LA Mayor Proposes Mandatory Earthquake Retrofitting for Commercial and Residential Buildings

Capping a year-long partnership between the City of Los Angeles and Dr. Lucy Jones, a well-known seismologist with the United States Geological Survey, Mayor Eric Garcetti released  “Resilience by Design” last week, a plan that includes an ambitious set of proposed seismic regulations.  The plan proposes a series of ordinances to be reviewed by the City Council in the coming months, requiring, among other things, mandatory seismic retrofitting of soft-first-story buildings within five years and non-ductile concrete buildings within thirty years.  These buildings have been identified in the plan as the buildings most at risk of collapse or structural failure in a large earthquake.  In the past, the inability to identify funding for large scale retrofitting has scuppered any efforts address the danger.  Perhaps unsurprisingly, the proposal is short on details about assistance to building owners for the costs of retrofitting.  Below is a brief summary of what you need to know.

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California Supreme Court to Review Denial of Homeowner’s Private Beach Access

In the case of Lynch v. California Coastal Commission (D064120; Cal.App.4th 658; San Diego Superior Court; 37-2011-00058666-CU-WM-NC), the California Supreme Court has granted a petition for review of the decision by the Fourth Appellate District (Division One) upholding a prior decision in which the California Coastal Commission denied bluff-top homeowners’ petition for a coastal development permit to reconstruct a seawall and access stairs that would provide the homeowners with private beach access.  On review, the California Supreme Court will address the following issues:

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Terrorism Risk Insurance Act Set to Expire at Year End

The Terrorism Risk Insurance Act (TRIA) now appears set to expire as of December 31, 2014, barring further action from Congress.  The Terrorism Risk Insurance Program Reauthorization Act of 2014[1] would have extended the existing terrorism insurance coverage under TRIA.  Although the House of Representatives previously passed a bill reauthorizing TRIA on December 10, 2014[2], the Senate failed to pass the measure prior to the end of the 113th Congressional legislative session.[3]  The original insurance program was enacted in 2002 (and subsequently extended in 2005 and 2007)[4] after the 9/11 attacks as a backstop to the shortage of terrorism insurance in the private market.[5]

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City of Los Angeles Delays Issuance of Demolition Permits for Most Structures More Than 45 Years Old

Starting in January 2015, the City will not issue demolition permits for structures more than 45 years old until the applicant has conspicuously posted a demolition notice on the property, sent letters to abutting neighbors and notified the applicable City Council District Office at least 30 days in advance of demolition.  This 30-day delay gives community groups and elected officials additional time to seek the designation of structures or districts as historic resources, in particular as a City “Historic-Cultural Monuments”, before they are razed.

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County of San Diego’s Adopted Climate Action Plan Violates CEQA: Fails to Include Enforceable GHG Reduction Measures

Sierra Club v. County of San Diego (10/29/14, D064243)

On October 29, 2014, the Fourth District California Court of Appeal unanimously affirmed the trial court’s decision in favor of Sierra Club, agreeing that the County of San Diego’s adopted Climate Action Plan (CAP) violated CEQA. First, the court held the County’s adopted CAP failed to provide sufficiently detailed deadlines and enforceable measures to ensure specified greenhouse gas (GHG) emission reductions by 2020 or to put the County on a trajectory to achieve 2050 GHG emission reductions identified in Executive Order S-3-05 as required by the County’s General Plan Update.  Second, it held the County failed to analyze the environmental impacts of the CAP itself or to incorporate mitigation measures directly into the CAP as required by CEQA Guidelines 15183.5(b)(1)(D) and Public Resources Code 21081.6(b).  Accordingly, the court granted the Sierra Club’s petition to require enforceable mitigation and ordered the County to prepare a supplemental EIR.

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Fourth District’s Split Decision Further Complicates CEQA Requirements Surrounding GHG Impact Analysis and Mitigation Measures – Dissent Warns Majority Opinion Will Weaken and Confuse the Law

Cleveland National Forest Foundation v. San Diego Association of Governments (11/24/14, D063288)

In a split decision on November 24, 2014, the Fourth District California Court of Appeal invalidated the program EIR for San Diego Association of Governments’ (SANDAG) 2050 Regional Transportation Plan/Sustainable Communities Strategy (Regional Transportation Plan). The court found the EIR in violation of CEQA for failing to adequately analyze and mitigate GHG emissions in light of the standards set forth in Executive Order S-03-05.  Despite the EIR’s analysis of the Regional Transportation Plan’s GHG emissions against specific regional reduction targets for 2020 and 2035, the majority determined the EIR did not amount to a reasonable, good faith effort to disclose and evaluate GHG emissions due to its lack of analysis surrounding the plan’s potential conflict with the Executive Order.

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Legislature Can Amend CEQA to Expedite Construction of Sacramento Kings Arena

Saltonstall v. City of Sacramento (11/20/14, C077031)

The NBA owns the right to acquire and relocate the Sacramento Kings if a new arena is not completed and open in downtown Sacramento by 2017.  The City and the Kings have targeted an October 2016 opening to avoid this outcome.  To facilitate construction, the California Legislature added Section 21168.6.6 to the Public Resources Code to provide for an expedited review of the arena project under the California Environmental Quality Act.  Several individuals sued the City and the Kings, challenging the constitutionality of the new provisions of the Public Resources Code, and moved for a preliminary injunction that would stay demolition of the existing shopping center.  The Court of Appeal denied the preliminary injunction, holding that the Legislature may limit the CEQA review process under its broad authority to make public policy determinations and amend existing laws.

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Ninth Circuit Rejects Use of Preemptive Litigation to Validate Federal Approvals

Shell Gulf of Mexico, Inc., v. Center for Biological Diversity, (11/12/14, No. 13-35835)

The Ninth Circuit has rejected a “novel litigation strategy” that Shell Gulf of Mexico, Inc., employed in an effort to preempt a possible litigation challenge to federal approvals that Shell received for Arctic oil exploration.  After receiving the approvals, but before any suit had been filed to challenge the approvals, Shell sued the Center for Biological Diversity and other groups that had publicly opposed the approvals and had threatened legal action.  Shell sought a declaratory judgment that the approvals were valid and did not violate the federal Administrative Procedure Act.  Shell argued that it needed an advance determination of the approvals’ validity in order to remove the threat of litigation (and delay) during the brief Arctic drilling season and protect its investment in mobilizing for the drilling season.

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District Court Strikes Down Regulation of Purely Intrastate Species on Private Land

People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service; et. al., (11/05/14, 2:13-cv-00278-DB)

In a significant Endangered Species Act case, the Utah District Court has ruled that Congress may not regulate take of the threatened Utah prairie dog, a purely intrastate species, on non-federal land. The court found that the challenged regulation went beyond the scope of the Commerce Clause because it was a non-economic regulation and the take of prairie dog does not have a substantial effect on interstate commerce.

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Supreme Court Asked to Allow Immediate Judicial Review of Clean Water Act Jurisdictional Determinations

A landfill developer has asked the Supreme Court to review a decision of the Fifth Circuit holding that a jurisdictional determination by the U.S. Army Corps of Engineers is not final agency action subject to judicial review.  The Supreme Court previously held, in its 2012 Sackett opinion, that an EPA compliance order issued under the Clean Water Act is final and immediately reviewable under the Administrative Procedure Act.  But, so far, the Courts of Appeals have declined to extend Sackett to allow immediate review of a jurisdictional determination, which represents the Corps’ findings about whether a property contains wetlands or other waters of the United States subject to the Corps’ regulatory jurisdiction under Clean Water Act section 404.

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