February 2010

EIR Required for Ordinance Banning Plastic Bags

In Save the Plastic Bag Coalition v. City of Manhattan Beach, the Second District Court of Appeal (Los Angeles) has held that the California Environmental Quality Act (CEQA) required the City of Manhattan Beach to prepare a full Environmental Impact Report (EIR) before approving an ordinance to ban stores and other retail outlets from distributing plastic bags. The case illustrates the breadth of agency approvals which may qualify as “projects” requiring environmental review under CEQA, and the low threshold for CEQA’s requirement that a project be studied in an EIR if there is a “fair argument” that it could cause a significant environmental impact. However, perhaps the more significant ruling is that the petitioner, an association of plastic bag manufacturers, was granted standing to oppose the City’s compliance with CEQA. Read more here.

High Praise for Pot Growers' Superstore

Will 2010 be the "Year of Living Green?" Including the year that California voters pass an initiative to legalize marijuana for personal use?

Yesterday, the backers of the "Regulate, Control and Tax Cannabis Act of 2010"--- which would legalize possession of small amounts of marijuana for adults, allow limited growing on private property, and permit local governments to decide whether to legalize and tax pot sales --- stated they would submit more signatures than required to qualify the measure for the November 2010 ballot.

Coincidently, in a ribbon-cutting ceremony attended by several members of the City Council, a 15,000 square foot warehouse-type store stocked with marijuana growing supplies opened in Oakland, California. "IGROW" does not sell marijuana, but has everything else an experienced or novice medical marijuana grower would need and more, including "Bud Candy," "Grow Big," "Bud Ignitor." The only catch is that you must have a "pot card" to validate you as a medical patient. Under current state law, Californians can legally grow and possess pot for medical purposes.

Broader legalization of marijuana use got a boost in April when a Field Poll found that 56 percent of California voters supported legalizing and taxing marijuana to help bridge the state budget deficit. The measure is not without some controversy, though. Law enforcement associations and religious groups oppose it, arguing marijuana is harmful and immoral.

Last summer, voters passed a measure in Oakland to pass and regulate businesses like IGROW, and the City is hoping for a big return in tax dollars. After November, IGROW may just have to become a chain.

8,000 Adult Items in One Store Found "Substantial" by 2nd Circuit

The Second Circuit Court of Appeals has overturned a district court ruling and rejected an as-applied vagueness challenge to a Town of Berlin ordinance --- and in so doing, has presented an excellent discussion of the vagueness doctrine and its application to the construction of the term "substantial". Read more about the case, VIP of Berlin, LLC v. Town of Berlin, and the decision here.

Mitigation Measures May Survive Expired Approval

The First District Court of Appeal ruled that the California Department of Forestry (CDF) improperly approved an exemption for harvesting less than three acres of timber where previous timber harvesting plans included mitigation measures prohibiting tree-cutting in the proposed area. Even though the previous approvals had expired, the court in Katzeff v. California Department of Forestry and Fire Protection, filed January 28, 2010, concluded that the adopted mitigation measures could not be deleted without determining the continuing need for the mitigation. Read more here.

State Initiative to Legalize Marijuana One Step Closer to Ballot

The proponents of “The Regulate, Control and Tax Cannabis Act of 2010,” which would legalize marijuana for personal use by individuals 21 years of age or older, reportedly submitted over 700,000 signatures to the Secretary of State on January 28, 2010, in an effort to qualify the measure for the November 2010 ballot. The Secretary of State has eight business days to perform a raw signature count, and then has up to 60 days to determine whether the Initiative has the 433,971 valid signatures necessary to be placed on the November ballot. Read more here.

County Must Include ERAF Revenue in Calculating Pass-Through Payments By Redevelopment Agency to School District

On January 27, 2010 the Court of Appeal filed its decision in Los Angeles Unified School District v. County of Los Angeles et al., in which the Court analyzed the overlap between the Educational Revenue Augmentation Fund (ERAF) legislation in the Revenue and Taxation Code and the pass-through legislation applicable to redevelopment agencies found in the Health and Safety Code. In reversing the Los Angeles Superior Court and remanding for further proceedings, the Court determined that Los Angeles County had erroneously calculated the Los Angeles Unified School District’s percentage share of property taxes and thus subjected the District to an improper reduction in the amount of pass-through payments to which the District was entitled. Read more here.

Even Where No Environmental Review Was Undertaken, 30-Day Statute of Limitations for CEQA Challenge Applies Whenever NOD is Filed

Earlier this month, in Committee for Green Foothills v. County of Santa Clara, the California Supreme Court considered the question, if a notice of determination ("NOD") has been filed, but an action alleges that no environmental review was undertaken, which statute of limitations applies: (1) the general 30-day limit on challenges following a notice, or (2) the longer 180-day period provided for a case alleging that no environmental determination was made (§ 21167, subd. (a)). The Court held that the filing of an NOD triggers a 30-day statute of limitations for all CEQA challenges to the decision announced in the notice. Read more here.

Criminal Defendants Must Allege Specific Facts to Access Police Personnel Records, Court of Appeal Affirms

In a decision published February 9, 2010 the California Court of Appeal, Fourth District, affirmed that criminal defendants, when making Pitchess motions, must submit a declaration or affidavit alleging a specific factual scenario that shows how the relevant police officer(s) committed misconduct. This has long been the applicable standard for successful Pitchess motions, which seek disclosure of confidential police officer personnel records to aid in the defendant’s case. However, the opinion, People v. Sanderson, also recognizes that where the specific facts alleged in support of the Pitchess motion call an officer’s truthfulness into question by merely denying portions of an incident report, the trial court is within its discretion to determine that the defendant failed to sufficiently allege the required factual scenario in support of the motion. In particular, the Court of Appeal affirmed the trial court’s finding that the Pitchess motion at issue did not present sufficient facts because the defendant had only disputed the portion of the police report that recited the defendant’s pre-arrest statements. The defendant’s denials thus raised a credibility question, but did not present an alternate version of facts, as required.

This decision is important because defendants bringing Pitchess motions often attempt to satisfy the specific factual scenario requirement by merely denying portions of an incident report. Now, the law is clear that a trial court has the discretion to find that a defendant has not shown good cause where the defendant does not present an alternative version of facts, but merely calls an officer’s credibility into question. Read the entire opinion here.

CEQA Guidelines on Greenhouse Gas Impacts Take Effect in March

On March 18, 2010, amendments to CEQA guidelines will take effect, requiring the analysis of greenhouse gas (GHG) impacts.

So, any remaining questions on whether CEQA requires GHG analysis have been eliminated. The issue now is how to perform the analysis. The State CEQA Guidelines left discretion to public agencies to determine the methodology and standards of significance for evaluating GHG impacts. Some air quality districts are providing some guidance for how agencies may address this issue, but the approaches are not uniform. Agencies need to decide how they are going to perform this analysis, considering issues such as a quantified versus qualitative standard and the use of a programmatic analysis based on adoption of a GHG reduction or climate action plan.

These challenging issues are addressed in an article by our firm, Meyers Nave, published this week. The article describes the applicable regulations and evaluates the issues and risks presented by different approaches. Click here to read the article.