Public BLAWG Blog

Do you Design Build? New Law Revamps Design Build Procurement Requirements For All Public Projects Throughout The State

October 17, 2014, by Eric S. Casher

On September 30, 2014, Governor Jerry Brown signed in to law Senate Bill 785 which, among other things, updates and rewrites the statutory law relating to design-build procurement for public projects throughout the State.  The new law goes in to effect on January 1, 2015.

Court Upholds Imposition of Documentary Transfer Tax on Legal Entity Change in Ownership

October 1, 2014, by Jennifer E. Faught

In its September 22nd decision, 926 North Ardmore Ave., LLC v. County of Los Angeles, the Court of Appeal determined that the sale of a partnership that owned a limited liability company that held title to real property was a “change of ownership” that triggered imposition of the county’s documentary transfer tax.  The county imposed the tax on the limited liability company, or “Ardmore.”

Don’t Forget Your Reusable Bags!

September 30, 2014, by Dawn McIntosh

On September 30, 2014, Governor Brown signed into law a bill making California the first state in the nation to ban single-use plastic bags.  Consumers may either use their own reusable bags or pay at least ten cents for a paper bag or a multi-use plastic carrier that meets a set of state durability standards.  More than 100 California cities and counties have already passed regulations banning plastic bags.  (See list.)  These existing regulations may still be enforced, but the law preempts municipalities from adopting new regulations of single-use plastic bags, meaning those adopted on or after September 1, 2014, and restricts amendments to existing regulations.  Grocery stores, big bulk retail stores that sell groceries and pharmacies statewide must phase out the use of plastic bags by July 1, 2015.  The ban will expand to cover convenience stories and liquor stores one year later, on July 1, 2016.  

First District Re-Affirms Public Agency's Ability to Recover Administrative Record Preparation Costs Even Where the Petitioner Elects to Prepare the Record

September 18, 2014, by Edward Grutzmacher, Amrit S. Kulkarni

On September 16, in Coalition for Adequate Review v. City and County of San Francisco, the First District held that a public agency is not automatically barred from recovering administrative record preparation costs under the California Environmental Quality Act ("CEQA") even though the Petitioner has elected to prepare the administrative record.  The Court rejected arguments by the petitioners that their election to prepare the record immunized them from San Francisco's record preparation costs and the argument that high agency record preparation costs would "chill" the filing of CEQA petitions.

Ninth Circuit Upholds Reasonable Restrictions on Solicitation of Funds at LAX

August 27, 2014, by Jennifer E. Faught, Margaret Rosequist

Last week, the Ninth Circuit decided the final piece of a decades-old solicitation case, International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles, 2014 WL 4086794. The religious society, referred to as "ISKCON" by the Court, had challenged, under both the First Amendment and the California Constitution, the Los Angeles airport's ban on the continuous or repetitive requests for the immediate receipt of funds in the airport terminals, parking lots, and on the sidewalks adjacent to both areas. The Ninth Circuit affirmed the lower court's ruling that the ordinance in question was a reasonable, viewpoint-neutral restriction on expressive activity at LAX under the First Amendment. Key to the Court's finding was the fact that the parties agreed that the forum at issue was a nonpublic forum. ISKCON likely did not challenge the classification of the forum given the Supreme Court's decision in International Society for Krishna Consciousness v. Lee (1992) 505 U.S. 672, in which the Court found that airport terminal buildings were a nonpublic forum.  

Ninth Circuit Expands Judicial Scrutiny of CERCLA Settlements

August 8, 2014, by Gregory J. Newmark, Sarah N. Quiter

The Ninth Circuit recently issued an opinion that emphasizes the obligation of district courts to independently review the adequacy of proposed consent decrees under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). In Arizona v. City of Tucson, ---F.3d--- (9th Cir. 2014), 2014 WL 3765569, eighteen proposed consent decrees between the State of Arizona and de minimis settling parties were remanded because the district court did not compare each party's estimated liability with its settlement amount or explain why the settlements were fair, reasonable, and consistent with CERCLA's objectives.  According to the Ninth Circuit, the district court afforded undue deference to the Arizona Department of Environmental Quality's conclusions and methodology rather than conducting its own in-depth review of the evidence.  In a 2-1 decision, the majority held that state agencies with environmental expertise are entitled to "some deference" regarding the environmental issues underlying a consent decree.  However, the state agency's interpretation of CERCLA's mandate is not entitled to deference because the state agency is not charged with enforcing CERCLA. 

Even In Drought, Water Must Be Managed To Protect Delta Fish

May 14, 2014, by Dawn McIntosh

The Ninth Circuit recently issued two controversial opinions which uphold efforts to protect the delta smelt, a small fish endemic to the Sacramento-San Joaquin delta that is protected under the state and federal Endangered Species Acts, despite potential significant impacts on water deliveries to urban and agricultural areas.

Supreme Court Upholds Legislative Prayer at Local Government Level

May 6, 2014, by Deborah J. Fox

A majority of the Supreme Court has upheld the right of local governments to open their meetings with prayer so long as the practice over time does not proselytize or advance any one faith or disparage another. In Town of Greece v.

Public Records Do Not Include E-mails and Text Messages to or from Public Officials, if on Private Electronic Devices and Accounts

March 31, 2014, by Nicholaus W. Norvell, Ruthann G. Ziegler

On March 27, 2014, a California Court of Appeal held that when officers and employees of a public agency use private accounts and personal electronic devices to send or receive messages, the messages do not qualify as "public records" under the California Public Records Act ("CPRA"), even when the messages concern public agency business.  (City of San Jose v. Superior Court (Smith) (Mar. 27, 2014, H039498).)

Regulatory Scope of "Waters of the United States" to be Clarified

March 31, 2014, by Gregory J. Newmark, Sarah N. Quiter

Last week, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers ("Agencies") jointly released a proposed rule that further defines the scope of waters protected under the Clean Water Act ("CWA"). The proposed rule revises the definition of "waters of the United States" and also adds new definitions for the terms "neighboring," "riparian area," "floodplain," "tributary," and "significant nexus." The impetus behind this rule is an attempt to reduce the confusion and uncertainty generated in the wake of two U.S. Supreme Court decisions that added complexity, rather than clarity, to the determination of whether a water body was a jurisdictional "Water of the United States" regulated under the CWA. See Solid Waste Agency of N. Cook County (SWANCC) v. U.S. Army Corps of Eng'rs., 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006).  

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