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.
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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.
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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
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Power
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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 :
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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
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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. )
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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
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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...
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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-
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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-
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