February 2008

Trial Court Rules Global Warming Analysis Not Required Under CEQA

A Riverside County Superior Court judge ruled that there was no legal requirement to analyze greenhouse gases (GHGs) and global warming impacts under the California Environmental Quality Act (CEQA) (Highland Springs v. City of Banning, Case No. 460950 (Riverside County Superior Court, January 29, 2008)).

Sacramento Court Orders Disclosure of Peace Officer Information Statewide

On January 28, 2008, Sacramento Superior Court Judge Lloyd Connelly issued an Order requiring the Commission on Peace Officer Standards & Training (POST) to disclose any and all information on every California peace officer it has in its database. The information that POST was ordered to provide was everything that it may have on each peace officer, including name, rank, wage, annual earnings, hours worked, and any other data stored in its system that would be subject to disclosure under the California Public Records Act. California public agencies are stunned because this Order does not distinguish among the officers in any way, including, for example, those assigned to high-risk operations such as undercover narcotics, street gang, auto theft, and prostitution task forces. In addition, the Order does not allow for the redaction or withholding of this information for officers involved in high-risk assignments.

Meyers Nave is in the process of preparing motions to intervene in this case, L.A. Times v. POST (Sacramento Superior Court Action No. 03CS01077). Intervention must be done quickly, however, based upon the Court's Order that POST must file notice with the Court on February 15, 2008, informing the Court and the L.A. Times if it will comply with the Order to disclose, or if it would like to proceed further on the merits of the underlying action. If you would like additional information, please feel free to contact Trish Hynes at thynes@meyersnave.com, or 510-808-2000. More information to follow...

Infill Infrastructure Bond Application Workshops Scheduled for February

Housing and Community Development (HCD) has scheduled application workshops in February for the Infill Incentive Grant Program.

Proposition 1C (2006) included $850 million in bonds for housing. The FY 2007-08 budget appropriated $300 million of the funds. HCD is appropriating $240 million and the other $60 million is being appropriated by the CALReUSE program for brownfield cleanup.

HCD’s February workshops will address the appropriation of the $240 million (an additional $550 million in this account remains to be appropriated in future years).

For information, follow this link.

Does the City Have Discretionary Use of Eminent Domain or a Contractual Obligation?

To increase the opportunity for land ownership the City of Honolulu enacted Chapter 38. When a sufficient number of condominium unit owners within a complex applied, the City would enter into a contract with each lessee and would agree to pursue eminent domain to acquire the property on which their complex was built and then would convey each condo unit to the lessee in fee simple. The lessees of the Discovery Bay condominium complex applied to the City under Chapter 38. However, after entering into contracts with the lessees, the City Council repealed Chapter 38 and it stopped pursuing eminent domain as promised. The lessees filed suit against the City arguing that the City’s repeal of Chapter 38 impaired the City’s obligation to pursue eminent domain under its contracts.

The District Court held that the lessees could not challenge the repeal because it found that the contracts limited the City’s discretion over the use of eminent domain. The public policy concern is that local governments retain the flexibility to exercise their police powers effectively. The Court of Appeal, however, found that the contracts did not prevent the City from exercising its power of eminent domain within its discretion. The case was remanded for the District Court to determine whether the ordinance repealing Chapter 38 impaired the contractual relationship and whether such impairment was substantial.

Matsuda v. City and County of Honolulu, No. 06-15337 (January 14, 2008), a decision by the Ninth Circuit.

Full text http://www.metnews.com/sos.cgi?0108%2F0615337

Court Rules Coastal Commission Has the Power to Unilaterally Designate Environmentally Sensitive Habitat Areas and to Regulate Inland to the Boundary of the Costal Zone

On February 6, 2008, the California Court of Appeal, Second District ruled in Douda v. California Coastal Commission 2008 SOS 936, that an "issuing agency," whether that be the California Coastal Commission or a local government, can unilaterally designate "environmentally sensitive habitat areas" prior to the certification of a local coastal program ("LCP"). While the Court found that an issuing agency cannot deviate from a certified local coastal program and designate additional ESHA," it held that if an LCP has not been certified, then "allowing the issuing agency to protect natural resources for the benefit of the public by designating new areas when they meet the definition of environmentally sensitive…more closely comports with the declared and salutary purposes of the Coastal Act."

Appellate Court Finds Proper CEQA Baseline to be Existing Environmental Setting—Not Permitted Limit

In Communities for a Better Environment v. South Coast Air Quality Management District the court clarified the appropriate baseline for environmental review, finding that the appropriate baseline for a refinery modification project was actual, not permitted, emissions. Communities for a Better Environment (CBE) challenged South Coast Air Quality Management District’s (SCAQMD) approval of modifications to an oil refinery. The refinery’s permit allowed it to emit a certain level of NOx, however, as of 2003, actual NOx emissions from the plant had declined such that the plant was emitting less than 50% of its initial permitted limit. SCAQMD acknowledged that the project could generate an increase in emissions that exceeded the CEQA threshold; however, using the permitted level of emissions as the baseline, SCAQMD reasoned that the increased emissions that could be generated by the project would still be less than the baseline level and, thus would not result in a significant impact to the environment.

Sacramento Uses Eminent Domain to Eliminate Blight on Pedestrian Mall Blocks

Last December, the Sacramento Redevelopment Agency approved the use of eminent domain to acquire two key blocks of the "K" Street Mall in downtown Sacramento in order to "revamp" the mall's most run-down stretch. Apparently, the Agency and the property owner had negotiated a complex land swap which called for the property owner to retain some of the property and redevelop it. However, when some of the buildings were demolished after a fire, the deal fell through. The Agency offered the property owner $11.8 million for nine properties but did not receive a response. City leaders hope to still negotiate a resolution but decided to move forward with the filing of the complaint to condemn just in case. Meanwhile, the property owner has several actions against the City, including one challenging the approval of development in the downtown rail yard.

See www.sacbee.com.

City of Vallejo in Fiscal Crisis- Facing Bankruptcy

The City of Vallejo is facing serious fiscal crisis. According to the City Manager, Joseph Tanner, it faces a $6 million deficit in its budget. The City is anticipated to make significant reductions in municipal services, including employee layoffs and program funding cuts. The Vallejo City Council is currently engaging in emergency labor negotiations with its public safety unions. Vallejo appears to be the first City in California history to be close to declaring bankruptcy. Read more about this story on the San Francisco Chronicle's website.

California Supreme Court Issues Ruling Regarding Injuries on Public Property

Attorney Authors: 

The California Supreme Court unanimously held that the County of San Joaquin was not liable for injuries that a teenager suffered as a result of an automobile accident at an intersection with an allegedly poorly placed stop sign. According to an article in the San Francisco Chronicle, the State Supreme Court held that accident victims who blame their injuries on dangerous conditions on highways or public property must prove that government employees carelessly created the dangers or ignored warnings. To read an article about the Supreme Court's decision click here.

SWRCB Issues Executive Order Requiring Discharges to be Reported within Two Hours

The State Water Resources Control Board recently issued an Executive Order requiring that within two hours of becoming aware of a discharge of sewage into a drainage channel or surface water, the discharger notify the State Office of Emergency Services, the local health officer, or the local directors of environmental health, as well as the appropriate Regional Water Quality Control Board. The Executive Order further requires that within 24 hours of the discharge, the discharger certify to the Regional Water Quality Control Board that the State Office of Emergency Services, the local health officer, or the local directors of environmental health have been notified of the discharge. The new notification requirements went into effect upon signature on February 20, 2008.

Attorney General Announces Workshops to Assist Local Agencies in Addressing Global Warming Impacts in CEQA Analysis

On February 19, 2008, Attorney General Brown sent letters to all 58 counties and over 200 cities announcing five workshops statewide in which the AG will discuss the interplay between CEQA and Global Warming impacts.

City’s Failure to Exercise CEQA Discretion in Properly Designating a Potentially Historic Resource Constitutes Reversible Error

Valley Advocates v. City of Fresno, --- Cal.Rptr.3d ---, 2008 WL 400245

In Valley Advocates v. City of Fresno, a local organization challenged the City of Fresno’s approval of demolition of an apartment building on the basis that the City improperly determined that the building was not an “historical resource” for CEQA purposes. The project application was reviewed by the local Historic Preservation Commission who recommended that the building be listed on the local register of historical places. However, at a public hearing the City Council denied listing the building on the local register. Staff subsequently found the project to be exempt from CEQA. On appeal of staff’s decision to the City Council, the Council was advised that their previous decision to deny listing of the building on the local register was conclusive as to the building’s historical significance under CEQA, and, therefore, that the project would not impact an historical resource. Accordingly, the City Council denied the appeal. Valley Advocates filed a petition for writ of mandamus challenging the City’s determination that the subject building was not an historical resource.