HomeMy WebLinkAbout06-City Attorney
c!
.
j
o-i:l5 , \
~ - ,', . -,~ -:- l~ ; ~ -1.r::J.r t 4- '.RY 25--..... rU, ~
......
..J .~ ~1
,
'......
RALPH H. PRINCE 'LSON ~. w:
City Attorney y Attorney , Cit
Emergency Ordinances, Facts and Law
No. 85-14 Opn.
1, 670.2 , 700.
e
~ 1,,-
--~
~
QUESTION
What are the facts and law relating to the promulgc f
emergency and urgency ordinances?
FACTS
You have requested
A Ww or---'
.'}.. f'-'r'hr <1 Th-
OR e~inioa en-urgency ordinances~ f~s
..Cl1"'\(1 '1~
--.. "'....::. .
ANALYSIS
The designation of an ordinance as an urgency or emergency
ordinance determines the effective date of said ordinance.
Whereas a regular ordinance takes effect thirty days after
final passage, an ordinance designated as an emergency or
urgency ordinance takes effect immediately. By designating
an ordinance as an emergency or urgency ordinance, that
ordinance is removed from challenge by the referendum
process. An ordinance which is found to be inappropriately
deSignated as an urgency or emergency ordinance is not made
~
c
c
:J
,)
(invalid thereby.
moved to a point thirty-one days following the date of final
C.~;J (
7'7 jV ~ passagl;!.
1~yr'Z:;J t,
~~ " The power to adopt emergency ordinances is to be used
_~ reserved ly.
,/
The effective date of the ordinance is
The ncrmal ordinance adoption procedures
contain important safeguards against common error in
judgment made by legiSlatures.~The emergency adoption
power, which specifically circumvents these safeguards, is
designed to be used where immediate action is needed to
": ,...';...
~'-',.}-
~V, -<'">_~",,
, I_~' ,,-
I')'" '
t;i
resolve a crisis during a time of difficulty or danger,
where the short term resolution of the problem outweighs the
benefits of deliberation~
Article XI Section 5(a) of the California Constitution
provides:
"It shall be competent in any city charter
to provide that the city governed thereunder
may make and enforce all ordinances and
regulations with respect to municipal
affairs, subject only to restrictions and
limitations provided in their several
charters and in respect to other matters they
shall be subject to general laws. . . ."
Section 121 of the San Bernardino City Charter sets forth
6~
the scheme for the referendum process which is a part of the
restrictions and limita~ns imposed with respect to the
ordinance adoption procedure. The section states:
c
o
o
:)
../
"No ordinance passed by the Common Council , .-
(except when otherwise required by the )<_r'~ -
general laws of the State, or by the ,l,Kl
provisions of this C,harter, res"p,ecting street/
improvements and excegt an_Qrdinance for the
immediate, prese.rvatign of t;he PUblic':-,pe~ce, './ ,-,11./
healtg, or. s~fe~y, which contains ~~t~~em~nt tI~
of' i t;,:l, urgency" aM, iE passed by a two-thirds
(2/3) vO!~ of, the Council, . . .) shall go
into effect before thirty (30) days from the
time of its final passage and its approval by
the Mayor; and if during said thirty days a
petition signed by electors of the City equal
in number to at least thirty percent (30%) of
the entire vote cast for all candidates for
Mayor at the last preceding City election at
which time a ~ayor was elected, protesting
against the passage of such ordinance, be
presented to the Council, the same shall
thereupon be suspended from going into
operation, . . ."
Pursuant to this Charter section, the adoption of an
ordinance for "the immediate preservation of the public
peace, health or safety, . ." cuts off the referendum
rights granted by this section.
California courts have found that even in instances where
the cutoff of this referendum right was the avowed purpose
of an "urgency" ordinance, that said ordinance was not made
invalid thereby.
"Appellants argue that the ordinance could
net have become effective on the same day
that it was introduced because 'the city ,~~I~
council trumpeted its objective of avoiding
recourse to the instrumentality prescribed by
the California Constitution under article
XIIIA, section 4, i.e., submission of the
c
c
o
:J
ordinance to a vote of the People. This was the
avowed predicate of this alleged "urgency"
ordinance.' However, even if that had been the
council's secret intent rather than its express
intent, it would be irrelevant if the council had
the power to ehact it at the time that it did. ~
'The motives of a city's legislative body in
passing an ordinance will not ordinarily be
considered in determining its validity, in the
absence of a showing of fraud, at least where
nothing on the face of the ordinance shows that it
wcs passed for improper motives, or where its
passage for improper motives is not inferatle from
its operation or effect under circumstances of
which judicial notice may be taken. There is a
presumption that the legislative body acted from
proper motives.'" National Independent
J Business Alliance v. City of Beverly Hills
''fi' (l91Sl) IllS Ca1.App.3d 13, 11SU Ca1.Rptr. 59, 64.
". r
'/~ addition to cutting off any referendum right available
../
to the voting population, the effect of declaring an
ordinance to be an emergency or urgency ordinance, is to
avoid the usual waiting period specified in the law.
Section 36934 of the California Government Code applicable
to general law cities provides in pertinent part:
"Ordinances shall not be passed within
five days of their introduction, nor at other
than a regular meeting or at an adjourned
regular meeting. However, an urgency
ordinance may be passed immediately upon
introduction and either at a regular or
special meeting."
(}tU
This section has been interpreted to mean that an ordinance
passed in violation of this provision is invalid and
ineffective regardless of its subject matter. (National
Independent Business v. City of Bevery Hills [1982], supra.
Pursuant to this interpretation, an ordinance invalidly
c:ft..
o
c
o
:>
enacted under emergency provisions would be deemed to have
been passed in violation of thiSS~~i~ ~d therefore
invalid. However, it has bee~ furthe~found that if the
'--..--.-.- -- - -,~--
same emergency ordinance is otherwise valid and is given a
second reading under Government Code Section 36937, the
ordinance is not invalid but becomes effective thirty days
after it is adopted. (rd.)
Government Code Section 36937 provides:
"Ordinances take effect 30 days after
their final passage. An ordinance takes
effect immediately, if it is an ordinance:
1\
~
',A
1"';;
",(
tl/
(a) Relating to an election.
(b) For the immediate preservation of the------
public peace, health or safety~ntain~a ..r...(t~
declaration of the facts constit~1ng ~ e " V
urgency, and is passed by a four-fifths vote
of the city council. . . ."
When an ordinance is first introduced and adopted not less
than five days thereafter, the ". . . effect of declaring an
urgency when there was none is not to avoid the ordinance,
but merely to postpone the taking effect thereof until the
period of 30 days has elapsed." (Michelson v. City of (!Uc:
Sacramento [1916] 173 Ca1. 108, 159 P. 431, 432.)
The word "emergency" has been defined in other
jurisdictions, e.g.:
"An 'emergency' has been defined to be an
rJfL.
o
o
o
~
~ p(,...
, '
/ ""l. ~1Ol-
'1
~'i' '
't-
unforeseen occurrence or condition calling
for immediate action; an exigency; a crisis;
or a time of difficulty or danger. The purpose
of emergency legislation is to enable the
legislative body to provide immediate action
in order to prevent or remedy a condition or
situation which is of such a nature that it
dema~attention, when to postpone such
action would result in serious injury or damage
to the people, the government, or the
community directly concerned." (Municipal
Corporations 5, McQuillin 3rd Ed. Section
15.40 Emergency.)
vlc..-
In this jurisdiction, the
ordinance~\ rk(",~J. J1, "'..I
~~k Q~""""'1'.
declaration of the urgency in
jAHrf '. fV'1tl\<b H>.,d'- Q.'-l-eL<-lo'-V" 0 (-.
~
the I
!~ rr-7;1"~ 1.]
~
"Such a declaration, though not conclusive,
is prima facie evidence of the existence of
an emergency, and places the burden on the
party attacking the recital." (Los An~eles
Dredgin~ Co. v. Cit~ of Long Beach l19 OJ 210
Cal. 34 , 291 P. B3 , B44.
ole..
And, if no evidence to the contrary appears, the presumption
arises that the action of the councilor other body in
declaring an emergency is based upon facts after sufficient
inquiry. (See Potter v. City of Compton, et al. [1936] 15 ~t-
Cal.App.2d 232, 59 P.2d 537.)
This legislative presumption does not always pertain.
L
)
.h'-~n~ ~~:~eC~;F~:n~~~~:~:~~~~RLt= ~
oraifldl.l.,,",,'I;;; .i..L,:,C'lf ll.ClL CUI C'un=.t:&cu",,) dOC3 Rot
~n~ CQyl~ net e]Ei8t~ . . _)the mere
declaration of the council in such a case
that the or~nance is passed for the
immediate p servation of the pubIc health is
neither conc usive nor yet sufficient. The
nature of the ordinance itself will, in most
'~,1'
CL/~
o
o
o
:)
instances, be determinative, and where a
sudden emergency has arisen, a statement of
the nature of the urgency finds proper place
to support the declaration." Ex Parte
Hoffman (190'1) 99 P. 517, 520.
~ . ,I,t...,-'--
iL'-~'
In the following California cases, the reviewing court found ~/ r./ r
~hat the adoption of an emergency or urgency ordinance(was _~r~ r
lnappropriate. ~ ~)JJ,.
"t ;J rJ-C" ,
1. Ex Parte Hoffman (1909) 155 Ca1. 114, 99 P. 51. 8~
The City of Los Angeles adopted an ordinance establishing a
standard for the components of "milk". The City
subsequently adopted an ordinance making the sale of milk
not in conformance with the standard a violation of the law.
The milk standard was adopted as an urgency measure. The
court found that the establishment of a standard for milk
was not a measure which must be adopted for the immediate
preservation of the public health. The court stated:
" .. we agree that the mere declaration
of the council in such a case that the
ordinance is passed for the immediate !~
preservation of the public health is neither &
conclusive nor yet sufficient. The nature of
the ordinance itself will . . . be
determinative, and where a sudden emergency
has arisen, a statement of the nature of the
urgency finds proper place to support the
declaration. Id.,520. (Emphasis added)
2. Ex Parte Kazas (1937) 22 Ca1.App.2d 161, 70 P.2d 962. PI?
The City of Bakersfield adopted an ordinance regulating the
prices to be charged by barbers. The issue in the case was
o
o
o
::)
whether the City had the authority to so regulate prices.
The City justified its action on the grounds that the
national depression had created an economic "emergency"
among the local barber trade and, that the price regulation
was therefore necessary and constitutional as an exercise of
the police power of the City.
."--,
, ,~;/J'1 '/,
'Jr t,.,y-' ,.,--' "
I .~ . .. " . \
i!c .' ~'.:' '"
'/ Q,. '\oJ ~.
grounds. However, the
Kazas was decided on constitional
court's observations in Kazas are pertinent insofar as they
set forth the circumstances in which it is appropriate to
-- --'----'., -.-
adopt an emergency or urgency ordinance, or- F~.lt:111 .1. ~ ")
----
In overturning the ordinance in question, the court in Kazas
states:
". . . without evidence or proper findings
of fact Qy a com~etent fact=findini ~odr
proauced-oerore 1ts members, a leg s at ve
cody should go no-Iurther, in declaring the
existence of a condition of emergency which ~/
depends for its existence on the truth of O~
certain facts, than a court can go in taking
judicial notice of a general factual
condition; that judicial notice is thus
limited; 'that the matter be one of common
and general knowledge, that it be well
established and authoritatively settled, be
practically indisputable, and that this
common, general, and certain knowledge
exist in the particular jurisdiction. '" Id.,
966. (Emphasis added)
Kazas requires that before an ordinance can be adopted as an
emergency measure, there must be findings of fact in support
of the existence of an emergency. Where there are no such
c'
o
~
u
,"""
,-)
findings of fact, the emergency must be self-evident, to the
point that it could be given judicial notice as an existing
fact.
3.
County of Los Angeles v. City Council of the City of ~
Lawndale (1962) 202 Cal.App.2d 20, 20 Cal.Rptr. 363.
The City of Lawndale sought to annex a park contiguous to
its boundaries which was owned by the County of Los Angeles.
The City adopted the resolution initiating the annexation
procedures as an emergency measure. By so doing, the City
Council limited the time in which the County could file a
protest against the annexation. In adopting the resolution,
the City Council stated as a basis for its findings of an
emergency:
" .. That valuable buildings, extensive
public recreational facilities and
potentially dangerous conditions are ~
maintained upon said property and that it is
essential that ma~imum police, fire and
municipal type protection be given to said
area immediately because of said activity."
Id., 365.
The court found that the resolution was not an emergency
measure.
". . . The action of a city council in
the passage of an ordinance for the
protection of the public peace, health and I
safety of the citizens of the community, is &C
the exercise of the police power of such
city, and the exercise thereof, with certain
exceptions~ot here involved, l! limited to
c'
o
o
J
the existing boundaries of the :ity.
~tations) The factuallfetermlnation of
'urgency' by a city council in the situation ~,
here presented is not conclusive on review. V~
(Citation) The ordinance of annexation here
under consideration was not, as a matter of
law, an I urgency I measure. . . ." Id., 366.
(Emphasis added) ---
as an urgency resolution a measure
tJ1
which affected property beyond the City's borders under the
circumstances involved in the case.
4. Parr v. Municipal Court for Monterey-Carmel J.D. (1971) ~
3 Cal.3d 861, 92 Cal.Rptr. 153.
The City of Carmel adopted an anti-hippie measure as an
urgency ordinance. The ordinance was invalidated as a
violation of the Fourteenth Amendment of the United States
1~'/~-'co~-;;;;tution.~e court specifically avoided discussion of
.,!-
'-'
d the validity of the finding of urgency.
'\.
5. City of Colton v. City of Rialto (1964) 230 Cal.App.2d ~
174, 40 Ca1.Rptr. 766.
The City of Rialto was in a competition with the City of
Colton to annex uninhabited territory contiguous to the
borders of both cities. Within a five day period, the City
of Rialto introduced and approved an ordinance approving
annexation, There was no statement of urgency included in
the ordinance. The court found that:
c
o
o
~
"Section 36934 of the Government Code
provides that ordinances of the type here in
question 'shall not be passed within five
days of their introduction' . . . where an
ordinance . . . was purportedly adopted in
violation of the five-day limitation contained
in what is now section 36934, such an ordinance
or resolution is void." ~. 770.
The case does not in fact involve an ordinance adopted as an
urgency measure. The City of Rialto was guilty of a violation of
Government Code Section 36934 in adopting a non-emergency ordinance
within five days of the date of its introduction.
Relationship to CECA
If the urgency ordinance pertains to subject matter which is a
"project" within the meaning of CEQA, then environmental review
must be carried out unless it concerns an emergency. Emergency is
defined at Public Resources Code 21172 which states:
"This division shall not apply to any
project undertaken, carried out, or approved
by a public agency, to maintain, repair, restore,
demolish or replace property or facilities damaged
or destroyed as a result of a disaster in a
disaster stricken area in which a state of emergency
has been proclaimed by the Governor pursuant to
Chapter 7 (commencing with Section 8550) of
Division 1, Title 2 of the Government Code."
Emeraencv proiects
"15269.
o
o
o
~
The following emergency projects are exempt from
the requirements of CEQA.
(a) Projects to maintain, repair, restore, demolish,
or replace property or facilities damaged or destroyed
as a result of a disaster stricken area in which a state
of emergency has been proclaimed by the Governor pursuant
to the California Emergency Services Act, commencing with
Section 8550 of the Government Code.
(b) Emergency repairs to public service facilities
necessary to maintain service.
(c) Specific actions necessary to prevent or mitigate]
an emergency.n
Emeraencv
n15359.
'Emergency' means a sudden, unexpected occurrence,
involving a clear and imminent danger, demanding immediate
action to prevent or mitigate loss of, or damage to life,
health, property, or essential public services. Emergency
includes such occurrences as fire, flood, earthquake, or
other soil or geologic movements, as well as such
occurrences as riot, accident, or sabotage.n
CONCLUSION
An ordinance should be designated as an emergency or urgency
ordinance only when the situation which the ordinance addresses
allows no time for deliberation. The facts upon which the finding
- --
c
o
o
J
of emergency or urgency is based must be of common and general
knowledge, well established and authoritatively settled.
Adoption of an ordinance or resolution as an emergency measure
shortens the time for adoption of such ordinance or resolution.
Adoption as an emergency or emergency measure also forecloses any
challenge to the new law by referendum of the citizens.
An ordinance or resolution which constitutes a project under CEQA
must conform to the narrower definition of "emergency" contained in
the Public Resources Code to avoid CEQA review before adoption.
JOHN F. WILSON
Deputy City Attorney
JFW:ca