Monday, March 8, 2010, 10:18:07 AM
Agreement for City Services to Proposed Tribal Casino is Not a Project under CEQA
The First District Court of Appeal ruled that the City of Richmond did not violate CEQA when it entered into a municipal services agreement (MSA) for a tribal casino proposed on unincorporated lands adjacent to the City. In Parchester Village Neighborhood Council v. City of Richmond, the court reversed a trial court decision and agreed with the City that the MSA was not a project under CEQA.
Consistent with Save Tara, this case analyzed the various factors surrounding the MSA to determine if it constituted a project approval requiring CEQA review. Local agencies should continue to examine development-related agreements in a larger context to ensure that CEQA review occurs at an appropriate stage of the overall development process and before the agency has committed to activities that could have a physical effect on the environment.
Read more.
Tuesday, March 2, 2010, 02:50:14 PM
New Decision Affects Miranda
On February 24, 2010, the U.S. Supreme Court came to a decision that will have long-lasting implications on police policy with respect to Miranda warnings. The case, Maryland v. Shatzer, examined whether a police investigation in Maryland was performed illegally when police re-interrogated a man suspected of sexual assault after two years had passed since the first interrogation.
At issue was the question: if a break in one's custodial state occurs after the individual has invoked his right to counsel, when (if at all) may police resume interrogating the suspect and not violate his or her right to counsel? In a unanimous decision, the Supreme Court ruled that the police did not violate the suspect's right to an attorney and that 14 days is a sufficient amount of time to pass for one's invocation of Miranda to end and for re-interrogation to take place.
What Shatzer has done is to establish a bright-line rule in terms of when an individual's right to invoke ends. Once a suspect invokes his or her right to counsel, the interrogation must cease immediately—that rule has not changed. What has changed, however, is that the officer may revisit the suspect and resume the interrogation after a two-week lapse, regardless of whether the suspect is in custody, as long as he or she is returned to the general prison population for a conviction unrelated to the subject of the interrogation. Read more here.
Thursday, February 25, 2010, 12:39:34 PM
CEQA Guidelines on Greenhouse Gas Impacts Take Effect in March
On March 18, 2010, amendments to CEQA guidelines will take effect, requiring the analysis of greenhouse gas (GHG) impacts.
So, any remaining questions on whether CEQA requires GHG analysis have been eliminated. The issue now is how to perform the analysis. The State CEQA Guidelines left discretion to public agencies to determine the methodology and standards of significance for evaluating GHG impacts. Some air quality districts are providing some guidance for how agencies may address this issue, but the approaches are not uniform. Agencies need to decide how they are going to perform this analysis, considering issues such as a quantified versus qualitative standard and the use of a programmatic analysis based on adoption of a GHG reduction or climate action plan.
These challenging issues are addressed in an article by our firm, Meyers Nave, published this week. The article describes the applicable regulations and evaluates the issues and risks presented by different approaches. Click here to read the article.
Thursday, February 25, 2010, 08:01:24 AM
Criminal Defendants Must Allege Specific Facts to Access Police Personnel Records, Court of Appeal Affirms
In a decision published February 9, 2010 the California Court of Appeal, Fourth District, affirmed that criminal defendants, when making Pitchess motions, must submit a declaration or affidavit alleging a specific factual scenario that shows how the relevant police officer(s) committed misconduct. This has long been the applicable standard for successful Pitchess motions, which seek disclosure of confidential police officer personnel records to aid in the defendant’s case. However, the opinion, People v. Sanderson, also recognizes that where the specific facts alleged in support of the Pitchess motion call an officer’s truthfulness into question by merely denying portions of an incident report, the trial court is within its discretion to determine that the defendant failed to sufficiently allege the required factual scenario in support of the motion. In particular, the Court of Appeal affirmed the trial court’s finding that the Pitchess motion at issue did not present sufficient facts because the defendant had only disputed the portion of the police report that recited the defendant’s pre-arrest statements. The defendant’s denials thus raised a credibility question, but did not present an alternate version of facts, as required.
This decision is important because defendants bringing Pitchess motions often attempt to satisfy the specific factual scenario requirement by merely denying portions of an incident report. Now, the law is clear that a trial court has the discretion to find that a defendant has not shown good cause where the defendant does not present an alternative version of facts, but merely calls an officer’s credibility into question. Read the entire opinion here.
Monday, February 22, 2010, 03:36:51 PM
Even Where No Environmental Review Was Undertaken, 30-Day Statute of Limitations for CEQA Challenge Applies Whenever NOD is Filed
Earlier this month, in
Committee for Green Foothills v. County of Santa Clara, the California Supreme Court considered the question, if a notice of determination ("NOD") has been filed, but an action alleges that no environmental review was undertaken, which statute of limitations applies: (1) the general 30-day limit on challenges following a notice, or (2) the longer 180-day period provided for a case alleging that no environmental determination was made (§ 21167, subd. (a)). The Court held that the filing of an NOD triggers a 30-day statute of limitations for all CEQA challenges to the decision announced in the notice. Read more
here.
Friday, February 19, 2010, 04:57:54 PM
Mitigation Measures May Survive Expired Approval
The First District Court of Appeal ruled that the California Department of Forestry (CDF) improperly approved an exemption for harvesting less than three acres of timber where previous timber harvesting plans included mitigation measures prohibiting tree-cutting in the proposed area. Even though the previous approvals had expired, the court in
Katzeff v. California Department of Forestry and Fire Protection, filed January 28, 2010, concluded that the adopted mitigation measures could not be deleted without determining the continuing need for the mitigation. Read more
here.
Friday, February 19, 2010, 04:56:18 PM
County Must Include ERAF Revenue in Calculating Pass-Through Payments By Redevelopment Agency to School District
On January 27, 2010 the Court of Appeal filed its decision in Los Angeles Unified School District v. County of Los Angeles et al., in which the Court analyzed the overlap between the Educational Revenue Augmentation Fund (ERAF) legislation in the Revenue and Taxation Code and the pass-through legislation applicable to redevelopment agencies found in the Health and Safety Code. In reversing the Los Angeles Superior Court and remanding for further proceedings, the Court determined that Los Angeles County had erroneously calculated the Los Angeles Unified School District’s percentage share of property taxes and thus subjected the District to an improper reduction in the amount of pass-through payments to which the District was entitled. Read more here.
Thursday, February 18, 2010, 01:12:24 PM
Initiative Proposes to Suspend AB 32, California's Greenhouse Gas Law
An initiative measure to suspend AB 32, California’s landmark
law to curb greenhouse gas emissions to 1990 levels by 2020, has been cleared
to gather signatures. The measure would
require a state unemployment rate of equal to or less than 5.5% for
one full year before the government could pursue AB 32 greenhouse gas
measures. Since the State unemployment rate is currently 12.1%, if the initiative were approved it would result in an immediate
suspension of AB 32.
Supporters of the measure call it the “California Jobs
Initiative” and state that it is an attempt to force regulators to suspend AB
32 policy-making and enforcement until the economy rebounds significantly. Assemblyman and Republican Dan Logue created the initiative and states that he has
sufficient financial commitments from business interests for a campaign to
qualify the measure for the ballot.
Supporters of AB 32, including Governor Schwarzenegger,
maintain that AB 32 and similar laws stimulate the green economy and
California jobs. If the measure is
passed, they explain that it will stall the number of green jobs in the
state. According to the San Diego news, among those defending AB 32 are biotech and green energy firms such as TechNet,
a national network of recognizable technology companies in the 21st-century
market, from Apple to Yahoo.
Attorney General Jerry Brown, who has the authority to clarify
ballot measures with precise titles, has named the initiative “Suspends Air
Pollution Control Laws Requiring Major Polluters to Report and Reduce
Greenhouse Gas Emissions That Cause Global Warming Until Unemployment Drops
Below Specified Level for Full Year.”
According Sacramento's Capital News, supporters
of the initiative must collect 433,971 voter signatures by June 24 for the
measure to be added to the ballot.
Tuesday, February 16, 2010, 12:52:56 PM
State Initiative to Legalize Marijuana One Step Closer to Ballot
The proponents of “The Regulate, Control and Tax Cannabis Act of 2010,” which would legalize marijuana for personal use by individuals 21 years of age or older, reportedly submitted over 700,000 signatures to the Secretary of State on January 28, 2010, in an effort to qualify the measure for the November 2010 ballot. The Secretary of State has eight business days to perform a raw signature count, and then has up to 60 days to determine whether the Initiative has the 433,971 valid signatures necessary to be placed on the November ballot. Read more
here.
Wednesday, February 10, 2010, 09:44:54 AM
Mitigation Measures May Survive Expired Approval
The First District Court of Appeal ruled that the California Department of Forestry (CDF) improperly approved an exemption for harvesting less than three acres of timber where previous timber harvesting plans included mitigation measures prohibiting tree-cutting in the proposed area. Even though the previous approvals had expired, the court in Katzeff v. California Department of Forestry and Fire Protection, filed January 28, 2010, concluded that the adopted mitigation measures could not be deleted without determining the continuing need for the mitigation. Read more here.
