Local Government

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Local Government Structure:

I. All states have counties or something akin to a county.
II. Counties implement state law at the local level. The counties run the state courts. Counties also provide welfare services. Many counties provide law enforcement services. The county sheriff may also contract with incorporated cities. Principle structure for local government are counties.

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Counties

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local government structure:

I. Exist within counties.
II. Cities provide roads, local law enforcement, Supplemental social services, regulatory functions (regulate the business within the community), land use decisions.

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cities (municipalities)

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local government structure:

I. Boards of education.
II. Tend to focus on one single issue and often time special districts will over lap boundaries of jurisdiction. Power is limited to those particular things that they are allowed to do.

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special districts

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local government structure:

- Elected at Large (can be): Residents in entire county vote for all the supervisors. In a district structure, you divide the county into districts and you get to vote for the person who represents your district and no one else.
- Third system, we have a system where we run for a particular seat. District 1 everyone can vote for it, district 2 everyone can vote for, but they run for a particular seat.
i. At large system can dilute the group that does not have dominance in the whole area. The flip side is that by having a district wide or at large system the person that is running has to appeal to everyone in the county.

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how do district cities, counties get governed:

Elected Board of Supervisors

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local government structure:

basic structure or form is dictated by state law.
i. Most cities are general law cities in California.
ii. 5-member counsel. At large elections, top vote getters get elected.
iii. Most cities in California are known as counsel manager form of government. Where we have an elected city counsel who is responsible to higher a city manager, which hires all the lower employees.

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cities and how people get elected:

general law cities

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local government structure:

City has its own charter, which tells how the city is suppose to be structured. May give city counsel different powers then state law. Charter is the cities constitution and it dictates what can be done from a governmental level. Charter is the city’s constitution.

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cities and how people get elected:

charter city

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local government structure:

I. Hunter v. City of Pittsburgh Pg. 41
a. The court says that even to the extent that you have a contract, those rights are granted by the state and the state can take them away. Cities exist at the power of the state. There powers arise from the state and the state has essentially unlimited power in this area. Important: to emphasizes that cities are creatures of the state.

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local government structure case law

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local government structure:

I. Gomillion v. Lightfoot Pg. 49
1. Notion that cities and counties are creatures of the state. States establish how they form, how boundaries may get adjusted. They have pretty much unlimited power over cities. Exception: for violating the constitutional rights of the individual who live within the cities.

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local government structure case law

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local government incorporation and annexation:

have an existing city that wants to add land outside the city boundary or when residents outside want to become part of city.

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Annexation and Incorporation:

annexation

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local governmnet incorporation and annexation:

taking one of these unincorporated islands within a county and we incorporate as a city. This is two cities that are next to each other but there is an unincorporated portion in the middle of the two cities.

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annexation and incorporation:

incorporation

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local government incorporation and annexation:

a. Taxation: can be a benefit to the city and could be a downside for the taxpayers.
b. Services: annexation adds an additional burden on the city because there is a greater area that they have to provide services to. The people in the annexed area benefit as a result of these additional services.
c. Natural Resources: there might be some kind of mineral rights, oil rights. Park and open space.
d. Development Issues (big issue): modernly the principle reason why annexations occur.

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annexation and incorporation:

reasons for annexation

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local government incorporation and annexation:

a. One of the benefits of Annexation: zoning will allow for development that will generate income.

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benefits of annexation

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local government incorporation and annexation:

a. When there is incorporation there is always local control.
b. LAFCO: has to review all incorporation and annexation to determine whether they are compliant with state law. Would it be more appropriate area to be part of the situation.
c. Have to have a vote of the preserved city.

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annexation and incorporation:

what happens when we have an incorporation

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local government incorporation and annexation:

a. The courts will leave it to the state legislature to decide on annexation. Justiciability asks whether the courts have the authority to decide a claim. Courts will sometimes look at annexation to see if the procedure was complied with but with substantive areas, the courts will leave it to the voters and politics.

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annexation and incorporation:

judicial review of annexation

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local givernment incorporation and annexation:

a. Superior Oil v. City of Port Arthur Pg. 58
i. State have unlimited powers to set forth the rules of annexation. Property owners cannot complain that they do not like the results, and their remedy is to go the legislature. Just diminishing the value of the land is no a taking.

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annexation and incorporation:

Cases regarding annexation

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local government incorporation and annexation:

b. Town of Beloit v. City of Beloit Pg. 63
i. The court said that this is an unauthorized delegation of power.
ii. In this case even when the legislation has given them the power, the court says no we do not want to be involved on this, this is a political question and this is not to engage in political questions on the appropriate boundaries of cities and towns.

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annexation and incorporation case law

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local government incorporation and annexation:

Are ways that existing municipal organizations expand their boundaries by taking in additional area.
a. One reason why they are done is for development issues. School District annexations are typically done to facilitate better service to people with children. Allot of times they are done for people that are outside the area that want to be part of the school district
b. Local government has right to annex, but are not compelled to.

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annexation definition

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local government incorporation and annexation:

i. To have the people in the area petition for annexation.
ii. The city to initiate the annexation

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annexation:

two procedures for annexation

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local government incorporation and annexation:

1. Typically there is some kind of vote requirement for people in the area to be annexed.
2. There are times when the property owners in the outside area will enter into an agreement with the city.

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annexation: two procedures for annexation:

to have the people in the area peition for annexation.

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local government incorporation and annexation:

1. A substantial part of the boundary has to be adjacent to the property that we are annexing.

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annexation: two procedures for annexation:

the city to initiate the annexation

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local government annexation and incorporation:

i. Area that annex’s the white area and diminishes the African American voters
ii. African Americans want to be annexed in and the local government refuses it.

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annexation:

racial discrimination and annexation: Racial discrimination can arise in two different ways

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annexation:


Principle method is to use the federal voting rights act. Requires that certain areas that are deemed covered jurisdictions they have to submit anything to the US attorney general for clearing. Anything that impact voting have to be cleared. Covered Jurisdictions: those that have a documented history of discrimination. These are places primarily in the south but not exclusively.

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racial discrimination and annexation.

challenges

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annexation:

instead of something be an unincorporated area, there are two cities combining into one city.

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racial discrimination and annexation:

consolidation

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annexation:

i. Whether the annexation is going to diminish the minority voting strength or whether the new jurisdiction has percentages that fairly reflect the percentage of people in that area.

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racial discrimination and annexation:

what standard does the justice department look at.

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annexation:

e. City of Pleasant Grove v. United States Pg. 87
i. Court is relying on the voting rights act and whether or not this is an activity that requires free clearance.
ii. If you can show that the area you are annexing is going to remain stable then you do not have to show much.
iii. Compelling annexation is beyond the scope of the federal powers, but the federal powers can prevent racial annexation.

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racial discrimination and annexation:

racial discrimination and annexation case law

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annexation:

a. First type of special district comprises local government entities with the power to tax and levy special assessments. Second type of special purpose government is known as public authorities, comprises government corporations without property taxing powers.

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special districts

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annexation:

Water service is a more regional service rather then something that you will handle for a particular city.

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special districts: water districts

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annexation:

One of the biggest types of special districts are school boards. They have revenue-raising authority, school district can do a partial task. They focus on education alone, school districts have there own governing body.

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special districts

school boards

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annexation:

i. Typically is formed in a geographical area and the way they raise revenue is by assessments of the business within that geographical area and demonstrate how to enhance or promote the business’s in that area.

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special districts

business improvement districts

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annexation:

To whom are these people accountable. They are essentially generating revenue that would otherwise be municipal revenue and there is no accountability as to how these expenditures are made.

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special districts:

accountability

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local government power and state preemption:
there is a time where state doctrine is preempted because it is in conflict of federal law.

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the powers of local government:

pre-emption

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local government powers and state preemption:

II. Since cities are the product of state law, state law will also be the source of city power. Just like states create cities and the procedures of city unites, the same thing is true to respect to local power. Local Powers: derive from the state grant of power.

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the powers of local government

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local government power and state preemption:

Generally says that cities, local government have control over there jurisdiction and they have the power to do anything unless there is a specific state prohibition on local action. A home rule approach says that your powers do not derive from the state, you as a city have the authority to rule your home as you see fit, unless the state has a specific ban on some local government action.

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the powers of local government:

Home rule approach

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local government power and state preemption:

California is in part a home rule jurisdiction: They grant home rule to charter cities, but not to general law cities. Distinction: One of the biggest distinctions between home rule, is that the city has its own police power, they have the authority to enact laws for the general health, and safety for the community. In the home rule model the states give home rule to cities, and cities have broad police power.

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the powers of local government:

home rule approach

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local government power and state preemption:

that local government power is to be strictly construed and strictly limited. The municipality has to have a grant of authority, cities cannot due anything, and it has to have a grant of authority.

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the powers of local government:

dillons rule

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local government power and state preemption:

i. Home rule is a repeal of Dillon rule. Home rule says that cities have no power unless they have a strict grant of authority. Dillon says that cities have the power to do whatever they want, unless it has been specifically restricted. Home rule is the modern rule.

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the powers of local government:

Dillon rule - How home rule relates to dillons rule

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local government power and state preemption:

c. Early Estates Inc. v. Housing Board of Review Pg. 112
i. Court says that the lighting standard is acceptable. State legislature says that the purpose of this law is to protect minimum standards of safety and health. The court says that the grant of authority with respect to the plumbing and hot water is not within the scope of the power of the city. Court says that hot water is not necessary for safety.

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powers of local government:

dillons rule case law

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local government power and state preemption:

Says that cities have power over municipal affairs, they have general power over municipal affairs and do not need a specific grant of authority. Cities in home rule jurisdiction are granted power over municipal affairs: Taxation, elections, water supply, street improvements, bidding proceedings, sewers, libraries, zoning.

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powers of local government: dillons rule.

home rule

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local government power and state preemption:

Most cities in California are general law cities. Power to tax governed by state law. State governs their regulations.

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powers of local government

dillons rule - general law cities

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local government power and state preemption:

only 20% of the cities in California have this. Set up there own elections. Can set up there own water supply and regulate that. They can regulate their own stuff. Can set up their own zoning procedures and regulations.

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powers of local government

dillons rule - charer cities

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local government power nad state preemption:

a. Power derives from states.

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powers of local government:

authority of municipality

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local government power and state preemption:

2. State v. Hutchinson Pg. 119
a. Defense is that the state did not give the county the power to enact this type of legislation.
b. Cities however need to find a power that has been delegated.
c. This is not a home rule situation. In this instance the state has granted general powers to the city.
d. General Welfare Clause: The state granted to the county the authority to pass all ordinances necessary and proper for the public interest.
i. This is typically interpreted as a broad grant of authority over municipal affairs.
e. Court Says: that Dillon’s rule was created because there was a distrust of local government however, this presents some problems. The court says that we do not need Dillon’s rule and that we are going to ban this rule.
f. One thing that will protect people from a local government that is political process, judicial review, state can pre-empt.

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powers of local government: authority of municipality:

Grant of Authority from the state

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local government power and state preemption:

3. This ordinance is valid. The state gives local government specific grants of authority and it also makes general grant of authority through this kind of general welfare clause. Here there was no specific grant of authority and there was a general grant of authority and it is brought in to cover what the county did here.

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powers of local government: authority of municipality:

grant of authority from the state

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local government power and state preemption:

1. Definition: Generally provides that certain things are within the power of the locality and the state cannot pre-empt. State create local government and give local government its powers. If there is homerule there will be some activities that will be deemed local activities or local affairs. If something is considered a local affair the state cannot preempt. This is essential to home rule.

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powers of local government: authority of municipality:

Home Rule

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local government power and state preemption:

a. Constitutional Home rule
b. Legislative Home Rule

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powers of local government authority of municipality:

Home Rule: Two Types of home rule jurisdictions

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local government power and state preemption:

a. Home rule jurisdictions do not need a grant of authority, the grant of home rule gives them general police power over their jurisdiction. On home rule need a general grant of authority.

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local government power: authority of municipality:

home rule: big difference between home rule and non home rule

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local government power and state preemption:

a. Jurisdiction is a state and it has all the powers of a state and within that particular jurisdiction, the city or county is supreme.

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local government power: authority of municipality:

imperio home rule

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local government power and state preemption:

a. Can act like a state because we the state has given you that power.

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local government power: authority of municipality:

home rule - legislative home rule

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local government powers and state preemption:

6. City and County of Denver v. State Pg. 131
a. Denver wanted a residency requirement for city employees.
b. Three issues to look at for the validity of local enactment:
i. Matters of Local Concern
1. The home rule grant gives municipality powers in that area.
ii. Matters of Statewide Concern
iii. Matters of Mixed State and Local Concern
1. These are both sate and local concern.
c. In addition have to look at:
i. Uniformity
1. There is no need for every city in the state to have uniformity.
ii. Extraterritorial Impact
1. Court says that the extraterritorial impact is minimal.
iii. Other State Interests
iv. Local Interest
1. Property Tax, more readily available and etc.
d. The Home Rule: The city is granted the authority to enact whatever laws that are necessary for municipal affairs. The court concludes that you do not have the ability to interfere. The cities power here is paramount.

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local government power: authority of municipality:

home rule case law

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local government power and state preemption:

a. Local Elections and Qualifications for Office.
b. In some jurisdictions taxation.
c. Where there are shared concerns we are going to see much more conflict between the state and city on whether there is something that is exclusively city

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local government power: authority of municipality:

home rule - exclusive power over

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local government power and state preemption:

We saw a little bit the tension between state and local government when we looked at Dillon’s Rule (municipal power needs to be strictly construed). So unless there is some express grant of authority the locality has no power at this time. The idea of Dillon’s rule was created at a time when there was tremendous distrust. There was a view that local government that sprung up had all sorts of power. Dillon’s rule was adopted by the courts to restrict local power.

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local government power: home rule.

dillon's rule

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local government power and state preemption:

b. Miami Beach v. Fleetwood Hotel Pg. 140
i. The court says: you do not have the power to do this because the authority that you have been given is authority over municipal affairs and this is not a municipal function. this is not a municipal affair because this usually has been done at the state level and not the local level.

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local government power: home rule case law

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local government power and state preemption:

i. Whether the city has the power. Even if the city has power that has to be exercised within certain limits.
ii. Has the power been properly exercised? The city has to act within the scope of the power.
iii. Has the state preempted? Even if the city is acting within its power the state can still preempt.

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local government power: home rule

Test For Home Rule

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local government power and state preemption:

expressly say that the local government has no power in the area.

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local government power:

Different Ways a state can preempt: Express preemption

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local government and state preemption:

the local law is inconsistent with the state law.

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local government power:

different ways a state can preempt: Implied preemption

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local government power and state preemption:

the state has enacted a comprehensive list of dealing with preemption. But the state government occupies the field then the local government cannot be in. Our regulation is so comprehensive that by implication it closes out the local government from regulating.

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local government powr: different ways a state can preempt:

occupied the field

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local government power and state preemption:

III. Cape Motor Lodge v. City of Cape Girardeau Pg. 150
a. The test for determining whether there was a conflict between the state power and the city enactment, is whether the ordinance permits what the statute prohibits or prohibits what the statute permits.

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different ways a state can preempt case law

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local government power and state preemption;

a. State regulation and local ordinance is in conflict
b. State regulation and expressly preempts any local enactment in the area.
c. Sometime the state has preoccupied the field. By implication it has prevented them from enacting regulation.
d. Occasional there is an issue of paramount state concern. Sometimes court will find preemption because it is a matter of statewide concern.

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preemption:

There is a number of ways that preemption can occur

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local government power and state preemption:

II. Miller v. Fabius Township Board Pg. 159
a. Different ways that the state can invalidate local law:
i. Express or Direct conflict
ii. State law said that we are the only ones that can operate here, localities are not allowed to enact anything.
iii. There can be preemption if the state regulations is so comprehensive that it was there intent to operate this entire field of preemption.
b. This was not preempted.

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preemption case law

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local government power and state preemption:

III. Board of Supervisors of Crooks Township v. Valadco Pg. 166
a. The court asks four questions:
i. Subject Matter Being Regulated
1. Have to show that the state and locality are regulating the same issue and the same matter.
ii. Subject matter covered by state law as to have become solely as matter of a state concern?
iii. Legislature partially regulating in the subject matter indicated that it is a matter solely of sate concern?
iv. Is the subject matter itself of such a nature that local regulation would have unreasonably adverse effects upon the general population.
1. It is the sort of thing where if we had a patchwork of regulation at the local level would it have a necessary impact on the state.

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preemption case law

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local government power and state preemption:

a. The state will preempt even when it has not expressly stated that it will be occupying the field although comprehensive regulations
i. Is this regulation so broad that is effectively forecloses other regulation in this area.
b. Assume that the state has enacted some regulations and may not have enacted any at all.
i. Sometimes preemption when there is a need for uniform state regulation. How do we determine this?
c. The company is going to reject and state that the city is preempted.

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preemption:

Issues that arise in State Level

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alternaitve models of local government:

a. Matter of County of Monroe Pg. 180
i. TEST: Distinction is made between those that are governmental and those that are proprietary.
1. Governmental: City Council.
2. Proprietary: Where the government is owning property and leasing it out to commercial people.
a. This distinction is an unworkable and there are to many inconsistencies in the test.
ii. The Court replaces this test with a balancing of public interest approach. Factors:
1. Alternative Locations
2. Branch of Authority
3. Alternative Method of Providing the Service

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intergovernmental conflicts and corporation

Conflicts between local government

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alternative models of local government:

a. Government cannot condemn the property of another governmental agencies property through eminent domain. There cannot be a taking of property. Zone a property that denies it of all economical use.

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intergovernmental conflicts and corporation:

condemnation of property

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alternative models of local government:

i. This can occur through Contract.
1. the biggest reason for having a contract because it is cost effective and efficient.
ii. Where there is some kind of joint provision of services.
1. Often this is done by a joint powers agreement.
iii. Create a specific non-profit organization that provides services. This is Jointly Agree.

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intergovernmental conflicts and cooperation:

Intergovernmental Cooperation: models

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alternative models of local government:

b. Goreham v. Des Moines Pg. 192
i. Creation of the body itself is not an improper delegation of powers as long as they are properly guidelined. WE give the cities the authority to take various action for the health and welfare of the community.

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intergovernmental conflicts and cooperation:

Intergovernmental cooperation case law

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Alternative models of local government:

I. This occurs to provide services in an efficient manner
II. One way to deal with this is transferring functions. A state legislature transfers a function from one entity to another entity. This is arranged by a legislative change.

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intergovernmental cooperation

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alternative models of local government:

A. Two entities can contract where they perform the same entity whereas transferring transfers all the authority to another entity authorized by legislative transfer.

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intergovernmental cooperation: Transferring v. contracting

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alternative models of local government:

multiple cities consolidate and have a regional government like school districts. The trend is mayors taking over school districts.

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intergovernmenal cooperation:

consolidation

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alternative models of local government:

1. Cities consolidate because of efficiency, pooling resources, economy of scale, expansion of services, uniformity of services, reduce overhead, increase expertise, regional cooperation. Cities don’t want to because local control is lost, dilution of resources, and increased taxes.

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intergovernmental cooperation:

consolidation issues

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alternative models of local government:

1. Complete consolidation – all the services that were provided by cities are abolished and replaced by one regional government
2. Have the region govern certain things, but key local things like land use is dealt with in the local community.

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intergovernmental cooperation:

consolidation - different approaches

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alternative models of local government:

1. Undesirable social consequences: fragmentation

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intergovernmental cooperation:

consolidation - ciriticism

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alternative models of local government:

COG are like United Nations of a county or region where each of the cities get to vote for representatives. There is the West Side COG. The regional body is designed to promote cooperate activity and has some power, but it is limited. Each city has to individually approve the action.

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intergovernmental cooperation

Councils of government

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alternative models of local government:

1. Issues to privatize
a. Cost
1) Salary and benefits
2) Supplies and volume
3) Reduction of bureaucracy
b. Liability
c. Specialization
d. Adhering to government standards

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intergovernmental cooperation

Contracting - Privatization

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alternative models of local government:

2. Tulsa Sheriff v. Tulsa County: The Court said that the legislature has the rule making authority and could not assign to someone else to enact laws, but it could assign implementation procedures to another group.

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intergovernmental cooperation

contracting case law

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alternative models of local government:

Are created and part of the public school system but not subject to the same restrictions as public schools.

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charter schools

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alternative models of local government:

a. Takes dollars away from the remaining students in public schools.
b. Transportation to Charter School limits opportunity. Not everyone can go to a charter school because they are not in every neighborhood.
c. Control over educational content.
d. Discrimination in student selection, cherry picking best students.

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charter schools

arguments against charter schools

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alternative models of local government:

IV. Grant of Charter School Application of Englewood on the palisades Charter School Case Pg. 230
a. The court says that there is no requirement in the act that each application be accompanied with the assessment of racial balance. The court orders the commissioner that the commissioner assess the racial impact that any given application will have. The court is adding to the legislation by giving recommendation to the commission to add the assessment.
b. Heilman thinks that this kind of result is problematic because they are dramatically changing the racial imbalance.
c. Financial Aspects of the charter school programs
i. The constitution requires that the local school districts provide a thorough education to all districts.
ii. Every time there is an application for a school the district has a right to put in information for the commissioner.

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charter schools case law

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Financing local government:

a. Special Assessment
b. Borrowing
c. Advolorum Taxation: Taxed based on the value of the property. Most common model of the property tax. Primarily dealing with this in local taxation.
d. Sales Tax: local governments get a portion of sale tax.
e. Parking tickets.
f. Utility Tax: anyone who is using utilities is going to have to pay a % to support the local government.

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where local government funds come from?

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financing local government:

a. If your taxing structure is too high it is going to discourage citizens.
b. All of the taxes are heavily fluctuated taxes.
c. Property tax in the most part is not fluctuating, they typically increase. The one thing that you can’t control for is turnover property.

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problems of some of the taxes that are used for local government funds

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financing local government:

a. A lot of cities rely on taxes that are not progressive (they have a disproportional impact on those that are poor).
b. On sales tax is always going to be the same no matter what your income is. It actually has a disproportional impact on those that are poor.
c. So there is a push for those taxes that are more regressive rather then progressive.

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who does sales tax effect

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financing local government:

a. Restrict the amount of revenue that the local government generate.
b. Place a cap on spending.

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restictions on what cities can do

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financing local government:

(only permitted if there is a redevelopment area)
a. Definition: Assume that we have a property that is worth 1million and our tax rate is 1%. This is the tax that this generates each year and property tax gets split with a whole number of agencies. Some of it goes to the counties and some of it goes to the school districts. Lets assume that the value of this property increases and if we have redevelopment the goal is to have the property value go up.
b. One of the reasons why redevelopment is very popular is that the increment of profit will remain with the redevelopment agency.
c. California
i. 20% goes to school district
ii. 20% affordable housing.

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financing local government: tax increment

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financing local government:

d. If we incur debt based on this tax increment is this subject to limitations on expenditures?
i. If we have 80k a year in increment we can issue bonds against that and borrow based on the revenue stream into the future. To make redevelopment happen we need current resources.
e. Redeveloped area has an existence of 30 years.

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financing local government:

tax increment

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financing local government:

prohibits states and local government from burdening interstate commerce.

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financing local government:

commerce clause

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financing local government:

a. City of Pittsburgh v. Alco Pg. 246
i. Court Says: Courts are very deferential to local governments in regards to tax. Here the court says that even if the tax makes the business itself unprofitable that is not our problem and it is a legislative decision. Even if the tax should destroy a business it does not make it invalid and require compensation.
ii. The Penn Supreme Court said that it was not taxation but a taking of property. Court Says – this really is not a taking and you the supreme court decided that this is a tax. The Supreme Court says that this is fine and that when you are taxing it does not have to be solely about revenue. There is nothing wrong with doing that so long as you are doing it evenly with respect to categories of very businesses.

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taxation:

parking taxes case law

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financing local government:

b. If we have a tax that prevents some fundamental right then that would be a problem. Some state courts under the state provisions, will invalidate taxes that are overly burdensome. Under the US Supreme Court, the taxes will not invalidate taxes.

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taxation:

parking taxes

Front 87

financing local government:

c. Prop 13 limits the amount of increase in taxation, limits the amount that your property could still be assessed if you still own it. Therefore, the value of your property can only go up 2% a year. Then the tax would only go up a minimal amount where as if the property value was more then 2% then the tax would go up dramatically, therefore making it harder for the house owner to pay. Therefore, prop 13 is designed to say that the assessed value is locked in at the time of the purchase and it can only go up 2% a year. The tax that you are going to pay is limited and the property tax could not raise more then 1% of your assessed value.

Back 87

taxation:

parking taxes

Front 88

financing local government:

d. Nordlinger v. Hahn Pg. 254
i. Her basic challenge is that this is violating equal protection. Is there some governmental action that is producing a classification.
ii. Supreme court here upholds prop 13.

Back 88

taxation

parking taxes case law

Front 89

financing local government:

a. Wilson v. Connecticut Pg. 263
i. Court Says: the court rejects the argument and they explain that there really is a benefit to the picnic.

Back 89

taxation:

revenue can only be used and raised for public purposes

Front 90

financing local government:

many jurisdictions have provisions that government funds can only be spent for public purpose.

Back 90

sources of revenue: limitation placed on local government revenue

Front 91

financing local government:

ii. Another provision talks about the lending of credit, that government cannot lend credit to a private enterprise.

Back 91

sources of revenue: limitation placed on local government revenue

Front 92

financing local government:

iii. Idaho Water Resources v. Kramer Pg. 269
1. Court Says: developing water resources, conserving water, but beyond this the legislation authorizes this as a joint venture and recognizes the public potential for the thing. The legislature itself has found that there is a legislative purpose. The primary purpose by the government in borrowing money is in developing the waterways and ensuring that those waterways are utilized and the necessary power is being supplied. This is for a public purpose and the state is using its credit to promote the public purpose.

Back 92

sources of revenue:

limitation placed on local government revenue case law

Front 93

financing local government:

iv. Redevelopment agencies are allowed to use eminent domain

Back 93

sources of revenue: limitation placed on local government revenue

Front 94

financing local government:

Where the government is going to sell you bonds and they will pay on the interest rates. Bon brokers will get repaid from a particular revenue source as opposed to general obligation bonds. General Obligation Bonds are backed by the city’s taxing powers. The city guarantees the return by the tax revenue. The government is pledging a particular revenue source.

Back 94

sources of revenue: limitation placed on local government revenue:

revenue bonds

Front 95

financing local government:

i. Provision under the constitution that gives congress power over state government. The negative implication is that states which have the power to regulate commerce cannot do stuff that interferes with interstate governments. Nor can states unduly burden.
ii. We can tax out of state business that have a substantial connection to the state. Taxes cannot be discriminatory against out of staters.

Back 95

sources of revenue:

commerce clause limitation on government generated revenue

Front 96

financing local government:

i. A significant but declining source of revenue for local revenue. It use to be the tax that was the basis for state and local government. One of the reasons why the property tax has declined: Huge increases in the real estate. As a consequence the revenue that was generated was increased. Property tax has been replaced all together as a mechanism of funding local government.

Back 96

sources of revenue:

property tax

Front 97

financing local government:

ii. Property is going to be taxed at different rates depending on the type of property that it is. Usually you will have property that is classified as residential. That might be broken down into Single Family Home, Condo, and Rental Property. Property tax is going to be different depending on what type of residential property that it is. Property tax is typically going to be different.
iii. Some jurisdictions assess the land based on its replacement value.

Back 97

sources of revenue:

property tax

Front 98

financing local government:

i. Most common practice is to assess property at fair market value
ii. Some base on less then fair market value. Current use of property.

Back 98

sources of revenue:

special assessment and special benefit taxation - different approaches based on assessment

Front 99

financing local government:

i. Taxes will jump.
1. Phase In - Some allow a gradual increase over a certain period. 3 year or so.
a. Courts have consistently said that it is acceptable to phase in a big increase in taxation. This is constitutional.
b. Courts say that this big increase might trigger foreclosure, so having a phase in has a legitimate rational basis.
c. Rational Basis is the standard of review

Back 99

special assessment and special benefit taxation:

What happens when there is a re-assessment

Front 100

financing local government:
are created and the property owners that are assessed get some special benefit. The whole notion is that you are being assessed for some benefit that you receiving.

Back 100

special assessment and special benefit taxatoin:

special assessment

Front 101

financing local government:

there is no need to show a particular nexus between the amount that you are paying and the amount of services that you are receiving.

Back 101

special assessment and special benefit taxation:

taxes

Front 102

financing local government:

1. Can be a one-time thing or can be on going.
2. Something that we can fund with a one time special assessment? Road improvement or street improvement. One time improvement that we are going to tax and divide between the property owners.
3. For the most part business improvement districts are going to be an on going assessment because you want to support the business community in particular ways.
4. Know the difference between taxes, assessments and fees.

Back 102

special assessment

Front 103

financing local government:

iii. Sarasota County v. Sarasota Church of Christ Pg. 306
1. The court says that any developed property is going to have an impact. Assessment districts are designed to fund a particular improvement and we do so based on the notion that each parcel is benefited in some particular way.

Back 103

special assessment case law

Front 104

financing local government:

1. Fees: user charges. Ex: Community Pool. Assessment districts are typically different from fees in that assessment districts are usually utilized to construct the pool, user fees are utilized to use the pool.

Back 104

fees v. assessments

Front 105

financing local government:

v. McNally v. Township of Teaneck Pg. 313
1. The court says that assessment does not have to measure the exact benefit of any particular property, we have to have a system that overall links the benefit to the property. WE have to look at whether overall the assessment is fairly proportionate to the cost of the improvement and that there is some benefit to these parcels.

Back 105

fees v. assessments case law

Front 106

financing local government:

1. Show that no actual benefit is provided. That we are assessing people and not providing anything in response or don’t intend to provide anything in response.

Back 106

how to strike down assessments

Front 107

financing local government:

We have an assessment section but some people cannot afford to pay
1. Exemptions are not usually acceptable.
2. People can use equity from there home, but most do not like to do this.

Back 107

can we create an exemption for assessments

Front 108

financing local government:

viii. Assessment districts have to be created through a public hearing process, there has to be notice to all the people that are being assessed (individual mailed notice), they have to be given an opportunity to be heard. If more then 50% of the parcel protest the assessment the assessment will be killed.

Back 108

assessments

Front 109

financing local government:

a. Something that is not authorized in California. It is something that is must more common on the east coast and the Midwest. A local income tax tends to be more of a big city tax.

Back 109

local income tax

Front 110

financing local government:

i. Wage or Payroll Tax
ii. Piggyback tax: tax benefit is that you don’t need separate forms or people filing with the city, it is done through the federal government.
iii. Locally designed broad

Back 110

three different heights of local income tax

Front 111

financing local government:

a. A general tax is something that is imposed by the government to raise revenue intended for the local flov.
b. Both and assessments are fee
c. California your fees or charges have to be equivalent in some rough way to provide the s?????

Back 111

user fees and charge for taxes

Front 112

financing local government:

d. Platt v. Town of Torrey Pg. 326
i. What is the first requirement that ht court says has to be imposed?
1. Requirement of reasonableness:
a. If the city is going to provide services to non-residents then they are going to have to do it in a manner that is reasonable

Back 112

user fees and charge for taxes case law

Front 113

financing case law:

a. The limitation of governments to raise revenue have brought change. Cities want to make sure that the development pays for the fees. In addition we might be imposing on to the developer obligations to mitigate certain impacts that they have.

Back 113

linkage fees

Front 114

financing local government:

They have to have a reasonable nexus to the burden created by the development. If it doesn’t have a reasonable nexus it is going to be viewed as a taking. (2) The fee has to be proportional.

Back 114

linkage fees - developer exactions

Front 115

financing local government:

The principal action is that it is backed by the full faith and credit of the locality. They are guaranteeing that they will pay the bond by taxing powers. This is the moot common form of lending. These are based on tax revenue. If they are based on an existing tax it is impermissible for you to repeal it while the bonds are outstanding.

Back 115

municipal and local government finance:

General Obligation Bonds

Front 116

financing local government:

i. Flushing national Bank v. Municipal Assistance Corp Pg. 367: Facts: The state tried to help the city from going bankrupt. The state did not allow the enforcement of bonds for three years. The bondholders were challenging the moratorium. Court Says: That the bondholders were correct and the sate pledge of faith and credit means that thy have a good faith obligation to pay back the bonds.

Back 116

municipal and local government finance:

General obligation bonds case law

Front 117

financing local government:

Different from general bonds. Not based on full faith and credit and the city’s guarantee that they are going to tax the citizens. They are based on a specific source of revenue, like a lease from a city county property. Typically they have a higher interest rate. Reason for this is that they are riskier and not backed by a full faith and credit.

Back 117

municipal and local government finance:

revenue bonds

Front 118

financing local government:

Not utilized much in California, but there are places where they utilizes these. It is a revenue bond where the city promises in the event that revenue is insufficient to pay off the bond or pay the interest on the bond the governmental entity will use its best interest to pay the revenue with other sources. If the revenue sources turn out insufficient they will find another source of funds to pay off the bond. Moral obligation bonds generally are not treated as debt and are not treated as legally enforceable.

Back 118

municipal and local government finance:

moral obligation bonds (hybrid)

Front 119

financing local government

i. State Ex Rel. Warren v. Nusbaum Pg. 373: Facts: state had a housing authority and the state housing authority was authorized to issue bonds. It had a moral obligation provision, a promise by the state to pay. The court has to determine whether that was an absolute obligation or a moral obligation. If it is a moral obligation then it is not considered debt for the purposes of the state money. Debt is defined as a legally enforceable obligation to pay money. Court says: that moral obligations to not have a pledge or a commitment based on the taxing powers of the state. There is not obligation or promise to pay based on these moral obligation bonds. The bondholders have no right to compel that to occur.

Back 119

municipal and local government finance:

bonds case law

Front 120

financing local government:

a. Complete Hands Off Approach (non existent these days)
b. Complete Control by the State
c. Limited Control Over Cities (majority approach)

Back 120

municipal and local government finance:

state control of city budgets

Front 121

finacing local government:

where payments are not considered debt and we are going to make annual lease payments.

Back 121

municipal and local government finance: state control of city budgets: limited control over cities: techniques to avoid debt:

Sale - Lease Back Approach

Front 122

financing local government:

a. Bulman v. McCrane Pg. 391: Court Finds: that this lease is not debt and that it is acceptable. The court starts with the presumption that it is described as a lease and is called a lease then the challengers have the burden of proving otherwise. Court Concludes: that there is not a present debt obligation. There are future installments that are due but that does not create debt for purposes of the debt limit.

Back 122

municipal and local government finance:
state control of city budgets: limited control over cities: technique to avoid debt:

Sale - lease back approach case law

Front 123

financing local government:

A limitation of debt applies to general funds. Cities in CA get some revenue from the gas tax, but this revenue is restricted where it can only be used for street repairs, etc. The city has to keep this in a special fund. If you have a debt incurred in a special fund it will not count towards the debt ceiling. Typically courts will look at the promise of where we are paying from then it won’t count towards the debt ceiling.

Back 123

municipal and local government finance: state control of city budgets: limited control over cities: technique to avoid debt:

special funds

Front 124

financing local government:

Sometimes if we come up against a problem then maybe it is time to create a special district with another municipal entity or create a special district within our particular jurisdiction and if this is properly formed they will have there own debt ceiling.

Back 124

municipal and local government finance: state control of city budgets: limited control over cities: technique to avoid debt:

special district

Front 125

financing local government:

local property tax funded school education. This led to some districts being wealthy and others being not wealthy. Later on, the way school received finance was state aid. Three ways it was funded:
1. One way was the flat grant
2. The other way was designed to equalize inequalities be establishing a base amount.
3. Now, funding is based more on categorical needs or if there is a particular program.

Back 125

munipal and local government finance:

School Financing History

Front 126

Financing local government:

(1) Where is it going to come from, (2) who accounts for the expenditure and (3) what roles does the court play. The focus on school education, after Brown, (4) was equality.

Back 126

municipal and local government finance:

school financing issues raised

Front 127

financing local government:

1. McInnis v. Shapiro: Facts: Students sued the state for violating either equal protection rights. The state argued that there was no jurisdiction and there was no cause of action. Court Says: that it did have jurisdiction, but it was not justiciable. The standard of review the court applied was rational basis. The Court held that this system was rational and that it did not violate equal protection.

Back 127

municipal and local government finance:

school financing case law

Front 128

financing local government:

2. Serrano v. Priest: Facts: Every school district was going to receive a certain amount, and there was a categorical aid available for particular purposes. The results were that Baldwin was dispensing less per student than Beverly Hills. Baldwin had a higher tax rate, but the property was worth more at Beverly Hills and this would generate more income. The standard of review the Court applies is strict scrutiny. Court Says: The Court stated that education is a fundamental interest, contrary to Federal law. (A state Supreme Court can grant its citizens more rights and greater protection). The Court held the remedy was to take the case back to trial and to increase the amount of state aid to minimize the disparities.

Back 128

municipal and local government finance:

school financing case law

Front 129

public employees:

Country founded on this system. Today this is gone.
I. Benefits: Insures loyalty to the individuals that are in power. Creates opportunities to disenfranchised groups, but only to the extent that they have political power. When a new group gets elected they can have their people there to bring their initiatives forth. Promotes the policy of those that get elected. Downsides: The people that get appointed are not always the most capable people. This is not based on merit and don’t know if the people that were hired have the skills to do the job.

Back 129

patronage system

Front 130

public employees:

We need to hire based on their merit and we should promote them based on merit and terminate them based on merit, and we are not allowed to use political consideration when we are hiring and firing employees.
II. Benefits: Stability. Capable people. Not partisan. Focused on the public. Based on skill. Downsides: time consuming because we have to test the abilities of those being hired. Lack of incentive to change.

Back 130

civil service system

Front 131

public employees:

have to consider what are the state requirements, but also the US constitutional requirements and the local level requirements. Most municipal employees are going to be represented by a union and so there is going to be a collective bargaining agreement. Congress cannot regulate municipal and state employees. The notion is that there are certain exclusive state functions that the federal government cannot interfere with.

Back 131

civil service system:

regulations at the local level

Front 132

public employees:

a. Cannot impose government employees to participate political activity while on the job. Cannot make them participate politically.
b. Can make them take a test
c. Educational Requirements that are linked with the job.
d. Residency Requirements

Back 132

civil service system

restrictions a local government impose on employees

Front 133

public employees:

(Benefits: For public safety officers we want it for emergency situations. Greater Commitment). (Downsides: some cannot afford to live in certain towns). California does not permit residency requirements.

Back 133

civil service system

residence requirements

Front 134

public employees:

a. Wardwell v. Board of Education Pg. 470: Facts: Wardwell was a teacher that was hired after the city had passed a resolution that government employees had to be a resident of the district and she lived outside the side. Court Says: there is a difference between durational requirement which requires you to live in a city before you get certain state benefits. But you can say that if you were hired you have to live n the city. This is not impacting your right to travel and that it is a violation. The court says that as a rational basis to uphold this continuing residency requirement.

Back 134

civil service system

residency requirements case law

Front 135

publice employees

Residency requirements are always going to be imposed for elective office. Need to be registered to vote and live in the community.

Back 135

civil service system

residency requirements - elective office

Front 136

public employees

CA says you cannot impose durational residency requirement for people running for office. Ex. If a person moved in a month ago, they can run for office.

Back 136

civil service system

residency requirements - residency requirement for running for office

Front 137

public employees

II. You can impose conditions that are related in some way to the treatment of employees. As long as you are not trying to compel there political beliefs.

Back 137

patronage and political activity

Front 138

public employees
I. Branti v. Finkel Pg. 480: Rule: Your political beliefs are protected political expression, you cannot deny people government benefits or privileges based on political beliefs and the same is true for government positions.

Back 138

patronage and political acvitiy

Front 139

public employees

Government employees have protections under the due process clauses. Typically they have to give you notice and an opportunity to be heard before you get fired on the spot.

Back 139

due process rights of governmental employees

Front 140

public employees

anyone who is in an elected office have to file an annual disclosure of all sources of income, property that they own in the community, business interest in the area, and have to do this every year.

Back 140

integrity of governmental office and employees: conflicts of interest

Disclosure REquirement

Front 141

publice employees

arises when it benefits your own interest. Even though you don’t have your own interest but if it is a parent or spouse that owns the business.

Back 141

integrity in government offices and employees: conflicts of interest:

Self Dealing

Front 142

public employees

Have to have a substantial financial interest that could be adversely affected or positively affected. Ex: parcel of land and counsel member x owns the adjacent property to the parcel and someone comes to and says that they want to build a 4 story property that is also adjacent to the development, so in this instance council member x would have a conflict of interest. California tries to look at the action and tries to assess how close to you is the activity. Arise whenever the decision that the elected official or appointed official could potentially adversely impact or benefit there property.

Back 142

integrity in governmental offices and employees: conflicts of interest:

Conflicts of Interest

Front 143

public employees:

not only prohibits them from participating the decision or trying to influence the decision (influencing colleagues, talking to staff, etc.). Have to remove yourself from the day that the decision is being made or when it comes before the counsel. Not allowed to be in the audience or on stage when the decision takes place.

Back 143

integrity in governmental offices and employees:

rule Regarding conflict of interest

Front 144

public employees:

counsel members and appointed officials. Anyone who could potentially influence the decision. Staff members would have to remove themselves.

Back 144

integrity in governmental offices and employees:

who should be covered by the conflict of interest rules

Front 145

public employees:

out right bribery. Other forms – why don’t you join me at my box I have Lakers tickets, feel free. Gift: not allowed to receive a gift but can from family members or friends that you exchange gifts with at a regular basis. Also have to disclose this at the end of the year and have to be below a certain dollar amount. If you get something that is available to the public generally that is not going to be treated as a gift. (ex: Vegas comp. rooms for being a high roller). The only time we can accept things like wine baskets as long as you turn it over to charity or share it with the entire staff or employees.

Back 145

integrity in governmental office nad employees:

Bribery

Front 146

Public Employees:

are not considered gifts. Regulated though, have to disclose all of them, live within certain limits (how much any entity or individual can give you). They can be bribes though, if someone is giving you money and you in return are giving a promise to vote a certain way that is no different then a bribe. If they are giving money in hope to consider then not a bribe.

Back 146

integrity in governmental office and employees:

bribery - campaign contributions

Front 147

public employees

Have to disclose all campaign contribution over a certain dollar amount. Not considered gifts and not subject to the gift contribution. Most jurisdictions have some kind of limit on the amount that you can receive.

Back 147

Disclosure - campaign contribtions

Front 148

publice employees

Is that there is transparency in the government. Public gets to know all of your income.

Back 148

disclosure - benefits of disclosure rules

Front 149

public employees

Will deter people who want to run because they don’t want to disclose themselves.

Back 149

disclosure - problesm with disclosure

Front 150

public employees:

Cannot sit on a city council or school board and vote on a contract that is going to go to your business or a family members business. Should not enter into a contract with the agency that you sit on the board for.

Back 150

disclosure and disquilifiaction on votes

Self Dealing

Front 151

public employees:

Decisions that might potentially affect your property: California says that you are not allowed to enter into a contract that would have a material impact on your property or on your financial situation. So I cannot vote on a project that is right next door to me b/c it has a material impact on my property. When you are disqualified you may participate as a member of the public to protect your interest.

Back 151

disclosure and disqualifiaction on votes:

Conflicts of interest

Front 152

public employees:

Anything that a council member does to improve the city could arguably benefit your property. The line is not always clear, but courts say that if it has a direct or indirect interest, so long as that interest is not remote you are deemed to have a conflict of interest. It is not every benefit or detriment, only when there is a substantial impact on your property value when the court will view that as a conflict of interest.

Back 152

disclosure and disqualifiaction on votes:

argument against a conflict of interest

Front 153

public employees:

Fine; imprisonment; decision can be invalidated; in some instances you are disqualified from holding office in the future. Found guilty of having a conflict of interest you are disqualified.

Back 153

disclosure and disqualification on votes:

penalties for conflict of interest

Front 154

public employees:

Not just voting can get you into trouble, but if you intend to influence the voting, like convincing colleagues and so on.

Back 154

disclosure and disqualification on votes:

conflict of interest - influencing

Front 155

public employees:

cannot serve on a city council and the county board of supervisors at the same time, unless your county and your city is consolidated. Sometimes you will see people try to both serve on the city council and appoint themselves as there own planning commission. The courts have never said that it is impermissible. (seems strange to heilman, and he believes that a court will say that it is not permitted).

Back 155

disclosure and disqualification on votes:

incompatible offices

Front 156

public employees:

you are suppose to recuse yourself if there is a material impact, and also if you have bias. Not suppose to make a decision when your judgment is going to be clouded based on your personal feelings.

Back 156

disclosure and disqualification on votes:

bias decision making

Front 157

public employees:

a. Dana Robin Corp v. Common Council Pg. 502: Facts: The developer here is contending that some of the commissioners had conflicts of interest and if he could have disqualified them then he could have had his plans approved. Court says: in order to show that there is a conflict that disqualifies you, you have to show that there is going to be a substantial impact in the commissioner’s interest and according to the court is not present here. Here the proposed project was not going to be in competition with any of the commissioner’s interest therefore the commissioners were ok to vote on it and not be disqualified. Test: is whether or not the approval or denial of the project would have a substantial impact on your financial interest.

Back 157

public employees case law

Front 158

public employees:

California has a state law that protects public employees and it requires certain steps in dealing with public employees. Public employees have constitutional rights. Due Process rights: protects people’s rights to have due process of law before there is deprivation of life liberty and property. Your continued government employment is continued a property right as long as you have an expectation of continued employment. Same is true for a government employee. Same is true if your reputation is damages, you have a liberty for your reputation and cannot be deprived without due process of law.

Back 158

employee rights:

unions and collective bargaining

Front 159

public employees:

i. Aggressive Discipline: going to first council the employee to make changes. After this we want to give him an oral warning and tell them that if it happens again then there is going to be consequences. They we do a written warning. If this doesn’t work then the next step is suspension.
ii. At will Employees: can be discharged for any reason.
iii. Protected Employees: have to give them notice.

Back 159

employee rights

unions and collective bargaining

Front 160

public employees

designed on how to deal with how employee unions get recognized. It is designed to create some reasonable method for resolving disputes of wages hours and conditions of employment. The point of the state law is to create a standardized method of dealing with these issues at the local level. Also guarantees certain rights for the employees: there is a statewide board to investigate complaints for local agencies to violate provisions of the law. Prohibits employment discrimination, but it adds a protection for employees who participate or decline to participate in an employee organization. Professional employees have a right to be recognized separately.

Back 160

employee rights:

union protection - Meyes Millias Brown Act

Front 161

public employees:

Upon the request of either party (public employer or employee association) have an obligation to bargain in good faith. Has to be about terms and conditions of employment. There are certain rights that are deemed management rights: (outside the scope to meet and confer) deciding what programs to pursue ,whether to increase our resources for law enforcement, deciding on whether or not to adopt a tax. These are all things that affect the terms and conditions of employment.

Back 161

employee rights:

union protection - obligation to meet and concur

Front 162

public employees:

Either said can declare an in pass. Then we are required to go to arbitration. Arbitration is limited – in some instances you may not be forced to arbitration because there is some issue right now whether the states law of compelling arbitration is unconstitutional. If we attempted to reach a negotiated settlement at some point we can impose our final and last offer. As long as we impose our final and best and final offer we can say we are done.

Back 162

union protection: obligation to meet and confer.

do meet and confer but can't reach an agreement

Front 163

public employees:

this is when you do reach an agreement, sets forth all of the agreements between management and all of the employee agreements. Will specify all of the disciplinary measures, wages, which days are holiday days, Sick leave, all days off. If there is a dispute at a later date then we will look at the MOU.

Back 163

union protection: obligation to meet and confer.

memorandum of understanding

Front 164

public employees:

Hours and wages are subject to collective bargaining. Managerial prerogatives is not subject to collective bargaining. Some jurisdictions have developed tests to determine if it is managerial or wages, hours, terms and conditions, but there is no real bright line rule.

Back 164

collective bargaining

Front 165

public employee:

1. Central City v. Illinois: Facts: One case was about elimination of employees and the other was about evaluations. The state statute said that employers don’t have to bargain over managerial things, but employers must bargain for wages, terms and conditions. The Penn. Law said that you had to meet and discuss, whereas Illinois was broad. The Court said that issues need to be analyzed by a three part test:
1. 1) Determine if it is one of wages, hours, terms or conditions, if it does not, then it is not subject, if it does, then move to next step; 2) determine if it is a matter of inherent managerial authority, if it is, then it is not subject; if it is move to third part; 3) lastly, you balance the benefits.

Back 165

collective bargaining case law

Front 166

public employees:

There is a split in authority, some say if there is conflict between the MOU and civil service the civil service rule prevails. Others say that the union and employer can change civil service protections.

Back 166

collective bargaining:

civil service

Front 167

public employees:

1. Initiatives
2. Attending meetings
3. Voting

Back 167

citizen control of governmental action: ways citizens control

Front 168

public employees:

you are trying to get court order to compel government to do what it is suppose to do. Law distinguishes as ministerial acts (acts where there is no discretion, like issuance of permit to someone who has a right to it) and discretionary acts. Ex. rezoning, you have discretion to not rezone so you have discretion. Sometimes courts refuse to issue a mandamus is when there is another way to do it.

Back 168

citizen control of governmental action: ways citizens control: Filing lawsuits two major writs:

Mandamus

Front 169

public employees:

less frequently utilized, this is used to prohibit something. You might utilize this when certain government action does not occur.

Back 169

citizen control of government action: Ways citizens control: filing law suits: two major writs

Prohibition

Front 170

public employees:

1. Redmond v. Lexington County: Facts: There was a bond measure to raise money which was turned down, but the school board built a school anyways. Plaintiffs allege that the lease counts as obligation and this increases debt over budget. Plaintiffs sought mandamus. Court Held: That the current case law said that the lease is not debt. The argument that this is defying the will of the voters fails because the voters voted against the bond and not against the building of the new school. Local officials have a lot of discretion, and only when there is a clear abuse will there be consequences.

Back 170

state court

mandamus case law

Front 171

public employees:

Use of the word “shall” will tell you that it will be viewed as a ministerial act. The statute said that city “shall” maintain things, but there is still a lot of discretion involved. If a statute says a city “may or could” do something, this is clearly discretionary. If it is discretionary, then mandamus would be inappropriate.

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state court

mandamus: shall, may or could

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public employees:

If the legislative body approves something, and a city official refuses something, then mandamus might be appropriate. Ex. City approves check, but city treasurer refuses to sign.

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state court:

mandamus exception

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public employees:

Some states do not allow this, but CA does. Statewide initiatives tend to be expensive. It is not as difficult for local government (required signatures are lower in numbers). An initiative is a law enacted by the people. They put it on the ballot

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state

initiative

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public employees:

A referendum is when the legislative enacts a law and people vote on it. You can overturn what the legislative has enacted. Advantage is when there is a stalemate or when legislative does not act. Disadvantage is the influence of special interests where there is no thoughtful debate.

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state

referedum

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Land Use:

: governed in all cities in California. Mandates from the states that cities have to have plans for future development of the cities. In California this is contained in the code that says that all cities must have a general plan. They are reuiqred to have a comprehensive gernal plan for the city. This also includes any land htat is outside its boundaries that the cities believes is within its scope for planning purposes.

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Land use

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land use:

a. Land Use (probably the most important): describes in general terms what type of development is likely going to happen. How we are going to distribute the location of future housing nad future retailing, etc.

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general plan has to contain certain elements

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land use:

current population and what our expected population is going to be in the future. What kind of density are we going to have in the future, this is how many people per square mile or how many people within our lot. Density is determined by floor area ratio or determined by number of units allowed per acre of land

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within land element look at:

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land use

i. current population and what our expected population is going to be in the future. What kind of density are we going to have in the future, this is how many people per square mile or how many people within our lot. Density is determined by floor area ratio or determined by number of units allowed per acre of land

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floord area ratio

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land use:

We have to identify how people are going to move through the area (roadways, future transportation plans, transportation facilities that we have and which ones we need).

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circulation

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land use:

has to set forth what are your goals for housing in the future, how are you going to set forth those goals, action programs that identifies particular sites, how are you going to reduce the impediement of housing.

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general plan has to contain certain elements:

housing element

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land use:

This deals flood control, water pollution, farmland conversation, deals with endangerd specicia.s

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general plan has to contain certain elements:

conservation element

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land use:

The general plan has to talk about what open space that you have and what open space are you are about to acquire in the future. For natural resources and etc.

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general plan has to contain certain elements:

open space

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land use:

what are your plans to deal with noise problems in the community, What kind of noise levels doses the city expect? This is important in industrial issues.

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general plan has to contain certain elements:

noise element

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land use:

General plan has to contain your plans as a community in dealing with the safety issues in your community.

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general plan has to contain certain elements:

safety element

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land use:

typically it is limited to a particular area and designated for a particular area.

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specific plans

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land use:

i. To create some incentives or interest in developing a particular area.
ii. To create protections of a particular area where ther e is to much development.

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specific plans are adopted for 2 reasons

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land use:

i. Zoning Ordinance: will tell us what particular parcels are zoned for. This has to be consistent with our general plan. Charter cities can deviate from the general plan.

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how do we implement a specific plan

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land use:

This is allowed in California for uses for a short period of time. This will allow the city to study whether or not it made snese of the city to change its zoned area.

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moretorium on uses

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land use:

The city tells u what is allowed on a property and what can be built. Need ot apply for permits. Hwat happens if you can’get e permit. Almost everything needs a conditional use permit to build something on a lot.
i. Cconditional use permit: says that this is conditionally permitted here but there needs to be a hearing and they are allowed subject ot certain conditions.

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conditional use permit

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land use:

: there is standards that are being applied to a certain area. Want your house to be the same but need a variance since your lot is smaller then the rest of the other lots, then you will ask for a variance. Puprose is to allow for a development that could not have been allowed previously because there is something unique about your property.

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request for variance

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land use:

They are uses that exist currently that do not conform to the current zoning. The basic rule is that non-conforming uses are typically allowed to stay, however we can impose a certain period of time to eliminate them. Typically though in commercial areas, this is zoned for commercial and our current standards say that you are not allowed to have an auto repair shop in a commercial area. Have to give owner a reasonable time to recoup there investment.

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non conforming uses

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land use:

this means that we can’t take them away. Rights are vested when you have actually done substantial work in reliance on this permit. Have to have already begun consruction in order for you to obtain your right to build units.

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vested rights

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land use:

Once we get this we are locked in for our rights to devlope.

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vested rights - vested tentative track map

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land use:

If we get this we are doing in exchange for some consideration the city is agreeing that it will not change the zoning on the property and that we have a vested right.

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vested rights - development agreement