Lay of the Land

How Will Justice Scalia’s Passing Impact Land Use?

Published on: February 22, 2016 | By Tim Paone

Justice Antonin Scalia Brought Us “Nexus”

There likely is not a developer, city planner, or local elected official whose vocabulary does not include the word “nexus” when discussing the limitations on a public agency’s ability to exact concessions from developers. You can thank the late Supreme Court Justice Antonin Scalia for that. With the passing of Justice Scalia, there is lively dialogue over his successor’s potential influence on high profile issues such as abortion, gun control, and gay marriage. Lost in that discussion is the potential for the next Justice to profoundly influence the Court’s land use and property rights decisions. Here’s a quick look at Justice Scalia’s influence on the Court’s land use and property rights decisions over the past three decades.

Nine months after he was confirmed by the Senate on a 98-0 vote, Justice Scalia wrote the Court’s majority opinion in Nollan v California Coastal Commission, one of the most significant land use decisions of the last century. For those of us actively representing landowners in California’s coastal zone at the time, our immediate reaction was that an overly zealous Coastal Commission had been chastised. But Nollan meant much more than that. In Nollan, the Coastal Commission had imposed a condition upon the demolition and replacement of a dilapidated beach bungalow requiring that a deed restriction be recorded to grant access to the public across a portion of the property. The alleged reason for this condition was that the construction would limit “visual access” to the beach, thus creating a “psychological barrier” to physical access.

Justice Scalia wrote that “[i]t is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans’ property reduces any obstacles to viewing the beach created by the new house.” Thus, the “essential nexus” between the reason for the condition and the very nature of the condition was lacking, resulting in a victory not only for the Nollans, but for California landowners for decades to come. As noted by Justice Scalia in the opinion, the Nollan decision was “consistent with the approach taken by every other court that has considered the question, with the exception of the California state courts.”

Is the Second Time the Charm? It’s Time to Comment on CEQA’s Proposed New Transportation Guidelines

Published on: February 22, 2016 | By Linda Klein

Less than one week remains to comment on important proposed changes to the CEQA Guidelines that flow from the 2013 adoption of “SB 743.” Once phased in, these Guidelines will change the evaluation of a project’s potential transportation impacts and, if the Guidelines function as the Governor’s Office of Planning and Research (OPR) desires, alter the pattern of California land development. Under the Guidelines, vehicle miles traveled (VMT) will replace level of service (LOS) as the standard a lead agency must measure a project’s traffic impacts. Under the new metric, what was mitigation for traffic impacts, such as the widening of roads, will soon be considered a significant impact. Accordingly, the implications of these Guidelines go beyond the need for traffic engineers to retool their traffic models (itself a complex task).

Of course changing CEQA is bound to be controversial. OPR’s first Guideline proposal generated numerous and diverse comments, reflecting differences among California’s lead agencies’ size and access to transit, and stakeholders’ individual (often ideological) views on transportation. As a result, OPR issued a second set of proposed Guidelines on January 20, 2016, which can be viewed on OPR’s website. Comments on this latest draft must be submitted to CEQA.Guidelines@resources.ca.gov by 5:00pm on February 29, 2016.

Practical Implications of the New Guidelines

OPR proposes to revise Appendix G, which is the heart of the proposed Guidelines. Although Appendix G is provided for guidance only, agencies typically follow it almost to the letter. As proposed, the transportation significance thresholds in Appendix G would eliminate questions related to LOS and instead focus on VMTs, including whether a project would induce additional automobile travel by increasing physical roadway capacity. In addition, OPR proposes technical guidance, to be published as a separate document, to help lead agencies implement the new Guidelines. This technical guidance includes recommended quantitative thresholds and analysis methods for determining the transportation impacts from various types of projects, including residential, retail, office, and roadway development. Following are some of the practical consequences that we foresee resulting from the proposed changes: Continue reading

2015 CEQA Update – Summary of New Court Decisions, Statutory Changes and Proposed CEQA Guidelines Amendments

Published on: February 4, 2016 | By Michael Zischke, David Waite, Kurt Whitman, Monica Briseño and Stephanie Straka

The Cox Castle & Nicholson land use team has prepared a summary of all the 2015 legal developments relating to the California Environmental Quality Act, including all the published court decisions, a very few legislative changes, and developments regarding the CEQA Guidelines. There were a number of important developments in 2015 court decisions, but little significant activity in the Legislature or with respect to CEQA Guideline changes. The California Supreme Court issued four decisions, covering topics such as whether EIRs are required to evaluate impacts to a project from existing environmental conditions, how to evaluate greenhouse gas emissions, and the legal standards governing the use of categorical exemptions from CEQA review. There were over 20 appellate decisions under CEQA, and generally these decision upheld EIRs, particularly on questions of how to determine the environmental baseline that is used in measuring impacts.

Please click here to read the full 2015 CEQA Summary.

SB 350 Marks California’s Next Step in Combating Climate Change

Published on: December 9, 2015 | By Daniel Kolta

As we start to look back on significant new laws approved by California’s Legislature in 2015, climate change once again took a prominent role. In particular, SB 350 ups the State’s targets for the amount of electricity to be generated in future years from eligible renewable energy resources and sold to retail customers, setting the goal of 50% by 2030. The law also requires the California Energy Commission to set annual targets to double energy efficiency in buildings by 2030. With SB 350, California has strongly reaffirmed its role as a leader in the effort to confront global climate change, while also providing a clear signal to renewable energy developers that solar and wind will continue to play a growing role in the state’s energy future.

SB 350 also emphasizes the important role of electric vehicles in California’s overall scheme to combat climate change, declaring that “[d]eploying electric vehicles should assist in grid management, integrating generation from eligible renewable energy resources, and reducing fuel costs for vehicle drivers . . . .” The bill promotes the development of additional electric vehicle charging infrastructure to encourage greater use of electric cars.

SB 350 follows the renewable energy equation inherent in previous California climate change legislation by relying not only on increasing the sources of renewable energy generation, but also on the reduction of statewide electricity and natural gas demand. As consumers see not only the environmental benefits of energy efficiency, but also the personal economic savings, many renewable energy policies have come to be seen as “win-win.” As a result, Continue reading

A Development Agreement For Your Project — Who Gets To Choose?!

Published on: December 9, 2015 | By R. Clark Morrison and Ronald Silverman

Cities are increasingly requiring development agreements to sidestep legal limits on exactions imposed during the entitlement process. Because the courts have determined that DAs are “contracts”, cities are using DAs to exact “public benefits” that the United States Constitution prevents them from requiring through the permit process. Taking this tact further, some municipal codes now mandate that developers enter into DAs as a condition to receiving their entitlements. Having forced the developer to enter into a DA, the agency then exacts “community benefits” that it can’t otherwise legally obtain.

This highly questionable approach relies on the fiction that the DA is an arms-length agreement voluntarily entered into by the developer. Forcing a developer to enter into a DA to obtain otherwise unlawful exactions, however, most likely makes the DA itself an unlawful exaction. It is not surprising, though, that many developers often agree to these exactions in order to garner the votes they need for their entitlements. Doing so is an unpleasant reality that is sometimes simply viewed as the “cost of doing business,” with acquiescence being preferable to losing a project.

Nonetheless, in our view, what’s “good for the goose is good for the gander.” If an agency wants to rely upon the “contract theory” of DAs to impose otherwise unlawful exactions, then the developer should insist on provisions to assure that the DA is treated as a contract in all respects. For example, usual rights and remedies (including, e.g., damages for breach of contract) should be incorporated into that DA.

With these considerations in mind, here are some important tips, in no particular order, to consider in the negotiation and drafting of your DA: Continue reading

The Developer’s Rights (or Lack Thereof) in the Face of Decision Maker Bias

Published on: December 4, 2015 | By Kenneth Bley

You’ve got a great project and you’re ready to start the approval process. However, some community members are opposed to your project, and one or two of them have just been elected to the city council, after having run on a platform of unequivocal opposition to your project. What, if anything, can you do?

The first question to ask is, what kind of land use approvals are you seeking? If they are legislative approvals, such as a general plan amendment or a rezoning, then the answer is that there probably is nothing you can do about the apparent bias of the new city council members. Decisions by the Supreme Courts of both the United States and California have stressed the free speech rights of politicians who espouse the concerns of the electorate. Suppose the approvals sought aren’t legislative, but are, instead, administrative. Typically, administrative approvals are not issued by an elected body and include approvals such as subdivision maps, conditional use permits and variances. Here there is a possibility of relief, so long as you can allege “concrete facts” which demonstrate bias or an unacceptable probability of actual bias. A decision maker’s previously-voiced opposition to a project generally isn’t enough to justify his or her disqualification. Real examples of actions which demonstrate an appropriate probability of actual bias on the part of a decision maker include (i) writing an article objecting to a project while it is undergoing the approval process, (ii) having ex parte contacts with project opponents and failing to disclose those contacts, (iii) improperly appealing an action taken by a planning commission, and (iv) urinating on the property subject to the entitlement approvals at issue. (Yes, these are all real-life examples taken from the case law.)

Suppose that, like these examples above, you do have concrete facts sufficient to demonstrate a probability of actual bias. What should you do? Continue reading

Just How Binding Is that Illegal, Immoral AND Un-American Condition on Your Project?

Published on: December 4, 2015 | By Kenneth Bley

Your land use approval contains a condition – say, the sacrifice of your first born child prior to the issuance of the 50th certificate of occupancy – mandated by a local ordinance which is successfully challenged by someone else a year or two after you start building but before you seek the 50th certificate. Can you get the condition set aside?

Unfortunately, the answer is no. You’re bound by it because you failed to challenge it yourself in a timely manner.

Every developer is aware that the time in which to challenge an undesirable condition imposed on a land use approval is short – typically 90 days. What most developers are not aware of is that a failure to challenge a condition within the time allowed prohibits a later challenge even if it later becomes clear that the condition violated the law at the moment it was imposed.

This was recently highlighted in a case which involved an inclusionary housing condition imposed on a use permit for an apartment building with retail space on the ground floor in the City of Berkeley. Five years later, a different developer involved in a different project in a county far, far away, successfully challenged a similar condition as being illegal on the grounds that it had been preempted by a state law which prohibited precisely that kind of condition. The second developer was successful because it had filed its lawsuit within 90 days of the issuance of the permit which allowed it to build its apartment project. Continue reading

Water Diverters Beware! The Third District Court of Appeal Opens the Regulatory Floodgates

Published on: December 2, 2015 | By Scott Birkey

Most of us know that the California Department of Fish and Wildlife is the state agency in charge of administering the California Endangered Species Act, which is the state’s version of the federal Endangered Species Act. CDFW is also the state agency that regulates certain work activities within streambeds. Under the California Fish and Game Code, CDFW has regulatory authority over the installation of culverts, bridge supports, erosion controls, or other such work within streambeds. But beware! CDFW’s regulatory reach has been extended significantly. A recent decision by a California Court of Appeal now gives CDFW regulatory authority over the mere taking of water out of its natural flow for agricultural purposes, even if the streambed itself is not altered to facilitate the taking of that water.

By way of background, before a person may start work in a streambed, typically he or she must submit a “notification” to CDFW informing the agency of the nature of the work and any anticipated impacts to waterways or special species habitats within or adjacent to those waterways due to that work. If CDFW determines the work may “substantially adversely affect” any fish and wildlife resources, then the agency will attempt to negotiate a “streambed alteration agreement” with the party. These agreements often include significant, and sometimes quite onerous, conditions and restrictions on development. Moreover, the whole process can take several months and typically requires some form of environmental clearance under the California Environmental Quality Act. Only after both (i) CDFW and the party performing the work have signed the agreement and (ii) all other necessary approvals have been obtained may work in the streambed commence.

In Siskiyou County Farm Bureau v. Department of Fish and Wildlife, the Third District Court of Appeal determined Continue reading

The California Supreme Court Issues Important New Rulings on Analysis of Greenhouse Gas Emissions, Fully Protected Species, and Requirements for California Environmental Quality Act Litigation

Published on: November 30, 2015 | By Michael Zischke, Andrew Sabey and Linda Klein

The California Supreme Court’s latest California Environmental Quality Act (CEQA) decision contains important rulings affecting three areas of land use and environmental law practice. The decision, Center for Biological Diversity v. California Department of Fish and Wildlife (November 30, 2015, Case No. 217763), was a 5-1-1 decision, and it arose out of one of many environmental impact reports (EIRs) that have been prepared for the large Newhall Ranch development that is proposed in northern Los Angeles County. This particular EIR followed earlier EIRs certified by Los Angeles County in 1999 and 2003 in connection with the County’s primary project approvals. The new EIR was a joint EIR/EIS prepared by the California Department of Fish and Wildlife and the U.S. Army Corps of Engineers to evaluate the impacts of several additional project approvals, including a resource management plan, a conservation plan for the endangered spineflower plant, a streambed alteration agreement, and two permits for the incidental take of protected species.

Several of the rulings in the case are likely to make the CEQA process, and the analysis of greenhouse gas emissions in CEQA documents, more complicated. The primary rulings in the case are discussed below.

EIR Analysis of greenhouse gas emissions upheld in part, rejected in part. The Court upheld some aspects of the EIR’s lengthy analysis of greenhouse gas emissions, but found that the analysis was not thorough enough. There are three components to this ruling. Continue reading

California Supreme Court To Render Decision on “Reverse CEQA”

Published on: November 23, 2015 | By Erin Phalon

Does CEQA require an evaluation not only of a proposed project’s potential impacts on the environment, but also of the potential impacts of the existing environment on the proposed project and its future residents or users? If the answer is “both,” then public agencies will be required to expand what has been the traditional scope of environmental review under CEQA. The practical effects would likely include an increase in the cost of preparation of CEQA documents, an expansion of the scope and cost of project mitigation measures, greater reliance by agencies on statements of overriding consideration, and enhanced litigation opportunities for project opponents.

This issue, which has come to be known by the shorthand expression “reverse CEQA,” is now under consideration by the California Supreme Court in California Building and Industry Association v. Bay Area Air Quality Management District. Oral arguments were heard on October 7, 2015, and a decision is expected by the first week of January 2016. Cox, Castle & Nicholson Partner Andrew Sabey argued before the Court on behalf of the California Building and Industry Association.

While the specific context of this case involves air-quality issues, during oral argument the Justices focused on the broader question of whether CEQA requires evaluation of those existing environmental conditions that may affect future residents or users of a proposed project. Depending on the scope and direction of the Court’s upcoming ruling, many existing conditions could become subject to CEQA evaluation, such as degraded air quality, odors, shadows from existing buildings, urban blight, impaired views, loss of night sky, noise, and so forth. Continue reading