Legal Digest


Pro-Environment Ruling Overturned In San Bernardino Groundwater Pumping Case

Overturning a trial judge, the Fourth District Court of Appeal has ruled that the private water company Cadiz Inc. and two public agencies did not violate the California Environmental Quality Act in moving forward a groundwater pumping and restoration project in San Bernardino County.

The Center for Biological Diversity and other environmental groups had argued that the project’s environmental review violated CEQA on two major points: First, by making the Santa Margarita Water District the lead agency rather than San Bernardino County; and second, by writing the project description in such a way that the project was characterized as a water conservation project even though it will result in a net loss of water. 

Orange County Superior Court Judge Gail Andrea Andler ruled in favor of the environmental plaintiffs. But the Fourth District overturned her on all of the plaintiffs’ claims. 

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Thomas, Kennedy Seek to Revisit San Remo Ruling

The U.S. Supreme Court declined on April 25 to take a case from Connecticut that would have overturned the 1985 case Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172, a pre-First English case in which the court ruled that property owners seeking to a regulatory taking case in federal court have to first ensure that all administrative remedies at the local or state level are exhausted and then seek compensation through whatever mechanism is provided by the state.

However, Justices Clarence Thomas and Anthony Kennedy dissented from the denial of certiorari in Arrigoni Enterprises v. Town of Durham, saying they wanted to use the case to revisit the questions about Williamson County raised in the dissent in the 2005 Supreme Court case, San Remo Hotel v. San Francisco, 545 U.S. 323. That case involving a dispute going back decades over payment of an in-lieu fee or provision of replacement units when a hotel is converted from residential to tourist use. 

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State "Incentives" To Charter Cities To Use Prevailing Wage Struck Down

A state law that prohibits charter cities from receiving state funds for a public construction project if it allows the contractors to not pay prevailing wage has been upheld by a split appellate court.

Writing for a two-justice majority in City of El Centro v. Lanier, Fourth District Court of Appeal Justice James McIntyre concluded that Labor Code Section 1782 does not violate Article XI, section 5(a) of the California Constitution, which provides home rule authority and Article XIII, section 24(b), which prohibits the state from restricting the use of local tax revenues.  McIntyre ruled that wage levels on public construction projects are a local matter and that Section 1782 does not create a conflict with state law governing charter cities, which is derived from the home rule provision in the Constitution.

“Section 1782 does not conflict with these charter city laws as it does not mandate or require that charter cities do anything, such as paying prevailing wages for its public works projects,” he wrote. “Rather, section 1782 provides the Cities with a choice, to meet the requirements set forth in section 1782 to obtain state funding or financial assistance on its public works projects, or forgo eligibility for those funds.”

City Doesn't Inherit Redevelopment Housing Obligations, Appellate Court Rules

In the latest chapter of a long-running legal battle over affordable housing and redevelopment in Fontana, the Fourth District Court of Appeal has ruled that the city is not required to take on the former redevelopment agency’s affordable housing obligations.

“Under the scheme adopted by the Legislature under AB 26 [the law abolishing redevelopment], the liabilities of dissolved RA’s [redevelopment agencies] are limited to the assets transferred to successor agencies,” wrote Acting Presiding Justice Patricia Benke for a unanimous three-judge panel. “There is nothing in AB 26, or later amendments, that would exend that liability beyond an RA’s assets to municipalities and their general funds.” Prior to the dissolution of redevelopment agencies, Benke noted, low- and moderate-income liabilities “were never the liabilities of municipalities and their general funds.”

Fontana’s redevelopment agency had a long and litigious history in dealing with state affordable housing requirements. As laid out in a previous case, Fontana Redevelopment Agency v. Torres, 153 Cal.App.4th 902 (2007), the agency did not meet its low- and moderate-income housing obligation – in large part because of a complicated 1992 agreement with a developer that was a predecessor in interest to an entity now known as Ten-Ninety Ltd. 

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Upland Mobile Dispensary Ordinance Not Subject to CEQA, Court Rules

In the second medical marijuana ruling out of the City of Upland in the last week, the Fourth District Court of Appeal has ruled that Upland’s ban on mobile medical marijuana dispensaries is not subject to the California Environmental Quality Act. 

Among other things, the court concluded that the assertions by the Union of Medical Marijuana Patients (UMMP) about the potential impact of the ban – for example, that medical marijuana patients would have to drive to other cities – were too speculative to be considered “reasonably foreseeable” under CEQA.

Last week, the Fourth District ruled that Proposition 218 does not apply to an initiative to overturn the ban. 

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Denial of Upzoning Might Create Disparate Impact Under Fair Housing Law, Ninth Circuit Rules

The Ninth U.S. Circuit Court of Appeals has reversed a trial judge and ruled that the City of Yuma’s refusal to approve an upzoning might constitute a disparate racial impact under the federal Fair Housing Act.

The case involved a request by development entities associated with Hall Construction, as well as the underlying property owner Avenue 6E, to allow 6,000-square-foot lots rather than 8,000-square-foot lots in a neighborhood in southeastern Yuma, a city on the border of both California and Mexico. Both lot sizes are permitted under the city’s general plan. 

Writing for the the Ninth Circuit, veteran Circuit Judge Stephen Reinhardt, the last remaining federal appeals judge appointed by Jimmy Carter, concluded that the allegations made by the developers “provide plausible circumstantial evidence that community opposition to Developers’ proposed development was motivated in part by animus, and that the City Council was fully aware of these concerns when it took the highly unusual step of acceding to the opposition and overruling the recommendations of its zoning commission and planning staff.”

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One Win, One Loss For Cities In Marijuana Cases

Local governments in the Inland Empire won one and lost one in rulings about medical marijuana, both from the same panel of justices on the Fourth District Court of Appeal.

In a case from Palm Springs, Division Two of the Fourth District ruled that the city’s medical marijuana ordinance is not pre-empted by federal law.

In a case from Upland, the same panel ruled that a medical marijuana initiative that qualified for the ballot in Upland must be scheduled for a special election, rather than waiting for a general election.

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Disputed Redevelopment Funds Can't Be Withheld, Court Rules

Under Proposition 22, neither the state Board of Equalization nor a county auditor-controller can constitutionally withhold tax funds as part of a redevelopment dispute, as called for by AB 1484, the 2012 bill that cleaned up the redevelopment wind-down, the Third District Court of Appeal has ruled.

The ruling represents a minor and belated victory for the League of California Cities, which wrote Prop. 22 and got it passed in 2010 expressly to stop the state from taking redevelopment funds – only to be outflanked by Gov. Jerry Brown a year later when he abolished the entire redevelopment system. 

In setting the rules for the post-redevelopment world, AB 1484 authorized the Board of Equalization to withhold sales and use tax funds, and county auditor-controllers to withhold property tax funds, as a way of forcing cities and counties to turn over disputed redevelopment funds. But the Third District found these provisions unconstitutional on their face under Prop. 22.

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Second District Upholds L.A. Billboard Restrictions

The Second District Court of Appeal has ruled that the City of Los Angeles’s ban on billboards advertising offsite businesses is not content-based and therefore not subject to the “strict scrutiny” test under free-speech clauses in either the U.S. or California constitution.

The case was brought by Lamar Outdoor Advertising, which submitted 45 applications for offsite billboards after the ordinance was adopted and saw all 45 denied. 

Written by Justice Beth Grimes, the ruling essentially follows the same legal reasoning as similar rulings by the Ninth U.S. Circuit Court of Appeals regarding the same L.A. billboard ban. In concluding that the ordinance conforms with the California Constitution’s free speech clause, Grimes relied in part on the Fourth District’s recent ruling in City of Corona v. AMG Outdoor Advertising, Inc. (2016) 244 Cal.App.4th 291 – a case in which, ironically, the appellate court highlighted the contrast between AMG, which did not comply with Corona’s rules for phasing out billboards, and Lamar, which did comply.

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How Scalia Found His Voice

Thirty years ago, in his first big majority opinion -- a land-use case from the California coast -- Antonin Scalia found the colorful and irreverent style that came to distinguish his career on the Supreme Court. And with one clean swipe, he knocked William Brennan out of the box and became the intellectual leader of the court.

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