CEQA Category Archives — Page 3 of 3 — Lay of the Land Published by Los Angeles, California Land Use Attorneys

KEEP AN EYE ON . . .

Published on: April 14, 2015 | By Tim Paone and Our Land Use & Natural Resources Team

2015 is shaping up as a year of significant developments in land use law thanks to the Governor, the Legislature, and the courts. Here’s an update on anticipated developments related to Sea Level Rise, Affordable Housing, Traffic Impact Analysis and the Drought, any or all of which could constrain land development:

. . . SEA LEVEL RISE AND THE COASTAL COMMISSION: Prospective purchasers, developers, and owners of coastal land should pay close attention to the Coastal Commission’s development of policies to address rising sea level and its implication not just for coastal resources, but also for existing and proposed development. Although final guidance has not yet been issued, the Commission’s Draft Sea-Level Rise Policy Guidance concludes that sea level rise threatens “seven wastewater treatment plants, commercial fishery facilities, marine terminals, Coastal Highway One, fourteen power plants, residential homes, and other important development and infrastructure.” Add in impacts to tourism, commercial fisheries, coastal agriculture, the ports, and sensitive coastal resources and it is easy to anticipate that the projected risks from sea level rise will create tough decisions for the Commission as it acts on Local Coastal Programs, LCP amendments, and Coastal Development Permits. Hazard avoidance and mitigation are likely to result in proposals for significant constraints on development. Every site and project will be different, but it will be important to evaluate the potential significance of sea level rise over the life of the project in the context of any investment or development within the Coastal Zone. The picture above is from a presentation by Charles Lester, Executive Director of the Coastal Commission, to the Senate Budget Subcommittee 2 on March 20, 2014. It shows a pre-Coastal Act home and more current setback requirements along a blufftop in Pismo Beach which has been impacted by bluff erosion.

. . . AFFORDABLE HOUSING FEES: We told you earlier this year that the California Supreme Court will be weighing in on the validity of an in lieu affordable housing fee in San Jose. Oral arguments in California Building Industry Association v. City of San Jose (click here to read the appellate court decision which is under review) were heard on April 8. CCN’s Mike Zischke was in attendance and observed an engaged and inquisitive Court. When this decision comes down, its significance likely will go beyond the affordable housing issue. With two new Justices sworn in at the beginning of this year, this decision could foretell where the Court will lean on land use issues, particularly those involving exactions and impact fees.

. . . THE DROUGHT: Governor Brown’s Executive Order calling for a 25% reduction in the State’s water usage will impact not only daily life for Californians (there goes that ten-minute shower), but potentially development proposals. At a time when some areas in the state are experiencing housing shortages, there undoubtedly will be pressure from some interest groups to cut back on the development of new housing. It’s too early yet to understand what the full effect of Executive Order B-29-15 will be, as local water agencies and local governments will be developing their own policies to comply with the Governor’s directive.

The California Environmental Quality Act – The Year 2014 in Review

Published on: January 20, 2015 | By Michael Zischke

(Mike, a Cox Castle & Nicholson partner, is the Co-Author of the CEQA treatise “Practice Under the California Environmental Quality Act.”)

Click here to review an in depth summary of the legislative and case law developments in 2014 relating to CEQA and its environmental review requirements.

Once again, in 2014 there were a number of substantial CEQA developments coming from the State Legislature, the California Supreme Court, and the Courts of Appeal. In some cases, certainty and predictability are enhanced. In others, the world of CEQA has become more complicated for developers and their counsel.

AB 52 expanded CEQA’s reach, requiring evaluation of potential impacts to “tribal cultural resources.” It includes provisions governing notice to tribes, consultation with tribes, and the confidentiality of information about tribal cultural resources. There were also minor changes affecting statutory exemptions from CEQA.

The California Supreme Court issued one CEQA decision in 2014, holding that a local legislative body does not need to comply with CEQA before approving a voter-sponsored initiative measure. In this case, Tuolumne Jobs, the initiative granted all the legislative approvals needed for a Wal-Mart store – with no CEQA review.

In 2015, expect the California Supreme Court to make a great deal of CEQA news. There are more CEQA cases pending before the Court than ever before. Those cases address issues including “fair share mitigation,” CEQA exemptions, the impact of existing environmental conditions on future residents, the standard of review for “subsequent” environmental documents, the role under CEQA of the California Endangered Species Act, the time during the administrative process at which a litigant needed to assert a CEQA claim, the use of “business as usual” environmental baselines, the scope of judicial review, and the need for CEQA review of rail projects. So, stay tuned. We will comment on these decisions in this blog as they happen during the year. Continue reading

BEWARE OF PLANNERS BEARING GIFTS

Published on: January 20, 2015 | By Kenneth Bley

Wouldn’t it be nice if you only had to prepare a mitigated negative declaration (MND), rather than an EIR, before getting your project approved? The Planning Director says “That’s all we need,” but your lawyer says “Not so fast.” Your project manager calculates that an MND will save you six months and at least a hundred thousand dollars. Your lawyer repeats, “Not so fast.” You ask yourself, “Now what was it that Shakespeare said about lawyers?”

CEQA documentation, like Gaul, is generally divided into three parts: exemptions, negative declarations, and environmental impact reports (EIRs). Rarely does a project of any substantial size or complexity qualify for an exemption or a “pure” negative declaration. If the agency determines that there are potential project impacts, the choice narrows to an MND or an EIR. If specific mitigation measures can adequately address those impacts and the applicant agrees to accept those measures before circulation, then an MND may be used. However, if potential impacts remain or if there are impacts which cannot be mitigated, an EIR must be prepared. But the decision frequently is not clear and, ultimately, is made by the agency, generally with input from the developer.

CEQA Litigation Doesn’t Rely On The Scale

For the developer, what are the typical considerations? An EIR may cost hundreds of thousands of dollars and take a year or more to prepare, followed by circulation for public review and comment. Then, responses to comments must be prepared. Sometimes, the EIR must be recirculated. That adds up to a lot of dollars and delay. Preparing an MND, however, also requires significant time and money, although, in the short run, less than an EIR. Circulation for review and comment, though for less time than for an EIR, also is required. While CEQA does not mandate written responses to comments on an MND, many agencies exercise their prerogative to do so. So, why might a developer ask the agency to prepare an EIR when the agency has said that an MND is enough? Continue reading

KEEP AN EYE ON . . .

Published on: December 8, 2014 | By Our Land Use & Natural Resources Team

Here are several potential developments related to affordable housing and CEQA that you should watch for in the coming months:

. . . CEQA REFORM: As we move into 2015, there again will be calls for comprehensive CEQA reform. But will they be heeded? The need for reform is widely acknowledged, as it was by Governor Brown in his 2013 State of the State address: “We . . . need to rethink and streamline our regulatory procedures, particularly [CEQA].” An article in the Environmental Monitor said “In recent years there have been several attempts in the legislature to reform … CEQA. …[Y]et very few substantive changes have been made….” But that was in 1996, seventeen years before the Governor made his comments. Nothing substantive happened in between – or since.

The Potential Impacts of SB 743: Did the Legislature Double Dribble?

Published on: December 7, 2014 | By JoAnn Hadfield, Tim Paone, and Tony Petros

Co-contributors: PlaceWorks, Tim Paone of Cox Castle & Nicholson, and Tony Petros of LSA Associates and a member of the Newport Beach City Council.

It went in as a bill to streamline approval of a basketball arena. It came out, in addition, as legislation that revolutionizes the way traffic impacts are evaluated under CEQA. SB 743 will change the focus of CEQA traffic impact analysis from avoiding or mitigating congestion to reducing greenhouse gas emissions and promoting multimodal transportation and infill development. It eliminates traditional “level of service” (LOS) analysis as the measure of traffic impacts and replaces it with “vehicle miles traveled” (VMT). The Governor’s Office of Planning and Research (OPR) was directed to prepare CEQA guidelines to implement this change. A “discussion draft” of proposed Guidelines was released in August. When and if approved, the Guidelines will take effect in “transit priority areas” immediately and then statewide in 2016.

Under the Guidelines, VMT measures “the amount and distance that a project might cause people to drive,” rather than congestion and delay. Changing the traffic methodology is intended to result in more sustainable communities. But will the Legislature’s direction be circumvented by local agencies whose residents (and voters) care more about how long it takes to get to work, school, and the grocery store than they do about global warming, sustainable living, and terms such as “multi-modal”? And what does SB 743 portend for California’s roadway infrastructure? Consider these facts: Continue reading

Project EIR or Program EIR? “A Rose By Any Other Name . . . .”

Published on: December 7, 2014 | By Andrew Sabey

You are entitling a large project to be built in phases which reflect market conditions, lending constraints, absorption rates, and your appetite for risk. The final phases of your project may not be built for ten or more years, when planning and marketing considerations may have changed. Your EIR cannot possibly evaluate every last detail of the overall project, but you want to get started with the initial phases NOW. So, you hear your CEQA consultants, your lawyers, and the agency’s staff anguishing over whether your EIR will be a “program” EIR or a “project” EIR. You’re hearing that what you call the EIR may be more important than what it says and that a wrong decision on the label may drop you into the black hole of CEQA litigation. Really? Can this be true? Continue reading

California Supreme Court Decides CEQA Environmental Review Not Required For Council or Board Adoption of Voter-Sponsored Ballot Measures

Published on: December 7, 2014 | By Michael Zischke and Andrew Sabey

Are there circumstances where it would be possible to change, for example, the general plan land use designation of a 1,000 acre parcel from “open space” to “residential,” “mixed use,” and/or a hotel use without complying with the California Environmental Quality Act, even though potentially significant impacts could result from the change? In one of this year’s more important land use decisions, the California Supreme Court has answered that question with a clear and affirmative “Yes.”

The context of the Court’s decision is that of a “qualified” voter-sponsored ballot measure. For most local jurisdictions (i.e., a city or a county), a measure “qualifies” for the ballot when at least fifteen percent of the number of registered voters within the jurisdiction sign a petition to place the proposal on the ballot. Once sufficient signatures are confirmed, the legislative body of that jurisdiction (the City Council or the Board of Supervisors) has the choice of either placing the measure before the voters or approving the measure itself without change. Those are the only options. It has long been clear that if the measure is placed on the ballot and approved by voters, CEQA does not apply. However, the California Supreme Court has now determined that if the City Council or Board of Supervisors approves the measure itself rather than sending it to the voters, CEQA still does not apply. Continue reading