On August 19, 2021, the Second District Court of Appeal decided Save Our Access-San Gabriel Mountains v. Watershed Conservation Authority (Aug. 19, 2021, No. B303494), upholding an EIR’s finding of no significant impact under CEQA, where a project’s reduction in parking protected the environment, rather than adversely affected it.

The case involved a project in the Angeles National Forest to “provide recreational improvements and ecological restoration to address resource management challenges with a focus on reducing impacts along the most heavily used section of the [San Gabriel] river.” The area was already heavily used for recreation. Visitors historically parked in the few designated spaces and in numerous undesignated locations along the road, often on vegetation. During peak days, visitor parking was crowded and inadequate.  The proposed project created considerably more designated parking spaces and locations for shuttle access.  However, the parking design prevented parking in undesignated areas. The EIR acknowledged this would cause “a reduction in parking space availability compared to the existing condition when considering the use of undesignated parking spaces. As a result, there would be an impact to the number of visitor vehicles able to safely park on the project site.” The EIR concluded the proposed project “‘would have less than significant impacts on recreation.’”

Save Our Access-San Gabriel Mountains, which appears to be an unincorporated association formed for this case, sued the Authority challenging certification of the EIR on multiple grounds, including the reduction of already limited parking. The trial court granted a writ of mandate on the parking issue, directing the Authority “to articulate and substantiate an adequate parking baseline for the project, and to reassess the significance of the impacts resulting from the project’s parking reduction.”  The trial court also awarded $154,000 in attorney fees under the private attorney general doctrine.

The  Court of appeal reversed both the writ and the fee award.  The Court explained that the “nature of this project, the applicable law, and the information disclosed in the draft EIR support the conclusions that defendant proceeded as required by law, and the EIR is sufficient as an informative document. Defendant disclosed the reduction in parking, and properly found the proposed project ‘would have less than significant impacts on recreation.’ That is all it was required to do.”

In fact, the Court found it “strange that plaintiff attacks the EIR for not converting more wilderness open space to parking or, alternatively, for not continuing to permit parking in fragile natural areas that have become degraded by erosion, trash, and habitat trampling.”  It continued:  “Since when was environmental protection focused on promoting and expanding parking in protected wilderness monuments? Plainly, reducing and formalizing parking spaces in the San Gabriel River and adjacent canyon recreation areas will protect and restore the environment. Plaintiff has identified no adverse physical impact on the environment that results from the reduction in parking, much less a ‘potentially substantial, adverse change in any of the physical conditions within the area affected by the project.’ (Guidelines, § 15382.) Nor has plaintiff proffered evidence of any secondary adverse environmental effects of reduced parking, such as on traffic or air quality at the project site.”  (Original emphasis.)

The Court of Appeal emphasized that, in analyzing parking impacts, “the circumstances of [the] case […] are determinative.” The Court distinguished San Franciscans Upholding the Downtown Plan v. City & County of San Francisco (2002) and Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) based on the significant difference in how reduced parking impacts the environment in urban versus wilderness settings.

“The project in San Franciscans would attract crowds downtown without providing parking for the people who might prefer to drive, but the parking deficits would have the environmentally desirable effect of increasing reliance on mass transit. In contrast, the project in Taxpayers would attract out-of-area evening crowds to a suburban neighborhood with narrow streets where residents would have a hard time finding parking when they returned home at the end of the day. This project in the Angeles National Forest would better manage the heavy recreational use by designating parking near picnic areas, restrooms and trash bins, and also protect the wilderness from further erosion and other damage caused by vehicles parking throughout the site, and by people leaving behind their trash and polluting the water in areas not designated for parking. The parking reduction here may have an adverse social impact for those who must recreate elsewhere, but it will prevent further adverse physical impacts on the environment. “

The Court also found the EIR to be consistent with land use plans, chiding Save Our Access for taking a position that improperly “elevates public access for recreation above all other objectives” of the project.

While reducing parking can create a significant and negative environmental impact in an urban setting, it can protect wilderness. Save Our Access-San Gabriel Mountains v. Watershed Conservation Authority underscores the importance of context in analyzing environmental impacts of a project under CEQA.

The D.C. Circuit recently held public employees’ browsing history is not an “agency record” subject to the Freedom of Information Act (“FOIA”). (Cause of Action Institute v. Office of Management and Budget (D.C. Cir. Aug. 20, 2021, No. 20-5006) ___ F.4th ____ [2021 WL 3699794] (Cause of Action Institute).) Cause of Action Institute sued the Office of Management and Budget (“OMB”) and the Department of Agriculture (“USDA”) to obtain browser histories of the OMB Director, the OMB’s Associate Director of Strategic Planning and Communications, the Secretary of Agriculture, and the USDA Director of Communications.

Under FOIA, an “agency record” is a document the agency both (1) creates or obtains and (2) controls at the time the FOIA request was made. (Cause of Action Institutesupra, 2021 WL 3699794 at p. *3.) In Cause of Action Institute, the parties did not “dispute the agencies created the browsing histories,” so the court treated the first element as conceded. (Cause of Action Institutesupra, 2021 WL 3699794 at p. *3, fn. 2.) However, the court stated “It is far from clear … that the agencies created the browsing histories within the meaning of FOIA. Agency employees in some sense create a history through their internet browsing, but the browser automatically generates the history.” (Ibid.) This suggests not all records created by automated processes are public records – there must be some intent to create a record for it to fall under FOIA

Whether browser histories are agency records depends on the “totality of the circumstances,” control being one consideration. “Factors that determine whether an agency controls a document may include: ‘(1) the intent of the document’s creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency’s record system or files.’ ” (Cause of Action Institute, supra, 2021 WL 3699794 at p. *3.) “Mere authority to control … is not enough. The relevant consideration is how much control the agencies actually asserted over the documents at issue.” (Id. at p. *4.) California applies the same rule to public records requests. (Anderson-Barker v. Superior Court (2019) 31 Cal.App.5th 528, 540 [contractual right to access data “data does not equate to a form of possession or control”].)

The Court held browser histories are not agency records. The agencies did not express intent to retain control over employees’ browser histories. (Cause of Action Institutesupra, 2021 WL 3699794 at p. *4.) Although both OMB and USDA extended the retention period for Internet Explorer, they left other browsers’ default settings in place and allowed employees to manage their browser histories on work and personal devices. (Ibid.) The agencies did not attempt to preserve the browser histories when performing updates or include them in their records retention system. (Id. at pp. *4, *6. [“agencies lacked the requisite intent to retain and to control the browsing histories”].) The Court also found the agencies restricted access to employees’ browser history and did not actually use browser history data. (Id. at p. *5 [“Actual use is often ‘ “the decisive factor” ’ when determining whether a requested document is an agency record”].)

This case is helpful to public agencies because it brushes back the argument that data created automatically is a public record. It shows the agency must actually exercise some control over the data or rely on it in making a decision. The mere existence of an automatically generated record is not enough to bring it within FOIA.

Although cannabis is legal in California, it remains illegal under federal law. This controversy hamstrings cannabis businesses, as they are unable to use the services of federally regulated banking institutions and must do business in cash, creating risks for them and everyone they do business with — including local governments. Most banks avoid doing business with the cannabis industry to avoid federal regulations and penalties tied to cannabis, although a few banks and credit unions have taken the risks associated with serving this market.

In California, some of that risk was mitigated by last year’s A.B. 1525 (Jones-Sawyer, D-Los Angeles), which provided a state-law haven for banks servicing cannabis businesses. Codified as California Business and Professions Code section 26260, the statute affirms that banks which serve cannabis businesses have not committed a crime under California law. As this statute indicates, California is one of the nation’s leaders in cannabis legislation, plowing fresh legal ground.

Now, after an earlier version stalled out in Congress in 2019, the Secure and Fair Enforcement (SAFE) Banking Act (H.R. 1996) is back. The SAFE Banking Act passed the House in April 2021 and is currently pending in the Senate Committee on Banking, Housing, and Urban Affairs. This bill would create a federal safe harbor for banks that service legal cannabis businesses. It states that proceeds of legitimate cannabis businesses are not proceeds of unlawful activity and are not at risk of seizure under anti-money-laundering laws.

What would the SAFE Banking Act mean for Californian cities and counties? As the costs and risk of cannabis commerce fall, local governments are likely to see an uptick in cannabis business activity. The impact on local small cannabis business will be significant. Right now, cannabis is primarily a cash-based business, but safer banking means that loans for expansion or better equipment, and other financial benefits would be more accessible.

Public health might also see a small improvement from the Act. Cash-based businesses cannot emphasize contact-free payments as other businesses do. The epidemic demonstrated the value of minimizing unnecessary contact, such as cash-handling, between those not of the same household. With the Act, more cannabis businesses can make the transition to no-contact forms of payment, decreasing risk of disease transmission.

Another benefit for local governments is in tax collection — passage of the Act would save local governments (and the State) the burdens of counting and securing large amounts of cash that also create a risk of opportunistic crime.

A minor decrease in air pollution and road congestion due to vehicles transporting cash from businesses to recipients might also result.

Without banking services, the cannabis industry cannot grow. Whether or not a city or county allows the sale of cannabis, the Act may be worthy of broad support among California’s local governments for the reasons noted above.

This is a developing story. As always, we’ll keep you posted!

On June 11, 2021, Governor Newsom issued Executive Order N-08-21[1] to clarify the continued applicability of his previous Executive Orders related to the COVID-19 pandemic. Most notably, Executive Order N-08-21 extends application of Executive Order N-29-20, which allows public agencies to hold teleconference meetings until September 30, 2021.[2] This provides some assurance of the timeline to transition back to entirely in-person meetings as the Legislature considers permanent relaxation of the impractical pre-COVID requirements for electronic participation in meetings. Executive Order N-08-21 also scheduled the repeal of other prior Executive Orders relevant to the City on June 30th, 2021 and September 30, 2021.

As many public agencies have referenced Executive Order N-29-20 in agenda formats over the last year, it is now time to update that reference to Order number N-08-21.

BROWN ACT REQUIREMENTS

Executive Order N-08-21 extends Paragraph 3 of Executive Order N-29-20, which allows public meetings to be conducted by teleconference without full compliance with the Brown Act. Specifically, under Executive Order N-08-21, the following Brown Act provisions continue to be suspended until September 30, 2021:

  1. Each teleconference location from which a member will be participating in a public meeting must be noticed;
  2. Each teleconference location must be accessible to the public;
  3. Members of the public may address the body at each teleconference location;
  4. Agendas must be posted at each teleconference location;
  5. During teleconference meetings, at least a quorum of the members of the local body must participate from locations within the agency’s territory.

While an agency holds teleconference meetings, it must continue to allow the public to observe and to address the meeting telephonically or otherwise electronically (as by email or via a website or app). It must also maintain a system to accept requests from individuals with disabilities for modification of access requirements. An agency need not make a physical location available for members of the public to observe and to offer public comment. Agencies must comply with all provisions of the Brown Act other than those listed above for teleconferencing and personal attendance including, but not limited to, timely posting agendas.

Finally, Executive Order N-08-21 extends a previous Executive Order[3] which allowed all members of a Brown Act body to receive updates (including simultaneous updates) on the COVID-19 emergency from federal, state and local officials until September 30, 2021.

Other Changes to Local Government Operations

In addition to the Brown Act requirements described above, Executive Order N-08-21 extends and repeals provisions of other Executive Orders relevant to local government. The following provisions expire as of June 30, 2021:

  • Executive Order N-25-20, Paragraph 7: Reinstatement and work hour limitations for retired annuitants in Government Code section 21220 and 21224(a), and in Government Code sections 7522.56(b), (d), (f), and (g) remain suspended until June 30, 2021.
  • Executive Order N-35-20, Paragraphs 4 and 11:[4] Executive Order No. N-35-20, Paragraph 4 provided that all local ordinances are suspended to the extent they restrict, delay or otherwise inhibit the “delivery of food products, pharmaceuticals, and other emergency necessities.”[5] The Executive Order cited noise ordinances as an example of local regulation that may restrict such deliveries. Such provisions remain suspended until June 30, 2021.
  • Executive Order N-35-20, Paragraph 11: extended the period for people to file claims under the Government Claims Act by 60 days.[6] This was then extended an additional 60 days by Executive Order N-71-20.[7] Claims accruing before June 30, 2021 will remain subject to the 120-day extension granted by the prior Executive Orders. However, claims accruing after June 30 will not be subject to any extension except as provided by the Government Claims Act.
  • Executive Order N-63-20, Paragraph 10:[8] Under Executive Order N-63-20, any notice required by State law to be posted on an “employee bulletin board” was required to be provided electronically. This requirement exists only until June 30, 2021.

Under Executive Order N-08-21, the following provisions relevant to public agencies expire as of September 30, 2021:

  • Executive Order N-32-20, Paragraphs 1, 2 and 3,[9] which suspended enforcement of Health & Safety Code and Public Resources Code sections prohibiting cities from using Homeless Emergency Aid Program funds to house and purchase sanitizing supplies for homeless individuals. This suspension concludes on September 30, 2021.
  • Executive Order N-42-20,[10] which restricted urban and community water systems from discontinuing water service due to non‑payment. This means the City can begin to terminate water service for non-payment as of September 30, 2021. Requirements of Senate Bill No. 998 for disconnection of water service will continue to apply.
  • Executive Order N-03-21, Paragraph 3,[11] which extended the time period for waiver of State law provisions preempting local ordinances that ban or restrict commercial evictions. In other words, local agencies may continue to halt commercial evictions under authority granted by the Governor until September 30, 2021.

N-07-21: Revocation of Stay-at-Home Order

On June 11, 2021, the Governor also issued Executive Order N-07-21[12] which rescinded the Governor’s Stay-at-Home Order.[13] Executive Order N-07-21 also rescinded the Executive Order[14] directing the State’s Public Health Officer to create a framework for reopening the economy and impose restrictions on businesses and activities based on that framework. The State’s Stay-at-Home Order and the color-coded county-based framework for COVID-19 restrictions are no longer in place as of June 15, 2021. That means that restrictions on physical distancing, capacity limits on businesses, and the county-tier system have ended.[15] Mask requirements for the public will be set by the California Department of Public Health and by Cal/OSHA for employees. Counties may also set more restrictive public health guidelines than does the State.[16]

Conclusion

Executive Order N-08-21 allows local governments to continue its public meetings by teleconference until September 30, 2021, at which time we expect a return to general requirements of the Brown Act. Local agencies should plan to transition to in-person meetings by September 30, 2021.

[1] Governor’s Exec. Order N-08-21 (June 11, 2021).

[2] Governor’s Exec. Order N-29-20 (March 17, 2020).

[3] Governor’s Exec. Order N-35-20 (Mar. 21, 2020).

[4] Governor’s Exec. Order No. N-35-20 (Mar. 21, 2020).

[5] Id., ¶ 4.

[6] Government Code, § 810 et seq.

[7] Governor’s Exec. Order N-71-20 (June 30, 2020), ¶ 6.

[8] Governor’s Exec. Order N-63-20 (May 7, 2020), ¶ 10.

[9] Governor’s Exec. Order N-32-20 (Mar. 18, 2020).

[10] Governor’s Exec. Order N-42-20 (Apr. 2, 2020).

[11] Governor’s Exec. Order N-03-21 (Mar. 4, 2021).

[12] Governor’s Exec. Order N-07-21 (June 11, 2021).

[13] Governor’s Exec. Order N-33-20 (Mar. 19, 2020).

[14] Governor’s Exec. Order N-60-20 (May 4, 2020).

[15] Safely Reopening California, https://covid19.ca.gov/safely-reopening/ [as of June 15, 2021].

[16] Governor’s Exec. Order N-07-21 (June 11, 2021), ¶ 4.

As California battles wildfires that seem fiercer, larger, and longer each year, cities around the state are tackling fire prevention and recovery. The main injuries from fires are obvious: loss of life and property, poor air quality, and damaged environments. Yet there are less obvious, more insidious consequences of wildfires that can be just as serious. One such example is water contamination from man-made sources, not just ash pollution, char, and sediment.

As a wildfire moves through a community, it can rupture fire hydrants, burn meter boxes, and melt pipes. Pollutants from burning vegetation and buildings, as well as melted plastic, burnt building materials, and fire-fighting chemicals leach into the water supply. That water may be used for firefighting, spreading the contaminated water to new places, or for drinking, causing discomfort, severe illness, or death.

The risk of water toxicity does not diminish when the fire is gone. Pollutants linger once the flames have been put out, collecting in surface water, or leaching into groundwater. Pipes made of plastic and other materials may absorb chemicals from the first burst of contaminated water that flows through the pipes, then slowly leach the absorbed chemicals back into clean water that moves through the pipe. Depending on the material, plastic pipes or plastic components of water systems can melt or decompose, sending chemicals into the water. Airborne toxic chemicals may be sucked into water systems during periods of low pressure, then vaporized in hot water, making hot showers or boiling water on the stove riskier than usual.

So how can cities combat these dangers? First, building codes can be utilized to improve wildfire safety in buildings. Tools such as backflow prevention devices or fire-resistant meter boxes can decrease chemical leaching and melting plastic. Local building codes can be updated to incorporate fire-safe building materials or water systems less likely to absorb toxic chemicals. Second, spreading information and combating misinformation about the dangers of post-wildfire recovery is critical when preventing illness or death due to toxic water. Cities can boost information about water safety in the period during and after a fire on social media, informing their population on minimizing exposure to pollutants, thereby saving lives. Finally, coordinating with water regulators and agencies to test, retest, and test again before allowing citizens to resume use of water. Examining the local water supply post-wildfire can ensure that cities understand the state of their water supply and provide accurate information about toxicity levels to their citizens.

When it comes to preparing for fire season, a comprehensive approach is needed. Even though water toxicity is less immediate than fire safety, it can be a crucial piece of the fire recovery puzzle. Every bit a city does to prepare may save a life.

For the water toxicity study, please visit https://awwa.onlinelibrary.wiley.com/doi/full/10.1002/aws2.1183

CHW’s quarterly newsletter on public law topics is out. You can see it here.

This issue has articles on:

  • Developments in the California supreme Court regarding municipal revenues;
  • The SB 1383 mandate for organics recycling and efforts to soften the pending deadlines for local governments; and,
  • A recent Court of Appeal decision construing new housing laws broadly against charter city home rule authority.

We also touch on the firm’s current webinar offerings. You can see that listing here.

Check it out!

The California Department of Finance has now posted a weblink to the form cities can use to request American Rescue Plan Act funds here. Both City’s designated contact person for State-issued Coronavirus Relief Funds and the City Manager should receive a unique username and password to log into the Department of Finance’s webform application.

The application must include the information some basis information about the city, including:

  1. City name, Taxpayer ID Number, DUNS Number, and Address;
  2. Authorized representative name, title, and email;
  3. Contact person name, title, phone and email;
  4. Financial institution information.

In addition, the City must sign and return a copy of the Award Terms and Conditions (available here), the Assurances of Compliance with Title VI of the Civil Rights Act of 1964 (available here), and a Certification Form (available here).

Applications are due no later than June 23, so be sure to timely submit your application materials!

Cal/OSHA held a special meeting on June 9 to discuss potential revisions to the COVID-19 Emergency Temporary Standard adopted on June 3, in light of California Department of Public Health mask guidance issued on June 9. The Cal/OSHA Board voted to withdraw the revisions to the COVID-19 regulations adopted on June 3. Cal/OSHA staff will bring another proposal to the Board on June 17.

The June 17 proposal is expected to modify the Regulations adopted last week to align with the new CDPH guidance. Most notably, the CDH guidance states masks are not required for unvaccinated individuals in most circumstances, including indoors unless in specific facilities. Unvaccinated individuals are still required to wear masks “in indoor public settings and businesses (examples: retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public).” Based on discussion at the Cal/OSHA meeting, the June 17 amendments to the Regulations are expected to focus solely on updating face covering requirements, not other requirements from the Regulations adopted last week like physical distancing.

The Regulations in effect before June 3 remain in effect until Cal/OSHA adopts a new version.

After a marathon 10-hour meeting on June 3, the California Division of Occupational Safety and Health (“Cal/OSHA”) Occupational Safety & Health Standards Board has approved revisions to its COVID-19 Emergency Temporary Standards. (8 C.C.R., §§ 3205 et seq.)

Most notably, all employees must still wear face coverings when indoors or when outdoors and less than six feet from another person, regardless of vaccination status. There are only limited circumstances when employees are not required to wear face coverings, including new exceptions for vaccinated employees either: (1) when all persons in a room are fully vaccinated and not displaying COVID-19 symptoms; or (2) when a vaccinated employee is outdoors and does not have COVID-19 symptoms. This is more stringent than the Centers for Disease Control and Prevention’s guidance on masks for vaccinated individuals, which recommends allowing fully vaccinated individuals to resume most activities without wearing masks or physically distancing. The regulations also tighten the definition of face covering to expressly exclude “scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.”

In addition, Cal/OSHA’s regulations require employers to comply with one of the two following provisions until July 31, 2021:

  1. All employees working indoors or at outdoor mega events must be separated from other individuals by at least six feet, regardless of vaccination status, unless:
    1. The employee is wearing a respirator required by his or her employer pursuant to a respirator protection program;
    2. The employer can demonstrate six feet of separation is not feasible, and the employees are kept as far apart as possible; or
    3. There is only momentary exposure while persons are in movement.
  2. All employees who are not fully vaccinated are provided respirators for voluntary use in compliance with requirements of a respiratory protection program under 8 C.C.R. section 5144(c)(2).

In other words, employers can either continue to require physical distancing or instead implement voluntary respirator use for unvaccinated employees. As of July 31, 2021, employers must offer respirators to all unvaccinated employees who are working indoors or outdoors at mega events and is no longer required to enforce physical distancing. Employees’ use of respirators, as opposed to regular face coverings, is voluntary. Respirators include any device “approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.” The respirators must be provided consistent with 8 C.C.R. section 5144(c)(2) which requires, among other components, the City determine use will not create a hazard for its employees.

We do not expect this current iteration of the regulations to last long. At its June 3 meeting, the Occupational Safety & Health Standards Board initially rejected the proposed revisions, then accepted them only after first agreeing to form a subcommittee to promptly review potential amendments. The Board expressed intent to bring back additional regulations in July. We will keep you up-to-date as those potential changes become available!

The Legislature continues its efforts to increase the state’s housing supply, regardless of local land use policies and priorities. Senate Bill 9, introduced by Senate President Pro Tem Toni Atkins, will require cities to approve by right through ministerial action up to four units on existing single-family parcels.  Senate Bill 9 has passed the State Senate and is now pending in the Assembly. The bill is opposed by many cities and Cal Cities. Senate Bill 9 would require up to four residential units to be allowed per existing lot in most single-family residential zones statewide, without any discretionary review.  Recent amendments to the bill clarified that the intent is that this applies to charter cities as well as general law cities.

The bill requires ministerial approval of a lot split into two separate lots, and requires cities to approve most projects constructing two units on any single-family residential parcel. This expands the existing law requiring cities to approve accessory dwelling units, commonly known as second units, to now encompass two full-scale residential units on each single-family zoned parcel. Cities and counties would be limited to imposing objective zoning and design standards, such as height limits and setback requirements, unless those standards would physically preclude the construction of two residential units. Senate Bill 9 does not apply to developments that would require the demolition or alteration of housing that is restricted to very low-, low-, or moderate-income housing, or developments on a registered historic landmark or within a designated historic district. As with recent ADU legislation, local parking requirements are limited if the project is within one-half mile of a transit corridor, or there is a car share vehicle located within one block of the parcel.

Local agencies would be required to consider ministerially “urban lot” splits, defined as being “located within a city the boundaries of which include some portion of either an urbanized area or urban cluster, as designated by the United States Census Bureau, or, for unincorporated areas, a legal parcel wholly within the boundaries of an urbanized area or urban cluster, as designated by the United States Census Bureau.” The minimum size for each resulting lot is 1,200 square feet.  Each lot shall be of roughly equal size.  The bill also contains the same exemptions as Senate Bill 35, prohibiting lot splits on several types of protected lands, e.g. wetlands, very-high fire hazard severity zones, unless the project complies with state mitigation requirements, hazardous waste sites, and conservation easement protected lands.

Under Senate Bill 9 eligible property owners would be able to split an urban lot into two lots, then build a duplex on each lot, and thereby build four units, where previously one unit would have been allowed.

Senate Bill 9 was previously introduced as Senate Bill 1120 during the 2019-2020 legislative session and passed both the Senate and the Assembly, but failed to advance to the Governor’s desk as the Assembly approved an amended version of SB 1120 only three minutes before the midnight deadline late last year, leaving the Senate no time to vote on Senate Bill 1120. The bill continues several years’ past efforts by Senator Weiner and other housing advocates, including the 2019’s Senate Bill 50. The next hearing is set for June 9, 2021 in the Assembly Committee on Local Government.

In 2017, the Court decided California Cannabis Coalition v. City of Upland, a dispute over an initiative to allow marijuana dispensaries in that city. It concluded that an initiative is not subject to some of Proposition 218’s limits on taxes proposed by city councils and county boards of supervisors. Its broad language opened the door to the possibility that a special tax proposed by initiative could be immune from the requirement for two-thirds voter approval. Three Court of Appeal decisions have now walked through that door, concluding that initiative special taxes can be approved by simple majorities of votes — two involving San Francisco (here and here) and one involving Fresno.  All three led to petitions for review in the California Supreme Court and the Supreme Court denied all three petitions. Thus, without deciding a case, the California Supreme Court has made very clear that the law is now settled — special taxes proposed by initiative require only simple majority voter approval.