The Court of Appeal recently affirmed, in North Murrieta Community, LLC v. City of Murrieta, that developers can be held to pay additional impact fees, despite holding a vesting tentative tract map, if a subsequent development agreement allowed for such fees. In 1999, the City of Murrieta approved a vesting tentative map for a development project known as the Golden City Project, developed by North Murrieta Community, LLC.  Four months before the map would expire in 2001, the developer and the City entered into a development agreement covering the project. The development agreement extended the term of the map for 15 additional years. The parties later extended the term of the map until 2019 and the development agreement until 2021.

Development projects can take many years to be completed and over those years regulations and fees imposed by local governments may change as time goes by. Typically, tentative maps and development agreements lock into place regulations and fees that a city may impose on a development project, thereby giving developers some financial certainty about how much the development will cost to create and cities some certainty that the project will develop as planned.

The 2001 Murrieta development agreement, however, specified that the City could, after its effective date, impose new fees on the development if these new fees were part of a generally applicable fee schedule applicable to the entire city, and not just the Golden City development. Acting on that authority years later, the City and the Western Riverside Council of Governments later passed a new fee to help fund local transportation projects, applicable to any development in the City. Under the new ordinance, the City in 2017 charged the developer and their successors in interest a new transportation impact mitigation fee of $541,497. The developer paid the fee under protest and filed suit arguing that the City could not impose the new mitigation fees until the tentative map expired in 2019 and the development agreement expires in 2021. At trial, the court ruled that the City had the right to impose the fees under the terms of the 2001 development agreement.

On appeal, the Second Division of the Fourth District Court of Appeal considered whether a subsequent development agreement can modify rights under a vesting tentative map. Generally, the approval of a vesting tentative map precludes a city from imposing additional conditions or fees that were not in effect at the time the map was approved. However, the 2001 development agreement specifically allowed Murrieta to impose future mitigation fees if the fees are applied throughout the City. The court of appeal ruled that such an agreement can modify the developer’s rights under a vesting tentative map. The court noted that had the City and developer not entered into the development agreement, the developer’s vesting tentative map would have expired. In return for agreeing to extend the term of the map for 15 more years, the City could lawfully secure a development agreement that allowed for future generally applicable fees and fee increases. The court was unsympathetic to the developer’s arguments that the vesting tentative map alone should control, emphasizing the developer negotiated and agreed to the 2001 development agreement. If the developer had not wanted to be subject to future generally applicable new fees, the developer should not have agreed to the language allowing such fees. Therefore, the traffic mitigation fees were applicable to the development. The decision adds to the litany of cases affirming that development agreements can vary general restrictions on a city’s land use power. As the economic cycle shifts to respond to the current uncertain climate, cities may be advised to evaluate development agreements as a tool to preserve future opportunities to fund services for their residents and communities as developers seek vesting tentative tract map extensions and land use entitlement amendments.

It’s 2:00 a.m. A stolen van has been leading officers on a high-speed chase, weaving in and out of traffic, reaching speeds of 100 mph. The van turns onto a dead-end street. When it reaches the dead-end, it makes a multi-point turn, and accelerates toward the officers. Officers need not hesitate; need not give a deadly force warning; need not contemplate alternatives to deadly force. Officer safety — and likely the public’s safety, too — justifies deadly force.

That’s the Ninth Circuit’s conclusion this week in affirming summary judgment for five officers in Monzon v. City of Murrieta finding probable cause to employ deadly force in such dynamic and urgent circumstances, even when officers are not in the path of the oncoming vehicle, and that not every shot must be justified. Maybe more important for lawyers than the holding is the lesson the case teaches on gathering and presenting objective evidence to successfully defend use-of-force suits.

Officers, of course, may exercise deadly force when reasonable under the totality of circumstances (as set forth in Penal Code 835a), and qualified immunity protects all but the plainly incompetent or malicious from the need to go to trial. Yet, lawyers’ ability to dispose of an excessive force claim short of trial can be illusive if factual disputes can be argued. Body-worn cameras can be an especially useful tool, as Scott v. Harris, a 2007 SCOTUS opinion, obliges courts to disregard when ruling on summary judgment a plaintiff’s testimony directly contradicted by the objective evidence, including camera evidence.

The Ninth Circuit decided Monzon as it did because of the evidence. There, it was not a body camera that made the difference. Instead, it was the stolen vehicle’s “black box” data recorder. Proof of the vehicle’s speed, its acceleration from a dead stop, and that the brakes were never engaged, allowed the Ninth Circuit to conclude the van posed a threat to the officers sufficient to justify deadly force.

Absent that evidence, one can easily imagine a different result. Monzon thus presents a fresh reminder on the importance of objective evidence  in excessive force cases, and that such evidence is not limited to body cams. Just as black-box data may be powerful evidence in a car accident case so, too, may it “speak[] volumes about what actually occurred” in a use of force case. The same may hold true of other “big data” technologies. So, keep your antenna up for these sources of objective data that can win on summary judgment!

California’s Constitution, like most, requires government to pay just compensation when it takes or damages private property. This has led to the development of two bodies of law — eminent domain (when government sues to acquire property or an interest in it) and inverse condemnation (when property owners sue government alleging property damage). The Legislature has provided detailed statutes to govern eminent domain, but inverse condemnation is mostly judge-made law.

The California Supreme Court had not heard an inverse condemnation case in decades until last August 2019 and it now has decided two in 11 months: City of Oroville v. Superior Court held the City was not liable for a sewer back-up into a suite of dentists’ offices (expensive property to damage!) because the dentists violated the Uniform Plumbing Code by not installing and maintaining a backwater valve. Yesterday, the Court decided Weiss v. People ex rel. Department of Transportation, concerning inverse condemnation procedures. [Disclosure: I argued for the governments in the California Supreme Court in both cases.]

We just issued a Bulletin edition of our firm newsletter detailing Weiss. You can find it here.  Check it out!

The Fall ballot includes Proposition 15, an initiative constitutional amendment proposed by progressive interests to eliminate Proposition 13‘s cap on the assessed value of property for purposes of property taxation as to non-residential and non-agricultural property valued at more than $3 million. Residential and farm property would retain Proposition 13’s cap on assessed evaluation. An expensive campaign is coming, with business interests and property owners opposed, and unions and progressive organizations in support. The measure is estimated to produce between $6.5 and $11.5 billion — with a “b” — in new annual local government revenues. Sixty percent of that would go to cities, counties and non-education special districts. Forty percent would fund K-14 schools and, indirectly, the State — which has a duty to fund education.

The proponents of Proposition 15 issued a report prepared by Tim Gage, former director of the California Department of Finance, estimating that 90 percent of the new revenue would come from just 10 percent of the most valuable properties — i.e., those with the largest disparities between fair market value and Proposition 13 assessed value, likely because they avoided a change in ownership that triggers reassessment since 1978. Businesses have means to do so, as by selling stock in a corporation which owns land rather than selling the land itself. Few residential properties can avoid reassessment as easily. Critics of the proposal argue that commercial tenants would feel the higher taxes via rents. Expect to hear more about this debate in many forums between now and election day.

KQED’s report on the report is here.

The LA Court of Appeal issued a published appellate victory for the City of Santa Monica in its effort to avoid being compelled to elect its Council from districts under the California Voting Rights Act. It is the first city to win such a victory and it did so at great expense — the plaintiffs’ fee claim in the trial court was for $22 million. The City hired high-profile litigator Ted Boutrous, the winner of Hollingsworth v. Perry, the federal challenge to Proposition 8, which invalidated gay marriage in California, and his fees were likely measured in millions of dollars, too.

The case is not over yet. A petition for review by the California Supreme Court is likely, especially given the investment in the case by the plaintiffs’ counsel, who has made quite a livelihood in enforcing the CVRA in recent years, and the coalition of plaintiffs’ counsel who joined in his appellate brief.

But for now, Pico Neighborhood Association v. City of Santa Monica is the law, holding that the CVRA allows a court to impose district-based voting on a California city or special district if five things can be proven:

  1. The plaintiff is in a “protected class” — as defined under federal civil rights statutes;
  2. The plaintiff is a resident of the city or district she sues;
  3. The city or district uses at-large voting for its governing body;
  4. Racially polarized voting occurs (i.e., members of racial groups tend to vote for candidates of their group and not for candidates of other racial groups which, sadly, is very common in America); and,
  5. The use of at-large voting serves to dilute the votes of the plaintiff and the group for which she speaks.

The first three were admitted here – the Pico Neighborhood Association and the individual plaintiffs represent Latinx residents of Santa Monica and the City elects its seven-member Council at large. The fight in the trial court was over racially polarized voting and vote dilution.

What a trial it was! It lasted from August 1 to September 13, 2018, including 24 days of testimony from seven expert witnesses and nine fact witnesses. It reviewed the demographics of the City, the successes and failures of Latinx candidates for the School Board and City Council, noting the City had two self-identified Latinx Councilmembers at the time of trial, one of whom has an Anglo name. The trial court issued a terse tentative ruling for the plaintiffs, ordered their counsel to draft her statement of decision (as the Rules of Court allow) and ordered the City to conduct district elections using the map the plaintiffs proposed. The City pointed out the plaintiffs had drawn only one district — centered on the Pico Neighborhood which would have a 30% Latinx electorate (as opposed to the Citywide figure of 13.64 % citizens of voting age). So, the court ordered the plaintiffs to draw seven districts and ordered the City to use them.

The City appealed and obtained an order of the appellate court staying enforcement of the trial court judgment pending appeal. The appeal was very thoroughly briefed, with four amicus briefs — two on each side of the case — as well as the parties’ briefs, written by seven and 13 lawyers, respectively. The Court of Appeal heard oral argument on July 1st and issued its decision on July 9th — fairly quickly by appellate court standards. It also gave the parties advance notice of its tentative ruling, not yet a common practice in California’s appellate courts.

The Court reasoned the plaintiffs had failed to prove the use of at-large elections diluted the Latinx vote in Santa Monica because the best district plaintiffs could draw for this community still achieved only 30% of the population — not a so-called “majority-minority district,” a requirement of litigation under the Federal Voting Rights Act, but not previously understood to be required under the CVRA. This reasoning has been criticized by a law professor’s blog as ignoring the significance that a large cohesive minority can have if other voters in a district are divided on partisan or other grounds. The Court read the CVRA also to require a plaintiff to propose a baseline against which dilution can be measured. When a jurisdiction goes from districts to at-large voting (which has been used to disadvantage minority voters in America) the baseline is the previous districts. Given that at-large voting was once the norm in California’s local governments, plaintiffs have to propose one or more districts that would better represent a  minority community when they challenge at-large voting not preceded by districts.

The Court critiques the plaintiffs’ arguments as making an uneven playing field: “To define ‘influence’ as Pico proposes would merely ensure plaintiffs always win.” This understanding of the CVRA is why few California local governments have prevailed in court and why few have even litigated in recent years. [Disclosure: CHW advises local governments in CVRA matters and some of its clients chose to avoid litigation by adopting districts.]

The opinion is full of useful holdings of interest to appellate lawyers and characterized by its author’s crisp writing style. It also concludes the plaintiffs had not proved the City intentionally discriminated against racial and religious minorities when it established at-large voting in 1946  as part of the Progressive Movement’s push for the council-manager form of government in response to corruption in other American cities or when the City refrained from changing its at-large system after study in 1992. The opinion also lays out the pros and cons of at-large and district voting, such as better neighborhood and minority representation versus the risks of gerrymandering, parochialism, and a loss of citywide perspective in policymaking.

Some of Santa Monica’s facts help explain the conclusion. The plaintiffs included a Latino member of the Santa Monica-Malibu Unified School District Board elected and reelected from 2002 to 2018 and the City Council had two Latinx members at the time of suit and a Latino member in 1992 when the City determined not to abandon at-large voting as well as an Anglo Councilmember from the Pico Neighborhood at the time of suit (and at present). These facts suggest that both Latinx voters and residents of the Pico Neighborhood have had electoral success in Santa Monica.

So, what does this mean for other California local governments? In the short run, it is good news for local control of election procedures, but it is probably too soon to revert to at-large voting if your community adopted districts under threat of suit. First, the California Supreme Court will certainly have a chance to review this case. While it takes only a small fraction of the civil cases presented for review, this case is a better candidate for review than most because it raises an important question of statewide interest, attracted ample amicus support, involves diverse decisions of the appellate courts, and is litigated by able counsel with clients willing to carry the fight to the finish.

Moreover, the Legislature has opportunity to clarify the statute — although it must do so in ways that do not offend the Federal Voting Rights Act or the Equal Protection and other state and federal constitutional rights of all Californians, whether members of federally protected minority groups or not. Still further, the multi-million-dollar cost of Santa Monica’s victory is beyond the reach of many California local governments, which would do well to wait for the dust to settle before considering changes in electoral regimes.

More developments are coming, and we’ll update you when they do!

Elections in the time of COVID-19 are, have been, and will be different. This year, under special legislation and Executive Order, every voter in California will be mailed a ballot for the November 3, 2020 presidential election. Ballots must be mailed and postmarked on or before election day and must be received by county elections officials by November 20, 2020.

New legislation requires each County elections official to mail every registered voter a vote-by-mail ballot at least 29 days before the election, or by October 5, 2020.  All vote by mail ballots will be counted if received by county elections officials up to 17 days after the election, or by November 20, 2020. This is later than the standard 3-day deadline for vote-by-mail ballots to be received, reflecting the expected significant increase in mailed ballots. The extended receipt deadline may delay election results. Every county must implement a vote-by-mail ballot tracking system, either the state’s standard ballot tracker or an approved county-specific system, so every voter can confirm receipt and counting of their ballot.

The legislation builds on an earlier Executive Order by Governor Newsom also requiring county elections officials to send vote-by-mail ballots to every registered voter for the November 2020 election. Gov. Newsom’s order also adjusts the rules for in-person voting. Counties, like Los Angeles or Sacramento, subject to the California Voter’s Choice Act, must open vote centers for early voting by October 31, 2020. Other counties, not subject to the California Voter’s Choice Act, must have at least one in-person polling place for every 10,000 registered voters and open them for early voting also starting on October 31, 2020. The Governor encourages counties to still allow earlier voting, but some counties may take advantage of this order to reduce in-person early voting in favor of voting by mail.

County and city elections officials are working with the California Secretary of State to develop new voting procedures for in-person voting, including implementing COVID-19-related social and physical distancing requirements. Cities, counties, and all Californians should pay close attention to their county’s elections official to confirm voting procedures.

This week, the Los Angeles Court of Appeal decided an important case upholding the requirement that a plaintiff who wishes to challenge an assessment under Proposition 218 must exhaust administrative remedies before suit. In Hill RHF Housing Partners, L.P. v. City of Los Angeles, et al., the Court held that to challenge adoption or re-adoption of a business improvement district (BID) assessment, an assessed property owner must appear at the public hearing and articulate its legal theories. Simply voting “no” is not enough. This is useful and much-needed authority clarifying these procedural requirements, and will be often cited in future assessment and other cases challenging public revenues. [Disclosure: CH&W represented two BIDs in the case.]

The Property and Business Improvement District Law of 1994 (PBID Law), and Proposition 218, authorize cities and counties to establish business improvement districts to assess property  to fund special services for the benefit of assessed property owners, such as supplemental security, marketing, and beautification. Here, owners of residential rental property for low-income seniors sued to dissolve the Downtown Center Business Improvement District (DCBID), serving a 65-block area in Downtown Los Angeles, and the San Pedro Historic Waterfront Business Improvement District (SPBID).

The Los Angeles Superior Court ruled against the property owners on the merits, most fundamentally because Dahms v. Downtown Pomona Property & Business Improvement District “eviscerates” their legal position, in the words of trial judge, the Hon. Mitchell L. Beckloff. Dahms upheld a substantially similar BID in Pomona against a Proposition 218 challenge. The trial court found the DCBID and SPBID’s engineer’s reports and district management plans adequately distinguished special from general benefits flowing from their activities, evaluated the benefits conferred on parcels, and properly allocated the assessments in proportion to the special benefit each parcel received, and provided solid record support for these necessary findings under Proposition 218.

The Court of Appeal affirmed, but only for the plaintiffs’ failure to exhaust administrative remedies. The Court found while the property owners voted against renewal of the BIDS, they did not make a record of the reasons for their objection. Proposition 218 and its implementing statute require an assessing agency to mail notice to the record owner of every assessed parcel of the proposed assessment and the date, time, and location of a public hearing on the proposal. The notice must summarize the procedures for completion, return, and tabulation of ballots, and that a majority protest will defeat the assessment. At the hearing, the assessing agency must “consider all protests against the proposed assessment and tabulate the ballots.” Prop. 218’s implementing statute provides that “[a]t the public hearing, any person shall be permitted to present written or oral testimony.” The PBID Law has similar notice-and-hearing requirements for the formation and renewal of BIDs.

The Court of Appeal’s opinion recites general jurisdictional requirements for exhaustion of administrative remedies, and the need for agencies to be able to reach a reasoned and final conclusion on each and every issue within its jurisdiction before a plaintiff can sue. Citing a property tax case, the Court wrote: “As in Williams & Fickett, we conclude that the procedure outlined in the PBID Law ‘bespeaks a legislative determination that the [City] should, in the first instance, pass on’ the questions Hill, Olive, and Mesa present in their petitions, ‘or decide that it need not do so.’” Voting against the assessments without participating in the hearing and identifying one’s concerns was not sufficient to exhaust that process. The Court explains that allowing a simple “no” vote to constitute exhaustion would frustrate the purpose of the exhaustion rule to allow an agency to consider all concerns and to address them, perhaps avoiding litigation or, at least, making a complete record of both sides of a dispute to assist judicial review.

This case offers useful guidance. For those representing BIDs and assessing cities and counties in litigation, it’s a reminder to review the administrative record carefully to ensure there was adequate exhaustion of remedies. If not, you may be able to resolve your matter quickly and efficiently on a motion for judgment on the pleadings or even demurrer. And, of course, advise your agencies early and often of their procedural obligations under the PBID Law and Proposition 218 and its implementing statute for mailed notice and public hearings for proposed assessments.


The San Francisco Court of Appeal issued the third landmark local government finance decision in two days today in City and County of San Francisco v. All Persons Interested in the Matter of Proposition C. [A blog post on one appears here and we’ll have one up on the other shortly.] The case concludes that special taxes do not require two-thirds voter approval if proposed by initiative under any of Prop. 13, Prop. 218, or San Francisco’s charter. [Disclosure: CH&W represents the County of Alameda in a case challenging a special tax approved by less than two-thirds of its voters in March 2020.]

It follows on a 2017 decision of the California Supreme Court in California Cannabis Coalition v. City of Upland, regarding Prop. 218. That case concluded that a provision of that 1996 initiative amendment to California’s Constitution requiring local general taxes (those which can be used in the discretion of the legislative body) to appear on general election ballots when city council or board of supervisors seats are contested did not apply to initiative tax proposals because “local government” did not include the electorate exercising the initiative power.

Here’s my initial analysis of the decision.

Facts: San Francisco voters approved Measure C in 2018 to raise a business license tax to fund homeless services. It passed by 61% and SF filed a validation action to test whether it could be enforced despite the lack of two-thirds-voter approval. The California Business Properties Association, the Howard Jarvis Taxpayers Association, and the California Business Roundtable answered. The case was tried on cross motions for judgment on the pleadings and the trial court ruled for the City, citing Upland.

Claims: On appeal, the Business Associations argued that two-thirds was required by Prop. 13, Prop. 218, and the City Charter, which extends the initiative power to measures “within the powers conferred upon the Board of Supervisors to enact.”  The Court of Appeal disagreed.

Analysis:

First, the court concluded that Prop. 13 was ambiguous as to whether the two-thirds-voter approval requirement for special taxes under article XIII A, section 4 applies to the initiative power because no express reference to initiatives appears in section 4. That ambiguity allowed resort to extrinsic evidence of voters’ intent. The two-thirds voter approval requirement is in conflict with the initiative provisions of the Constitution, which require only simple majority voter approval of initiatives. Several doctrines favor construing Prop. 13 not to require two-thirds voter approval for initiative special taxes:

    • The rule against implied repeals (citing Kennedy Wholesale, Inc. v. State Bd. of Equalization, a Prop. 13 case underlying Upland)
    • The rule favoring broad construction of the initiative power
    • That the ballot materials gave no hint voters intended to restrict their initiative power
    • Procedural requirements for actions by legislative bodies are not extended to voters acting by initiative (citing Upland and Associated Home Builders etc., Inc. v. City of Livermore)
    • The Court of Appeal rejected as dictum language in Kennedy Wholesale stating that article XIII A, section 4’s text was strong evidence that “the voters knew how to impose a supermajority voting requirement upon themselves when that is what they wanted to do.”
    • The Court also cited the language from City and County of San Francisco v. Farrell narrowly construing the super-majority requirements of Prop. 13 because they are anti-majoritarian. This theory of the liberal Rose Bird court was not often cited in the years following her 1986 recall and the construction of a very conservative judiciary under 16 years of the Deukmejian and Wilson governorships. Modern California looks less and less like the red or purple state of that era and its courts, especially after the second eight years of Governor Jerry Brown, have changed, too.
    • Contemporaneous construction of Prop. 13 by the Legislature did not show intent to limit the initiative power nor did the absence of changes to the initiative provisions of the Elections Code.

Second, as to Prop. 218, the Court used these bases to conclude that its article XIII C, section 2(d) imposes the two-thirds requirement on legislative bodies, not voters:

    • The Business Associations conceded that Prop. 218 implements Prop. 13 and the two should be interpreted consistently
    • Upland’s conclusion that “local governments” as used in Prop. 218 means legislative bodies, not voters
    • Upland interpreted article XIII C, section 2(b) (regarding election timing) and it has parallel language to its section 2(d) (the two-thirds rule in issue here)
    • The rule favoring broad construction of the initiative power
    • Nothing supported the Business Associations’ effort to distinguish Upland by having “local government” exclude voters for purposes of election timing, but include them for purpose of vote thresholds
    • Nothing in Prop. 218’s ballot materials indicated an intent to limit the initiative power

Third, as to San Francisco’s charter, the Court applied the rule that procedural restrictions on legislation by legislators are not applied to the initiatives.

This is a very nice win for local government but, of course, it is not the end of the story. A trial court in Oakland reached the opposite conclusion and the appeal in that case (to Division One of the San Francisco Court of Appeal) is just now being briefed. That court could disagree. A Fresno court also ruled that the two-thirds rules applies to local government initiatives and that appeal is pending in the Court of Appeal in that city. That, too, is still in briefing. Moreover, a petition for review to the California Supreme Court is a near certainty in the San Francisco case and, given that this flurry of legal developments has its roots in the Supreme Court’s 2017 Upland decision, review is far more likely than in a typical appeal — though still a bit of a long shot, especially with Justice Chin’s vacancy on the horizon.

Still, the decision is big news for San Francisco and for local government. It got immediate press attention here and here. We’ll keep you posted as this story unfolds.

 

The San Francisco Court of Appeal upheld a victory for the Bay Area Toll Authority (the Metropolitan Transportation Commission “wearing another hat”) today in Howard Jarvis Taxpayers Association v. Bay Area Toll Authority (HJTA v. BATA). The case is a challenge to 2018’s Regional Measure 3, authorizing a $3 hike in tolls on Bay Area bridges (other than the Golden Gate) to fund 35 alternative transportation programs. The Howard Jarvis Taxpayers Association and individuals sued, arguing the toll increase was a special tax requiring two-thirds voter approval (it got 55% at the polls) or two-thirds legislative approval (it got two-thirds in the Senate, but not in the Assembly). The trial court had ruled for the government at an early stage (judgment on the pleadings, for the lawyers among us). This is an important development under Proposition 26, a 2010 initiative amendment to the California Constitution making most government revenues taxes requiring voter approval unless one of seven exceptions applies for local government fees. Only five exceptions apply to the State.

First, the Court of Appeal concluded this fee was imposed, not authorized, by the Legislature, so the State provisions of Proposition 26 apply. Proposition 26’s provisions for state taxes are largely parallel to those for local government, although the former require two-thirds approval of each house of the Legislature to adopt a tax, while the latter require majority approval of local voters to approve general taxes and two-thirds voter approval of local special taxes. The case helpfully clarifies the meanings of three terms used in Proposition 26:

  • “Enact” means to establish by legal and authoritative act (i.e., what a legislative body does);
  • “Impose” means to establish or apply by authority, also typically what a legislative body does; and,
  • “Adopt” means to accept formally and put into effect and could describe the role of the regional transportation agency in this case.

Second, the Court of Appeal found this was not a tax because it was a fee for the use of government property and those are not subject to any cost of service limit — they are one of the few revenue sources available to government that can provide discretionary revenue without voter approval.

For we appellate lawyers, there is a nice statement (in footnote 7) that the Court of Appeal can decide legal issues whether or not forfeited in the trial court and suggesting that one has to very clearly agree with a trial court ruling to forfeit the right to appeal it.

The Court of Appeal reasoned that the cost-of-service limits in the first three exceptions to Proposition 26 (for fees for benefits and privileges, services and products, and regulatory fees) do not apply to the fourth (for use of government property) and fifth (fines and penalties) for these reasons:

  • Different language is used in the first three than in the fourth and fifth.
  • It would be illogical to read the final provision of Proposition 26 regarding the burden of proof as changing the substantive standards of the measure because that would render much of the language of exceptions unnecessary, violating a rule by which courts construe statutes and initiatives.
  • Limiting fees to buy or lease state property and fines and penalties to the cost the State incurs would lead to absurd results — it may cost very little to sell an asset of great value and the goal of Proposition 26 was not to make State government sell assets for a song.
  • There is nothing by which to measure costs as to fees for use of property or as to fines. Governments set fees for property based on their rental values and set fines considering how large a fine is both fair and effective. Neither kind of fee is set only to recover particular costs.

Interestingly, the Court of Appeal devotes a lengthy footnote (number 18) to disagreeing with Zolly v. Oakland, a March 30th decision of another panel of the San Francisco Court of Appeal. Zolly overturned a win for Oakland on demurrer (another early disposition of a case) in a challenge to franchise fees its solid waste haulers pay the City but fund from fees imposed on customers. The HJTA v. BATA court held that Zolly erred to apply the cost-of-service standard to a fee for use of property. A petition for review in the California Supreme Court is pending in Zolly and the Supreme Court recently granted the plaintiffs’ lawyers an extension of time to file their answer to the petition. It is now due July 10, 2020. HJTA v. BATA’s disagreement with Zolly may make review more likely in Zolly, but Supreme Court review is unlikely nevertheless. A petition for review is likely in HJTA v. BATA, too. Review in Zolly must be granted or denied by August 7th unless the Supreme Court extends its time by 30 days, as it commonly does. A petition for review in HJTA v. BATA is due 40 days from today or by August 10th. So, we’ll know more about the status of these issues in a bit more than a month.

HJTA v. BATA is a very helpful win for the State and for local governments, nearly all of which charge for the use of their property. It also develops the law nicely for those of us who practice in this area. Things are still in motion, though, so stay tuned!

Cities around America are looking at yawning budget deficits due to the sudden economic slowdown arising from the COVID-19 pandemic. Today, Politico, a news source covering the federal government, has this piece suggesting many California cities are looking to tax cannabis commerce to close the gap.

The deadline to place measures on the November 3, 2020 ballot is August 7th, though elections officials will surely appreciate more notice. A useful model ordinance to tax cannabis activity, that reflects public health policy advice, is available here. [Disclosure: I prepared that ordinance on retainer to the Public Heath Institute.] The Public Health Institute also provides a model land use ordinance to regulate cannabis commerce, too. [Disclosure: I worked on that, too.]

The City of Grass Valley recently placed a tax on the ballot, using the Public Health Institute model. News coverage of that proposal is here. [Disclosure: CH&W serves as City Attorney of Grass Valley and wrote its ordinance.]