January 2010

City Causes Landslide, Appellate Court Holds No Liability Insurance Coverage

January 5, 2010, by Meyers Nave

A common liability insurance policy exemption has barred a city from seeking indemnification for land subsidence damage the city caused. In the case, City of Carlsbad v. Insurance Company of the State of Pennsylvania, the City of Carlsbad paid approximately $12 million to residents whose homes were damaged by a landslide caused by the negligent maintenance of the City's water system.

The City then sought indemnification for the damages it paid from its liability insurer, ICSP . ICSP denied coverage based on a clause in the City's policy which exclud ed coverage for "any property damage arising out of land subsidence for any reason whatsoever." The City then sued ICSP to obtain coverage, but the trial court dismissed the case, and the Court of Appeal reached the same conclusion.

In sum, where a municipality possesses a liability policy with a similar land subsidence damage exclusion, the insurer will probably not cover land subsidence damage caused by the municipality. Read more about the parties' arguments and Court's reasoning here.

CEQA Doesn't Apply When Agency Declines to Renew Use Permit for Private Applicant

January 14, 2010, by Meyers Nave

The California Supreme Court has clarified that a local agency’s decision to deny renewal of a private party’s existing, time-limited land use permit is not a “project” to which the California Environmental Quality Act (“CEQA”) applies. This decision applies only to private facilities; agency decisions to close existing public facilities have been held previously by the Courts to be "projects" that require environmental review under CEQA. Read more here.

Court of Appeal Publishes Opinion in Hotly Debated Community Redevelopment Case

January 15, 2010, by Meyers Nave

The Court of Appeal has published its December opinion in JSM Rivara, LLC v. the Community Redevelopment Agency of the City of Los Angeles and the City of Los Angeles (JSM Rivara, LLC v. CRA/LA). Its publication underscores the importance of the case for redevelopment agencies around the state. JSM Rivara, LLC v. CRA/LA raised significant questions, as well as public debate, about the extent to which redevelopment agencies have the authority, under the state's Community Redevelopment Law, to impose design and development controls to implement redevelopment plans. The Court's affirmation that the actions of the CRA/LA in this case carried out the mandates of state law, rather than local laws, represented a major victory for redevelopment agencies in their efforts to eliminate blight and revitalize communities. The Court also clarified the application of state density bonus requirements in redevelopment areas. Read more about the case here or read the published opinion.

CEQA Petitioner Must File and Serve Written Request For Hearing Within 90 Days Of Filing Petition

January 19, 2010, by Meyers Nave

It has long been established that a petitioner challenging a local agency's compliance with the California Environmental Quality Act (CEQA) must "request" a court hearing within 90 days of filing the petition, or face mandatory dismissal. A new case, County of Sacramento v. Superior Court (Forster-Gill, Inc.) clarifies that the request for a hearing must be filed in writing, and that an oral request will not suffice to avoid dismissal.

Click here to read a full analysis of County of Sacramento v. Superior Court (Forster-Gill, Inc.).

California To Go Green! First Mandatory State Green Building Code in Nation

January 20, 2010, by Meyers Nave

Last week the California Building Standards Commission unanimously approved a new building code “2010 CalGreen” that will take effect January, 2011. 2010 CalGreen is an update to the 2008 California Green Building Standards discussed in an earlier post and differs from the 2008 Green Building Standards Code in that its provisions are stricter and mandatory.

2010 CalGreen has been hailed by the San Francisco Chronicle as the most stringent and environmentally friendly state building code. However, a coalition of environmental and green building certification groups are criticizing 2010 CalGreen as a step backward, since its requirements are less strict than LEED standards and building codes already adopted in some California cities, such as Los Angeles and San Francisco. The Los Angeles Times reported that the some groups take issue with CalGreen because "the tiers cause confusion in the marketplace.” Others are in support of 2010 CalGreen because it was drafted to allow builders to receive green certification without paying for costly third-party green certification. Although the Commission touts the benefits of the 2010 CalGreen over private, point-based systems such as LEED, cities may still require LEED certification in their local green building codes. San Francisco, for one, has no intention of changing its LEED certification requirements, according to the Chronicle.

Regardless, everyone seems to agree that the mandatory basic requirements of 2010 CalGreen are a major step toward a greener California. 2010 CalGreen requires that new construction reduce water consumption by 20%, divert 50% of construction waste from landfills, and install low pollutant-emitting materials such as paints and carpets. The California Air Resources Board estimates that the Code’s mandatory provisions will reduce greenhouse gas emissions by 3 million metric tons equivalent by 2020. 2010 CalGreen also contains more stringent voluntary provisions for cities to use as a baseline in order to reduce greenhouse gas emissions.

The State Building Standards Commission is working to release a draft of 2010 CalGreen in the next few weeks.  

U.S. Supreme Court to Determine City Employee's Right to Privacy in Text Messages Sent on City Equipment

January 21, 2010, by Meyers Nave

For public employers, City of Ontario v. Quon raises issues regarding a public employee's right to privacy in electronic communications sent on a city's equipment . The Supreme Court's decision to hear the case follows the Ninth Circuit's ruling that a c ity's review of text messages sent and received by an employee on his city-issued pager violated the employee's Fourth Amendment right to privacy .

City of Ontario police sergeant Jeff Quon used his city-issued pager to send and receive hundreds of personal text messages . He incurred overage charges on the city's wireless plan that prompted the city to audit his text messages to determine if they were related to city business . Quon argued before the Ninth Circuit that his department's informal practice of allow ing officers to exceed their character limits if they paid overage charges nullified the city's written policy that employees had no expectation of privacy in communications sent on city-issued equipment .

The City of Ontario subsequently appealed the case to the Supreme Court, and the League of California Cities (LOCC) issued a brief in support of the appeal, as described on the LOCC Web site.

It is anticipated that the Supreme Court will issue its ruling by the end of June.

The LOCC brief was authored by Meyers Nave attorneys Nancy Thorington and Joseph Quinn. Read Meyers Nave's press release here.

No More Limits on "Permissible Quantity” of Medical Marijuana

January 28, 2010, by Meyers Nave

On January 21, 2010, the California Supreme Court issued its ruling in People v. Kelly (S164830), which essentially eliminates the limitations on the quantity of medical marijuana that a qualified patient or primary caregiver may legally possess or cultivate. Read more here.

Police Officers Cautioned About Use of Social Networking Sites like Facebook

January 29, 2010, by Meyers Nave

An article published by the Police Officers' Research Association of California (PORAC) warns police officers that their interactions on social networking sites can lead to discipline, up to and including termination, if those interactions are in violation of their department's policies. Also this month, Lexipol has announced that it willbe preparing and sending out to its subscribers a policy on police officer use of Facebook.

The authors of the PORAC article cite numerous examples of uses of social networking that could lead to such discipline. For example, an officer who posts photos of herself aiming her gun at the camer or posing with her gun may violate her department's policy against gun glorification, they say. Or, an officer who posts photos of himself drinking alcohol or posts comments that reflect poorly on his department may be disciplined under the umbrella of "conduct unbecoming."

First Amendment protections may apply to officers who do not identify themselves as officers on social networking sites, but this is a "gray area", the article goes on to say. Presumably this is because individuals posting on social networking sites can never be certain that their anonymity will be maintained.

The bottom line? Don't post anything you wouldn't want your department to see, the authors say.