state agencies contain a statutory claims procedure for processing contractor claims, paying undisputed amounts, and requiring mediation of disputed amounts. All public entities subject to Section 9204 must include in their bid documents either the text of ... read more
• California Supreme Court Decision Provides Guidance for Identifying and Avoiding Section 1090 Conflicts in Public Contracting and ProcurementOctober 6, 2017This client alert discusses an important new decision from the California Supreme Court, People v. Superior Court (2017) 3 Cal.5th 230 (Sahlolbei).  The decision addresses the standards for applying Government Code section 1090 conflict of interest prohibitions to contracts made by a public entity's independent contractors, consultants and advisors.  Section 1090 is one of ... read more
• New Law Subjects Public Agencies to Penalties Relating to Prevailing Wage ProjectsJuly 5, 2017On June 27th, Governor Brown signed into law SB 96 which, as a budget trailer bill, took effect immediately.  Almost hidden in the 50-plus page bill are amendments to the Labor Code that significantly impact every public agency regarding (1) the late filing of a special form entitled "PWC-100" and (2) the use of contractors or subcontractors not registered with the Department of Industrial ... read more

Economic Development, Real Estate and Housing

• The Legislature’s “Year Of Housing” Produces Broad Package of Bills to Stimulate Affordable Housing ConstructionSeptember 18, 2017A package of more than one dozen bills designed to help communities combat California's affordable housing crisis was approved by the California Legislature on September 15 and sent to the Governor for his signature.  These bills are the culmination of the Legislature's "Year of Housing" in which more than one hundred housing proposals were introduced and debated.  The Legislature took several ... read more
• California’s Density Bonus Law: 2017 Updates and ClarificationsJune 15, 2017California's Density Bonus Law gives housing developers the right to build additional homes, and obtain other favorable local development requirements, in exchange for building much-needed affordable or senior housing.  In 2016 the California Legislature approved three bills to clarify the law and strengthen its encouragement of the development of affordable and senior housing.  The Legislature ... read more

First Amendment

• Ninth Circuit is No Fan of Post-Game PrayerSeptember 5, 2017Last week, the Ninth Circuit issued its opinion in Kennedy v. Bremerton School District, affirming the district court's denial of a preliminary injunction for Joseph Kennedy, a high school football coach, who gained national attention when he was suspended for conducting public post-game prayers on the football field and asserted First Amendment retaliation.  In affirming, the Ninth ... read more
• Ninth Circuit Addresses Unattended Collection Bins and Upholds Oakland’s Ordinance as Content NeutralMay 17, 2017In the recently decided Recycle for Change v. City of Oakland case, the Ninth Circuit addressed the issue of regulating unattended collection bins ("collection bins") and found the challenged Ordinance passed constitutional muster.  The Ninth Circuit's opinion provides a framework for First Amendment analysis regarding this new mode of solicitation in the wake of the Supreme Court's rigid ... read more
• Ninth Circuit Reaffirms First Amendment Protection for Tattoo ParlorsApril 5, 2017On March 29, 2017, the Ninth Circuit reversed and remanded a trial court's decision that a plaintiff did not have standing to challenge the City of Long Beach's zoning ordinances relating to tattoo parlors, in Real v. City of Long Beach.  The City's zoning ordinances restricted tattoo parlors to certain areas of the City; required a 1000-foot buffer between tattoo parlors and bars, adult ... read more

Public Finance

• California Supreme Court Paves the Way for Electorate’s Majority-Vote to Adopt Special TaxesAugust 31, 2017In a decision issued August 28, 2017, the California Supreme Court concluded that a local tax measure submitted to voters by initiative petition is not subject to the state constitutional requirement, added by Proposition 218, that general taxes be considered only at "a regularly scheduled general election for members of the legislative body."  The reasoning of the case, California Cannabis ... read more

Land Use

• CEQA Review of Projects on State-Owned Rail Lines is Not Preempted by Federal LawAugust 3, 2017In 1995, Congress enacted the Interstate Commerce Commission Termination Act ("ICCTA"), which provided the federal Surface Transportation Board with "exclusive" regulatory jurisdiction over rail operations in the United States.  That law has created uncertainty about whether California can require environmental review of rail projects under the California Environmental Quality Act ("CEQA").  In ... read more
• Construction During Litigation Forfeits Challenge to Development Permit ConditionsJuly 13, 2017It is well established that a developer that builds a permitted project before it obtains a final judicial determination on a lawsuit challenging conditions of approval risks forfeiting its claims. In Lynch v. California Coastal Commission, ... read more
• Court Applies “Fair Argument” Review to Agency Decision on Necessity of Supplemental EIR for Project First Studied in Negative DeclarationMay 15, 2017In a California Environmental Quality Act ("CEQA") case remanded from the California Supreme Court, the First District Court of Appeal applied the non-deferential "fair argument" standard of judicial review to hold that the San Mateo County Community College District ("District") must prepare either a Mitigated Negative Declaration ("MND") or an Environmental Impact Report ("EIR") to assess the ... read more
• California Supreme Court Takes Up Medical Marijuana CEQA CaseFebruary 14, 2017The California Supreme Court has granted review in Union of Medical Marijuana Patients, Inc. v. City of San Diego, a case that will have broad application to California Environmental Quality Act ("CEQA") review of zoning ordinances, and a more narrow application to the CEQA review of zoning of marijuana establishments. With the recent passage of Proposition 64, the Adult Use of Marijuana ... read more

Environmental Law

• EPA Proposes Rescinding “Waters of the United States” Rule: Comments Due August 28August 1, 2017The saga of defining "waters of the United States" under the Clean Water Act (CWA) continues.  In 2015, after a series of Supreme Court rulings spanning over 20 years, a myriad of disparate district and circuit court decisions, and guidance issued by the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps), the two Agencies finally issued a revised definition in 2015.  ... read more
• State Supreme Court Issues Major Ruling on Greenhouse Gas Analysis under CEQAJuly 14, 2017The California Supreme Court issued a much anticipated ruling setting forth guidance on the analysis of greenhouse gas (GHG) impacts under the California Environmental Quality Act (CEQA). In Cleveland National Forest Foundation v. San Diego Association of Governments ... read more
• State Agencies Release Draft Regulations for Medical Cannabis BusinessesMay 10, 2017As California forges ahead with legalization of recreational marijuana cultivation, manufacturing, distribution and sales under Proposition 64 (the Adult Use of Marijuana Act ("AUMA"), passed this past November, the state continues to develop regulations implementing the 2015 Medical Cannabis Regulation and Safety Act ("MCRSA").  Proposed regulations issued by three California state agencies ... read more
• Court Provides Guidance on Ministerial Permits Not Subject to CEQAMay 3, 2017The California Environmental Quality Act (CEQA) does not apply to ministerial approvals; it only applies to discretionary approvals.  In Sierra Club v. County of Sonoma, 2017 WL 1422533, the Court of Appeal provided significant guidance to public agencies on how to determine if CEQA applies to projects approved under ordinances containing both ministerial and discretionary standards.  ... read more
• California Supreme Court Overturns Banning Ranch’s EIR for Failure to Analyze Environmentally Sensitive Habitat AreasApril 3, 2017On March 30, the California Supreme Court rejected the environmental impact report ("EIR") prepared by the City of Newport Beach for the Banning Ranch project because of the EIR's failure to properly disclose and consider the presence of "environmentally sensitive habitat areas" ("ESHA") on the project site.  Following the Court's opinion, environmental review of all projects within the Coastal ... read more
• Forecast for the “Waters of the US” Rule? Very MuddyMarch 10, 2017Resembling more of a Shakespearean tragedy than a mundane federal regulatory dispute, efforts by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to finally craft a regulation clarifying the reach of the Clean Water Act (CWA) and re-define "waters of the United States" have been thrown into complete disarray.  Regulated entities, and even the regulators ... read more
• California Supreme Court’s Decision About Public Records on Private Devices May Impact CEQA Administrative RecordsMarch 9, 2017On March 2, 2017, the California Supreme Court issued the City of San Jose decision, ruling that e-mails and text messages about the conduct of public business are subject to disclosure under the California Public Records Act ("CPRA"), even if they are sent or received on the private electronic devices or personal accounts of public officials or their staffs.  Please see Meyers Nave's ... read more
• California Senators Introduce Environmental Bills to Counter Potential Rollbacks from Trump AdministrationFebruary 28, 2017California Senators recently unveiled three bills intended to work around the Trump Administration's expected rollback of decades-old federal environmental, natural resources, and public health laws. SB 49 would make current federal clean air, clean water, endangered species, climate, and worker safety standards enforceable under state law, and would also authorize citizen suits under state law ... read more
• State Water Board Extends Water Conservation Regulations and Makes Minor AmendmentsFebruary 17, 2017The State Water Resources Control Board voted on February 8 to extend its existing water conservation regulations for an additional 270 days, until the Governor lifts the drought emergency proclamation or the State Water Board determines that the emergency regulations should be modified or rescinded.  Many public commenters urged the Board to allow the regulations to expire on February 28, 2017, ... read more

Climate Change and Green Initiatives

• California Extends Cap-and-Trade Program to Reduce Greenhouse Gas EmissionsJuly 26, 2017California has extended its cap-and-trade program to 2030, a critical action needed to meet its ambitious greenhouse gas reduction (GHG) goals. Last year, California increased its GHG reduction goal to 40% below 1990 levels by 2030 under SB 32. The cap-and-trade program is anticipated to ... read more
• State Releases Scoping Plan Update to Meet New 2030 GHG Reduction GoalFebruary 7, 2017The California Air Resources Board (CARB) has released its draft 2017 Climate Change Scoping Plan Update to meet the new State greenhouse gas (GHG) reduction goal under SB 32 of 40% below 1990 emission levels by 2030.  The Plan builds on the regulations under ... read more
• BAAQMD Releases Comprehensive Plan for Addressing Air Pollution and Climate ChangeJanuary 26, 2017The Bay Area Air Quality Management District ("BAAQMD") has released a draft Clean Air Plan 2017.  The Plan addresses air pollutants, public health and climate change.  Of particular note, the Plan includes a 2050 target of an 80% reduction below 1990 ... read more

Labor and Employment

• U.S. Supreme Court’s Refusal to Hear Appeal Means Cash-in-Lieu Payments Must Be Included in FLSA Regular RateMay 18, 2017On May 11, 2017, the U.S. Supreme Court declined to hear the City of San Gabriel's appeal of Flores v. City of San Gabriel, and, as a result, the Ninth Circuit's decision in that case is automatically upheld.  The Ninth Circuit's Flores decision (an analysis is available here) is significant ... read more

Workplace Investigations

• DFEH Issues Workplace Harassment Guide for California EmployersMay 11, 2017The Department of Fair Employment and Housing (DFEH) has released a new Workplace Harassment Guide to help California employers identify and respond to harassment in the workplace. The Guide provides direction for employers seeking to develop an effective anti-harassment program. The DFEH also updated the required ... read more

California Public Records Act

• California Supreme Court: Public Officials’ and Employees’ Communications on Private Devices and Accounts May be Public Records Subject to DisclosureMarch 2, 2017On March 2, the California Supreme Court decided a landmark case concerning the California Public Records Act ("CPRA," Government Code §§ 6250 et seq.), which is expected to have wide-ranging administrative, operational and financial impacts on public agencies.  The issue concerned whether e-mails and text messages, sent or received on private electronic devices or personal accounts ... read more
• CA Supreme Court Rules Attorney-Client Privilege Does Not Automatically Protect Attorney Billing Invoices from CPRA DisclosureJanuary 4, 2017The California Supreme Court held that billing invoices sent by an attorney to a public agency client are not automatically protected in their entirety by the attorney-client privilege and, therefore, portions of the invoices may be subject to disclosure under the California Public Records Act ("CPRA," Government Code §§ 6250 et seq.). (Los Angeles County Board of Supervisors v. Superior ... read more

Trial and Litigation

• Court of Appeal Holds Anti-SLAPP Statute Protects Speech in the Context of Artistic CreationFebruary 16, 2017The Second District Court of Appeal last week affirmed a lower court's ruling granting actor and comedian Marlon Wayans' anti-SLAPP motion in a case involving alleged racial harassment on the set of his movie.  The decision extends the reach of California's anti-SLAPP statute to protect racially charged language made as part of the creative process even where the comments at issue are directed ... read more