1 Hour Prior to Meeting (ASAP for dire emergencies)
• BE CAREFUL: Some local agencies have special rules providing more notice to the public.
Municipal Law
Where to Post?
• Posted at location freely accessible to the public, including after hours
• Posted on the local agency’s website, if it has one
• All teleconference locations
• ADA Compliance – Make agenda available in alternative formats to persons with disabilities upon request
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Municipal Law
Agenda Contents
• Posted agenda must contain:
Brief general description of all business items (including closed session items) – Generally not > 20 words in length (not an absolute rule)
Time and location of meeting (including all teleconference locations)
Include how, to whom, and when a disability accommodation request may be made
Municipal Law
New(ish) Case
• Agendas must describe each distinct action to be taken by the legislative body.
• San Joaquin Raptor Rescue Ctr. v County of Merced (2013) 216 Cal. App. 4th 1167 (failure to separately list the CEQA action associated with agendized action on project approval violated Brown Act).
Municipal Law
Practice Tip on Agenda Contents
• Compare items on the agenda with the staff report.
• Does the agenda identify each distinct action to be taken? For example, are all resolutions identified?
• If not, fix it.
• If it’s too late, let the agency’s counsel know as soon as possible.
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Municipal Law
Closed Session Agenda Descriptions
• Brown Act provides “safe harbor” descriptions for closed session items (Gov. Code, § 54954.5)
• Closed sessions may be called for:
Real estate negotiations (price and terms of payment)
Public employment decisions/labor negotiations
Anticipated, existing, or initiating litigation
Public security
Municipal Law
Teleconferencing
• May be used for any meeting
• 4 Important Conditions:
Agenda must identify all teleconference locations
Must post agendas at all teleconference locations
All teleconference locations accessible to public
Quorum must be within boundaries of agency (special rule for certain health authorities)
Municipal Law
GAME
Can You Teleconference From _____________?
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Municipal Law
A Hospital Bed?
Municipal Law
A Hotel Room?
Municipal Law
The Open Road?
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Municipal Law
A Cruise?
Municipal Law
Cell Block H?
Municipal Law
On Tour in Afghanistan?
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Municipal Law
Is an Agenda an Unfunded Mandate?• Nov. 2004 ‐ Prop. 59 guarantees public access to agency information and open meetings – all laws to be interpreted broadly in favor of > openness
• Sept. 2009 ‐ Commission on State Mandates determines posting agendas and reporting closed session actions are reimbursable mandates = State $$$ (No effect on open meeting requirement since it predated Commission)
• June 2012 ‐ AB 1464 suspends posting of agendas since no State $$$
• Nov. 2012 ‐ Prop. 30 approved by voters – exempts Brown Act from mandate requirement (Applicable? – self executing?)
• Sept. 2013 – Legislature approves Senate Constitutional Amendment 3 Requires Brown Act compliance even if no State $$$
• Jun. 3, 2014 – Prop. 42 Passes – Agencies must comply with Brown Act even if no State $$$
Municipal Law
Mailing of Meeting Agendaand Packet
• When agenda is posted or distributed to legislative body (whichever occurs first), mail it and all packet documentsto persons who have filed a written request
• Request is valid until January 1 of each year, then must be renewed by applicant
• Agenda and packet must be made available in alternative formats upon request under ADA
• “The legislative body may establish a fee for mailing the agenda or agenda packet, which fee shall not exceed the cost of providing the service”
Municipal Law
Special Meetings – Special Rules #1
• At least 24 hours prior to a special meeting, notify:
local newspapers of general circulation and radio/TV stations that have requested notice in writing
• provide to on‐line media if they have standing request
all legislative body members, unless member signs written waiver of notice (*) or actually attends meeting
• Notice delivered personally or by any other means (e.g.: e‐mail) ‐must identify time and place of meeting and business to be discussed
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Municipal Law
Special Meetings – Special Rules #2
• Remember – Certain subjects may not be discussed or voted on at a special meeting.
• Some examples:
Public employee salaries, budgets are okay though
Passing ordinances, but introducing ordinances is probably okay though.
Check with local agency counsel
Municipal Law
Emergency Meeting ‐When?
• Two conditions:
Emergency situation – A work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both, as determined by a majority of the members of the legislative body.”
Involving matters upon which prompt action is necessary due to the disruption or threatened disruption of public facilities
Municipal Law
Emergency Meeting ‐ Notice
• Notify public ASAP, by posting notice at location freely accessible to the public
• Notify legislative body members ASAP, personally or by any other means
• As for notifying the media:
If phones are working – notify 1 hour prior to meeting
If phones are not working – notify ASAP after meeting
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Municipal Law
Dire Emergency ‐ Notice
• A crippling disaster, mass destruction, terrorist act, or threatened terrorist activity that poses peril so immediate and significant that requiring a legislative body to provide one‐hour notice before holding an emergency meeting under this section may endanger the public health, safety, or both, as determined by a majority of the members of the legislative body
• Only difference = Notify the media at or near the time the legislative body is notified (i.e. ASAP)
Municipal Law
Post‐Emergency Meeting
• ASAP after an emergency meeting, must post the minutes in a public place for 10 days with:
A list of persons who the presiding officer of the legislative body, or designee of the legislative body, notified or attempted to notify
A copy of the roll call vote on any items
A list of actions taken at the meeting
Municipal Law
Practice Tip on Emergencies
• Everyone will be running around
. . . probably committing Brown Act violations!
• Calm heads must prevail
Last thing anyone needs is a lawsuit and an action being invalidated
• Keep notes of efforts to communicate the meeting to the press and public – numbers called, etc.
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Municipal Law
Late‐Received Documents – Before the Meeting
• Applies to public records only
• If distributed by staff or legislative body member after agenda posted but before the meeting – make available for inspection “without delay” (usually at Clerks’ office prior to meeting or at Clerk’s desk during meeting)
May post on agency website in position/manner making it clear the late document relates to an agenda item
Prudent to make announcement that document exists prior to starting agenda item
Municipal Law
Late‐Received Documents – At the Meeting
• If distributed by staff or member at the meeting, make available at the meeting (have extra copies ready in advance if possible)
• If distributed by another person at the meeting –make available after meeting
Discuss confidentiality issues with agency attorney
Municipal Law
Exceptions to Agenda Requirements
• Legislative body may take action on items not appearing on agenda in certain situations
• 4 Types:
Informal, Everyday Exceptions
Emergency Situation Exception
Late‐Breaking Exception
Continued Meeting Exception
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Municipal Law
Informal, Everyday Exceptions
• Brief responses to statements made or questions posed in public comment
• Ask questions for clarification
• Make a brief announcement
• Make a brief report on his or her own activities.
• May provide a reference to staff or other resources for factual information
• Request staff to report back to the body at a subsequent meeting concerning any matter
• Direct staff to place a matter of business on a future agenda.
Municipal Law
Emergency Exception
• Emergency situation – determination by a majority vote of the legislative body that an emergency situation exists (defined by Gov. Code, § 54956.5)
“work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both”
(includes definition of dire emergency also)
Municipal Law
Late‐Breaking Exception
• Three conditions for a “Late‐Breaking” item
Need to take immediate action
Need came to agency’s attention after agenda posted
2/3 vote if 2/3 or more of members are present (usually 4 out of 5 or 3 out of 4) or unanimous vote if < 2/3 of members are present (usually 3 out of 3)
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Municipal Law
Continuance Exception
• Three Conditions:
The item was posted properly for a prior meeting of the legislative body
The prior meeting occurred not more than five calendar days prior to the date action is taken on the item
The item was properly continued to the meeting at which action is being taken
Municipal Law
Publication of Ordinances and Summaries
Municipal Law
General Publication Rule
• Publish full text of ordinance and names of members voting for and against it within 15 days after adoption. Publish in either:
newspaper of general circulation published and circulated within agency boundaries; or
if no such newspaper exists:
• post in at least three public places within agency boundaries; or
• publish in newspaper of general circulation in County which is circulated within agency boundaries
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Municipal Law
Publication of Ordinance Summary
• If a fair and adequate summary or ordinance can be prepared:
• Publish summary twice in a newspaper of general circulation published and circulated within agency boundaries:
First time: At least 5 days prior to meeting when ordinance is to be adopted (summary only);
Second Time: Within 15 days after adoption (summary and names of members voting for/against ordinance)
• Also, post certified copy of full text of ordinance at Clerk’s office at both publication times. For post‐adoption posting, certified copy must include names of members voting for/against ordinance
Municipal Law
Publication of Ordinance Summary
• If a fair and adequate summary cannot be prepared, and legislative body so orders:
Publish ¼ page advertisement in newspaper of general circulation within agency boundaries, describing general nature of ordinance and where full text may be obtained:
• At least 5 days prior to meeting when ordinance is to be adopted (description and information only); and
• Within 15 days after adoption (description/information and names of members voting for/against ordinance)
• NOTE: Be sure to get legislative body approval for this! (Usually, include the order in the ordinance)
Municipal Law
Requests for Ordinance Notice
• Any member of the public may file with the city clerk a request for notice of specific proposed ordinances or proposed amendments to ordinances
• Notice must be mailed or otherwise transmitted at least five days before the council is scheduled to take action on the proposed ordinances or proposed amendments to an ordinance
City may charge reasonable fee related to the cost of this service
• ALTERNATIVE ‐May place the requestor on the general agenda mailing list pursuant to GC § 54954.1. Let them know
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Municipal Law
Notices of Planningand Zoning Hearings
Municipal Law
Zoning Ordinances are (Usually) Special
• Special rules apply to zoning ordinance (or an amendment) which:
Changes any property from one zone to another; or
Imposes, modifies, or removes any regulation listed in Government Code Section 65850
• Includes land use, parking, setback, height, intensity, open space, and sign regulations.
Municipal Law
Special Rules
• The Planning Commission holds a public hearing and notices it under Gov. Code, § 65090 and, if the proposed ordinance or amendment affects the permitted uses of real property, also under § 65091
• Planning Commission provides recommendation to the legislative body, including the reasons for the recommendation, the relationship of the proposed ordinance or amendment to applicable general and specific plans
• City Council holds public hearing (* Exception for certain zoning changes where PC recommends against) and notices under § 65090
• City Council approves, disproves, or modifies
Modifications go back to PC!
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Municipal Law
Section 65090 Notice – When, How, and Where?
• Newspaper Publication one time in a newspaper of general circulation within the jurisdiction at least 10 days prior to the hearing
If there is no such newspaper of general circulation, the notice shall be posted at least 10 days prior to the hearing in at least three public places within the jurisdiction of the local agency.
• May give notice of the hearing in any other manner it deems necessary or desirable
• Special rule the policies or ordinances affecting drive‐through facilities
Municipal Law
Section 65090 Notice – What?
• Notice must include:
Date, time, and place of public hearing
Identity of hearing body or officer
General description of matter
Description or location of property (in text or by diagram) subject to hearing
(Gov. Code, § 65094.)
Municipal Law
Section 65091 Notice
• Follow 65090 and mail or deliver notice of the hearing at least 10 days prior to the hearing to:
The owner of the subject real property, the owner's agent (if any), and to the project applicant (Note – Special rule for mineral rights when Subdivision Map Act involved)
Each local agency expected to provide water, sewage, streets, roads, schools, or other essential facilities or services to the project, whose ability to provide those facilities and services may be significantly affected.
All owners of real property within 300 feet of the real property that is the subject of the hearing.
• If >1000 owners, a local agency may provide notice by placing a 1/8 page ad in a newspaper of general circulation within the local agency at least 10 days prior to the hearing.
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Municipal Law
Public Requests
• Regardless of whether notice is under Section 65090 or 65091, the notice shall also be mailed or delivered at least 10 days prior to the hearing to any person who has filed a written request for notice
The local agency may charge a fee which is reasonably related to the costs of providing this service and the local agency may require each request to be annually renewed
Municipal Law
Other Zoning Matters Requiring Specific Hearings and Notice
• General Plans and Amendments
At Commission (GC 65353)
At Council (GC 65355)
• Development Agreements (At Commission and Council)
• Variances, CUPs, development permits (including revocation and modification)
Municipal Law
Subdivision Map Act Notice
• Any Map Act processes requiring a public hearing must follow 65090 and 65091 for noticing
• There are special rules for certain fees, which require additional information in the notice:
Bridge and Roadway Construction Fees
Groundwater Recharge Facility Construction Fees
Transportation Facility Fees
• Must also mail tenants notice of right to appear and be heard on condo conversion projects
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Municipal Law
City Council/Board Hearing(approval or appeal of P.C.)
• Generally, same rule for Planning Commission hearings, except:
No requirement to notify affected local agencies again (but may be required under CEQA)
No requirement to notify real property owners within 300 feet of subject property again
But, must include recommendation/decision of the P.C. in notice
• NOTE: Consult your Municipal Code for noticing requirements at both P.C. and C.C./Board levels. It may impose greater requirements than State law (e.g.: 300’ notice at C.C./Board level as well; 500’ notice in some circumstances, etc.)
Municipal Law
Interim Moratorium Ordinances
• “[T]o protect the public safety, health, and welfare, [a City Council] may adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission or the planning department is considering or studying or intends to study within a reasonable time.”
Municipal Law
Interim Moratorium Ordinances ‐Process
• Step #1 – Initiating the Moratorium
Noticing: No noticing required (it’s an urgency ordinance), but there are benefits to noticing.
Requires 4/5 vote and several specific findings
Effective for 45 days
• Step #2 – Begin Study
10 days before the City extends, it must issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance
• Step #3 – Extending the Moratorium (2 Year Maximum)
Same noticing rule as for any other planning hearing – 10 days
Requires 4/5 vote and several specific findings
If moratorium was noticed originally, City may extend for 22 ½ months
If moratorium was not noticed originally, City may extend by 10 ½ months and then again by 1 year.
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Municipal Law
Recap
• Is this okay for 65090 notice?
On April 22, 2015 at City Hall, the City Council will consider the adoption of a zone change for 12345 A Street (APN 123‐456‐78‐9) from residential (R‐1) to commercial (C‐1) zone
Municipal Law
Recap
• How about this?
On December 25, 2015 at 7:00 p.m. at City Hall, located at 123 City Road, Clerksville, the Clerksville Planning Commission will consider the adoption of a specific plan amendment, zone change, and variance for the property located south of the 123 freeway, east of Clerk Road, and west of City Attorney Way
Municipal Law
Recap
• Date, time, and place of public hearing
• Hearing body or officer
• General description of matter
• Description or location of property subject to hearing
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Municipal Law
CEQA Noticing
Municipal Law
What is CEQA?
• A public disclosure statute
• A procedural statute
• This is why noticing matters
Municipal Law
Types of “Noticing” Under CEQA
• Hearings (agendas)
• Analyses (NOI, NOP)
• Public comment periods
• Consultation with other agencies
• Actions taken (NOE, NOD)
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Municipal Law
CEQA: A long, complicated Choose Your Own Adventure book
• CEQA sets out different “paths” based on the type of action an agency is taking, and the potential for that action to result in significant environmental impacts
• A project’s scope and scale can also affect noticing
Municipal Law
CEQA Actions on Agency Agendas
• CEQA determinations are an item of business that must be called out on an agency agenda
• San Joaquin Raptor Rescue Center v. County of Merced(2013) 216 Cal.App.4th 1167
County Planning Commission’s posted agenda did not mention that the Commission was considering adoption of a MND in connection with a minor subdivision approval
Separate legal action by the Commission
Referencing the subdivision approval was not enough
Municipal Law
Exemptions
• What are they?
Categories of projects that either the legislature or Secretary of Natural Resources has determined don’t have to go through CEQA review.
• Key notice:Notice of Exemption (NOE)
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Municipal Law
Exemptions
• Hearings: No public hearing required
But there are benefits to holding one – it can limit who can sue, and what they can sue over
To gain this benefit, the public must be given notice that the agency will be relying on an exemption, and even better, identify what exemption specifically will be used
Tomlinson v. County of Alameda (2012) 54 Cal.4th 281
Municipal Law
Exemptions
• Analysis: No need to separately notify anyone that the agency is preparing to use an exemption, analyzing the potential use of an exemption, etc.
The idea behind exemptions is that you don’t have to do any analysis at all
• Public comment period: No need to invite comments, or accept comments (but Tomlinson)
Municipal Law
Exemptions
• Action taken: Agency determines that the action it takes is exempt
• Gives notice of this action through a Notice of Exemption (NOE)
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Municipal Law
Exemptions
• NOEs are typically optional, only mandatory for certain exemptions (i.e. agricultural employee housing, affordable infill housing)
• Best practice to always file a NOE anyway, because it reduces the statute of limitation from 180 days to 35 days
Municipal Law
Exemptions
• NOE must include brief description of the project, a finding that the project is exempt, citations to the applicable exemption(s), explanation of reasons supporting the finding
• Must be filed with the County Clerk after approval of the project/action
• Deadline to file?
Technically there isn’t one, but best practice is ASAP
Municipal Law
Exemptions
• County Clerk must post for 30 days
• Agencies encouraged to post on their website
• Recommended NOE format in the CEQA Guidelines, Appendix E
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Municipal Law
If you don’t pull an Advance to Go card…
• If an agency cannot find a CEQA exemption appropriate for its project/action, it must complete an Initial Study (IS)
• This is an internal exercise/analysis – nothing to notice
When the IS shows that there is no potential for the project/action to result in a significant impact to the environment either “as is” (NegDec), or after mitigation measures are added (MND)
• After the IS is prepared, and the agency has prepared a proposed NegDec/MND, it must notify the public of the availability of the documents and invite the public to provide input
• Notice of Intent to Adopt a Negative Declaration (NOI)
• The NOImust be “circulated” to general public, certain public agencies and County Clerk for at least 20 days before hearing, unless sent to State Clearinghouse, then 30 days prior
When is the NOI sent to the State Clearinghouse? When a state agency is the lead agency, a state agency is a responsible agency, or where a project is of “statewide, regional, or areawide importance”
• The last day of the public review period (20‐30 days) must be a day where the agency is open normal business hours and can accept comments through to close of business
• If State agency approval is required, the NOD must also be filed with the State Office of Planning and Research
• If an agency fails to file the NOD, it leaves itself open to a 180 day statute of limitation. Filing the NOD gets an agency a 30 statute of limitation.
Determination that the project will not have any significant effects on the project (after mitigation, if applicable)
Statement that a NegDec or MND has been prepared
Address where the NegDec or MND can be viewed.
Municipal Law
Environmental Impact Reports (EIRs)
• What are they?
It’s the other road at the Initial Study fork
EIR is what an agency must prepare when it cannot determine, after the IS, that the project will not result in significant impacts to the environment
Municipal Law
Environmental Impact Reports (EIRs)
• Key notices:
Notice of Preparation (NOP)
Notice for Scoping Meeting
Notice of Availability (NOA)
Notice of Completion (NOC)
Notice of Determination (NOD)
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Municipal Law
EIRs: Notice of Preparation
• The NOP informs agencies and the public an EIR will be prepared
• Purpose to solicit input on the scope and contents of the EIR
Municipal Law
EIRs: Notice of Preparation
• The NOP must include:
Project description
Project location (including a map)
Date, time, and location of the public hearing
Address where documents relating to the project can be reviewed by members of the public
Address where written comments on the scope of the EIR may be sent
Deadline for submitting comments (30 days)
Likely impacts of the project
Sufficient detail
Municipal Law
EIRs: Notice of Preparation
• NOP must be sent to:
Responsible and trustee agencies and involved federal agencies
The State Clearinghouse (always)
Parties who previously requested notice in writing
• Transmittal must provide a record of receipt
Certified mail, publication
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Municipal Law
EIRs: Scoping Meetings
• Required when Caltrans requests one, or where the project is of statewide, regional, or areawide significance
• For scoping meetings that are held for a project with statewide, regional, or areawide significance, the agency must provide notice of a scoping meeting
But this can just be included in a general public meeting notice, or combined with the NOP, if appropriate
Municipal Law
EIRs: Notice of Availability
• The Notice of Availability (NOA) lets the public and other agencies know the Draft EIR is available for review
• NOA must be issued to the County Clerk, posted in the County Clerk’s office for 30 days, and the County Clerk must post the notice within 24 hours
• NOA must be issued at least 30 days (in some cases 45 days) prior to any public hearing
Municipal Law
EIRs: Notice of Availability
• NOA must also be sent to all responsible and trustee agencies, and any person or organization who requests notice
In some cases, must be sent to a water supply agency, and the Department of Defense
• NOA must also be published in a general circulation newspaper, posted on and off the project site, ordirectly mailed to owners and occupants of contiguous property
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Municipal Law
EIRs: Notice of Completion
• At the time an agency issues the NOA, it must also file a Notice of Completion (NOC) with the State Clearinghouse
• The NOC must include a project description, project location, address where DEIR is available for review, and the dates of the public review period
See CEQA Guidelines Appendix L for a model NOC
Municipal Law
EIRs: Notice of Determination
• Notice of Determination (NOD) filed after project approval
Not required if the agency disapproves the project
• NOD filed with County Clerk within 5 working days after approval – County Clerk will post for 30 days, within 24 hours
• If State agency approval is required, NOD must be filed with the State Office of Planning and Research
Municipal Law
EIRs: Notice of Determination
• The NOD must include:
Project name
Project description
Project location
Date of project approval
Statement that an EIR was prepared and certified
Summary of the project’s significant environmental impacts
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Municipal Law
EIRs: Notice of Determination
• The NOD must include (continued):
Whether mitigation measures were made conditions of project approval
Whether findings were made and a Statement of Overriding Considerations adopted
Address where the Final EIR may be viewed
• NOD must be retained for at least 12 months
Municipal Law
CEQA Noticing Review
Municipal Law
Key notices for….
• An exemption?
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Municipal Law
Key notices for….
• A NegDec or MND?
Municipal Law
Key notices for….
• An EIR?
Municipal Law
Are these pre‐approval or post‐approval notices?
• Notice of Availability (NOA)?
• Notice of Determination (NOD)?
• Notice of Intent (NOI)?
• Notice of Exemption (NOE)?
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Municipal Law
Timing
• After approving a project and certifying an EIR, an agency has __________ days to file a NOD.
• After approving a project that is exempt from CEQA, an agency has ___________ days to file a NOE.
• After receiving a NOD, the County Clerk must post the NOD within __________.
Municipal Law
Timing
• After receiving a NOD, the County Clerk must post the NOD for ____________.
• After receiving a NOE for posting, the County Clerk must post the NOE for _______________.
Municipal Law
CEQA Reform
• Electronic Noticing
• Translations
• Additional noticing requirements
• Streamlining noticing requirements
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Municipal Law
Coastal Act Noticing
• Local Coastal Program (LCPs)
General Plan Land Use Plan + Zoning Code sections implementing the Land Use Plan
• Coastal Commission Jurisdiction
Municipal Law
Taxes, Assessments, and Fees
Municipal Law
Taxes
• New, increased or extended taxes are subject to Proposition 218 election procedures
• Timing:
General Taxes – must be consolidated with Council/Board general election, except in case of fiscal emergency declared by unanimous vote of legislative body
Special Taxes – may be voted on at special election at any time permitted by law and called by legislative body
• Proposition 26 (2010) – “regulatory fees”, “charges”, and “exactions” likely deemed taxes if > costs
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Municipal Law
Taxes
• General or Special Taxes must be adopted by ordinance or resolution which states:
Type of tax;
Rate of tax;
Method of collection;
Date on which election is to be held; and
Purpose for which tax is being levied (for special taxes only)
Municipal Law
Taxes ‐ Notice
• Because General and Special Taxes are adopted by ordinance prior to the election, they must be noticed appropriately:
• RECAP:
General Rule ‐ Full text with votes within 15 days after adoption in newspaper of general circulation
Alternatives:
• Fair and adequate summary published twice (5 days prior and within 15 days after adoption)
• No fair summary – ¼ page ad (5 days prior and within 15 days after adoption)
Municipal Law
Taxes ‐ Approval
• Means of approval:
General taxes – Standard election under Elections Code for local initiative measures ‐Majority vote required to pass
Special taxes – Usually same procedure as General taxes, but there are exceptions (e.g.: Mello‐Roos districts). Where election is required, 2/3 supermajority voterequired to pass
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Municipal Law
Property Assessments
• New or increased property assessments are also subject to Proposition 218 procedures
Non‐property assessments are not subject to Prop. 218 (e.g.: Business assessments under 1989 PBIA Law)
• BIG DEBATE: What is property‐related?
Approval process by ballot is not an election (no secret ballot, no VRA)
Municipal Law
Property Assessments
• Must be based upon special benefit conferred to assessed property (not general revenue generator)
• Timing: An assessment measure may be taken up at any time, but timing is typically dictated by County deadlines to place assessments on the property tax roll (Aug. 10)
Municipal Law
Property Assessments
• Over a dozen assessment acts in California law, each with slightly different preliminary requirements
• Most have some common features:
Legislative body initiates by adopting “kick‐off” Resolution describing proposed funded improvements/services and ordering preparation of Engineer’s Report
Preparation of Engineer’s report to determine funded improvements/services and calculate fair assessment of property
Legislative body adopts Resolution approving Engineer’s Report and declaring intention to levy assessments for improvements/services
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Municipal Law
Property Assessments
• Consult authorizing act for specific preliminary requirements
CHECK WITH LOCAL AGENCY COUNSEL
• Once preliminary requirements are met under the particular assessment act, compliance with Prop. 218’s public hearing and balloting procedures satisfy “voting” requirements of virtually all assessment acts
Municipal Law
Property Assessments ‐ Notice
• Notice must be mailed to all record owners of each parcel to be assessed (as shown on tax roll) at least 45 days prior to the public hearing at which the assessment will be considered
• Envelope face must state “OFFICIAL BALLOT ENCLOSED” – bold 16‐font type
May provide this language in alternate languages, but not required
Municipal Law
Property Assessments ‐ Notice
• Notice must contain the following:
Total amount chargeable to district
Total amount chargeable to record owner’s parcel
Duration of assessment payments (if perpetual, say so in notice)
Reason for assessment and basis for calculating assessment
Date, time and place of public hearing
Summary of procedures for completion, return, and tabulation of ballots
Statement that assessment will not be imposed if there is a “majority protest”
Statement that ballots are weighted according to proportional financial obligation of affected property (ie: 1 vote per $100 assessed)
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Municipal Law
Property Assessments – Ballots
• Notice must also include assessment ballot containing:
Local agency’s address for receipt;
A place to indicate the record owner’s name
Identification of the parcel to which the ballot pertains
means to indicate support/opposition (e.g.: “yes”/“no” boxes)
Municipal Law
Property Assessments – Ballots
• Ballots may be submitted, changed or withdrawn at any time prior to the conclusion of the public hearing
• At public hearing, Council/Board shall hear all evidence in support or against assessment, but only submitted ballots count regarding “majority protest”
• Ballots must remain sealed until tabulation process (no “pre‐counting” before hearing)
Municipal Law
Property Assessments – Ballots
• After public hearing, ballots tabulated by “impartial person” with no stake in the outcome
Clerk is defined as an “impartial person”
If using agency personnel or vendor/consultant who participated in earlier phase of assessment (research, engineering, design, public education, promotion) – must tabulate in public view
Tabulation may be continued to different time and public place – if announced at the hearing
May use technological means to tabulate
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Municipal Law
Property Assessments – Ballots
• If more weighted “no” votes than “yes” votes, “majority protest” exists and assessment fails
• If multiple owners of a parcel cast conflicting “yes” and “no” votes, voting strength is split based upon proportional record ownership interest
• Ballots and information used to weigh ballots are public records (equally available to proponents and opponents of assessment) and must be retained for two years (no “voter” secrecy)
Municipal Law
Property Assessments
• PRACTICE TIP
Be Prepared – Know that an assessment ballot is coming up and know how the results will be calculated
Get assistance – Local agency counsel should be available on hand to answer any questions
Transparency is key – Be sure to make it clear that the ballots are public records and that the opening process can be watched
Municipal Law
Property Related Fees
• New or increased Fees “incident to property ownership” also subject to Proposition 218. This includes water, sewer, stormwater and refuse rates
• May not exceed costs of providing property‐related service or may be deemed a “special tax” under Props. 218/26 (may not be a revenue generator)
• Timing: May be done any time (usually timed for new FY)
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Municipal Law
Property Related Fees
• Approval Procedure: Different from assessment
Step One: “Majority protest” hearing. Council/Board may approve if no “majority protest.” If the hearing relates to sewer, water, or refuse fees – no more steps.
Step Two: For any other fee, if it survives “majority protest”, must approved by majority vote of property owners or by 2/3 vote of the electorate residing in affected area
Municipal Law
Property Related Fees
• Who gets notice? State law (AB 1260) says send notice:
by including with regular billing statement or to address to which agency customarily mails the billing statement;
If preserving any lien rights for collection, send also to record owner’s address, if different than billing address
NOTE: With rented properties, this notice may only get to tenants and not property owners. BB&K recommends notice be sent to record owners in addition to tenants, even if agency will not preserve lien rights for fees (Prop. 218)
Municipal Law
Property Related Fees
• Notice sent at least 45 days prior to “majority protest” hearing
• Notice must contain the following:
Parcels identified
Amount of fees proposed to be imposed upon each parcel
Basis upon which fee amount was calculated
Reason for fee
Date/time/location of “majority protest” hearing
• We strongly recommended that notice also include:
Statement that “majority protest” will terminate all proceedings
That only written protests will be counted (no telephone, e‐mail or faxed protests)
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Municipal Law
Property Related Fees
• In contrast to an assessment, notice for a fee “majority protest” hearing need not include a ballot
• Written protests may be submitted, changed, or withdrawn at any time prior to the conclusion of the “majority protest” hearing
• Law is unclear whether “pre‐counting” of protests is allowed, but many agencies do it (see next page for counting tip)
Municipal Law
Property Related Fees
• How to determine if there’s a “majority protest”
Votes are not weighed like assessment. If > 50% plus 1 of the total parcels subject to the fee file a written protest, there is a “majority protest” and the fee fails
If any single owner/tenant representing a parcel submits a protest, that entire parcel protests, even if a co‐owner/co‐tenant writes in support
• PRACTICE TIP: Count total envelopes received without opening them. If total number is not close to 50% of total notices sent, declare no “majority protest” and continue with hearing
Municipal Law
Property Related Fees
• With a water, sewer or refuse fee, if no “majority protest”, legislative body may adopt fee in full, in part, or not at all (discretionary call)
• For any other fee (e.g. stormwater) if it survives “majority protest”, must go to an “election” for final approval, at least 45 days after “majority protest” hearing
• State law allows either a standard “poll” election or by mailed ballot (similar to assessment)
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Municipal Law
Property Related Fees
• Voter approval requirements:
majority vote of the “property owners” = 50% plus 1 of all ballots sent to owners and tenants (if applicable) – votes are not weighed; or
2/3 vote of the electorate residing in the area affected by the fee
Municipal Law
Development Fees
Municipal Law
Development Fees
• Mitigation Fee Act (aka “AB 1600 Requirements” or Gov. Code § 66000 et seq.) applies to fees “imposed as a condition of approval of a development project”, including:
Development impact fees
Planning, building and land use application fees (e.g.: use permits, variances, zone changes, building permits, etc.)
Listed in Gov. Code, § 66016 (d)
• Does not apply to: Copy costs, administrative charges, application fees and permit costs not tied to development, etc.
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Municipal Law
Development Fees
• Notice must identify date/time/place of public hearing, as well as:
General explanation of fee to be considered; and
Statement that “cost report” or data justifying fee is available, including:
• amount of cost required to provide the service for which the fee or service charge is being established or increased; and
• other revenue sources anticipated to provide the service, including General Fund revenues.
Municipal Law
Development Fees
• Notice of public hearing (with general explanation of fee) published at least twice, 5 days apart, for 10 days prior to hearing, in a newspaper of general circulation
• Notice also sent by mail to persons who file a written request for notice at least 14 days prior to hearing
Municipal Law
Development Fees
• “Cost report”/data justifying fee must be available for public inspection/copying at least 10 days prior to the public hearing
• AB 1600 only imposes a noticing requirement – no “majority protest” or “voting” process prior to adoption of a development fee
• After noticed public hearing, development fees may be adopted by ordinance or resolution – but, not effective for 60 days
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Municipal Law
Eminent Domain
• Notice of Intent to Adopt a Resolution of Necessity
• First class mail to each person whose property is to be acquired (last equalized assessment roll)
• State the following:
The intent of the governing body to adopt the resolution
The right of the recipient to appear and be heard on the matters referred to in Section 1240.030
Failure to file a written request to appear and be heard within 15 days after the notice was mailed will result in waiver of the right to appear and be heard
Legal description of property
Time and place of hearing
• Mail so that it is received at least 15 days before the hearing
Municipal Law
Redevelopment Dissolution
• Oversight Board Actions
Send written notice of actions to Dept. of Finance
Post on Successor Agency or Oversight Board websites
• Disposal of Assets
Requires advance public notice
10 days prior
Unspecified manner of notice (we recommend three locations)
Municipal Law
Notice, Notice, and More Notice
• There are many other areas where formal public notice is required:
Fiscal Emergency Declarations
Districts, Districts, and More Districts
• Community Finance, Community Rehabilitation, Open Space Maintenance, Recreation and Park, Resource Conservation, and many more
Economic Development Subsidies
Williamson Act contracts
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Municipal Law
Notice, Notice, and More Notice
• There are many other areas where formal public notice is required
Drought – Water shortage emergency declarations, water conservation programs, urban water management plans
Franchises
Street easement vacations
Certain long‐term leases
Park closure or conversion
Nuisance Abatement
• Many, many, more . . .
Municipal Law
Remember
• Check the Municipal Code for additional or more restrictive noticing requirements
• If Charter City, always check the Charter and consult with your City Attorney
May not need to fully comply – plan as if you will though
• As soon as a problem is seen, let local agency counsel know and plan a course of action
Municipal Law
Thank you for attending.
Thomas A. Rice AssociateBest Best & Krieger LLP2855 East Guasti Road, Suite 400Ontario, CA 91761Phone: 909‐466‐4913 Email: [email protected]
Jennifer J. LynchAssociateBest Best & Krieger LLP18101 Von Karman Avenue, Suite 1000Irvine, CA 92612Phone: 949‐263‐6580Email: [email protected]
