September 2008

First Appellate District Rejects City’s Lease of Public Street Located on Reclaimed Tidelands for Private Use Without Notice and Comment

In Zack’s Inc. v. City of Sausalito, First Appellate District Case Nos. A118244, A118723 (August 11, 2008), the Court of Appeal for the First Appellate District reversed a trial court's judgment, siding with the Plaintiff in a nuisance challenge to Sausalito’s practice of leasing a section of a public street located on reclaimed tidelands for use as a private boat storage facility. The plaintiff had alleged that the storage of boats constituted a nuisance per se, as it interfered with traffic and parking, and effectively prevented the use of the plaintiff’s warehouse as a restaurant.

City of Cotati Defends Affordable Housing and the California Tiger Salamander

The Pacific Legal Foundation ("PLF") recently filed a lawsuit in federal court against the City of Cotati's inclusionary housing ordinance which requires new development to set aside affordable housing units or pay a fee to finance affordable housing. PLF, who represents the plaintiff developer, claims that the City is trying to force the developer to subsidize affordable housing, thus creating an unlawful taking. Additionally, PLF alleges that a condition imposed on the development project for mitigation of impacts on an endangered species, the California Tiger Salamander, is an unlawful taking. In response to PLF's lawsuit, the City filed a motion to dismiss for failure to state a claim for which relief can be granted. The City is represented by Meyers Nave.

New Budget Proposal Permanently Takes From Redevelopment Funds

The California Redevelopment Association (CRA) has reported that the recent budget proposal from the California legislature will require all redevelopment agencies to make a payment to the Educational Revenue Augmentation Fund (ERAF) to help alleviate the $15.2 billion budget deficit. The estimated amount from all redevelopment agencies is $350 million for the fiscal year 2008-2009. According to the CRA, the budget proposal does not include any extensions to time limits within redevelopment plans or repayment to redevelopment agencies.

California Court of Appeal Holds That City of West Hollywood's Ordinance Banning Mobile Billboard Advertising Applies to Commercial and Noncommercial Speech

In Showing Animals Respect and Kindness et al., (SHARK) v. City of West Hollywood, the California Court of Appeal for the Second District upheld a City of West Hollywood ("City") ordinance banning all "mobile billboard advertising" of any content, at any time, and on any street. The Court's opinion addresses whether the term "advertising"--as used in the ordinance--covers both commercial and noncommercial speech.

Plaintiff SHARK is a nonprofit organization that campaigns against cruelty to animals. SHARK operates a truck called the "Tiger Truck" which is equipped with four one-hundred inch video screens mounted on the front, back, and sides. The screens show animals being injured or killed by humans and below the screens are LED signs proclaiming messages protesting animal cruelty. The "Tiger Truck" also broadcasts the sounds of animals being abused.

The City adopted an ordinance making it unlawful for any person to conduct any mobile billboard advertising upon any street or other public place in the City. Under the ordinance, mobile billboard advertising includes any vehicle which carries, conveys, pulls, or transports any sign or billboard for the primary purpose of advertising. The ordinance was adopted in order to promote the safe movement of vehicular traffic, to reduce air pollution, and to improve the aesthetic appearance of the City.

The City agreed that SHARK was engaged in noncommercial speech. However, the City argued that the term "advertising" applies to both commercial and noncommercial speech. SHARK contended that the term "advertising" applies only to commercial speech and, consequently, the ordinance was not applicable to billboards conveying noncommercial speech. The Court held that the term "advertise" is not limited to commercial speech and noncommercial speech, such as messages which endorse political candidates, social causes, and religious beliefs, may also fall within the term "advertise" under the ordinance. Having determined that the ordinance applies to both commercial and noncommercial speech, the Court concluded that the ordinance was content neutral, served a significant government interest, was narrowly tailored, and left open alternative channels for communication. The dissenting opinion, however, interpreted the ban on advertising to pertain to commercial speech only and found that the definition of "advertising" in the ordinance was overbroad and ambiguous.

Ninth Circuit Narrows Federal Telecommunications Act's Preemption Standard for Local Regulation

Overturning recent decisions regarding local regulation of telecommunication facilities, the Ninth Circuit, in Sprint Telephony PCS, L.P. v. County of San Diego, recently reversed course in finding that enforcement of San Diego's wireless telecommunications ordinance was not preempted by the federal Telecommunications Act of 1996. Section 253(a) of the Telecommunications Act provides that "[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate telecommunications service." Similarly, § 332(c)(7) of the Act states that local regulations: "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." In 2003, the County of San Diego enacted a Wireless Telecommunications Facilities Ordinance, which established permit requirements and additional restrictions on the placement and construction of wireless telecommunication facilities. Sprint challenged the County's Ordinance arguing that it violated § 253(a) of the Act because the Ordinance prohibited, or had the effect of prohibiting, the provision of wireless telecommunication services. The County argued that § 253(a) was inapplicable because § 332(c)(7) of the Act was the exclusive authority on wireless regulations.

Public Comments on Lodi’s Adoption of Redevelopment Plan

On July 2, 2008, Lodi’s City Council approved a redevelopment area covering more than 2,000 acres, including numerous commercial corridors. The plan could generate up to $2.9 million in the next three years for improvements such as fixing sidewalks, streets and sewers and rebuilding storefronts and programs, such as housing assistance and economic development.

The last time the City considered redevelopment was in 2002, when it adopted a plan, however, it dropped its plan after opponents gathered signatures for a referendum vote. The plan’s inclusion of the right to use eminent domain was a big issue for the public. This time, the approved area does not include the right to use eminent domain.

A response from the San Joaquin County Registrar of Voters as to whether a referendum will be allowed is expected within the next couple of weeks.