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FEBRUARY 2020 |

The Monthly Magazine of the League of California Cities

Code Enforcement by Drone: Critical Considerations Before Launching p.8

Lessons Learned From UtilityInitiated Power Shutoffs p.5 What Cities Need to Know About SB 1383 and Funding Organic Waste Management p.12

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CONTENTS 2 Calendar of League Events 3 Executive Director’s Message League Strategic Priorities Set a Course for 2020

By Carolyn Coleman

 he League board of directors, T joined by leaders from each of the League’s divisions, departments, policy committees and diversity caucuses, convened in early December to reflect on city accomplishments in 2019, discuss current challenges and establish the League strategic priorities for 2020.

5 City Forum

Lessons Learned From Utility-Initiated Power Shutoffs

By Jill Oviatt

 ince October 2019, the Pacific S Gas and Electric Company has cut power to Californians more than half a dozen times, with the smallest power shutoff affecting about 30,000 people and the largest affecting nearly 2.5 million. But cities have made it clear that this cannot be the new normal, and power shutoffs are in fact putting residents at real risk.

7 News From the Institute for

8 Legal Notes

Code Enforcement by Drone: Critical Considerations Before Launching

By Stephen A. McEwen

 Because not all potential code violations can be investigated from the public right of way, code enforcement investigations may require access to enclosed or shielded areas of private property. In these settings, code enforcement staff may be strongly tempted to rely on emerging drone technology.

12 What Cities Need to

Know About SB 1383 and Funding Organic Waste Management

By Nicole Enright

 California cities are preparing to comply with new targets to reduce statewide emissions of short-lived climate pollutants and reduce organic waste in landfills. To help cities with this, the Institute for Local Government is partnering with CalRecycle to raise awareness and connect local governments with resources and expertise.

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 Cities should immediately begin planning for and implementing the required organic waste collection and edible food recovery services. This work includes assessing and securing adequate capacity for organics processing and edible food recovery, which can be done individually or in conjunction with counties, other cities and regional agencies.

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Scrap Your Fears About Food Waste Regulations: Preparing for SB 1383

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President John F. Dunbar Mayor Yountville

1400 K Street, Sacramento, CA 95814 (916) 658-8200; Fax (916) 658-8240

Magazine Staff Editor in Chief Jill Oviatt (916) 658-8228; email: joviatt@cacities.org Managing Editor Jude Lemons, Hudson + Associates (916) 658-8234; email: editor@westerncity.com Contributing Editor Kayla Woods (916) 658-8213; email: kwoods@cacities.org Business and Creative Manager Amanda Cadelago (916) 658-8226; email: acadelago@cacities.org

Second Vice President Cindy Silva Mayor Walnut Creek

Immediate Past President Jan Arbuckle Council Member Grass Valley

Executive Director Carolyn Coleman

For a complete list of the League board of directors, visit www.cacities.org/board.

leaguevents February 5–7

City Managers’ Conference, Napa Geared to the unique needs of city managers, this conference covers issues affecting cities throughout California.

20–21

Advertising Sales Cici Trino Association Outsource Services, Inc. (916) 961-9999; email: cicit@aosinc.biz

Board of Directors’ Meeting, Yountville The League board reviews, discusses and takes action on a variety of issues affecting cities, including legislation, legal advocacy, education and training, and more.

Administrative Assistant Savannah Cobbs (916) 658-8223; email: scobbs@cacities.org

MARCH

Contributors Derek Dolfie Melissa Kuehne

4–6

Planning Commissioners’ Academy, Sacramento Tailored to meet the needs of planning commissioners, planning directors, planning staff and other interested officials, the academy offers sessions on the major planning and land-use issues facing cities.

Associate Editors Carol Malinowski Carolyn Walker

18–20

Design Taber Creative Group

Public Works Officers’ Institute & Expo, Monterey Designed for professionals at every career level, this conference covers the latest developments in public works.

Advertising Design ImagePoint Design For photo credits, see page 18. Western City (ISSN 0279-5337) is published monthly by the League of California Cities, 1400 K St., Sacramento, CA 95814. Subscriptions: $39.00/1 year; $63.00/2 years; student: $26.50; foreign: $52.00; single copies: $4.00, including sales tax. Entered as periodical mail January 30, 1930, at the Post Office, Los Angeles, CA 90013, under the Act of April 13, 1879. Periodical postage paid at Sacramento, Calif.

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Postmaster: Send address changes to Western City, 1400 K Street, Sacramento, CA 95814. Western City Trademark Reg. U.S. Pat. Off. ©2020 League of California Cities. All rights reserved. Material may not be reprinted without written permission. This issue is Volume XCVI, No. 2.

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FSC ® is an independent, not-for-profit organization that promotes environmentally appropriate, socially beneficial and economically viable forest management worldwide. Products with the FSC label are independently certified to ensure that they come from forests managed to meet the needs of present and future generations.

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First Vice President Cheryl Viegas Walker Council Member El Centro

League of California Cities

APRIL 2–3

Policy Committee Meetings, Anaheim The League’s policy committees review issues of interest to cities statewide and make recommendations to the League board of directors.

22

Legislative Action Day, Sacramento Get the latest updates on legislation affecting your city and meet with your legislators.

23

Board of Directors’ Meeting, Sacramento The League board reviews, discusses and takes action on a variety of issues affecting cities, including legislation, legal advocacy, education and training, and more.

MAY 6–8

City Attorneys’ Spring Conference, Carlsbad This meeting covers trends and issues affecting public law practitioners and provides an opportunity to connect with colleagues.

www.cacities.org


Executive Director’s Message by Carolyn Coleman

As part of the priority-setting meetings held in December, leaders from throughout California applaud a presentation on the League’s progress in 2019.

League Strategic Priorities Set a Course for 2020 Every day, city leaders throughout the state — rural, urban and suburban alike — are working hard to improve the quality of life for their residents. The complex challenges facing these leaders require innovation and collaboration at all levels of government. To help address these challenges for communities, city leaders meet annually and set the League’s strategic priorities to strengthen our cities as vibrant places to live, work and play.

December 2019 Meeting Establishes Direction for the Coming Year The League board of directors, joined by leaders from each of the League’s divisions, departments, policy committees and diversity caucuses, convened in Napa in early December to reflect on city accomplishments in 2019, discuss current

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challenges and establish the League strategic priorities that will help the organization continue to serve as the leading voice of California cities in 2020. More than 100 League leaders attended and participated in the priority-setting workshop, which included presentations on the organization’s progress on its 2019 priorities, a recap of the 2019 legislative session, an overview of the current status of 2020 ballot initiatives, and a special presentation from John Myers, Sacramento bureau chief for the Los Angeles Times, that previewed the priorities of the administration and Legislature in the coming year.

Discussions Focus on Critically Important Issues As part of this immersive, collaborative workshop, participants examined many pressing issues that affect Californians.

League leaders discussed the challenges cities face in addressing the housing affordability issues and production shortages in their communities. As these challenges continue to grow and the Legislature and administration work to find solutions to address these problems, it remains critically important to ensure that funding and tools are made available to spur the construction of housing at all affordability levels. During the workshop, attendees conducted a robust conversation about how to provide additional services for those who are experiencing homelessness in our communities. Participants agreed that strong partnerships and additional resources for navigation assistance and emergency shelters, as well as mental health services and substance abuse treatment, are urgently needed. continued

Western City, February 2020

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League Strategic Priorities Set a Course for 2020, continued

The League board of directors gathered in Napa for its December 2019 meeting; below workshop participants prioritize the most pressing issues for cities in 2020.

City leaders meet annually and set the League’s strategic priorities to strengthen our cities as vibrant places to live, work and play. Attendees also agreed to continue collaborating with stakeholders to raise awareness of the growing fiscal stability challenges that California cities are facing, which include rising public pension costs. They also recognized the importance of addressing California cities’ public safety concerns and securing additional resources needed to meet critical community challenges.

Strategic Priorities The League board of directors approved five strategic priorities for 2020: 1. Improve the supply and affordability of housing. Provide cities with financial tools to increase construction of housing, particularly for vulnerable populations, reform state regulatory barriers and ensure cities retain flexibility based on the size, geography, demographics, impact mitigation and land-use needs of each community. 2. Advocate for increased funding and resources to prevent homelessness and assist individuals experiencing homelessness. Secure additional resources and flexibility to provide navigation assistance, emergency shelters and permanent supportive housing and strengthen partnerships with stakeholders to ensure

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mental health, substance abuse treatment and wrap-around services are available for adults and youth at risk or already experiencing homelessness in our communities. 3. Address fiscal sustainability to deliver essential services and meet pension obligations. Raise awareness among stakeholders about the fiscal challenges cities face and work collaboratively to secure new revenue tools and flexible prudent policies to ensure cities are able to provide essential services to their residents while maintaining their ability to meet pension obligations. 4. Strengthen community and disaster preparedness, public safety and resiliency. Improve community resiliency to disasters and environmental threats and strengthen infrastructure stability and control through expanding partnerships, including those with state and federal agencies, and securing additional resources and support for climate change adaptation, planning, preparedness, response, recovery and sustainability in our cities. 5. Address public safety concerns of California cities. • Reform recently enacted criminal justice laws — enacted by both statute and initiative — that have eroded

public safety protections of California residents through the passage of the California Police Chiefs/California Grocers Association-sponsored criminal justice reform measure eligible for the November 2020 state ballot, or by equivalent reforms achieved through legislative action; • Protect public safety by reducing access to firearms by the mentally ill; and • Support additional tools and resources to address critical community challenges such as homelessness, mental health, domestic violence, drug rehabilitation, human trafficking and workforce development for ex-offender re-entry. I am thankful for all of our city leaders who participated in our priority-setting process. We stand ready to work collaboratively with Governor Gavin Newsom, the Legislature and other stakeholders to accomplish these strategic priorities in 2020. Mark your calendars now to attend Legislative Action Day on April 22, 2020, in Sacramento, where you can help us achieve these priorities. I urge you to join us in our ongoing efforts to build a better future for our residents and our cities. To learn more, visit www.cacities.org/ Policy-Advocacy. ■

www.cacities.org


Lessons Learned From Utility-Initiated

Power Shutoffs Losing power is at best inconvenient and at worst, life threatening. Since October 2019, the Pacific Gas and Electric Company (PG&E) has cut power to Californians more than half a dozen times, with the smallest power shutoff affecting about 30,000 people and the largest affecting nearly 2.5 million.

Shutoffs Put Residents at Risk PG&E refers to these utility-initiated blackouts as “public safety power shutoffs (PSPS)” and contends they are sometimes necessary to prevent wildfires caused by power equipment during high winds and dry conditions. However, local governments throughout the state have made it clear in letters to the California Public Utilities Commission (CPUC) and in public meetings and media interviews that this cannot be the new normal, and power shutoffs are in fact putting residents at real risk.

The cities of Clearlake and Lakeport submitted a letter to the CPUC (which regulates the utilities) at the end of October 2019, providing examples of the harm done to vulnerable communities due to a loss of power and in some cases a resulting loss of cell service as well: a woman in her 80s with a fractured ankle was unable to access medical care for a week, a low-income senior lost all the food in her refrigerator and had no hot water for days, and some restaurants are on the brink of going out of business due to food spoilage and loss of customers during the power outages instigated by PG&E.

San José Takes Action to Protect Vulnerable Residents In the City of San José, PG&E turned off electricity to 20,000 “customer accounts,” which affected over 60,000 residents and hundreds of businesses. The city activated its Emergency Operations Center (EOC) and implemented its power vulnerability

by Jill Oviatt

plan, created during the summer after PG&E announced plans to shut off power when gusty winds and dry conditions were combined with a heightened fire risk. The focus of the San José plan was “compassion in action” for at-risk populations. Some of the city’s emergency actions included: • Directly contacting medical baseline customers (those with special energy needs due to qualifying medical conditions) and school districts; • Deploying staff to evaluate impacts to major corridors; • Activating Community Resource Centers; and • Launching a special mobile app that crowdsourced information from residents to provide more accurate real-time information on de-energized regions of the city. continued

Jill Oviatt is director of communications and marketing for the League and can be reached at joviatt@cacities.org.

The City of San José implemented emergency measures in response to the PG&E-initiated power shutoff; above municipal staff coordinate information at the city’s Emergency Operations Center; and left workers prepare to activate Community Resource Centers. Western City, February 2020

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Lessons Learned From Utility-Initiated Power Shutoffs, continued

San José city staff assist concerned residents with information about the utility-initiated power shutoffs. Many cities became the main source of information for residents during the midOctober power shutoffs when PG&E’s website crashed repeatedly and people waited indefinitely for a response when calling the utility’s information phone lines. San José also noted that when the website was working, the address lookup tool was not always accurate, causing confusion and concern among residents. “San José strove to provide special assistance to the most at-risk populations, and fortunately, those efforts paid off,” said San José Director of Office of Emergency Management Raymond Riordan. “Residents reported feeling supported and informed by the city.”

Emergency Response Incurs Significant Costs However, those efforts came at a cost. Emergency response due to the shutoff cost the City of San José roughly $760,000 in staff overtime and costs for fueling the emergency generators required to maintain San José’s drinking water supply and other vital services. The figure does not include the direct costs incurred by residents preparing for and responding to the outage. While the state’s recent budget allocation of $75 million for statewide preparation and response to utility-initiated power shutoffs is helpful, the City of San José’s costs exceeded the maximum $500,000 grant in the first event alone. Continued partnership with the state, including ongoing funds for disaster preparedness like those called for in AB 291 (Chu), is essential. San José submitted a detailed account to the CPUC in November. Riordan said the imprecise information from PG&E about when and where the utility planned to de-energize increased the cost of city personnel. “There was a 20-hour period between the time PG&E said the shutoffs would begin and when they actually began,” said Riordan. “San José had personnel staffing the city Emergency Operations Center and

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department operations centers when they could have been working in other areas where they were needed.” One of the most concerning situations the City of San José reported in its letter to the CPUC was that it had to step in when PG&E was unable to notify a number of medically vulnerable customers of the impending shutoff. The city reported resistance from the utility to give emergency personnel the addresses of identified vulnerable customers without first signing a nondisclosure agreement, which conflicted with public records law. Fortunately, the delayed start of the power shutoff gave San José staff time to alert residents door to door. The energy needs of these at-risk groups ranged from motorized wheelchairs, ventilators, dialysis machines, sleep apnea monitors and electrostatic nebulizers to respirators — all of which require power to operate. Given that PG&E announced similar outages could continue for a decade, the City of San José put together five lessons learned during the shutoff to help other cities prepare.

Five Lessons Learned 1. When communicating and assisting the public during a power shutoff, information must be produced not only in multiple languages reflecting a city’s diverse population, but also potentially in different dialects. Communication should also be distributed through a broad range of channels, including social media. 2. EOC staff should regularly update elected officials with the information necessary for their constituents. Having the mayor and council members up to speed and actively engaged helps reassure the public that they will be safe and that local government is looking after their safety. This is especially important when the utility is not providing sufficient information or reassurance.

3. The ingenuity of staff during a crisis is boundless. After gathering and assessing the data available from PG&E, San José’s emergency personnel determined the data was not complete and worked with the Public Works Geographic Information Systems Division staff to create an app for residents to input power outage locations, which improved the outage map accuracy. 4. Keep an open mind about which departments to include in emergency planning. The Parks, Recreation and Neighborhood Services Department established Community Resource Centers closer to the homes of those affected because PG&E supported only one center set up far from the area of need. Staff identified what items were needed at the centers and established locations outside the outage area, but close to those most affected. Staff responsibilities and operational hours were adjusted to address the needs of the public. 5. While PG&E established “medical baseline” accounts for residents who needed power to maintain lifesaving medical devices, the utility was unable to fulfill its commitment to contact those customers ahead of the power outage and knock on the doors of those who did not respond to phone calls. This responsibility was left to local government, and cities must be ready to jump in to protect the public. Managing public health needs such as this is typically a county responsibility, so be sure to communicate with county counterparts and nonprofits associated with at-risk populations to ensure you are not duplicating each other’s efforts and you have the expertise necessary to best guide your outreach. For more information on resources related to power shutoffs, visit www.cacities.org/ powershutoffs or read the online version of this article at www.westerncity.com. ■

www.cacities.org


Scrap Your Fears About Food Waste Regulations: Preparing for SB 1383 by Nicole Enright California cities are preparing to comply with SB 1383 (Chapter 395, Statutes of 2016), which sets new targets to reduce statewide emissions of short-lived climate pollutants and reduce organic waste in landfills. To help cities achieve these reductions, the Institute for Local Government (ILG) is partnering with the California Department of Resources Recycling and Recovery (CalRecycle) to raise the awareness of these targets and connect local governments to the resources and expertise necessary to deploy effective programming. CalRecycle and ILG are hosting a solutions-based session at the League’s Public Works Officers’ Institute and Expo in March. The session, “Scrap Your Fears About Food Waste Regulations: Preparing for SB 1383,” will cover:

For More Information To help your city prepare to meet the 2025 and 2030 statewide targets, read “What Cities Need to Know About SB 1383 and Funding Organic Waste Management” on page 12. For links to related resources, read the online version of this article at www.westerncity.com.

and the city is one of ILG’s 2019 Beacon Sustainability Best Practices Spotlight Award winners. Learn more about Colton’s efforts at www.ca-ilg.org/ beacon-participant-profile/city-colton.

• The impact of SB 1383 regulations on city services;

Bakersfield Leads the Way on Composting

• Promising practices and lessons learned about how to develop, create and implement programs; and

With 20 years of experience in composting high-volume food waste, the City of Bakersfield (pop. 389,211) in Kern County is the largest public composter in California, processing over 60,000 tons annually. City operations accept organics from commercial businesses throughout the county in a system designed to separate plastic bags, reduce barriers to participation and increase the amount of landfill diversion tenfold while producing viable compost that is sold to nearby orchards and vineyards.

• Practical examples of how to take immediate action to reduce organic waste and meet statewide targets. Through its Sustainability Program, ILG is also partnering with two cities that are making tremendous strides to proactively manage organic waste.

Colton Works With Businesses to Divert Organic Waste In anticipation of SB 1383 targets, the City of Colton (pop. 54,391) in San Bernardino County launched a partnership with its contract waste hauler to divert organic waste from businesses to an anaerobic digester that produces natural gas. Leveraging existing relationships through the energy and enthusiasm of the city’s new recycling coordinator and its community sustainability partners program with local businesses, Colton enrolled 106 commercial businesses in organics recycling as of December 2019. This effort diverts 16,560 gallons of food and green waste per month and has substantially reduced the city’s waste since the program began in 2018. Colton plans to engage its residents in recycling and composting education in anticipation of launching a new curbside residential trash can program, which will collect organics in one combined green waste bin. The City of Colton is taking meaningful action to plan for a more vibrant future in a way that makes sense for its community,

Seeking in advance of SB 1383 to reduce emissions and water usage associated with composting operations, Bakersfield partnered with the San Joaquin Valley Air Pollution Control District to switch to electric conveyors and the use of electric blowers to induce airflow through the covered compost piles. This innovative method produces an increased volume of high-quality compost for use by the agricultural industry and reduces emissions at the facility. Learn more about Bakersfield’s programming at https://kernpublic works.com/organics/green-and-wood-waste.

Upcoming Session Helps Cities Navigate Challenges Cities such as Bakersfield and Colton offer promising examples of proactive approaches to meet organic waste recycling requirements and develop more sustainable communities, but even the most advanced cities anticipate facing challenges as SB 1383 targets take effect. Join ILG at the Public Works Officers’ Institute & Expo, March 18–20 in Monterey, to connect with state and industry leaders on this important topic. ■

Nicole Enright is associate program manager for the Institute for Local Government and can be reached at nenright@ca-ilg.org. www.westerncity.com

Western City, February 2020

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Code Enforcement by Drone:

Critical Considerations Before Launching by Stephen A. McEwen

Municipal code enforcement is only as effective as an enforcement officer’s investigation. Because not all potential code violations can be investigated from the public right of way, code enforcement investigations may require access to enclosed or shielded areas of private property. In these more difficult investigatory settings, code enforcement staff may be strongly tempted to rely on emerging drone technology to peer into otherwise inaccessible properties and document nuisance conditions. This particular use of drone technology, however, is sure to raise concerns regarding privacy and the Fourth Amendment. Unfortunately, case law has not kept pace with the burgeoning drone industry,

which has left many code enforcement officers and local officials with numerous questions about what is and is not permissible under the Fourth Amendment. Before using a drone in a nuisance investigation, code enforcement officers should consult their local agency’s legal counsel. In most cases, a warrant will be required before a drone can be used.

The Recent Expansion of Local Governments’ Drone Use The use of drone technology has expanded exponentially over the past decade. As drones have become cheaper, more efficient and easier to operate, a corresponding expansion has occurred

in local governments’ potential uses of drone technology — which include code enforcement. The Federal Aviation Authority (FAA) has sole authority to regulate United States airspace. The FAA Modernization and Reform Act of 2012 authorizes the FAA to establish requirements and regulations for drones, otherwise known as unmanned aircraft systems (UASs). According to the FAA, a drone is a type of aircraft that operates without onboard pilots or crew. The FAA has developed rules for governmental, commercial and private drone usage. In general, drones are not permitted to fly over 400 feet above ground level. Governmental agencies that wish to operate a drone for

Stephen A. McEwen is a partner with the law firm of Burke, Williams & Sorenson LLP and can be reached at SMcEwen@bwslaw.com.

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League of California Cities

www.cacities.org


About Legal Notes This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.

public purposes must first obtain from the FAA a certificate of authorization (COA) or waiver, which allows the FAA to conduct a comprehensive operation and safety review. After a local government has obtained the necessary COA, drones have innumerable potential governmental uses. Within the realm of law enforcement, drones have been used for accident and crime scene reconstruction, vehicle and suspect pursuits and search and rescue. These particular types of situations often involve emergencies or “exigent circumstances” and therefore typically do not raise Fourth Amendment issues. The potential use of drones for aerial surveillance and investigation by code enforcement officers, however, directly implicates the Fourth Amendment.

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Code enforcement officers should also check the local regulations, if any exist, on drones. Fourth Amendment Considerations The Fourth Amendment prohibits unreasonable searches and seizures by government agents without a warrant and applies with the same force to investigations and administrative searches by code enforcement officers as it does to searches and seizures by the police or other law enforcement agencies. The amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The question of whether a search is subject to the Fourth Amendment depends on whether there is a reasonable expectation of privacy in the place to be searched. To determine if a person has a reasonable expectation of privacy, courts employ a twopart test articulated by the U.S. Supreme Court in Katz v.United States (1967). The test “asks first whether the person has manifested a subjective expectation of privacy in the object of the challenged search, and second whether society is willing to recognize that expectation as reasonable.” Courts apply the highest level of Fourth Amendment protection to those areas within a private residence and the residence’s “curtilage,” which is the area immediately adjacent to and surrounding the home. continued

Western City, February 2020

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Code Enforcement by Drone: Critical Considerations Before Launching, continued

What constitutes the curtilage is determined on a case-by-case basis and depends on the proximity of the area to the home, the presence of any enclosures around the area in question, the nature of the area’s uses and the steps taken by the resident to shield the area from observation. The Fourth Amendment also applies to commercial businesses, particularly private areas that are not open to the public.

The Plain View Doctrine The plain view doctrine is an exception to the Fourth Amendment that permits law enforcement officers to make observations from public places or neighboring properties without obtaining a warrant. For example, California appellate courts have held that viewing marijuana plants from a neighbor’s second story window did not violate the Fourth Amendment and that an officer did not act unreasonably when he peeked over a fence from a neighboring property. In both of these situations, the appellate court was persuaded by the fact that the officers had a lawful right to be where they were when they made the disputed observations. The appellate courts have not yet addressed whether the use of drone technology falls within the plain view doctrine in the context of either code enforcement or

police searches. However, in the following cases, the U.S. Supreme Court has addressed the Fourth Amendment implications of using airplanes and helicopters to gather evidence of criminal violations: • In California v. Ciraolo (1986), the court held that a warrantless aerial observation from an airplane flying in navigable airspace at 1,000 feet above a fenced-in backyard did not violate the Fourth Amendment. The court concluded that there was no reasonable expectation of privacy in an uncovered backyard that was visible from navigable airspace to any person flying over the property. • In Dow Chemical Co. v. United States (1986), the court held that the Environmental Protection Agency’s use of aerial photography from an airplane flying in navigable airspace at least 1,200 feet above a highly secure industrial facility did not require a warrant. The court noted that the camera used by the government was a “commercial camera commonly used in mapmaking” and was not a “unique sensory device” that could record conversations inside Dow’s buildings or reveal such “intimate details as to raise constitutional concerns.”

• In Florida v. Riley (1989), in a plurality decision, the court held that there was no Fourth Amendment violation when law enforcement used a helicopter flying in navigable airspace 400 feet above the ground to observe a greenhouse that was being used to cultivate cannabis. A California appellate court also applied the U.S. Supreme Court’s decision in Florida v. Riley to a “general, random, helicopter surveillance” of rural properties in the case of People v. McKim (1989). In that case, two officers were operating a helicopter in a grid pattern at approximately 400 feet when one of them spotted cannabis plants growing on the defendant’s property. Based on this aerial observation, the officers obtained a search warrant. The trial court concluded that flying under 500 feet, which was the lowest permissible altitude for fixed-wing aircraft, was per se unreasonable but the court of appeal reversed based on Florida v. Riley and held that warrantless aerial observations from at least 400 feet did not automatically violate the Fourth Amendment. The court noted that there was “no evidence … that the helicopter surveillance over defendant’s residence interfered with defendant’s use of his property, or revealed intimate details

The public has expressed significant concern over possible privacy intrusions made by both privately and publicly operated drones.

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connected with the use of his home or curtilage, or created any undue noise, wind, dust or threat of injury.”

Does the plain view doctrine apply to the use of drones for surveillance and investigation? It is difficult to predict whether courts will apply these cases to the use of drones for surveillance and investigation, but it seems safe to conclude that drones raise entirely new issues that airplanes and helicopters do not. The concept of navigable airspace that figured prominently (but was not necessarily determinative) in the plain view cases discussed in the preceding section will probably have little application to drones, which can fly safely and relatively undetected at much lower altitudes than conventional aircraft and can enter confined spaces and record images and sounds in ways that would be impossible for airplanes or helicopters. Rather, it is likely that the potential intrusiveness of drone technology will guide the Fourth Amendment analysis. When it comes to drones, therefore, we must look to Katz v. United States and ask whether the expectation of privacy under any particular set of circumstances involving a drone is one “that society is prepared to recognize as ‘reasonable.’” Justice Sandra Day O’Connor’s concurring opinion in Florida v. Riley may be instructive. In that case, she observed that the court found no Fourth Amendment violation in California v. Ciraolo “because public air travel at 1,000 feet is a sufficiently routine part of modern life that it is unreasonable for persons on the ground to expect that their curtilage will not be observed from the air at that altitude.” With regard to the use of a helicopter, she concluded that “there is reason to believe that there is considerable public use of airspace at altitudes of 400 feet and above” and that, as a result, any expectation that the property owner’s backyard greenhouse would remain private was unreasonable. Under this approach, it is probable that a warrant will be required for drones in most investigatory situations. While the

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use of drones in public places has become very common and popular, there has not been considerable use of low-flying drones over private properties, as was the case with airplanes and helicopters. In fact, the public has expressed significant concern over possible privacy intrusions made by both privately and publicly operated drones. It is likely that a court would conclude that a resident’s expectation of privacy from low-flying drones that can make high-resolution observations is “one that society is prepared to recognize as reasonable.”

Additional Considerations Code enforcement officers should also check the local regulations, if any exist, on drones. If the jurisdiction restricts the use of drones above residential, commercial or industrial properties, such restrictions may be a critical factor in determining whether the expectation of privacy is reasonable. Even if there are no local drone regulations in effect, the potential for unreasonable privacy intrusions by increasingly sophisticated drone technology will likely tip the scales in favor of requiring a warrant for the use of drones in code enforcement investigations. The better practice, therefore, is for code enforcement officers to simply obtain an administrative inspection warrant under California Code of Civil Procedure Section 1822.50 et seq. before using a drone to conduct an investigation. The process for obtaining an inspection warrant is relatively straightforward. Unlike criminal search warrants under California Penal Code Section 1524, which require a showing of probable cause, inspection warrants under the California Code of Civil Procedure generally require a lesser showing of reasonable cause, which is typically defined as some plausible basis for believing that a violation is likely to be found that justifies further investigation or testing. It is worth noting that inspections conducted pursuant to a warrant are presumptively valid and should, in most cases, shield the local agency and its officers from liability.

Most nuisance abatement situations will require a proper warrant. Looking for Footnotes? For a fully footnoted version, read this article online at www.westerncity.com.

Conclusion Flying a drone over a problem property is undoubtedly an easy and effective way to evaluate and document the scope of a public nuisance and to provide up-close, aerial comparisons with neighboring properties. However, code enforcement officers must take the Fourth Amendment into careful consideration before implementing this technology. In most nuisance abatement situations, this will require a proper warrant. ■

Western City, February 2020

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What Cities Need to Know About SB 1383 and Funding Organic Waste Management by Maria West Cities throughout California are working in partnership with the state to reduce greenhouse gas emissions, build sustainable communities, increase resiliency and fight climate change. Now the state is tackling organic waste, a significant source of methane emissions. The California Department of Resources Recycling and Recovery (CalRecycle) is working with businesses and local jurisdictions to remove up to 26 million tons of organic material from landfills annually by 2025. This dynamic change in organic waste disposal will reduce greenhouse gas emissions, help create thousands of new jobs and improve the health of the state’s population. Why is organic waste disposal important? • When food and other organic material decompose, it gives off methane, a greenhouse gas over 70 times more potent than carbon dioxide during a 20-year span; • Methane and other pollutants contribute to public health problems including heart disease and asthma, especially in the state’s most at-risk communities; and • Landfills are currently responsible for at least 21 percent of the state’s methane emissions.

Achieving Climate Goals Through Recycling and Recovery In September 2016, Gov. Jerry Brown signed SB 1383 (Chapter 395, Statutes of 2016), which requires organic waste in

California landfills to be reduced 50 percent from 2014 levels by 2020 and 75 percent by 2025. It also requires that by 2025 at least 20 percent of edible food currently sent to landfills be recovered for human consumption. The law directs CalRecycle to adopt regulations designed to achieve these targets, reduce methane emissions and support the state’s climate change goals. To achieve these targets, it’s essential for all organic waste generators — residences, businesses and local, state and federal government entities — to actively participate in organic material collection and food recovery programs. Jurisdictions must adopt enforceable ordinances to ensure that all residential and commercial generators are compliant. Penalties for noncompliance can be assessed by CalRecycle beginning in 2022 — and by local jurisdictions beginning in 2024.

Local Communities Help Develop Program Requirements For the past three years, CalRecycle has worked with local communities throughout the state to create regulations. Cities and counties subsequently developed implementation requirements for both organic waste collection services and food recovery programs, which take into account unique regional needs and the need for local flexibility. As a result of community feedback, CalRecycle incorporated changes into the regulations that have reduced estimated administrative costs to local jurisdictions by 50 percent.

Key Elements: Planning and Implementation Cities that have not started preparing for SB 1383 compliance should immediately begin planning for and implementing the required organic waste collection and edible food recovery services. This work includes assessing and securing adequate capacity for organics processing and edible food recovery, which can be done individually or in conjunction with counties, other cities and regional agencies. Local governments will most likely need to increase rates and amend their agreements with collection service providers to support SB 1383 compliance. Implementation costs for local jurisdictions will include: • Outreach and education; • Collection services; • Enforcement; and • Organic waste infrastructure and processing costs. To assist local jurisdictions, CalRecycle is developing model franchise agreements, enforcement ordinances, procurement policies and model food recovery agreements for local use. These will be available in March 2020.

Funding Is Available for Infrastructure Due to the passage of the state’s Mandatory Commercial Organics Recycling law in 2014, most California jurisdictions already offer some type of organics collection service. However, CalRecycle estimates the state will need 50 to 100 new or expanded composting and anaerobic digestion facilities to process and recover at least 26 million tons of organic waste annually by 2025.

Maria West is deputy director of public affairs for the California Department of Resources Recycling and Recovery (CalRecycle) and serves as the department’s communications director. She can be reached at Maria.West@calrecycle.ca.gov.

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League of California Cities

www.cacities.org


Organic material is processed at commercial recycling facilities in Napa and Lake counties.

Several funding sources are available for jurisdictions to increase organics recycling and edible food recovery infrastructure. To date, California has funded more than $85 million for new organic waste recycling and edible food recovery infrastructure through cap-and-trade grants. Additional cap-and-trade funding will be available in 2020. Available funding sources for infrastructure include: • CalRecycle’s Organics Grant Program www.calrecycle.ca.gov/climate/ grantsloans/organics • California Energy Commission grants https://ww2.energy.ca.gov/commission/ diversity/apply.html • California Air Resources Board grants https://ww2.arb.ca.gov/our-work/topics/ incentives • Business Energy Investment Tax Credit https://programs.dsireusa.org/system/ program/detail/658 • Low-Carbon Fuel Standard https://ww3.arb.ca.gov/fuels/lcfs/lcfs.htm • California Pollution Control Financing Authority (CPCFA) tax-exempt bonds https://treasurer.ca.gov/cpcfa/ bondfinancing.asp • Recycling Market Development Zone (RMDZ) Loans and Greenhouse Gas Reduction Loans www.calrecycle.ca.gov/ funding/#loans The CalRecycle website provides additional financial resources and economic incentives at www.calrecycle.ca.gov/ business/incentives.

Implementation Costs and Estimated Cost Increases Implementation costs will vary by jurisdiction. Those with existing programs could see little or no rate increases. Mandatory collection will increase the customer base www.westerncity.com

for organics collection, which will create economies of scale for haulers and lower per-unit costs compared with a nonmandatory system. However, SB 1383 compliance could require potentially significant rate increases in some jurisdictions. The average cost increase to households is estimated at $3 to $5 per month, while the average increase to businesses is estimated at $70 to $90 per month. Many California cities have already developed — or are actively developing — new or updated organics recycling processing services and infrastructure. Their successes, challenges and lessons can inform other cities working to implement SB 1383 regulations. The following examples illustrate approaches various jurisdictions have taken to increase organics collection and processing.

Education and Bin Labels Aided San Ramon’s Leap to Organics The City of San Ramon (pop. 83,957) in Contra Costa County recently negotiated a new waste and recycling services contract that includes mandatory organic waste collection for all customers and free compost giveaways. The contract includes a 30 percent rate increase. “No one likes a rate increase, but when we had an opportunity to speak with people about the reasons behind it, they understood,” says David Krueger, solid waste and recycling program manager for San Ramon. “Many smaller businesses located closely together are sharing organics bins, and multifamily complexes generally have one or two large organics bins on site.” The rate increases were due not only to the cost of SB 1383 implementation, which included expanded organics collection services, new bin labels and staffing for outreach and enforcement, but also to labor rate increases and the fluctuating international commodities market,

according to Krueger. In March 2019, San Ramon started conducting outreach and notifying residents of rate increases coming in January 2020.

Advance Notice and Minimal Rate Increases in Kerman The City of Kerman (pop. 15,495) in Fresno County has long had a contract with Mid Valley Disposal, which received two California Climate Investment grants to build and later expand its composting facility. Kerman City Manager John Kunkel says Mid Valley manages much of the local outreach and education for SB 1383 implementation, including visiting schools, sending information home with students and hosting booths at carnivals and festivals. “The outreach is critical,” says Kunkel. “If you tell people what’s coming up, then it’s not a surprise and it will go smoothly.” Residential pickup rates went up by $1.25 per month, and the city implemented the increase in two phases over a two-year period. The first increase was 50 cents, and the second was 75 cents. Residents received three 96-gallon bins, which are all serviced on the same day. Kunkel points out that many Kerman residents have sizable lots and welcomed the large bins for organic material. “People will recycle if you educate them and give them the apparatus to do it,” he says.

Lower Rates for Recycling and Compost Boosted Visalia’s Success The City of Visalia (pop. 138,207) in Tulare County has had a robust organics program, including residential green waste and food scraps collection, since 2008. Its solid waste and recycling programs comprise infrastructure, vehicles and containers and are funded by the city’s solid waste fees. continued Western City, February 2020

13


What Cities Need to Know About SB 1383 and Funding Organic Waste Management, continued

One in eight Californians and one in five children are food insecure — uncertain whether they will consistently have enough to eat and be adequately nourished.

Visalia builds in incentives for residents and businesses; for example, recycling services are 50 percent cheaper than garbage collection, and organics services cost 25 percent less than garbage collection. “We reached out to folks on the commercial side to let them know that the rules are changing,” says Nathan Garza, natural resource conservation technician with Visalia’s Natural Resource Conservation Division. Because larger businesses were already recycling organics, the city is focusing on working with smaller shops and businesses on SB 1383 implementation. Challenges include space constraints in downtown commercial areas that limit the introduction of recycling and organics bins, so some businesses share bins. The city switched from “split-can” recycling bins, which had been in use since the 1980s and needed replacing, to three 90-gallon bins for garbage, recycling and organics. Visalia has sent its organic material to two nearby composting facilities for years, so the city did not need to find new markets, and no rate increases are planned.

Infrastructure Development in San Luis Obispo County Southwest of Visalia, the City of San Luis Obispo (pop. 280,393) and five other municipalities in the county share an exclusive contract with Waste Connections for residential and commercial garbage, organics and recycling collection.

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Food Recovery to Help Feed the Hungry

that will bring tangible benefits to their communities.

Much of the roughly 6 million tons of food disposed in California landfills each year is edible when it enters the system. The food recovery target in SB 1383 means more food for the one in eight Californians and one in five children who are food insecure — uncertain whether they will consistently have enough to eat and be adequately nourished.

Statewide, California communities can expect to realize collective savings and benefits that include:

In 2019, California awarded $11 million for 36 local edible food waste prevention and rescue projects through its continuing Food Waste Prevention and Rescue Grant Program. Funds were used in a wide variety of eligible ways, including: • Purchasing refrigerated delivery vans; • Expanding cold storage capacity; • Paying collection and delivery drivers; • Purchasing food management software;

Hitachi Zosen Corporation built and operates an anaerobic digestion facility on land leased from Waste Connections, which provides feedstock to the facility under a 20-year agreement. The facility went online at the end of 2018. It can convert 36,500 tons of food waste and urban green waste per year into 6.8 million kilowatt-hours of electricity, 13,000 tons of compost and 1.6 million gallons of liquid fertilizer.

• Increasing education and outreach efforts; and

The $25 million facility received $4 million from the California Energy Commission and another $4 million in cap-and-trade funding from CalRecycle’s Organics Grants Program. It also qualified for an investment tax credit for producing renewable energy.

The cost of recovering edible food and collecting organic waste for recycling and composting will increase waste collection rates, but it also eliminates hidden health and environmental costs associated with disposal. Organic waste recycling gives local governments a proactive solution

League of California Cities

• Analyzing and improving food waste and prevention policies at hospitals, universities, entertainment venues and corporate dining facilities.

Financial and Social Benefits for California

• $10.4 billion in decreased landfill disposal costs; • $10 to $13 billion in decreased hospitalizations and reduced mortality rates as a result of reduced pollution and improved air quality; • 17,000 green recycling and remanufacturing jobs created in local communities; • $17.7 billion in revenue generated from new organics recycling facilities; and • Improved soil health and drought and climate resilience, as greenhouse gas emissions decrease and more compost is available to serve California agriculture. Furthermore, reducing the negative health impacts of pollution and rescuing edible food for people who need it strengthens our most vulnerable communities — and our state as a whole. SB 1383 takes a bold, ambitious and necessary step to achieve the state’s climate change goals. Working together, Californians, the state, local governments, and the waste and recycling industry can achieve these goals and build a more sustainable future. ■

Additional Resources Online For more information and links to related resources, read the online version of this article at www.westerncity.com.

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Photo/art credits Cover: Akiyoko Pages 3–4: Courtesy of the League of California Cities Pages 5–6: Courtesy of the City of San José Page 7: Lucentius Page 8: Akiyoko Page 9: AzmanL

Page 10: JannHuizenga Page 11: DanBrandenburg Pages 12–13: (Left to right) Courtesy of CalRecycle, YinYang, courtesy of CalRecycle, Svetikd Page 14: Difydave

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