June 2010

California Supreme Court Holds Secret Ballots Unnecessary for Approving Property-Related Fees and Assessments

Proposition 218 limits local governments’ ability to raise or to impose new assessments or property-related fees and charges, requiring them to submit new or increased assessments or fees to approval by affected property owners, or by the whole electorate. The California Supreme Court unanimously ruled yesterday that, in such proceedings, secret ballots are not required. (Greene v. Marin County Flood Control & Water Conservation Dist.)

“Voting shall be secret,” the California Constitution has long proclaimed. Since voters adopted Prop 218 in 1996, Article XIII D has required public entities to submit new or increased property-related fees (with certain exceptions) to approval at an “election,” among affected property owners or all registered voters. Another part of Article XIII D requires balloting for new or increased assessments, and spells out procedures (without using the word “election”). The assessment procedures don't include secret ballots. Moreover, a statute implementing the assess­ments section of Article XIII D requires that assessment ballots be signed, and be public documents once tabulated. The part of Article XIII D requiring elections for fees, meanwhile, does not spell out any procedures to be used. Instead, it says that local governments can use procedures “similar to” those for assessment balloting.

In Greene, the Court first concluded that secrecy is not required in assessment balloting. It treated as valid the statute that makes assessment ballots public documents once they are tabulated. The Court then held that complete secrecy is not required in fee-related elections, either--local entities may require property owners to sign the ballot with their vote. However, local entities may provide ballot secrecy if they choose. The Court left open a question whether some lesser degree of ballot secrecy in fee elections may be required; that will be up to a future case to decide.

Read more here, and for more information about Greene or assessment and fee balloting in general, contact Meyers Nave’s Writs and Appeals Group or Public Finance Group.

Bay Area Air Quality District Adopts CEQA Guidelines For Greenhouse Gas and Other Pollutants

The Bay Area Air Quality Management District (BAAQMD) adopted new CEQA Guidelines for analysis of air quality impacts. For the first time, it includes guidance on the analysis and determination of significant impacts for greenhouse gases (GHGs). The Guidelines set lower emission levels for other pollutants (such as ozone and particulate matter) that will result in a significant impact under CEQA. New standards for toxic air contaminants also are stricter and may make infill development adjacent to freeways and major roadways more difficult. Go here to read a full analysis of the new standards adopted by BAAQMD.

The adoption of the new CEQA Guidelines is a very significant development. For GHG analysis, it establishes strict numerical thresholds, which although voluntary, will likely become the default standards used by agencies. Many agencies will find it difficult to adopt alternative thresholds, although the adoption of climate action or GHG reduction plans may be used as an alternative for CEQA analysis. These Guidelines are also of interest to agencies located outside the Bay Area, since other air quality districts will likely consider the BAAQMD Guidelines in establishing their own CEQA standards for GHGs.

Cities Can Prohibit Solicitions of Employment Between Day Laborers and Drivers to Protect Traffic Flow and Public Safety

Attorney Authors: 

The Ninth Circuit has upheld an ordinance adopted by the City of Redondo Beach which prohibits solicitations of employment (as well as business and contributions) between day laborers and occupents of motor vehicles on streets or highways. Both the trial court and the Ninth Circuit in Comite De Jornaleros De Redondo Beach v. City of Redondo Beach, No. 06-56869, found the ordinance to be a content-neutral time, place and manner restriction because it regulates the conduct associated with the solicitation, the in-person discussion between day laborers and drivers in traffic, rather than the message being conveyed. The Court of Appeal departed from and overruled the trial court's ruling that the ordinance was unconstitutional, finding that 1) the restriction is narrowly tailored to further the significant government interests in promoting the free flow of traffic and public safety and 2) ample alternative avenues of communication are available because a person could solicit "business, employment or contributions" from people on sidewalks or in other public fora in Redondo Beach, therefore the message could still reach the intended audience. The Court also rejected a vagueness challenge to the ordinance, finding 1) an ordinary person would have fair knowledge of what was prohibited and 2) there is not a significant danger of arbitrary enforcement because the ordinance requires a "true or false determination," not a subjective judgment. The Court relied heavily on two prior Ninth Circuit opinions which upheld and struck down, respectfully, regulations of conduct related to expression and speech in public fora - ACORN v. City of Phoenix, 798 F.2d 1260 (9th Cir. 1986) and Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009)(en banc).

As with all cases involving a First Amendment analysis of a local government's regulation restricting speech or conduct in public fora, this case is fact driven as the Court was quite concerned with the potential dangers of solicitations requiring the active engagement with drivers of vehicles in active traffic areas, particularly at two busy intersections within the City. This case is a good reminder that when a municipality is considering adoption of a regulation that may affect speech or expressive conduct in a public forum, it is imperative that it first conduct a careful analysis of the potential implications under the First Amendment.

U.S. Supreme Court Holds City's Review of Employee Messages on City Pager Was Reasonable in Circumstances, But Avoids Clarifying General Standards

in city of ontario v. quon, the u.s. supreme court issued a narrow ruling that the city's review of a swat officer's text messages sent over a city-issued pager was reasonable in the circumstances of that case, and thus did not violate the fourth amendment to the constitution. but the court avoided answering two broader questions about how courts should analyze non-investigatory, work-related searches by public employers—questions on which public entities had hoped quon would provide guidance. the questions quon left open are: (1) when do public employees have a “reasonable expectation of privacy” in their offices or electronic communications; and (2) if an employee has such an expectation, what is the test for whether an employer’s search was reasonable?

read more here.

Fleeing Felons Foiled Again; Getaway Driver Gets Away (for Once)

In the not-very-closely-watched case of Espinosa v. Kirkwood, a Riverside-based court of appeal held yesterday that two burglars, injured when their getaway driver crashed their car, could not sue the getaway driver for their injuries. The burglars and driver were then arrested—the driver after trying, in an apparent lapse of professional pride, to leave the scene of the crash on foot. The court found the suit barred by Proposition 213, which prevents convicted felons from recovering damages proximately caused by someone’s negligence during their commission of, or flight from, a felony. The opinion doesn’t discuss whether the burglars have a valid claim against the failed getaway driver/walker for professional negligence—though the fact that he crashed into a line of cars stopped at an intersection suggests that this might have been a more promising avenue to pursue.

The court of appeal certified its unsurprisingly brief opinion for publication, making it binding precedent that trial courts must follow in future cases. Presumably, the court of appeal aimed to persuade the injured-burglar plaintiffs’ bar once and for all that getaway-crash litigation doesn’t pay. The blawg team will closely monitor this fascinating case, and promptly inform you if the burglars petition the California Supreme Court to review what they surely consider a criminal injustice.

Protected Delta Fish Relieved That State Agencies are People Too

Attorney Authors: 

The Department of Water Resources ("DWR"), a state agency, operates a pumping system in the Sacramento -San Joaquin Delta that results in the taking of three fish species listed as threatened or endangered under the California Endangered Species Act ("CESA"). DWR was sued by Watershed Enforcers, a nonprofit corporation, to stop DWR from pumping unless and until it obtained a permit authorizing the take of the listed fish species under CESA. Three local water agencies intervened in the lawsuit arguing that DWR is not a "person" as that term is defined in CESA. Watershed Enforcers prevailed in the trial court and DWR eventually complied with the trial court's order and obtained the required authorizations under CESA. The water districts, undaunted by the fact that the case was mooted by DWR's satisfaction of the judgment, appealed, seeking a determination that a state agency is not a "person" under CESA.

The Court of Appeal rejected the water agencies' contention and agreed with the trial court that the definition of person in CESA Section 2080 applies to public agencies, including state agencies, even though they are not specifically mentioned. In reaching its conclusion, the Court relied on long standing principles of statutory construction - harmonize the various parts of legislative enactments and give statutes a reasonable and common sense construction in accordance with the apparent purpose and intent of the lawmakers - based in part on the clear legislative policies set forth in CESA that state agencies shall use their authorities to protect and conserve endangered species. The Court also found persuasive the statutory construction by the Cal. Dept. of Fish and Game, the agency charged with implementing CESA, which had consistently interpreted the term "person" to apply to public agencies. Of note - the water agencies relied on part of an opinion by the Attorney General, written after the trial court ruling in this case, which concluded that a public agency is not a "person" under CESA. The Court summarily rejected this opinion, finding it was not persuasive authority.

To review the Court of Appeal opinion, click this link - Kern County Water Agency v. Watershed Enforcers.

Redevelopment Plan Invalidated Due to Insufficient Blight Findings

Attorney Authors: 

In County of Los Angeles v. Glendora Redevelopment Project, the Court invalidated the City of Glendora’s Redevelopment Plan for the Merged Glendora Redevelopment Project (Plan) because the Court found that the administrative record did not contain substantial evidence of physical blight in the project area.

The Plan was adopted by the City Council of the City of Glendora in July 2006. The Plan amended the redevelopment plans for three of the City’s existing project areas, created a new project area and merged all four project areas for financing purposes and to extend the redevelopment agency’s power of eminent domain. The ordinance adopting the Plan contained findings that blight exists in the newly created project area and that it remains in the three existing project areas.

The County of Los Angeles filed a reverse validation action in September 2006 challenging the adoption of the Plan on the grounds that Glendora’s blight findings were not supported by substantial evidence. The trial court determined that Glendora’s blight findings were not supported by substantial evidence and invalidated the Plan on that basis.

On appeal, the Court considered whether Glendora’s blight findings satisfied the criteria for physical blight in Section 33031 of the Community Redevelopment Law, as it read in 2006 when the Plan was adopted. Physical blight under the 2006 iteration of Section 33031 included the following four conditions: (1) buildings in which it is unsafe or unhealthy for persons to live or work; (2) factors that prevent or substantially hinder the viable use or capacity of buildings or lots; (3) adjacent or nearby uses that are incompatible with each other and which prevent the economic development of those parcels or other portions of the project area; and (4) the existence of subdivided lots of irregular form and shape and inadequate size for proper usefulness and development that are in multiple ownership.

The Court found that there was no substantial evidence of physical blight in the project area under any of the four categories in Section 33031. Glendora’s evidence of building code violations, deteriorated or dilapidated buildings, buildings with seismic problems, and buildings containing hazardous materials in the project area was insufficient to establish physical blight under the first category because there was no evidence that these conditions rendered the buildings unsafe or unhealthy. Similarly, Glendora’s evidence of lack of parking in the project area did not establish physical blight under the second category because Glendora did not demonstrate that the lack of parking prevented or substantially hindered the viable use or capacity of buildings or lots in the project area. As to the third category of physical blight, Glendora’s evidence of incompatible uses in the project area was inadequate because there was no evidence that such uses were preventing development or causing lower property values. Lastly, Glendora failed to establish physical blight under the fourth category despite evidence that the project area contained smaller parcels, some of which are irregularly shaped and many of which are unbuildable, because the record did not demonstrate that these conditions rendered the parcels inadequate for proper usefulness and development.

It is important to note that the current blight definitions in Sections 33030 and 33031 are significantly more stringent than they were in the 2006 iterations of Sections 33030 and 33031 considered by the Court in this case. Following the U.S. Supreme Court’s ruling in Kelo v. City of New London, the Legislature enacted SB 1206, which amended Sections 33030 and 33031 to “restrict the statutory definition of blight and to require better documentation of local officials’ findings regarding the conditions of blight.” For example, prior to SB 1206, blight could be established based on antiquated subdivision conditions without a showing of economic blight. Now, to establish blight, there must be a showing of both physical and economic blight.

California Supreme Court Declines to Review Opinion Making it Harder for Cities to Defeat Dangerous-Condition-of-Property Claims

The state Supreme Court last week declined to review or to depublish the court of appeal's opinion in Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337. Lane holds that, when a plaintiff alleges that a dangerous condition of public property caused injury, a lack of prior accident claims is not enough to enable the public entity to defeat the claim on summary judgment. We blogged about Lane and its significance when it appeared. The denial of review means that Lane will stand as California law binding on all state trial courts. However, the denial does not mean that the California Supreme Court has endorsed the Lane rule. Thus, other courts of appeal could reject the rule in future cases—though that is unusual. We will continue to track this issue.