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Agency Designated to Administer a Joint Powers Agreement Determines Scope of JPA’s Land Use Powers

By: Stanley S. Taylor, Yuliya A. Oryol

Zack v. Marin Emergency Radio Authority ("Zack")
California Court of Appeal, First Appellate District
04 C.D.O.S. 4111
Filed April 14, 2004

A recent California Court of Appeal decision, Zack v. Marin Emergency Radio Authority ("Zack"), could have a significant impact on the selection of the member of a joint powers authority ("JPA") that is designated as the administering agency.  Zack holds that certain JPAs could have the ability to avoid compliance with otherwise applicable city and county building ordinances, contrary to an earlier decision of another district of the Court of Appeal.  In City of Burbank v. Burbank-Glendale-Pasadena Airport Authority ((1999) 72 Cal.App.4th 366) ("City of Burbank"), the court had held that local agencies may not delegate their land use authority to other agencies through formation of a JPA, and that, accordingly, an attempt by the JPA to direct land use decisions within one of the member agencies was invalid.  In contrast, by distinguishing the impact of the delegation of a joint power held by the members, and the manner of exercise of the power determined by the JPA’s administering agency, the Zack court was able to conclude that the JPA was in fact exempt from local land use regulation.

City of Burbank Decision

In 1977, the cities of Burbank, Glendale, and Pasadena entered into a joint powers agreement to form the Burbank-Glendale-Pasadena Airport Authority ("BGPAA") as a joint powers authority under the Joint Exercise of Powers Act, Government Code section 6500 et seq. ("Act") for the purpose of acquiring and operating the Burbank Airport.  As part of its operations of the Burbank Airport, the BGPAA determined the need to move a terminal at the airport to satisfy certain aviation criteria of the Federal Aviation Administration (FAA).  In its attempt to comply with such FAA criteria, the BGPAA took steps to obtain an adjoining 130-acre parcel from Lockheed Martin Corporation.  In doing so, the BGPAA prepared an Airport Layout Plan ("Plan") and obtained FAA certification of a final environmental impact statement ("FEIS") pursuant to Public Utilities Code section 21661.6, which pertains to the regulation of airports and governs the construction of new airports and the expansion of existing airports. (See Nossaman’s E-Alert of November 2003 for an additional discussion of Public Utilities Code section 21661.6.)

When the city of Burbank ("City") received a copy of the Plan and FEIS, its counsel held a public hearing and rejected the Plan based on the City’s desire to minimize noise and safety hazards.  The BGPAA challenged the validity of the City’s review of the Plan and application of Public Utilities Code section 21661.6 under the United States Constitution.  The trial court ruled in favor of the BGPAA, finding that the City had properly delegated to the BGPAA any rights it may have under Public Utilities Code section 21661.6.

The Court of Appeal reversed the trial court.  It stated that a joint powers agreement must provide the purpose of the power to be exercised and the manner in which the power will be exercised by a joint powers authority.  A local government delegating administrative or regulatory powers must include directions for the designated administrating agency as to the manner in which the powers will be exercised.  The Court of Appeal noted that discretionary powers may not be delegated in such a way that results in a total suspension or abdication of such powers.  According to the Court of Appeal, land use regulation is an exercise of a local government’s inherent policy power.  As such, the City’s complete delegation to a joint powers authority of its power to regulate land use would amount to an impermissible suspension of the City’s police power.

The opinion further noted that, although Government Code section 53901 may exempt certain government entities (e.g. the state, city or county) from complying with applicable city or county building and zoning ordinances, local agencies as defined under Government Code section 53090[1] are not exempt from such compliance.  The Court of Appeal concluded that all local agencies not expressly exempted under Government Code section 53090, must comply with local building and zoning ordinances.  This means that JPAs, along with other non-exempt local agencies created under state law, must obtain local building permits and submit to site plan review prior to commencement of construction.

Zack Decision

The Zack decision provides certain JPAs with an ability to sidestep compliance requirements under Government Code section 53901 despite the City of Burbank decision.  In Zack, Marin Emergency Radio Authority (MERA)[2] was formed as a joint powers agency by 25 local public agencies situated in Marin County.  The County of Marin itself joined as a member of MERA.  The joint powers agreement entered into by MERA’s members states that the purpose of the agreement is "to establish a public entity separate from the County, Special Districts, Cities and Towns,….which will plan, finance, implement, manage, own and operate a multijurisdictional and county-wide Public Safety and Emergency Radio System with the attendant facilities."  The parties to the joint powers agreement creating MERA designated the County of Marin as its designated agency under section 6509 of the Act.

The trial court found that MERA was barred from placing a radio antenna in the Town of Tiburon without first complying with the local land use ordinances and preparing an environmental impact report pursuant to the California Environmental Quality Act in accordance with Cal. Government Code section 53091.  It rejected MERA’s reliance on section 6509 of the Act, stating that it applied only to the exercise of power that arose from the "common powers" of the parties to the joint powers agreement.  The trial court concluded that the power MERA sought to exercise was not a "common power" because four of MERA's members lacked the power to construct and operate an emergency communications system.

The Court of Appeal reversed the lower court.  It explained that while local agencies, as defined in Government Code section 53090, are subject to all applicable building and zoning ordinances of the county or city in which the territory of the local agency is situated under Government Code section 53091, cities and counties are explicitly excluded from the statutory definition of a local agency.  As a result, cities and counties are exempt from each other's building and zoning ordinances. (See also, Lawler v. City of Redding (1992) 7 Cal.App.4th 778, 783).  The court further held that, as long as the entity administering the joint powers agreement was a county, city or other exempt agency, the JPA, pursuant to section 6509 of the Act, was also exempt from compliance.

In its analysis, the Court of Appeal pointed out that MERA was exempt from compliance with the Town of Tiburon’s land use ordinances because MERA was permitted under the Act to exercise power on behalf of the other members that all of the members to the joint powers agreement held in common.  Since the County of Marin was exempt from the Town of Tiburon’s building and zoning ordinances, MERA was similarly exempt because Marin was designated as the agency administering the joint powers agreement.  Given this exemption, MERA need not comply with all the possibly conflicting procedural restrictions that may apply to the various contracting parties, regardless of whether it is one of the contracting parties or a separate joint powers agency.  Rather, MERA needed only to comply with the procedural restrictions that apply to one of the contracting parties. (See also, Cooper v. Mountains Recreation & Conservation Authority (1998) 61 Cal.App.4th 1115, 1118). 

The Court of Appeal rejected the Zack plaintiffs’ reliance on the City of Burbank decision in support of their position that the Act did not operate to grant MERA the same exemption from local land use regulations as the County of Marin may enjoy because a county, like a city, cannot delegate its immunity to a joint powers agency.  The Court of Appeal did not question the premise on which the City of Burbank decision was based; namely, that Government Code sections 53090 and 53091, which exempt counties and certain other local agencies from the need to comply with otherwise applicable building and zoning ordinances, were inapplicable since a JPA was not included in the list of exempted agencies.  According to the Court of Appeal in Zack, the City of Burbank court failed to address the applicability of section 6509 of the Act altogether.  The Zack court found that MERA's immunity from the Town of Tiburon’s land use regulations was not derived from any jointly held power of the participating agencies delegated to it by the County of Marin (since such delegation of police power is prohibited under the City of Burbank decision).  Rather, the source of MERA's immunity from compliance with local land use regulations resulted from the direct operation of section 6509 of the Act rather than Government Code sections 53090 and 53091.

Put differently, the point made by the Court of Appeal in Zack was that section 6509 of the Act, which goes to the manner of exercise of a power and not to the delegation of that power to the JPA, gave rise to a basis for the JPA’s exemption from local land use regulation, independent from any delegation.

[1] Cal. Gov. Code § 53090 defines a "local agency" as an "agency of the state for the local performance of governmental or proprietary function within limited boundaries."  Section 53090 further provides that a "local agency" does not include "the state, a city, a county, a rapid transit district, or a rail transit district whose board of directors is appointed by public bodies or officers or elected from election districts within the area comprising the district, or a district organized pursuant to Part 3 (commencing with Section 27000) of Division 16 of the Streets and Highways Code."

Nossaman serves as bond counsel for MERA.  The firm was not involved in the Zack decision.

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