In South County Citizens for Smart Growth v. County of Nevada (3d Dist., 10/8/13 C067764) ____Cal.App.4th _____, 2013, the court of appeal rejected a claim that Nevada County violated CEQA by failing to recirculate an EIR when a project was modified after circulation of the draft EIR and a similar but competing alternative proposed by staff was not adopted. The court held that recirculation was not required because the plaintiff had failed to show there was no substantial evidence that the staff alternative was not significant new information for, among other reasons, infeasibility. The court also held that the County did not have to make findings setting forth the reasons the staff alternative was not feasible.
In Latinos Unidos de Napa v. City of Napa (1st Dist., Div. 1, 10/10/13, A134959), ___ Cal.App.4th ___, 2013, the court of appeal found no abuse of discretion in the City of Napa’s approval of revisions to the housing element of its general plan, and related general plan and zoning amendments, despite plaintiff’s argument that an environmental impact report was required. The court determined that substantial evidence supported the City’s decision not to proceed with any additional environmental review as the plaintiff did not satisfactorily explain how the project’s impacts were so different from, or more severe than, the impacts identified in an earlier EIR so as to require further review.
On October 15, 2013, the United States Supreme Court granted certiorari to review six of the nine submitted petitions stemming from an appellate court ruling upholding Environmental Protection Agency (“EPA”) greenhouse gas (“GHG”) controls at utilities, factories and other facilities around the country. Specifically, the challenged appellate ruling from the Court of Appeals for the District of Columbia Circuit unanimously upheld EPA’s GHG emission endangerment findings, rebuffed challenges to the EPA’s tailpipe rule for automobile emissions and its applicability to stationary sources, and determined the EPA was “unambiguously correct” in using existing federal law to address global warming. However, the Supreme Court’s review will be more limited than some petitioners sought and should not jeopardize the Obama administration’s larger climate-change agenda.
Prior to 2012, the Indemnity Deed of Trust (“IDOT”) had long been the preferred structure for borrowers in Maryland looking to finance their property because it would allow deferment of recordation taxes that would otherwise be required at the time of the loan. In 2012, the Maryland Legislature passed a law that imposed the recordation tax on any instrument securing a guaranty for a loan of more than $1 million where the guarantor was not primarily liable, meaning that IDOTs and conventional deeds of trust securing loans over $1 million were treated the same. This created serious problems for commercial borrowers and lenders. In an effort to fix these problems, the Maryland Legislature revised the existing law in 2013 in order to:
- Remove the bar on refinancing commercial loans;
- Raise the exemption threshold for qualifying loans;
- Clarify the rules for guarantees below the threshold; and
- Impose the recordation tax on “new money” only.
On August 28, 2013 the California Office of Administrative Law (“OAL”) approved California Department of Toxic Substances Control’s (“DTSC”) Safer Products Regulations. These regulations will go into effect on October 1, 2013. These important regulations, also referred to as “Green Chemical” regulations, establish a process to identify and prioritize consumer products containing chemicals of concern, permit evaluation of safer alternatives and provide for the potential imposition of product or chemical restrictions by DTSC. The legislative purpose of the regulations is to implement California Assembly Bill 1978, or the “Green Chemistry” law, enacted in 2008. (Health and Safety Code §§ 25215-25257.1.) The regulations have been five years in the making, and are the result of several prior drafts and multiple public comment periods. The consequences of these unprecedented regulations are far reaching, and carry the potential to affect a wide range of consumer products placed into the national stream of commerce.
Hydraulic fracturing continues to increase, but regulations have lagged behind the practice. Hydraulic fracturing (sometimes called well stimulation treatment) is used as means to extract and explore underground oil and gas. SB 4 is an attempt by California legislature to regulate and oversee the practice of hydraulic fracturing, or “fracking,” and other well stimulation treatments. SB 4 imposes requirements on oil and gas well operators and suppliers, and involves multiple regulatory state and district agencies such as the Department of Toxic Control Substances (“DTSC”), the State Air Resources Board, and the State Water Resources Control Board, the Division of Oil, Gas, and Geothermal Resources (the “Division”), and the Natural Resources Agency.
After years of work and input from local community groups, environmentalists, affordable housing advocates, transportation advocates, and the business community, the Cornfield Arroyo Seco Specific Plan (the “CASP”) cleared its final hurdle on June 28, 2013 when the Los Angeles City Council voted to approve it. The CASP aims to revitalize a more than 650 acre stretch of mostly industrial land along the Los Angeles River. The CASP includes several innovative strategies that aim to transform an area zoned and built according to development and land use patterns left over from the 1940’s. The goal is a mixed-use neighborhood that concentrates higher densities around transit, preserves and develops affordable housing and fosters economic growth and new technology, while providing sorely needed certainty to developers and investors interested in investing in the CASP area.
The long-awaited energy use disclosure requirements, first enacted as AB 1103 (Saldana) in 2007 (codified as California Public Resources Code, §25402.10), will now be implemented starting on January 1, 2014 for all buildings in excess of 10,000 square feet. This means that owners of buildings in excess of 50,000 square feet will now have until January 1, 2014 instead of July 1, 2013 to comply. Thereafter, the reporting requirements will extend to buildings in excess of 5,000 square feet on July 1, 2014. Other than the revision of the commencement date and corresponding elimination of the 6-month phase-in period for larger properties, the legislation’s requirements for commercial property owners remains unchanged. The postponement was necessary due to issues in the redesign of the Energy Star Website. We will continue to monitor the progress of this legislation and will issue updates as necessary.
[Petition for review granted by the Supreme Court. The court limited review to the following issue: Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project? ]
In California Building Industry Association v. Bay Area Air Quality Management District (CBIA) (Case No. A135335 (Cal. Ct. App. 1st, August 13, 2013)), the First District Court of Appeal overturned the trial court and held that the thresholds of significance adopted by the Bay Area Air Quality Management District (BAAQMD) were not subject to CEQA review for two reasons. First, “the CEQA Guidelines establish the required procedure for enacting generally applicable thresholds of significance such as those at issue in this case, and a prior CEQA review of the thresholds is not a part of this procedure.” CBIA, at pg. 11. Second, “the environmental change posited by CBIA as the basis for requiring CEQA review is speculative and not reasonably foreseeable,” thus adopting the thresholds is not considered a “project” pursuant to CEQA. Id.
On July 11, 2013, Governor Brown signed Assembly Bill 116 (Bocanegra) automatically extending by 24 months the expiration date of any tentative map, vesting tentative map, or a parcel map which was approved on or after January 1, 2000, and that has not yet expired. It further specifies a process for the extension of tentative map, vesting tentative map, or a parcel map approved on or before December 31, 1999. Assembly Bill 116 (AB 116) amends Section 65961 of the Government Code.