When Senate Bill 35 (SB 35) was enacted in September 2017, the streamlined ministerial approval process it created for eligible housing developments was optimistically viewed as a powerful tool for developers to create more housing, especially in NIMBY jurisdictions loath to approve additional residential development. Over the past two weeks, two decisions on SB 35—both decided by the Honorable Helen E. Williams of the Santa Clara County Superior Court—solidified just how powerful a tool SB 35 can be. Continue reading →
The Supreme Court ruled today that pollutant discharges to groundwater may, in some instances, be regulated in the same manner as discharges to navigable surface waters. The decision was a clear rebuff to EPA, which argued that only direct discharges to surface waters are regulable under the Clean Water Act. Coincidentally, the Court’s decision was issued just two days following EPA’s publication of a controversial rule limiting the federal government’s Clean Water Act jurisdiction over wetlands and other surface waters. Continue reading →
In a far-reaching decision with sweeping implications, a federal district judge in Montana eliminated the Army Corps’ nationwide permit for utility line crossings over waters of the United States. This permit – known as Nationwide Permit 12 – was used to streamline approvals across the country for electrical lines, pipelines, and other utility projects resulting in minor encroachments on wetlands and other waters. Because of this decision’s scope, thousands of projects across the country – including projects in California – may be stalled as they re-think their permitting approach or await further direction from the courts. Even more troubling is the fact that this decision calls into question the legality of over fifty other nationwide permits intended to streamline project approvals, including those issued for housing, industrial, and other development projects Continue reading →
On March 21, 2020, Los Angeles Mayor Eric Garcetti issued an emergency order which tolls and extends certain land use-related deadlines and time limits set forth in the Los Angeles Municipal Code (“LAMC”). This order 1) tolls and suspends any deadline (including provisions in community, specific, or other similar plans) pertaining to public hearings and decisions made by legislative bodies, zoning administrators, the Director of Planning, the General Manager of the Department of Building and Safety, or other City department general managers; 2) tolls and extends by six months the time limit for utilization of approved entitlements, and 3) tolls the expiration date for other permits (e.g. building permits) during the effective period of the order. The order is in effect until April 19, 2020, and may be extended beyond this date. To date, no state action has been taken to extend any local planning deadlines, although such action may be forthcoming and could supersede some or all of these actions. Continue reading →
Major California Cities Close Planning Counters and Suspend Planning Deadlines
Cox Castle & Nicholson, LLP is tracking developments related to the processing of land use and planning applications in major California cities in light of the government’s efforts to contain the coronavirus. While the situation is fluid, several patterns seem clear:
(1) zoning counters and planning departments are closing for some period of time; some are maintaining virtual services;
(2) public meetings are being cancelled or delayed; in some cases social distancing is being enforced; in other case telephonic participation may be provided;
(3) cities have declared, or are preparing to declare, suspensions of deadlines under various state land use and environmental planning laws.
The following is the most recent information that we have received from these jurisdictions. We plan on updating this page regularly as we receive additional information. Continue reading →
Clark Morrison and Scott Birkey co-authored an article for Bloomberg Environment where they examine the effect of the Trump administration’s California Clean Water roll-back, as well as the state’s response. Continue reading →
This morning, the White House announced adoption of its long-awaited redefinition of waters protected by the federal Clean Water Act. This new rule will significantly restrict the role of the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency in regulating discharges of fill or other pollutants into wetlands and other waters. Continue reading →
As they have done for the past eleven years, the Retail and Commercial Development Group has, once again, taken on the daunting task of forecasting what to expect in the forthcoming year in four critical segments that affect the retail and office industries. In doing so, they analyzed the social, political and economic events of 2019, reviewed various economic data and projections and have come to certain opinions relating to the retail and office industries and where they are heading in 2020. Included here is the product of their thinking, in the form of four articles of interest addressing such topics as capital markets, retailing, retailing development and office leasing:
- Retail and Commercial Group | 2020 Forecast, by Gary Glick, Scott Grossfeld, Daniel Villalpando, and Andrew Ouvrier
I. OVERVIEW OF CEQA DEVELOPMENTS IN 2019
A. The Supreme Court decision in August 2019 in Union of Medical Marijuana Patients held that all zoning changes are not automatically CEQA “projects;” they must still meet the statutory standard of an activity with direct impact or reasonably foreseeable indirect impact.
B. Together with the late 2018 decision on Sierra Club v. County of Fresno, on air quality analysis and EIR standard of review issues, the issuance of the Union of Medical Marijuana Patients decision cleared the backlog of CEQA cases at the Supreme Court.
C. Protecting Our Water & Environmental Resources v. Stanislaus County, regarding whether well permits are ministerial or discretionary, is still pending. In December 2019, the Supreme Court granted review in County of Butte v. Department of Water Resources, regarding whether the Federal Power Act preempts CEQA as it may apply to state hydropower licensing actions, so there are now two CEQA cases pending at the state’s highest court.
D. There were 15 decisions from the various Courts of Appeal, a lower pace in than in prior years (there were 17 decisions, but two were depublished). One of the key decisions was McCorkle Eastside Neighborhood Group that design review did not include discretion over environmental impact issues, so city had no discretion and CEQA not triggered.
E. The Legislature enacted a number of bills in 2019, mostly exemptions relating to the housing and homeless crises.
Since President Trump took office in 2016, change is the new norm when it comes to environmental law. Within a month of taking office, the President proposed a dramatic narrowing of federal wetland protections under the Clean Water Act, resulting in a regulation that is now being finalized. The Trump Administration also issued an opinion limiting the scope of the Migratory Bird Treaty Act, narrowed the requirements for environmental impact statements under the National Environmental Policy Act, and rejected principle elements of the Obama Administration’s climate plan as well as the Paris Climate Accord. Now, the Trump Administration has issued numerous revisions to the regulations used by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to implement the Endangered Species Act.
On August 12, 2019, the Administration issued final rules for three separate rulemaking efforts to change certain key elements of the regulations used to implement the ESA. In our view, and contrary to the media firestorm surrounding the new regulations, these changes don’t amount to a “gutting” of the ESA. In fact, these rules don’t change the Endangered Species Act at all. Rather, they modify regulations which implement the ESA and which were adopted under previous administrations. Regulations are subject to change from time to time and, quite often, change with the political winds. Inevitably, what for some will be seen as harsh changes, others will perceive as needed reform. From our perspective as practitioners, the new regulations clarify a few procedural ambiguities and streamline some clunky aspects of the ESA’s regulations that we have been dealing with for years.
The new regulations are quite detailed. But in summary, below are some of the highlights: Continue reading →