Wednesday, May 14, 2008, 8:27:57 AM
Superior Court Finds City's EIR for Downtown Precise Plan Improperly Mitigated Impacts to Historical Resources and Excluded Required Shadow Analysis
The San Mateo County Superior court granted a petition for writ of mandate, setting aside Redwood City’s certification of a final environmental impact report for its Downtown Precise Plan on the grounds that the EIR inadequately described and mitigated impacts to historical resources, and incorrectly determined that CEQA does not require analysis of shadow impacts. The court rejected mitigation of historical resources that would have allowed the City to document or install a plaque prior to demolition of an historical resource. The court also concluded that the City had improperly omitted analysis of shadow impacts of the project, which proposed construction of substantially taller buildings than currently exist in the downtown area. While Redwood City had determined that CEQA did not require analysis of such impacts, the court found that an EIR must consider shadow impacts “if a project will substantially degrade the existing visual character or quality of the site and its surroundings, and the lead agency has exercised its discretion to determine to classify the impact as significant.”
While the decision is not yet final, and lacks the precedential value of an appellate opinion, its treatment of shadow impacts in particular, addresses an unsettled area of CEQA law.
For more information on the unpublished decision, see this recent article in the Redwood City Daily News.
Tuesday, April 29, 2008, 1:09:52 PM
A Claim for Severance Damages Based on a Temporary Construction Easement Must be Supported By Evidence that TCE Interfered with Owner's Actual Intended Use of the Property
Severance Damages for a temporary construction easement were not allowed by the California Court of Appeal in its recent City of Fremont v. Fisher case (February 28, 2008) 160 Cal.App.4th 666. The Court's ruling was based on the property owner having failed to show that the TCE interfered with their actual intended use of the property. Even though temporary severance damages resulting from the construction of a public project are compensable, the temporary easement must interfere with the owner's actual intended use of the property to present evidence to the jury on temporary severance damages. In the Fisher case, the owner must have presented evidence as to a specific loss attributable to the delay in construction; a claim for such severance damages cannot be based on a hypothetical or conjectural, possible use of the property by the property owner during the TCE.
Friday, April 18, 2008, 5:21:15 PM
California Supreme Court Clarifies POBRA Provision Regarding Notification of Discipline
The California Public Safety Officers Procedural Bill of Rights Act ("POBRA") provides a limitations period specifying that punitive action may not be taken against a public safety officer unless the public agency completes its investigation and notifies the officer of the proposed disciplinary action within one year of discovering the alleged misconduct. In May v. City of Los Angeles, the California Supreme Court held that this provision does not require an employer to provide notice of the specific proposed discipline within the limitations period, and noted that the fundamental purpose of the POBRA provision at issue was to place a one-year limitation on investigations of officer misconduct. Employers are still required to notify the officer that discipline may be imposed for the identified misconduct within the limitations period. To read the Supreme Court's decision click here.
Tuesday, April 15, 2008, 4:10:25 PM
Court Holds Prop 59 Does Not Abrogate the Common Law Mental Processes Principle
In Sutter's Place v. Superior Court of Santa Clara County, the Court of Appeals for the Sixth District upheld a trial court discovery order protecting specified documents from disclosure on the ground that discovery would violate the common law mental processes principle which precludes judicial inquiry into the motivation or mental processes of legislators in enacting legislation. Petitioner Sutter's Place ("Petitioner") sought discovery of documents reflecting the motives and thoughts process of the City of San Jose Mayor and/or City Council relating to the adoption of an ordinance which Petitioner was challenging. Petitioner's challenged the trial court's order denying discovery of specified documents on the grounds that Proposition 59 abrogated the common law mental processes principle.
Proposition 59 (California Constitution, article I, section 3) amended the California Constitution to include the public right to access public records. It is considered by some to be the constitutionalization of the California Public Records Act ("CPRA"). The Court found that under the CPRA, public records to which the mental processes principle applies are exempt from disclosure in accordance with California Government Code Section 6254(k) which exempts from disclosure public records whose disclosure is prohibited pursuant to federal or state law, including the common law and constitutional separation-of-powers principles, such as the mental processes principle. The Court held that there is no inherent inconsistency between the application of Proposition 59 and the mental processes principle which precludes their concurrent operation and there is no evidence of an intent by the voters to supersede, override, or alter the operation of the mental processes principle under Proposition 59.
Friday, March 28, 2008, 8:37:12 AM
A Bill to Save Trees and Energy
Senate Bill 1399 was recently introduced in the California State Senate to strike a balance between the installation of solar collectors on a building and the preservation of existing trees and shrubs. Current state law prohibits a person owning or in control of property from allowing a tree or shrub to be placed or to grow on the property subsequent to the installation of a solar collector on the property of another if the tree or shrub casts a shadow of a specified size on the solar collection absorption area during specified times. Cities and counties may adopt an ordinance exempting its jurisdiction from the state law prohibition. Among other things, SB 1399 would exempt trees and shrubs planted prior to the time of the installation of a solar collector and trees and shrubs that are subject to a local ordinance. A hearing on SB 1399 is scheduled before the Senate Energy, Utilities and Communications Committee on April 1.
Wednesday, March 19, 2008, 12:44:47 PM
Ninth Circuit Holds Pre-employment Drug-Test Requirement for Part-time Library Employee Invalid
In Lanier v. City of Woodburn, the Ninth Circuit Court of Appeals was faced with the issue of whether the City of Woodburn could require an applicant for a part-time library page to pass a pre-employment drug test as a condition of an offer of employment. While the Court did not hold the City's policy that required applicants to submit to such a drug test to be unconstitutional per se, the Ninth Circuit did hold that the policy was unconstitutional as applied to the applicant because the City failed to show a special need to screen the applicant for drugs. To read the Court's decision click here.
Tuesday, March 18, 2008, 10:20:48 AM
LAO's Budget Proposal Would Shift Tax Revenue From Special Districts to Counties
The Legislative Analyst’s Office (LAO) has proposed an alternative budget package that includes shifting responsibility for supervision of approximately 71,000 low-level parolees from the State to the counties. This parole realignment would be financed in part by reallocating property tax revenue from water and wastewater districts into a newly created county Public Safety Realignment Account (PSRA). Under the LAO’s proposal, each county would shift 70% of countywide water and wastewater property tax revenue into its PSRA, unless a lower percentage of property taxes would be sufficient to support the realignment program. While the actual amount of tax revenue shifted from each district would ultimately be determined by the county boards of supervisors, the LAO estimates that, statewide, its proposal would shift approximately $188 million, or 50%, of water and wastewater district property tax revenue to county PSRAs.
Additional sources of financing for the proposed parole realignment include approximately $178 million from city Proposition 172 sales taxes and approximately $130 million from vehicle license fees currently retained by the Department of Motor Vehicles for administrative purposes.
To read more about the LAO's parole realignment proposal, click here.
Friday, March 14, 2008, 10:42:44 AM
California Air Resources Board Developing Protocols for Local Government Reporting of Greenhouse Gas Emissions
The California Air Resources Board, (ARB) is partnering with the California Climate Action Registry (CCAR), The Climate Registry (TCR), and Local Governments for Sustainability (ICLEI) to develop local government protocols for Greenhouse Gas (GHG) assessment. Though reporting of emissions under these protocols is voluntary, the protocols may serve as the basis for future mandatory emissions reporting under AB 32.
Continue reading "California Air Resources Board Developing Protocols for Local Government Reporting of Greenhouse Gas Emissions" »
Tuesday, March 4, 2008, 5:41:09 PM
California Supreme Court Holds that Supervisors are not Personally Liable for Retaliation
In Reno v. Baird, 18 Cal.4th. 640 (1998), the California Supreme Court held that while an employer may be held personally liable for discrimination under the California Fair Employment & Housing Act ("FEHA"), nonemployer individuals are not personally liable for that discrimination. The Supreme Court has now echoed that statement with respect to retaliation claims under the FEHA, holding that nonemployer individuals also can not be held personally liable for FEHA-based retaliation. To read the Supreme Court's decision in Jones v. The Lodge at Torrey Pines Partnership regarding personal liability for retaliation claims click here.
Wednesday, February 27, 2008, 2:53:53 PM
City’s Failure to Exercise CEQA Discretion in Properly Designating a Potentially Historic Resource Constitutes Reversible Error
Valley Advocates
v. City of Fresno, --- Cal.Rptr.3d ---, 2008 WL 400245
In Valley Advocates v. City of Fresno, a local
organization challenged the City of Fresno’s approval of demolition of an
apartment building on the basis that the City improperly determined that the
building was not an “historical resource” for CEQA purposes. The project
application was reviewed by the local Historic Preservation Commission who
recommended that the building be listed on the local register of historical
places. However, at a public hearing the City Council denied listing the
building on the local register. Staff subsequently found the project to be
exempt from CEQA. On appeal of staff’s decision to the City Council, the
Council was advised that their previous decision to deny listing of the
building on the local register was conclusive as to the building’s historical
significance under CEQA, and, therefore, that the project would not impact an
historical resource. Accordingly, the City Council denied the appeal. Valley
Advocates filed a petition for writ of mandamus challenging the City’s determination
that the subject building was not an historical resource.
Continue reading "City’s Failure to Exercise CEQA Discretion in Properly Designating a Potentially Historic Resource Constitutes Reversible Error" »
