Public BLAWG Blog

Resolution of Necessity Maintained Even When Further CEQA Review Required

April 16, 2013, by Meyers Nave

The generally accepted rule has been a public entity must comply with CEQA prior to adopting a resolution of necessity to condemn land needed for a public project.  Last Friday, a California Court of Appeal decision reviewing the California Environmental Quality Act (“CEQA”), Public Resources Code section 21168.9(a), upheld a trial court’s writ decision not to set aside an adopted resolution of necessity in its entirety when it found non-compliance with CEQA and instead allowed the eminent domain action to proceed before CEQA review was completed. 

In the decision Golden Gate Land Holdings, LLC v. East Bay Regional Park District (2013 Cal.App. LEXIS 283, April 12, 2013), the merits of the trial court’s ruling on CEQA project approval was not before the appellate court and its review of the District’s compliance with eminent domain law was not certified for publication.  The trial court held that the District had not complied with CEQA and that further CEQA review was required, but it did not vacate the District’s adopted Resolution of Necessity in its entirety.  Golden Gate’s limited argument on appeal was that the trial court erred in refusing to set aside the resolution of necessity because CEQA compliance after the approval of a resolution of necessity is unlawful. 

Superior Court Finds CEQA's Fast-Track Provisions Unconstitutional

April 15, 2013, by Edward Grutzmacher, Amrit S. Kulkarni

On April 9, 2013, the Superior Court for the County of Alameda, the Honorable Judge Frank Roesch presiding, issued a statement of decision in Planning and Conservation League et al., v. State of California and the California State Controller, Case No.

Appellate Court Explains "Balancing Test" Under California Public Records Act

April 5, 2013, by Jose M. Sanchez, Ruthann G. Ziegler

A California Court of Appeal recently affirmed the lower court's decision to deny the release of documents relating to academic research under the "catch-all" exemption of the California Public Records Act ("CPRA").  SeeHumane Society of the United States v. Superior Court of Yolo County (Regents of the University of California), filed March 27, 2013, C067081.  Under the "catch-all" exemption, a court balances whether the public interest is better served by releasing or withholding the documents.  Here, the court relied almost exclusively on the balancing test as the basis for withholding the documents, which is uncommon in court decisions analyzing the CPRA.

In this case, the Humane Society of the United States ("HSUS") sued to obtain records from the University of California Regents ("Regents") relating to research leading to a published study by the University's Agricultural Issues Center.  The Regents objected to releasing the records, claiming they consisted of preliminary data, prepublication thoughts, conversations and informal exchanges of ideas among researchers.  The Regents argued that the public interest would be better served by allowing researchers to engage in informal discussions and brainstorming.

Court of Appeal Makes It More Difficult for Local Agencies Other than Cities to Obtain Voter Approval of Parcel Taxes

April 4, 2013, by John D. Bakker, Sky Woodruff

With increasing frequency in the last several years, school districts around the state have been relatively successful in obtaining voter approval of parcel taxes.  The First District Court of Appeal's recent decision in Borikas v. Alameda Unified School District (2013) 214 Cal.App.4th 135 is significant because absent legislative action it will constrain the ability of school districts, special districts, and counties-but not cities-to get parcels taxes approved by the voters.

Borikas involved a parcel tax imposed by the Alameda Unified School District.  The tax, which received the requisite two-thirds voter approval, was levied on property at differential rates: residential parcels and commercial parcels of less than 2000 square feet paid $120 per year and commercial parcels of greater than 2000 square feet paid $0.15 per square foot per year, capped at $9500.  The plaintiff commercial property owner argued that the District's tax measure violated Government Code section 50079's requirement that school district special taxes "apply uniformly to all taxpayers or all real property."  The Court of Appeal agreed with the plaintiff and held that Government Code section 50079 does not authorize school districts to impose special taxes that differentially tax property within the district.

Neutral Government Policy for Privately Led Prayers at City Council Meetings Does Not Violate the Establishment Clause of the First Amendment or the California Constitution

April 1, 2013, by Deborah J. Fox, Dawn McIntosh

On March 26, 2013, the Ninth Circuit affirmed a district court ruling upholding the constitutionality of the City of Lancaster's policy and practice of allowing local congregations of any denomination to give an invocation at the beginning of City Council meetings.  Plaintiffs challenged the policy and practice as a violation of the Establishment Clause of the U.S. Constitution and the California Constitution because the invocations used sectarian references and because a majority of invocations were given by Christian denominations, which they contended had the effect of promoting one religious sect over others.  The Ninth Circuit disagreed, finding that neither the City's policy nor practice promoted any particular religion in violation of the Establishment Clause or the California Constitution (which employs the same language and standards as the Establishment Clause). 

What is the Difference Between a City Council Meeting and a Public Park?

March 28, 2013, by Deborah J. Fox, Dawn McIntosh

On February 25, 2013, the Ninth Circuit Court of Appeals agreed to rehear a case in which it had found a Costa Mesa ordinance governing rules of decorum at city council meetings to be unconstitutionally overbroad because the ordinance prohibited insolent behavior by someone attending the meeting even if such behavior did not cause a disruption of the meeting.  (Acosta v. City of Costa Mesa (2012) 694 Fl.3d 960.) 

Superior Court Rules CPRA Requires Disclosure of Private Emails and Text Messages

March 21, 2013, by Katherine A. Cook, Michael F. Dean

A Santa Clara County Superior Court judge ruled this week that the California Public Records Act (“the Act”) requires City officials to turn over private emails and texts messages related to City business.

Major League Baseball May Throw Non-Uniformed Employees Out of the Pension Game

March 20, 2013, by Matthew C. Lewis

In a climate where many employers are strongly considering pension reform, Major League Baseball’s owners may eliminate defined benefit pension plans for non-uniform wearing personnel (all employees besides players and coaches).  The move is being proposed, and apparently supported by the majority of owners, despite the fact that the league brings in billions of dollars in annual revenues.  This proposed change serves as a reminder that profitability alone will not guarantee the continuation of defined benefit plans for an entity’s employees.

For more on MLB’s plans, go here.

The U.S. Forest Service Gets a Mixed Bag from the U.S. Supreme Court

March 19, 2013, by Dawn McIntosh

On Monday, the U.S. Supreme Court agreed to review the process by which the federal government measures the environmental impact of its land use plans, granting the U.S. Forest Service's appeal of a controversial Ninth Circuit decision which found a forest plan deficient for failing to analyze its impact on area fish species.  (See United States Forest Service et al. v. Pacific Rivers Council et al., 689 F.3d 1012 (2012), cert. granted and motion granted 2013 U.S. LEXIS 2177 (U.S., Mar. 18, 2013).)  The Forest Service argued that it had been held to an unfair standard because a broad programmatic environmental impact statement conducted for the proposed changes covering 11.5 million acres near the Sierra Nevada isn't required to go into as detailed an analysis as a study tied to a specific project..  The Forest Service also asserted that requiring such detailed analysis for a programmatic environmental document would increase compliance costs and slow the review process. 

Potential Signature Gatherers Challenge Elections Code Prohibition

March 12, 2013, by Jennifer E. Faught

A 9th Circuit panel has found that the Libertarian Party of Los Angeles County and two signature gatherers had standing to challenge the Elections Code requirement that signature gatherers must be voters in the political subdivision as the candidate.  Libertarian Party v. Bowen (March 6, 2013)

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