Land Use and Entitlements

This past week, in a 4 to 3 decision,  New York’s highest court – the Court of Appeals – decided an important New York City land use question regarding how “open space” is accessed by residents on a zoning lot with multiple buildings In the Matter of Randy Peyton, et al v. NYC Board of Standards and Appeals, et al.  This rollercoaster ride ended with the Court of Appeals overturning the First Department, Appellate Division’s decision, and ultimately agreeing with the NYC Department of Buildings original application of the law, which was affirmed by the quasi-judicial NYC Board of Standards and Appeals (BSA).  The Court of Appeals determined that open space available for use by residents of one building, such as a rooftop garden, does not need to be accessed by residents in other buildings when the buildings are part of a single zoning lot in order to satisfy zoning “open space” requirements, putting to rest this controversial question.
Continue Reading NY Court of Appeals Decides Who Gets Access to Required “Open Space”

The New York City Council, under Speaker Corey Johnson, announced this week the release of a proposal for “A New Comprehensive Planning Framework for New York City,” to support equitable, inclusive growth, and citing the City’s current “planning framework, or lack thereof, [as being] inherently flawed.”  The report was released in tandem with legislation introduced by Speaker Johnson at the Council’s December 17 stated meeting (Int 2186-2020), requiring a 10 year comprehensive planning cycle.
Continue Reading NYC Council Announces Land Use Overhaul

Governor Gavin Newsom just signed a number of housing bills into law that were passed by the Legislature this session ending on August 31, 2020.  Due to the severe scheduling constraints placed on lawmakers by the COVID-19 pandemic among other challenges, the Legislature was only able to pass a small number of bills related to housing and tenant protections, despite beginning the year with over 100 bills under consideration.  Most notably, some of the most ambitious pieces of legislation including five of the bills in the State Senate’s Housing Production Package all failed to pass before the midnight deadline on August 31, 2020.  We will continue to monitor the Legislature’s efforts to spur additional housing production in California as we head into the Fall recess and the new legislative session starting on December 7, 2020.  Below is a summary of the bills signed by the Governor on August 28, 2020.  These bills take effect on January 1, 2020, unless otherwise noted.
Continue Reading California Housing Legislation 2020

During the eleventh hour of the 2020 legislative session, the California Legislature approved 2 significant bills in response to the COVID-19 pandemic with the potential to have far-reaching ramifications for mortgage servicers.
Continue Reading Residential Eviction Protections and California Consumer Financial Protections Pass Muster During 2020 Legislative Session

After a nearly two-year wait, in Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) __ Cal.5th ____ (POWER), the California Supreme Court unanimously rejected the County of Stanislaus’s (County) bright-line categorization that all groundwater well construction permits are ministerial, and therefore not subject to the California Environmental Quality Act (CEQA).  In an interesting twist, the Supreme Court also rejected the petitioner’s alternative “all or nothing” position that, if the permits are not ministerial, they must be discretionary and conditioned on CEQA compliance.  Instead, the Supreme Court held the decision of whether each permit is ministerial or discretionary hinges on the specific language of the governing ordinance and regulatory controls.[1]
Continue Reading California Supreme Courts Holds Categorical Classification of Well Permits As Exclusively “Ministerial” Does Not Hold Water

In Granny Purps v. County of Santa Cruz, the Sixth District Court of Appeal green-lit a medical cannabis cultivator’s ability to pursue damages – to the tune of potentially $3.5M – from the County of Santa Cruz when it determined the County cannot rely on zoning ordinance to seize the cultivator’s plants grown in violation of local regulation. Specifically, the Sixth District found that, while the County is not compelled to return seized property if the property is illegal, the local ordinance at issue “ultimately regulates land use within the County; it does not (nor could it) render illegal a substance that is legal under state law.”
Continue Reading County Zoning Ordinance Cannot be Used to Justify Property Seizure

Today, New York City Mayor Bill De Blasio announced the long-awaited date for the City’s land use process (the Uniform Land Use Review Procedure, or ULURP) to be officially restarted with the City Planning Commission’s first public review session scheduled for August 3, 2020 and the first public hearing scheduled for August 5, 2020.  All meetings , including Community Board, Borough President and the City Council, will take place virtually until further notice.  Information on public hearing schedules for the City Planning Commission, and how to participate in public hearings can be found at NYC Engage.
Continue Reading ULURP Clock Restarted

MAY 8, 2020 – UPDATE: The final version of the New Ordinance has been signed by Mayor Gracetti and takes effect May 12, 2020.

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California Senate Bill (“SB”) 899, introduced in March by Senator Scott Wiener and currently in the Senate Housing, Environmental Quality, and Governance and Finance Committees, would exempt eligible affordable housing projects and mixed use projects on property owned by religious institutions and nonprofit medical facilities from review under the California Environmental Quality Act (Pub. Res. Code § 21000 et seq.) (“CEQA”) and provide for other permit streamlining.  Eligible entities include nonprofit hospitals, diagnostic or treatment centers, rehabilitation facilities, and nursing homes, as well as religious institutions.  As Senator Wiener noted, “religious and charitable institutions often have land to spare, and they should be able to use that land to build affordable housing and thus further their mission.  SB 899 ensures that affordable housing can be built and removes local zoning and approval obstacles in order to do so.”  These eligible organizations may partner with a qualified nonprofit developer or local public entity to construct the affordable housing developments.
Continue Reading Proposed Legislation Aims to Boost Affordable Housing on Land Owned by Religious Institutions and Nonprofit Hospitals

In the belatedly-published Environmental Council of Sacramento, et al. v. County of Sacramento (Cordova Hills, LLC, et al. – Real Parties-in-Interest) (2020) ____ Cal.App.5th ____,[1] the Third District Court of Appeal affirmed judgment against a slew of California Environmental Quality Act (“CEQA”) claims centered on Environmental Council’s and Sierra Club’s (collectively, “Environmental Council” or “petitioners”) contention that the project at issue included a component – a university – that is ultimately not likely to be built.  More specifically, petitioners contended that because the university was not likely to be built, the environmental impact report (“EIR”) prepared pursuant to CEQA was therefore insufficient for failing to analyze the project without the university and thereby understated project impacts to things such as air quality, climate change and transportation.
Continue Reading Failure to Include A No-Build Analysis in Project Description Does Not Violate CEQA

On January 23, 2020, the United States Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers issued the Navigable Waters Protection Rule (the “2020 Rule”), which includes a revised definition of the “waters of the United States” subject to federal regulation under the Clean Water Act.[1] The revisions in the 2020 Rule come after a line of U.S. Supreme Court (“Supreme Court”) cases ending with Rapanos v. United States,[2] as well as an Obama-era administrative rule addressing the waterbodies under federal jurisdiction (the “2015 Rule”).[3] Rapanos was the last time the Supreme Court interpreted the term “waters of the United States,” with the intent of curtailing the substantial litigation concerning the meaning of the phrase and defining what “waters of the United States” should be included under federal jurisdiction. The 2015 Rule intended to clarify the definition further and codify the Supreme Court decisions. When effective, the newly issued Navigable Waters Protection Rule will limit the 2015 Rule, attempting again to define what are and what are not “waters of the United States.”
Continue Reading Navigable Waters Protection Rule: How are the “Waters of the United States” Being Defined?