California Supreme Court to Hear Marijuana Related Zoning/CEQA Case

The California Supreme Court has granted review in Union of Medical Marijuana Patients, Inc. v. City of San Diego, a case that will impact how all developers and owners of all types of projects should approach projects that involve new or changed zoning ordinances, particularly those that concentrate or shift property uses within a jurisdiction. The decision is expected to provide guidance on whether proposed new or changed zoning ordinances must first undergo California Environmental Quality Act review. The case also addresses the CEQA review of zoning activities that California municipalities are increasingly undertaking to regulate marijuana establishments after the passage of Proposition 64.

The case focuses on two primary questions raised by Petitioners:

  • Is an amendment of a zoning ordinance categorically a “project” subject to CEQA, or in the alternative, should local governments determine CEQA applicability by examining each zoning ordinance on a case-by-case basis to determine whether it is reasonably foreseeable that the ordinance may cause a change to the environment?
  • Is the enactment of a law allowing the operation of medical marijuana cooperatives in certain areas of a local agency’s jurisdiction categorically not subject to CEQA review?

Land Use and Environmental Law attorney Edward Grutzmacher published an article in Western Real Estate Business magazine that examines the issues before the Court and the potential impact on developers, owners and public agencies. Please click here to read his analysis of this case.

California Senate Bills Respond to Trump Administration’s Rollback of Environmental Laws

The Trump Administration has begun taking significant action to deliver its promised repeal or replacement of various federal laws affecting air, water, climate, endangered species, and public land. To both hedge against and work around an expected ongoing rollback of environmental, natural resources and public health protections, California Senators recently unveiled three bills:

  • SB 49 would make federal environmental standards enforceable under state law. (de León, D-Los Angeles, and Stern, D-Agoura Hills)
  • SB 50 would establish a policy to discourage the conveyance of federal public land in California to owners other than the federal government. (Allen, D-Santa Monica)
  • SB 51 includes proposed whistleblower protections for federal employees working in the environmental sciences and climate change-related fields. (Jackson, D-Santa Barbara)

A brief summary of each bill is available in this Client Alert provided by Meyers Nave attorney Greg Newmark.

In an article published in the Daily Journal on March 20, Greg specifically analyzed SB 49 to create an advisory on the important legal issues that would emerge if the bill is enacted in its current form. Please click here to read the article.

Initiative Campaigns: Do’s and Don’ts Checklist for Elected Officials and Public Employees

The California Secretary of State’s “Statewide Initiative Guide” provides the procedures and requirements for preparing and circulating initiatives, filing sections of the petition, and describing the procedure for verifying signatures on the petition.  The Guide is available here.  To help elected officials and public entity employees understand the primary restrictions on what they may and may not do when involved in initiative campaigns, Meyers Nave Principal Richard D. Pio Roda prepared this Do’s and Don’ts Checklist that is published in the January/February 2017 issue of California Special District magazine.  Please contact Rich with any questions.

California Supreme Court Closes an Anti-SLAPP Loophole

The California Supreme Court began 2017 with a significant anti-SLAPP decision that confirmed the broad reach of the state’s statute designed to protect freedom of expression. In Barry v. State Bar of California, 2017 DJDAR 83 (Jan. 5, 2017), the high court ruled that a lack of subject matter jurisdiction over a claim does not preclude a court from granting a special motion to strike under the anti-SLAPP statute, or from awarding statutory attorney fees and costs to the defendant. The Barry decision closes the “loophole” of being able to defeat an anti-SLAPP motion simply because an improper lawsuit that actually suppresses expression is also jurisdictionally flawed. This latest ruling – decided in the context of attorney disciplinary proceedings – continues the trend of California Supreme Court opinions that favor an expansive reading of the anti-SLAPP statute, thus allowing greater use of the statute as a defensive tactic.

For an analysis of Barry v. State Bar of California and its implications, please click here to read an article written by Shiraz Tangri published in the Daily Journal.

California’s Anti-SLAPP Statute: New Case Law in 2016

In 2016, California state and federal appellate courts grappled with First Amendment protected freedom of speech issues in numerous critical rulings addressing the reach of the state’s anti-SLAPP statute – a powerful litigation tool intended to protect free speech. Codified in Code of Civil Procedure Section 425.16, the anti-SLAPP statute authorizes a special motion to strike claims that are asserted to suppress constitutionally protected expression, known as “Strategic Litigation Against Public Participation.”

The use of the anti-SLAPP motion has continued to expand during its nearly 25 years of existence, in part due to the sharp teeth embedded in the statute – including a stay of discovery, recovery of attorney fees and an immediate right to appeal.  California practitioners should understand five key decisions that were issued in 2016 by the California Supreme Court, California Courts of Appeal and the 9th U.S. Circuit Court of Appeal, as they impact the future use of the anti-SLAPP motion as an offensive and defensive tactic. These decisions provide valuable direction on anti- SLAPP motions that may be raised against a wide variety of claims by both private and public litigants.

For a brief analysis of five critical 2016 cases and their implications, please click here to read an article written by Shiraz Tangri published in the Daily Journal.

Drones: Critical Issues for Local Governments

Drones can provide an efficient and low cost method for local governments to perform various tasks, such as surveying work and conducting structural analysis, as well as assisting in difficult or dangerous situations, such as firefighting and search-and-rescue missions. However, obtaining and using a drone requires more than simply purchasing the drone and assigning an employee to operate it.

Local governments need to consider a variety of critical issues before utilizing this rapidly advancing technology. In addition to complying with federal regulations, public agencies should develop drone-use policies and procedures, and then be ready for the unenviable task of addressing the highly sensitive concerns that local residents may have about privacy and safety.

Please click here to read “Drones in Your District: Technology, Existing Law, and Privacy Concerns,” an article published in California Special District magazine by Meyers Nave attorney Kristopher Kokotaylo.

Stormwater Discharge: Preventing Enforcement Actions

Constantly changing federal, state and local regulations governing stormwater discharges are intended to improve the management and control of runoff water, but the practical result often increases both the complexity of compliance and cost of noncompliance. It is absolutely critical to know when you are subject to stormwater regulations, under what circumstances permits are required, and what to do upon receiving a notice of violation or enforcement from the regulator or a notice of intent to sue from an environmental group.

In an article published in Facility Executive, Meyers Nave Principal Greg Newmark explains how stormwater regulations differently impact the operation of existing facilities, design of new and modified facilities, and management of construction projects. Greg also describes the primary steps for developing and implementing Stormwater Pollution Prevention Plans and best practices for avoiding noncompliance and the associated fines.

Please click here to read the article.

Privacy Expectations in an Era of Drones

The Federal Aviation Administration’s Aerospace Forecast projects that the number of small unmanned aerial systems, also known as drones, 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). The updated estimate also reflects the FAA’s reports of a dramatic increase in sightings of drones by citizens, pilots and law enforcement, from 582 in the six months between August 2015 and January 2016 compared to 764 in the previous 10 months between November 2014 and August 2015. The rapid proliferation of drones presents an extraordinary regulatory challenge on the local, state and federal levels.

One of the most pressing issues for society and local governments is addressing privacy concerns that individuals raise related to the images, footage or other information that can be captured through drone use. The FAA is tasked with ensuring that drones are operated safely within navigable airspace, but the FAA has declined to address the privacy rights of citizens on the ground. Instead, state and local governments are responsible for addressing privacy concerns raised by members of the public. Local governments face two key questions – what are the legal boundaries and limitations for regulating drones at the local level and what are the possible protections that local jurisdictions can adopt against invasive drone use? For an analysis of the current regulatory environment, please click here to read “Privacy Expectations in an Era of Drones,” an article published in California Litigation magazine by Meyers Nave attorney Kristopher Kokotaylo.

What Can Municipalities Do About Drones?

In an extremely short amount of time, unmanned aerial vehicles (UAVs, or drones) have transitioned from their initial military applications to a wide range of uses by civilian government agencies, businesses, and individuals. Both the uses and owners/operators of drones will continue to proliferate as mass production improves affordability, and technological advancements make them more sophisticated, easier to maneuver, and smaller.

The increasing popularity of drones presents an urgent challenge for municipalities to address uses of drones that are inconsistent with community standards, such as safety and privacy. The key question is what can a municipality do when its citizenry demands a call to action to deal with the potential negative impacts of drone use by private parties? John Bakker, Chair of Meyers Nave’s Municipal and Special District Law Practice Group, answers this question in an article titled “What Can Municipalities Do About Drones?” published in the Nov/Dec 2015 issue of The Municipal Lawyer Magazine. Please click here to read John’s analysis of the debate about restrictions that federal and state law may place on the municipal regulation of the private operation of UAVs.

Build the Arena, and Lawsuits Will Come

The most valuable player in the competition to retain and recruit professional sports teams is the promise of a new arena — multi-million dollar projects that are often controversial, particularly when public funding is involved. The critical question is how to turn the promise into reality, and the answer sheds light on strategies that can be used to help move forward all types of major economic development projects.

The City of Sacramento and the Sacramento Kings NBA team experienced that a home court advantage does not guarantee victory in a highly publicized debate about financing, constructing and operating a new arena. The parties to the public-private partnership for the new $477 million stadium endured years of legal, regulatory and publicity battles before winning the final challenge in August. Meyers Nave attorney Amrit Kulkarni authored an article in the Daily Journal that describes Sacramento’s precedent-setting roadmap for overcoming every legal challenge to the arena.

Click here to read the article.