April 2011

Appellate Court Finds that Inclusionary Housing Requirement is Not an Exaction, Therefore Challenge is Time-Barred

Trinity Park v. City of Sunnyvale

In a decision supportive of local inclusionary housing ordinances, the Sixth District Court of Appeal ruled that a subdivider's challenge to a development condition requiring below market rate housing was not governed by the AB 1600 Mitigation Fee Act statute of limitations. The case is primarily analyzed as a statute of limitations issue, but in the course of the analysis, the court finds that Sunnyvale's affordable housing requirements were imposed as land use restrictions, and were not subject to AB 1600, the Mitigation Fee Act. Accordingly, the applicable limitations period was 90 days based on the Subdivision Map Act and Government Code section 65009(c)(1)(E). Since the developer did not file its challenge within the 90 day limitations period, the complaint was time-barred (Trinity Park v. City of Sunnyvale, ___ Cal.App.4th ___, March 24, 2011).

This is a good decision for local inclusionary housing ordinances. The court's ruling that the inclusionary requirements were not subject to the Mitigation Fee Act eliminates the Act as a potential source of challenge for similar local ordinances that are not imposed to defray the costs of public facilities for a development project pursuant to section 66020. The decision does not insulate inclusionary ordinances from other sources of challenge, but it does limit the potential for challenge based on the Mitigation Fee Act definition of an exaction. Apart from the inclusionary housing issue, the court reminds land use practitioners of the general rule that "the applicable statute of limitations depends on the nature of the cause of action...". Especially in today's complex entitlement processes where there may be multiple types and layers of land use approvals, there may also be the potential for multiple statutes of limitations. Determining the correct statute(s) of limitations requires a careful examination of the nature of the approval and the particular action being challenged.

Go here for the full analysis of Trinity Park v. City of Sunnyvale.

Mobilehome Park Rent Control – the Battle Continues

The battle between private property owners and municipalities over the constitutionality of rent control ordinances for mobile home parks wages on. Owners of a mobilehome park in the City of Goleta, the Guggenheims, have filed a petition for certiorari seeking U.S. Supreme Court review of the Ninth Circuit’s rejection of their Fifth Amendment takings claims in July 2010. Their petition asks the Supreme Court to reverse the Ninth Circuit’s decision and find that the City’s ordinance caused a taking of their property. (Click here to see the Guggenheim v. City of Goleta petition for certiorari.)

In 1997, the Guggenheims purchased the mobilehome park subject to rent control under a County ordinance. The ordinance was adopted by the City of Goleta when it incorporated in 2002. The Guggenheims promptly sued the City claiming the rent control ordinance caused a taking of their property without payment of just compensation. The trial court granted summary judgment for the City, but a three judge panel of the Ninth Circuit reversed in a controversial decision. The Ninth Circuit granted the City’s request for a rehearing en banc and affirmed the trial court decision in favor of the City.

The Guggenheims’ argue that the Ninth Circuit’s en banc decision conflicts with the Supreme Court’s holding in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), conflicts with decisions from other federal and state appellate courts and is “a major blow to private property rights.” In essence, the Guggenheims seek to restrict the authority of local governments to adopt land use regulations affecting private property unless the government compensates the property owner, and/or any subsequent owner, for any economic impact of the regulation either at the time of adoption or at any time in the future.

The Second Appellate District Provides Guidance Regarding an Employer’s Reasonable-Accommodation Duty

The Second Appellate District's recent case of Cuiellette v. City of Los Angeles (2011) __ Cal.Rptr.3d ___, 2011 WL 1522390, highlights two critical issues that employers must consider when conducting a reasonable-accommodation analysis under the Fair Employment and Housing Act ("FEHA").

First, employers should not refuse to accommodate an injured worker based solely on a 100% permanent total disability rating in a related workers' compensation proceeding. Instead, employers must undertake an independent analysis of an employee's medical restrictions before concluding that an employee cannot be accommodated.

Second, employers must consider their informal policies when determining whether an injured employer can be accommodated. To the extent an employer has an established practice of maintaining permanent light duty positions for disabled employees, the employer must consider whether an injured employee is qualified for those light duty positions.

In Cuiellette v. Los Angeles, the City of Los Angeles sent an injured police officer home after learning that the officer received a 100% permanent disability rating in his workers' compensation proceeding. The officer subsequently filed a FEHA lawsuit and, after a jury trial, was awarded a $1.5 million judgment against the City.

Go here to read more about this case.

Proposed Law Would Require Cities and Counties to Provide On-Line Building Permit Applications for Electric Vehicle Charging Stations

The California Legislature recently introduced S.B. 730, a bill that would mandate cities and counties to provide on-line building permit applications for electric vehicle charging stations.

S.B. 730 would amend Section 44272 and Section 19830 to the Health and Safety Code, which establish the State's Alternative and Renewable Fuel and Vehicle Technology Program. The Program is administered by the State's Energy Commission, which provides grants, loans, or other financial incentives for the development of innovative technologies that transform California's fuel and vehicle types to help attain the State's climate change goals. In particular, S.B. 730 would require local governments to provide online building permit applications for installation of vehicle charging equipment. In addition, S.B. 730 would require local governments to approve building permits applications for installation of vehicle charging equipment within one business day, and review the work completed under the permit within 7 days of completion of the work.

If signed in to law, S.B. 730 would not only require California's cities and counties to have online building permit applications for installation of vehicle charging equipment, but the bill would also speed up the response time for building permits and inspections for vehicle charging equipment.

The bill is scheduled for a committee hearing on May 2, 2011. You can follow the status of S.B. 730 here.

Court Recognizes Immunity of Fire Departments Operating Vehicles at the Scene of a Fire

In a decision published April 20, 2011, the California Court of Appeal, Fourth Appellate District, confirmed that fire departments are immune from liability where a firefighter causes death or injury through the negligent operation of a motor vehicle at the scene of a fire while attempting to rescue persons and to extinguish the fire. This decision, which arose from the massive wildfires that swept through San Diego County in October and November of 2007, is beneficial for public entities that have fire departments because it recognizes that imposing liability in such situations might deter firefighters from making necessary decisions quickly under extremely stressful and dangerous circumstances.

In this case, Plaintiffs brought suit against Cal-Fire when they were injured during an attempt by state firefighters to assist in preventing the spread of fire to their property, and subsequent attempt to rescue them from their property. Their allegations focused on California Vehicle Code Section 17001, which deems a public entity liable for injuries caused by its employee's negligent operation of a motor vehicle. In response, Cal-Fire asserted that it was immune from liability under California Government Code Section 850.4, which provides immunity for any injury caused in fighting fires. Although the Court of Appeal recognized that the immunity applied under the facts presented in the case, it also recognized that liability could result from a firefighter's tortious act or omission in the operation of a motor vehicle while proceeding from another location to a fire in response to an emergency call.

You can read the Court's entire opinion in this case, Varshock v. Cal-Fire (D57709), here.