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[VIDEO] Free BB&K Webinar Series: Prop. 64 - Legalized Marijuana: Challenges and Choices

30 Nov 2016 00:00:00 -0800

Free Webinar Series on Proposition 64
On Nov. 8, California voters approved Proposition 64, legalizing recreational use of marijuana. Prop. 64 promises to usher in a new era, with the growth of the recreational marijuana industry and changing attitudes toward marijuana use, and with it, new challenges and opportunities for local governments, regulators, local staff, and the entrepreneurs and landowners who will be vital to the growth of the new industry. For the past several years, Best Best & Krieger has worked hard to keep itself on the cutting edge of marijuana issues, drafting dozens of regulations and working with public agency clients to create marijuana policies that serve their best interests. Now, BB&K is introducing a webinar series to map out this brave new world.

First Webinar - Nov. 30
"The Basics - Cultivating New Regulations and Confronting New Challenges Presented by Marijuana Legalization"
In this first installment, BB&K attorneys Victor Ponto and Jordan Ferguson walked through the Prop. 64 basics: What the law does, what is allowed and not allowed, how local governments can regulate, and the timelines for implementation.

Who Should Attend:

Elected officials
City managers
Planning directors
Finance directors
Police department officials
Fire department officials
Building inspectors
City staff at all levels who may be involved in permitting, enforcement, or policy
Landowners or landlords
HOA members
Entrepreneurs hoping to enter the marijuana industry

When
Wednesday, Nov. 30
10:30 - 11:30 a.m. PST

Click here for questions.

Future Prop. 64 Webinar Topics - Dates to be Announced Soon:

Employer Implications of Prop. 64
Tax and Ballot Measure Implications
Land Use and CEQA Implications
Public Safety Implications

Materials
Prop 64: The Basics - Cultivating New Regulations and Confronting New Challenges Presented By Marijuana Legalization

To view a recording of the webinar, click here.

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.

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.

Cities Mull Means to Smoke Out Tax Revenue from Recreational Weed

12 Sep 2016 00:00:00 -0800

As cities across California prepare for the legalization of recreational marijuana use with the likely passage of Proposition 64 in November, Best Best & Krieger LLP Partner Jeffrey Dunn discussed cities’ options with the Los Angeles Business Journal.

“We’re seeing much more interest from cities in revenue generation,” Jeffrey said.

Cities must also prepare now for the law taking full effect in January 2018, Jeffrey told the newspaper. “Cities got caught off-guard when medical marijuana dispensaries suddenly exploded here in Southern California,” he said. “Many received complaints from citizens and other businesses about the dispensaries suddenly appearing, and they reacted reflexively with moratoria and bans.”

To read the full article, originally published in the Sept. 12, 2016 Los Angeles Business Journal, click here (subscription required).

Ninth Circuit Upholds Ban on Mobile Ads in Los Angeles, Other California Cities

24 Aug 2016 00:00:00 -0800

Best Best & Krieger LLP attorney Victoria Hester was interviewed by Legal Newsline on the U.S. Ninth Circuit Court of Appeal’s decision to uphold ordinances that ban mobile billboards.

“The court determined that in targeting 'advertising,' the ordinances regulated the manner (not the content) of the affected speech, and were narrowly tailored to achieve significant government interests," Victoria told Legal Newsline.

“The policymakers cite traffic control, public safety, and aesthetics as reasons for adopting the ordinances,” Victoria said.

To read the full article, which was posted Aug. 1, 2016 to Legal Newsline, click here.

Ninth Circuit Upholds Cities’ Regulation of Mobile Billboards

13 Jul 2016 00:00:00 -0800

Municipal ordinances prohibiting mobile billboard advertising were recently upheld by a federal appeals court. The U.S. Ninth Circuit Court of Appeals found that the ordinances withstood First Amendment scrutiny as content-neutral, reasonable, time, place and manner restrictions on speech.

Between 2010 and 2012, the California Legislature enacted a series of amendments to the Vehicle Code empowering municipalities to regulate two types of mobile billboard advertising: advertisements affixed to portable, non-motorized wheeled vehicles, and advertisements attached to motorized vehicles. In response, five cities (Los Angeles, Santa Clarita, Rancho Cucamonga and Loma Linda) passed nearly identical ordinances banning both types of mobile billboards and permitting public officials to exact civil penalties and impound vehicles in violation. Los Angeles passed an ordinance prohibiting advertising signs painted or affixed to motorized vehicles that extend beyond the overall length, width or height of the vehicle, or make the vehicle unsafe to be driven. The other four ordinances make it unlawful to park a “mobile billboard advertising display” on any public street within city limits.

Local business owners who use mobile billboards to advertise sued the cities, claiming that the ordinances are facially invalid because they violate the freedom of speech guaranteed by First Amendment.

Although regulations affecting speech in traditionally public fora, such as sidewalks and city streets, are presumed to be invalid, government may impose reasonable time, place, and manner restrictions, if the regulation is content-neutral and narrowly tailored to serve a significant governmental interest. The plaintiffs argued that, because the ordinances at issue target only “advertising” and not other forms of speech, the ordinances are content-based. The court disagreed.

Distinguishing Reed v. Town of Gilbert — a 2015 U.S. Supreme Court case that struck down a city ordinance that regulated directional signs differently from other signs — the court held that the mobile billboard ordinances were content-neutral. In an opinion issued July 7, the court explained that, because the word “advertising” refers to the activity of displaying a message to the public, not to any particular content that may be displayed, a regulation targeting advertising is not content based on its face.

In contrast to the ordinance at issue in Reed, the mobile billboard ordinances do not single out a specific subject matter for differential treatment. The court held that the ordinances were narrowly tailored to significant government interests in traffic control, public safety and aesthetics. In fact, the court held that the cities’ interest in aesthetics alone justifies the ordinances because the ordinances directly serve the stated interest. In addition, the ordinances left open adequate alternative opportunities for advertising — the plaintiffs were free to display the same advertising in a different manner.

The case is Lone Star Security & Video v. City of Los Angeles et al. (Case Nos. 14-55014 and 14-55050).

If you have any questions about this opinion or how it may impact your agency, 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.

BB&K Attorney Todd Leishman Honored by IMLA for Amicus Brief in Billboard Ban Case

25 Apr 2016 00:00:00 -0800

For Immediate Release: April 26, 2016

Media Contact: Denise Nix • 213.787.2552 • denise.nix@bbklaw.com

WASHINGTON, D.C. – Best Best & Krieger LLP attorney Todd Leishman was one of the recipients of an Amicus Service Award from the International Municipal Lawyer’s Association during the organization’s Mid-Year Seminar in Washington, D.C.

Leishman was acknowledged for his amicus brief to the California Appellate Court in the Lamar Central Outdoor v. City of Los Angeles. On behalf of IMLA and the American Planning Association, Leishman’s brief supported the City’s position that its ban on offsite billboards, including alterations of existing signs or any with digital displays, was lawful. The Second District Court of Appeal reversed a lower court ruling and sided with the City.

The Awards go to lawyers who are actively involved in legal advocacy for, and on behalf of, local governments and IMLA, and who have done “exemplary work to protect and advance local government interests,” according to the organization.

Leishman, who is of counsel at BB&K, assists public and private clients in transactional and litigation issues in municipal government, land use and environmental law. He is a graduate of the J. Reuben Clark Law School at Brigham Young University.

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Best Best & Krieger LLP is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With 200 attorneys, the law firm has nine offices nationwide, including Los Angeles, Sacramento, San Diego and Washington, D.C. For more information, visit www.bbklaw.com or follow @BBKlaw on Twitter

City Ordinance Banning New Outdoor Billboards, but Authorizing Relocated Ones, Upheld by California Court

01 Feb 2016 00:00:00 -0800

The City of Corona has prevailed in a constitutional challenge to its enforcement of a 12-year-old ordinance banning new outdoor advertising billboards, but authorizing relocated billboards within City limits. In City of Corona v. AMG Outdoor Advertising, Inc., the Fourth District Court of Appeal found no constitutional violation and affirmed the trial court’s issuance of a preliminary injunction requiring AMG Outdoor Advertising to remove a billboard that the firm installed without a permit. The court’s opinion, issued Jan. 7, initially was unpublished. Last week, the Fourth District ordered the case published, which means it now is precedential law.

In 2004, the City adopted an ordinance prohibiting all new off-site billboards, also referred to as “outdoor advertising signs,” within the City. The ordinance includes a grandfather exception that allows permits for billboards erected before the ordinance took effect to be relocated within the City, pursuant to a relocation agreement with the City. Relocation agreements for existing billboards are authorized by California Government Code section 5412.

AMG Outdoor Advertising is a Southern California owner and operator of off-site billboards. In late 2014, the firm sought a permit from the City to erect an off-site billboard. City staff refused to provide a permit application, citing the 2004 ordinance. AMG nonetheless erected a billboard within City limits without a permit. The billboard advertised a bar owned by AMG’s owner, as well as a casino resort and spa. The City successfully sought a preliminary injunction from the trial court, which prohibited AMG from using the billboard and required the firm to immediately remove it.

AMG challenged the injunction on Constitutional grounds. The firm contended that the City applied the 2004 ordinance in an unlawfully discriminatory manner, arguing that other billboards that were relocated within the City after the ordinance took effect were “new” billboards. AMG further asserted the City had impermissible unfettered discretion to approve or deny new billboard applications.

The court disagreed. The evidence showed that the relocated billboards cited by AMG were installed prior to the ordinance’s adoption and were properly moved to other sites within the City pursuant to the requisite relocation agreements. This did not represent unlawful discrimination, nor unfettered discretion by the City to approve or deny new billboard applications. Rather, according to the court, it constituted “orderly relocation” of already existing billboards, which the ordinance allows. The court concluded that, because the 2004 ordinance banned all new off-site billboards and the record showed the City uniformly enforced it, “the City had no authority to discriminate and did not in fact discriminate among any new off-site billboard applicants.”

The court also rejected other claims by AMG that the 2004 ordinance violated the firm’s equal protection rights, amounted to an unconstitutional prior restraint on free speech, and violated the firm’s free speech rights under the California Constitution. With regard to the California Constitutional challenge, the court relied on “the law of the land” in Metromedia, Inc. v. City of San Diego, in which a plurality of the U.S. Supreme Court concluded that a City of San Diego ordinance did not violate the First Amendment to the extent that it banned all off-site commercial billboards.

For more information about this decision and how it may impact your agency, contact the authors of this Legal Alert listed at 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.

Arizona Town’s Content-Based Sign Rules Struck Down by U.S. Supreme Court

02 Jul 2015 00:00:00 -0800

The United States Supreme Court recently struck down portions of an Arizona town’s sign code that subjected ideological, political and directional signs to different rules with respect to size, location and length of display time. In Reed v. Town of Gilbert, Arizona the Supreme Court found that such rules were content-based (as opposed to content-neutral) and, therefore, valid only if narrowly tailored to serve a compelling government interest. The Court concluded that the Town failed to meet this very strict legal standard. On the other hand, the Court was clear that content-neutral rules are permissible and subject to a more lenient standard of review. Therefore, as long as the regulation is not based upon a sign’s message, local governments may regulate the size, lighting, location, timing, and number of signs, including fixed versus electronic messaging, placement on public versus private property, commercial versus residential property and on-premises versus off-premises signs.

The Gilbert, Arizona sign code generally prohibits the display of outdoor signs without obtaining a Town permit. However, the code exempts various types of signs from this permit requirement. Among these are ideological, political campaign and temporary directional signs. These three types of signs were subject to different rules as to size, location and display time. For example, ideological signs could be up to 20 square feet and could be displayed in any zone indefinitely. Political campaign signs could be up to 16 square feet on residential property and up to 32 square feet on non-residential property, and displayed up to 60 days prior and 15 days after an election. Temporary directional signs to local religious, charitable and similar community events were subject to the most restrictive standard. They could be no larger than six square feet each, with a maximum of four signs on any one property, and could be displayed on private property or the public right of way for no more than 12 hours before and one hour after the event.

A local “itinerant” church (one with no permanent location) often posted temporary directional signs around the Town to inform parishioners where services would be held that week. However, on several occasions, the church didn’t remove the signs within the short timeframe set by the Town’s sign code and was, therefore, cited by the Town. When efforts to work out an accommodation proved unsuccessful, the church sued the Town on grounds that the sign code was an impermissible content-based regulation in violation of the First (free speech) and Fourteenth (equal protection under the law) Amendments.

The Supreme Court held that the sign code was content-based on its face because it subjected signs to different rules depending upon the message conveyed (whether ideological, political or directional). Content-based regulations are subject to the strictest review by the Court and are presumed unconstitutional unless the local agency can show that they are narrowly tailored to serve a compelling government interest. Local agencies can rarely satisfy this standard, as was the case here. The Court found that the sign code was not narrowly tailored to protect local aesthetics because an ideological sign (which may be larger and remain indefinitely) can cause as much or more impact than a more strictly regulated temporary directional sign. The Court also discounted the fact that the Town had no specific personal disagreement with the church’s message. Content-based regulations are presumed unconstitutional whether or not a local agency has a problem with a particular message.

Local agencies are strongly urged to review their sign codes to evaluate whether they have similar rules that treat signs differently based upon the content or type of message conveyed. For more information regarding the Supreme Court’s decision and how it may impact your local code, please contact one of the attorney authors of this legal alert listed to the right in the Municipal Law practice group, or your Best Best & Krieger attorney.

2014 Legislative Highlights

29 Apr 2015 00:00:00 -0800

INTRODUCTION

The 2014 Legislative session was notable for the continued inability of the Legislature to resolve a series of high profile real property related issues that were carried over from previous sessions. This inability persisted despite the existence of Democratic Party supermajorities in both houses and indicates either the intractable character of these issues or the existence of divisions on these issues within the Democratic Party. Most likely both factors played a role in the Legislature's ineffectiveness.

One of the most prominent of these issues was reform of the California Environmental Quality Act ("CEQA"). Although there was a general recognition that CEQA reform could be important to facilitate development activity in California, the 2014 session was nevertheless relatively quiet with respect to new CEQA legislature in comparison to the last two years. A total of thirty-one bills relating to CEQA were introduced in the 2013 session, with six bills eventually signed into law. In 2014, only fifteen bills were introduced and only twelve of them were actually new bills, with only five bills eventually being signed into law. The most notable of these bills, AB 52, establishes a new and powerful role for California Native American Tribes in the CEQA process by adding several provisions to CEQA dealing with impacts on "tribal cultural resources." Of course, this is not the type of CEQA reform desired by those who want to streamline the CEQA process to facilitate development.

A second issue of continued concern was how the Legislature would address the void left by the dismantling of California's five billion dollar per year redevelopment programs that took place in 2012. Although Governor Brown vetoed a number of bills meant to address this problem, he did sign legislation that expands the existing mechanisms of infrastructure financing districts to provide tax-increment financing authority for capital improvement projects, many of which may overlap with projects once carried out by redevelopment agencies. While this is only a partial fix, it appears to be as far as the Governor is willing to go in resurrecting what was previously considered an essential development financing tool.

The third major issue of continued concern was Proposition 13 reform. These reform efforts have been a continuing occurrence for many years now. In 2014, these efforts took a different turn, which nearly resulted in the enactment of a historic compromise agreement (AB 2372) regarding change of ownership abuses. However, in the end, this reform effort also failed in the waning hours of the 2014 Legislative session. The expectation is that this issue will resurface in 2015 as both parties prepare for the 2016 election.

To read the entire article in the Spring 2015 California Real Property Journal, click here. First published in the California Real Property Journal, a quarterly publication of the Real Property Section of the State Bar of California. Reprinted with permission.