City of Los Angeles Releases Draft Hollywood Community Plan Update

On June 13, 2017, the City of Los Angeles released its new Hollywood Community Plan (“Plan”) draft. The current plan dates back to 1988. In 2012, the City adopted an update to the community plan that was subsequently litigated and then rescinded by a Superior Court ruling. Thus, for the last several years, the City has used the 1988 community plan to guide land use decisions in Hollywood while adjusting to modern development trends in the area. Continue Reading

Update – City of Los Angeles Affordable Housing Linkage Fee

The City of Los Angeles continues to move toward the adoption of an ordinance that establishes an Affordable Housing Linkage Fee (Ordinance). As currently proposed, the key provisions of the Ordinance are as follows:

  • It applies to any new building permit or entitlement application submitted on or after 180 days after the Ordinance’s formal adoption date. Any such application submitted before that will not be subject to the Ordinance.
  • If the project does not qualify under any of the available exemptions, the Ordinance mandates a “linkage fee” of $5.00 per square foot for non-residential uses, $12.00 per square foot for residential uses with 6 or more units, and $1.00 per square foot for residential uses with 5 or less units. Note that the applicable deductions/credits may reduce such fees.
  • It provides exemptions and deductions/credits for certain projects. In particular, no linkage fee would be required with respect to affordable units that meet specified requirements. Also, the first 25,000 square feet of nonresidential floor area in a mixed-use building would be excluded from the fee obligation.
  • The linkage fee would be annually adjusted for inflation.

The current text of the Ordinance can be found by clicking here.

Previously, on February 23, 2017, the City Planning Commission unanimously recommended approval of the Ordinance. Then, last week, the Planning and Land Use Management Committee of the City Council (PLUM) heard nearly three hours of testimony from over 50 speakers in a packed room full of constituents and representatives from a wide range of community and business organizations.

After hearing the testimony, PLUM members, who include Councilmembers Huizar, Harris-Dawson, Cedillo, Englander and Price, requested that the Department of City Planning (“DCP”) and the Housing Community Investment Department (“HCID”) provide additional information and analysis with regard to a number of issues and report back to PLUM. Those requests include the following:

  • Provide a framework for the expenditure plan for the Housing Impact Trust Fund created by the Ordinance.
  • Further analysis whether the current “one size fits all” linkage fees for residential and nonresidential uses is appropriate for communities with varying incomes and demographics.
  • Prepare an assessment of the overall need for affordable housing units with more numerical data and the impact of potential cuts in federal funding.
  • Clarify the definition of certain terms (e.g., affordable vs. market-rate housing).

PLUM continued consideration of the proposed linkage fee to early August (after its July recess), at which time DCP and HCID are expected to report back with the requested information and analysis.

We will continue to follow the progress of the Ordinance and are available to discuss its potential impact on your development projects and programs.

For further information, the full audio and agenda from last week’s PLUM meeting can be found here.

*Nashia Lalani is a Land Use Planner with Sheppard Mullin

California Court Of Appeal Rejects Citizens Group Nuisance Case Regarding Sea Lion Stench

Citizens for Odor Nuisance Abatement v. City of San Diego, 8 Cal. App. 5th 350 (Cal. Ct. App. 2017). The Fourth Appellate District of the California Court of Appeal concluded that the City of San Diego could not be held liable for public nuisance associated with the stench created by sea lions because the City did not create the nuisance. Continue Reading

Tenth Circuit Finds CERCLA Contribution Claim Not Barred by Bankruptcy Approval of a Settlement Estimating Liability for the Site

Asarco LLC v. Noranda Mining, Inc., 844 F.3d 1201 (10th Cir. 2017). In a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contribution action, the Tenth Circuit ruled that a mining company, whose liability for a contaminated site had been resolved in a settlement agreement approved by the bankruptcy court, could still seek contribution against other potentially responsible parties (PRPs), claiming that it overpaid its fair share of cleanup costs for the site. Id. at 1208. The Tenth Circuit also determined that contribution claims are permitted even against a party to a prior consent decree so long as the claims were not specifically resolved by the consent decree. Id. at 1211–12. Continue Reading

GHG Allowance Auctions are Not a Tax; Key Element of State’s Cap-and-Trade Program Upheld

California Chamber of Commerce, et al. v. California Air Resources Board, et al., Case No. C075930 (Cal. Ct. App. 3d. Dist., 2017).

On April 6, the California Court of Appeal for the Third District issued its long-awaited decision in the consolidated lawsuits challenging the greenhouse gas (“GHG”) emission allowance auctions, which are a key component of the California Air Resources Board’s (“CARB”) Cap-and-Trade Program.  The court held that CARB has the authority to establish the auctions and that they do not constitute an illegal tax.  The second holding is key and breaks new legal ground; it also was made over a strong dissent.  As the court put it, “the hallmarks of a tax are: 1) that it is compulsory; and 2) that the payor receives nothing of particular value for payment of the tax.”  (Op. at 5.)  The auction system is not a tax because 1) “the purchase of allowances is a voluntary decision driven by business judgments as to whether it is more beneficial to the company to make the purchase than to reduce emissions,” and 2) “the allowances are valuable, tradable commodities, conferring on the holder the privilege to pollute.”  (Id.)  This is a major victory for the Program and the State’s efforts to address climate change by reducing GHG emissions. However, there is a question whether the decision will stand.  There was a strong dissent, and the decision is sure to be appealed to the California Supreme Court.  Meanwhile, the Legislature is currently at work on crafting legislation aimed at determining how the existing ambitious emission reduction mandates will be met.  The court’s decision will factor into those critical legislative deliberations, which will resume later this month after the spring recess. Continue Reading

Environmental Litigation and Toxic Torts Update – Mountain/West Coast Case Law Highlights

NINTH CIRCUIT FINDS “THREATENED” DESIGNATION FOR BEARDED SEALS PROPER BASED ON NEW LONG-TERM PROJECTIONS

Alaska Oil and Gas Ass’n et al. v. Pritzker et al., 840 F.3d 671, 2016 U.S. App. LEXIS 19084 (9th Cir. 2016). Plaintiffs Alaska Oil and Gas Association, the state of Alaska, and North Slope Borough (collectively, Plaintiffs) challenged the National Marine Fisheries Service’s (the Service) determination that a subspecies of Pacific bearded seal, known as the “Beringia distinct population segment” (Beringia DPS), is threatened and entitled to protection under the Endangered Species Act (the Act). The state of Alaska also claimed the Service failed to adequately respond to its public comments, as required by the Act’s state cooperation provisions. The Ninth Circuit rejected Plaintiffs’ claims, finding that the Service’s decision to list the Beringia DPS as threatened was not arbitrary, capricious, or otherwise in contravention of the applicable law, and that the Service complied with its obligations to respond to the state of Alaska’s public comments.

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DISTRICT COURT FINDS CLEAN WATER ACT LAWSUIT MAY PROCEED FOR DISCHARGES TO WATERWAYS FROM PASSING RAIL CARS

Sierra Club et al. v. BNSF Railway Co., 2016 U.S. Dist. LEXIS 147786 (W.D. Wash. Oct. 25, 2016). Environmental advocacy organizations (collectively, Plaintiffs) brought a Clean Water Act citizen suit against BNSF Railway Co. (BNSF) seeking relief for BNSF’s alleged unpermitted discharge of coal pollutants from its railcars into protected waterways. Plaintiffs alleged that “each time a BNSF train carrying coal travels through the state of Washington it discharges coal pollutants ‘through holes in the bottoms and sides of the rail cars and by spillage or ejection from the open tops of the rail cars and trains.’” Id. at *3–4. Both sides sought summary judgment, which the court denied. Id. at *2. The court rejected BNSF’s argument that Plaintiffs lacked standing, and determined that there were disputed issues of fact as to whether BNSF had committed Clean Water Act violations.

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CALIFORNIA COURT OF APPEAL HOLDS ORDINANCE REGULATING MARIJUANA DISPENSARIES NOT SUBJECT TO ENVIRONMENTAL QUALITY ACT REVIEW

Union of Medical Marijuana Patients, Inc. v. City of San Diego, 4 Cal. App. 4th 103 (2016). The Union of Medical Marijuana Patients, Inc. (UMMP) brought a petition for writ of mandate against the City of San Diego (City), claiming the City failed to comply with the California Environmental Quality Act (CEQA) when it enacted an Ordinance (No. O20356) regulating the establishment and location of medical marijuana cooperatives within the City. UMMP argued that the Ordinance was a project under CEQA as a matter of law, and that the City failed to consider the reasonably foreseeable environmental impacts of the Ordinance prior to its adoption. The court of appeal rejected UMMP’s arguments, finding that the Ordinance was not a project under CEQA and that the alleged environmental impacts were not reasonably foreseeable.

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Commercial Lease Alert: New Access Law Disclosure Requirements In Leases Effective January 1, 2017

Under current California law, commercial real property owners are required to state in every lease agreement whether the property leased has undergone inspection by a Certified Access Specialist (“CASp”) and, if so, whether the property has or has not been determined to meet all applicable construction-related accessibility standards. [California Civil Code Section 1938].  Effective immediately, additional commercial lease accessibility disclosures are required.

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Voters Overwhelmingly Approve ‘Build Better LA’ Initiative Resulting in New Affordable Housing and Local Hiring Requirements For Developers

Voters this week approved Measure JJJ, otherwise known as the Build Better L.A. initiative (the “Initiative”), which establishes new labor and affordable-housing requirements for developers in Los Angeles seeking discretionary approvals for residential projects.  The Initiative was promoted by the L.A. County Federation of Labor, which cited the City’s inability to meet the increasing need for affordable housing as motivation for the Initiative.

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Environmental Litigation and Toxic Torts Update – Mountain/West Coast Case Law Highlights

NINTH CIRCUIT ISSUES MAJOR CERCLA DECISION FINDING THAT ARRANGER LIABILITY CANNOT BE BASED ON CONTAMINATION DEPOSITED ON A SITE BY THE WIND

Pakootas v. Teck Cominco Metals, No. 15-35228, 2016 U.S. App. LEXIS 13662 (9th Cir. July 27, 2016). The Ninth Circuit issued an important Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) decision that will likely have broad impact in limiting the scope of arranger liability. The Confederated Tribes of the Colville Reservation and the state of Washington (collectively, plaintiffs) brought suit against Teck Cominco Metals, Ltd. (Teck), a smelter located ten miles north of the U.S.-Canada border and alleged to have contaminated a site on the upper Columbia River. Under plaintiffs’ theory, the smelter contaminated the Columbia River site by emitting hazardous substances, including lead, cadmium, and mercury, into the air, which were then carried by air currents to the contaminated site. A three-judge panel was asked to determine if a smelter that releases hazardous substances through a smokestack can be held liable for cleanup costs and natural resources damages under CERCLA, 42 U.S.C. § 9607(a) (3), where the released substances contaminate land or water located downwind. All parties agreed that “the answer turns on whether the smelter owner-operator can be said to have arranged for the ‘disposal’ of those hazardous substances within the meaning of CERCLA.” Id. at *4. The Ninth Circuit concluded that CERCLA liability could not be based on the gradual spread of contaminants via aerial deposition without human intervention—i.e., a defendant could not be said to have arranged for the “disposal” of hazardous substances under CERCLA that were emitted to the air and then contaminated land or water located downwind. Id.

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NINTH CIRCUIT ISSUES PRECEDENTIAL OPINION RESTRICTING THE NAVY’S PEACETIME USE OF SONAR

Natural Resources Defense Counsel, Inc., et al. v. Pritzker, et al., No. 14-16375, 2016 U.S. App. LEXIS 13021 (9th Cir. July 15, 2016). In a significant decision, the Ninth Circuit invalidated the National Marine Fisheries Service’s (Fisheries Service) 2012 final agency decision (Final Rule) permitting the Navy’s peacetime use of Surveillance Towed Array Sensor System Low Frequency Active sonar (LFA sonar). At certain frequencies, LFA sonar can harm marine mammals and/or cause short-term disruption or abandonment of natural behavior patterns. Plaintiffs, environmental advocates including the Natural Resources Defense Council, the Humane Society of the United States, and Jean-Michel Cousteau, among others, brought suit against the Fisheries Service, the Department of Commerce, the Navy, and the National Oceanic and Atmospheric Administration (collectively, defendants) on the grounds that the Final Rule did not comply with the Marine Mammal Protection Act (the Act) because it failed to include mitigation measures that would have the least practicable adverse impact on marine mammals. The district court granted summary judgment to defendants. On appeal, the Ninth Circuit reversed, holding that the Final Rule was required to include mitigation measures that “‘effect[] the least practicable adverse impact on’ marine mammal species, stock, and habitat, as is specifically required by the [Act]” and that the Fisheries Service failed to demonstrate that the selected mitigation measures met this standard. Id. at *44–45.

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CALIFORNIA SUPREME COURT AFFIRMS PUBLIC ENTITIES’ RIGHT TO CONDUCT ENVIRONMENTAL TESTING ON PRIVATE PROPERTY BUT REVISES STATUTE TO ALLOW JURY TRIAL ON DAMAGES

Property Reserve, Inc. v. Superior Court; Nichols  v. Superior Court; and Department of Water Resources Cases, 1 Cal. 5th 151 (2016). The California Supreme Court clarified that public entities have the right to conduct environmental studies and geological testing on private property in order to determine the suitability of such property for government projects, including to assess the potential effects of proposed projects on biological, environmental, geological, and archeological resources as required by state and federal environmental laws, including the California Environmental Quality Act, the National Environmental Policy Act, the California Endangered Species Act, the Federal Endangered Species Act, the Federal Clean Water Act, and the California Porter-Cologne Water Quality Act.  However, the court exercised its authority to reform—rather than invalidate—the relevant statutes to provide property owners the opportunity for a jury trial on damages caused by such activities.

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Use of long-term climate projections for bearded seal listing not necessarily a bellwether for Endangered Species Act decisions

The Ninth Circuit this week upheld a National Marine Fisheries Service decision to list the Pacific bearded seal as threatened under the Endangered Species Act based primarily on threats from climate change, reversing a district court decision that invalidated the NMFS rulemaking.  The court’s opinion in Alaska Oil & Gas Ass’n v. Pritzker, No. 14-35806, was consistent with a 2013 D.C. Circuit opinion that upheld listing the polar bear as threatened based on climate change projections, and with a Ninth Circuit opinion earlier this year that upheld the U.S. Fish and Wildlife Service’s reliance on climate change models as the “best available science” for designating polar bear critical habitat.  But this week’s opinion was noteworthy because the NMFS listing of the bearded seal relied on very long-term (through 2100) climate change predictions to determine that the species is likely to become endangered, while the polar bear listing only evaluated a 45-year “foreseeable future” period.

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