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 “four-fifths 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 Second District Court of Appeal has held that California’s minimum wage law is a matter of statewide concern and hence applies to charter cities as well as general law cities. Marquez v. City of Long Beach, No. B282270 (2nd. Dist., Feb. 25, 2019)
Plaintiffs, employees of the City of Long Beach, filed a
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:
UPDATE: The California Supreme Court has granted review of this case. The issue before the court is: “Can a charter city require state universities that operate paid parking lots within the city to comply with an ordinance that requires parking lot operators to collect from their customers and remit to the city a tax on
A contractual commitment by a public agency to provide financial subsidies to a project triggers prevailing wage even if the subsidies are ultimately never received. Cinema West, LLC. v. Baker, 3 Cal. App. 5th 194 (2017).
Cinema West and the City of Hesperian entered into a development agreement under which Cinema West undertook to
San Francisco voters enacted a measure, Proposition T, that makes significant changes to the city’s rules governing gifts and campaign contributions to city officers, elected officials and candidates.