Jones&Mayer - Case Updates

JONES & MAYER NEWSLETTER
Providing Advice and Representation to Public Entities and California’s Law Enforcement Agencies

Inside This Issue

I. RECEIVERSHIPS

By Paul R. Coble, Esq.

II. NEW LAWS GOVERNING SALE OF NONFERROUS METALS

By Paul R. Coble, Esq.

III. CANDIDATE BALLOT DESIGNATIONS RECENT CHANGES IN LAW

By Kimberly Hall Barlow, Esq. and Krista MacNevin Jee, Esq.

IV. NEW FEDERAL REQUIREMENTS FOR IDENTITY THEFT PREVENTION

By: Christian L. Bettenhausen, Esq. and Chris F. Neumeyer, Esq.

V. SB 375: IMPACT ON PLANNING & LAND USE OF NEW GLOBAL WARMING LAW

By: Chris F. Neumeyer, Esq.

VI. FCC TO RULE ON PHONE TOWERS

By: Kathya M. Oliva, Esq.

VII. SB 2588: MOBILE FOOD VENDOR

By: Kathya M. Oliva, Esq.

FIRM ANNOUNCEMENTS

ADDITIONS TO THE FIRM

ATTORNEY SPOTLIGHT
• We are very pleased to announce that MARTIN J. MAYER has co-authored four books designed for those conducting internal affairs investigations of peace officers, for supervisors responsible for overseeing such investigations and publications for fire department managers and supervisors. These “how to” books are a must have for your organization. Please see inside this issue for ordering information.

FIRM ANNOUNCEMENTS
• SEMINARS– Public Records Act Class

ADDITIONS TO THE FIRM
• CHRISTOPHER F. NEUMEYER

Emergency or Non-Emergency Still An Effective Problem - Solving Tool
By Paul R. Coble, Esq.

Our June 2008 Newsletter contained an article titled “RESIDENTIAL RECEIVERSHIPS - A Valuable Adjunct To Effective Code Enforcement.” In this article, we spoke of the value of Health & Safety Code receiverships as an additional tool for cities and counties to use in combating blighted and unsafe housing conditions. We want to now follow up on that theme and to share some of our experiences with receiverships in both emergent and non-emergent circumstances, and to pass along some pointers that may be of assistance as you consider use of this valuable tool.

In the instance of the apartment building spoken of in the June article, we began to experience an example of the old adage that “too many cooks spoil the broth” when we had counsel for an ad hoc “tenants’ association,” counsel representing some of the same tenants in a damages suit against the property owners, counsel for the property owners, and our firm as counsel for the city/housing authority all weighing in on how the receiver ought or ought not to be proceeding. After extensive but ultimately unsuccessful efforts on our part to bring everyone together on a commonly understood and agreed upon action plan, we finally had to return to court to replace the receiver as it had become obvious that certain of the parties simply were not going to cooperate any longer with the original receiver. From this, a couple of valuable lessons were learned that may be of assistance to other cities and counties in avoiding the delay and expense entailed in first fighting over and eventually having to replace a receiver.

First, when there are multiple and divergent parties and actions in play, the better course is, where possible, to have the city or county be the sole moving party seeking appointment of a receiver (here, the “tenants’ association” had also moved for appointment). This simplifies the flow of direction and accountability, preventing the receiver from having multiple “bosses,” whether those “bosses” are actual or imagined.

Secondly, where there are multiple and divergent stakeholders, it is of critical importance that both expectations and lines of accountability are clearly defined.

A third point is that not every receiver is best suited to every receivership project. Some receivers are adept at property clean up and liquidation, while others have the experience and resources to execute more complex construction projects. You should make sure that the receiver recommended to the court for a given project has demonstrated success with the issues in play for the concerned property.

Not all properties appropriate for appointment of a receiver will present the sort of emergent circumstances described for the apartment building spoken of in our June article (i.e., vermin infestation, raw sewage flooding, etc.). Where ex parte application under Health & Safety Code §17980.7 is appropriate to emergency health and safety issues, other properties may not warrant the urgency necessitating ex parte application while nonetheless being entirely appropriate to application pursuant to a fully noticed motion for appointment.

In another of the cities which we represent, there has been a years-long struggle through conventional code enforcement efforts to get a property owner to complete a major exterior remodeling project on his home. There has been a conviction with probation terms including correction of all remaining violations. This had been followed by a violation of probation, and even a jail term. Yet the exterior walls remained open to the elements, with consequent deterioration and loss of structural integrity.

Unable to obtain compliance, and faced with a now unsafe structure, we have moved for appointment of a receiver in order to correct the violations, restore safety to the home, and return it to the home owner. However, as this was not the sort of emergency circumstances encountered with the aforementioned apartment building, we proceeded by way of fully noticed motion, thereby providing the owner with an opportunity to be heard as well as for the court to more fully consider the facts and circumstances.

Again, the absence of actual emergency conditions justifying ex parte application does not negate an application by way of noticed motion. In drawing this distinction, be aware that courts prefer the more extended processes of a fully noticed motion as it provides more time for careful consideration of whether the court is going to approve a request that a home owner be divested for a time of his/her rights as a property owner while the government seizes control and effectuates needed repairs.

When seeking appointment of a receiver under other than emergent circumstances, be prepared for, and be ready to show patience with, the tendency of some courts to give the property owner additional time to correct the unsafe conditions under the informal supervision of the court. As frustrating as this may at times be, it should be borne in mind that receivership is a drastic remedy which courts are – and should be – reluctant to impose. Remember that the end result of correction of the unsafe conditions will ultimately be achieved, whether by the property owner under a court-supervised “second chance” or by appointment of a receiver after the property owner has failed to take advantage of this “second chance.”

Whether faced with emergency conditions warranting immediate judicial intervention, or non-emergency but nonetheless unsafe conditions allowing time for a fully noticed motion, residential receiverships continue to be an effective tool for cities and counties confronted with dangerous and blighted property conditions. Used thoughtfully, and with the aforementioned issues in mind, residential receiverships can help you hold the line against neighborhood depreciation and decay.

For further information on this process, and if we may be of any assistance, please contact Paul R. Coble at 714-446-1400, or by email at prc@jones-mayer.com.

As the price for certain metals has risen to all-time highs, California cities and counties have been plagued with the theft of nonferrous metals such as copper and aluminum, which is then sold for substantial sums on the junk and recycling market. Buildings under construction have been stripped of copper plumbing, and one city even reported that underground wiring for pathways in a city park was stolen before installation could be completed.

On September 30, 2008, the Governor signed into law A.B. 844 (Berryhill) and S.B. 447 (Maldonado) amending and adding to the Business & Professions Code (“B&P”) to further regulate the sale and purchase of, principally, nonferrous metals. The provisions of A.B. 844 are, as urgency legislation, effective December 1, 2008, while the record keeping and reporting requirements of S.B. 447 will become effective the first of the New Year.

Under A.B. 844, B&P §21606, which regulates “junk” sales, is amended to require that junk dealers maintain records of:

The place and date of each sale or purchase of junk made in the conduct of his or her business as a junk dealer or recycler.
The name, valid driver's license number and state of issue or California-issued identi-fication card number, and vehicle license number including the state of issue of any motor vehicle used in transporting the junk to the junk dealer's or recycler's place of business.
The name and address of each person to whom junk is sold or disposed of, and the license number of any motor vehicle used in transporting the junk from the junk dealer's or recycler's place of business.
A description of the item or items of junk purchased or sold, including the item type and quantity, and identification number, if visible.
A statement indicating either that the seller of the junk is the owner of it, or the name of the person he or she obtained it from, as shown on a signed transfer document.

This statute also now requires the reporting of this sales information to the local sheriff or chief of police, while §21606.5 is amended to allow periodic inspections of dealer premises by an officer holding a warrant authorizing him or her to search for personal property; a person appointed by the sheriff of a county or appointed by the head of the police department of a city; or an officer holding a court order directing him or her to examine the records or property.
B&P § 21608.5 is added, and provides that a junk dealer or recycler in this state shall not provide payment for nonferrous material unless all of the following requirements are met:

The payment for the material is made by cash or check. The check may be mailed to the seller at the address provided pursuant to paragraph (3) or the cash or check may be collected by the seller from the junk dealer or recycler on the third business day after the date of sale.
At the time of sale, the junk dealer or recycler obtains a clear photograph or video of the seller.
(A) Except as provided in subparagraph (B), the junk dealer or recycler obtains a copy of the valid driver's license of the seller containing a photograph and an address of the seller or a copy of a state or federal government-issued identification card containing a photograph and an address of the seller.
The junk dealer or recycler obtains a clear photograph or video of the nonferrous material being purchased.
The junk dealer or recycler shall preserve the information obtained pursuant to this para graph for a period of two years after the date of sale.
(A) The junk dealer or recycler obtains a thumbprint of the seller, as prescribed by the Department of Justice. The junk dealer or recycler shall keep this thumbprint with the information obtained under this subdivision and shall preserve the thumbprint in either hardcopy or electronic format for a period of two years after the date of sale.
(B) Inspection or seizure of the thumbprint shall only be performed by a peace officer acting within the scope of his or her authority in response to a criminal search warrant signed by a magistrate and served on the junk dealer or recycler by the peace officer. Probable cause for the issuance of that warrant must be based upon a theft specifically involving the transaction for which the thumbprint was given.

There are exceptions to these record keeping requirements for repeated sales at specified intervals so long as verifiable records are maintained for the seller’s legitimacy and business location, etc.

B&P §21609 is amended to provide for the placement by the police of a hold on property in the possession of a dealer when there is probably cause to believe the property may be stolen.

The legislation specifies that, while the state intends to occupy this field of regulation, a city or county may pass an ordinance relating to regulation of junk and metal sales provided that the ordinance ...is passed by a two-thirds vote and it can be demonstrated by clear and
Convincing evidence that the ordinance is both necessary and addresses
A unique problem within and specific to the jurisdiction of the ordinance
That cannot effectively be addressed under [the state statute]. §21608.5(g).

These amendments and additions to the B&P Code should provide effective new tools to aid local agencies in the identification and recovery of stolen metals, as well as the arrest and prosecution of offenders.

As these Acts become effective in the very near future, agencies are encouraged to expedite in-house training of officers in the use of these new tools in their investigations and arrests. It is further recommended that outreach be made to junk and metal dealers in your jurisdiction to make certain that these businesses are aware of their responsibilities under these laws, and are prepared to do their part in combating thefts of nonferrous metals.

If you believe that your jurisdiction has special needs that warrant enactment of a local ordinance, you should begin to gather and analyze data in support of such an ordinance as addressed in B&P §21608.5(g).

As always, we urge that you confer with your agency’s attorney for legal advice and guidance on this matter. Should you wish to discuss it in greater detail, please feel free to contact Mr. Coble at 714 446-1400 or via e-mail at prc@jones-mayer.com.

In this election year, there have been some challenges to candidate ballot designations which may change how City Clerks, as City elections officials, address future designations. Specifically, the issue of whether a current (Council-selected) Mayor or Mayor Pro Tempore may utilize their titles in a ballot designation and voter pamphlet materials has been raised and addressed by certain courts this year. Based on current law and on information from both the Orange County Registrar of Voters and the Secretary of State, we have advised that use of the designation Mayor or Mayor Pro Tempore by a candidate is permissible if it is used as the individual’s principal profession, vocation or occupation or one of multiple such professions, vocations or occupations. Fundamentally, it is not the City Clerk’s position to investigate the matter of what an individual’s principal profession, vocation or occupation is, since elections officials are generally not to engage in “discretionary factfinding” or to consider “extrinsic evidence” in the carrying out of their election-related duties. See, e.g., Alliance for a Better Downtown Millbrae v. Wade, 108 Cal. App. 4th 123 (2003). If there is a legitimate question about whether a candidate’s assertion is factually accurate, of course the issue may be challenged by the City Clerk or any other interested person in the courts. The reasons for the change in what can be included in candidate ballot designations are discussed below. They may not apply in all instances, but should be evaluated with respect to future ballot designation issues.

California Elections Code Section 13107 permits a candidate to file the following ballot designation, which is one of four optional types of designations that may be used by a candidate: “[n]o more than three words designating either the current principal professions, vocations, or occupations of the candidate,” or those in the preceding calendar year. Cal. Elect. Code § 13107 (a) (3). The current Mayor of Huntington Beach, Debbie Cook, used this particular subsection as justification for her use of the term “Mayor” in her ballot designation this year in running for Congress. A case was filed to challenge her designation. See Cook v. Superior Court of Orange County (Keith Carlson), 161 Cal. App. 4th 569 (2008). The Court of Appeal in Orange County dismissed the case, because the Secretary of State had not been included as a party in the lawsuit. However, the Court’s published decision in the case reveals some important issues in analyzing what designations are proper under the Elections Code requirements.

Notably, the challengers in the Cook case argued that Mayor Cook could not claim that her position as mayor was her principal profession, vocation or occupation because that position was merely “ceremonial.” The Court of Appeal flatly rejected this claim, noting “that mayors of cities of the population of Huntington Beach typically are on call 24 hours a day, seven days a week to respond to major municipal emergencies, have independent powers of appointment, receive extra compensation, serve on regional commissions and are under a duty, often spared ordinary council members, of attendance at ceremonial functions.” Id. at 573 n.2. Huntington Beach’s population is approximately 202,250, and the City is a Charter City.

The Cook Court did note that a declaration of Mayor Cook had established that “she has no profession other than her service on the city council and as mayor (she closed her law practice on joining the council) and spends 10 to 20 hours more per week as mayor than she did as a council member.” Id. at 573 n.2. In Mayor Cook’s circumstances, she may have been claiming that her sole profession, vocation or occupation was now Mayor. An issue that is certainly not addressed by the facts of the Cook case is to what degree an individual may be permitted to list a position such as mayor in addition to other professions, vocations or occupations.

The Elections Code does specifically permit a candidate to list multiple professions, vocations and occupations, as long as the named activities qualify as such and are expressed in no more than three words. The Secretary of State Regulations, which do not apply to City elections officials but may be used as a guide to applicable legal principles, specifically permit a candidate to “designate multiple principal professions, vocations or occupations,” but each one “must independently qualify as a ‘principal’ profession, vocation or occupation”; multiple professions, vocation or occupations are to be listed together, separated by a slash. 2 Cal. Code Regs. § 20714 (e) (emphasis added).

Although the Court’s statements about the duties of the Huntington Beach Mayor did not cite to any source, the duties of the Mayor expressed by the Court certainly seem representative of the duties of many other mayors in similarly-situated City-Manager-form-of-government cities throughout the State. Huntington Beach’s municipal code does not provide any specially designated duties of the Mayor, although its Charter does provide that “[t]he Mayor shall be the official head of the City for all ceremonial purposes; shall have the primary but not the exclusive responsibility for interpreting the policies, programs and needs of the City government to the people, and as occasion requires, may inform the people of any major change in policy or program . . . .” City of Huntington Beach Charter, Section 305. These specific duties would not seem to be substantially different from the function of the Mayoral position as it is exercised in many other cities.

The Court’s general statements about Mayoral duties qualifying as a profession, vocation or occupation may apply in the vast majority of circumstances. The Court’s analysis is persuasive of how other courts will interpret Elections Code requirements relating to such designations.

Notably, after the Cook case was dismissed by the Court of Appeal, for failure to include the Secretary of State, a follow-up suit was brought by the same challengers in the Sacramento Superior Court. This time the Secretary of State was included as a party. The Sacramento Superior Court ruled in favor of Mayor Cook on the actual merits of her claim and found that she properly used the designation of “Mayor.” See Carlson v. Logan, Sacramento Superior Court Case No. 2008-00007013, filed March 27, 2008.

Another case was also brought this year in the Orange County Superior Court against Council Member Kenneth C. Parker, the current Mayor in the City of Los Alamitos. He, too, used the designation of mayor in ballot materials and was challenged in a legal action filed on August 20, 2008. See Charles Sylvia v. Neal Kelley and Susan C. Vanderpool (Real Party in Interest Kenneth C. Parker), Orange County Superior Court Case No. 30-2008-00110836. Although this case settled, James Lacy, the individual representing the challenger, indicated that they presented evidence that the role of Mayor was actually minimal, that Mayor Parker did not list his position as Mayor in his annual FPPC Economic Interests Statement, that he was active in his private tax accountancy business in the City, and Charles Sylvia stated in a declaration that the position did not take a significant amount of time. Mr. Sylvia is a retired council member who had been with the City Council for 26 years and had served as Mayor four times.

The Sylvia case, of course, was settled, and so there is no legal analysis by the Court of what constitutes a proper ballot designation. However, the Sylvia case does indicate that the issue of whether a designation is proper may be a factual issue, in terms of the actual position in a particular city and/or the nature of the time spent in that position by a particular individual.

After the Cook cases, there may be a wide-encompassing rule that use of “Mayor” as a profession, vocation or occupation will normally be acceptable. Based on the stance taken by the challengers in Sylvia, there may certainly be room for challenging a particular person’s use of the designation. Either way, it appears that a City Clerk may not be able to question such a designation without resorting to a court’s determination when the issue might be in question. If there is any room for a candidate to reasonably assert that “Mayor” is his or her “profession, vocation or occupation,” then a City Clerk will normally allow such designation, unless a court orders otherwise.

Of course, City Clerks must also balance the general requirement that no “elections official shall accept a designation . . .which . . .would mislead the voter.” Cal. Elect. Code § 13107 (b)(1). The Secretary of State guidelines echo this my requiring that a ballot designation “must accurately state the candidate’s principal professions, vocations or occupations,” and each one “must be factually accurate, descriptive of the candidate’s principal profession, vocation or occupation, must be neither confusing nor misleading, and must be in full and complete compliance with Elections Code § 13107 and the regulations . . . .” 2 Cal. Code Regs. § 20714 (c).

If there is any question about whether a ballot designation satisfies these requirements, City Clerks should seek specific legal advice regarding the particular circumstances. Based on specific legal advice, City Clerks can be informed about whether it would be proper to reject a particular ballot designation or whether there is a need to seek a ruling from an appropriate court on the issue.

The Federal Trade Commission (“FTC”) recently published new rules and guidelines requiring greater protections against identity theft. The new rules implement Sections 114 and 315 of the Fair and Accurate Credit Transaction Act of 2003 (FACTA), 15 U.S.C. sections 1681 et seq. (hereinafter the “Red Flag Rules”). Under the Red Flag Rules, financial institutions and creditors are required to adopt and implement a program to detect, prevent, and mitigate instances of identity theft. The program needs to be implemented by May 1, 2009.

The Red Flag Rules will apply to any municipality that qualifies as a “creditor,” which also maintains a “covered account.” The term “creditor” is defined to include any entity that allows payment to be deferred by customers for goods or services. A “covered account” includes any account a financial institution or creditor offers or maintains, primarily for personal, family, or household purposes, designed to permit multiple payments or transactions (e.g. bank, credit card, mortgage, etc.), or any other account where there is a reasonably foreseeable risk of identity theft.

The most common situation where the Red Flag Rules will apply is where the city is providing utility services (water, trash, electric, etc.) to its customers where the customer submits payment after the services have already been rendered. It will also include installment payments or the postponing of payments on fines or fees, such as is common for parking tickets.

The “Red Flags Rules” are meant to identify patterns, practices or specific activities that indicate the possible existence of identity theft. This might be an alert issued by consumer reporting agencies, customers or law enforcement, or simply a customer presenting suspicious documents - particularly in the context of a customer address change.

The new law states that the City is required to develop and implement a written identity theft prevention program by the May 1, 2009 deadline. The program must include reasonable written policies and procedures for detecting, preventing, and mitigating identity theft in connection with the opening of a covered account or any existing account. The policies and procedures should be designed to: 1) identify relevant patterns, practices, and specific forms of activity that are “red flags” signaling possible identity theft, and then incorporate those red flags into the program; 2) detect red flags that have been incorporated into the program; 3) effectively respond to any red flags that are detected to prevent and mitigate identity theft; and 4) ensure the program is updated periodically to reflect changes in risks from identity theft. The program must be appropriate as to the size and complexity of the local governmental entity and the nature of the scope of its activities. The program must be managed by the City Council or senior employees, must include appropriate staff training, and provide oversight of any service providers. Cities overseeing a service provider must ensure that the service provider’s activities are conducted in accordance with reasonable policies and procedures designed to detect, prevent and mitigate the risk of identity theft. Experts also recommend a risk assessment of individual utility operations.

Categories of “red flags” include: 1) alerts, notifications, or warnings from a consumer reporting agency; 2) suspicious documents; 3) suspicious personally identifying information, such as a suspicious address; 4) unusual use of – or suspicious activity relating to – a covered account; and 5) notices from customers, victims of identity theft, law enforcement authorities, or other businesses about possible identity theft in connection with covered accounts.

After the May 1, 2009 deadline, federal regulators are authorized to impose civil fines/penalties in situations where the City’s failure to abide by the Red Flag Rules ends up leading to a financial loss by a customer. This means the City could be held responsible if a customer incurs a loss attributable to identity theft, if the loss would not have occurred had the City properly adopted and implemented a “red flag” program.

SB 375 links land use and transportation policy to a reduction in greenhouse gas emissions from cars and light trucks. The focus is on tying together land use and transportation planning through the use of existing processes. Housing is encouraged to be closer to job sites, rail lines and bus stops to lessen the time spent driving cars. SB 375 encourages compliance by both loosely linking billions of dollars in state and federal transportation funds, as well as CEQA (California Environmental Quality Act) review streamlining, to municipal and county attempts to reduce the time spent driving cars.

October 1, 2010 is the date when the new compliance measures will go into effect, preceded by a lengthy process of regional participation in the development of the new “sustainable community strategies,” or SCSs, which at their core link transportation and housing decisions to a targeted reduction in regional greenhouse gas emissions by 2020.

SB 375 aims to implement the mandate of the Global Warming Solutions Act of 2006 (AB 32) for California to reduce greenhouse gas emissions to 1990 levels by 2020. This amounts to a 30 percent reduction in projected levels. SB 375 aims to control greenhouse gas emissions by curbing sprawl through land use planning.

Specifically, SB 375 means to alter both housing and also transportation planning decisions in order to reduce fossil fuel consumption and conserve habitats and farmland. The League of California Cities has a workshop planned on SB 375 for January, 2009. More details on the workshop from the League are forthcoming, probably by late November, 2008.

The impact on cities will be less control over local land use planning through the encouragement of cooperation with regional plans for “sustainable” growth. Compliance with the regional plans leads to possibly more transportation funds from federal and state sources (or at least the maintenance of current levels) and streamlined CEQA reviews. Non-compliance with regional plans may lead to less money for transportation and possibly relatively tougher CEQA review processes.

Potential conflict will arise between regional planning and local land use authority. Attempting to resolve these conflicts, SB 375 uses regional agencies which are controlled by cities and counties, rather than the California Air Resources Board, to bring about compliance.

While cities will not be required to comply with regional plans (developed by Metropolitan Planning Organizations like the Southern California Association of Governments, or “SCAG”), non-compliance may lead to a reduction in transportation subsidies as well as relatively tighter CEQA review for developers. Compliance with the regional plans is rewarded with streamlined CEQA review as well as funding from state and federal sources.

The regional planning bodies in each of California’s major metropolitan areas are to develop a “sustainable community strategy” (“SCS”), as part of their respective Regional Transportation Plans (“RTPs”). The RTPs are already required by law. If the SCS is not approved by the California Air Resources Board (“CARB”) as meeting a region’s Greenhouse Gas (“GhG”) emissions reduction goals, then an “alternative planning strategy” (“APS”) is to be developed. (Please refer to “The Alphabet Soup” at the end of this analysis for a greater explanation of both the organizations as well as the plans involved.)

The SCS (or the APS, if the SCS is not approved) is meant to realize the goals of the Global Warming Solutions Act of 2006. The SCS/APS are aimed at reducing the amount of vehicle miles traveled. The reduction in vehicle miles traveled is to meet the region’s target for reducing GhG emissions. This is done by creating “sustainable” communities by locating housing closer to where people work and go to school, and by promoting alternative transportation options.

Encouraged projects are: 1) development near public transit; 2) projects that include a mix of residential and commercial use; and 3) projects that include affordable housing to help reduce new housing developments in outlying areas with cheaper land.

Three categories of law are united by SB 375, which addresses the regulatory and permit processes of the state for: 1) regional planning (how land use should be split among industry, agriculture, homes, open space and commercial centers); 2) where roads and bridges are built; and 3) housing needs and responsibilities (for example, how much affordable housing a community must allow).

The three formerly separate areas are now to be synchronized to reduce GhG emissions. Specifically, the Regional Housing Needs Allocation (“RHNA”) process is to be tied to the new SCS requirement to insure there are not conflicting goals for a region.

The California Air Resources Board (“CARB”) will appoint Regional Targets Advisory Committees (“RTAC”), which are responsible for reporting recommendations to CARB by September 30, 2009 of proposed regional reductions in GhG emissions.

By June 30, 2010 CARB must provide draft targets for each region to review, and then by September 30, 2010 CARB must provide each affected region with a GhG emissions reduction target.

SB 375 will then achieve its purpose beginning October 1, 2010 in that MPOs updating their RTP will begin an eight year planning cycle that includes both an SCS (or an APS outside of the RTP if the SCS is not approved) as well as alignment with the RHNA process to insure synchronicity of state goals in both providing housing as well as reducing GhG emissions.

The size of SCAG (the MPO for cities in both Orange County and Los Angeles County) has prompted an exception for the SCAG region, in that a sub-regional council of governments and the county transportation commission may work together to propose a SCS/APS for the sub-regional area.

However, SCAG is still responsible for creating an overall public participation plan, ensuring coordination, resolving conflicts and making sure that the plan complies with all applicable legal requirements.

The regional planning bodies will submit their land-use, transportation and housing plans to CARB; however, CARB’s role is limited under SB 375. CARB only accepts or rejects the MPO’s determination that the SCS plan would meet the regional goals set by CARB. However, prior to the formal submission of a SCS in the RTP, there is encouraged exchange of information between CARB and the regional MPOs on the technical methodology used for measuring GhG emissions.

There are no conditional approvals of the SCS, and the intent is for there to be no interference with local decision making. If the plan falls short of state goals, then a new plan must be developed, the APS. Once state approval is granted, billions in state and federal subsidies can be awarded. However, the money can still be distributed if an alternative plan which is submitted is also rejected.

Thus, there is no assurance that regions would lose transportation dollars if their plans fail to win state approval, assuming an alternative plan is submitted subsequent to an initial rejection.

Also, CEQA relief is provided through a more streamlined environmental review process if certain projects are built. If a project is compliant with an approved regional plan, SB 375 relaxes some of the existing requirements of CEQA and can make it harder for citizen groups to sue developers. Communities which participate in the process may revise housing plans every eight years rather than every five. Developers who use a state-approved plan will have less extensive environmental reviews of their projects.

The League of California Cities (“League”) believes SB 375, after the League initially opposed the bill, will in its current form better align a variety of regional planning functions for housing, transportation and land use to help California cities both build more sustainable cities as well as meet the need for more affordable housing.

The League further believes that the decisions about how to achieve greenhouse gas emissions from cars and light trucks will remain in the hands of locally affected officials. This is because the decision-makers in the regional MPOs are locally elected officials.

Other benefits the League sees are that the alignment of three separate planning processes (transportation, housing [especially RHNA], and reduction of GhG emission) into one planning process will facilitate greater certainty for General Plans and better coordination between state agencies. (Please refer to League positions on SB 375 at http://www.cacities.org/index.jsp.)

Prepare RTPs, which now must have SCSs. If the SCS does not meet a region’s targets, then the MPO must develop an APS. OC and LA counties are in SCAG (Southern California Association of Governments) which is allowed to use sub-regional groups for compliance with SB 375.

Regulated by state and federal law, impacts how funds are distributed
(Note – the APS is not part of the RTP)

SB 375 requires a SCS be added to the already required RTP. The SCS is designed to meet the region’s targets for GhG reductions. The SCS will not directly affect local land use decisions, as the SCS does not supersede a local general plan, local specific plan, or local zoning. However, non-compliance with the SCS may lead to relatively tougher CEQA review (or at least the unavailability of the streamlined review offered for compliance) and/or a negative effect on state transportation funding.

When the SCS does not achieve the GhG emission reduction target (as determined by CARB), the MPO must develop an APS

Separate document from the RTP, thus does not automatically affect distribution of transportation funds.
Must identify principal impediments to achieving targets within the SCS.
Must show how measures will both achieve the regional target, and why the measures are the most practicable.
Like the SCS, does not directly supersede a local general plan, local specific plan, or local zoning
The APS does not constitute a land use plan, policy, or regulation
Inconsistency of a project with the APS is not a consideration for CEQA approval
Why do APS? – 1) general consistency with CARB approved plan (either SCS or APS) allows a project to qualify for CEQA streamlining provision; 2) adds the new focus for the regional transportation planning and housing allocation of reductions in GhG emission

Primary source for much of the above is the 9/19/08 article “Technical Overview of SB 375 (v 1.1)” by Bill Higgins, Legislative Representative and Sr. Staff Attorney for the League of California Cities. The article is available on the League’s website.

VI. FCC To Rule On Wireless Association’s Petition Requiring Cities To Implement Timeframe For Approving Zoning Requests Cell Towers

In light of recent litigation on city zoning and cell phone towers, we thought it was appropriate to report on a ruling that the FCC is to decide on pertaining to cell phone towers and city zoning. On July 11, 2008, a petition was filed by the Wireless Association (“CTIA”) requesting that the Federal Communications Commission (“FCC”) issue a Declaratory Ruling to clarify provisions of the Communications Act of 1934, as amended, (“Communications Act”) pertaining to state and local review of wireless facility location applications also known as “siting” applications.

By filing this petition CTIA seeks clarification on Section 332 (c) (7) of the Communications Act, a section that preserves local zoning authority over the placement of personal wireless facilities. CTIA claims that this section is ambiguous and courts have interpreted it to allow unnamed zoning authorities “to impose unreasonable impediments to wireless facility siting and provision of wireless services.” CTIA also is requesting that the FCC preempt certain local ordinances and state laws that it claims violates Section 253 (a) of the Commission Act, which bars state and local laws that “prohibit or have the effect of prohibiting the ability of any entity to provide interstate or intrastate telecommunications service.”

Comments on the petition were due no later than September 15, 2008 and reply comments were due no later than September 30, 2008, however on September 25, 2008, the National Association of Telecommunications Officers and Advisors (NATOA), the National League of Cities (“NLC”), the National Association of Counties (“NACo”), and the United States Counties of Mayors (USCM”) filed a motion for an extension of time to file comments and reply comments in response to the Petition for Declaratory Ruling filed by CTIA. A two-week extension was granted by the FCC and comments were allowed until September 29, 2008 and reply comments were due by October 14, 2008.

In October 2008, the FCC’s Intergovernmental Advisory Committee (“IAC”) commented on CTIA’s petition for a Declaratory Ruling. The IAC is a committee that was appointed to the FCC to provide feedback on various issues coming before the FCC. In a letter to the Chairman of the FCC, the IAC urged that the FCC deny the petition and any proposed rule making regarding timing for the review of cellular tower siting. The IAC said that CTIA’s petition to impose a final zoning and permit decision that must be concluded in 75 days for new towers and 45 days for modifications for existing towers “is counter to the Telecommunications Act of 1996 that preserved local zoning authority for cell towers.” The IAC also said that “in the Telecommunications Act of 1996, Congress made it clear in legislative language that the time for local governments to act on cellular zoning requests is the generally applicable time frames for zoning decisions.” Further, “complex or contentious applications may take more than 75 days to resolve which does not reflect an understanding of the wide variation in zoning procedures in the 35,000 municipalities.” Finally, the IAC explained “that zoning is uniquely a local concern and the FCC should not become the local zoning authority for cell towers nationwide. Congress recognized this when in 1996 it preserved the local zoning of cell towers and directed the FCC not to get into the cell tower zoning business.” The IAC’s letter to the FCC Chairman reflects the opinion of numerous local governments and municipal associations which are opposed to CTIA’s petition.

If the FCC agrees with CTIA’s requests then cities will be required to take final action on cell tower proposals within 45 days for collocated facilities, and 75 days for stand alone facilities and if there is no “final action” by a city within the time frame, the application would be deemed approved. However, based on the IAC’s recommendation, approval by the FCC does not seem promising.

A final determination of the petition has yet to be determined so we are awaiting the final outcome. We will keep you posted on the FCC’s ruling on CTIA’s petition.

This bill, effective January 1, 2009, amends California Health and Safety Code Sections 114315 and 113709 and California Vehicle Code Section 22455. The amendments authorize local authorities to impose time, place, and manner restrictions on vending activities from mobile food venders. This law expressly provides that the California Retail Food Code does not prohibit a local governing body from adopting requirements for the public safety regulating the type of vending and the time, place, and manner of vending from vehicles upon a street.

DATE - November 20-21, 2008
LOCATION - Downey Embassy Suites Hotel, 8425 Firestone Blvd.
LOCATION PHONE NO.: 562-861-1900
Instructors: Greg Palmer, The Law Firm of Jones & Mayer, Debbie Fallehy, Oakland Police Department (Retired)
Tuition: $ 250.

This course is POST certified under Plan III. Payment is required in full 15 days prior to the class in order to guarantee your seat. The State Bar of California has approved this activity for 15 MCLE credit hours. Maximum number of participants is 50.

Learn the statutory and case law requirements in the dissemination of public records to protect your agency. Topics covered in this seminar are geared toward custodians of public records of all law enforcement and public safety entities and include:

Overview of the California Public Records Act
Records exempt from public disclosure
Fees for PRA requests and other processes
Record retention requirements
Evidence Code 1043 and Subpoena Duces Tecum (SDT)
Discovery in Federal Court

CHRISTOPHER F. NEUMEYER
Litigation, Civil Rights, Transactional Law, Municipal Law, Land Use

Christopher F. Neumeyer has been an associate with the law offices of Jones & Mayer since 2007. His areas of practice include litigation, municipal law, transactional law, land use, and civil liberties and rights.

Mr. Neumeyer received his J.D. from Georgetown University Law Center in 2007 and his B.A. in political science from UC Berkeley.

Mr. Neumeyer specializes in litigation, including cases involving tort liability, contract disputes, and state and federal civil rights. He counsels our municipal, public agency and law enforcement clients on their respective powers, duties, liabilities and authority under state, local and federal law; counsels our clients on First Amendment matters, including free speech and religious liberty; reviews and drafts covenants, easements, contracts and agreements; provides advice on land use issues and zoning matters; conducts personnel investigations; and revises and drafts municipal ordinances.

He has co-authored an article for the magazine of the California Peace Officers’ Association analyzing the impact of the important federal court decision in Lanier v. City of Woodburn,518 F.3d 1147 (9th Cir. Or. 2008), concerning constitutional limitations on state action mandated by the Fourth Amendment.

Mr. Neumeyer is the director of Jones & Mayer’s pro bono program which provides free legal assistance to low income clients of the La Habra Family Resource Center and the Santa Ana Public Law Center.

While at Georgetown, Mr. Neumeyer interned at the District of Columbia Superior Court for the Honorable Judge Carol A. Dalton. He also co-founded the Georgetown Law School Chess Club and wrote a weekly column for the Georgetown Law Weekly.