October 27, 2021

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Land Use Matters: September 2021 – Real Estate and Construction

8 min read

Los Angeles Department of City Planning

Affordable Housing Linkage Fee

The Affordable Housing Linkage Fee (AHLF) schedule, adopted June
29, 2018, places a fee on certain new market-rate residential and
commercial development projects to generate local funding for
affordable housing. The AHLF is adjusted annually for inflation.
The calculated adjustment effective July 1, 2021, is 3.6%, and the
new fees are shown on the table below. The AHLF is payable at the
time of building permit issuance.

The AHLF Market Area Maps are attached to the Department of City Planning memo, dated June 3,
2021
.

California Environmental Quality Act & Land Use Case
Highlights

Save Our Access v. Watershed Conservation
Authority
(2nd App. Dist., August
2021)

The court upheld an environmental impact report (EIR) for a
wilderness recreation and preservation project in the Angeles
National Forest in a challenge to the EIR’s analysis of the
project’s reduced parking, alternatives analysis, and land use
consistency analysis. The area of the proposed project is a popular
recreational area, and its heavy use combined with the lack of
facilities had resulted in degradation of the area. The project
proposed enhancements, including new picnic areas, pedestrian
trails, river access points, improvements to paved and unpaved
roads, parking and restroom improvements, and vegetation
restoration. Specifically, the project would reduce the available
parking from approximately 417 designated and undesignated spots to
270 designated spots. The Watershed Conservation Authority (WCA)
and Angeles National Forest prepared a joint environmental impact
report/environmental impact statement (EIR/EIS) under CEQA and NEPA
to evaluate the project’s potential environmental impacts.

The petitioner brought a petition for writ of mandate
challenging the WCA’s certification of the EIR, arguing in part
that the EIR did not adequately evaluate impacts to recreational
resources because the project’s reduced parking would reduce
recreational access to the area. While the trial court granted the
petition in part based on a discrepancy in the analysis of the
parking, the court of appeal reversed and upheld the EIR. The court
held that reductions in parking could lead to secondary
environmental impacts, such as air quality impacts from drivers
searching for parking. Yet those potential environmental impacts
were very fact-specific to the circumstances in each case. Here,
the reduction in parking might have an adverse social impact for
those who must recreate elsewhere, but the reduction would prevent
further adverse physical impacts on the environment. The court held
that the EIR adequately disclosed the parking reduction and
evaluated the physical impacts of displaced visitors who may seek
other recreation opportunities across a large region. The court
also rejected the petitioner’s argument that the EIR should
have evaluated more than the no-project alternative, holding that
the petitioner failed to meet its burden to show evaluating only
the project and the no-project alternative did not amount to a
reasonable range of alternatives. The court also upheld the
EIR’s analysis of the project’s consistency with applicable
land use plans.

Los
Angeles Department of Water & Power v. County of Inyo

(5th App. Dist., August 2021)

The court of appeal affirmed a trial court’s decision to
direct a county to set aside resolutions of necessity in which the
county determined that a landfill project was categorically exempt
from CEQA. The county argued that the petitioner failed to exhaust
its available administrative remedies because the petitioner did
not raise the argument that an exemption did not apply during the
administrative proceedings. The court of appeal rejected this
argument, reasoning that the county did not provide adequate notice
that a CEQA exemption would be considered at the public hearing on
the project, so the petitioner had no opportunity to raise an
objection to the exemption. “In other words, the requisite
opportunity is not provided when the public ‘agency holds a
hearing but does not provide adequate notice that a CEQA exemption
will be considered.'” Adequate notice was not provided
because the agenda request form for the hearing did not mention
CEQA or any exemption, and the county could point to nothing in the
record to show that the public was notified before the hearing of
the county’s possible reliance on CEQA exemptions. The court of
appeal found that the first disclosure of the exemption occurred
just before the close of the public portion of the hearing, and as
a matter of law, this was not sufficient notice.

Pacific Merchant Shipping Association v.
Newsom
(1st App. Dist., August 2021)

This case concerned special legislation enacted to facilitate
the construction of a new baseball park and mixed-use development
in Oakland, Assembly Bill 734. Some of the goals of AB 734 were to
help the city retain a professional sports team, create jobs, and
help implement sustainability measures designed to improve air
quality. The petitioners contended that Governor Gavin Newsom did
not have the authority to certify the project because his authority
expired as of January 1, 2020. Their argument was based on an
incorrect reading of Public Resources Code Section 21168.6.7(e)(2),
which incorporated Assembly Bill 900. AB 900 included a deadline of
January 1, 2020.

The trial court granted Newsom’s motion for judgment on the
pleadings, and the court of appeal affirmed. The court of appeal
analyzed the legislative history of AB 734 to determine that the
deadline referenced in AB 900 did not apply to AB 734 because the
“petitioners’ reading of the statute would undermine
rather than promote the general purposes of the statute and the
objectives to be achieved” because the reading would
essentially make the special legislation a nullity.

Save
Lafayette Trees v. East Bay Regional Park District
(1st
App. Dist., June 2021)

The petitioners challenged a regional park district’s
approval of an agreement with a utility company that provided for
removal of trees in close proximity to a natural gas line on
district property. The real party in interest brought a demurrer,
arguing that the complaint was barred by the statute of
limitations. The petitioners argued that the statute of limitations
had been tolled because they and the respondent had entered into a
tolling agreement, which the real party did not consent to. The
trial court sustained the demurrer without leave to amend, and the
court of appeal affirmed. The court of appeal held that the real
party was a necessary party to the tolling agreement and “was
entitled to either assert or waive the statute of limitations
defense to the amended petition/complaint.” The court of
appeal also rejected petitioners’ argument that the limitations
period did not begin until they had “constructive notice”
that the project involved the removal of trees, reasoning that
“‘flaws in a project approval process’ do not delay
the limitations period normally applicable.”

The court of appeal further held that a city’s tree
protection ordinance did not apply to the project because general
state law granting resource management authority to regional park
districts preempted the ordinance. Lastly, the court held that due
process rights of notice and hearing related to the project were
inapplicable because the district’s acts were
quasi-legislative, not quasi-judicial.

Linovitz Capo Shores LLC v. California Coastal
Commission
(4th App. Dist., June 2021)

The court of appeal held that coastal development permits (CDPs)
were deemed approved by operation of law under the Permit
Streamlining Act (Gov. Code Section 65920, et seq.) after the
California Coastal Commission failed to act on the permits within
the required time limits. Owners of beachfront mobile homes in the
City of San Clemente had received permits from the California
Department of Housing and Community Development (HCD) to remodel
their mobile homes, including adding second stories. After the
homeowners completed the renovations, the Coastal Commission issued
notices stating that the completed renovations were unauthorized
and illegal without CDPs. To avoid substantial fines and civil
penalties, the homeowners applied for “after-the-fact”
permits for the renovations.

At the public hearing for the CDPs, the Coastal Commission’s
staff recommended approving the CDPs, but conditioning the
approvals on limiting the heights of each home to 16 feet. That
height limitation would have required demolishing and
reconstructing the homes, which currently stood between 20 and 25
feet. Opposing those conditions, the homeowners offered to withdraw
and resubmit their applications to allow for further discussions of
alternatives to the staff’s recommendations. The Coastal
Commission voted to allow resubmission of the applications, denied
a request to waive resubmittal fees, and took no further action on
the applications.

Months later, the homeowners filed a petition for writ of
mandate, arguing the Coastal Commission did not have jurisdiction
to require the CDPs in the first instance and that their
applications had been approved by operation of law. The trial court
sided with the Coastal Commission, but the court of appeal
reversed. The court of appeal rejected the homeowners’ first
argument, holding that the HCD and Coastal Commission have
concurrent jurisdiction over mobile homes in the coastal zone.
However, the court found that the homeowners never formally
withdrew their applications, and the Coastal Commission failed to
act on them. Because the Coastal Commission had provided adequate
notice to the public of its initial hearing on the CDPs, the court
held that the necessary prerequisites for the deemed approval under
the Permit Streamlining Act were satisfied.

Newtown Preservation Society v. County of El
Dorado
(3rd App. Dist., June 2021)

The court of appeal upheld El Dorado County’s adoption of a
mitigated negative declaration (MND) under CEQA for a bridge
replacement project, holding that the petitioners had not satisfied
their burden to show that substantial evidence supported a fair
argument of significant impacts related to emergency response.
While the MND identified potential impacts of the project that
could impair implementation or physically interfere with emergency
response or evacuation plans, the MND identified mitigation
measures to reduce that potential impact to a less than significant
level, including the potential construction of a temporary
evacuation route. Concerned the project would impact fire
evacuation routes during construction, the petitioners brought a
petition for writ of mandate arguing that the county should have
prepared a full environmental impact report (EIR).

The trial court denied the petition, and the court of appeal
affirmed. Rejecting the petitioners’ arguments, the court held
that the petitioners incorrectly framed the fair argument standard
in terms of the project having “potentially significant
impacts on resident safety and emergency evacuation.” Yet
instead, the relevant test was “whether the record contains
substantial evidence that the project may have a significant effect
on the environment or may exacerbate existing environmental
hazards.” The petitioners pointed to many public comments
expressing concerns about the project’s impacts to evacuation
safety, relying on cases in which courts have held that lay
testimony could constitute substantial evidence. The court rejected
that argument, holding that lay testimony may constitute
substantial evidence when personal observations and experiences
directly relate to and inform a project’s impacts. In contrast
to lay testimony presented in other successful challenges, the
court held that the comments in this case lacked factual foundation
and failed to contradict the conclusions of the agencies with
expertise in wildlife evacuations or call into question the
underlying assumptions related to the project’s potential
environmental impacts.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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