The California Supreme Court ruled that water rates and other local utility charges are considered “taxes” for the purpose of California Constitution Article II, Section 9 and therefore exempt from the referendum process. Wilde v. City of Dunsmuir, No. S252915 (Cal. Supr. Ct., August 2, 2020).
The City of Dunsmuir adopted new water rates
The County of San Diego could not be held liable for damage caused by leakage from a privately-owned storm drain pipe on private property merely because water from public property drained through it. Ruiz v. County of San Diego, 47 Cal. App. 5th 504 (2020).
A storm drain pipe on plaintiffs’ property rusted away,
Kern County’s ordinance banning marijuana dispensaries was validly reenacted because a “material change in circumstances” had occurred since the County previously repealed a similar ordinance in response to a referendum petition. County of Kern v. Alta Sierra Holistic Exchange Service, No. F077887 (5th Dist., March 6, 2020).
In 2011, the County adopted an ordinance banning medical marijuana dispensaries. Opponents of the ban presented a valid referendum petition to the County. In response, the County Board of Supervisors repealed the 2011 ordinance.
In 2016, the County adopted an urgency measure placing a moratorium on new medical marijuana dispensaries. Later that year, California voters passed Proposition 64, a statewide initiative legalizing recreational marijuana. In 2017, the County adopted an ordinance declaring the operation of both recreational and medical marijuana dispensaries a public nuisance.
The County brought nuisance abatement proceedings against the defendant marijuana dispensaries. Defendants argued that both the 2016 and 2017 ordinances violated the Elections Code by reenacting an “essential feature” of the 2011 ordinance despite the successful referendum petition. The appellate court disagreed and crafted a new rule for determining the circumstances under which a county may reenact essential features of an ordinance repealed by referendum.
The Material-Change-in-Circumstances Test
Elections Code section 9145, which governs county referenda procedures, does not provide a time limit for reenacting ordinances previously repealed by referenda. This contrasts with Elections Code section 9241, which prohibits cities from reenacting a protested ordinance within a year after the ordinance was disapproved by the voters. Analyzing the two statutes, the appellate court determined that the legislature’s silence in section 9145 on the “question of procedure involving the protection of the referendum power” left it to the court to create procedures to protect the power.
Continue Reading Counties May Reenact Essential Features of an Ordinance Previously Repealed by Referendum After a “Material Change in Circumstances”
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
Effective January 20, 2020, eviction controls under the San Francisco Rent Stabilization and Arbitration Ordinance (Administrative Code Chapter 37) (the “Rent Ordinance”) apply to any residential units constructed after June 13, 1979, and any residential units that have undergone substantial rehabilitation.
The rent limitations and the eviction controls enumerated in the Rent Ordinance previously applied only to apartment buildings with a certificate of occupancy issued before June 13, 1979. Under San Francisco Ordinance No. 296-19 (the “Haney Amendment”), the “just cause” eviction provisions in the Rent Ordinance now apply to all apartment buildings.
Part of the rationale for the Haney Amendment is to reconcile the eviction controls in the Rent Ordinance with the California Tenant Protection Act, which established statewide rent caps and eviction controls for most residential properties built before 2005. The Tenant Protection Act does not supersede local rent control or eviction protections, so long as the local ordinance is more protective. (For more information about the details of the intricacies of the Tenant Protection Act, see our previous update.)
The Haney Amendment found that the Rent Ordinance is more protective than the Tenant Protection Act because it provides more limited reasons for evicting tenants as well as higher relocation assistance and other tenant protections. Under the Haney Amendment, landlords will now be required to pay relocation fees due under the Rent Ordinance, follow the buyout procedures specified under the Rent Ordinance, and comply with the Rent Ordinance regulations on capital improvements. Except for the rent limitations prescribed under the Rent Ordinance, all provisions of the Rent Ordinance now apply to apartment buildings built after 1979.
Continue Reading San Francisco Expands Just Cause Eviction Protections
The First District Court of Appeal held that the San Francisco County Transportation Authority is a state agency and thus did not need to comply with local public access rules. SF Urban Forest Coalition v. City and County of San Francisco, No. A155098 (1st Dist., Dec. 19, 2019).
The Bay Area County and Transportation
If a referendum petition includes the full text of the subject land use measure, documents referenced in such measure need not be attached to the petition unless they are attached to the measure or expressly incorporated into it by reference. Molloy v. Vu, No. D075593 (4th Dist., Oct. 31, 2019).
The San Diego Board
Continuing a trend toward stricter application of the administrative exhaustion doctrine, an appellate court held that plaintiffs could not bring a takings claims against the Coastal Commission because they did not “present the exact issue” during the administrative proceedings. Greene v. California Coastal Commission, 40 Cal.App.5th 1227 (2019).
Plaintiffs’ beachfront duplex bordered the designated
The San Francisco Jobs Housing Linkage Fee (JHLF) is set to more than double under the “Housing for SF Workers” ordinance recently passed by the San Francisco Board of Supervisors (Ordinance). Mayor London Breed refused to sign the Ordinance, but even without the Mayor’s signature, Housing for SF Workers becomes effective on December 15, 2019.
Operators of an unlicensed alcohol and drug treatment facility in violation of a city’s zoning ordinance could not avail themselves of the California Health and Safety Code’s safe harbor provisions. City of Dana Point v. New Method Wellness, 39 Cal. App. 5th 985 (2019).
New Methods Wellness is licensed to offer mental health and