July 2008

Changes to the Brown Act Effective July 1, 2008

Effective July 1, 2008, the Ralph M. Brown Act (“Brown Act”), imposes additional requirements on local agencies concerning regular meeting agendas and documents prepared by the agency for regular meetings. (See Government Code Section 54957.5.)

High Cost of Gas Prompting Smart Growth

With gasoline prices above $4 per gallon, communities are focusing their attention on whether smart growth planning can alleviate the financial burden of high gas costs and reduce air pollution. The Sacramento Area Council of Governments has actively promoted the "Blueprint," which sets forth smart growth planning principals such as higher densities, transportation choices, mixed-use development and conservation of natural resources. To read an article about the Blueprint and smart growth development in the Sacramento region, click here.

To read more about the Blueprint and smart growth planning, visit the Blueprint website by clicking here.

New Legislation Allows For Daily Fines for Neglected Foreclosure Property

Cities and counties can now impose civil fines of up to $1,000 per day on owners who fail to adequately maintain residential foreclosure property. The new urgency legislation (SB 1137, adding § 2929.3 to Cal. Civil Code) that went into effect on July 8, 2008 authorizes a "government entity" (which includes cities, counties and special districts) to impose fines on a "legal owner" who purchases a vacant residential property at a foreclosure sale or who acquires the property through foreclosure under a mortgage or deed of trust. Under new Civil Code § 2929.3, owners can be fined if they do not maintain the exterior of their property. Some of the examples of "failure to maintain" include permitting vegetation to grow excessively such that the value of surrounding properties is diminished; failing to prevent trespassers or squatters from remaining on the property; allowing mosquito larvae to grow in standing water; and permitting other conditions that create a public nuisance. (Civ. Code § 2929.3(b).)

If a governmental entity seeks to impose a fine under the new provisions, it must first provide notice of the alleged violation, including a description of the conditions, and a notice of intent to impose a civil fine. (Civ. Code § 2929.3(a)(1).) The owner must be given at least 14 days to begin corrective action and 30 days to complete it before a fine can be imposed, unless a specific condition exists on the property that threatens public health and safety. (Civ. Code § 2929.3(a)(2).) If such a public health and safety threat exists, the local entity can require the condition be remedied in less than 30 days, but the owner must be given notice of the determination that a public health and safety issue exists, along with a specified time for compliance. (Civ. Code § 2929.3(c).) Prior to imposing a fine, the governmental entity must allow for a hearing and opportunity for the owner to contest any fine that may be imposed.     The fine can be imposed for each day the owner fails to properly maintain the property, beginning on the day after the time to remedy has expired. Any fines collected are allocated to the local government's nuisance abatement programs.

Although the legislation specifically states that it does not preempt any local ordinances and the remedies are cumulative and in addition to any other remedies, governmental entities cannot impose fines under both the new legislation and a local ordinance. (Civ. Code § 2929.3(e).) Local governments are not, however, precluded from imposing a fine under the state legislation and commencing an abatement action under their local ordinances.

This bill, which expires on January 1, 2013, provides an important new tool for the local governments in their code enforcement tool kit.

This post was prepared by Nancy Thorington (nthorington@meyersnave.com) in the Santa Rosa office of Meyers Nave.

California Supreme Court Clarifies Proposition 218’s Provisions for Funding Open Space Acquisition through Special Assessments

In Silicon Valley Taxpayers Association, Inc. v. Santa Clara County Open Space Authority, California Supreme Court Case No. S136468 (July 14, 2008), a unanimous Court decided two key points concerning Prop. 218 assessments. First, the Court held that legal challenges to special assessments are subject to independent judicial review, thus reversing a line of pre-Prop. 218 cases which gave more deference to the public agency's determinations. The Silicon Valley Court noted that Proposition 218 “was intended to make it more difficult for an assessment to be validated in a court proceeding.” The Court’s decision makes it easier for individuals and organizations to challenge the validity of special assessments.