Public BLAWG Blog

On January 21, 2010, the California Supreme Court issued its ruling in People v. Kelly (S164830), which essentially eliminates the limitations on the quantity of medical marijuana that a qualified patient or primary caregiver may legally possess or cultivate. Read more here.

For public employers, City of Ontario v. Quon raises issues regarding a public employee's right to privacy in electronic communications sent on a city's equipment . The Supreme Court's decision to hear the case follows the Ninth Circuit's ruling that a c ity's review of text messages sent and received by an employee on his city-issued pager violated the employee's Fourth Amendment right to privacy .

City of Ontario police sergeant Jeff Quon used his city-issued pager to send and receive hundreds of personal text messages . He incurred overage charges on the city's wireless plan that prompted the city to audit his text messages to determine if they were related to city business . Quon argued before the Ninth Circuit that his department's informal practice of allow ing officers to exceed their character limits if they paid overage charges nullified the city's written policy that employees had no expectation of privacy in communications sent on city-issued equipment .

The City of Ontario subsequently appealed the case to the Supreme Court, and the League of California Cities (LOCC) issued a brief in support of the appeal, as described on the LOCC Web site.

It is anticipated that the Supreme Court will issue its ruling by the end of June.

The LOCC brief was authored by Meyers Nave attorneys Nancy Thorington and Joseph Quinn. Read Meyers Nave's press release here.

Last week the California Building Standards Commission unanimously approved a new building code “2010 CalGreen” that will take effect January, 2011. 2010 CalGreen is an update to the 2008 California Green Building Standards discussed in an earlier post and differs from the 2008 Green Building Standards Code in that its provisions are stricter and mandatory.

2010 CalGreen has been hailed by the San Francisco Chronicle as the most stringent and environmentally friendly state building code. However, a coalition of environmental and green building certification groups are criticizing 2010 CalGreen as a step backward, since its requirements are less strict than LEED standards and building codes already adopted in some California cities, such as Los Angeles and San Francisco. The Los Angeles Times reported that the some groups take issue with CalGreen because "the tiers cause confusion in the marketplace.” Others are in support of 2010 CalGreen because it was drafted to allow builders to receive green certification without paying for costly third-party green certification. Although the Commission touts the benefits of the 2010 CalGreen over private, point-based systems such as LEED, cities may still require LEED certification in their local green building codes. San Francisco, for one, has no intention of changing its LEED certification requirements, according to the Chronicle.

Regardless, everyone seems to agree that the mandatory basic requirements of 2010 CalGreen are a major step toward a greener California. 2010 CalGreen requires that new construction reduce water consumption by 20%, divert 50% of construction waste from landfills, and install low pollutant-emitting materials such as paints and carpets. The California Air Resources Board estimates that the Code’s mandatory provisions will reduce greenhouse gas emissions by 3 million metric tons equivalent by 2020. 2010 CalGreen also contains more stringent voluntary provisions for cities to use as a baseline in order to reduce greenhouse gas emissions.

The State Building Standards Commission is working to release a draft of 2010 CalGreen in the next few weeks.  

It has long been established that a petitioner challenging a local agency's compliance with the California Environmental Quality Act (CEQA) must "request" a court hearing within 90 days of filing the petition, or face mandatory dismissal. A new case, County of Sacramento v. Superior Court (Forster-Gill, Inc.) clarifies that the request for a hearing must be filed in writing, and that an oral request will not suffice to avoid dismissal.

Click here to read a full analysis of County of Sacramento v. Superior Court (Forster-Gill, Inc.).

The Court of Appeal has published its December opinion in JSM Rivara, LLC v. the Community Redevelopment Agency of the City of Los Angeles and the City of Los Angeles (JSM Rivara, LLC v. CRA/LA). Its publication underscores the importance of the case for redevelopment agencies around the state. JSM Rivara, LLC v. CRA/LA raised significant questions, as well as public debate, about the extent to which redevelopment agencies have the authority, under the state's Community Redevelopment Law, to impose design and development controls to implement redevelopment plans. The Court's affirmation that the actions of the CRA/LA in this case carried out the mandates of state law, rather than local laws, represented a major victory for redevelopment agencies in their efforts to eliminate blight and revitalize communities. The Court also clarified the application of state density bonus requirements in redevelopment areas. Read more about the case here or read the published opinion.

The California Supreme Court has clarified that a local agency’s decision to deny renewal of a private party’s existing, time-limited land use permit is not a “project” to which the California Environmental Quality Act (“CEQA”) applies. This decision applies only to private facilities; agency decisions to close existing public facilities have been held previously by the Courts to be "projects" that require environmental review under CEQA. Read more here.

A common liability insurance policy exemption has barred a city from seeking indemnification for land subsidence damage the city caused. In the case, City of Carlsbad v. Insurance Company of the State of Pennsylvania, the City of Carlsbad paid approximately $12 million to residents whose homes were damaged by a landslide caused by the negligent maintenance of the City's water system.

The City then sought indemnification for the damages it paid from its liability insurer, ICSP . ICSP denied coverage based on a clause in the City's policy which exclud ed coverage for "any property damage arising out of land subsidence for any reason whatsoever." The City then sued ICSP to obtain coverage, but the trial court dismissed the case, and the Court of Appeal reached the same conclusion.

In sum, where a municipality possesses a liability policy with a similar land subsidence damage exclusion, the insurer will probably not cover land subsidence damage caused by the municipality. Read more about the parties' arguments and Court's reasoning here.

In a major victory for redevelopment agencies seeking to adopt and implement redevelopment plans, the California Court of Appeals ruled that redevelopment agencies have broad authority outside of local zoning laws to impose design and development controls.

The ruling came less than a week after oral arguments in a case involving a redevelopment project in the North Hollywood section of Los Angeles (NoHo). In its unpublished decision, the Court of Appeals emphasized that when a redevelopment agency adopts and implements a redevelopment plan under the Community Redevelopment Law, it is carrying out state, not local, policy.

The case stems from the September 2007 adoption by the Community Redevelopment Agency of the City of Los Angeles (CRA/LA) of design guidelines for development in NoHo. The design guidelines adjusted the allowable densities, building sizes, floor area ratios, and other development and design criteria in the project area to concentrate higher densities near mass transit, to preserve the character of the different NoHo neighborhoods, and to provide opportunities for density bonuses in exchange for community benefits that furthered the goals of the redevelopment plan.

Local developer JSM sued the CRA/LA and the City of Los Angeles, alleging that the design guidelines were a de facto zoning ordinance because they altered the allowable zoning characteristics for the area. Based on this assertion, JSM insisted the design guidelines were not properly adopted pursuant to state zoning and planning laws. JSM also argued that the reduction in base density to allow the CRA/LA to provide density bonuses violated the mandates of state density bonus law.

The trial judge rejected all of JSM's allegations, finding the design guidelines were implementing a lawfully adopted redevelopment plan; therefore, laws governing the adoption of zoning ordinances did not apply and there was no conflict with state density bonus law.

The Court of Appeals, in an unpublished opinion affirmed the trial court in full. The Court explained that the actions of a redevelopment agency to implement a redevelopment plan carry out the mandates of state, not local, laws. Since the design guidelines simply implemented the policies of the redevelopment plan, the Court found that the CRA/LA was acting within its authorities under state redevelopment law and that local zoning law was inapplicable.

This was a key holding in the opinion because the Court expressly rejected the developer's argument that actions taken to adopt and implement state redevelopment law cannot impact the zoning in the redevelopment plan area.

Read more here.

The California Court of Appeal has requested additional briefing in Qualified Patients Association v. City of Anaheim. At issue in this case is the validity of City of Anaheim's ordinance banning medical marijuana dispensaries.

The appeal arises out of the trial court's ruling sustaining the City's demurrer and holding that the ordinance is not preempted by California's Compassionate Use Act and Medical Marijuana Program Act. The Court's invitation for further briefing centers on Health and Safety Code Section 11570, which bars as nuisance the use of any premises for unlawful distribution, storage, or manufacture of controlled substances, including marijuana. Read more here.

As the new year approaches, my colleagues and I are reflecting on what this year brought to climate change law and looking ahead for upcoming regulations. For example, this month the Environmental Protection Agency (EPA) issued a final finding that greenhouse gas emissions pose a danger to human health and the environment. We at Meyers Nave are particularly focused on the struggle of cities and counties to access the funds needed to implement recent climate change laws in a poor economy. To this end, we welcome the Metropolitan Transportation Commission's announcement that it has established a pool of funding to be used locally for innovative transportation projects.

MTC is a nine-county Bay Area regional transportation planning body and its funding will be focused on at least four components. The first, and most remarkable for cities, is the funding of climate action plans that contain innovative parking campaigns such as SFPark. Other programs that may receive funding include Safe Route to Schools programs, educational outreach for the link between climate change and transportation choices, and evaluation models to ensure that all regional projects have consistent metrics.

This program is one step towards the reductions required in climate legislation such as AB 32 and SB 375, and a step away from historical transportation planning which focuses on increasing capacity for cars.

For more information regarding the funding program, see San Francisco Streetsblog report of MTC’s funding announcement.