- First Appellate District Rules CEQA’s One-Year Rule for Certifying an EIR not MandatoryDecember 3, 2009
On December 2, the First Appellate District issued an important decision in Schellinger Brothers v. City of Sebastopol rejecting a developer’s ability to challenge a lead agency’s decision to continue processing an environmental impact report (EIR) under the California Environmental Quality Act (CEQA), even after the expiration of the one-year period for certification of an EIR ... read more
- Ninth Circuit Departs from Established Jurisprudence for Regulatory Takings ClaimsOctober 1, 2009In its split decision in Guggenheim v. City of Goleta , 2009 WL 3068152 (C.A.9 (Cal.)), the Ninth Circuit departed from established takings jurisprudence to find that the vacancy control provision of a rent control ordinance for mobile home parks caused a taking for which just compensation must be paid, despite the fact that the ordinance did not interfere with the property owner's ... read more
- Legislature Responds to Economic Downturn by Extending the Lives of Tentative Subdivision Maps for Two YearsJuly 16, 2009
In response to the economic downturn, the Legislature adopted Assembly Bill (AB) 333, which extends the lives of approved tentative subdivision maps by two years.
In order to qualify for the extension, tentative maps must have been valid on July 15, 2009 and must otherwise have expired by January 1, 2012. AB 333 is an emergency bill and is applicable immediately. The extension provided ... read more
- Latest OPR CEQA Guidelines Emphasize Local Greenhouse Gas Reduction Plans in CEQA ReviewApril 30, 2009Senate Bill 97 directed the Office of Planning and Research (OPR) to develop regulations for the analysis and mitigation of greenhouse gases under the California Environmental Quality Act (CEQA). OPR has issued a final draft of these regulations as amendments to the CEQA Guidelines.
For the Guidelines to become law, the Natural Resources Agency must approve them by January 1, 2010.
The ... read more
Municipal and Special District Law
- Ninth Circuit Upholds the Constitutionality of Speaker-Based and Event-Based Sign Regulations and Comments on the “Absurdity” of Construing the Officer Must Read It Test as a Bellwether of ContentDecember 1, 2009
The Ninth Circuit’s recent decision in Reed v. Town of Gilbert, 2009 WL 39250233 (9th Cir. 2009) reaffirms the Court’s acceptance that speaker-based and event-based exemptions to municipal sign codes may be a content neutral regulation.
Cities may confidently consider speaker-based and event-based exemptions to sign regulations but should take extreme care in drafting well ... read more
- California Energy Commission Releases Guidelines on Energy Efficiency and Conservation Block Grants for Small Cities and CountiesSeptember 18, 2009
On September 16, the California Energy Commission (CEC) released long-awaited guidance on grant allocations for small cities and counties, defined as those cities with a population of less than 35,000 and those counties with a population of less than 200,000, under the Department of Energy’s (DOE) Energy Efficiency and Conservation Block Grant (EECBG) Program, one of the DOE’s stimulus act ... read more
- Ninth Circuit Decision May Impact Cities’ Regulation of Street Performers and Street SpeakersAugust 11, 2009
The Ninth Circuit’s June 2009 en banc decision in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) found some of the City of Seattle’s regulations pertaining to street performers and others engaged in expressive conduct to be unconstitutional, including some that it ... read more
- Court of Appeal Holds Prevailing Wage Law Does Not Apply to Locally Funded Projects of Charter CitiesMay 12, 2009The California Court of Appeal recently held that on projects wholly financed by local funds, charter cities need not comply with California's Prevailing Wage Law.
In the case, State Building and Construction Trades Council of California, AFL-CIO v. City of Vista, the State Building and Construction Trades Council of California (AFL-CIO) sued the City of Vista in an attempt to secure a ... read more
- Maximizing Your Stimulus Series, Part I: Don’t Get Caught in the Red TapeApril 29, 2009California may receive as much as $80 billion in federal stimulus money under the American Recovery and Reinvestment Act (ARRA). The act sets a goal of allocating 50 percent of funds to projects that can be initiated by approximately mid-June 2009.
Given the tight timeframe for allocating such a large portion of the ARRA funds, local governments are wise to act now. The red tape begins before ... read more
- The Obama Administration’s Position on Medical Marijuana DispensariesMarch 25, 2009
Recent statements made by U.S. Attorney General Eric Holder suggest a shift in the federal government's position on the prosecution of medical marijuana dispensaries and their operators.
At a press conference on February 25, 2009, Mr. Holder stated that law enforcement's actions will be consistent with the President's campaign statement that he would allow states to regulate medical ... read more
- New Case Could Have Far-Reaching Implications For Collection of In Lieu FeesMarch 5, 2009Building Industry Association of Central California v. City of Patterson holds that affordable housing in lieu fees must be “reasonably related” to the “deleterious impact” caused by new housing.
Although the specific question raised in Building Industry Association of Central California v. City of Patterson involved the interpretation of a development agreement ... read more
- High Court Makes It Easier to Assert Qualified Immunity for Public OfficialsJanuary 28, 2009
The U.S. Supreme Court's January 21 decision in Pearson v. Callahan will affect public officials' use of the "qualified immunity" defense in claims of civil rights violations (Pearson v. Callahan, 555 U.S. ____ (2009) (Slip Op. 07-751, January 21, 2009).
Qualified immunity is an affirmative defense which can shield public officials from liability – typically in cases ... read more
Eminent Domain and Inverse Condemnation
- Should Local Agencies Consider Proposed High Speed Rail in CEQA Analyses of Local Projects?November 16, 2009
With the California High Speed Rail Authority (the Authority) moving forward with efforts to bring high speed rail (HSR) service to California, local agencies should be aware that they may be required to consider the HSR project in analyses of the environmental impacts of their local projects.
The HSR will extend from Sacramento and the San Francisco Bay Area in the north, through the ... read more
Climate Change and Green Initiatives
- CEQA and Greenhouse Gas Regulations Moving Towards AdoptionNovember 4, 2009Regulations for the analysis of greenhouse gases (GHGs) under the California Environmental Quality Act (CEQA) have been finalized and are moving towards adoption. The final amendments to the State CEQA Guidelines have been released and are out for public comment until November 10, 2009.
Under State law (SB 97), the Guidelines should be adopted ... read more
- Resources for Greenhouse Gas Reduction Measures and PlansJune 29, 2009
Many public agencies are considering the adoption of greenhouse gas reduction measures and plans. These plans help agencies comply with developing legal requirements. They also benefit agencies by retaining local control, reducing legal risk, and saving energy and other costs. There are several resources that provide guidance, technical assistance and funding for the development of these ... read more
- U.S. District Court Holds that Owners and Operators of Municipal Sewer Systems May Be Liable Under CERCLA for Contamination Caused by Third PartiesOctober 29, 2009
A recent decision by the U.S. District Court for the Eastern District of California may re-energize plaintiffs who hope to recover contamination clean-up costs from public agency sewer system owners.
In Adobe Lumber, Inc. v. Hellman (2009 WL 2913415), the court held the City of Woodland liable under CERCLA for contamination of the City’s sewer system with the solvent ... read more
- Two Recent Cases Provide Guidance on Agency Examination of Alternatives, Other Issues, in CEQA DocumentsOctober 2, 2009
Two recent cases have provided public agencies with important guidance concerning the selection and evaluation of alternatives in Environmental Impact Report ("EIR"s) prepared under the California Environmental Quality Act ("CEQA"), as well as on other important issues.
The first case, Tracy First v. City of Tracy ("Tracy First"), was originally certified only for partial ... read more
- Court of Appeal Holds Developer Cannot Sue City for Violations of CEQA and Constitutional Law Where City Rejects Project Before Completing EIRSeptember 17, 2009
In a significant published CEQA and land use decision, the Court of Appeal, Second Appellate District, rejected a developer’s challenge to the City of Los Angeles’ decision to reject the annexation and approval of a large development project without completing CEQA review.
The proposed project included 5800 dwelling units, 2.3 million square feet of office space, 250,000 square feet ... read more
- Agencies Must Either First Complete CEQA Review or Retain Discretion to Modify or Cancel Contracts Subject to CEQA Until Environmental Review Is CompleteFebruary 12, 2009
The Fourth District Court of Appeal ("Court") recently set aside a water supply agreement between a water district and a developer because the agreement improperly committed the water district to a definite course of action without adequate review under the California Environmental Quality Act (CEQA) in the case Riverwatch et. at. v. Olivenhain Municipal Water District.
The ... read more
- In the Absence of CEQA Review, In Lieu Fee Programs Cannot Presumptively Establish Full Mitigation of Environmental ImpactsFebruary 11, 2009
The Third Appellate District Court of California held in the case California Native Plant Society v. County of El Dorado, that the payment of a rare plant impact in lieu fee, which was not reviewed under the California Environmental Quality Act (CEQA), does not presumptively establish that the environmental impacts to rare plants for all projects are fully mitigated such that a ... read more
- Pooled Funding Program Established for Local Agencies From Whom Property Taxes Were Borrowed by the StateAugust 10, 2009
As anticipated, the California Statewide Communities Development Authority (CSCDA) is proceeding with the establishment of a pooled financing program (the "Proposition 1A Securitization Program") for the securitization of State reimbursement obligations to local agencies (cities, counties and special districts) from whom property tax revenues are being "borrowed" by the State as part of it's ... read more
- Maximizing Your Stimulus Series, Part III: Energy Efficiency and Conservation Block Grants Offer Unique Opportunities for California CitiesMay 13, 2009The United States Department of Energy’s (DOE) Energy Efficiency and Conservation Block Grant (EECBG) program, administered under the American Recovery and Reinvestment Act (ARRA) provides grants to fund projects that reduce energy use and fossil fuel emissions, and that improve energy efficiency. The deadline for units of local governments and tribal applicants to apply for these grants is ... read more
- Maximizing Your Stimulus Series, Part II: ARRA Funds: Strings ARE AttachedMay 4, 2009There are unique requirements associated with ARRA funding, which require some planning and coordination in the early stages of many initiatives and projects.
First, the ARRA requires that materials used in stimulus-funded projects be American-made. Section 1605 of the Act requires that “all iron, steel and manufactured goods used ... are produced in the U.S.” except in the following cases ... read more
Trial and Litigation
- Unconstitutional Strip Search Does Not Strip School Officials of Qualified ImmunityJune 26, 2009
The United States Supreme Court ruled yesterday in SaffordUnifiedSchool District #1, et al. v. Redding that a school official's search of a thirteen-year-old student's bra and underpants violated her Fourth Amendment right to be free from unreasonable searches.
But in a second part of the opinion with significance beyond the school setting, ... read more
- California Supreme Court Upholds Existing Standards for Public Expenditures on Local Ballot MeasuresJune 4, 2009
Vargas v. City of Salinas, --- Cal.Rptr.3d ---, 2009 WL 1035257 (Cal. April 20, 2009) The Supreme Court’s recent decision in Vargas v. City of Salinas reaffirms the Court’s holding in Stanson v. Mott (1976) 17 Cal.3d 206, and maintains existing limitations on the expenditure of public funds for materials and activities related to ballot measures.
While the ... read more
- Supreme Court Rejects Bright-line Rule Barring Agency Attorneys from Performing Dual Roles in Unrelated Administrative ProceedingsFebruary 11, 2009
The California Supreme Court ruled Monday that an agency attorney prosecuting a matter before the agency's decision making body may also serve as advice counsel to the decision making body in unrelated matters. The ruling represents a victory for all public agencies that maintain adjudicative processes to resolve disputes.
In the underlying action, the State Water Resources Control Board ... read more
Labor and Employment
- Ninth Circuit Finally Hears Oral Argument on “Donning and Doffing” CasesJune 1, 2009
The Ninth Circuit convened in Las Vegas, Nevada, on Monday, June 1, 2009 to hear two appeals involving “donning and doffing” cases brought by public safety personnel. Meyers Nave wrote the briefs for the League of California Cities and the California State Association of Counties, and attended oral argument.
The Ninth Circuit judges assigned to the cases are Gould, Rawlinson and ... read more
- Court of Appeal Finds Binding Interest Arbitration Statute UnconstitutionalMay 3, 2009
On April 24, 2009, the First Appellate District ruled in Sonoma County v. Superior Court (Sonoma County Law Enforcement Association) that SB440, a labor negotiations interest arbitration statute applicable to public safety unions, violated both Article XI, Section 1(b) and Article XI, Section 11(a) of the California Constitution.
This was the first Court of Appeal decision to ... read more
- Public Agency Can Unilaterally Decide to Lay Off EmployeesMarch 20, 2009On March 18, 2009, the California Court of Appeal held that the City of Richmond's decision to lay off its firefighters was not subject to collective bargaining, but that the effects of that layoff decision, such as the workload and safety of remaining employees, were subject to the meet and confer requirements of the Meyers-Milias-Brown Act (MMBA).
The court emphasized that the union's ... read more
- No Pay for Alleged Pre-Shift Tasks by Police OfficersFebruary 26, 2009
On February 13, 2009, a federal jury in the Southern District of California unanimously decided that the time that eight San Diego police officers spent performing tasks prior to their shifts was not compensable under the Fair Labor Standards Act.
Specifically, the jury determined that the officers had not performed uncompensated work that was "controlled or required by the employer, and ... read more