California Supreme Court Grants Review in Save Tara v. City of West Hollywood

On Wednesday, May 16th, the California Supreme Court granted a petition for review of an appellate decision that could have important implications for California public entities that rely on contingent agreements with developers as a vehicle to pave the way for future development and redevelopment activities.

In Save Tara v. City of West Hollywood(2007) 147 Cal.App.4th 1091, the Court of Appeal found that the City violated the California Environmental Quality Act (“CEQA”) by failing to complete an environmental impact report for a low-income senior housing project before entering into a contingent agreement for the transfer of property to a nonprofit housing developer. The requirement imposed by the appellate court is an onerous one for cities, redevelopment agencies and developers, and conflicts with previous rulings that held that the public agency only needed to undertake CEQA review before committing to a definite course of action with respect to a proposed project. If it stands, the Tara decision could jeopardize the ability of cities, redevelopment agencies and other California public agencies to enter into Disposition and Development Agreements and other agreements that make the conveyance of property expressly contingent upon the satisfaction of enumerated conditions including the developer’s acquisition of all required land use entitlements and the completion of required review under CEQA. This result could seriously impede the development and financing of affordable housing and other redevelopment projects, because without preliminary assurances from cities and redevelopment agencies, developers have little financial incentive to prepare site development plans and undertake other costly predevelopment activities, including the financing of required CEQA analysis. The Supreme Court’s grant of review will also help resolve uncertainties in this area of the law, since the Tara decision is at odds with earlier decisions in Stand Tall on Principles v. Shasta Union High School District, 235 Cal.App.3d 772 (1991) and Concerned McCloud Citizens v. McCloud Community Services District (2007) 147 Cal.App.4th 181.

We will continue to monitor this case closely as it moves through briefing and oral argument, and Meyers Nave, on behalf of its public agency clients, intends to file an amicus brief in support of the City of West Hollywood. Cities and redevelopment agencies who are interested in filing their own briefs in support may obtain additional information regarding the briefing schedule by contacting West Hollywood city attorney Michael Jenkins at or John Cotti at

Meyers Nave is recognized for its work with all types of public agencies in California and provides the full scope of legal services to cities, counties, redevelopment agencies and special districts statewide.

Supreme Court Grants Review of Spielbauer v. County of Santa Clara

Court of Appeal (6th District) Case No. H029345, Supreme Court Case No. S150402. On May 9, 2007, the California Supreme Court granted review of Spielbauer v. County of Santa Clara, a decision that declined to follow previous cases holding that a public employer can require its employees to waive their Fifth Amendment right against self-incrimination in administrative investigations in exchange for immunizing those statements from use in a criminal proceeding.

The Court of Appeal in Spielbauer held that a public employer has no authority to offer immunity, and without providing immunity the agency could not discipline public employees who assert their Fifth Amendment right not to testify in an administrative proceeding. Because the California Supreme Court granted review of Spielbauer, it can not be cited as legal authority.

Prior to Spielbauer, cases construing Lybarger v. City of Los Angeles held that a public employer could offer criminal immunity to compelled statements of employees and discipline them if they refused to waive their Fifth Amendment rights. Spielbauer disagreed, creating a conflict over the employer’s right to compel such testimony. Thus, the question now is what public employers should do while waiting for a Supreme Court ruling on Spielbauer?

The Supreme Court’s review of Speilbauer creates three options:

1. An employer can simply take the position that Spielbauer is not binding law, and can instead follow Lybarger (which is binding law), permitting employers to discipline employees who refuse to waive their Fifth Amendment rights after being given a “Lybarger warning” – advising that their statements cannot be used against them in criminal proceedings. Meanwhile, public employees may rely on Spielbauer and refuse to waive their Fifth Amendment rights. If the Supreme Court reverses Spielbauer and affirms Lybarger , there will be no problem. If not, however, and the Supreme Court holds that public employers cannot unilaterally bestow immunity on compelled testimony, disciplinary actions based solely on insubordination (for refusing to answer) may be overturned.

2. Alternatively, an employer could “sidestep” the issue by accepting the employee’s refusal to waive his or her Fifth Amendment rights and use evidence obtained from sources other than the employee’s statement. The employee can be disciplined for the misconduct, and should not be telling a different story at the time of hearing because the employee cannot do so without waiving the employee’s Fifth Amendment rights.

3. Finally, the employer can still offer Lybarger immunity during the investigation and caution that a refusal to answer will constitute insubordination. If the employee refuses to answer, the employer can discipline the employee both for the underlying misconduct and for insubordination as a separate and independent basis for discipline. Using this approach allows the agency to have the discipline upheld on an alternative basis even if the Supreme Court ultimately affirms Spielbauer.

LEG Advisory: Some employees may choose to testify, with or without Lybarger immunity, especially if the likelihood of criminal prosecution is remote. They may prefer to waive their right against self-incrimination to ensure that they get to tell their story during the investigation, Skelly meeting, and post-discipline hearing. Take advantage of this by at least documenting compliance with Lybarger.

Meyers Nave Principal Deborah Fox Honored with 2007 Top Women Litigators Award

Meyers Nave announces that Principal Deborah J. Fox has been named one of “California’s 2007 Top Women Litigators” by the Daily Journal, the state’s premier legal publication.

The honor is bestowed upon the state’s most prominent women litigators for their career achievements and contributions to the profession. Deborah Fox is one of California’s foremost experts on First Amendment issues affecting the public sector. Fox’s 24-year career in First Amendment law together with constitutional and complex land use litigation, and her extensive trial experience earned her this honor.

“Deborah is known to city councils, city managers and city attorneys throughout the state for her expertise in adult use and First Amendment legal issues, as well as for her ability to successfully balance land use regulation constraints and constitutional protections. I am extremely pleased that the Daily Journal has recognized Deborah’s achievements in this unique and complex area of law,” states Jayne Williams, Managing Principal of Meyers Nave.

Deborah brings an additional value to her clients by not only successfully defending cities in such matters, but also achieving awards in attorneys’ fees for her municipal clients. In a climate of dwindling budgets and limited funding for public agencies, Deborah’s expertise is vital to California cities’ successful defense against illegitimate claims.

Deborah is a principal in Meyers Nave’s Los Angeles office. Deborah’s practice area includes trial and appellate work in both state and federal courts and frequently involves claims for violation of substantive and procedural due process, equal protection, the First Amendment and civil rights, inverse condemnation and takings claims. She has lectured and written extensively on the First Amendment including publications in Urban Lawyer. She is AV rated by Martindale-Hubbell for reaching the height of professional excellence and recognized for the highest levels of skill and integrity. Additionally, she is listed in Martindale-Hubbell’s 2004, 2005 and 2006 Register of Preeminent Lawyers.

Deborah is a member of the State Bar of California, the American Bar Association, the Los Angeles County Bar Association and the League of California Cities Adult Use Task Force where she participated in the preparation of the League’s Model Ordinance. She serves as a settlement officer for the North Central District Division of the Los Angeles Superior Court and is admitted to practice in the courts of the State of California, United States Supreme Court, Ninth Circuit Court of Appeals and several U.S. District Courts.

Deborah received her J.D. from the University of San Diego, School of Law in 1983 and her B.A. in Political Science and Cultural Anthropology from the University of Michigan in 1980.

About Meyers Nave

Meyers Nave is a full-service law firm recognized for its work with all types of public entities in California. Founded in 1986, the firm’s 90 attorneys provide a full scope of legal services to cities, counties, redevelopment agencies and special districts statewide. Meyers Nave is headquartered in Oakland with offices in Los Angeles, San Francisco, Sacramento and Santa Rosa. Meyers Nave’s areas of practice include labor/employment; eminent domain; city attorney/general counsel representations; land use; torts; redevelopment and housing; airport regulatory and public law; litigation; writs and appeals; public contracts and construction; environmental law; and public power and telecom.

U.S. Supreme Court Rules EPA May Regulate Greenhouse Gas Emissions

In a 5-4 decision in Massachusetts v. EPA, the United States Supreme Court ruled that the Environmental Protection Agency (EPA) has the authority to promulgate regulations of greenhouse gas emissions, including carbon dioxide from vehicles.

The Court further held that EPA’s failure to do so in response to a rulemaking petition from the State of Massachusetts, without providing sufficient explanation, was arbitrary and capricious, and violated the law.

The Court found that the Clean Air Act’s (CAA) broad definition of “air pollutant,” as any physical or chemical substance emitted into the ambient air, included carbon dioxide and other greenhouse gases. Since greenhouse gases are covered by the CAA, EPA is required to make a reasoned judgment on whether or not to issue regulations. EPA can avoid promulgating greenhouse gas emission regulations, “only if it determines that greenhouse gases do not contribute to climate change, or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.” The Court did not consider that the policy judgments relied upon by EPA provided a “reasonable explanation” for not promulgating regulations.

Noting that the harms associated with climate change are serious and well recognized, the Court held that Massachusetts established it would suffer an actual and imminent injury due to the impact on its coastline of a rise in global sea levels resulting from global warming. The court further noted that EPA’s regulations could address these injuries by reducing emissions and slowing the pace of global warming.

Since the Court ruled that EPA may regulate greenhouse gases under existing law (the CAA), new federal regulation may result without congressional action. The decision also may result in federal regulation of greenhouse gas emissions from non-vehicle sources. Moreover, the opinion may spur passage of new climate change law. The ruling may also influence EPA’s decision on California’s pending request for a waiver to allow the state to regulate greenhouse gas emissions from vehicles, and be used by California to defend against lawsuits challenging the state’s greenhouse gas emissions laws.

Individual Proposing Discipline Can Serve as the Skelly Hearing Officer

Flippin v. Los Angeles City Board of Civil Service Commissioners. This case provides insight into who can serve as the hearing officer at a pre-disciplinary Skelly hearing.

Kenneth Flippin (“Flippin”) is a former truck driver for the Los Angeles Department of Water and Power (“DWP”). On April 11, 2003, a DWP dispatcher received a phone call from a customer complaining that a DWP employee was sleeping in a hammock under a DWP truck in the City of Los Angeles. Mr. Flippin’s supervisor drove to the scene of the citizen complaint and found Flippin sleeping soundly with his eyes closed in a hammock suspended beneath his truck.

DWP manager John Sharp (“Sharp”) investigated the sleeping incident. After concluding his investigation, Sharp issued Flippin a notice of intent to terminate that provided Flippin with the opportunity to respond to Sharp either orally or in writing with any facts Flippin wished to have considered by the DWP before any discipline was imposed.

After this case made its way through the DWP disciplinary process, the Los Angeles Civil Service Board sustained the proposed termination. Flippin filed a writ petition with the Superior Court challenging the Civil Service Board’s decision to terminate Flippin from his employment with the DWP. One of the arguments Flippin raised in the writ petition was that he was denied due process because Sharp investigated the sleeping incident, issued the intent to terminate and was also designated by the DWP as the Skelly officer. The Superior Court disagreed and held that no due process violation occurred. Flippin filed the instant appeal challenging, among other things, the Superior Court’s ruling that Flippin was afforded adequate due process.

In Skelly v. State Personnel Board, 15 Cal.3d 194 (1975), the California Supreme Court held that in order to satisfy due process, a public agency considering disciplinary action against a permanent public employee must afford the employee certain pre-removal safeguards, including:

  • Notice of the proposed disciplinary action;
  • The reason(s) for the proposed disciplinary action;
  • A copy of the charges and materials upon which the proposed disciplinary action is based; and
  • The right to respond to the charges either orally in writing.

In this case, Flippin argued that he was denied due process because Sharp was not an impartial Skelly officer. In making this argument, Flippin relied on the holding in Titus v. Civil Service Commission, 130 Cal.App.3d 357 (1982). In Titus, the Court held that “having the same person who originally imposed the discipline also review the decision” is a violation of due process. Flippin argued that this quotation plainly forbids someone who performed a disciplinary investigation from also serving as the Skelly officer.

The Court of Appeal disagreed with Flippin, and held that he was afforded adequate due process when Sharp was designated as his Skelly officer. In reaching this conclusion, the Court clarified that the quotation Flippin relied upon in Titus applies to post-deprivation administrative appeals (i.e. post-disciplinary arbitration, civil service commission hearing etc.) not Skelly hearings.

LEG Practice Advisor: This case clarifies that there is no due process violation when the individual who initially recommends discipline also serves as the Skelly hearing officer.

If you have any questions, please feel free to contact Jesse Lad.

California Supreme Court Requires More Extensive Environmental Review to Adequately Analyze Long-Term Water Supply for Long-Range Development Project

Vineyard Area Citizens v. City of Rancho Cordova, California Supreme Court Case No. S132972 (February 1, 2007). The California Supreme Court held an EIR failed to adequately analyze the impacts of a long-term water supply for a long-range plan to develop 6,000 acres with approximately 22,000 residential units.

The Court identified the principal disputed issue as “how firmly future water supplies for a proposed project must be identified or, to put the question in reverse, what level of uncertainty regarding the availability of water supplies can be tolerated in an EIR for a land use plan.” The Court emphasized that “CEQA should not be understood to require assurances of certainty regarding long-term future water supplies at an early phase of planning for large land development projects.” However, “[i]f the uncertainties inherent in long-term land use and water planning make it impossible to confidently identify the future water sources, an EIR may satisfy CEQA if it acknowledges the degree of uncertainty involved, discusses the reasonably foreseeable alternatives-including alternative water sources and the option of curtailing the development if sufficient water is not available for later phases-and discloses the significant foreseeable environmental effects of each alternative , as well as mitigation measures to minimize each adverse impact.”

As applied to the Project, the Court held that the EIR adequately evaluated the near-term water supply for the Project. Although much uncertainty still remained, the Court held that there was substantial evidence in the record demonstrating a reasonable likelihood that the near-term groundwater supplies would be available at least in substantial part to apply to the Project’s near-term needs. However, the Court held that the EIR did not adequately analyze the long-term water supply for the Project. The Court found that there were factual inconsistencies and lack of clarity in the EIR that made it unclear whether sufficient water would be available for the Project at full build out. The Court also held that the EIR for the Project did not properly tier off of or incorporate a prior EIR’s analysis of water sources.

The Court also held that the EIR should have been recirculated on the impact of the groundwater extraction on the Cosumnes River salmon. The Court held that the County’s response in the Final EIR that this impact was insignificant was not supported by substantial evidence.

California Supreme Court Agrees with Meyers Nave Amicus Brief; Holds Newly Incorporated City Not Estopped from Disapproving Final Subdivision Map

In a decision upholding the discretion of the newly incorporated City of Goleta to deny a “final” subdivision map that complied with a “tentative” map which was previously approved by the County out of which the City was formed, the California Supreme Court has emphasized the difficulty of holding local agencies to be “estopped,” on grounds of alleged unfairness, from acting in compliance with their laws.

Peter Hayes and Amrit Kulkarni of the Meyers Nave Land Use Group, along with Kyle La Londe, supported the City’s estoppel arguments in an amicus brief, filed on behalf of the League of California Cities and the City of Laguna Woods.

The Subdivision Map Act (SMA) generally requires that a final subdivision map be approved if it complies with a previously approved tentative subdivision map. However, the SMA contains a “safe harbor” provision, under which a newly incorporated city is not obligated to approve a final map if (1) the developer applied for the tentative map after circulation of the city’s incorporation petition commenced, or (2) the county approved the tentative map after the voters approved the incorporation.

In City of Goleta v. Superior Court (December 21, 2006), the California Supreme Court held the City was not barred from relying on the safe harbor provision of the SMA by its interim adoption of a County subdivision ordinance that mandated approval of final map in conformity with a tentative map previously approved by “the County” – because the City had amended the interim ordinance to refer to maps previously approved by “the City.”

The Court also rejected the developer’s arguments that the City was “estopped” from relying on the safe harbor provision by the City’s alleged representations that the final map “would receive ministerial approval.” The Court emphasized that estoppel “will not apply against a governmental body except in unusual instances when necessary to avoid grave injustice . . . .” The Court refused to apply estoppel in this case, where there was no evidence that the City expressly promised approval of the final map, and City officials had — both before and after incorporation — made public their concerns about the project.

Tulare County Superior Court Holds that Compulsory Binding Interest Arbitration is Unconstitutional

Superior Court Judge Melinda Reed Refuses to Order the County to Arbitration to Resolve a Bargaining Impasse between the County and its Deputy Sheriffs Association.

In a case argued on Monday, October 2, 2006, the Tulare County Superior Court struck down SB 402 / 440 as unconstitutional, handing the County a complete trial court victory. Meyers Nave served as associate counsel on behalf of the County of Tulare.

The trial court’s ruling, issued the same day of the argument, is succinct. The Court rejected the DSA’s argument that SB 440 cured the Constitutional defects in SB 402. The Court stated as follows:

SB 440’s attempt to correct SB 402’s constitutional deficiencies fails. The amended code (CCP section 1299.7) provides that “the decision of the arbitration panel shall not be publicly disclosed, and shall not be binding, for a period of five days after service to the parties.” It requires that within that five days, unless the parties agree to extend the time, the employer may, by unanimous vote of all the members of the governing body, reject the decision of the arbitration panel. As amended, the code could allow just one supervisor to implement the arbitrator’s decision by not rejecting it. Thus, the power of the entire Board in this matter would be delegated to the arbitrator and one Board member. This is unconstitutional.

The DSA has already filed a notice of appeal. Thus, this case is on track to become the first case considering the constitutionality of SB 440 in the courts of appeal.

LEG Advisory: We have previously reported on the Statewide litigation regarding SB 402 / 440. There is a case currently pending in Tuolumne County, brought by the Tuolumne County Deputy Sheriff’s Association. The parties recently settled the bargaining dispute, however, and that case will be dismissed shortly.

Court of Appeal Holds that Subdivision Map Act Limits Time that Vesting Tentative Maps Can Be Extended Due to Development Moratoria, and that Filing of an Admittedly Nonconforming Phased Final Map Does Not Extend the Life of the Tentative Map

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, Government Code section 66410 et seq.

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 developer argued that the statute limits to five years the length of time that a development moratorium could be imposed, not the length of any moratorium-related tolling of the expiration of the vesting tentative map. The City, in contrast, argued that the statute imposes a five-year limit on the length of the period during which the life of a vesting tentative map may be tolled as a result of development moratoria.

The Court of Appeal agreed with the City’s interpretation, holding that the length of any moratorium-related tolling of the expiration of a vesting tentative map was limited to five years. The Court found the plain language of the statute to be ambiguous, but that resort to the larger statutory scheme and the legislative history demonstrated that the five-year limitation applies to the length of the moratorium-related tolling. The Court also relied on “reason, practicality and common sense” to confirm its conclusion, noting that interpreting section 66452.6(b)(1) to mean that development moratoria would expire after five years, regardless of whether the reasons for the moratoria were still in effect, would lead to absurd practical results. The Court also rejected the developer’s arguments that multiple moratoria could lead to multiple tolling periods, and that the City was estopped from asserting the five-year limit by the substantial amount of money the developer had spent financing public improvements.

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.

Court Holds There Was No Duty to Meet and Confer Regarding City’s Anti-Racial Profiling Program Affecting Police Officers

California Supreme Court Decision in Claremont Police Officers Association v. City of Claremont (06 C.D.O.S. 7440, Slip op. Aug. 15, 2006). Earlier this week, the California Supreme Court filed its decision in the Claremont case, a case in which Meyers Nave filed an amicus curiae brief on behalf of the League of California Cities. The case concerned the scope of an agency’s meet and confer obligations under the MMBA.

The issue in Claremont concerned whether the city had an obligation to meet and confer regarding its decision to require its police officers to collect additional data regarding vehicle stops and detentions, including the person’s race. The program was aimed at determining if the officers were engaging in racial profiling.

The court of appeal previously held that the city violated its obligation to meet and confer. The Supreme Court reversed the court of appeal, holding that the city was not required to meet and confer with the police union before implementing the new requirements.

Basis for Holding

The Court held that implementing the program did not have a significant and adverse effect on the officers’ working conditions. Rather, the program required the officers only to provide “slightly more information” than what was otherwise required. Thus, the Court determined that this new program only had a “de minimis” impact, and there was no duty to meet and confer.

Test for Determining Meet and Confer Obligations

The Court summarized a “three-part inquiry” for gauging whether there is an obligation to meet and confer.

First, the question is whether the management action has a “significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees.” If not, there is no duty to meet and confer.

Second, the question is whether the significant and adverse effect arises from the implementation of a fundamental management or policy decision. If not, then the meet and confer requirement applies. If so, then a third question is asked.

Third, if the answer to questions one and two are “yes,” then the question is whether the “employer’s need for unencumbered decisionmaking in managing its operations is out-weighed by the benefit to employer-employee relations of bargaining about the action in question.” In considering this question, one factor to consider is “whether the transactional cost of the bargaining process outweighs its value.”

The Court declined to issue a broader ruling that would have eliminated the duty to meet and confer altogether when agencies implement a fundamental management decision. Further, the Court emphasized the “narrowness” of its holding, insofar as the record did not show a significant impact, and the Court did not decide whether there would be a duty to bargain “should other issues regarding officer discipline, privacy rights, and other potential effects arise” after the program is implemented.