Land Use Matters Publication June 2014

Land Use Matters, Alston & Bird LLP, June 2014.

Land Use Matters

City of Los Angeles

Department of City Planning

re:code LA Zoning Code Evaluation Report

Launched in June 2013, re:code LA is a five-year project to create a Downtown Development Code and a new Citywide Zoning Code. The Zoning Code Evaluation Report (Code Evaluation) released in March 2014 provides recommendations to address inadequacies in the current Zoning Code and recommends a path to move forward with drafting the new code. The Code Evaluation identifies several policy directions, including four policies that have the potential to depart from adopted City policies: 1) expand the density bonuses and other incentives for affordable housing; 2) evaluate existing parking requirements and consider zones with unbundled parking and parking maximums; 3) modernize home occupation standards to explore the expansion of enterprise opportunities in residences; and 4) expand geographic boundaries and sites eligible for Transfer of Floor Area Ratio (TFAR) regulations. Staff has also identified 30 zoning concepts that they would like to include in the Code Evaluation. The City Planning Commission considered the Code Evaluation at their May 22, 2014, and June 6, 2014, meetings and will continue review of the four policy directions and the 30 proposed concepts
at the June 26, 2014 meeting.

Click here to obtain a copy of the report.

California Environmental Quality Act

Sierra Club v. County of Fresno (5th App. Dist.; May 27, 2014)

In a very lengthy decision, the court invalidated an Environmental Impact Report (EIR) for master planned community for “active adults” in north central Fresno County on air quality issues, while rejecting all other claims advanced by the Sierra Club. As to air quality, the court found a number of deficiencies. First, even though the EIR (like most EIR’s) quantified the project’s air quality emissions, compared the emissions against the quantitative standards of significance set by the local air district, and concluded that the project would cause significant and unavoidable impacts, the court ruled that the EIR failed to discuss the human health impacts attributable to the exceedance of the significance thresholds. As the court said, “there must be some analysis of the correlation between the project’s emissions and human health impacts.” Next, the court held that certain mitigation measures relating to air quality were inadequate. One measure allowed the lead agency to substitute measures developed after project approval, which the court found improper because no performance criteria were established to evaluate those future measures. Another measure was found invalid because the agency did not quantify the emission reduction associated with the measure even though the agency claimed in the EIR that the measure would “substantially reduce” air quality impacts. Other measures were struck down because they were vague and lacked specificity as to who was responsible for performing and enforcing the measures, as well as when those actions would occur.

On issues not related to air quality, the court ruled in favor of the agency and applicant. Those issues included upholding the agency’s finding of consistency with its general plan relating to traffic, infrastructure and loss of agricultural land, as well as the EIR’s discussion of wastewater impacts.

Click here for a copy of the opinion.

San Francisco Beautiful v. City and County of San Francisco (1st App. Dist.; May 30, 2014)

Joining a string of recent decisions upholding the use of categorical exemptions under CEQA, the court upheld the City of San Francisco’s use of Categorical Exemption 3 in connection with its approval of AT&T’s installation of 726 utility boxes. Most notably, the court confirmed, as recent courts have done, that the “unusual circumstances” exception to CEQA’s categorical exemptions is a two-part test: (1) are there “unusual circumstances” that (2) would cause significant environmental impacts. The court did not decide whether that question is governed by the “fair argument” test or the “substantial evidence” test since it found that the exception did not apply under either standard. The court reached that conclusion based on (a) the installation of the utility boxes was similar in nature to the category of projects contemplated by Categorical Exemption 3 and (b) the physical environment had to be taken into consideration, namely an urban environment in which other utility boxes and infrastructure were housed on city streets.

Click here for a copy of the opinion.

SPRAWLDEF v. San Francisco Bay Conservation and Development Commission (1st App. Dist.; May 28, 2014)

While the trial court had invalidated the EIR for an expansion of an existing landfill, the court of appeal reversed and upheld the EIR. The primary issue focused on the lead agency’s rejection of certain alternatives to the project based on the applicant’s claim of economic infeasibility. The appellate court found it adequate that the applicant presented information showing how a reduced size alternative would reduce gross revenue by a greater percentage than a reduction in operating and capital costs, as well as diminish the overall life of the landfill. The court did not require the applicant to provide information on the rate of return for either the project or the reduced size alternative.

Click here for a copy of the opinion.

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This publication by Alston & Bird LLP provides a summary of significant developments to our clients and friends. It is intended to be informational and does not constitute legal advice regarding any specific situation. This material may also be considered attorney advertising under court rules of certain jurisdictions.

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