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The Role of Legislative Findings: Understanding the Purpose and Function

of Legislative Findings

League of California Cities Annual Conference Sacramento

Deborah J. Fox

September 19, 2013

©2013, Meyers Nave Riback Silver & Wilson. All rights reserved.

Legislative Findings – Necessity or Luxury

Legislative actions generally do not require explicit findings. (See, e.g., Cormier v. County of San Luis Obispo (1984) 161 Cal.App.3d 850, 852 [unless special circumstances exist, specific findings are not required for a legislative act].)

Are exceptions and several instances where legislative findings are statutorily required.

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Legislative Findings – Necessity or Luxury

While not legally mandated - legislative findings will give a reviewing court a “roadmap,” will assist the court in its analysis, and hopefully encourage judicial deference to the legislative body’s determination.

Avoids a court having to go on an “expedition” looking for the rationale in extrinsic evidence, such as staff reports, testimony, or historical documents.

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Legislative Findings – Necessity or Luxury

In passing upon the constitutionality of a statute, the court must confine itself to a consideration of those matters which appear upon the face of the law, and those facts of which it can take judicial notice.

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Structure of Findings

Must be relevant and reasonable.

Should support rationale for enactment.

Should demonstrate that action is not arbitrary.

Should demonstrate it bears a reasonable relation to the public welfare.

Supported by relevant evidence.

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Statutory Required Findings

See chart - p. 6

Avoid boilerplate or conclusory findings.

Apply specific facts to the action required by the statutory authority.

Courts should not “second guess” the municipality.

Courts should not inquire into the motivation or reasoning process of the legislative body.

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Interim Ordinances: Govt. Code § 65858

These statutorily required findings are frequently at play and the subject of litigation.

Permits a municipality to adopt an interim ordinance that temporarily halts development approvals and building permits when necessary to protect the public health, safety, or welfare.

Case law is clear that courts should defer to legislative findings of urgency.

Interim Ordinances: Govt. Code § 65858

Courts are usually looking closely at procedural issues

– Timing of extension

– Supporting report

– Any prior ordinances impact same area of city

– Have you gone beyond scope of freeze

– Always go back and review statute

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Hoffman Street v. City of West Hollywood

Can get tricky. See Hoffman Street v. City of West Hollywood (2009) 179 Cal.App.4th 754

The interim ordinance stated that the city council found that there was a “significant unmet need for smaller affordable housing units.”

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Hoffman cont.

Court found such insufficient because findings failed to identify a specific, adverse impact on public health or safety.

Failed to identify any “written public health or safety standards, policies, or conditions” on which such an impact would be based.

The city council made no written finding that there was no feasible, less burdensome or restrictive alternative, as required under 65858(c)(3). 10

Legislative Findings – Constitutional Rights

Case law has made legislative findings for regulations involving constitutional issues a practical necessity.

The litigation stakes are usually elevated and a misstep may subject the city to a claim for attorneys’ fees under 42 U.S.C. § 1988.

Courts may allow the introduction of evidence at trial to question the legislative fact finding. (People v. McKee (2010) 47 Cal.4th 1172, 1206.)

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Legislative Findings – Constitutional Rights

Practical necessity to avoid court’s natural reaction to judge wisdom of city action.

Simply cost effective to add supporting findings in ordinance vs. creating such after the litigation.

The availability and accessibility of information for findings makes this task less challenging – the internet is a great resource.

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First Amendment – O’Brien Test

The three part O’Brien test establishes that regulation of expressive conduct will be constitutional if:

(1) it is within constitutional power of the government;

(2) it furthers important or substantial governmental interest unrelated to suppression of free expression;

(3) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

United States v. O’Brien (1968) 391 U.S. 367.

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Venice Boardwalk

Judge Pregerson examining the City of Los Angeles permitting program for performers, vendors on Boardwalk.

The ability to create in real time your record and distinguish your situation from case law.

Distinction of Boardwalk from Seattle park of some 120 plus acres in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009)

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Adult-Oriented Businesses

Good body of case law to look to for legislative standards and general constitutional principles.

Reasonable basis to believe – magic language.

Area where courts are quite skeptical of city regulation.

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Example:

The City takes note of the proliferation of adult- oriented material on the Internet, satellite television, direct television, CDs, DVDs, and that these various media provide alternative avenues of communication. The City recognizes the following review of one of these web-based services: “SugarDVD has made it so easy to rent and view adult

movies, you may never leave your house again ….” Hustler Magazine, January 2006.

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Example:

The Internet brings with it a virtually unlimited additional source of adult-oriented sexual materials available to interested persons in every community with a mere keystroke. An adult-oriented business no longer has to be “actually” physically located in a city to be available in the community.

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Adult Businesses: Renton test

Establish content neutral.

Offer support for each operating standard as necessary to reduce secondary effects.

Reasonable range of sites – set forth basis for how you have decided to place these in your community from land use perspective.

City of Renton v. Playtime Theatres (1986) 475 U.S. 41.

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RLUIPA

RLUIPA area numerous attacks.

Equal terms issue on zoning code adoption of locations for places of assembly.

Concurrent explanation of zoning selections basis – very useful.

Another fruitful area of litigation.

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Sign Ordinance

Billboard wars in City of Los Angeles.

Concerns by courts that exemptions may swallow the rule such as no signs in public right-of-way.

Fiscalization of land use sign revenue sharing.

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Rules of Decorum

Offer explanation of need to effectively manage and make way through the agenda.

Bring issue to life as opposed to notion of trying to silence objections.

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Take Aways

“Why?” – All ordinances (and legislative findings) need to start here. This basic question provides the foundation for crafting the ordinance and appropriate findings. Having a strong understanding of the “why” behind ordinance (otherwise known as the government purpose) will allow the municipality to prepare appropriate evidence that will withstand challenges.

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Take Aways

Connectors – Utilize connectors, such as, “because” so that the findings are tied to the recommended action. When reviewing findings, utilize connectors as often as possible. This will help to bring the legislative findings to life. It will also simultaneously help to avoid the pitfalls of boilerplate, conclusory findings.

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Take Aways

Statutorily Required Findings – Draft findings that specifically respond to the applicable statute.

Cite to Relevant Evidence – Evidence used to

support legislative findings which reflect factual determinations, if available, should be placed in the record and retained.

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