- Community Facilities District Financing Triggers Prevailing Wage Requirements For All Public Improvements of a ProjectDecember 28, 2010
In Azusa Land Partners v. Department of Industrial Relations, the Second Appellate District Court of Appeal has upheld the California Director of Industrial Relations and the Superior Court of Los Angeles County in determining that use of Mello-Roos bonds to fund certain infrastructure required for a city’s approval of a mixed-use project requires payment of prevailing wages for the ... read more
- Increased Contractor Costs on Public Works Projects – Strategies For Reducing Owner RiskOctober 8, 2010
General contractors on public works projects often submit claims for extra compensation to public entity project owners for increased costs during construction, and point to information they did not know when preparing their bids. In light of the recent California Supreme Court decision in Los Angeles Unified School District v. Great American Insurance Co. (2010) 49 Cal.4th 739, such ... read more
- Public Works Contractors Need Not Show Fraudulent Intent to Recover Damages Caused by Incorrect Plans and SpecificationsJuly 14, 2010
In Los Angeles Unified School District v. Great American Insurance Co. S165113, a decision filed July 12, 2010, the California Supreme Court decided whether a contractor on a public works project may recover in a contract action for extra work or expenses necessitated by a public entity's failure to disclose information that materially affects the cost of performance. The decision ... read more
- Contractors Permitted to Use Modified Total Cost Method of Damages in Public Project ClaimsMarch 29, 2010
General contractors on public works projects often assert close-out claims against the public entity at the end of projects. When this occurs, the method in which the general contractor can prove its damages on a claim is often the major issue.
On March 18, 2010 the California Court of Appeal, Second Appellate District, confirmed that in California, general contractors are permitted ... read more
- Court Invalidates EIR’s Use of Post-Approval “Future” Baseline For Analysis of Project ImpactsDecember 23, 2010
The California Environmental Quality Act, or CEQA, requires agencies to compare the potentially significant impacts of proposed projects to an “environmental baseline” – which CEQA provides shall “normally” consist of environmental conditions as they exist when environmental review is commenced. The California Court of Appeal, Sixth District, has ruled that an Environmental Impact ... read more
- A Solid Administrative Record is the Key to Successfully Defending a Challenge to an EIRDecember 13, 2010
In Cherry Valley Pass Acres v. City of Beaumont, 2010 WL 4705953 (2010), the plaintiffs challenged the adequacy of an environmental impact report (“EIR”) for a project to convert a large egg farm to suburban residential development under the California Environmental Quality Act (“CEQA”).
The plaintiffs claimed the EIR relied on an improper baseline, failed to demonstrate ... read more
- New Construction General Permit for Storm Water Discharges Effective July 1, 2010July 1, 2010
The California State Water Resources Control Board substantially revised the statewide General Permit for Discharges of Storm Waters Associated with Construction Sites that regulates water quality at construction sites ("Construction General Permit"). (See Order No. 2009-009 DWQ.) The new requirements, which take effect July 1, 2010, will significantly impact the planning and management of ... read more
- No Subsequent CEQA Review Required By Agency Which Lacks Authority To Mitigate Environmental ImpactsJune 18, 2010
In San Diego Navy Broadway Complex Coalition v. City of San Diego, California Court of Appeal has ruled that the California Environmental Quality Act (CEQA) does not require a subsequent or supplemental Environmental Impact Report (EIR) for allegedly significant impacts which the reviewing public agency does not have authority to reduce or avoid by imposing mitigation ... read more
- Even Where No Environmental Review Was Undertaken, 30-Day Statute of Limitations for CEQA Challenge Applies Whenever NOD is FiledFebruary 12, 2010
Yesterday, in Committee for Green Foothills v. County of Santa Clara, the California Supreme Court considered the question, if a notice of determination ("NOD") has been filed, but an action alleges that no environmental review was undertaken, which statute of limitations applies: (1) the general 30-day limit on challenges following a notice, or (2) the longer 180-day period provided for a ... read more
- Mitigation Measures May Survive Expired ApprovalFebruary 9, 2010
The First District Court of Appeal ruled that the California Department of Forestry (CDF) improperly approved an exemption for harvesting less than three acres of timber where previous timber harvesting plans included mitigation measures prohibiting tree-cutting in the proposed area.
Even though the previous approvals had expired, the court in Katzeff v. California Department of ... read more
- To Avoid Mandatory Dismissal, CEQA Petitioner Must File and Serve Written Request For Hearing Within 90 Days Of Filing PetitionJanuary 15, 2010
It has long been established that a petitioner challenging a local agency’s compliance with the California Environmental Quality Act (“CEQA”) must “request” a court hearing within 90 days of filing the petition, or face mandatory dismissal. A new case, County of Sacramento v. Superior Court (Forster-Gill, Inc.) clarifies that the request for a ... read more
- Supreme Court Rules CEQA Does Not Apply When Agency Declines to Renew Use Permit for Private ApplicantJanuary 13, 2010
The California Supreme Court has clarified that a local agency’s decision to deny renewal of a private party’s existing, time-limited land use permit is not a “project” to which the California Environmental Quality Act (“CEQA”) applies.
This decision applies only to private facilities; agency decisions to close existing public facilities have been held previously by the ... read more
Eminent Domain and Inverse Condemnation
- Ninth Circuit En Banc Panel Finds Goleta’s Mobile Home Rent Control OrdinanceDecember 23, 2010
An en banc panel of the Ninth Circuit, in a much anticipated decision, has found that the City of Goleta’s mobile home rent control ordinance did not cause a taking of the Guggenheim’s property because they received exactly what they bargained for. The court rejected the reasoning of the three judge panel of the Ninth Circuit that previously found a taking had occurred and affirmed the ... read more
Trial and Litigation
- Restraining Orders: Protecting Public Employees When Public Access Becomes ThreateningDecember 3, 2010Can a city restrict the conduct of a self-described civic-minded individual, with a history of flamboyant speech and dramatic behavior in his communications with the city, without running afoul of free speech rights?In City of San Jose v. William Garbett, filed on November 24, 2010, the Sixth Appellate District Court of Appeal says yes, when the conduct meets the conditions for an ... read more
- US Supreme Court Holds City’s Review of Employee Messages on City Pager Was Reasonable in Circumstances, But Avoids Clarifying General StandardsJune 17, 2010
In City of Ontario v. Quon, the U.S. Supreme Court issued a narrow ruling that the City's review of a SWAT officer's text messages sent over a City-issued pager was reasonable in the circumstances of that case, and thus did not violate the Fourth Amendment to the Constitution. But the Court avoided answering two broader questions about how courts should analyze non-investigatory, ... read more
- Pitchess Discovery Limited to Criminal Cases Involving Allegations That Officer Used Excessive ForceApril 26, 2010On Friday, April 23, 2010, a California appeals court ruled in Brown v. Valverde that motions filed pursuant to California Evidence Code section 1043 et seq. and Pitchess v. Superior Court (Pitchess motions) to request peace officer personnel records are not available in administrative per se hearings conducted by the California Department of Motor ... read more
- New decision affecting Miranda: Maryland v. ShatzerFebruary 25, 2010
On February 24, 2010, the U.S. Supreme Court came to a decision that will have long-lasting implications on police policy with respect to Miranda warnings.
The case, Maryland v. Shatzer, 08-680, examined whether a police investigation in Maryland was performed illegally when they re-interrogated a man suspected of sexual assault over two years after the first interrogation. At issue ... read more
- No More Limits on “Permissible Quantity” of Medical MarijuanaJanuary 25, 2010
On January 21, 2010, the California Supreme Court issued its ruling in People v. Kelly (S164830), which essentially eliminates the limitations on the quantity of medical marijuana that a qualified patient or primary caregiver may legally possess or cultivate.
After the California voters adopted the Compassionate Use Act (“Act”), the California Legislature enacted Health ... read more
Municipal and Special District Law
- Proposition 26’s Immediate Impact on Local Governments Will Be LimitedNovember 8, 2010
Voters approved Proposition 26 at the November 2, 2010 election, and, upon certification of the results, the measure will be effective as of November 3.
The main thrust of Proposition 26 was to require a two-thirds vote of both houses of the Legislature to approve “regulatory fees” that the measure indicates are unrelated to a regulatory program.
But it will also directly limit local ... read more
- City of Alhambra v. County of Los Angeles: Unlawful to Impose Property Tax Administration Fees on Triple Flip and VLF Swap RevenuesJuly 13, 2010
Under state law, counties are authorized to charge fees to cities and other local governments that receive property tax revenues for the costs of administering the property tax system in proportion to the amount of property tax received. These fees are referred to “property tax administration fees” or PTAF. State law does not authorize counties to charges the PTAF to school districts. ... read more
- Ordinance Prohibiting Day Laborers from Soliciting Employment from Motorists Does Not Violate Free Speech RightsJune 11, 2010
In Comite De Jornaleros De Redondo Beach v. City of Redondo Beach, the Ninth Circuit has held that a Redondo Beach ordinance, which prohibits persons from standing on a street or highway and soliciting employment, business, or contributions from motorists, is a content-neutral, reasonable time place and manner restriction that does not violate First Amendment freedom of speech ... read more
- California Supreme Court rejects use of maximum permitted operational levels as CEQA baseline for environmental review of refinery projectMarch 17, 2010
In Communities for a Better Environment v. South Coast Air Quality Management District, the California Supreme Court affirmed the appellate court’s decision and held that analyzing the “worst case” emission impacts of a new refinery project against the existing facility’s maximum permitted emission levels was inconsistent with the California Environmental Quality Act (Pub. ... read more
- Court of Appeal Holds That County Must Include ERAF Revenue in Calculating Pass-Through Payments By Redevelopment Agency to School DistrictFebruary 8, 2010
On January 27, 2010 the Court of Appeal filed its decision in Los Angeles Unified School District v. County of Los Angeles et al., in which the Court analyzed the overlap between the Educational Revenue Augmentation Fund (“ERAF”) legislation in the Revenue and Taxation Code and the pass-through legislation applicable to redevelopment agencies found in the Health and Safety ... read more
- State Initiative to Legalize Marijuana One Step Closer to BallotFebruary 5, 2010
The proponents of “The Regulate, Control and Tax Cannabis Act of 2010,” which would legalize marijuana for personal use by those twenty-one years of age or older, reportedly submitted over 700,000 signatures to the Secretary of State on January 28, 2010, in an effort to qualify the measure for the November 2010 ballot (“Initiative”).
The Secretary of State has eight business days ... read more
- Dodd-Frank Financial Reform Gives Public Entities New Rights as the SEC Seeks CommentAugust 10, 2010
With the ink barely dry on the Dodd-Frank financial reform law, a new world dawns as municipal and other public agencies get new rights and protections formerly reserved to the investor community. The legislation comprises the most massive and sweeping changes to the financial markets since the Great Depression, and its effects will be multiplied through hundreds of mandated rulemaking and ... read more
Labor and Employment
- Appellate Court Finds Unconstitutional Statutes Favoring Speech Related To Labor Disputes And Holds That A Private Property Owner May Ban Picketing On Its PropertyJuly 27, 2010
Given the California appellate court's recent ruling in Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8 (January 19, 2010) 2010 DJDAR 11199, police departments may now receive increased requests to remove peaceful picketers in labor disputes from private property. While this case may provide authority for police officers to remove such picketers from ... read more
- Definition of “Son or Daughter” in FMLA Expanded by Department of Labor Opinion LetterJuly 2, 2010
The U.S. Department of Labor issued an Opinion Letter clarifying that an employee who has day-to-day responsibilities to either care for or financially support a child qualifies for leave under the Family and Medical Leave Act (FMLA), even if the employee has no biological or legal relationship with the child.
The FMLA protects eligible employees who take leave to address any enumerated ... read more
- City of San Jose v. Operating Engineers: Public Agencies Must Usually Seek Relief From PERB And Not The Courts When A Threatened Strike Will Endanger Public WelfareJuly 1, 2010
This morning, in City of San Jose v. Operating Engineers Local Union No. 3, the California Supreme Court held that a public employer must generally first seek relief from the Public Employment Relations Board (PERB) before asking a superior court for injunctive relief when the employer believes that a threatened strike may endanger the public welfare.The Court noted that the ... read more
- 9th Circuit Finds that Public Employee Not Speaking As Part of His Official Duties Can Sue For First Amendment RetaliationMay 27, 2010
The Ninth Circuit Court of Appeals recently held that a “low-level” public employee’s First Amendment retaliation claim could proceed to trial because the employee’s duties did not include reporting misconduct and false statements made to the public agency’s governing board.In Anthoine v. North Central Counties Consortium (9th Cir. May 24, 2010), Case No. 08-16803, the court ... read more
- The California Supreme Court Takes a Bite Out of the Finality of Arbitration AwardsMay 7, 2010
A recent California Supreme Court decision has created an air of less certainty surrounding the finality of arbitration awards.Arbitration awards have been typically viewed as being final – not subject to court review unless there is evidence of fraud or corruption. But the California Supreme Court, in Pearson Dental Supplies v. Superior Court, carved out an exception for when a ... read more
Economic Development, Real Estate and Housing
- Redevelopment Plan Invalidated Due to Insufficient Blight FindingsJune 24, 2010
In County of Los Angeles v. Glendora Redevelopment Project, the Court invalidated the City of Glendora’s Redevelopment Plan for the Merged Glendora Redevelopment Project (Plan) because the Court found that the administrative record did not contain substantial evidence of physical blight in the project area.
The Plan was adopted by the City Council of the City of Glendora in ... read more
- Redevelopment Agency SERAF Payment Requirements Upheld; CRA Will AppealMay 4, 2010
In a setback for redevelopment agencies, Judge Lloyd Connelly ruled today to deny petitions seeking to overturn AB 26 x4 which mandates a statewide contribution from redevelopment agencies equal to an aggregate $1.7 billion during fiscal year 2009-10 and an additional $350 million in fiscal year 2010-11. The 2009-10 payments are due to county auditor-controllers on May 10. In the 24-page ... read more
- Appellate Court Holds Redevelopment Agencies May Use Low/Mod Funds for any Authorized Purpose Provided there is a Nexus with Affordable Housing; Affirms Article 34 ExemptionApril 29, 2010
A California Court of Appeal recently held that redevelopment agencies may use Low and Moderate Income Housing Fund (“LMIHF”) monies to purchase and renovate buildings that will not themselves be used for affordable housing so long as there is a nexus between the expenditures and the goal of improving and increasing affordable housing. In the same case, the Court affirmed the ... read more
- Court of Appeal Publishes Opinion in Hotly Debated Community Redevelopment CaseJanuary 14, 2010The Court of Appeal has published its December opinion in JSM Rivara, LLC v. the Community Redevelopment Agency of the City of Los Angeles and the City of Los Angeles (JSM Rivara, LLC v. CRA/LA).
Its publication underscores the importance of the case for redevelopment agencies around the state. JSM Rivara, LLC v. CRA/LA raised significant ... read more
Climate Change and Green Initiatives
- Bay Area Air Quality District Adopts CEQA Guidelines For Greenhouse Gas and Other PollutantsJune 10, 2010The Bay Area Air Quality Management District (BAAQMD) adopted new CEQA Guidelines for analysis of air quality impacts. For the first time, it includes guidance on the analysis and determination of significant impacts for greenhouse gases (GHGs).The Guidelines set lower emission levels for other pollutants (such as ozone and particulate matter) that will result in a significant impact under CEQA. ... read more
- Time to Get Ready for New Mandatory California Green Building CodeMay 26, 2010
California’s first-in-the-nation mandatory green building code - CALGreen - will take effect on January 1, 2011. CALGreen establishes uniform, mandatory minimum green building regulations throughout the State. Local jurisdictions need to carefully review CALGreen before it takes effect to determine if they want to adopt amendments, and how CALGreen affects existing local green building ... read more
- CA Court of Appeal Issues First Decision on CEQA and Greenhouse Gas EmissionsApril 28, 2010
The California Court of Appeal issued its first decision on the analysis and mitigation of greenhouse gas emissions (GHGs) under the California Environmental Quality Act (CEQA). The Court ruled that the mitigation of GHGs for a large refinery project was inadequate under CEQA and set aside the environmental impact report (EIR) prepared for the project.
In Communities For A Better ... read more
- City’s Billboard Bans Do Not Violate Free Speech RightsMay 28, 2010
The Ninth Circuit Court of Appeals has issued a decision that clarifies the current state of the law in balancing a local government’s authority to regulate billboards with First Amendment protections. In World Wide Rush LLC v. City of Los Angeles, the Court held that the City of Los Angeles’ ban on freeway facing billboards does not violate freedom of speech rights where the ban ... read more
- EIR Set Aside for Inadequate Alternatives Analysis and Failure to Prepare Water Supply AssessmentMay 27, 2010
The Court of Appeal rejected an EIR for a proposed open-air composting facility in San Bernardino County. In Center for Biological Diversity v. County of San Bernardino, the court ruled that the EIR’s rejection of an enclosed facility alternative as economically and technologically infeasible was not supported by substantial evidence in the record. The court further determined that ... read more
- Court Holds that Inclusion of a “Supercenter” in a Project Does Not Automatically Mean Urban Decay Impacts Must Be StudiedMarch 26, 2010
In Melom v. City of Madera, the Fifth Appellate District revisited the issue of evaluation of the environmental impacts of “Supercenters” under CEQA addressed previously in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 (Bakersfield Citizens) and held that there is nothing about the inherent nature of a supercenter that ... read more
- Agreement for City Services to Proposed Tribal Casino is Not a Project under CEQAMarch 1, 2010
The First District Court of Appeal ruled that the City of Richmond did not violate CEQA when it entered into a municipal services agreement (MSA) for a tribal casino proposed on unincorporated lands adjacent to the City. In Parchester Village Neighborhood Council v. City of Richmond, the court reversed a trial court decision and agreed with the City that the MSA was not a project ... read more
- 8,000 Adult Items in One Store Found “Substantial” by 2nd CircuitFebruary 3, 2010
In VIP of Berlin, LLC v. Town of Berlin, __ F.3d __, 2010 WL 252292 (2nd Cir. Jan. 2010), the Second Circuit Court of Appeals overturned a district court ruling and rejected an as-applied vagueness challenge to a Town of Berlin's ordinance and in so doing, presented an excellent discussion of the vagueness doctrine and its application to the construction of the term ... read more
- EIR Required For Ordinance Banning Retail Distribution of Plastic BagsJanuary 29, 2010
In Save the Plastic Bag Coalition v. City of Manhattan Beach, the Second District Court of Appeal (Los Angeles) has held that the California Environmental Quality Act (CEQA) required the City of Manhattan Beach to prepare a full Environmental Impact Report (EIR) before approving an ordinance to ban stores and other retail outlets from distributing plastic bags.
The case ... read more
Writs and Appeals
- Court of Appeals Gives Deputy Coroners An Unkind CutApril 27, 2010The California Court of Appeal recently held that a deputy coroner’s principal duties and functions do not fall within the scope of “active law enforcement” under Government Code section 20436(a). As a result of this determination, deputy coroners are not entitled to be classified as “local safety members,” a classification that would substantially enhance their retirement ... read more
- Court of Appeal Decision Adversely Affects Public Entity Liability for Dangerous ConditionsApril 19, 2010
In an opinion published on April 16, 2010 the California Court of Appeal, Third Appellate District held that in cases in which a plaintiff has alleged that a dangerous condition of public property caused injury, the public entity defendant cannot rely on the absence of prior accident claims to prove that the public property did not pose a substantial risk of injury to the plaintiff. In the ... read more
- EIR Not Required to Evaluate Off-Site Alternative Which Does Not Meet Project ObjectivesApril 12, 2010
The Lawrence Berkeley National Laboratory ("Lab") is a special research facility which, though located primarily in the Berkeley hills on land owned by the Regents of the University of California, is financed by the federal government.In Jones v. Regents of the University of California, the Court of Appeal has upheld an Environmental Impact Report for the Lab's Long Range Development ... read more
- Filing a Notice of Exemption Triggers a 35-day Statute of Limitations for CEQA-Based Challenge to the Project ApprovalApril 2, 2010The California Supreme Court ruled yesterday that filing a Notice of Exemption triggers CEQA’s 35-day statute of limitations and that plaintiffs cannot avoid the limitations period by claiming defects in the underlying project approval process.In a lengthy opinion for Stockton Citizens for Sensible Planning v. City of Stockton, the Court’s comprehensive discussion led to a simple, ... read more
- California Supreme Court Upholds Constitutionality Of LAX Solicitation Regulations Challenged By Hare KrishnasMarch 29, 2010
In International Society for Krishna v. City of Los Angeles the California Supreme Court ruled that the solicitation regulations at the Los Angeles International Airport ("LAX") are valid as reasonable time, place and manner restrictions under state law. (2010 WL 1071387 (Cal.)) While this ruling will provide additional authority to support solicitation regulations, municipalities ... read more
- Police Officers Who May Don and Doff At Home Are Not Engaged in FLSA Compensable WorkMarch 25, 2010The Ninth Circuit has held that the donning and doffing of uniforms and accompanying safety gear by police officers is not compensable work under the Fair Labor Standards Act (FLSA) if officers may don and doff at home. Thus, any police or sheriff’s department that permits its officers or sheriffs to don and doff their uniforms and gear at home is not legally required to pay for that ... read more
- Ninth Circuit Orders Rehearing En Banc, Vacating Controversial Regulatory Takings Decision in Guggenheim v. City of GoletaMarch 24, 2010
In September 2009, the Ninth Circuit, in a split decision authored by Judge Bybee, departed from established takings jurisprudence to find that the vacancy control provision of a rent control ordinance for mobile home parks in the City of Goleta caused a taking for which just compensation must be paid, despite the fact that the ordinance clearly did not interfere with the property owner's ... read more
Transportation and Infrastructure