June 2009

SB 375 Targets Still Evolving - Cities and Counties Stay Tuned

SB 375 requires that the California Air Resource Board (CARB) set regional greenhouse gas targets by September 30, 2010. Currently, CARB’s target is a five million metric tons reduction for transportation related planning programs, but this is subject to change. CARB created the Regional Targets Advisory Committee (RTAC), which is currently considering methodologies and factors that should be taken into account when setting CARB's greenhouse gas emission targets. The RTAC has held seven meetings since February. In its previous meetings, the RTAC focused on whether greenhouse gas emission targets should be set regionally or per capita and how the targets will account for inter-regional travel. Today, the RTAC meeting focused on regional data regarding factors that affect regional greenhouse gas emissions (such as distance between jobs and residential development and the percent increase in developed land).

The fact that RTAC is slowly moving through the long target setting process means that cities and counties will need to use their best judgment in regulating greenhouse gas emissions in the interim. Although SB 375 does not trump local land use laws, it is still an important law for localities to follow because it links regional plans to transportation funding and housing elements. Cities should stay tuned to the RTAC's final conclusions, especially those localities amending their general plans in the upcoming couple of years. Until RTAC issues its conclusions, certain greenhouse gas emissions regulations, such as the inventorying of greenhouse gases, are certain; others, such as “feasible mitigation measures,” remain somewhat ambiguous.

For handouts and agendas for each of the RTAC’s meetings, click here.

California Supreme Court Upholds Existing Standards for Public Expenditures on Local Ballot Measures

The Supreme Court's recent decision in Vargas v. City of Salinas reaffirms the Court's holding in Stanson v. Mott (1976) 17 Cal.3d 206, and maintains existing limitations on the expenditure of public funds for materials and activities related to ballot measures. Although the Court rejected the adoption of a proposed bright-line test that would have permitted public expenditures for all communications that were not express advocacy, it provided some useful new general guidance beyond that in Stanson. It also provided helpful specific examples both of acceptable publicly funded communications--by approving the specific expenditures by the City of Salinas at issue in the lawsuit--and of unacceptable communications --by expressly disapproving communications from other cases and from a recent California election. Read more.

UC Davis Settles Gender Bias Lawsuit

Attorney Authors: 

The San Francisco Chronicle has reported that UC Davis recently settled a gender bias lawsuit filed by three current and former female athletes. According to the article, the settlement agreement -- which needs to be approved by a Federal Court Judge -- will require the University to reach specific proportions of male and female athletes by the 2019-2020 school year. To read more about the lawsuit and settlement terms click here.

Month-to-Month Tenant Entitled to Claim Loss of Business Goodwill

Although there is no constitutional right to compensation for business goodwill (benefits that accrue to a business as a result of of its location, reputation, skill and quality of its products and/or employees) in eminent domain proceedings, under California Code of Civil Procedure section 1263.510, the owner of a business conducted on property taken by eminent domain may be compensated for loss of goodwill under certain conditions.

The Court of Appeal, Second Appellate District, has just published a decision in Los Angeles Unified School District v. Pulgarin (filed 6/23/09) holding that there is no requirement in the plain language of the statute that the owner of a business seeking goodwill prove that he or she is the owner of, or has a written lease on, the property being taken: "What is required is that '[t]he owner of a business conducted on the property taken' prove that the loss is caused by the taking of the property." "A business which is required to move because of the taking of the property on which it operates has suffered a loss from the taking. This is true whether the tenancy is for a fixed term, or is a periodic tenancy as in this case.

If not challenged, the Pulgarin decision appears to be inconsistent with another Court of Appeal decision in San Diego Metropolitan Trnsit Dev. Brd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, which held that a business owner has "no enforceable property interest" in the absence of a lease. It may be that the California Supreme Court will need to clarify whether and to what extent a business owner must have a vested, legally compensable property interest in the property being acquired by a public entity, to be entitled to claim loss of goodwill. In the interim, the value of the loss of business goodwill is still affected by the probable remaining term of a tenancy; evidence of no lease or a month-to-month tenancy are still probative elements for the determination of the amount of compensation for loss of goodwill.

Unconstitutional Strip Search Does Not Strip School Officials of Qualified Immunity

The United States Supreme Court ruled last week in Safford Unified School District #1, et al. v. Redding that a school official's search of a thirteen-year-old student's bra and underpants violated her Fourth Amendment right to be free from unreasonable searches. But in a second part of the opinion with significance beyond the school setting, the Court held that the officials were entitled to qualified immunity, as the unconstitutionality of such a search was not "clearly established" when they conducted it. This decision is important to all public officials who may assert a qualified immunity defense, because it reaffirms the rule that the official must be on notice that her conduct violates a clearly established right before she can be subjected to a lawsuit, or, ultimately, liability. Read more here.

Resources for Greenhouse Gas Reduction Measures and Plans

Many public agencies are considering the adoption of greenhouse gas reduction measures and plans. These plans help agencies comply with developing legal requirements. They also benefit agencies by retaining local control, reducing legal risk, and saving energy and other costs. There are several resources that provide guidance, technical assistance and funding for the development of these plans. Read more here.