Articles Posted in Legislation

Published on:

by

In the case of Sheetz v. County of El Dorado, the United States Supreme Court reviewed a challenge by George Sheetz of a traffic impact mitigation fee imposed by the County of El Dorado. This fee was required as a condition for Sheetz to obtain a permit for constructing a small prefabricated single-family home in Placerville, California. Sheetz argued that the fee constituted an unconstitutional taking under the Fifth Amendment of the U.S. Constitution, and that a legal challenge to the fee should be reviewed under the heightened scrutiny standards established in Nollan v. Cal. Coastal Comm’n and Dolan v. City of Tigard.

Sheetz’s challenge faced setbacks in state court, largely due to the application of precedent set by the California Supreme Court in San Remo Hotel v. San Francisco. This precedent limited the Nollan/Dolan heightened scrutiny test to fees and conditions imposed by government officials on an individual discretionary basis (i.e., ad hoc conditions applied to individual projects). Therefore, fees and conditions imposed legislatively (e.g., standard fees/conditions imposed by ordinance), like the traffic impact fee in Sheetz’s case, avoided the heightened scrutiny that looks at the condition’s “nexus” and “proportionality” to the project.

In a pivotal and unanimous decision, the U.S. Supreme Court rejected California’s interpretation set forth in San Remo. It ruled that the Nollan/Dolan heightened scrutiny test applies to both legislative and administrative fees and conditions related to land use permits. Consequently, Sheetz’s challenge will return to the state courts for review under the Fifth Amendment, this time to be reviewed under the heightened scrutiny described in Nollan/Dolan.

For a comprehensive exploration of this case and its implications, we invite you to view a webinar hosted by JMBM partners Matthew Hinks and Daniel Freedman. The webinar examines the case, the relevant precedents, and offers insights into how Sheetz v. County of El Dorado may impact California law moving forward.

Click here to watch the webinar.

Published on:

by

As JMBM government and land use lawyer Sheri Bonstelle explains in the article, “Assembly Bill 1561 provides support for housing development projects,” published by the Daily Journal on September 10, 2020:

“AB 1561 will support housing development by allowing additional time for those with approved housing development projects to obtain financing and building permits and to commence construction during the pandemic, and will allow potential additional analysis in a city’s Housing Element to more specifically identify the housing needs of the community.”

She notes that even before the pandemic-induced recession, California was in the midst of a housing affordability crisis caused by a failure to supply enough new housing for all income levels.

You can read the full article here.

JMBM’s government and land use lawyers represent developers of multi-family housing as well as many other types of projects. Our particular strength is handling all permitting and compliance issues for clients seeking to locate and develop new sites, relocate or expand operations. Please contact us if you would like to discuss how AB 1561 impacts your project. Continue reading

Published on:

by

On June 12th, the California Court of Appeal, Fourth District, filed its decision in Golden Door Properties LLC v. County of San Diego, __ Cal.App. 5th __ (2020) (WL 3119041). In doing so, the Court extended the now decade-long effort of San Diego County to craft an adequate Climate Action Plan (“CAP”): as the Court itself noted, this is its third decision in that effort. The County’s greenhouse gas (“GHG”) reduction plan within the CAP, particularly the use of offsets, provided perhaps the highest and most broad-reaching issues of interest; however, the Court also addressed a number of other alleged shortfalls of the environmental impact report (“EIR”) for the CAP, including the cumulative impacts analysis, alternatives analysis, consistency with applicable plans, and the adequacy of responses to comments. Although the County prevailed on the issue of the consistency of the CAP with the County’s General Plan, and on the sufficiency of responses to comments on the EIR, Petitioners prevailed on the sufficiency of the CAP and overall sufficiency of the EIR under the California Environmental Quality Act (“CEQA”).

Substantial analysis concerned a single mitigation measure (M-GHG-1) proposed to reduce GHG emissions from General Plan amendments to net-zero. This is significant because the CAP considered—and applied only to—developments consistent with the County’s 2011 General Plan Update. Measure M-GHG-1 first required projects with increased density above the approved 2011 levels to employ “all feasible” GHG reduction measures, including VMT reductions such as promotion of alternative transportation measures. If on-site measures fail to reduce GHG emissions to CAP-approved levels, a project may then employ off-site measures, including credits from GHG reduction programs worldwide. Continue reading

Published on:

by

by Daniel Freedman and Justin Anderson

Substantial changes to state and local laws governing accessory dwelling units (“ADUs”) went into effect on January 1, 2020, and they have significant implications for single-family and multi-family property owners. ADUs are additional living quarters built within, or on the same lot as, the primary residence. New state laws, including Assembly Bills 68 (Ting) and 881 (Bloom), among others, have placed new restrictions on how local governments and Homeowners Associations can condition and limit new ADUs. They have also created new categories of ADUs, expressly permitted under state law, which require local agencies to provide streamlined approval and permitting procedures. An analysis of the new laws and recent amendments can be found in the State of California’s Department of Housing and Community Development’s (“HCD”) ADU Technical Assistance Memorandum.

Continue reading

Published on:

by

By Martin Stratte for Jeffer Mangels Butler & Mitchell LLP

In August 2018, the California Court of Appeal decided Citizens Coalition Los Angeles v. City of Los Angeles, 26 Cal.App.5th 561 (2018), commonly referred to as “Target II,” which arose from a years-long challenge by citizen activist organizations to the development of a Super Target in Hollywood, California.

As discussed below, the court was asked to resolve the following issue of first impression: what level of environmental review is required by the California Environmental Quality Act (CEQA) for a legislative action that re-designates a project site for the purpose of mooting pending litigation that was filed in opposition to an already approved project?

In essence, what the City of Los Angeles did was re-zone the site of a previously approved Super Target to remove the need for the variances that were adopted in support of the project, which the trial court had struck down in the litigation commonly referred to as “Target I.”

Background

Target applied to the City of Los Angeles (City) for land use entitlements to develop an approximately 75-foot high, three-story Super Target at the intersection of Sunset Boulevard and Western Avenue in Hollywood, California, the top floor of which would contain the 163,862 square foot “Superstore.”

The City certified an EIR for the Target project and granted eight exceptions (variances) so that the project could exceed height and parking-space restrictions, among others.  Thereafter, two citizen activist organizations filed a petition for writ of mandate alleging: 1) the project violated CEQA; and 2) the variances violated the City’s Municipal Code because they were not supported by substantial evidence.  Target proceeded with construction while the litigation was pending; that litigation is commonly referred to as “Target I.”

The trial court denied the petitioners’ CEQA claim in Target I, but found that six of the eight variances were not supported by substantial evidence.  Accordingly, the court ordered Target to stop construction.  Target filed an appeal and the petitioners filed a cross-appeal. Continue reading

Published on:

by

By Matthew Hinks
Governor Brown signed into law on September 27, 2014, AB2222, which amends the State’s Density Bonus Law (“DBL”), Gov’t Code §§ 65915, et seq. to establish significant constraints upon the use of the incentives provided by DBL in connection with certain real estate developments. The main purpose of AB2222 is to eliminate density bonuses and other incentives previously available unless the developer agrees to replace pre-existing affordable units on a one-for-one basis. The impact of the bill will be significant because it will remove the economic incentive to undertake density bonus projects where existing units are subject to rent control ordinances or similar restrictions.
Continue reading

Published on:

by

On September 25, 2014, Governor Brown signed Assembly Bill 52 (“AB 52”), which modifies the California Environmental Quality Act (“CEQA”) to add new protections for Native American cultural resources and enhances the role of Native American tribes in the environmental review process. AB 52 is a significant amendment to CEQA that poses both challenges and opportunities for project applicants. A brief summary of the new law, which takes effect July 1, 2015, is provided below.

AB 52 Creates a New Category of Potentially-Significant Environmental Impacts

Under current CEQA law, lead agencies typically evaluate whether a project would impact historic or archaeological resources. Although impacts to Native Americans may be evaluated, AB 52 specifically mandates evaluation of whether a project will impact “tribal cultural resources” which include sites, features, places, cultural landscapes, sacred places, and objects with cultural value to tribes. If the potential for impacts to such resources exists, as with other environmental impacts, increasing levels of CEQA analysis, mitigation measures, and the consideration of alternatives is required. Input from a tribe as to what is culturally significant to that tribe will drive the analysis for a given project. These changes take effect on July 1, 2015.
Continue reading

Published on:

by

by Kerry Shapiro
This article was first published in The Conveyor, a publication of the California Construction and Industrial Materials Association.

Mining companies are subject to myriad requirements under the Surface Mining and Reclamation Act (SMARA) and implementing regulations that can trip up even the most diligent of operators from time to time. When a potential violation occurs, SMARA holds that either the lead agency or the Department of Conservation (read OMR) may initiate enforcement proceedings by issuing a notice of violation (NOV). All too often, the process results in an order to comply issued against the operator, which in turn can jeopardize the operator’s AB 3098 List eligibility. Removal from the AB 3098 List forecloses an operator’s ability to sell materials to State and/or local agencies, often a major component of many operators’ customer bases.

Enter SB 447. Under this new CalCIMA-driven legislation operators can maintain AB 3098 List eligibility while working to resolve enforcement issues required by an order to comply, and may now also negotiate the terms of, and stipulate to, such an order. These are called stipulated orders to comply.
Continue reading

Published on:

by

by Kerry Shapiro, Esq.

The recent submittal of significant proposed revisions to California’s mining law, the Surface Mining and Reclamation Act (“SMARA”), signals potentially broad-reaching changes to the statute. On February 21, 2014, Senator Fran Pavely (D) introduced SB 1270, a bill proposing to overhaul various sections of SMARA. SB 1270 proposes fundamental changes to SMARA. Click here for a copy of SB 1270.

If these changes go through, mine owners and operators will be subject to a new regulatory system under which the State will assume a far greater and centralized role in various aspects of SMARA, including mine inspections, enforcement, and establishment of financial assurance mechanisms. The mining industry also faces the likely prospect of increased carrying costs, arising from such proposals as changes to the annual reporting fee structure (proposed at a minimum of $1,000/year on a per-acre basis, and with no maximum cap), to increased ability to appeal decisions relating to the State’s “3098” list.
Continue reading