Environmental Justice

The Unintended California Consequences of Trump’s Wetland Protection Rollback

Published on: December 26, 2018 | By Scott Birkey and R. Clark Morrison

There are no surprises in the President’s proposal to vastly narrow the definition of wetlands and other waters protected by the federal Clean Water Act. Within a month of taking office in 2017, the President issued an executive order directing EPA and the Corps of Engineers to begin that process.

Nor are there any surprises in the new definition itself. As expected, EPA and the Corps of Engineers propose to replace the Obama-era definition – which was based upon the Supreme Court’s Rapanos decision – with a much narrower definition proposed by late Justice Antonin Scalia.

Under the new rule, the Clean Water Act’s protections will extend only to truly navigable rivers and their tributaries, as well as wetlands abutting those rivers or having a direct hydrologic connection. The Clean Water Act will no longer protect millions of acres of wetlands found in different habitat types around the Country, including most of the vernal pools and other seasonal wetlands found throughout California’s rangelands and foothills.

“Most Likely Descendants” Regulations Enter Approval Process

Published on: February 1, 2017 | By Kurt Whitman

California’s Native American Heritage Commission has issued its initial approval of draft regulations that, if finally approved, will guide the treatment and disposition of Native American human remains and associated burial items in connection with development projects and other ground-breaking activities in California.

The Draft Regulations. The overarching goal of the regulations is to protect Native American burial sites and remains that may be disturbed as a result of development. The main thrust of the regulations is to address certain problems associated with the “Most Likely Descendants” (MLDs) process and the treatment and disposition of Native American human remains. These problems include, for example, identifying the appropriate MLD for the treatment and disposition of human remains and confidentiality during the process of conferring with landowners regarding that treatment and disposition.

From the perspective of developers and landowners, the regulations appear broad in scope. They apply to any “project,” which encompasses not only “projects” as defined under the California Environmental Quality Act, but also “any ground-disturbing activity that results in the inadvertent discovery of Native American human remains.”

Key elements of the regulations include (1) implementation of specific timing and procedural requirements for identifying tribes or consortia of tribes as MLDs upon discovery of Native American human remains in any “project”; (2) the creation of rules and guidelines for required conferrals (including an optional mediation process) between landowners and MLDs; and (3) the establishment of a Code of Ethics for MLDs and their authorized representatives to follow in the context of the treatment and disposition process. The regulations also clarify the confidential nature of decisions and agreements surrounding treatment and disposition of Native American human remains and limit the types of related information available to the public.

Next Steps in the Process. The Commission’s recent approval is not the final step for the regulations. Instead, this approval serves to initiate the formal rulemaking process for potential future adoption and publication.

Pursuant to the Commission’s approved timeline, the first public comment period is expected to commence on April 13, 2017, and end on June 26, 2017. A public hearing is tentatively set for July 21, 2017. If timely approved and adopted, the regulations will take effect in early 2018.

Key dates in the Commission’s current schedule for the rulemaking process are as follows:

February 3, 2017: Commission Staff submits proposed rulemaking package and draft proposed regulations to the California Department of Finance for review of fiscal impact.
April 3, 2017: Commission Staff submits required rulemaking documents to the California Office of Administrative Law (“OAL”) for publication.
April 13, 2017: OAL publishes Notice of Proposed Action, which begins the formal process of adopting the regulations and the period for public comment and tribal consultation.
June 26, 2017: Public comment period ends.
July 21, 2017: Public hearing.
August 11, 2017: Publication of substantial changes to the proposed regulations, which commences another public comment period of 28 days.
September 8, 2017: Public comment and tribal consultation periods end.
October 20, 2017: Potential date of Commission adoption (if adopted, the regulations will be submitted to the OAL for final review and submitted to the California Secretary of State, with an effective date likely to take place in early 2018).

The proposed draft regulations presented at the Commission’s January 20 meeting are available here: Most Likely Descendants Regulations

COASTAL COMMISSION HAS OVERNIGHT ACCOMMODATIONS IN ITS CROSSHAIRS

Published on: December 16, 2016 | By Stanley Lamport

Anyone who is considering developing, remodeling, or demolishing hotels, motels, or other visitor-serving lodging in the California coastal zone needs to be aware that these projects are likely to be receiving much greater scrutiny at the Coastal Commission.

California’s Coastal Act requires the Commission to protect, encourage, and, where feasible, provide “lower cost visitor and recreational facilities,” which includes lodging. However, under the Coastal Act the Commission cannot fix private overnight room rental rates or set income eligibility standards for overnight room rentals.

The Commission has been discussing ways to provide low-cost overnight accommodations in light of these limitations. The Commission is now approaching the issue with renewed emphasis due to the recent enactment of AB 2616. AB 2616 allows the Commission to consider environmental justice and “the equitable distribution of environmental benefits throughout the state when acting on a coastal development permit.” The new law defines “environmental justice” as “the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies.”

Although AB 2616 takes effect on January 1, 2017, the Commission already is applying environmental justice principles with respect to lodging. At a recent workshop, the Commission’s staff presented preliminary recommendations to address low-cost overnight accommodations. While the Commission has not yet adopted any formal guidance, we expect the Commission will be using the principles discussed at the workshop in evaluating applications in the meantime.

There are some immediate implications that applicants need to plan for now:

First, the Commission is likely to scrutinize renovations and demolitions of existing lower-cost lodging much more closely. The Commission has seen examples of locally approved renovations of affordable accommodations that removed the units from the affordable category. The Commission is now aware of companies investing in that business model. We can expect the Commission to maintain that such upgrades require coastal development permits conditioned to address the anticipated loss of affordability. We also anticipate that the Commission will deny permits to demolish or repurpose affordable accommodations, unless replacement accommodations are first provided.

Second, we can expect that the Commission will require projects that are not affordable to provide onsite low and moderate-cost accommodations (such as camp sites, RV overnight facilities, and similar lower-cost classes of accommodations). We also expect the Commission to impose higher in-lieu fees on all classes of lodging projects and appreciably higher in-lieu fees on high-cost lodging projects, even where existing affordable accommodations have not been eliminated. The Commission’s data shows that fees collected to date have not been enough to create the affordable accommodations for which they were imposed.

Third, Commission staff’s preliminary recommendations emphasize consideration of a project’s affordability relative to the availability of affordable overnight accommodations in the vicinity of the project. The Commission and the State Coastal Conservancy are developing a database for this analysis. Applicants need to be prepared to address marketplace affordability and project economics before the Commission.

Fortune favors the prepared. That certainly will be the case when it comes to dealing with lodging in the coastal zone in the coming years.

Environmental Justice is Coming to California General Plans

Published on: November 29, 2016 | By Tim Paone

Environmental justice goals and policies are coming to the general plans of California cities and counties. So what does that mean for new development projects?

Timing. The new environmental justice requirements are the product of SB 1000, which was signed into law by Governor Jerry Brown on September 24, 2016. Under SB 1000’s amendments to Government Code Section 65302, a local agency will now be required to address environmental justice issues when, on or after January 1, 2018, it concurrently adopts or revises two or more general plan elements. In those circumstances, the local agency must either adopt an environmental justice general plan element or include environmental justice goals, policies, and objectives in its existing general plan elements.

The Meaning of Environmental Justice. To better understand the environmental justice movement and the types of “EJ” provisions local agencies will be pressed to place in their general plans, it is helpful to look at the goals of the California Environmental Justice Alliance, which, along with the Sierra Club and other prominent environmental organizations, is one of the state’s strongest advocates for EJ legislation. The Alliance’s goals include assuring that all families live in healthy neighborhoods, that polluting industries are replaced by green industries, that planning priorities place people above profit, and that lower cost housing is not exposed disproportionately to sources of noise, air, and other pollution.

“Disadvantaged Communities.” Under the new law, all general plans must identify “disadvantaged communities” within their boundaries. These may be areas already identified under existing law in Cal EPA’s list of disadvantaged communities. Areas on that list are specifically targeted for the investment of funds generated by the California Air Resources Board’s cap-and-trade program for reducing greenhouse gases.

Alternatively, a “disadvantaged community” may be identified as a “low-income area” that the local agency has determined to be “disproportionately affected by environmental pollution and other hazards that can lead to negative health effects, exposure, or environmental degradation.” A “low-income area,” in turn, is an area with household incomes at or below 80% of the statewide median income or with household incomes at or below the low income threshold designated by the Department of Housing and Community Development.

SB 1000 appears to provide local agencies with considerable discretion in interpreting the boundaries of “disadvantaged communities,” which is likely to lead to different approaches to defining those boundaries throughout the state.

General Plan Requirements. So, what are the required policy considerations that these environmental justice general plan amendments must address? Pursuant to SB 1000, they must spell out objectives and policies that:

Reduce the unique or compounded health risks in disadvantaged communities by means that include . . . the reduction of pollution exposure, including the improvement of air quality, and the promotion of public facilities, food access, safe and sanitary homes, and physical activity.
Promote civil engagement in the public decisionmaking process.
Prioritize improvements and programs that address the needs of disadvantaged communities.

As with the definition of “disadvantaged communities,” the interpretation of these broad policy statements is likely to lead to the implementation of the new law in vastly different ways.

Prudent Practices. Keeping in mind that all new development must be consistent with the provisions of the local general plan, landowners and developers should keep close tabs on general plan amendments implementing the new law so that their concerns are considered before the new general plan provisions are firmly in place.

In addition, developers should know exactly where their local agency stands in the process of making the required amendments. If a local agency has not timely made the required amendments, legal challenges are likely to confront projects approved when the local agency is not yet in compliance. Buyer beware: this should be a due diligence consideration when acquiring land, not merely something to address at the tail end of the entitlement process.

What the Future Holds. In the end, environmental justice issues are likely to play an increasingly significant role in all new development in California. Each local agency will approach its own EJ considerations in the context of its own political environment, its existing state of development, and its anticipated future development patterns. You should expect that some EJ general plan amendments will contain mundane and less impactful requirements, while others will contain more aggressive provisions that easily could jeopardize the viability of a project.

Given the broad, generalized requirements of the new law, and the likelihood that its provisions will be interpreted and applied in varying ways by local jurisdictions throughout the state, rest assured that the courts will play a key role in shaping the scope of environmental justice requirements throughout California. This definitely falls within the category of “Stay Tuned.”

When the Coastal Act Clashes with the State’s Housing Density Laws

Published on: November 17, 2016 | By Scott Birkey

No matter your politics or perspective on development in the state, one thing is beyond debate – California is facing a serious housing shortage crisis. A recent article in the Los Angeles Times warns that this shortage will have significant adverse effects on the state’s economy. Making matters worse is a dearth of affordable housing. Efforts by policymakers to deal with these shortfalls have resulted in mixed success. Most recently, Governor Brown’s proposal to streamline the approval of “as of right” housing projects that include some affordable units stalled last August.

The California Legislature, however, has come up with new tools to either incentivize or require a developer to intensify development and create affordable housing opportunities. An issue that sometimes comes up is how these tools of local government square with existing state statutes or regulations governing conservation or protection of sensitive lands, such as those regulated by the California Coastal Commission.

No Density Bonus for this Coastal Project

In Kalnel Gardens, LLC v. City of Los Angeles, the court of appeal tackled this issue in the context of a relatively small project in the Venice area of Los Angeles. The developer applied to the City to tear down a two-story, three-unit apartment building and replace it with five duplexes and five single-family homes for a total of 15 residential units. The project was granted additional density and height limits beyond what was allowed on the site because two of the units would have been designated as affordable units.

The City’s Zoning Administrator granted these development incentives based on the following statutes:

Housing Accountability Act. This act is sometimes referred to as the state’s “anti-NIMBY law.” The Housing Accountability Act limits the ability of local governments to reject or make infeasible housing development projects based on their density without a thorough analysis of the “economic, social, and environmental effects of the action,” including the adoption of express findings required by the statute.
Density Bonus Act. This act addresses the shortage of affordable housing in California by requiring local governments to award a developer certain development concessions and a density bonus that allows an increase in density above what the zoning ordinance allows if the developer agrees to set aside a certain percentage of the units in a housing development for low or very low income residents.
Mello Act. This act establishes minimum requirements for affordable housing within the coastal zone by requiring, first, the construction of replacement low income housing when existing affordable housing is demolished and, second, new affordable housing units as part of new developments, either at the site of the new development or somewhere else.

A group of neighbors administratively appealed the project, alleging that it violated the Coastal Act because the project’s height, density, setbacks, and other visual and physical characteristics were inconsistent with the existing neighborhood. The West Los Angeles Area Planning Commission found that the project did not conform to the Coastal Act on that basis, and on appeal to the City Council by the developer, the City Council agreed with the Commission.

The developer sued the City, arguing that the City had violated the housing density statutes identified above by reducing the size of the Project and denying the incentives sought under the Density Bonus Act. The question for the court, then, was whether the Coastal Act takes precedence over the “density bonus” allowances sought by the developer.

The court’s answer? The Coastal Act does supersede a local government’s obligations under these housing density laws. The court reached this conclusion by assuming that it must apply the law in a manner that is “most protective of coastal resources,” essentially putting the housing density statutes in the backseat. In sum, in a clash between the Coastal Act and the state’s housing density statutes, the Coastal Act will win.

Although the court here looked to specific language in the Coastal Act and the housing density laws to reach this conclusion, this decision suggests that other statutes similarly protective of sensitive lands may be viewed as superseding other state law mandates that local government incentivize affordable housing projects in order to meet the state’s housing crunch. Bottom line: if you face that balancing act as a developer, beware.