May 2011

Bill Introduced to Regulate Protests at Funerals

May 2, 2011, by Jennifer E. Faught

In the wake of the charged March 2nd U.S. Supreme Court decision, Snyder v. Phelps, the California Senate has proposed SB 888, which outlaws protests on public property within 1,000 feet of a burial site, mortuary, or place of worship, from one hour before, to one hour after, a funeral.

In Snyder, the Supreme Court held that the First Amendment protected the right of the Westboro Church to silently picket 1,000 feet from the funeral of a soldier while church members displayed various religious and anti-gay signs.

Ordinance Restricting Storage and Parking of Recreational Vehicles on Private Property Held Constitutional

May 4, 2011, by Sabrina Wolfson

On May 2, 2011, in Disney v. City of Concord, the California Court of Appeal, First Appellate District held that an ordinance regulating the storage and parking of recreational vehicles, including boats and other recreational equipment, on residential property was within the City of Concord’s police power.

The ordinance at issue generally prohibits the storage of recreational vehicles on front yards and driveways and requires that recreational vehicles stored in side and rear yards be located behind a six-foot high opaque fence. In addition, the ordinance limits the length of time that a recreational vehicle can be parked in a driveway for purposes of loading or unloading to 72 hours before or after a trip.

The plaintiff filed suit against the City arguing, among other things, that the ordinance exceeded the City’s police power because it was adopted primarily out of concern for community aesthetics. The Court rejected the plaintiff’s argument, reasoning that it is well established that the concept of public welfare includes aesthetic values. The Court also noted that the ordinance is “typical” as nearly all of the cities in Contra Costa County regulate the storage of recreational vehicles on private property to some extent.

For the complete opinion, click here.

Court of Appeal Approves Public Employee Termination for Posting Craigslist Sex Ad While Off-Duty

May 9, 2011, by Meyers Nave

In San Diego Unified School District v. Commission on Professional Competence (Lampedusa), --- Cal. Rptr. 3d ---, 2011 WL 1234686 (ordered published May 3, 2011), the California Court of Appeal upheld a school district's dismissal of a schoolteacher who was terminated for posting a sexually explicit ad and photos of himself on Craigslist while off duty. The ad neither identified the school nor that he was a teacher. Nevertheless, the Court found the dismissal was justified based on the teacher's "evident unfitness" to serve as a teacher and that he had engaged in "immoral conduct" in posting the ad.

In reversing the decision of the Superior Court (which upheld the Commission's finding of no cause for dismissal), the Court of Appeal affirmed the principal that "[t]here are certain professions which impose . . . responsibilities and limitations on freedom of action which do not exist in regard to other callings. Public officials such as judges, policemen and schoolteachers fall into such a category."

The Court's decision relied in part on the United States Supreme Court's ruling in City of San Diego v. Roe, 543 U.S. 77 (2004). In Roe, the Court upheld the termination of a police officer discharged for selling homemade pornographic videos on an online auction site. Notably, the Court held that although the police officer's activities occurred outside of work and were purportedly unrelated to his employment, they were nonetheless "detrimental to the mission and functions of the employer." Accordingly, the City of San Diego was justified in disciplining the officer for his conduct.

The Court of Appeal in Lampedusa applied this same principal to find that "the disciplinary action taken by the District did not have an adverse impact or chilling effect on Lampedusa's constitutional rights." The decision thus supports the idea that, despite the substantial limitation on an agency's ability to discipline public employees for off-duty conduct, courts will uphold discipline for off-duty conduct when there is a sufficient nexus to the workplace, and are more likely to find that nexus with particular job classifications such as public safety.

PRACTICE TIP: A public employer considering discipline for off-duty conduct should carefully scrutinize the conduct at issue and surrounding circumstances in evaluating whether there is a sufficient nexus to the workplace to justify the discipline. As noted in the Lampedusa and Roe decisions, a public employee's position and job responsibilities can factor into that analysis.

Mobile Home Rent Control Ordinances Still a Viable Option in California

May 18, 2011, by Dawn McIntosh

On May 17, 2011, the U.S. Supreme Court refused to hear a developer’s challenge to the City of Goleta’s mobile home rent control ordinance, ending a long court battle over the future of the high value real estate and the validity of rent control regulations for mobile home parks in California.  (See Guggenheim, et al. v. City of Goleta, 598 F.3d 1061 (9th Cir.(Cal.) Mar 12, 2010), cert denied --- S.Ct. ----, 2011 WL 884881, 79 USLW 3554 (U.S. May 16, 2011).)  In December, an en banc panel of the Ninth Circuit upheld the ordinance, rejecting the Guggenheim’s regulatory takings claim finding that none of the three factors for establishing a regulatory taking, set forth Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), were satisfied.  (Click here to read prior post on Ninth Circuit ruling.)  This decision affirms the validity of rent control regulations as a tool for municipalities to provide housing options for lower income residents. 

City Approval Of Preliminary Terms for New Football Stadium Was Not A Project Approval And Did Not Violate CEQA

May 26, 2011, by Meyers Nave

Cedar Fair, L.P. v. City of Santa Clara

In the latest case interpreting Save Tara, the Sixth District Court of Appeal found that the City of Santa Clara did not violate CEQA when it approved preliminary terms for a new football stadium. The City had adopted a 39-page Stadium Term Sheet which detailed proposed construction, financing and other provisions for development of a stadium for the 49ers National Football League team. Despite the detailed description of the proposed stadium project and supportive statements by City officials, the court determined that the term sheet did not commit the City to approve the stadium project and did not rule out consideration of mitigation measures or alternatives in later CEQA reviews.

This case confirms the Save Tara principles that determining whether a development-related agreement constitutes a project approval under CEQA is highly factual. In addition to extensive discussion of Save Tara, the analysis sets forth the relevant facts from the stadium term sheet and "surrounding circumstances" and shows how they balance in favor of the City's action in this instance. The recent Parchester Village Neighborhood Council case cited in the decision also balanced the relevant facts in favor of a city action, finding that approval of a municipal services agreement was not a project approval. By contrast, the Riverwatch case cited in the decision determined that a water district agreement to provide recycled water to a landfill operator was invalid because it committed the agency to action without benefit of CEQA compliance. Through Cedar Fair and other recent cases, the courts are providing useful guidance on how the facts of a particular situation may weigh one way or the other in the Save Tara balance.

Go here for the full analysis of the Cedar Fair case.