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Jack Rubens

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Jack H. Rubens is a partner in the Real Estate, Energy, Land Use & Environmental Practice Group in the firm’s Los Angeles office.

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Governor Gavin Newsom recently signed into law Senate Bill (SB) 7, the “Housing + Jobs Expansion & Extension Act”, which extends and expands California Environmental Quality Act (CEQA) streamlining provisions.  As previously discussed in our February blog post, “California Senate Returns Its Focus to Housing in 2021-2022 Legislative Session,” SB 7 is the first bill from the Senate’s “Building Opportunities for All” housing package to be signed and enacted this year.  SB 7 extends through 2025 the streamlined CEQA administrative and judicial review procedures developed for Environmental Leadership Development Projects (ELDPs) under Assembly Bill (AB) 900 in 2011. AB 900 established a process to expedite legal challenges for large housing, clean energy, and manufacturing projects with a capital investment of at least $100 million.  In an effort to increase housing and job opportunities in California, SB 7 expands streamlining eligibility to smaller affordable housing projects.  Specifically, housing projects on infill sites with an investment between $15-$100 million that meet specified labor and environmental standards and include at least 15 percent affordable housing are now eligible under SB 7.  SB 7 also clarifies that the deadline to resolve legal challenges to ELDPs under the expedited judicial review process is 270 days from the filing of the certified record of proceedings, including appeals to the court of appeal and the Supreme Court.
Continue Reading Senate Bill Extends and Expands CEQA Streamlining Process

The new 2021-2022 California legislative session has kicked off with the Senate’s “Building Opportunities for All” housing package, its latest effort to tackle zoning and California Environmental Quality Act (“CEQA”) reforms in an effort to address California’s ongoing housing crisis.  “Each one of these bills is targeted at an element of the housing crisis, and together, they give us a unified approach that would create pathways to home ownership, stable housing for vulnerable families, and a pathway to economic stability for Californians across the golden state,” said Senate President Pro Tempore Toni Atkins when announcing the housing package. As anticipated in our summary of new legislation effective in 2021, this housing package builds upon the housing production bills from the previous legislative session that failed to pass out of committee or gain concurrence votes before the session ended.  Given that many of the bills replicate language from the failed 2020 housing legislation, the senators appear confident that more of these bills will be approved in this new session.
Continue Reading California Senate Returns Its Focus to Housing in 2021-2022 Legislative Session

Two significant changes to California Environmental Quality Act (“CEQA”) noticing and filing requirements and procedures recently took effect.  First, on September 23, 2020, Governor Gavin Newsom signed Executive Order N-80-20 (“Order“), which conditionally suspends certain requirements for filing, noticing, and posting of CEQA documents with county clerk offices.  The Order provides an alternate means of complying with those requirements during the current pandemic, and extends the prior suspension by Executive Order N-54-20.[1]  It will remain in effect until it is modified or rescinded, or until the COVID-related State of Emergency instituted on March 4, 2020 is terminated, whichever occurs sooner.
Continue Reading Significant Changes to State CEQA Filing and Noticing Requirements and Procedures

In Sierra Club v. County of Fresno (S219783), the California Supreme Court unanimously reaffirmed that the substantial evidence standard of review does not always apply when a lead agency prepares an environmental impact report (“EIR”) for a development project. Rather, the court determined that the less deferential de novo standard applies if the EIR’s discussion of a potentially significant impact has been omitted or is factually insufficient. In other words, while a lead agency has considerable discretion as to the methodology and analysis it employs to analyze a potentially significant impact, an EIR must reasonably describe the nature and magnitude of the impact (i.e., include a meaningful explanation of why an impact is significant or not) if it is to survive judicial scrutiny. In County of Fresno, the court employed the de novo standard and held that the EIR’s air quality analysis was inadequate because it did not explain the connection between the project pollutants and negative health effects or explain why it could not make such a connection.
Continue Reading California Supreme Court Clarifies Scope of De Novo and Substantial Evidence Standards Of Review In CEQA Cases

Barbara Lynch et al. v. California Coastal Commission, Case No. S221980

The California Supreme Court has drawn a deeper line in the sand by (a) refusing to expand the Mitigation Fee Act to cover “land use restrictions” in permit conditions of approval that are unrelated to the project’s construction, and (b) requiring applicants to litigate their objections to final judgment before accepting the benefits of the permit. Though the case involved a Coastal Commission permit, it has broader implications discussed below.Continue Reading Are You Sure You Want to Challenge That Permit Condition?

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.

Continue Reading Update – City of Los Angeles Affordable Housing Linkage Fee

On December 16, the Los Angeles City Council unanimously authorized the City Attorney to establish a Land Use/CEQA Panel, which will consist of five municipal law firms, to defend the City in CEQA and land use lawsuits that challenge the entitlements for private development projects, and to require that the project applicant reimburse the City for its legal costs and fees.
Continue Reading City of Los Angeles Outsources Defense of CEQA/Land Use Lawsuits To Private Law Firms – Developers To Foot The Bill