March 2010

New Decision Affects Miranda

On February 24, 2010, the U.S. Supreme Court came to a decision that will have long-lasting implications on police policy with respect to Miranda warnings. The case, Maryland v. Shatzer, examined whether a police investigation in Maryland was performed illegally when police re-interrogated a man suspected of sexual assault after two years had passed since the first interrogation.

At issue was the question: if a break in one's custodial state occurs after the individual has invoked his right to counsel, when (if at all) may police resume interrogating the suspect and not violate his or her right to counsel? In a unanimous decision, the Supreme Court ruled that the police did not violate the suspect's right to an attorney and that 14 days is a sufficient amount of time to pass for one's invocation of Miranda to end and for re-interrogation to take place.

What Shatzer has done is to establish a bright-line rule in terms of when an individual's right to invoke ends. Once a suspect invokes his or her right to counsel, the interrogation must cease immediately—that rule has not changed. What has changed, however, is that the officer may revisit the suspect and resume the interrogation after a two-week lapse, regardless of whether the suspect is in custody, as long as he or she is returned to the general prison population for a conviction unrelated to the subject of the interrogation. Read more here.

Agreement for City Services to Proposed Tribal Casino is Not a Project under CEQA

The First District Court of Appeal ruled that the City of Richmond did not violate CEQA when it entered into a municipal services agreement (MSA) for a tribal casino proposed on unincorporated lands adjacent to the City. In Parchester Village Neighborhood Council v. City of Richmond, the court reversed a trial court decision and agreed with the City that the MSA was not a project under CEQA.

Consistent with Save Tara, this case analyzed the various factors surrounding the MSA to determine if it constituted a project approval requiring CEQA review. Local agencies should continue to examine development-related agreements in a larger context to ensure that CEQA review occurs at an appropriate stage of the overall development process and before the agency has committed to activities that could have a physical effect on the environment.

Read more.

California Supreme Court to Decide If Parties Have Right to Appellate Review Before Complying With Cities' Legislative Subpoenas

The California Supreme Court announced this week that it will decide an important question about enforcing legislative subpoenas issued by cities to aid investigations: If a trial court orders a party to comply with such a subpoena, is the party automatically entitled to have an appellate court review that order before the party must comply?

The Court will decide that question in the context of a dispute over subpoenas that the City of Dana Point issued to require five medical marijuana dispensaries to produce records the City could use to determine if they are operating legally. After a trial court ordered the dispensaries to comply with the subpoenas, each filed a notice appealing the order to the Fourth District Court of Appeal, based in Orange County. In 2007, the Sixth District Court of Appeal in San Jose held that a party in such circumstances has the right to appeal the order enforcing the subpoena. (City of Santa Cruz v. Patel (2007) 155 Cal.App.4th 234; read the relevant part here.) Such an appeal automatically stays the order until the court of appeal decides the case, which usually takes at least a year. In the Dana Point cases, the court of appeal issued an order stating that the parties did not have the right to appeal, but must instead seek review by petitioning the court of appeal to issue an extraordinary writ. This is an important difference: courts of appeal can and usually do deny writ petitions summarily and within weeks, without full briefing, oral argument, or a written opinion. Moreover, filing such a petition does not automatically stay the order, though the party resisting compliance can ask the courts for such a stay.

The California Supreme Court has now agreed to resolve the dispute over how a party resisting a legislative subpoena can secure appellate review. While the issue in these cases is limited to subpoenas issued by a city under Government Code section 37104, the Court's ruling may also resolve a parallel, unsettled dispute over appellate review of administrative subpoenas issued by State agencies and departments.

The five cases are:

  • Enforcement Against Dana Point Safe Harbor Collective, No. S180365
  • Enforcement Against The Point Alternative Care, Inc., No. S180468
  • Enforcement Against Holistic Health, No. S180560
  • Enforcement Against Beach Cities Collective, No. S180749 and
  • Enforcement Against Dana Point Beach Collective, No. S180803

Federal Government Stalls Clean Air Act Greenhouse Gas Regulation While California Forges Forward

California has been forging ahead with many types of climate change regulations that address Greenhouse Gas (GHG) emissions from land uses, vehicle use, construction and stationary sources. For example, the State has regulated GHGs through California Environmental Quality Act (CEQA) in accordance with SB 97, and regulated the interaction between vehicle use and land use development in accordance with SB 375. Most of these State regulations originate from AB 32, which requires the State to reduce GHG emissions to 1990 levels by no later than 2002. AB 32 also required the creation of a GHG registry for stationary sources (industry). Recently, the Bay Area Air Quality Management District issued mandatory GHG requirements in an air pollution permit for a local power plant.

In contrast to the State, federal regulation of GHGs emissions from stationary sources through the Clean Air Act (CAA) has stalled. You may recall that over two years ago the Supreme Court ruled that carbon dioxide is a pollutant subject to Environmental Protection Agency (EPA) regulation under the Clean Air Act. Environmental advocates have been criticizing the EPA for delaying GHG regulations of stationary sources at the federal level, according to the New York Times. Now, federal legislators are also attempting to delay EPA regulations for a set amount of time. Both Senator Jay Rockefeller (D, W. Va.) and Representative Nick Randall (D, Wa.) have introduced legislation in the Senate and the House, respectively, that would delay the EPA from regulating GHGs emitted from stationary sources (such as coal-fired power plants) for two years. But not all legislators are in support of such bills. The Washington Post recently reported that Robert C. Byrd, a democrat of West Virginia and colleague of Jay Rockefeller, will not support Rockefeller’s proposed bill. Byrd believes that EPA Administrator Lisa Jackson's recent letter stating that the EPA will delay, for a year, the application of stronger standards requiring increased efficiency or reduced pollution at large power plants and factories is enough. The proposed Senate and House bills are likely an attempt to delay EPA regulations that would require major GHG stationary sources to implement "best available control technology” pollution control measures, even if these measures would render construction of new plants cost-prohibitive.

Despite California's progress in regulating GHGs, it also faces a potential suspension of GHG regulation through an initiative measure to suspend AB 32, as we discussed in this post. Proponents of the legislation stalling GHG regulation at the Federal level and the initiative stalling it at the state level both cite to economic concerns as the purpose of these delays.

CEQA Analyses of New Projects and Projects that Significantly Expand Existing Operations Need to Use Actual Physical Conditions as Environmental Baseline, Not Maximum Permitted Conditions

In Communities for a Better Environment v. South Coast Air Quality Management District, the California Supreme Court held that the California Environmental Quality Act (Pub. Resources Code, §§ 21000, et seq. (“CEQA”) requires an agency analyzing the “worst case” emission impacts of a new refinery project to analyze emission impacts of a new refinery project against the existing facility’s actual current emissions, and not with the facility’s maximum permitted emission levels. The Court reasoned that the refinery project differed from proposals in past cases that simply modified a previously analyzed project or continued operation without significant expansion. The Court’s decision is an important clarification of CEQA baseline principles. Projects that involve more than a mere modification of a previously analyzed project, or involve significant expansion of existing operations, need to be analyzed against actual physical conditions, not maximum permitted conditions.

Defendant South Coast Air Quality Management District (“District”) had prepared a negative declaration analyzing the impacts of ConocoPhillips’s proposal for an ultra-low-sulfur diesel fuel project, and concluded that the project would not adversely affect the environment. The District acknowledged that, in a “worst-case scenario,” the project would create hundreds of pounds of additional nitrogen oxide (NOx) emissions per day (in excess of the District’s 55 pounds per day standard). However the District did not consider the emissions to be part of the project because the emissions did not exceed the maximum levels allowed under existing permits. The Court found this to be an improper application of the general rule that the “physical environmental conditions,” as they exist at the time environmental analysis begins, “will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.” (CEQA Guidelines, § 15125(a).) Accordingly, the Court concluded that it was inconsistent with established CEQA principles to compare the proposed project to what could lawfully happen under the existing permits, rather than to what was actually happening.

The Supreme Court distinguished the matter from a line of cases that relied on maximum operational levels allowed under existing permits. In each case, the Court noted, the subject project was “merely a modification of a previously analyzed project and hence requiring only limited CEQA review ... or as merely the continued operation of an existing facility without significant expansion of use and hence exempt from CEQA review.” The same could not be said for the ultra-low-sulfur diesel fuel project, as it was adding a new refinery to the facility and would require increase operation of other equipment. Finally, the Court concluded that the record—specifically the data in the negative declaration—supported a fair argument that the project will have a significant adverse effect on the environment. The Court thus affirmed the Court of Appeal’s direction to prepare an EIR.

City Ordered to Disregard Voter Approved Housing Cap

In a first of its kind ruling, an Alameda County judge has ruled that the City of Pleasanton's voter-approved cap on the number of residences in the city (a measure intended to limit growth and congestion in the Tri-Valley town), violates a state law requiring all cities to take on their share of regional housing needs. The ruling, which the City may appeal, orders the city to change its zoning to accommodate new housing, about 4,000 new units by 2014, three-quarters of which must be affordable for low-to-moderate-income residents. The ballot measure, passed in 1996 and reaffirmed by voters in 2008, allows no more than 29,000 units in the city, the city currently has more than 27,000.

The Urban Habitat Program and a schoolteacher seeking affordable housing filed the suit in 2006. It was joined by Attorney General Jerry Brown last year, who said Pleasanton's housing limits added to urban sprawl, and led to increased vehicle use, air pollution and greenhouse gas emissions. The city argued that the housing limit is a valid exercise of municipal land-use authority. The court noted that the Association of Bay Area Governments ("ABAG"), the organization that decides each city's housing allotment, assigned specific housing unit figures to Pleasanton which it had failed to meet in 2007 and would fail to meet in 2014 if its housing limits remained in effect.

CEQA Greenhouse Gas Guidelines Effective Today

Today the Greenhouse Gas Amendments to the CEQA Guidelines, which were mandated by Senate Bill 97 and codified in Public Resources Code section 21083.05, are effective. The Natural Resources Agency adopted Amendments to the CEQA Guidelines for greenhouse gas emissions back in December of 2009. These Amendments require the quantification and mitigation of greenhouse gas emissions. For more information click here.

Initiative to Legalize Marijuana in California Will Appear on November Ballot

On March 24, 2010, a voter-sponsored initiative, the “Control, Regulate and Tax Cannabis Act of 2010,” qualified for the November ballot. The ballot measure permits persons 21 years of age or older to posses, cultivate and transport not more than one ounce of marijuana for personal use. Additionally, the ballot measure authorizes local governments to regulate and tax commercial production and sale of marijuana. For a more detailed discussion of the ballot measure’s provisions, click here.

If passed by a majority vote, the new statute would take effect the day following the election, or November 3, 2010. Local governments may want to consider adopting regulations related to the cultivation of marijuana, and if desired, regulations licensing establishments selling marijuana. Passage of this ballot measure is also likely to impact local government regulations related to medical marijuana collectives or cooperatives, as these facilities may seek to expand their operations to also serve non-medical marijuana users over the age of 21.

Police Officers Who "Don and Doff" at Home Are Not Engaged in FLSA Compensable Work

The Ninth Circuit has held that the donning and doffing of uniforms and accompanying safety gear by police officers is not compensable work under the Fair Labor Standards Act (FLSA) if officers may don and doff at home. Thus, any police or sheriff's department that permits its officers or sheriffs to don and doff their uniforms and gear at home is not legally required to pay for that time.

Click here to read the latest, or review more history on the topic through our previous summary of this issue from February 2009.

Contractors Permitted to Use Modified Total Cost Method of Damages in Public Project Claims

General contractors on a public works projects often assert close-out claims against the public entity at the end of projects. When this occurs, a major issue often is the method in which the general contractor can prove its damages on a claim. On March 18, 2010 the California Court of Appeal, Second Appellate District, confirmed that in California, general contractors are permitted to use the modified total cost method to prove damages on close-out claims. Under the total cost method, damages are determined by subtracting the contract amount from the total cost of the contractor's performance. Under the modified total cost method, if the contractor is responsible for some of its increased cost of performance, then those costs are subtracted from the contractor's damages to arrive at the modified total cost. In other words, the contractor cannot be foreclosed from proving the amount of damages caused by the public entity, just because the contractor itself is responsible for some of its extra costs. The Court's opinion in the case, Dillingham-Ray Wilson v. City of Los Angeles, B192900, is available here.

Court Holds that Inclusion of a "Supercenter" in a Project Does Not Automatically Mean Urban Decay Impacts Must Be Studied

In Melom v. City of Madera, the Fifth Appellate District revisited the issue of evaluation of the environmental impacts of “Supercenters” under CEQA addressed previously in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 (Bakersfield Citizens) and held that there is nothing about the inherent nature of a supercenter that would require a lead agency to evaluate urban decay impacts. Rather, each project should be evaluated based on the substantial evidence in the record before the lead agency. Click to read more.

California Supreme Court Holds LAX Solicitation Regulations Are Valid

In International Society for Krishna v. City of Los Angeles the California Supreme Court ruled that the solicitation regulations at the Los Angeles International Airport (LAX) are valid as reasonable time, place and manner restrictions under state law. (2010 WL 1071387 (Cal.)) While this ruling will provide additional authority to support solicitation regulations, municipalities should be aware of the relatively narrow contours of the ruling. Read more here.

Is Mobile Home Park Rent Control a Taking?

On March 12, 2010, the U.S. Ninth Circuit Court of Appeals granted the City of Goleta’s request for an en banc hearing in the case of Guggenheim v. City of Goleta 582 F.3d 996 (9th Cir. 2009). The wrangling surrounding this case has been closely watched by both sides of the debate on the regulatory takings front since the Court issued its split decision in September 2009. In this 2-1 decision by Judge Bybee, the Court found that Goleta’s mobile home rent control ordinance caused a facial regulatory taking for which compensation must be paid (under Penn Central Transportation Co. v. New York City 438 U.S. 104 (1978)). The mobile home park owners brought suit after the City imposed the already existing county rent control ordinance when it incorporated in 2002. The opinion was immediately controversial – assailed by many, including low-income housing advocates, as a vast departure from existing jurisprudence and hailed and applauded by property owners advocates. Goleta promised to seek a full panel hearing the from the Court, and that requested was granted. Oral arguments are tentatively scheduled for June 21, 2010.

For an in depth review of the opinion, click here.