INTRODUCTION. The Brown Act applies to meetings of local government elected and appointed bodies and is a complex statute governing how government officials behave.  Government Code section 54957.5 requires local governments to make materials distributed to members of a Brown Act body in the 72 hours before a meeting (i.e., after the agenda is typically posted) available to the public at the same time they are provided to the board members. For materials the agency’s staff distributes, this is not problematic.  In this day of ubiquitous electronic communication, any member of the public can distribute materials to Council and Board members, making compliance with this rule much harder.

A recent decision of the Court of Appeal in Sacramento makes this harder still.  This will likely draw discussion in proposals to update the Brown Act to address the reality of electronic communications and virtual meetings post-COVID.

DISCUSSION. Sierra Watch v. Placer County held that even when a writing is distributed outside business hours, local agencies must make it available to the public in hard copy at that time. The appellate court accepted that its holding would require local agencies to keep an office open to the public during evenings and/or weekends when a writing is distributed to a local agency’s legislative body during those times or to withhold late-breaking information (to the extent the agency can control this) from the Board until an office is open. Further, the court observed this rule could enable delaying tactics — a concern in CEQA cases like Sierra Watch — and may also “require counties [and cities] to delay when they distribute material to their board members.” The court’s interpretation will be unworkable for many government offices that are open for only limited hours due to COVID-19. For these reasons, we have asked on behalf of the League of California Cites that the Supreme Court depublish the case, making it final for the parties to it, but not precedent for others.

This case concerns as claim Placer County approved land use entitlements in violation of Section 54957.5. The statute provides in pertinent part:

(a) … [A]gendas of public meetings and any other writings, when distributed to all, or a majority of all, of the members of a local agency by any person in connection with a matter subject to discussion or consideration at an open meeting of the body, are disclosable public records under the California Public Records Act … and shall be made available upon request without delay. …

Under subdivision (b)(1),

If a writing that is a public record … and that relates to an agenda item for an open session of a regular meeting of the legislative body of a local agency, is distributed less than 72 hours prior to that meeting, the writing shall be made available for public inspection pursuant to paragraph (2) at the time the writing is distributed to all, or a majority of all, the members of the body.

The use of the passive voice applies the rule whether an agency’s staff provides information to a legislative body, or a member of the public does. Under paragraph (2) of subdivision (b),

A local agency shall make any writing described in paragraph (1) available for public inspection at a public office or location that the agency shall designate for this purpose. … The local agency also may post the writing on the local agency’s Internet Website in a position and manner that makes it clear that the writing relates to an agenda item for an upcoming meeting.

In Sierra Watch, the Placer County Board of Supervisors posted a meeting agenda in advance of a meeting, noting the Board would consider an ordinance to approve the development agreement for a controversial Tahoe-area resort. At 5:36 p.m. the day before the meeting, County Counsel emailed the County Clerk an updated draft of the agreement, and a memorandum explaining the change. The County Clerk emailed the documents to all board members and promptly made copies publicly available in her office. But that office had closed to the public at 5:00 p.m., to reopen the next morning at 8:00 a.m. The following day, the Board held its meeting, at which it approved the agreement.

Sierra Watch sued, alleging the County violated the Brown Act by failing to make County Counsel’s memorandum available for public inspection when it was distributed to the Board. Sierra Watch argued that placing a document in the clerk’s office after hours meant the writing was only “available for public inspection” when the office reopened. The trial court rejected this contention, finding the County made the memorandum available for public inspection the moment the County Clerk placed it in her office even though it was then closed. Sierra Watch appealed.

The Court of Appeal adopted Sierra Watch’s reading of Section 54957.5. The court also read the statute to disallow local governments to post writings to their websites as an alternative to making hard copy available at an office. Instead, the court held that agencies cannot satisfy Section 54957.5 “merely by posting materials online,” but are required to make hard copy available at a physical location. The court noted that committee analysis of the bill enacting Section 54957.5 interpreted it to allow agencies to alternatively post writings on the internet, but rejected that interpretation.

The court acknowledged its reading of Section 54957.5 could lead to two negative consequences. First, because “counties [cities and special districts] cannot satisfy section 54957.5’s subdivision (b) merely by posting materials online,” “accepting Sierra Watch’s position may at times require counties [and other Brown Act agencies] to delay when they distribute materials to their board members,” leaving boards less time to consider late submissions. Second, this reading could “allow opponents to perpetually delay project approval by submitting last minute comments outside of normal business hours.” For example, if a person emailed all board members comments concerning an item on the board’s agenda in the middle of the night before every meeting, “unless the county staffs its office around the clock” the County cannot assure that writing is made available to the public as Section 54957.5 requires without delaying the meeting.

The court found that the first concern was not “so absurd” as to justify overriding the plain meaning of the statute, and the second concern was not directly raised by the facts at hand. However, it will arise soon enough — the Brown Act applies to each of California’s thousands of local governments. Moreover, this reading has the tail wagging the dog. A statute aimed at public information is read to require Boardmembers be kept in the dark or meetings delayed. Experience teaches that most who engage with government do so electronically when possible, especially during the pandemic. Are we to believe Sierra Watch’s counsel was disadvantaged here because they could not drive from their San Francisco offices to Auburn to inspect a memorandum posted to the County’s website?

As Sierra Watch posits, “[s]uppose that in the middle of the night before every meeting, a member of the public e-mails all board members comments concerning an item on the board’s agenda”? Under this scenario, anyone could cause a local government to violate section 54957.5 by sending agenda material to board members after agency offices close for the day.

Local agencies may be forced to delay meetings when written materials are emailed to board members the night before meetings. Otherwise, a litigant may claim an agency violated Section 54957.5 by proceeding with the meeting. As many government offices have reduced hours of public access due to the pandemic, the problem will be especially acute until the virus relents.

A commonsense reading of Section 54957.5 allows a more sensible result, consonant with the legislative purposes of public access and avoiding needless delay. Section 54957.5 requires a local agency to make writings connected to agendas for upcoming open meetings “available for public inspection at a public office” without specifying the agency must do so outside business hours. The point of the deadline is to avoid government foot-dragging (which the Court of Appeal may have feared here), not to require offices to open overnight or to create a tactic for delay.

Under Sierra Watch, a local agency would comply with Section 54957.5 if it places a document in its clerk’s office a minute before closing on a Friday, but violate it by placing it there two minutes later. But meaningful public access will be the same either way — soft copy will be available when the document is posted to the web and hard copy will not be available until Monday morning. Reading Section 54957.5 to allow local agencies to “make records available at a physical location or alternatively post the records online” avoids this absurd result, as the legislative history suggests.

CONCLUSION. We should know whether the California Supreme Court will depublish Sierra Watch by early next year. But, until the Legislature clarifies that web posting is sufficient, this argument can arise again. When the stakes are high, local governments will be well advised to make sure materials distributed to Board members with respect to an item on a public agenda are made available to the public when provided to Boardmembers and when a public office is open to provide access to hard copy.

 

Introduction. Governor Newsom signed AB 602 (Grayson, D-Concord) on September 28, 2021 to change how cities and counties impose impact development impact fees on housing. It is effective January 1, 2022, with some provisions deferred to July 1, 2022.

The new statute. Cities and counties may levy impact fees on new housing to pay for the services needed to support those developments and to mitigate the impacts of growth. Assemblyman Grayson identifies impact fees as a constraint on housing development, citing a report from UC Berkeley’s Terner Center for Housing Innovation which found such fees “can amount to anywhere from 6 percent to 18 percent of the median price of a home depending on location.”[1]

Impact fees are subject to the Mitigation Fee Act (1987’s AB 1600) and must be justified with a “nexus study”[2] demonstrating the relationship between a development project and the fee designed to mitigate its impacts on a community’s infrastructure. The new bill establishes new:

  • transparency requirements such as requiring cities and counties to post impact fees to the web;
  • standards for the nexus studies; and
  • public comment procedures for new or increased impact fees.[3]

a.  New Transparency Requirements

 By January 1, 2022, cities and counties must post the following information to the web:

  • A current schedule of fees, exactions, and affordability requirements.[4]
  • All zoning ordinances and development standards that apply to each parcel.[5]
  • A list of all requirements for a development project.[6]
  • The current and five previous annual fee reports covering AB 1600 (development impact) fees as well as water and sewer connection fees.[7]
  • An archive of impact fee nexus studies and cost of service studies performed since January 1, 2018.[8]

Cities and counties update these website postings within 30 days of any change to the information posted.[9]

Starting January 1, 2022, upon the later of a certificate of occupancy or final inspection of a new housing unit, a city or county must also request from the developer the total amount of impact fees levied on the project and post that information on the City website.[10] The city or county must update that information twice a year and may state that it is not responsible for the accuracy of the information the developer provided.[11]

b.  New Nexus Fee Standards

AB 602’s new standards for nexus studies take effect in two steps. Cities and counties conducting nexus studies on or after January 1, 2022 must identify the existing level of service for each public facility studied and the proposed new level of service the fee will fund and explain why the new level of service is appropriate.[12]

Starting July 1, 2022, new nexus studies must provide for fees that are proportional to the square footage of new development unless the study establishes one of the following.[13]

  • Square footage is not an appropriate metric to calculate impact fees for a project.
  • An alternative method of calculating the fee establishes a reasonable relationship between the fee charged and the burden the development poses; and
  • Smaller developments will not be charged disproportionately.[14]

AB 602 does not prevent a city or county from establishing different impact fees for different types of developments.[15]

Beginning January 1, 2022, cities and counties must update nexus studies every eight years, therefore existing studies need not be updated until 2030.[16]

AB 602 also requires “large jurisdictions” — counties with more than 250,000 people and cities in those counties, no matter how small — to adopt a capital improvement plan as part of any nexus study.[17]

c.  New Public Comment Procedure

The Mitigation Fee Act requires cities and counties to mail notice of the time and place of a meeting regarding any new or increased impact fees at least 14 days before the meeting to any interested party who files a written request for notice, as building industry groups often do. AB 602 would authorize any member of the public to submit evidence that a proposed impact fee violates the Mitigation Fee Act before these meetings.[18] A city or county must consider all evidence timely submitted.[19]

d.  Model Nexus Study Coming in 2024

AB 602 also requires the Department of Housing and Community Development to develop a model nexus study by January 1, 2024.[20] The template will include a method for calculating the feasibility of building housing on a site given the proposed impact fee.[21]

e.  Other Development Fees

AB 602 does not affect the City’s ability to impose water or sewer connection fees or capacity charges under Government Code section 66013, nor does it apply to any exactions, including taxes, public art fees or in-lieu payment requirements, Mello-Roos special taxes, and parkland in-lieu fees or dedication requirements such as Quimby Fees.[22]

Conclusion. The housing crisis has allowed development interests to make common cause with housing advocates and the loss of local control over land use policy is expanding into local government’s ability to fund facilities to service housing development. Nor is the State providing funding for those purposes. It is not clear how Sacramento expects local governments to square that circle.

AB 602 will attract greater scrutiny of the annual and five-year reports required for development impact fees. Accordingly, this is a good time for cities and counties to confirm the currency and adequacy of those reports.

[1] Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1324 (2020-2021 Reg. Sess.), as amended Aug. 26, 2021.
[2] Gov. Code, § 66000 et seq.
[3] Stats. 2021, ch. 347; Assem. Bill No. 602 (2021–2022 Reg. Sess.) (“AB 602”).
[4] Gov. Code, § 65940.1, subd. (a)(1)(A)(i).
[5] Gov. Code, § 65940.1, subd. (a)(1)(B).
[6] Gov. Code, § 65940.1, subd. (a)(1)(C).
[7] Gov. Code, § 65940.1, subd. (a)(1)(D).
[8] Gov. Code, § 65940.1, subd. (a)(1)(E).
[9] Gov. Code, § 65940.1, subd. (b).
[10] Gov. Code, § 65940.1, subd. (a)(3)(A).
[11] Gov. Code, § 65940.1, subd. (a)(3)(A)-(B).
[12] Gov. Code, § 66016.5, subd. (a)(2).
[13] Gov. Code, § 66016.5, subd. (a)(5)(A).
[14] Gov. Code, § 66016.5, subd. (a)(5)(B)(i)-(iii).
[15] Gov. Code, § 66016.5, subd. (a)(5)(C).
[16] Gov. Code, § 66016.5, subd. (a)(8).
[17] Gov. Code, § 66016.5, subd. (a)(6). Gov. Code, § 66016.5, subd. (c)(2) (“’Large Jurisdiction’ has the same meaning as defined in subdivision (d) of Section 53559.1 of the Health and Safety Code.”) Health & Saf. Code, § 53559.1, sub. (c)-(d) ((c) “‘Small jurisdiction’ means a county with a population of less than 250,000 as of January 1, 2019, or any city within that county. (d) ‘Large jurisdiction’ means a county that is not a small jurisdiction, or any city within that county.”)
[18] Gov. Code, § 66019, subd. (d)(1).
[19] Gov. Code, § 66019, subd. (d)(2).
[20] Health & Saf. Code, § 50466.5 subd. (a).
[21] Id.
[22] Gov. Code section 65940.1, subd. (b)(2).

Cities and counties in California have some to-dos arising from the settlement announced on July 22, 2021 in litigation against manufacturers and distributors of opioid painkillers. Counties and cities with populations over 10,000 should soon receive notice by letter of the opportunity to participate in the settlement and receive funding to mitigate the impact of opioid addiction in their communities.

This memorandum details cities’ and counties’ options and the process for opting into the settlement. If a city or county decides to opt in, it must do so by January 2, 2022 and City Council or Board of Supervisors action will be needed. An agency may wish to wait to agendize the settlement until after release of the intrastate allocation agreement governing how settlement funds will be distributed in California.

BACKGROUND

The settlement arose out of Ohio litigation brought by states and cities against the three largest pharmaceutical distributors —McKesson, Cardinal Health and Amerisource Bergen — and the opioid manufacturer Janssen (owned by Johnson & Johnson). Together, these businesses account for 85 percent of opioid sales in America. The 3,800 litigants contended the distributors and Janssen contributed to the national opioid crisis by ignoring signs of opioid addiction and overselling opioids. The proposed settlement is $26 billion and will cover all states, counties, and cities — even those not part of the litigation. The opioid distributors will pay $21 billion over 18 years and Janssen will pay $5 billion over 7 years. The text of the Distributor Master Settlement Agreement can be found here. The text of the Janssen Settlement Agreement can be found here.

California is to receive between $2.269 and $2.34 billion, which would be 9.9 percent of the total. It is the State’s responsibility to establish an intrastate allocation to distribute these funds to cities and counties, otherwise the funds will be distributed according to a default model included in the settlement. California has not finalized its interstate allocation, although a statewide group of counties and cities has been working with the Attorney General’s Office on this.

The default distribution model would allocate funds to counties based on opioid deaths per capita, incidence of opioid use disorder, and morphine milligram equivalents (i.e., the number and strength of opioid pills that entered a county during the settlement period). The default distribution model would then allocate funds from counties to cities based on similar factors.

There are two phases to the settlement. First, a critical mass of states must join the settlement. Second, cities and counties have until January 2, 2022 to opt into the settlement. Opting into the settlement increases the funds received by the local agencies and the State. From 50 to 55 percent of the funds scheduled to go to California will go directly to the State. How the balance is distributed — to the State, to cities and counties, or to other states — depends on how many California cities and counties participate in the settlement. Cities and counties (and the State) will receive an incentive payment if a critical mass of 60% of cities with populations of over 30,000 participate in the Janssen settlement. Non-litigating municipalities with a population under 10,000 and special districts will receive no direct allocation from the settlement unless an intrastate agreement provides otherwise.

OPTIONS

Cities and counties can opt into the settlement, supporting it and receive its benefits or decline to do so, preserving its right to sue and possibly undermining the settlement.

Opting In

If a community opts into the settlement, it can use settlement funds to:

  • authorize direct payments to the local agency;
  • a city may transfer funds (and the burden to spend them appropriately and account for them) to its county; or
  • a city may contract with its county for use of the funds.

Entities with a default share of less than $100,000 which did not participate in the litigation may not elect direct payment. Opting in requires a city or county to release its claims against the settling opioid distributors and manufacturers. As many local governments may be unlikely to pursue separate lawsuits, this may not be a significant concession.

Local governments must opt into the settlement by January 2, 2022 and City Council or Board of Supervisors action is needed. This is not an ordinary class action in which a party is subject to the settlement unless it affirmatively opts out. Instead, local governments must affirmatively approve the settlement.

Opting Out

If it does not act, an agency will be understood to have opted out of the settlement. An agency will retain the right to sue the opioid distributors and manufacturers directly, but settlement funds that might flow to it would flow to the State.

How the Settlement Money May Be Spent

Initial settlement funds are to be paid in September 2021, although settling agencies are unlikely to see funds before April 2022. When funds arrive will depend on when the State and each county meets specified levels of participation by local governments.

Additionally, most settlement funds may be used only for opioid abatement, including intervention, treatment, education, and recovery services. For instance, a city or county could use the funds to support clinics or services treating opioid use disorder, hire or train behavioral health workers, finance pre-trial services that connect individuals with recovery and treatment programs, and educate and train first responders on practices and precautions when dealing with fentanyl and other drugs.  Because these are services more often provided by California counties than cities, some counties suggest the cities within them direct their shares of the settlement proceeds to the county for use on the city’s behalf.

Cities and counties should register on the national settlement website, so information and documents related to the settlement will be sent to the City. The letter giving notice of how to do so will be mailed to each city and county, but addressed only to the agency, with no person or office named. This may make it likely to go astray. Local agency managers should be on the lookout for this.

Governor Gavin Newsom signed AB 361 (Rivas, D-San Benito County) September 16, 2021 to establish exceptions to teleconference requirements of the Brown Act during states of emergency. AB 361 took effect immediately on the Governor’s signature. It provides a means to continue to respect public health advice during the pandemic as to the conduct of local government meetings even on the expiration of the Governor’s executive orders which had covered that ground previously. It requires an initial resolution of a Brown Act body to invoke the new authority and then monthly resolutions thereafter. A puzzle is how to respect these mandates for agencies which do not meet every 30 days.

Governor Newsom has issued several Executive Orders during the COVID-19 pandemic. These set aside the following Brown Act requirements that typically apply when a public agency meets electronically:

  1. Notices and agendas must be posted for each teleconference location from which members of the legislative body will be participating;
  2. Teleconference locations must be accessible to the public;
  3. The public may participate in the meeting from each teleconference location;
  4. At least a quorum of the members participate from within the jurisdiction.

The orders allowed public agencies to meet virtually without compliance with these restrictions so long as they “allow members of the public to observe and address the meeting telephonically or otherwise electronically.” However, the Governor issued Executive Order N-08-21 on June 11, 2021 to sunset these orders on September 30, 2021.

AB 361 amends the Brown Act to allow “a local agency to use teleconferencing” during a state of emergency without meeting ordinary Brown Act teleconferencing requirements. It defines “state of emergency” by cross-reference to Government Code section 8625, which empowers the Governor (not Public Health Officers or other local officials) to proclaim a state of emergency. The Governor’s proclamation of a state of emergency must written and AB 361’s relaxation of Brown Act requirements is effective upon the Governor’s issuance of a declaration.

During such an emergency, local agencies are not subject to the Brown Act teleconferencing requirements described above if any of these standards is met:

  1. Social distancing is imposed or recommended by state or local officials;
  2. The legislative body is meeting to determine, by majority vote, whether in-person meetings present an imminent risk to those in attendance; or
  3. The legislative body has already decided, by majority vote, that in-person meetings pose an imminent risk to those attending, and meetings must continue.

If any of those circumstances exists, a local agency may meet electronically without complying with ordinary Brown Act requirements so long as:

  • Notice of the meeting is given as otherwise required by the Brown Act, i.e., posting agendas at least 24 or 72 hours in advance in the usual places and online.
  • An agenda must state how members of the public can participate in a meeting and offer public comment, including by call-in option and/or internet-based service option – like the “chat” features of meeting software. If meeting access is disrupted (e.g., by technology failures), the agency cannot act on agenda items until public access is restored.
  • An agency can encourage, but not require public comments to be submitted in advance of the meeting, but must provide an opportunity for real-time participation, which can be oral or written (i.e., voicemail, email, or chat features of meeting platforms).
  • If an agency provides a timed public comment period for each agenda item (i.e., 20 minutes per item), it cannot close public comment until that time has run. If it does not provide a timed public comment period for an agenda item, then it must allow a reasonable amount of time for public comment.

Local agencies must either allow a stated amount of time to provide public comment on each agenda item or leave public comment open for each item for a reasonable amount of time. This is intended to allow members of the public “the opportunity to register” to submit comment, or to actually comment. Therefore, AB 361 disallows public agencies from closing public comment on items when there is no immediate public participation. It may make sense to place an item at the end of the agenda to hear any late comment from those who had technological obstacles to commenting earlier.

A local agency must make the following findings by majority vote within 30 days of teleconferencing for the first time under AB 361 and every 30 days thereafter:

  1. The legislative body has reconsidered the circumstances of the state of emergency.
  2. One of the following circumstances exists:

a.  The state of emergency continues to directly impact the ability of members to meet safely in person; or

b.  State or local officials continue to impose or recommend measures to promote social distancing.

In other words, local agencies must adopt a resolution making the findings above within 30 days of its first teleconference meeting under AB 361. Then, they must re-adopt those findings every 30 days. AB 361 does not provide any express exception to the 30-day finding requirement for public agencies that meet monthly or less frequently. Accordingly, it may be wise for such agencies to readopt the initial resolution authorizing meetings under AB 361 each time they meet.

Finally, AB 361 appears to allow local agencies to continue holding meetings by teleconference after the Governor rescinds a state of emergency as long as social distancing measures are still imposed or recommended. The review findings only require that the local agency reconsider the circumstances of the state of emergency, not that the state of emergency continues. The social distancing measures must be recommended or imposed by a “local official,” which is an undefined term not limited to public health officials.

AB 361 is a helpful long-term replacement of the Governor’s short-term orders that will assist local government in balancing public participation in local meetings with public safety while this pandemic remains with us.

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

This issue has articles on:

  • A new, short statute of limitations for challenges to retail water and sewer rates;
  • Further appellate developments constrain local government’s authority to regulate homeless people’s use of public spaces; and
  • A recent Court of Appeal decision allowing early dismissal of suits challenging elected officials’ compliance with the Political Reform Act’s requirement of annual statements of economic interests (Form 700).

You might also be interested in the firm’s current webinar offerings. You can see that listing here.

Check it out!

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 Institute, supra, 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 Institute, supra, 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 Institute, supra, 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