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HomeMy WebLinkAboutMINUTES - 03191985 - 2.1 \�1 2.1 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on March 19, 1985, by the following vote: AYES: Supervisors Powers, Schroder, McPeak, Torlakson, Fanden NOES: None ABSENT: None ABSTAIN: None SUBJECT: Proposal for a Transportation Systems Management Ordinance The Board considered the Lport of County Counsel relative to aro osed Transportation p P Systems Management Ordinance for Contra Costa County. A copy of the report is attached and included as a part of this document. All persons desiring to sp lak were heard. I IT IS BY THE BOARD ORDERED that the report is REFERRED to the Transportation Planning, Growth and Development Committee, Public Works Director, and County Administrator for report to the Board on March 26, 1985. 1 hereby certify that this is a true and correct co of an action taken and entare Board of Supervisors on' c the minutes of the the Cute shown. ATTESTED; l -5 PHIL BATCi4t;� Cirri:ci!?'o!ward Of Supervisors ani CouniyAdministrator cc: Transportation Ping &Devel. Cte. By 1. Public Works Director — Deputy County Administrator County Counsel „_. COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA RECEIVED Date: Ma r e h 18, 1985 MAR /S'1985 TO: Board of Supervisors {+HIL 4ATCHILOR AMA 40ARP OF$T P RYISORS B ..4_!g.... k....... Deputy From: Victor J. Westman, County Counsel �� {- By: Lillian T. Fujii , Deputy County Counsel Re: City of. Pleasanton ' s Transportation Systems Management Ordinance appears valid ST&IARY: Responding to the Board ' s 3/5/85 direction, we report that : 1 . The City of Pleasanton ' s Transportation Systems Management (TSM) Ordinance generally appears on its face to be valid as a proper exercise of the police power ; 2. The adoption of an ordinance with similar requirements by . the Board of Supervisors for the unincorporated area is feasible, provided findings as to the existence of required "constitutional facts” can be made ; and 3. If the Board is interested in adopting a TSM ordinance : a* Staff should be. directed to determine if studies now exist or must be initiated to allow the Board to properly make the findings required to support the adoption of such an ordinance (9I"(e) & (d) -Pleasanton Ord. ) ; b. Staff should be directed to determine if the County ' s General Plan (circulation and noise elements , etc. ) supports the implementation of - such an ordinance (9I (h) ) ; and C. As discussed below, certain provisions in the Pleasanton ordinance should be deleted or modified to suit the County ' s, purposes . DISCUSSION: ; The Board, at its 3/5/85 meeting, asked this office 'to review the City of Pleasanton ' s recently adopted TSM Ordinance and report to the Board as to the legal feasibility of the Board adopting a similar. ordinanee for the unincorporated area of the County. i . Board of Supervisors March 18 , 1985 1 . Summary_,of_Ordinance The term "Transportation Systems Management" is not definded in the Pleasanton Ordinance. From reading the ordinance, we would define it as a concerted effort , consisting of employee surveys and employer-developed and sponsored or instituted programs and incentives (e .g. , flexible or staggered work hours , shortened work weeks , transit-related programs such as ridesharing, etc. ) for the purpose of achieving a specified goal - a reduction in peak hour traffic. The express purposes of the City of Pleasanton ' s TSM Ordinance (copy attached) are : " (1 ) To reduce traffic impacts within the City and region by reducing both the number of vehicular trips and total vehicular miles travelled that might otherwise be generated by commuting. (2 ) To reduce vehicular emissions , energy usage and ambient noise levels by reducing the number of vehicular trips , total vehicle miles travelled and traffic congestion. " (City of Pleasanton TSM Ordinance SII ,a ; hereafter all section references are to said ordinance. ) The ordinance specifies certain goals (§ II ,b) , and attempts to achieve the stated goals by imposing TSM requirements (§ IV) on all employers . (§III ( f) . ) All employers not otherwise exempt are required to submit survey reports . ( § IV(a) . ) In addition, all employers of ten or more employees are required to design and implement a TSM Information Program (§ IV(b) ) , and employers of 50 or more employees and employers within "complexes" (§ III (d) ) are required to design and implement a TSM Program designed to achieve specified reductions in peak traffic generated by their employees . (§ IV(c) . ) Other requirements are imposed on complexes . (§ IV(d) . ) A mandatory TSM Program consisting primarily of supple- menting existing TSM programs becomes operative after 2 years if the Pleasanton Coordinator ( BVI ) determines that substantial progress is not being made toward achieving the ordinance 's goals (§§IX(c) , X. ) 2. The Ordinance is Probably_a_Proper_Exercise_of the Police --------------------- ------------ Power i -2- Board of Supervisors March 18 , 1985 There is no statute expressly authorizing any city or county to adopt an ordinance such as Pleasanton ' s TSM Ordinance. However, the ordinance is probably valid as an exercise of the "Police power" , which is described as follows : "A county or city may make and enforce within its limits all local , police, sanitary and other ordinances and regulations not in conflict with general laws . " (Cal .Const . , Art . XI , §7 . ) First , we are not aware of any general law ( State statute, etc. ) which directly prohibits or is in direct conflict with the City of Pleasanton ' s TSM Ordinance. Therefore, the primary question is whether the ordinance is a proper exercise of the police power . In the landmark case of Birkenfeld_v. City_of Berkeley (1976) 17 Cal . 3d. 129, 130 Cal .Rptr . 465 , 550 P. 2d 1001 , the California Supreme Court rejected constitutional challenges to, and upheld as a valid exercise of the police power , the City of Berkeley ' s authority to impose residential rent control . The rent control ordinance was upheld because of the existence of "constitutional_ facts" , i . e. , the "existence of a housing shortage and its con- comitant ill effects of sufficient seriousness to make rent control a rational curative measure . " (Birkenfeld_v_ City—of Berkeley , supra , 17 Cal . 3d at p. 160 ; emphasis added.T Since B_irkenfeld, other ordinances imposing restrictions or duties upon property owners have been upheld as valid exercises of the police power . In Barenfeld_v__City_of_Los_Aneles ( 1984 ) 162 Cal .App. 3d 1035 , 209 Ca1 .Rptr . 8, the Court upheld as a valid exercise of the police power an earthquake hazard ordinance which required structural modifications to, or demolition of , specified buildings constructed before 1934. In Nash v._City_of_Santa _ Monica ( 1984 ) 37 Cal . 3d 97, 207 Cal .Rptr . 285 , the Court upheld an ordinance which ,prohibited the demolition of rent-controlled resi - dential structures if the owner was receiving a fair rate of return on his investment . Although the TSM ordinance does not interfere with property rights in the same vein as the ordinances in the above cases , these cases are illustrative of the broadening scope of a local entity ' s legislative powers under the police power as construed by the current California Supreme Court . The police power is summarized in the Barenfeld case, as follows : -3- I I I Board of Supervisors March 18 , 1985 " ' In the exercise of its police power a legislative body is vested with a broad discretion to determine not only what the public interests require but what measures are necessary for the protection of such interest . [Citations . ] Every intendment is to be indulged in by the courts in favor of the validity of its exercise. [Citations . ] [ 1f] The determination by the legislative body of the facts warranting its action will not be set aside or disregarded by the courts unless the legislative decision is clearly and palpably wrong and such error appears beyond a rational doubt from facts or evidence which cannot be controverted. [Citations . ] The courts will not nullify laws enacted under the police power unless they are manifestly unreasonable, arbitrary or capricious , having_ _ no real or substantial relation to the public health, safety, morals or a--neral welfare . [Citations . ] A court is not concerned with the wisdom or policy of ,the law and cannot substitute its judgment for that of the legislative body if there is any reasonable justification for the latter ' s action. [Citations . ] If reasonable minds might differ as to the reasonableness of the ordinance [citations] or if the reasonableness of the ordinance is fairly debatable [citations ] , the ordinance must be upheld. (Ratkovich v. City of San _Bruno [ 1966 ] 245 Cal .App. 2d 870 , 878-879 i54 Ca1 .Rptr . 333 ] . ) "' (Barenfeld v. ----------- City_of_LosAngeles , supra , 162 Cal .App. 3d at p. 1040.T — This is our first exposure to an ordinance such as the City of Pleasanton ' s TSM Ordinance . This particular type of regulation . has not , to our knowledge , yet been judicially tested. However , the reduction of traffic congestion is a proper subject of police power legislation. Subject to State and federal laws , it is generally the case that local entities may adopt regulations dealing with atmospheric pollution and traffic . (7 McQuillan , Municipal_Corporations 9§24. 493 , 24. 597 . ) Also, if the subject of residential rent within a municipality ' s boundaries is a valid subject of local legislation, it should follow that traffic congestion on or , carbon monoxide levels near , the streets of a -4- Board of Supervisors March 18 , 1985 local entity are similarly valid local concerns , subject to legislation pursuant to the police power . As discussed above, subject to the findings of "constitutional facts" warranting legislation, police power legislation will rarely be disturbed. Recent cases have stated that such legisla- tion is valid unless there is a lack of a rational basis for the legislators ' determination that the regulation is a reasonable means of dealing with the problem (Birkenfeld v. City_of Berkeley, suppra , 17 Cal . 3d at 161 ) , or the legislation is unreasonable, irbiTrary or capricious , having no real or substantial relation to the public health, safety or general welfare. (Barenfeld v. City_ of—Los_Angeles , supra , 162 Cal .App. 3d at 1040. ) ------------ In the City of Pleasanton ' s TSM Ordinance , the findings in SI purport to justify the regulation . Given the broad authority and discretion granted to local entities under the police power , the Pleasanton ordinance on its face appears to be a proper exercise of the City of Pleasanton ' s legislative powers . 3. County_May_Enact_Similar Ordinance , Provided Factual ----------------------------------- Findinas_Can_Be_Made _ As discussed above, the Pleasanton ordinance was based upon certain findings of facts made by the City Council . Although the existence of "constitutional facts" will be presumed in the absence of a showing to the contrary, their nonexistence can properly be established _by proof . . (Birkenfeld—v__City_of_ Berkeley, supra , 37 Cal .3d at 160. ) The City of Pleasanton apparently conducted, or had available to it , studies projecting that future traffic levels will reach intolerable levels of congestion unless substantial measures are taken to reduce congestion, and that a 45% reduction in traffic levels is necessary to meet specified carbon monoxide levels . (5III . ) In other words , the City Council had before it evidence to substantiate the findings of fact it made to justify the enactment of the ordinance. We do not know whether similar studies are now available as to the need to reduce traffic congestion in the unincorporated area of this County. However , if the Board is interested in con- sidering the enactment of a TSM ordinance such as the City of Pleasanton 's , and such studies are not availale, staff (or a con- sultant ) should be directed to undertake traffic and other studies to determine whether the Board can make factual findings ( similar to Pleasanton ' s) to justify the adoption of such an ordinance in the unincorporated areas of the County. Also, staff should be -5- Board of Supervisors March 18 , 1985 , directed to determine whether the County ' s adopted general plan would support the implementation of this type of traffic regula- tion. 4. Modifications and Deletions Recommended... --------------------------------------- Section XI (c) (2 ) authorizes the City Council to impose a civil penalty of $250 per day for violations of §X of the TSM Ordinance. We did not researched the constitutionality of such a fine imposed by a city council . However , cities do have statutory power to impose civil penalties for violations of their ordinances . (Govt .Code 936901 . ) This general law County, on the other hand, does not have any similar statutory authority. Government Code §25132 deemed violations of county ordinances misdemeanors unless made infractions . Although a county may seek redress for viola- tions by civil action (e.g. , suit for an injunction) (Govt .C. 525132 ) , absent authority to impose penalties , we do not believe a general law county may impose civil monetary penalties for viola- tions of its ordinances . For this reason, we advise that the civil . penalty provision be deleted in any proposed County ordi - nance. Section IV(d) (4) requires that "complex " owners , landlords , etcinclude specified provisions in prospective recorded cove- nants , conditions and restrictions (CC&Rs) and leases . We are concerned about the enforcement of . this provision (as infractions ) as against the lessor or developer , as it may require them to breach contractual obligations . (The lessee and other employers , although subject to other ordinance requirements , are not subject to this section. ) Also, since all employers in complexes are already required to comply with the ordinance 's TSM requirements , this section in some situations is redundant . For this reason, we question its reasonableness in spite of the broad discretion granted to local entities . We recommend that this section be deleted or substantCally revised. 5 . Comment. The Pleasanton ordinance appears to have been carefully drafted to avoid claims of infringement of certain constitutional rights . For example, employers are not required to provide the Pleasanton Coordinator with their employees ' names , addresses and phone numbers , which requirement would give rise to a claim that the ordinance is an invasion of the employees ' right to privacy. Also, the ordinance does not appear to require or authorize employers to require their employees to participate in any form of vehicle trip reduction measure (e.g. , carpooling, public transpor- I I 1 Board of Supervisors March 18 , 1985 tation, etc. ) . Such requirements may give rise to claims that the ordinance is an infringement of the employees ' freedom of asso- ciation, or that the ordinance is an infrigement of business rela- tions . Although it is our view that the Pleasanton ordinance (as presently drafted) will probabaly withstand a general legal challenge, any attempts to further "strengthen" the ordinance in a Contra Costa County version may not survive judicial scrutiny. LTF: df cc : Phil Batchelor, County Administrator A. A. Dehaesus , Director of Planning J . M. Walford, Public Works Director Pleasanton City Attorney LTF: df -7- I