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The City of Lafayette violated the Brown Act by not including a litigation threat discussed in closed session in the agenda packet made publicly available before the meeting, but plaintiffs failed to show any prejudice resulting from the violation. Fowler v. City of Lafayette, 46 Cal. App. 5th 360 (2020).

Homeowners sought approval from the City build a cabaña near a tennis court on their property. Plaintiff neighbors appealed the Planning Commission’s approval to the City Council. During consideration of the appeal, the homeowner’s attorney threatened to sue the City if it denied the project. The City Attorney notified the City Council of the litigation threat orally in a closed session. The threat was not noted in the agenda for any of the public meetings, and there was no mention of it in the information packets made available to the public before the meetings. At its final public meeting, the City Council denied the appeal and upheld the Planning Commission’s approval of the application.

Plaintiffs sued, contending that the City violated the Brown Act by discussing the application in closed hearings, and that plaintiffs were deprived of their right to a fair hearing.

Brown Act Violation

Plaintiffs claimed the City violated the Brown Act by failing to announce or make available for public inspection the litigation threat that served as the basis for closed session discussions. The City argued it was not required to include the litigation threat in the pre-meeting agenda packet because the threat was not distributed in written form to the City Council. The court of appeal rejected this argument, stating that under the Act, the record of a litigation threat to be discussed in closed session must be reduced to writing and included in the agenda packet made available upon request before a meeting. Therefore, the City violated the Brown Act.…
Continue Reading Brown Act Violation Did Not Require Nullification of Project Approval Where No Prejudice Was Shown

Bay Area Public Health Officers issued revised shelter-in-place orders on April 29 allowing resumption of all construction projects, outdoor businesses and real estate transaction services, with safety protocols specified in the orders. The revised orders, which will be in effect from May 4 – 31, 2020, cover everyone living or working in the counties of…

On March 31, six Bay Area counties—Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara—jointly issued new shelter-in-place restrictions that expand, clarify, and extend certain restrictions until May 3, 2020. Previous county orders issued on March 16 allowed almost all Bay Area housing construction to continue, as well as certain other construction projects

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As the widespread economic impacts of the coronavirus (COVID-19) worsen, Governor Gavin Newsom has issued Executive Order N-28-20 to assist Californians experiencing financial hardship. The order implements measures specifically aimed at helping homeowners, tenants, borrowers and others that have lost their source of income due to business closures or layoffs in the wake of COVID-19.…

A court of appeal upheld the City of Madera’s interpretation of a municipal code provision requiring “a five-sevenths vote of the whole of the [City] Council” as mandating the approval of five councilmembers, rather than a five-sevenths vote of the councilmembers voting on the matter. Lateef v. City of Madera, No. F076227 (5th Dist., Feb. 14, 2020).

Plaintiff appealed to the City Council after his application for a conditional use permit to sell alcohol at a convenience store was denied by the Planning Commission. The City has a seven-member City Council. At the time of the hearing on plaintiff’s application, one council seat was vacant, and one councilmember recused himself from voting.  Thus, only five councilmembers were present and eligible to vote. The City Council voted four to one to overturn the Planning Commission’s decision. The City Clerk initially announced that the motion had passed, but the City ultimately determined that the motion failed to meet the requirement in Municipal Code that “five-sevenths vote of the whole of the Council shall be required to grant, in whole or in part, any appealed application denied by the Commission.”

Plaintiff filed suit, arguing (1) the City was required to grant his appeal because the Municipal Code requires a five-sevenths vote of the councilmembers present and voting, and (2) he was denied a fair trial because the recused councilmember and vacant seat were improperly included in counting the number of votes needed to grant his appeal.…
Continue Reading “Whole of the Council” Meant All City Councilmembers, Not Just Those Present and Voting

On March 16, 2020, in response to the COVID-19 (coronavirus) global pandemic, seven counties – Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and Santa Cruz – issued orders requiring residents to shelter in place and mandating closure of many businesses. The orders exempt certain “essential” business operations, which include the “construction of housing,” from these restrictions. This article addresses the narrow question whether and to what extent the orders allow or prohibit activities related to the construction of housing.

The exact wording of each order differs slightly, but the substance is the same. Each contains language similar to the following:

For purposes of this Order, individuals may leave their residence to provide any services or perform any work necessary to the operations and maintenance of “Essential Infrastructure,” including, but not limited to, public works construction, construction of housing (in particular affordable housing or housing for individuals experiencing homelessness), airport operations, water, sewer, gas [and] electrical . . . provided that they carry out those services or that work in compliance with Social Distancing Requirements as defined this Section, to the extent possible.

The orders are new and untested.  We expect to learn more in the next few days about how the orders will be interpreted and applied. However, applying common-sense meanings in light of the intent of the orders to allow continued homebuilding appears appropriate.

Work “Necessary” to Housing Construction.  The orders expressly exempt housing construction activities, as confirmed in notices being distributed by some (but not all) city and county officials. The details of exactly which associated services are exempted is less clear. The California Building Industry Association is taking the position that permit, inspection and other services are also “necessary” to accomplish the construction of housing and therefore exempt, including plan checks, issuance of building and grading permits, inspections for permits and certificates of occupancy, utility hook-ups, and recordation of necessary documents such as mechanics liens, tax liens, easements, financing instruments, covenants, conditions and restrictions, and title transfers. The issue of whether title companies and recordation offices may remain open is especially complicated in light of factors other than these orders, but the position taken by the CBIA comports with the literal language of the orders.  Another issue not expressly addressed is whether activities needed for occupancy of a residence, such as appraisals, home inspections, and visits by prospective homebuyers or tenants, may occur. The intent of the orders supports the conclusion that these activities are exempt as well.…
Continue Reading COVID-19 Shelter-In-Place Orders Exempt Activities Necessary for the Construction of Housing

Cities and other political subdivisions lack standing to mount a constitutional challenge in federal court against an administrative decision by a state agency. City of San Juan Capistrano v. California Public Utilities Commission, 937 F.3d 1278 (9th Cir. 2019).

The City of San Juan Capistrano sued in federal court to set aside a decision…

The California Legislature just sent another “stop me before I vote again” bill to the Governor.  Assembly Bill 890 proposes to limit severely the scope of voter-sponsored, pro-development land use initiatives.  The Governor has until October 15th to decide whether to sign the bill into law.  The actual effect of AB 890, if enacted, may need to be resolved in litigation.

*** Update:  On October 15th, Governor Brown vetoed AB 890 ***

The bill would enact new provisions of the Government Code that delegate exclusive authority to city councils and boards of supervisors to determine certain general plan, specific plan and zoning decisions.  Courts have determined that when the legislature delegates authority over an issue exclusively to councils and boards, voter action regarding those issues is precluded.  However, AB 890 also purports to preserve to the voters their power of referendum, and to allow councils and boards of supervisors to place pro-development measures on the ballot.  AB 890 also proposes to prohibit the approval or amendment of a development agreement by initiative, while retaining provisions of existing law which state that a development agreement is a legislative act subject to referendum.  AB 890 states that it applies to charter cities as well as general law cities.

The general plan, specific plan and zoning decisions that would be exclusively delegated under AB 890 (and therefore could not be pursued in a voter-sponsored initiative) are those that would:

  • Convert a discretionary land use approval necessary for a project to a ministerial approval.
  • Change a land use designation or zoning district to a more intensive designation or district, with the most intense use defined as industrial uses, followed by commercial uses, office uses, residential uses, and then agricultural or open-space uses.
  • Authorize more intensive land uses within an existing designation or district.

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Continue Reading Legislature Seeks To Prevent Local Voters From Enacting Many Types of Pro-Development Initiatives