Public Law Update July 2013

Transcription

1 Tan` Public Law Update July 2013 ADD PICTURE Curses, foiled again! INCLUSIONARY HOUSING ORDINANCE DEVELOPMENTS By Kevin D. Siegel, Esq. Of Special Interest PUBLIC LAW...6 ENVIRONMENTAL LAW...9 LABOR AND EMPLOYMENT LAW ABOUT OUR LAW FIRM To obtain a free monthly subscription, visit:

2 INCLUSIONARY HOUSING ORDINANCE DEVELOPMENTS By Kevin D. Siegel, Esq. Kevin D. Siegel, Esq. Partner Harrison Street Suite 900 Oakland, CA Direct: Phone: Fax: In June 2013, the Sixth District California Court of Appeal issued an important decision that supports cities inclusionary zoning efforts. In California Building Industry Association v. City of San Jose (2013) 216 Cal.App.4th 1373 ( CBIA v. San Jose ), the plaintiff alleged that legislation requiring developers of for-sale residential units to develop a percentage of the units as affordable housing, or to pay an in-lieu fee, is unconstitutional unless the City establishes that the requirements have a nexus and are roughly proportional to the deleterious public impacts of the development. The Court rejected the claim, holding that inclusionary zoning legislation is a presumptively valid exercise of land use authority, and that the challenger bears a high burden to prove that the legislation is not reasonably related to the promotion of affordable housing. Developers will assert that CBIA v. San Jose is inconsistent with a U.S. Supreme Court decision issued later in June, Koontz v. St. Johns River Water Management Dist. (2013) 133 S.Ct In Koontz, the Supreme Court held that the nexus/rough proportionality analysis (which was adopted by the Supreme Court in Nollan v. California Coastal Comm. (1987) 483 U.S. 825, and Dolan v. City of Tigard (1994) 512 U.S. 374), applies to in-lieu fees to mitigate impacts of development. The developers argument should fail. Koontz concerned ad hoc exactions imposed on one developer to mitigate the impacts of a single project, rather than generally applicable land use legislation designed to further affordable housing as was at issue in CBIA v. San Jose. California and federal courts alike have held uniformly that the Nollan/Dolan-nexus/rough proportionality analysis does not apply to legislatively imposed, generally applicable laws. The CBIA v. San Jose decision furthers positive case law regarding inclusionary zoning and hopefully serves as a precursor to another good result in a case pending before the California Supreme Court, Sterling Park, L.P. v. City of Palo Alto (July 17, 2012), review granted October 31, Background For well over 20 years, cities across the State have adopted and implemented inclusionary zoning ordinances that require developers of for-sale residential housing projects to construct a specified percentage of the homes for affordable housing or to pay an in-lieu fee to the city. Developers of market-rate housing, often represented by building trade associations, have mounted a series of legal challenges that commonly allege inclusionary housing requirements are unjustified efforts to mitigate adverse impacts of their developments and, hence, are illegal. The cities have typically defeated such challenges in state and federal court. (See Home Builders Assoc. of Northern California v. City of Napa (2001) 90 Cal.App.4th 188; Mead v. City of Cotati, 2008 U.S. Dist. LEXIS ) However, in an unusual case involving an affordable housing provision of a development agreement, the developers achieved a limited win. In Building Industry Association of Central Calif. v. City of Patterson (2009) Burke, Williams & Sorensen, LLP (800)

3 171 Cal.App.4th 886 ( BIA v. Patterson ), the Fifth District Court of Appeal considered a challenge to the City s efforts to raise an affordable housing in-lieu fee from $734, as established in a Development Agreement, to $20,946 per home. The Development Agreement permitted increases only if they were reasonably justified. The City prepared a Fee Justification Study, i.e., a nexus study, and asserted that the study showed an in-lieu fee of $20,946 per home was required to support affordable housing needs generated by the development. The Court ruled that the City was required to prove nexus and rough proportionality between the fee and the deleterious public impact of the development, importing the Nollan/Dolan standard for ad hoc exactions imposed to offset the particularized impacts of a project. (BIA v. Patterson, 171 Cal.App.4th at (discussing San Remo Hotel v. City & County of San Francisco (2002) 27 Cal.4th 643, Nollan v. California Coastal Comm. (1987) 483 U.S. 825, and Dolan v. City of Tigard (1994) 512 U.S. 374).) Applying this heightened standard, the Court held that the City failed to prove the affordable housing in-lieu fee increase was legally justified. (Id. at ) Developers have sought to extend BIA v. Patterson by claiming it showed that affordable housing requirements constitute fees, dedications, reservations, or other exactions to mitigate impacts of a project and are thus subject to the Mitigation Fee Act. The Sixth District Court of Appeal rejected such an effort. In Trinity Park, L.P. v. City of Sunnyvale (2011) 193 Cal.App.4th 1014 ( Trinity Park v. Sunnyvale ), the City conditioned the approval of a subdivision upon the sale of a certain number of the units at deed-restricted affordable prices. The developer did not challenge the conditional approval within the 90- day limitations period of the Subdivision Map Act and the Planning and Zoning Law (Gov. Code and 65009(c)(1)(E)). Instead, the developer claimed that the condition constituted an exaction subject to the Mitigation Fee Act including the payment under protest and subsequent 180-day statute of limitations (Gov. Code and 66021) and that the City lacked sufficient evidence to justify the fee. The Sixth District Court of Appeal rejected the contention, ruling that the condition was not a fee, dedication, reservation or other exaction subject to the Mitigation Fee Act because it was not imposed to defray the cost of public facilities related to the project. The Court held that the 90-day limitations period of the Subdivision Map Act and Planning and Zoning law applied, barring the suit. (Trinity Park v. Sunnyvale, 193 Cal.App.4th at ) Thus, the specific holding of Trinity Park v. Sunnyvale is that inclusionary zoning requirements not imposed to defray the costs of public facilities are not subject to the Mitigation Fee Act. The analysis suggests that because such requirements are not mitigation, their substantive review should be pursuant to the deferential standards applicable to zoning legislation rather than the more stringent nexus/rough proportionality analysis applied in BIA v. Patterson. Two years later, in CBIA v. San Jose, the Sixth District affirmatively ruled that the deferential standard applicable to zoning and land use legislation, rather than heightened scrutiny, applies. CBIA v. San Jose At issue in CBIA v. San Jose was a facial challenge to an inclusionary zoning ordinance that requires residential housing developers to set aside a percentage of the units for Burke, Williams & Sorensen, LLP (800)

4 affordable housing or to pay an in-lieu fee. The CBIA asserted that the ordinance was illegal because the City failed to show a nexus and rough proportionality between the conditions and deleterious impacts of market-rate housing development (the Nollan/Dolan analysis), as purportedly required by the California Supreme Court in San Remo Hotel. Like the Court of Appeal in BIA v. Patterson, the trial court applied this heightened scrutiny analysis and found that the City failed to prove that the regulations were reasonably related to the deleterious impacts of new residential development. (CBIA v. San Jose, 216 Cal.App.4th at 1380 and fn. 5.) The Court of Appeal reversed. The Sixth District held that the nexus/rough proportionality analysis did not apply, distinguishing San Remo Hotel. In San Remo Hotel, the property owners challenged a housing replacement fee specifically designed to mitigate the loss of housing caused by the conversion of the hotel from residential use to tourist use. Thus, the California Supreme Court considered whether the mitigation measure was reasonably related to the deleterious public impact of the conversion. (CBIA v. San Jose, 216 Cal.App.4th at 1384.) The question before the Court in CBIA v. San Jose was materially different. San Jose adopted its inclusionary zoning ordinance to advance the legitimate public purpose of encouraging the development of affordable housing. It did not adopt the ordinance to offset impacts caused by new residential development. (Id. at , 1384.) As a legislative exercise of the City s police power, the ordinance was presumptively valid, and the challenger bore a heavy burden to prove its conditions are not reasonably related to the City s legitimate public purpose of ensuring an adequate supply of affordable housing in the community. (Id. at 1389.) The Court of Appeal remanded the case to the trial court to determine whether the challenger successfully rebutted this presumption. Thus, CBIA v. San Jose built upon Trinity Park v. Sunnyvale by providing a complementary substantive ruling that inclusionary zoning ordinances constitute presumptively valid land use regulations, which do not require a nexus study to justify the costs, and for which the challenger bears a heavy burden to show the requirements are not reasonably related to the legitimate public purposes. Koontz v. St. Johns Within three weeks of the publication of CBIA v. San Jose, the U.S. Supreme Court issued its decision in Koontz v. St. Johns. The case concerned a Florida public agency s attempt to exact a dedication or in-lieu fee from a development project. The Court held that the nexus/rough proportionality standard applied, even though the developer was presented an in-lieu option. Developers will argue that Koontz v. St. Johns applies to inclusionary zoning conditions, and that CBIA v. San Jose is not good law. Their argument should fail. Unlike CBIA v. San Jose, Koontz did not consider generally applicable inclusionary zoning requirements. Rather, it considered an ad hoc mitigation measure that a public agency sought to impose on a project in light of its particular impacts. As the California Supreme Court has explained, generally such ad hoc mitigation measures are subject to the Nollan/Dolan- Burke, Williams & Sorensen, LLP (800)

5 nexus/rough proportionality analysis, but generally applicable legislation is not. (Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 886 (legislation that required developers to install art in public places or to pay an in-lieu fee was not subject to the nexus/rough proportionality analysis or the Mitigation Fee Act).) In CBIA v. San Jose, the Court of Appeal applied this rule to an inclusionary zoning ordinance, Thus, under Ehrlich and CBIA v. San Jose, Koontz v. St. Johns should not apply to inclusionary zoning requirements. Conclusion and What s Next In the recent CBIA v. San Jose and earlier Trinity Park v. Sunnyvale case, the Sixth District created important precedents supporting cities longstanding efforts to condition for-sale residential developments on the construction of a certain percentage of affordable units or the payment of an in-lieu fee. Cities should beware that developers will assert that the CBIA v. San Jose precedent is not good law given the U.S. Supreme Court s more recent decision in Koontz v. St. Johns. Those contentions should fail. The California Supreme Court will soon be weighing-in on these issues. It has before it a case concerning the very issue addressed by the Sixth District in Trinity Park v. Sunnyvale, i.e., whether the imposition of an inclusionary zoning requirement upon approval of a subdivision is subject to the Mitigation Fee Act or is barred if suit is not filed within 90 days of the approval pursuant to the Subdivision Map Act and Planning and Zoning law. Hopefully, the Supreme Court will affirm the rules established by the Court of Appeal, furthering the positive developments in this area of law. Stay tuned. Burke, Williams & Sorensen, LLP (800)

6 Burke, Williams & Sorensen, LLP, 2013, all rights reserved. The case law summaries with a link to the web address are provided as a courtesy to Burke, Williams & Sorensen, LLP, its clients, and its prospective clients by the Metropolitan News-Enterprise. Metropolitan News-Enterprise, SOS and MNC are registered trademarks of the Metropolitan News Company. Summaries are copyrighted by Metropolitan News Company 2013, all rights reserved. The Public Law Update is edited by Stephen A. McEwen. Cover page photo is by Shutterstock. PUBLIC LAW United States Supreme Court Land-use agency s denial of construction permit, based on developer s rejection of conditions that he either reduce the size of the development and deed the district a conservation easement on the remainder of the property, or hire contractors to make improvements to agency-owned wetlands several miles away, constituted a taking of property without just compensation. Constitutional requirements that restrictions on development have a nexus, and be roughly proportional, to the impact of the development on the environment apply whether a permit is granted or denied, and whether the restrictions require the property owner to give up an interest in land or to pay an exaction in money. Koontz v. St. Johns River Water Management District; filed June 25, Cite as _6j37 Ninth Circuit Court of Appeals At trial of claim regarding allegations of wrongful death caused by excessive use of force by police, the district judge improperly weighed the evidence in determining that defendants conduct was not a substantial factor in the death; the record suggested that the judge s personal experience and not the testimony viewed in the light most favorable to plaintiff led the court to conclude that defendants did not use excessive force. Disqualification of district judge was not required where there was no reason to believe that judge would not apply correct legal standard on remand. Krechman v. County of Riverside; filed July 25, Cite as Constitutional challenge to counting of write-in ballots in top two general elections under California Proposition 14 became moot when California Elections Code was amended to clarify that voters are not permitted to cast write-in ballots in such elections. Legislation Burke, Williams & Sorensen, LLP (800)

7 requiring candidates for top two offices to be listed as members of a recognized party, or as having No Party Preference, or to have that portion of ballot remain blank, did not violate the First Amendment; the law imposed a reasonable, nondiscriminatory restriction that imposed a slight burden on speech and was sufficiently supported by the state s important regulatory interests in avoiding questionable self-designation and the alternative prospect of having to make case-by-case governmental decisions regarding the acceptability of various self-designations. District court did not abuse its discretion in denying, as untimely, motion to intervene by would-be write-in candidate in a general election for a congressional seat where would-be intervenor knew of the law he wished to challenge, and the effects it would have, well before the time he filed his motion. Chamness v. Bowen; filed July 3, Cite as District court properly denied police officers motions for judgment as a matter of law where jury found, by special interrogatory, that the officers used an unreasonable amount of force and the officers failed to meet the relevant burden necessary to overturn the finding. District court abused its discretion where it reduced the amount of fees awarded to plaintiff s attorneys without explaining why a 40 percent reduction would be an appropriate remedy. District court abused its discretion by denying post-judgment interest because such an award is mandatory. To the extent the district court denied prejudgment interest because it thought such interest is unavailable for non-economic damages, the district court abused its discretion. Barnard v. Theobald; filed July 1, Cite as City was not, under California law, entitled to liability coverage against claims that it negligently failed to advise purchasers of low-income condominiums of the applicable income restrictions, where the alleged omissions occurred outside the applicable policy periods; failure to remedy a pre-coverage occurrence is not a continuing, subsequent occurrence that would effectively bring the earlier occurred under the policy. City of San Buenaventura v. The Insurance Company of the State of Pennsylvania; filed June 26, Cite as California Supreme Court Statutory procedures for revocation of public school charters are sufficient under the federal and state due process clauses; plaintiff charter school operator failed to show that county board of education, which revoked its charter, had a conflict based on its interest Burke, Williams & Sorensen, LLP (800)

8 in ensuring that funds flowing to charter schools are reallocated to other public schools, nor did plaintiff show that Legislature s chosen procedures otherwise denied it the opportunity to be heard at a meaningful time and in a meaningful manner. Today s Fresh Start, Inc. v. Los Angeles County Office of Education; filed July 11, Cite as S Although geographic information system mapping software is exempt from disclosure under the California Public Records Act as [c]omputer software, a GIS-formatted database of information about land parcels is not; such databases are public records that, unless otherwise exempt, must be produced upon request at the actual cost of duplication. Sierra Club v. Superior Court (County of Orange); filed July 8, Cite as S California Court of Appeal Proposition 26 which was enacted at the general election held Nov. 2, 2010 and which expanded the definition of what constitutes a tax subject to supermajority local voter approval was not intended to apply retroactively, and thus did not invalidate a local measure approved by a simple majority at the same election. Brooktrails Township Community Services District v. Board of Supervisors of Mendocino County; First District, Div. Two; filed June 26, 2013, publication ordered July 24, Cite as A Names of police officers who planned, participated in, and/or witnessed incident in which nonviolent protestors were sprayed with pepper spray were subject to disclosure under the California Public Records Act; report of independent task force appointed to investigate was not a confidential personnel record, nor was it a record of citizen complaints, so redaction of officers names from the report was not authorized by any CPRA exemption or other legislation. Federated University Police Officers Association v. Superior Court (Los Angeles Times Communications LLC); First District, Div. Four; filed July 23, Cite as A On plaintiff s appeal from attorney fee award based on filing of a frivolous action under California Public Records Act, the prior denial of plaintiff s petition for appellate writ of Burke, Williams & Sorensen, LLP (800)

9 mandate in which he challenged the underlying denial of CPRA relief was conclusive as to whether plaintiff was entitled to disclosures sought under the CPRA, but not as to whether the action was frivolous. CPRA action was not frivolous where defendant did not provide requested documents prior to the action being brought, his arguments on the matter were sufficiently meritorious to cause the trial court to examine the documents in camera, and uncertainty remained as to whether documents produced pursuant to a conditional agreement between the parties were received in a timely manner and permissible format until the trial court resolved the issue in defendant s favor. Crews v. Willows Unified School District; Third District; filed July 17, Cite as C County s density bonus ordinance conflicted with the state Density Bonus Law because by excluding from the target units necessary to qualify for the density bonus those units necessary to satisfy the county s inclusionary requirement the ordinance impermissibly required a developer to include a higher percentage of affordable units than the state law requires. Latinos Unidos Del Valle de Napa y Solano v. County of Napa; First District, Div. Three; filed July 11, Cite as A A county can be held vicariously liable for false imprisonment by county employees, under California law, notwithstanding state Supreme Court ruling that a sheriff for purposes of federal civil rights law acts as a state agent in determining whether to hold someone in custody. Rodriguez v. County of Los Angeles; Second District, Div. Two; filed July 2, Cite as B ENVIRONMENTAL LAW Ninth Circuit Court of Appeals National Marine Fisheries Services use of sub-regions of the Pacific Ocean to determine what limitations to place on commercial fishing in order to protect the endangered western Distinct Population Segment of Stellar sea lions did not violate the Endangered Species Act. Agency utilized appropriate standards to find that continuing previous fishing levels in Pacific Ocean sub-regions would adversely modify critical habitat and jeopardize continued existence of the entire sea lion population. District court did not err by refusing to order preparation of a Record of Decision pursuant to the National Environmental Policy Act where such order would have been premature in the absence of the agency s Burke, Williams & Sorensen, LLP (800)

10 proposed action based on Environmental Impact Statement record which had not yet been prepared.. State of Alaska v. Lubchenco; filed July 23, Cite as California Court of Appeal By granting further approvals with respect to a residential development by resolution, a city council factually invoked Government Code section 65457's CEQA exemption for "residential development projects "undertaken to implement and is consistent with a specific plan for which an environmental impact report has been certified after January 1, 1980," so an action challenging those approvals was subject to Sec s special 30- day statute of limitations. May v. City of Milpitas (SCS Development Co.); Sixth District; filed July 16, Cite as H California Air Resources Board violated CEQA by prematurely approving Low Carbon Fuels Standards under AB 32, prior to completion of environmental review; by splitting responsibility for project approval from the responsibility for completing the environmental review; and by impermissibly deferring the analysis and formulation of mitigation measures for potential increases in the emission of nitrogen oxide resulting from the increased use of biodiesel, without committing to specific performance criteria for judging the efficacy of the future mitigation measures. Potential environmental impacts and other negative consequences that would result from a suspension of LCFS regulations outweighed potential harm from enforcing them, so ARB was entitled to continue enforcing the regulations while correcting deficiencies in the rulemaking process within a reasonable timeframe. POET, LLC v. California Air Resources Board; Fifth District; filed July 15, Cite as F Distinctions between designations of a particular property in a general plan, which had allowed low density residential development, and subsequent amendments including open space designations, did not necessarily constitute an inconsistency as a matter of law. City council s finding that proposed residential development would be consistent with general plan was not arbitrary or capricious where references to the property in the later plans were contradictory, and other resolutions had created uncertainty as to what the council s intent was with regard to development there. Burke, Williams & Sorensen, LLP (800)

11 Orange Citizens for Parks and Recreation v. Superior Court (Milan REI IV LLC); Fourth District, Div. Three; filed July 10, Cite as G City s early efforts to assist in development of affordable housing project, including making a predevelopment loan covering a small percentage of the eventual project cost, creating a special use district, committing staff resources, and making public statements in support of the project did not constitute environmental preapproval in violation of CEQA. Neighbors for Fair Planning v. City and County of San Francisco (Booker T. Washington Community Service Center); First District, Div. Three; filed May 31, 2013, publication ordered June 25, Cite as A County did not violate Williamson Act, which allows counties to contract with landowners to maintain their property as agricultural in exchange for tax benefits, by cancelling contracts in order to allow development of renewable energy project; substantial evidence supported board s findings that project benefits substantially outweighed impact on agricultural resources and that there was no proximate, noncontracted land that was a suitable alternative for the proposed project. Approval of project did not violate CEQA where substantial evidence supported board s finding that proposed alternative was infeasible, in part because it would require acquisition of privately owned land located in other counties that might not approve the project. Save Panoche Valley v. San Benito County (PV2 Energy, LLC); Sixth District; filed June 25, Cite as H LABOR AND EMPLOYMENT LAW Ninth Circuit Court of Appeal Employer need not exhaust a petition to vacate arbitration award under 301 of the Labor Management Relations Act in order to pursue a civil action for damages under 303 for unfair labor practices committed during arbitration proceedings. Rejection of unfair labor practice charges by arbitrator or NLRB does not preclude an employer from suing under 303. American President Lines, Ltd. v. International Longshore and Warehouse Union; filed July 12, 2013 Burke, Williams & Sorensen, LLP (800)

12 Cite as Sec. 303 of the Labor Management Relations Act, which authorizes damage suits for unlawful secondary picketing, does not preclude an employer from obtaining damages resulting from unlawful labor activities by other means, such as a contempt motion brought by the National Labor Relations Board. District court did not abuse its discretion in finding unions in contempt and awarding compensatory damages for protest activities conducted in violation of an injunction obtained by the NLRB, but the court had no authority to award damages to railroad whose operations were disrupted, or to law enforcement agencies that responded to the scenes of the protests, because those entities were not parties to the underlying NLRB actions. Employer s participation in civil contempt proceedings brought by NLRB did not exceed the statutorily limited role allowed to charging parties under Sec. 160(l) of the National Labor Relations Act where limited to questioning witnesses regarding the damage caused by union at employer s facility and entering exhibits into evidence.. Ahearn v. International Longshore and Warehouse Union; filed July 5, Cite as California Court of Appeal City s policy decision to extend workers compensation benefits to volunteers serving as police reserve officers did not transform those volunteers status to that of employee for purposes of the Fair Employment and Housing Act, so reserve officer who was terminated for unlawfully selling a prescription drug through his nutritional supplements business lacked a cause of action based on alleged disability discrimination. Estrada v. City of Los Angeles; Second District, Div. Three; filed July 24, Cite as B Prevailing defendant in a Fair Employment and Housing Act action need not show that the action is frivolous, unreasonable, or without foundation in order to recover ordinary costs. Williams v. Chino Valley Independent Fire District; Fourth District, Div. Two; filed July 23, Cite as E CEQA s provisions defining the administrative record do not abrogate the attorney-client privilege and the attorney work-product doctrine. Common-interest doctrine does not Burke, Williams & Sorensen, LLP (800)

13 protect otherwise privileged communications disclosed by a developer to the CEQA lead agency, or by the agency to the developer, prior to approval of the project, a period in which the interests of the lead agency and the project applicant are fundamentally divergent. Citizens for Ceres v. Superior Court (City of Ceres); Fifth District; filed July 8, Cite as F Bane Act which authorizes a civil action against anyone who interferes, or tries to do so, by threats, intimidation, or coercion, with an individual s exercise or enjoyment of rights secured by federal or state law applies to an unlawful arrest and beating administered by officers during that arrest; there is no requirement, in an excessive force case, that plaintiff show that the threats, intimidation, or coercion caused a violation of a separate and distinct constitutional right in addition to a Fourth Amendment violation. Testimony that officer had a history of unprovoked bullying of persons in his custody was admissible to impeach officer s claim he used force because of plaintiff s provocation and used measured responses to gain control of him. Evidence that defendant was acquitted at criminal trial was harmless, even if erroneously admitted, where there was an abundance of evidence that officer had attacked him without provocation and had a history of attacking others in similar circumstances. Use of a multiplier of 1.2 in calculating attorney fees under Bane Act was not an abuse of discretion where the case was a double contingency, requiring proof both of excessive force claims and of liability on a statutory cause of action authorizing recovery of legal fees; counsel invested capital to pay trial expenses and time that limited their availability for other cases; and defendants vigorously disputed plaintiff s factual and legal assertions. Bender v. County of Los Angeles; Second District, Div. Eight; filed July 9, Cite as B ABOUT OUR LAW FIRM At Burke, Williams & Sorensen, LLP, diversity precisely describes not only our demographic makeup, but also the scope of our legal expertise, both of which support our ability to fulfill your legal needs. We are as diverse as California itself. The broad range of our areas of expertise mirrors California s own vitality, with respected, proven practices in five general areas: Public Law Education Law Labor & Employment Law Litigation Real Estate & Business Law Burke, Williams & Sorensen, LLP (800)

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