March 2009

Affordable Housing In Lieu Fees

Although the specific question raised in Building Industry Association of Central California v. City of Patterson involved the interpretation of a development agreement ("DA"), the Court's answer could have far reaching implications for the collection of affordable housing in lieu fees throughout the State. In this case, developers and the City of Patterson entered into a DA for two residential subdivisions in the City. At the time the DA was entered, the City's affordable housing in lieu fee was $734 per unit. The DA, however, recognized that the City was updating its affordable housing in lieu fee and the developer agreed to pay the updated fee so long as the updated fee was "reasonably justified." Click here to read on.

Public Project Must Be Identifiable in Resolution of Necessity

Both federal and state statutory and constitutional law mandate that private property may only be taken for a public use. The Courtof Appeal reaffirms in City of Stockton v. Marina Towers, LLC, that if a public entity desires to use eminent domain to acquire private property, an adequate project description is essential for the public entity's governing body to make the required findings of necessity under Eminent Domain Law (Cal. Code of Civil Proc. sections 1240.030, 1245.230.)

In Marina Towers, the City failed to identify a specific project or public use of the property to be acquired until several months after the Resolution of Necessity was adopted and after the complaint for condemnation had already been filed. The Court of Appeal held that the lower court could not rely on the public entity's decisions and use of the land made after the passing of the resolution (identification of the public use and the construction of a public ball park and parking lot). The Resolution of Necessity was fatally defective and the property owner's objections to the City's right to take were upheld. For more, see the entire published case - City of Stockton v . Marina Towers, LLC (2009) 171 Cal.App.4th 93.

Public Agency Can Unilaterally Decide to Lay Off Employees

On March 18, 2009, the California Court of Appeal held that the City of Richmond's decision to lay off its firefighters was not subject to collective bargaining, but that the effects of that layoff decision, such as the workload and safety of remaining employees, were subject to the meet and confer requirements of the Meyers-Milias-Brown Act (MMBA). The court emphasized that the union's attempt to re-characterize the layoff decision as a change in shift staffing did not transform it into a mandatory subject of collective bargaining. Click here to read more.

EPA Moves Toward Federal Regulation of Greenhouse Gases

Nearly two years after the U.S. Supreme Court directed the Environmental Protection Agency to determine whether carbon dioxide is a pollutant that endangers public health and welfare, the EPA has prepared and forwarded a so-called "endangerment finding" that could result in the regulation of carbon dioxide and other greenhouse gases under the federal Clean Air Act. At this point the EPA has only prepared a finding, and is not proposing how greenhouse gases should be regulated, but approval of the finding would be expected to initiate that discussion.

EPA's finding is expected to be published in the Federal Register in April, followed by a 60-day public comment period and public hearings, prior to finalization. The finding follows comments from EPA Administrator, Lisa Jackson, suggesting that she would declare global warming a public health threat. While MSNBC has reported that environmental groups are pleased with the proposed finding, critics of the finding, including the United States Chamber of Commerce, worry about the increased volume of clean air permits that my be required if federal regulation of greenhouse gasses is implemented.

More information on EPA's proposed finding can be found here and here.

The Obama Administration's Position on Medical Marijuana Dispensaries

Recent statements made by U.S. Attorney General Eric Holder suggest a shift in the federal government's position on the prosecution of medical marijuana dispensaries and their operators. At a press conference on February 25, 2009, Mr. Holder stated that law enforcement's actions will be consistent with the President's campaign statement that he would allow states to regulate medical marijuana without interference from the federal government. Please follow this link to read more.

BART Board Authorizes Expansion of Independent Internal Affairs Investigation of New Year's Day Shooting

The Board of Directors of the Bay Area Rapid Transit District ("BART") approved an expanded external and independent Internal Affairs investigation of BART officers who were on the scene at the Fruitvale Station Platform on New Year's Day currently being conducted by the law firm of Meyers Nave. Meyers Nave reported to the Board that the internal affairs probe spans a wider range, including a review of events leading up to the shooting, than originally anticipated.

A chronology of BART news releases related to the New Year's Day shooting can be found at www.bart.gov in the sidebar titled "Latest on New Year's Day Shooting, Investigation."