September 2006

Ninth Circuit Court of Appeals Holds that Waiver of ADEA claims was Insufficient

Attorney Authors: 

Syverson v. International Business Machines Corp.

Under the Older Workers Protection Act, employees may not waive rights or claims arising under the Federal Age Discrimination in Employment Act ("ADEA") unless the waiver is voluntary and knowing. In connection with a severance package, International Business Machines Corporation had various laid off employees sign a release agreement that stated that the employees were waiving their right to file "claims arising from the [ADEA]."  The last sentence of the waiver also said that "[t]his release does not preclude filing a charge with the U.S. Equal Opportunity Commission."

Numerous former employees field a lawsuit alleging a violation of the ADEA. These former employees alleged that the last sentence of the waiver gave them the impression that they could still obtain individual relief for any ADEA claims. The Court agreed, holding that the waiver did not constitute a knowing and voluntary waiver of ADEA claims.

To read the opinion click here.

Court of Appeal Clarifies Limits on Extensions of Vesting Tentative Maps under Subdivision Map Act

In Ailanto Properties, Inc. v. City of Half Moon Bay, the First Appellate District clarified two issues of longstanding ambiguity under the Subdivision Map Act. First, the Court addressed the issue of the amount of time that the life of a vesting tentative map may be extended due to development moratoria. Government Code section 66452.6(b)(1) extends the life of a vesting tentative map for any period of time during which a development moratorium is in existence, but states that "the length of the moratorium shall not exceed five years." In this case, the City of Half Moon Bay approved a vesting tentative map for the developer's project, but subsequently imposed a sewer moratorium that lasted eight years. The Court held that the statute limits to five years the length of any moratorium-related tolling of the expiration of a tentative map.

The second issue under the Subdivision Map Act was whether the developer's filing of a phased final map with the city engineer constituted an effective filing entitling the developer to a 36-month extension of its vesting tentative map under Government Code section 66452.6(a)(1), where the phased final map did not conform to the requirements of the vesting tentative map and was not in a form that could be approved by the City. The Court held that section 66452.6(a)(1) was unambiguous, and that delivery of an admittedly nonconforming phased final map to the city engineer does not extend the life of the tentative map.

To read the decision, click here.

California Redevelopment Association Issues Legislative Update

The California Redevelopment Association issued the Executive Director's Legislative Update today, which provides the status of several redevelopment-related bills, including SB 1206--Kehoe [redefines "blight" for purposes of establishing a redevelopment project area]. To view the full text of the Legislative Update visit the California Redevelopment Associations website.

AB 2987 Creating a Statewide Franchise for Cable and Video Service Providers Goes to Governor

AB 2987 (Nunez/Levine) passed both the Assembly and Senate, and heads to the Governor for approval. The official site for California legislative information has not yet been updated with the version of AB 2987 as passed, but check back here for updates.

AB 2987 enacts the Digital Infrastructure and Video Competition Act of 2006 and creates a new statewide franchise for cable and video service providers to be administered by the Public Utilities Commission. The bill provides that cities, counties, cities and counties, or joint powers authorities shall receive state franchise fees in exchange for the use of public rights-of-way for the delivery of video services. In addition, the bill provides that local entities may establish a fee to support public, educational and governmental (PEG) channel facilities.

Status of Redevelopment Bills 2006

The following summary of the 2006 bills relating to Redevelopment was prepared by Peter M. Detwiler, Staff Director of the Senate Local Government Committee. Also see the post of 9/1/06 regarding the California Redevelopment Association’s Legislative Update related to Redevelopment bills. To review the Legislation, click here.

SB 53 (Kehoe) requires redevelopment plans to spell out how, when, and where redevelopment officials will use their eminent domain powers, and requires redevelopment officials to document “blight” before extending the time period for using eminent domain. Status: Governor’s Desk.

SB 1206 (Kehoe) tightens the statutory “blight” definition, increases oversight by the State Department of Finance, and makes it easier to challenge redevelopment decisions. Status: Governor’s Desk.

SB 1210 (Torlakson) requires redevelopment officials to document “blight” before extending the time period for using eminent domain, and changes the procedures for taking condemned property. Status: Senate Floor, concurrence pending.

SB 1809 (Machado) requires local officials to add information about a redevelopment agency’s possible use of eminent domain in the formal statements that current law already requires officials to record about redevelopment project areas. Status: Governor’s Desk.

AB 773 (Mullin) increases the referendum petition period for redevelopment decisions from 30 days to 90 days. Status: Signed; Chapter 161, Statutes of 2006.

AB 782 (Mullin) repeals the antiquated subdivision exception to the statutory “blight” definition. Status: Signed; Chapter 113, Statutes of 2006.

AB 1893 (Salinas) codifies the Ruffo decision, banning redevelopment spending on city halls. Status: Signed; Chapter 98, Statutes of 2006.

AB 2161 (Klehs) allows new residential units built outside a redevelopment project area in Alameda County to count towards affordable housing requirements. Status: Governor’s Desk.

AB 2922 (Jones) requires redevelopment officials to record documents regarding housing affordability restrictions and allows suits to enforce affordability restrictions. Status: Governor’s Desk.

Affordable Housing Financing and Developer Negotiations

Please join us for a Public Law Education Series presentation on Affordable Housing Financing and Developer Negotiations at our Oakland office on Thursday, September 28 or at our Los Angeles office on Monday, October 9.

Oakland's Oak to Ninth Development Project Referendum Blocked

John Russo, the Oakland City Attorney, has advised the Oakland City Clerk that a referendum to block the City's largest mixed-use housing development in decades should be invalidated because referendum proponents failed to comply with the requirements of the California Elections Code when they did not present the correct version of the ordinance, the subject of the referendum, to voters. Earlier this year the City Council adopted Ordinance No. 12760, approving the 3,100-unit Oak to Ninth project. In August, referendum proponents submitted over 25,000 signatures seeking to either have the City Council overturn its approval of the project or put the Oak to Ninth project before voters. When collecting signatures, referendum proponents failed to include the ordinance, as adopted by the City Council, and all incorporated exhibits. A failure to do so is a potential violation of the Elections Code. The City Attorney has directed the City Clerk not to certify to the City Council any petition that does not attach the version of the ordinance, as adopted by the City Council, or is missing exhibits to the ordinance.

For more information on the referendum challenge go to

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/09/07/BAG8LL0HK714.DTL

To review the Oakland City Attorney's legal opinion go to

http://www.oaklandcityattorney.org/PDFS/Opinions/OakNinthRefOpinion%209-06.pdf

To view the Oak to Ninth referendum efforts go to

http://www.abetteroaktoninth.org/Site/A%20Better%20Oak%20to%20Ninth%20Project.html

Governor Has Just Over Two Weeks to Sign/Veto Legislation Passed Prior to Legislature's Adjournment

The Governor has fifteen days left to sign or veto the bills passed by the Legislature prior to its adjournment on August 31. To date, a number of bills that are of interest to the California Special Districts Association (CSDA), have been signed into law by the Governor. The following summary of the bills was published by the CSDA Legislative Update.

Assembly Bill 3074 (Assembly Local Government Committee): This bill was signed into law on August 28, and reflects the Assembly Local Government Committee's annual omnibus legislation. It contained a number of technical amendments to various local government statutes.

Senate Bills 1122 & 1123 (Senate Local Government Committee): These bills were also signed into law by the Governor on August 28. These two bills are the Senate Local Government Committee's annual Validation Acts.

Senate Bill 1605 (Margett): Signed into law on August 28, this bill by Senator Bob Margett (R-Arcadia), involves public works contracts requiring the digging of trenches or other excavations that extend deeper than four feet below the surface. This bill requires the contractor to notify the local public entity in writing of any subsurface or latent physical conditions that differ from the conditions indicated by information about the site made available to bidders prior to the deadline for submitting bids.

Assembly Bill 2435 (Coto): This bill was signed into law on September 14. It was sponsored by the Santa Clara Valley Water District, and proposes numerous changes to the district's act.

Senate Bill 511 (Hollingsworth): This bill was signed by the Governor on September 14. The bill mandates that a county water authority prepare and submit, at its own expense, a report to the Legislature (not before January 1, 2008, and not later than January 1, 2009), pertaining to the implementation of the procedures governing the meetings and actions of standing committees of its board of directors that were adopted by that board in 2004 or 2005.

Senate Bill 1169 (Cox): This bill was also signed by the Governor on September 14. The bill amends the Municipal Utility District Act provisions relating to purchases of supplies.

For more information about these bills, please visit:

http://www.leginfo.ca.gov/bilinfo.html

Court Denies Requests for Brady Advice

In an article entitled "Court nixes requests for Brady advice," by Julie O'Shea, Recorder Staff Writer, dated September 6, 2006, she writes that Santa Clara County Judge James Emerson issued a standing order last week banning deputies in that office from filing Brady motions with the court. The Judge stated that, "[t]he sole responsibility under law for collection and disclosure of Brady material lies with the People." Under Brady, prosecutors are required to turn over to the defense, evidence that could be exculpatory. That can often include information about misconduct claims filed against the arresting or investigating officers.

Over the past four years, county prosecutors have filed motions asking the court to decide whether the District Attorney was required to release "possible Brady" discovery including police personnel files that could be used for impeachment purposes to the defense. Apparently, this began to irritate some judges who complained that they were being forced to do the District Attorney's job.

The San Jose City Attorney's Office previously warned that it would take "proactive measures to prevent needless embarrassment, harassment, and unwarranted invasions of privacy"  of its law enforcement officers. City Attorney J. Richard "Rick: Doyle expressed disappointment Wednesday. He pointed out that Judge Emerson stated in his order that "in extraordinary cases" discovery issues can be addressed to the supervising judge of the criminal department --in writing. "There is going to be a lot of extraordinary cases," Doyle noted. "The court is still going to have to address" this issue.

CITY OF SAN DIEGO WINS REVERSAL IN INVERSE CONDEMNATION CASE

The City of San Diego won a reversal on two inverse condemnation claims, reversing the $65.3 million dollar judgment against it . (Border Business Park, Inc. v. City of San Diego, Sept. 1 9, 2006, Fourth Appellate District, Div. Two, E035881).

Border Business Park is a real estate development company which was developing a business park in Otay Mesa (an unincorporated area in San Diego County annexed by the City). Border alleged two inverse condemnation claims against the City . The first was a "Klopping" claim alleging that unreasonable "pre-condemnation" actions taken by the public agency directly affect ed the landowner to its detriment . According to Border,  the City acted unreasonably by "announcing" it was considering developing an international airport in Otay Mesa which went directly through Border's ( and other land owner's) property. The second inverse condemnation claim alleged that the City substantially impaired access to the business park by diverting truck traffic in such a way that the traffic backed up so no one could drive in or out of the park. Border alleged the congestion was so bad it was affecting sales of the property by preventing access to or limiting the number of prospective tenants. The jury awarded Border a total of $94.5 million dollars -  $25.5 million in damages for the City's airport planning activities; $39.8 million for the truck traffic; and $29.2 million for the City's breach of the development agreement with Border.

The City filed a motion for new trial on all three claims. The trial court granted the City's motion on the issue of the breach of contract. The City then appealed the judgment. On Border's Klopping claim, the City argued that Border failed to present evidence of an announced intention to condemn the property, and that the claim, therefore, failed as a matter of law. The City also argued that Border, like numerous other land owners in the vicinity, did not suffer a "distinct or unique injury" as the law required. On Border's second inverse claim, the City argued that the evidence did not support Border's position of complete "gridlock" and virtually no access. Rather, the City argued that the evidence showed that traffic flowed, albeit slowly at times, and there was always at least one access to and from park.

The court of appeal reversed the judgment.  On Border's Klopping claim, the appellate court did not determine whether an announcement of an intent to condemn is required. But, the appellate court did agree with the City in holding that there was "no evidence that the airport proposal directly and specially affected Border, as opposed to the entire area of Otay Mesa within the proposed airport site...."  As to the second inverse claim (relating to the traffic congestion and affect on access), the appellate court found that the evidence failed "to show that there was ever a time when there was no access by means of at least one entrance to the park" and "interference with access which merely requires greater "circuity of travel" is not compensable."  Finally, the court upheld the lower court's decision granting the City's motion for a new trial on Border's breach of contract claim.

According to press reports, Border is planning to petition the California Supreme Court for review of the appellate court's decision.

F or more information about this case, please contact David Skinner at (510) 808-2000 or dskinner@meyersnave.com.

For more information regarding "Klopping" claims, see the seminal case, Klopping v. City of Whittier, 8 Cal.3d 39, 52 (1972).

Claudia J. Gorham, Eminent Domain Department

California Law Forbidding Employers who Receive State Grants from Deterring Union Organizing Upheld

Attorney Authors: 

California Government Code sections 16645.2 and 16645.7 bar recipients of a grant of state funds from "us[ing] the funds to assist, promote, or deter union organizing."  Various employer groups brought an action for injunctive and declaratory relief alleging that the statute violated federal labor law and was unconstitutional. On September 21, 2006, the Ninth Circuit Court of Appeals held that the restrictions imposed by Government Code sections 16645.2 and 16645.7 do not undermine federal labor policy and do not violate the First Amendment. Consequently, the Court upheld the validity of these sections, which also require employers receiving a grant of state funds who make expenditures to assist, promote or deter union organizing to maintain records sufficient to show that the state funds have not been used for those expenditures.

To read the full opinion click here.

Design Professionals Immunity Bill Awaits Signature or Veto

Authored by Assemblymember Lois Wolk (Davis, CA), AB 573 adds a new section to the California Civil Code which makes unenforceable contract clauses that require design professionals to defend and indemnify public agencies against liability claims. There are exceptions for claims that arise out of the negligence, recklessness, or willful misconduct of a design professional, defined as architects, engineers and land surveyors. This bill is currently awaiting signature or veto by Governor Schwarzenegger. For the full text of the bill, click here.

Ninth Circuit Upholds District Court’s Grant of Summary Judgment in Favor of Detectives in 42 U.S.C § 1983 Action

In a recent Ninth Circuit opinion, Burrell v. McIlroy, et al., 06 C.D.O.S. 8868 (September 20, 2006), plaintiff Stephen Burrell ("Burrell")) appeals the district court's grant of summary judgment on behalf of various detectives of the Las Vegas Metropolitan Police Department in this 42 U.S.C. § 1983 action. The Ninth Circuit affirmed the district court’s grant of summary judgment. 42 U.S.C. § 1983, is an "enabling" statute. That is, it is the vehicle by which a plaintiff may assert the violation of a constitutional right.

To read the full opinion of the Court, click here.

Governor Signs New Laws to Better Protect Californians Against Sex Offenders

On September 20, 2006, Governor Schwarzenegger signed six bills into law in an effort to better protect Californians against sexual predators. Based on a press release from the Office of the Governor, the legislation will increase penalties for child rapists, child pornographers and Internet predators, creates a sex offender management board to help better track dangerous parolees, makes the use of GPS to monitor sex offenders a permanent program, requires registered sex offenders to disclose their registration status to prospective employers when applying for certain jobs and prohibits child molesters from employing minors. A summary of the bills follows:

Senate Bill 1128 by Senator Alquist (D-Santa Clara) enhances penalties and implements new laws for registered sex offenders, including punishing continuous child sexual abuse by an automatic 25-year-to-life prison sentence, making possession of pornography depicting children a felony in some cases, discouraging plea bargains for violent sex offenders, and including youth recreational facilities in addition to schools when restricting access for sex offenders. Among the bill's many provisions, it also requires every person required to register as a sex offender to be subject to assessment using the State-Authorized Risk Assessment Tool for Sex Offenders, a valuable tool widely recognized by experts and used by law enforcement.

Senate Bill 1178 by Senator Speier (D-Hillsborough) requires high-risk sex offenders (HRSOs) to be fitted with Global Positioning Satellite (GPS) devices and monitored by local law enforcement, making a successful pilot program a permanent tool for law enforcement to better track and catch sexual predators on parole who may be committing or planning subsequent crimes.

Assembly Bill 1015 by Assemblymembers Chu (D-Monterey Park) and Spitzer (R-Orange) creates the Sex Offender Management Board under the jurisdiction of the California Department of Corrections and Rehabilitation (CDCR). The Board will bring together the stakeholders in the management of sex offenders to assess the current practices in managing adult sex offenders under supervision, identify best practices and make recommendations on how to implement these changes.

Assembly Bill 2263 by Assemblymember Spitzer (R-Orange) requires registered sex offenders, applying for jobs that involve physical contact with children, to disclose their registration status to prospective employers.

Assembly Bill 1683 by Assemblymember Shirley Horton (R-Chula Vista) requires the Department of Mental Health (DMH), when contracting with an entity that performs monitoring and supervision of a conditionally released sexually violent predator (SVP), to provide the court with a copy of the contract and proposed treatment plan. It permits the court to order DMH to provide copies of the terms and conditions of treatment (except confidential medical information) to specified local law enforcement officials. The bill also prohibits DMH from modifying the terms and conditions of a conditionally released SVP's treatment without approval of the court.

Assembly Bill 1900 by Assemblymember Lieu (D-Torrance) prohibits registered sex offenders who committed crimes against children under the age of 16 from employing minors or working near them. The bill closes a legal loophole by specifying that any person convicted of a sexual offense involving a child 15 years old or younger is prohibited from being an employer or an independent contractor where he or she would have direct, unaccompanied contact with minors on more than an occasional or incidental basis.

To read the entire press release regarding the Governor's recent actions regarding sex offenders, please visit:

http://gov.ca.gov/index.php?/press-release/3975/

For more information about these bills, please visit:

http://www.leginfo.ca.gov/bilinfo.html

Bill Establishing Statewide Franchise for Video Service Providers Before Governor

The Digital Infrastructure and Video Competition Act of 2006 (AB 2987, Nunez and Levine) awaits the Governor's signature or veto. AB 2987 establishes a statewide franchising procedure for video service providers to be administered by the California Public Utilities Commission and preempts local government franchising authority. The bill regulates several elements of the franchise, including franchise fees, public, educational and governmental (PEG) carriage and capital support, and non-discriminatory access to service.

If the Governor signs the bill, we will post a more detailed summary. To review AB 2987, click here.

If you have questions on AB 2987 or other telecommunications matters, please contact John Bakker, the co-chair of Meyers Nave's Public Power and Telecommunications Practice Group, at jbakker@meyersnave.com.

Independent Analysis of Proposition 90's Likely Impact

The California Redevelopment Association (CRA) has posted on its website a link to a report recently released by the LECG Group entitled "The Fiscal Impact of Proposition 90."  The CRA describes the report as the "first comprehensive report outlining Proposition 90's potential fiscal impact on California and its taxpayers."  The CRA lists the following key findings of the report:

1. Proposition 90 would increase the annual cost of state and local government in California by billions of dollars.

2. By increasing the cost of public works such as schools, roads, water systems, flood protection and utility services, Prop. 90 would curtail infrastructure development.

3. By increasing the cost of regulation, Prop. 90 would reduce government’s ability to regulate land use, protect consumers and workers, and safeguard the environment.

Please visit the CRA website to access either the executive summary or the full report.