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Are Private E-mails & Text Messages “Public Records?”

09 Dec 2016 00:00:00 -0800

Public agencies in California should prepare for the likelihood that communications on officials’ and employees’ private devices related to the agency’s “conduct of the public’s business” will be subject to disclosure under the state’s Public Records Act. While it is impossible to predict exactly how the California Supreme Court will rule on this issue, questions and comments from the bench during oral argument on Wednesday makes it appear likely the justices will strike down a lower court’s decision. That would mean that such communications are subject to disclosure under the PRA, even if those communications are not retained by or in possession of the public agency.

This “open government” issue has simmered — if not raged — for years. A number of trial courts have found such communications are subject to the PRA. However, in 2014, the Sixth District Court of Appeal held in a published opinion that, because the City of San Jose did not have access to messages on the private accounts and devices of its officials, those records were not “public records” required to be disclosed under the PRA. The California Supreme Court soon after agreed to review that decision. City of San Jose et al. v. Superior Court (Smith) S218066. Public agencies and open government advocates have been anxiously awaiting resolution of the question.

If the discussion during oral argument reveals the thinking the justices will bring to their deliberations, and are a harbinger of their upcoming decision, it appears likely the Court will strike down the appellate court’s decision and hold that such communications are subject to disclosure under the PRA. The Court has 90 days to issue its decision, although it regularly issues opinions within 45 to 60 days of argument.

The Court’s decision will have an immediate impact, as it will be the final word on the subject, and binding on all agencies and courts throughout California. Given the recent history of this issue in the lower courts, it is anticipated that open government advocates and the media will immediately begin to make public records requests for communications on the private devices of officials and employees, if the Supreme Court holds as the tenor of the questions at oral argument seemed to indicate.

Officials and employees should be alerted now to the potential that, within the next two to three months, or less, communications on their private devices related to their agency’s “conduct of the public’s business” (a term that has been broadly construed by the courts) will be subject to disclosure under the PRA. Agency officials should give thought as to how to accommodate privacy and free speech concerns of its officials, employees and constituents; how to account for and “capture” covered communications; how to ensure compliance with the inevitable requests that will be made; how to meet the time constraints of the PRA in this new milieu; and how to address requests for communications for former officials and employees that could still exist.

Best Best & Krieger LLP lawyers are prepared to assist in meeting the legal, policy and procedural compliance challenges, regardless of the result of the Court’s decision in this case. If you have any questions about this case or how it may impact your agency, please contact the attorney authors of this Legal Alert in the firm’s Municipal Law practice group, or your BB&K attorney.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Claims Resolution Procedure Changes

02 Dec 2016 00:00:00 -0800

Claims resolution procedures for public contracts in California will change under a new law that takes effect Jan. 1. Assembly Bill 626, recently signed by Gov. Jerry Brown, establishes a claims resolution process applicable to any contractor claim, as defined, filed in connection with a public works project for contracts entered into on or after Jan. 1, 2017.

Public Contract Code section 20104, which remains in place and establishes a dispute resolution procedure for local agencies, only applies to public works claims of $375,000 or less; however, AB 626 will apply to all public works claims, regardless of the amount.

Within 45 days of receipt of any claim, AB 626 requires specified public entities to provide a written statement to the claimant identifying the disputed and undisputed portions of the claim. If a written response is not timely issued, the entire claim is deemed rejected. If the claimant disputes the public entity’s response, the claimant may demand a meet-and-confer conference, and any portion of the claim that the parties continue to dispute following the conference is subject to nonbinding mediation.

Payment due on undisputed portions of a claim must be processed within 60 days, and unpaid claim amounts accrue interest at 7 percent per annum. AB 626 also establishes a formal process for subcontractors and lower tier subcontractors that lack standing to assert claims to request the prime contractor to pass through claims, and imposes requirements on the prime contractor with regard to any such requests. AB 626 does not affect other existing claims resolution procedures, such as the Government Claims Act.

Moving forward, this process must be included in the plans or specifications for all public works projects. Best Best & Krieger LLP will issue additional, detailed guidance to clients regarding incorporating these provisions into contract documents. If you have any questions about this legislation or how it may impact your agency, please contact the attorney authors of this Legal Alert, or your BB&K attorney.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Draft Plan Released to Establish Permanent Water Conservation Requirements Throughout California

02 Dec 2016 00:00:00 -0800

Urban water agencies would face an increasingly expansive set of water conservation laws and regulations under a new draft plan released Wednesday. The plan, which also addresses water use in agriculture and other sectors, was developed jointly by five state agencies, including the State Water Resources Control Board and the Department of Water Resources. Public comments on the plan are due Dec. 19.

The draft plan was developed in response to Executive Order B-37-16, which Gov. Jerry Brown issued May 9 to address drought preparedness and long-term water conservation. While a number of the draft plan’s provisions would be implemented under already existing authorities, other elements would require either rulemaking by state agencies or new legislation.

During the past two years, water supply agencies have had to deal with challenging emergency water conservation regulations adopted by the State Water Board in the face of a lingering and serious statewide drought. The draft plan moves away from the piecemeal emergency regulatory approach by calling for a new permanent water conservation regime for the State.

A key element involves a requirement that the state’s 410 urban water suppliers meet new water use targets, which would be set locally based on state standards applied to unique local conditions. The proposed new approach is designed to take into account the unique climatic, demographic, geographic and land-use characteristics of each urban water agency’s service area. The Executive Order requires that the new water use targets build on existing statutory requirements that the State achieve a 20 percent reduction in urban water usage by 2020. Under the proposed regime, DWR and the State Water Board would develop new standards by 2020 to address four sectors:

Indoor residential per capita water use
Outdoor irrigation
Water lost through leaks
Commercial, industrial and institutional water use

Local urban water suppliers would calculate their own unique water use targets based on the state standards, and would be required to achieve compliance by 2025. The targets would change each year because, although the standards would be permanent, the targets would be based on variable metrics including population, landscape area and evapotranspiration. The draft plan calls for suppliers to submit annual progress reports to the State, as well as monthly and annual water use data. Suppliers failing to meet their targets could face enforcement actions by the State Water Board.

The draft plan implementing the Executive Order contains a number of other elements, including:

Potential extension of the Board’s current emergency water conservation regulations, which are in effect through February 2017, for an additional 270 days, depending on ongoing drought conditions.
Establishment of permanent monthly urban water use reporting requirements and permanent prohibitions on wasteful water practices, such as hosing down sidewalks, through State Water Board rulemaking.
New measures achieved through rulemaking by several agencies to reduce water lost through leaks.
New legislation requiring urban water suppliers to submit “Water Shortage Contingency Plans” to the State, to conduct a “Five-Year Drought Risk Assessment” every five years, and to submit a water budget forecast annually to the State.
New actions to improve drought preparation among small water suppliers and rural communities.
New legislation placing water use efficiency and drought planning requirements, such as water budgets and water management plans, on suppliers of water to agricultural users.

Comments on the draft plan should be submitted to wue@water.ca.gov no later than Dec. 19, 2016. More information can be found here.

Best Best & Krieger’s attorneys can assist public agency clients in responding to the draft plan. If you have any questions about this draft plan or how it may impact your agency, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Special Districts practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Marijuana Legalization Creates New Challenges and Choices for Local Governments in California

17 Nov 2016 00:00:00 -0800

On Election Day, Californians approved Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, which legalized recreational use of marijuana for adults. The marijuana industry in California is likely on the precipice of explosive growth, with recreational retailers, dispensaries, cultivation operations, manufacturers, testing laboratories and delivery services primed to open for business and take advantage of the new market. While Best Best & Krieger has already worked with clients to write dozens of ordinances and regulations dealing with both medical and recreational marijuana, many cities and counties have yet to act to regulate recreational marijuana.

As of Nov. 9, AUMA will not only permit recreational use of marijuana by adults, but it will also allow indoor cultivation of up to six marijuana plants in any private residence or accessory structure. While AUMA allows local governments to “reasonably regulate” indoor cultivation — such as through requiring a permit prior to cultivating — the law will no longer allow an outright ban on indoor cultivation in private residences or accessory structures. AUMA does, however, maintain local authority to regulate or ban all outdoor cultivation and all commercial marijuana activity, including dispensaries, manufacturers, testing laboratories and delivery services, as well as any other marijuana businesses that may spring up to meet new market demands.

AUMA also creates a statewide licensing and regulatory system for commercial marijuana activities, and requires that the Bureau of Marijuana Control begin issuing licenses before Jan. 1, 2018. This means that, while recreational use and indoor cultivation are already legal throughout California, in most situations recreational dispensaries, delivery services and other commercial marijuana businesses cannot open their doors until the State begins issuing licenses. AUMA also imposes a 15 percent sales tax and a cultivation tax of $9.25 per ounce for flowers and $2.75 per ounce for leaves, with exceptions for medical marijuana sales and cultivation.

Local governments should review their current regulations and consider enacting regulations surrounding recreational use of marijuana. Some marijuana uses may already be creating new issues in communities across the State, whether in the form of nuisances caused by recreational users, or in the more serious forms of fires, explosions or other structural damage caused by improperly designed or operated indoor cultivation areas. In addition to regulating the personal, medical and commercial uses of marijuana, local governments should reexamine their smoking ordinances, begin to consider the potential risks of unregulated cultivation in private homes and think about how they, as employers, will handle the legalization of recreational marijuana.

Beyond that, local governments should consider the opportunities created by recreational marijuana legalization, including the AUMA imposition of local taxes on any allowed marijuana use. As California ushers in a new era and a new industry, local governments should keep their eyes open for opportunities that best serve their interests. For some cities, that will mean banning as many marijuana uses as they can. For others, it will mean opening their doors to some, or even all, marijuana businesses to benefit from potential tax revenue or to place themselves on the cutting edge of an emerging industry.

BB&K will be offering a free webinar series on the challenges and choices presented by Prop 64. The first in the series, “The Basics - Cultivating New Regulations and Confronting New Challenges Presented by Marijuana Legalization,” is scheduled for Nov. 30 at 10:30 a.m. PST. For more information and to register, click here. You may also contact the attorney author of this Legal Alert listed at the right in the firm’s Municipal Law group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

The Future of U.S. Infrastructure and Local Control Amid Post-Election Uncertainty

15 Nov 2016 00:00:00 -0800

Last week, the nation experienced an election unlike any other in history. A major party candidate broke with his party’s governing philosophies, yet led that party to the presidency as well as preserving control of both chambers of the Congress. This week, Congress returns for a lame duck session in which few major votes are expected until December. This may be a good thing as House and Senate leaders are not sure what, if anything, the rank and file are willing to support. We do know that they must fund government beyond a Dec. 9 deadline. It is also highly likely that a major water funding bill will be enacted and signed before the end of the year.

In the next six months, the federal government will remake itself in the Donald Trump promise of economic populism, proactive deregulation and America-first nationalism. The challenge for local governments and special districts will be to align their advocacy messages with these themes for successful outcomes.

Funding for Infrastructure and Job Creation
Both presidential candidates, and their respective parties, agreed that the nation needs a major investment in infrastructure and the domestic jobs such an infusion could create. Both parties also seemed to agree that the way to fund this is to change our tax code such that corporate America would repatriate billions of tax dollars currently sitting offshore. These infrastructure investments are anticipated to fund water, power, communications, and transportation (air and ground) improvements — the life blood of every community!

Opportunity to Advance Local Control
There will also be opportunities for local governments to demonstrate that some current and proposed federal regulations are exercises in preemptive overreach and should be withdrawn or repealed. But local government will have to be vigilant of efforts by corporate America to ride this deregulation wave to preempt local governments’ ability to manage their own communities.

BB&K’s Government Relations Team is Ready to Assist
Best Best & Krieger government relations professionals are well-positioned to help clients identify advocacy and funding opportunities in the year to come, frame their messages to be relevant in this new government environment, and arrange productive meetings with the new policymakers in both Washington, D.C. and Sacramento. Note that visits to D.C. should be scheduled in late-March or later to allow time for the new team to be in place.

For more information on BB&K government advocacy services, please contact the authors of this Legal Alert listed to the right in the firm’s Municipal Law and Government Relations Services practice groups, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Billboard Regulations: Cities and Counties

10 Nov 2016 00:00:00 -0800

The Outdoor Advertising Act does not preempt local regulation of billboards, a California appellate court has ruled. In a decision that carries major implications for the California billboard industry, the Second District Court of Appeal clarified in Arthur D’Egidio v. City of Santa Clarita that municipalities may enact billboard regulations that are more stringent than the Act and that a city may abate billboards in an annexation area where those billboards did not conform to county laws prior to annexation.

The billboard in question had originally conformed to the Los Angeles County sign ordinance as on-site advertising for a residential housing project. However, the sign was subsequently purchased by owners who committed the sign to general commercial advertising unrelated to on-site home sales. This new use did not conform to the County regulations at the time or to Santa Clarita’s regulations after the area was annexed. The sign’s owners argued that its non-conformance was irrelevant because section 5270 of the Act preempts all local regulation of freeway signs by providing that it is “exclusive of all other regulations . . . .”

The trial court granted summary judgment to the City in its billboard abatement lawsuit, finding no preemption of the City’s sign regulations. In a decision handed down Oct. 24, the Court of Appeal found that courts have interpreted this statutory provision inconsistently over the years. However, after an exhaustive review of section 5270’s legislative history and the Act’s overall structure, the D’Egidio v. City of Santa Clarita court held that “[d]espite [section 5270’s] statement of exclusivity, the Act also contains several provisions that authorize counties and cities to enact regulations or ordinances affecting the placing of billboards, imposing restrictions on advertising displays adjacent to any highway, or requiring permits and/or licenses for the placing of billboards in view of any highway.” Thus, section 5270 preempted neither the County’s nor the City’s billboard regulations.

The court also held that the City was not prevented from enforcing local sign laws against a non-conformity that began nearly 20 years ago, and it awarded the City attorney’s fees for its abatement efforts.

Here are three takeaways from this case:

Municipal billboard regulations may be more restrictive than those found in the Act.
Cities annexing billboards may apply city regulations to the billboards, subject to rules for amortization and related Constitutional constraints.
A billboard’s legality may depend on its conformance to county regulations at the time of its placement.

Regulations may take the form of zoning ordinances or sign permits, for example. Cities and counties should pay close attention to the conformity of signs to regulations at the time they are constructed, when new ordinances are adopted and at the time annexations occur.

Best Best & Krieger LLP advises numerous public and private entities on these and related issues throughout California and other states. If you have any questions about this case and how it may impact your agency or project, please contact the attorney author of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Evaluating a Project’s “Exacerbation” on Existing Environmental Hazards

10 Nov 2016 00:00:00 -0800

A significant decision interpreting the scope of the California Supreme Court’s ruling in California Building Industry Association v. Bay Area Air Quality Management District was handed down earlier this week by a state appellate court. While the Third District Court of Appeal set aside an environmental impact report for a residential project on grounds that it lacked an appropriate significance threshold for evaluating traffic impacts, it also rejected a claim that the EIR failed to consider the “exacerbation” of existing environmental hazards.

In CBIA v. BAAQMD, the Supreme Court held that the California Environmental Quality Act does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users and residents. But, the Court also opined that lead agencies should consider whether a project could exacerbate existing environmental conditions.

The Court of Appeal has now applied the Supreme Court’s reasoning in considering whether an EIR for a 328-unit residential development adequately analyzed the alleged “exacerbation” of environmental impacts associated with a nearby freeway, a former landfill and railroad tracks. In East Sacramento Partnership for a Livable City v. City of Sacramento, challengers asserted that the EIR failed to analyze the increased cancer risk to the project’s future residents associated with the airborne pollutants from the freeway and railroad tracks. They also claimed it did not consider the risk of methane gas migration from the former landfill. They alleged that the additional vehicles, residents and visitors coming to the project site would “undeniably” exacerbate the health risks already associated with the existing environmental conditions. The court rejected this argument on grounds that the project opponents pointed to no substantial evidence to support their claim, and instead asserted mere conclusions and unsupported opinions.

While the court directed the lead agency to correct the EIR’s threshold for traffic impacts, it upheld the EIR in all other respects. Indeed, this case can be viewed as a victory for lead agencies and project proponents throughout the State. Prior to this decision, many lead agencies questioned when they must analyze a project’s potential to exacerbate existing environmental conditions. As shown here, the mere existence of multiple hazards near a project site is insufficient to require an EIR to consider the question of “exacerbation;” instead there must first be substantial evidence showing that a project could exacerbate existing hazards.

If you have any questions about this opinion or how it may impact your agency, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Request to Hear Police Video Case Denied by California Supreme Court

02 Nov 2016 00:00:00 -0800

The California Supreme Court has decided to not reconsider a recent appellate ruling establishing a statewide precedent that police arrest videos cannot be considered confidential officer personnel records, and thus that they cannot be shielded from public view. The Court’s decision relates to an ongoing battle between the City of Eureka and the North Coast Journal over public access to video depicting the arrest of a 14-year-old suspect that led to criminal excessive force allegations against an officer.

The decision by the Supreme Court simply declined to de-publish the previous ruling in the case, meaning the appellate court’s decision stands and can be cited as precedent going forward. The appellate court concluded that video of an arrest captured by a patrol car’s dashboard camera is not a confidential “personnel” record, and thus is not protected by Pitchess statutes. As a result, the court ordered a portion of the arrest video in question be released to a local reporter.

The court determined video footage of an arrest is not information traditionally considered subject to a Pitchess motion, such as confidential citizen complaints and any internal investigations of an officer, but rather is information which would form the basis of a criminal complaint against an officer. Because an arrest video does not relate to an officer’s “advancement, appraisal, or discipline,” it is not a “personnel record” for purposes of Pitchess statutes. The court held only records generated in connection with appraisal or discipline are protected from disclosure, not records that may eventually result in appraisal or discipline. Thus, though an arrest video may lead to an internal investigation, only records produced as part of any investigation would be protected by Pitchess statutes.

The appellate court expressed no opinion on whether the arrest video would be considered a public record under the California Public Records Act, leaving that an open question for the moment.

This case narrows the options of a law enforcement agency seeking to keep video taken in the field from disclosure. While the case itself arguably furthers efforts to promote transparency in law enforcement, the widespread effects of holding these records are not protected by Pitchess statutes remains to be seen. Law enforcement agencies can no longer claim these records are part of a confidential personnel record — yet footage taken by dashboard or body worn cameras may still be exempt from disclosure under the Public Records Act or other provisions of California law. Prior to disclosing any record that may contain sensitive or confidential information, law enforcement agencies should seek advice from their attorneys to determine the best course of action. Compliance with Public Records Act requests must be carefully conducted and scrutinized, both to ensure complete disclosure and to assure that material covered by legal privileges or otherwise exempt from disclosure under the Act is not inadvertently disclosed.

For more information regarding this new decision and how it impacts your agency or public safety department, please contact the attorney author of this Legal Alert listed at the right in the firm’s Public Safety group, or your BB&K attorney.

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Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Financing Increased Demand On Pre-Existing Services Constitutes “Additional Services”

24 Oct 2016 00:00:00 -0800

Community Facilities Districts formed by a landowner vote may be used to finance increased demand on pre-existing services, a California Appellate Court has held. Further, a CFD tax is a special tax and may finance multiple municipal services, so long as the revenue raised is not available for general governmental purposes. This decision reaffirms the flexibility and versatility of CFDs under the Mello-Roos Community Facilities Act of 1982 to fund services, and may be applied more broadly when distinguishing special taxes from general taxes in other contexts.

In Building Industry Association of the Bay Area v. City of San Ramon, a developer sought approval from the City of San Ramon to develop a 48-unit townhouse project. After conducting a study that showed the cost of providing services to the new development would exceed the revenue generated by the project, the City conditioned its approval of the project on the developer providing a funding mechanism to cover the difference. The developer petitioned the City to form a CFD for this purpose. A CFD was formed by a landowner vote (in which the developer was the only landowner), and the City authorized the revenue raised by the CFD to be used for multiple services authorized under the Act. The Building Industry Association of the Bay Area challenged the validity of the tax on the following grounds: 1.) the tax does not provide for “additional services,” 2.) the tax is an unconstitutional general tax and 3.) the City’s ordinance authorizing the tax is unconstitutional because it retaliates against property owners by providing that the City will cease to provide the tax-funded services in the CFD if the CFD property owners repeal the tax in the future.

Government Code section 53313 authorizes CFDs to be formed by landowner vote to finance numerous municipal services if the services are in addition to those already provided in the CFD before formation, and do not replace pre-existing services. BIA argued that the CFD does not provide for “additional services” because it “pays for increased quantities of existing services to meet increased demand.” The court disagreed, stating that pre-existing service levels would be insufficient to meet increased demand in the CFD without an additional cost. The CFD would thus finance services supplementary to, and not in replacement of, pre-existing services. The court further clarified that landowner-approved CFD taxes may be used to satisfy an increased demand for existing services. Further, the Act does not require such a CFD to provide its property owners services that are superior to services in areas not subject to the tax.

BIA also argued that, because the CFD finances “a widely disparate menu of services and facilities” and its purpose is to raise revenue to supplement the City’s general fund, it is a general tax that the CFD is not authorized to levy. Article XIIIC, section 1 of the California Constitution defines a general tax as “any tax imposed for general governmental purposes,” and a special tax as “any tax imposed for specific purposes, including a tax imposed for specific purposes, which is placed into a general fund.” The court disagreed, finding that, so long as the tax is restricted to specific enumerated purposes — even if such purposes are “a widely disparate menu of services” — the CFD tax will not be characterized as a general tax.

Finally, the court rejected BIA’s claim that the ordinance authorizing the CFD tax was unconstitutional because it retaliates against property owners in the CFD if they repeal the tax. The court found that it is not a violation of due process for the ordinance to recognize that if a tax has been imposed to provide additional services and facilities to a CFD, and if that tax is repealed and not collected, there will no longer be funds to provide properties in the CFD with those additional services and facilities, and any obligations that have been incurred to provide those services and facilities will need to be met from other sources.

If you have any questions about this opinion or how it may impact your agency, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Special Districts or Public Finance practice groups, or your BB&K attorney.

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Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

New California Legislation Targets Multifamily Residential Buildings for Water Conservation

19 Oct 2016 00:00:00 -0800

In a move that could have significant implications for water purveyors, residential developers, and landlords and tenants throughout California, Gov. Jerry Brown recently signed Senate Bill 7 into law. Intended to encourage water conservation in apartments and other multiunit developments, SB 7 requires the owner of any multiunit residential and/or mixed-use development constructed after January 1, 2018 to install individual or submeters that measure the quantity of water supplied to each individual unit.

Existing law directs every water purveyor to require—as a condition of new water service—the installation of a water meter to measure water service. SB 7 seeks to bring forth a new era in water conservation by expanding upon this standard in several key ways, including:

SB 7 requires the owner of a newly constructed multiunit residential, commercial or mixed-use structure to install and read submeters, unless the water purveyor either agrees to install and read the submeters or the purveyor is operating under an ordinance or regulation that currently requires individual metering.
SB 7 includes several key exemptions, including for: 1.) low-income housing developments; 2.) long-term health care facilities; 3.) time-share properties; 4.) residential care facilities for the elderly; and 5.) housing at schools and places of education.
SB 7 directs each water purveyor that sells, leases, furnishes or delivers water service to an applicable development for which an application for at least one water connection is submitted after January 1, 2018 to require a measurement of the water supplied to each resident dwelling unit as a condition of new water service.
SB 7 includes several provisions aimed at protecting consumers and tenants. Among them, SB 7 imposes certain requirements for maintaining submeters, billing for water service by property owners, and notice and disclosure requirements to tenants.

While SB 7’s requirements do not go into effect until January 1, 2018, interested parties should begin to prepare now for what could result in a significant investment of time and money in the coming years. Best Best & Krieger LLP advises numerous public and private entities on these and related issues throughout the state. If you have any questions about SB 7 or how it may impact your agency or project, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources and Special Districts practice groups, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.