Judge blocks oil development in Central California over fracking

By David R. Baker : sfchronicle – excerpt

A federal judge on Tuesday blocked the U.S. Bureau of Land Management from opening more than 1 million acres in Central California to oil drilling because the agency did not properly explore the potential dangers of fracking.

U.S. District Court Judge Michael Fitzgerald sided with environmentalists who argued that the bureau should have addressed the possible impacts of hydraulic fracturing in an environmental impact statement issued as part of the formal process of opening public lands to drilling.

Instead, the 1,073-page impact statement only mentioned fracking three times and never discussed the controversial practice in depth, according to the judge…

Environmentalists who consider fracking a threat to California’s strained groundwater supplies hailed the ruling.

“The Obama administration must get the message and end this reckless rush to auction off our public land to oil companies,” said Brendan Cummings, conservation director for the Center for Biological Diversity, one of two environmental groups that sued the bureau. “As California struggles against drought and climate change, we’ve got to end fracking and leave this dirty oil in the ground.”… (more)

Not to mention the earthquake potential in an earthquake zone. They are worrying about it in Oklahoma now. We should consider it a potential threat in California.

 

Postponement of Development Project Hearing Raises Question of CEQA “Greenmail”

By Carolyn Schuk : santaclaraweekly – excerpt

The City Council was ready for a full hearing on a high-density residential infill project, 45 Buckingham/66 Saratoga, last Tuesday night, when the project’s developer, Prometheus Corp., asked at the last minute that the hearing be continued until Jan. 7, 2014.

The Council’s action would have been to approve or disapprove zoning changes from Community Mixed Use to High Density Residential, and resolutions that would exempt the project from a full Environmental Impact Report (EIR) – satisfying requirements with a Mitigated Negative Declaration (MND) and Mitigation Monitoring or Reporting Program (MMRP). Currently, the parcel is parking lots for Stevens Creek car dealers, auto repair shops, and several retail establishments including smoking paraphernalia and adult novelties shops.

The reason for the postponement given was that there were “issues that the developer needed to deal with.” However, the public documents (preview.tinyurl.com/nf683wt) for the project suggest that the Santa Clara project is perhaps the latest target of California Environmental Quality Act (CEQA) “greenmail” by construction unions threatening unneeded, time-consuming and costly CEQA reviews in order to increase their control over project hiring.

In November, the city received a letter from attorney Ellen Trescott of the Sacramento-based law firm Adams Broadwell Joseph & Cardozo challenging the adequacy of the environmental review for a variety of issues including “hazardous waste mitigation, to cleaner burning construction equipment, greenhouse gas emissions, and traffic…Because there is significant dispute about the severity of environmental impacts associated the Project, the more proper course of action is to direct the preparation of an Environmental Impact Report (EIR).”

A Law Firm Known for Its Union-Driven CEQA Appeals

Trescott is representing a group called Santa Clara Residents for Responsible Development, which, according to her letter, “includes David Clark, R.C. Crawford, Phillip Francisco, Victor Galvez, Matt Hancoc, Ricci Herro, Gregory Small, Robert Stuhr, Corey Quevedo, Scott Thomas, the International Brotherhood of Electrical Workers Local 332, Plumbers & Steamfitters Local 393, Sheet Metal Workers Local 104, and their members and their families who live and/or work in the City of Santa Clara and Santa Clara County.”

Adams Broadwell Joseph & Cardozo has made a name for itself in the last few years by bringing CEQA appeals against development project approvals on behalf of various “residents” groups whose principal members are construction unions. In 2012 it represented similar groups in objections to a Pasadena power plant re-powering project, a Napa water pipe project, and a San Bernardino County solar energy project.

Closer to home, the law firm represented Santa Clara & San Benito Counties Building and Construction Trades Council in disputing the San Jose City Council’s approval of the environmental study for the One South Market high-rise apartment project. The group’s appeal lost 9-2, with San Jose Mayor Chuck Reed calling the entire proceeding “just an abuse of the environmental process,” according to the San Jose Mercury report… (more)

Interesting read on “greenmail”. Could this be that the residents of the area object to the project and have hired a law firm that specializes in this matters?

Innovative Cornfield Arroyo Seco Specific Plan Seeks To Revitalize Neglected Los Angeles Neighborhood

By Alfred Fraijo Jr. and Tetlo N. Emmen : mondaq – excerpt

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.

Some of the CASP’s innovative provisions include:

  • Affordable Housing: The CASP provides for a Density Bonus Program that allows for increased Floor Area Ratio (“FAR”) above the base FAR for projects that agree to include an affordable housing component. The CASP also includes “on- and off-menu” incentives for projects that participate in the Density Bonus Program. The on-menu incentives include increases in the amount of residential FAR permitted in a project and an increase in the maximum height. The off-menu incentives permit an applicant to request a waiver from development standards set forth in the CASP or the Los Angeles Municipal Code.
  • Transfer of Floor Area: The CASP allows unused FAR to be transferred between properties within the CASP area. Both residential and non-residential projects can purchase unused FAR from other eligible properties to maximize FAR.
  • Streamlined Project Approval: Projects complying with CASP standards are eligible for an “Administrative Clearance” approval procedure. The environmental impact report prepared for the CASP fully assessed environmental impacts for projects that comply with the CASP’s standards, allowing projects approved via the Administrative Clearance to avoid additional CEQA review.
  • New Zones: The CASP contains four new zones: a Greenway Zone, Urban Village Zone, Urban Center Zone and an Urban Innovation Zone. The Greenway Zone provides for open space along the Los Angeles River. The Urban Village, Urban Center and Urban Innovation Zones all allow for mixed-use developments and are intended to promote a robust mix of light industrial, residential and commercial uses.
  • Parking: Because the CASP area is well served by public transit, there are no minimum parking requirements. This is a first of its kind strategy for the City of Los Angeles.
  • Reduced Lot Area: The number of dwelling units permitted in residential developments is not limited by the minimum unit size provisions of the Los Angeles Municipal Code. With an eye toward increasing the supply of affordable housing, the CASP allows projects to build smaller residential units that can be rented at lower rates.

The ordinance enacting the CASP (Ordinance No. 182,617) became effective on August 14, 2013. Whether the CASP’s innovative strategies will be successful in enticing new economic development and the range of housing choices envisioned remains to be seen, but the CASP has created a new blueprint offering real opportunities to achieve these goals. If you have any questions about the opportunities the CASP presents as it relates to developments or properties located in the CASP area please contact us.

(more)

S.F. Planning Commission to size up high-rise

By John Wildermuth : sfgate – excerpt

Another high-rise is in the works for San Francisco’s waterfront, and you can bet there will be plenty of people out to complain when the City Planning Commission on Thursday looks at the plan for a 31-story, 186-unit residential tower at 75 Howard St., just off the Embarcadero.

No decisions will be made at the noon meeting at City Hall as the commission considers the draft environmental impact report on the project, which would replace an eight-level, 540-space parking garage at Howard and Steuart streets, but the meeting could give an indication of just how much pushback the project will face when the final EIR comes up for approval early next year.

The Paramount Group has already been told by planners that its project is too tall, blocks scenic vistas, contributes to unacceptable traffic congestion and casts too many shadows on public open spaces to meet the existing zoning rules for the site. To meet city code requirements, the developer would need to lop 13 stories off the high-rise

None of those are necessarily deal killers (although the tower’s 348-foot height is way above the existing 200-foot limit), but the question is just how much stomach city officials have for another high-profile fistfight over waterfront development.

There already are dueling measures on November’s ballot over the future of the 8 Washington development, which would put 134 luxury condos across the street from the Ferry Building, and the plan for the Warriors arena at Pier 30-32 is beyond controversial. Add that to the fact that the city’s landmark Transbay Tower project faced serious concerns about the impact of shadows on the city’s downtown and waterfront, and the question that arises is how much is too much?

Something will be built on the Howard Street site, since the garage, described charitably as “visually utilitarian” by planners, is sitting on one of the last sites in that part of downtown for high-rise development(more)

Lawsuit challenging the Beach Chalet turf project goes to trial

Erin Dage : sfbg.com – excerpt

[UPDATE 8/16: Presiding Judge Teri L. Jackson is calling for more input from the plaintiff and defendant attorneys on Wednesday, August 21, so a decision in the case isn’t expected until then at the earliest. on that day at the earliest. Check back on Monday for coverage of went down in the courtroom during today’s trial.]… (more)

“We’re going to argue that it violates the Environmental Quality Act when the city decided to use the most toxic rubber,” plaintiffs attorney Richard Drury said. “We’re asking the judge to do a new environmental impact report and to consider other alternatives, such as using more environmentally friendly material.”

Katherine Howard, spokesperson for SF Ocean Edge, a group of environmentalists and residents who live near the site, has been a leading opponent of the project.

“We feel that the project is totally wrong,” Howard said. “Golden Gate Park is described as an escape from the city, and to cover acres of it’s land with grounded up tires is awful.”

In May, the California Coastal Commission denied an appeal of the project after a hearing was called to determine whether or not the plan violates the Coastal Act and the city’s Local Coastal Plan, which calls for naturalistic conditions at the site.

“We believe that this is a strong case,” Arthur Feinstein of the Sierra Club said. “If we lose we have the opportunity to go to a higher court of appeals.”
Trial for the lawsuit starts at 9:45 a.m. this Friday, August 16 at the San Francisco Superior Court of California in Room 503, and is expected to last two to four hours… (more)

CEQA Roundup: Reform bill amendments reveal what’s been taken off the table

by Justin Ewers : caeconomy – excerpt

What’s out:

  • Broad intent language targeting infill: Throughout his push for CEQA reform, Steinberg has said his aim is to speed up the CEQA review process for the vital infill projects California needs to achieve its climate goals–an idea he reiterated in a press conference Wednesday. This visionary language has been amended out of the bill, as has a specific call to bring “greater certainty” to infill development. The bill also backs away from efforts to expand the state’s definition of infill development itself.
  • Prohibition of ‘late hits:’ Also amended out are clear statutory rules to prohibit so-called “late hits” and “document dumps” that critics say are designed to delay projects late in the environmental review process.
  • Reducing redundant CEQA challenges: Steinberg’s original bill included some limits to the types of lawsuits that can be filed in the late stages of a residential development project. The current legislation, however, no longer contains the provision that would disallow litigation based solely on “argument, speculation, [or] unsubstantiated opinion” against projects that already comply with a local plan and environmental impact report.
  • A new role for the Attorney General: Steinberg’s original bill tasked the Attorney General with collecting information on the frequency of CEQA lawsuits and who is behind them–a major source of disagreement among environmentalists and business groups. While sources privy to the details of Steinberg’s negotiations say the governor’s office has expressed interest in adding more teeth to this provision by allowing the AG to go so far as to reopen these settlement agreements, the new amendments go in the other direction. He is now handing responsibility for developing reports on CEQA lawsuits to the California Research Bureau (“subject to the availability of funds”), which will be responsible for providing a report to the Legislature that includes the names of CEQA petitioners and the types of action filed.

What’s in:

  • Exempting “aesthetics” and (now) “parking:” The amended bill continues to propose removing “aesthetics” from the CEQA equation for residential and transit-oriented developments–and now adds parking to the mix, as well, in an effort to settle a series of muddled court decisions on the subject. These proposals would not prohibit a community from developing their own local rules on these issues, but it would mean infill project opponents could no longer use CEQA to tie a project up in court simply because they don’t like the way it looks or how it deals with parking. These new provisions come with two big caveats: Aesthetic impacts on historical or cultural resources must still be considered under CEQA, and the bill’s new parking provision is aimed only at the issue of parking spaces, not the impact of “traffic congestion on air quality.” How much this clarifies the law remains unclear.
  • Setting new “thresholds” for noise impacts: In a previous version, Steinberg sought to set new “thresholds” for traffic, noise, and parking–common urban environmental impacts that have become major obstacles to infill projects. But the new bill only calls for thresholds for noise impacts, as well as what the bill calls “transportation impacts for transit-oriented infill projects.” (Amended out is a directive to lawmakers to review similar land-use impacts to see if other thresholds could be set in the future.) In its current form, the bill continues to avoid setting these thresholds. Instead, it directs the Governor’s Office of Planning & Research to create guidelines for the new thresholds–which would likely be challenged in court, making the timing of their enactment uncertain.
  • A concession to renewable energy: Steinberg’s updated bill continues to create a new position for an Advisor on Renewable Energy Facilities to be a champion for renewable energy projects in the governor’s office, a position that would expire at the end of 2016. The bill also includes a provision that would allow renewable energy project applicants to make a case to public agencies through the CEQA process touting the environmental virtues of their projects, from cutting emissions to reducing traffic.
  • Increasing transparency in the administrative process: The new amendments have left untouched most of the bill’s array of procedural fixes–from allowing lead agencies to respond to CEQA complaints via the Internet to allowing courts to issue partial “remands” of only the sections of an environmental document that don’t comply with the law (though that provision is still intent language only).

Who will be happiest about these changes?

Labor leaders will be pleased by what seems to be a concerted effort to dial back Steinberg’s attempts to reduce CEQA litigation over infill projects. Most of the procedural changes sought by environmentalists remain in the bill, but environmental leaders may remain concerned over how new thresholds will be set–and how the bill’s exemption of aesthetics and parking will be resolved. The new coalition of public works agencies will be disappointed to see language prohibiting “late hits,” in particular, has been removed from the bill.

As for the business leaders who have been pushing for what they call “meaningful” reform: The new amendments to Steinberg’s legislation appear to be another–potentially decisive–step away from the comprehensive, long-lasting changes to CEQA they have been seeking… (more)

 

California Supreme Court to local agencies: hypothetical future baselines in CEQA are not per se improper in all cases, but likely are improper in the vast majority

Jeffer Mangels Butler & Mitchell LLP Neill E. Brower : lexology – excerpt

An August 5, 2013, the California Supreme Court provided some additional flexibility to local agencies in deciding what conditions properly constitute the “baseline” for analysis under the California Environmental Quality Act (“CEQA”). The decision, Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (“Neighbors”), Case No. S202828, narrowly upholds the environmental impact report (“EIR”) prepared for phase 2 of the Exposition Corridor Transit Project (“Expo Phase 2”) and strikes a middle ground among previous decisions regarding the use of various future baselines. The court ruled, among other things, that although an agency may, in very limited circumstances, evaluate project impacts on the basis of conditions anticipated to exist at the time of certification of an environmental impact report (“EIR”) for the project, or on a hypothetical longer-term future baseline, these cases remain the exception, rather than the rule. If using only a hypothetical future conditions and omitting existing conditions as a baseline, an agency must demonstrate that an analysis based on existing conditions “would detract from an EIR’s effectiveness as an informational document” by providing an uninformative or misleading analysis. In most cases, an agency must still evaluate the impacts of a project in comparison to existing conditions, though nothing prevents additional analysis of long-term impacts, particularly in the context of a cumulative analysis or a “no project” alternatives analysis… (more)

Use of future baselines not always acceptable in CEQA determinations.

Environmental Impact Report (EIR) Not Needed Before Starting Eminent Domain Proceeding

By Claudia Gutierrez : natlawreview.com – excerpt

In Golden Gate Land Holdings, LLC v. East Bay Regional Park District, the California Court of Appeals considered whether an Environmental Impact Report (“EIR”) must be prepared where the California Environmental Quality Act (“CEQA”) and eminent domain law intersect. Golden Gate Land Holdings, LLC, the owner of the property in question, argued that the East Bay Regional Park District, tasked by the California Legislature to complete the Eastshore State Park (“Eastshore Park”), had to complete environmental review prior to taking any action, including adoption of the resolution of necessity for the condemnation of a portion of Golden Gate’s property. The court sided with the District holding that commencement of the eminent domain proceedings prior to completion of the EIR did not violate CEQA… (more)

One Bay Area Plan to exempt developers from CEQA, decrease local jobs; toll roads everywhere

by Pam Farly: halfwaytoconcord – excerpt

June 20, a group of citizens concerned about private property rights attended the One Bay Area Environmental Impact Report (EIR) Meeting in Oakland. They learned that the One Bay Area Plan to institute sustainable development and smart growth in the Bay Area will exclude developers who agree to build TPP’s (Transit Priority Projects) from CEQA (California Environmental Quality Act) requirements! The plan also calls for policies that decrease local jobs and creates toll roads everywhere.

What is CEQA?
A statute that requires state and local agencies to identify the significant environmental impacts of their actions.

What is a TPP?
The development of living areas where the minimum housing density is 20 units per acre, and within a half mile of a major transit stop.

So– The One Bay Area Plan to improve air quality, transportation and housing will exempt builders from going through an environmental process that One Bay Area Planners claim is needed to keep the Bay Area from turning into an overcrowded, unlivable region. The One Bay Area Plan has been sold as a necessity to stop the environmental destruction of the Bay Area and create a sustainable and smarter Bay Area… (more)

One Bay Area Plan: Environmental Impact Report

Environmental Impact Report

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State law requires the Metropolitan Transportation Commission (MTC) and the Association of Bay Area Governments (ABAG) to prepare an Environmental Impact Report (EIR) for Plan Bay Area. Under the law known as the California Environmental Quality Act (CEQA), MTC and ABAG must inform decision makers and the general public of the range of potential environmental impacts that could result from the implementation Plan Bay Area. The EIR will examine a range of reasonable alternatives, identify the environmentally superior alternative and recommend a set of measures to mitigate the impacts of the selected alternative. The EIR for Plan Bay Area is being developed on a parallel track as the actual plan, and both documents are scheduled to be adopted simultaneously in summer 2013.

MTC and ABAG will study five EIR alternatives. These alternatives are defined by explicit land use and transportation policies and will be evaluated using an integrated regional modeling system comprised of the UrbanSim spatial economic/land use model and the MTC travel model.

The five proposed EIR alternatives are as follows:

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