Client Alerts
2016
Public Contracts
- New Law Requires New Claim Resolution Process for Public Works ProjectsDecember 27, 2016On September 29, 2016, Governor Brown signed Assembly Bill 626 ("AB 626" or the "Bill") which creates significant new requirements for administering the claims process for public works projects in the State of California. Codified in section 9204 of the Public Contract Code, AB 626 establishes, for contracts entered into on or after January 1, 2017, a claim resolution process that must be ... read more
- CA Supreme Court Reverses City’s Approval of Residential Housing for Failure to Comply with General PlanDecember 20, 2016The California Supreme Court reversed the City of Orange's approval of a 39-unit residential development project for failure to comply with the City's General Plan in its recent decision Orange Citizens for Parks and Recreation v. Superior Court (Milan Rei IV), filed December 15, 2016. The primary question before the Court was whether a 1973 resolution, which was never recorded by the ... read more
- Governor’s Proposal to Streamline Housing Development Limits Local Review of ProjectsMay 24, 2016Governor Brown recently announced a new proposal to streamline housing development in California. In order to be eligible for the streamlined process, projects must restrict a percentage of units for affordable housing. The required percentage varies depending on the level of affordability and proximity to transit priority areas. All projects that seek to qualify for the streamlined process are ... read more
- 9th Circuit Upholds Environmental Analysis for Critical Southern California Transit ProjectDecember 15, 2016The United States Court of Appeal for the Ninth Circuit rejected appeals by two property owners challenging the environmental impact analysis for the Los Angeles Metropolitan Transit Authority's (MTA) Regional Connector underground light rail project. (Japanese Village, LLC v. Federal Transit Administration, et al. (December 6, 2016).) The appellate court's decision reflects significant ... read more
- Court of Appeal Rules Developers Can Recover CEQA Administrative Record CostsSeptember 19, 2016In the partially published opinion for Citizens for Ceres v. City of Ceres (Sept.12, 2016), the Fifth District held that the California Environmental Quality Act (CEQA) allows the developer to recover costs of administrative record preparation where the city actually incurred those costs and the developer reimbursed the city for those costs. Citizens for Ceres challenged the City of ... read more
- Final Changes to Proposition 65 Warning RegulationsSeptember 16, 2016The California Office of Environmental Health Hazard Assessment, after a myriad of proposals, hearings, and workshops, has now issued final regulations that significantly revise how Proposition 65 warnings are to be provided. Although intended to clarify the law and reduce lawsuits by private plaintiffs, it is likely that the opposite will occur. The final regulation is available read more
- TSCA Reform Close to Reality, But at the Expense of California’s Green Chemistry Regulations?January 11, 2016After its enactment nearly 40 years ago, the federal Toxic Substances Control Act ("TSCA") is nearing its first major overhaul. TSCA has been viewed as generally ineffective in regulating chemicals as originally intended. However, Congress has recently passed new TSCA reform bills that, if enacted, will substantially increase federal chemical regulation, but likely at the expense of similar ... read more
- Recreational Marijuana is Legal in California – Now What?November 9, 2016On November 8, Californians approved Prop 64 - the Control, Regulate, and Tax Adult Use of Marijuana Act ("AUMA" or "the Act"), legalizing recreational marijuana use for adults 21 and older, effective November 9, 2016. While many cities and counties have ordinances or other regulations governing medical marijuana, such ordinances and regulations may be insufficient to cover "nonmedical" ... read more
- Cal. Supreme Court Opens Door for State Reimbursing Local Agencies for Unfunded MandatesAugust 30, 2016On August 29, the California Supreme Court handed an important victory to local agencies that are seeking to enforce their constitutional right to reimbursement for unfunded mandates imposed by the State. In Department of Finance v. Commission on State Mandates, the Court ruled in favor of public agencies subject to storm water discharge permits, holding that State-mandated storm ... read more
- Marijuana Initiative Qualifies for Ballot: Key Points for Local GovernmentsJuly 1, 2016The California Secretary of State announced that the Control, Regulate and Tax Adult Use of Marijuana Act, commonly known as the Adult Use of Marijuana Act ("Initiative"), has sufficient signatures to qualify for the November 8, 2016 ballot. The 62 page Initiative covers a broad range of topics. This Client Alert discusses the provisions of greatest interest to local government. Personal ... read more
- California Supreme Court Confirms Deferential Standard of Review Applies to CEQA Analysis of Changed ProjectsSeptember 21, 2016The California Supreme Court has ruled that the deferential "substantial evidence" standard of review applies to a public agency's decision about whether changes to a project require further environmental analysis under the California Environmental Quality Act (CEQA). By clarifying the standard of review, this new decision benefits developers and public agencies by bolstering the use of addenda ... read more
- Taxing Marijuana: What Can Cities Do and How Should It Be Done?July 7, 2016With new state regulations on medical marijuana in place, and an initiative legalizing recreational marijuana qualifying for the November ballot, many California cities are reviving the debate surrounding these businesses. Ballot measure deadlines are fast approaching, and therefore cities must decide in coming weeks whether to place a marijuana business tax question on the November ballot. ... read more
- Air District Releases Planning Guidebook To Promote Healthy Infill DevelopmentJuly 26, 2016The adverse health effects of pollution from freeways and industrial facilities on occupants of infill development has been an ongoing issue of concern. The Bay Area Air Quality Management District (BAAQMD) has taken various approaches to address this problem from regulations to CEQA Guidance to development of data and analysis tools. These approaches have been criticized by developers and ... read more
- US Supreme Court Allows Challenges to Army Corps of Engineers’ Jurisdiction DeterminationsMay 31, 2016The Supreme Court, in a unanimous opinion authored by Chief Justice Roberts, has ruled that an "approved" jurisdictional determination from the Army Corps of Engineers (USACE) with regard to whether certain wetlands are "waters of the United States," and therefore within the purview of the Clean Water Act, constitutes a ... read more
- Appellate Court Rules that Certain Investigative Reports Prepared by Counsel Retain Privilege Even Without Providing Legal AdviceJuly 27, 2016On June 8, 2016, the California Court of Appeal, First Appellate District held that an investigation report prepared by outside counsel need not contain legal advice to protect the report from having to be produced in litigation so long as the lawyer provided "legal services ... in anticipation of litigation." City of Petaluma v. Superior Court of Sonoma County (Cal. App. 1st Dist. June ... read more
- Ninth Circuit Holds Cash-in-Lieu Payments Under a Flexible Benefits Plan Must Be Included in the FLSA Regular RateJune 15, 2016The Ninth Circuit recently held in Flores v. City of San Gabriel that the amount of cash an employee receives in lieu of an employer's contribution to health premiums under a flexible benefits plan must be included in the FLSA regular rate. The FLSA regular rate of pay is the hourly rate multiplied by 1.5 for all FLSA overtime worked. In addition to including an employee's base ... read more
- Department of Labor Issues Final Rule Updating Overtime RegulationsMay 18, 2016On May 18, 2016, President Obama announced the publication of the Department of Labor's final rule updating the overtime regulations, which is expected to automatically extend overtime pay protections to over 4 million workers within the first year of ... read more
- State Water Board Adopts New Approach to Urban Water Conservation in Extended Emergency RegulationsMay 19, 2016Following a season of increased rain and snowfall in certain parts of the state, on May 9, 2016, Governor Brown issued a new Executive Order, signaling a major change in the state's approach to water conservation. The new Order directs the State Board to adjust and extend its emergency water conservation regulations through the ... read more
- Good News for Public Agencies: Supreme Court Decides Accidental Disclosure of Privileged Documents under Public Records Act Does Not Result in Waiver of PrivilegeMarch 18, 2016Yesterday, the California Supreme Court decided a significant case concerning the California Public Records Act ("CPRA," Government Code §§ 6250 et seq.). In its decision, the court held that only intentional disclosure of public records - not inadvertent disclosure - waives privileges applicable to the records. (Ardon v. City of Los Angeles (March 17, 2016, S223876).) ... read more
- Court Orders Release of Names and Addresses of Turf Rebate Program ParticipantsMarch 1, 2016Recently, the Los Angeles County Superior Court ordered the Metropolitan Water District of Southern California (“District”) to release the names and addresses of participants in a turf-replacement rebate program jointly administered with the Los Angeles Department of Water & Power (“DWP”). (City of Los Angeles v. Metropolitan Water District of Southern California (Feb. 26, ... read more
- A Sign of Relief: Appellate Court Allows Sign Codes to Distinguish Off/Onsite and Non/CommercialMarch 17, 2016In an opinion which will elicit sighs of relief from municipal governments around the state, the Second Appellate District has upheld municipalities’ ability to differentiate between offsite and onsite commercial advertising under the California liberty of speech clause. In Lamar Central ... read more
- Sign Regulation in California: What Should Cities Do After the SCOTUS Decision in Reed v. Gilbert?February 9, 2016The U.S. Supreme Court's landmark decision in Reed v. Town of Gilbert potentially has implications that reach far beyond its finding that specific sign regulations in Gilbert, Arizona, violated the First Amendment. The ordinance at issue placed different restrictions on three types of noncommercial signs -- political, ideological and directional signs. The justices unanimously agreed ... read more