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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

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.

  • As the City of San Francisco broadly defines the term “lobbyist” to include individuals and companies that spend to encourage the public to communicate with city officials,

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The California Supreme Court has held that information relevant to public business contained in emails or text messages stored on private electronic devices of government officials is subject to disclosure under the Public Records Act. City of San Jose v. Superior Court (Smith), No. S218066 (Calif. Supreme Court, March 3, 2017).

The California Public…

Elections Code section 9222 allows a city council to propose a ballot measure that repeals or amends a prior initiative. In Brookside Investment, Ltd. v. City of El Monte (2d. Dist. No. B267081, Nov. 15, 2016) the court held that section 9222 does not unconstitutionally interfere with the voters’ reserved power of initiative, even when…

In Property Reserve v. Superior Court, S217738 (Cal. Supreme Court, July 21, 2016) the Supreme Court of California held that the precondemnation entry and testing statutes are constitutional when reformed to permit affected property owners the right to have a jury determine damages.

The California Department of Water Resources sought a court order allowing…

Neighbors who were suing to maintain existing neighborhood parking regulations were pursuing their own personal interests and did not qualify for the public interest exception from the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. Because their Brown Act claim had no merit, it was properly dismissed as an anti-SLAPP suit. Cruz v. City of Culver …

The California Supreme Court has resolved a significant split among California appellate courts regarding whether inadvertent disclosure of documents in response to a Public Records Act request results in waiver of the attorney-client privilege pursuant to section 6254.5 of the Act. The court held that this waiver provision applies only to intentional release of a public record, and hence that a public agency’s inadvertent disclosure of a document does not waive applicable privileges.  Ardon v. City of Los Angeles, No: S223876 (March 17, 2016)

An attorney representing the plaintiff in a pending class action against the City of Los Angeles served the City with a request for documents under the Public Records Act. In response, an assistant city administrative officer provided the attorney with approximately 53 documents, among which were three memos containing attorney-client communications. After discovering this, the City notified plaintiff’s counsel that the privileged documents had been produced inadvertently, and requested their return. After plaintiff’s counsel refused, the City filed a motion to compel return of the documents, which was denied by the trial court.

In a published decision, the Second District Court of Appeal affirmed the trial court’s ruling, concluding that production of the documents had waived any privilege pursuant to Section 6254.5 of the Act. The California Supreme Court granted the City’s petition for review of this decision. While review was pending, the First District Court of Appeal decided Newark Unified School District v. Superior Court, No. A142963 (1st Dist. Ct. App., August 1, 2015). As discussed in our report on that case (Court Rejects “Gotcha” Theory of Waiver Under Public Records Act), the First District held that inadvertent disclosure of documents containing attorney-client communications in response to a Public Records Act request does not result in a waiver of the privilege under section 6254.5.…
Continue Reading Inadvertent Disclosure of Documents Under the Public Records Act Does Not Waive the Attorney-Client Privilege