• Local Implementation of Senate Bill 35

    The San Francisco Planning Director issued a Bulletin in December 2017 explaining how SB 35 will be implemented locally now that it is effective, as of January 1, 2018. Among other things, the Bulletin includes a new ministerial Planning Code exception process for qualifying 100% affordable housing projects.

    As explained in our prior SB 35 post, the bill creates a temporary (until January 1, 2026) streamlined, ministerial — i.e., no CEQA — approval process for certain housing projects in localities that fall short on regional housing needs assessment (RHNA) production goals or fail to provide specified annual housing production reports. San Francisco has not met its RHNA goal for affordable housing below 80% AMI; therefore, projects proposing at least 50% of the residential units at 80% AMI or below qualify, so long as all other eligibility criteria are met. The Bulletin and our prior SB 35 posts contain more information about that criteria, including compliance with prevailing wage and workforce requirements.

    State Density Bonus projects are treated differently under SB 35, as explained in our prior SB 35 post. When application of the State Density Bonus Law results in an inconsistency with “objective zoning and design review standards,” that inconsistency is excused for purposes of applying SB 35. However, for other projects, a required Planning Code exception (e.g., rear yard exception) would typically disqualify the project from SB 35 processing because that project would not be consistent with all applicable objective zoning standards.

    The Bulletin addresses this issue, at least for certain 100% Affordable Housing Projects (as defined under Planning Code Section 315) that are not State Density Bonus projects under Planning Code Sections 206.5 or 206.6. The Bulletin provides that such projects “will be considered to be consistent with the objective controls of the Planning Code” and thus eligible for SB 35 processing — notwithstanding a requested Planning Code exception(s) — so long as (i) the 100% Affordable Housing Project is otherwise eligible for SB 35 and (ii) the requested Planning Code exception(s) is equal to or less than the Planning Code modifications automatically granted to a 100% Affordable Housing Bonus Project under Planning Code Section 206.4, which relate to rear yard, dwelling unit exposure, off-street loading, off-street parking and open space requirements, provided that certain criteria are met.

    To illustrate, a 100% Affordable Housing Project that meets the applicability criteria under Planning Code Sections 315 and 206.4 could provide common usable open space in an inner courtyard without meeting Planning Code Section 135(g)(2) requirements related to the heights of adjacent walls and still potentially be eligible for SB 35 processing under the Bulletin — even if the project is not a 100% Affordable Housing Bonus Project or a State Density Bonus project.

  • Coblentz Names Three Attorneys to Partnership

    San Francisco, CA January 8, 2018 – Coblentz Patch Duffy & Bass LLP is pleased to announce the election of Fredrick Crombie, Paul Levin, and Peter Wang to the firm’s partnership. These promotions are effective January 1, 2018.

    “The partnership couldn’t be more delighted to add three supremely talented lawyers to our ranks. In three different but all critically important practice areas, Fred, Paul, and Peter represent the best young talent in our industry, ” said Jeffrey G. Knowles,  co-managing partner. “We are proud that they have chosen to make their careers here – and to call them our partners.”

    The 2018 new partners are:

    Fredrick C. Crombie, Litigation.
    Fred Crombie is an experienced litigator in state and federal courts at both the trial and appellate levels. Fred’s practice focuses on complex civil litigation with an emphasis on financial disputes, tax controversy, complex commercial litigation, and trusts and estates litigation. Before he joined the firm, Fred was a Trial Attorney in the Tax Division of the U.S. Department of Justice, where he litigated a variety of tax controversies involving wealthy individuals, consolidated filing groups, insolvent financial institutions, telecommunications carriers and resellers, payroll processing companies, foreign service corporations, and nonresident aliens. Fred earned his J.D., cum laude, from the University of Michigan Law School in 2002. While there, he was an Associate Editor of the University of Michigan Journal For Law Reform.  Fred received his B.A. in political science from the George Washington University in 1999.

    Paul C. Levin, Real Estate.
    Paul Levin’s broad real estate transaction expertise includes purchase and sale, construction and design, leasing, and land use entitlements. Paul represents owners, developers, and users on a range of development projects, with a particular strength in handling all facets of a project from inception to completion. Prior to joining the firm, Paul worked for Edgemoor Real Estate Services, a division of the Clark Construction Group, focusing on real estate development and public-private partnerships, and at a large international law firm. Paul earned his J.D. from the University of Virginia School of Law in 2009, where he was Editor-in-Chief of the Virginia Environmental Law Journal. He graduated cum laude from Yale University in 2005, where he earned his B.A. in political science with an interdisciplinary focus on urban development.

    Peter Wang, Business.
    Peter Wang is a business attorney with a broad range of experience counseling clients through all lifecycles of a business and across different industries. For his company clients, Peter counsels them from formation, through growth stage financings, and eventually, sales and other exits. M&A comprises a significant part of Peter’s practice, on both the buy-side and sell-side, in strategic and financial transactions, and in distressed scenarios. Peter also serves as outside general counsel to his company clients, helping them structure, negotiate and execute various commercial contracts, as well as joint venture arrangements, partnerships and strategic alliances. Additionally, Peter is well-versed in guiding individual, family office and private equity clients through their investment opportunities. Many of Peter’s clients operate in the advertising, consulting, marketing and design industries, giving him unique insight into market trends and practices. Peter earned his J.D. from the University of California, Los Angeles School of Law in 2010, where he was Editor-in-Chief of the UCLA Journal of International Law and Foreign Affairs. He graduated from the University of California, Davis in 2004, where he earned B.A. degrees in Political Science and Classics.

    About Coblentz Patch Duffy & Bass LLP
    Coblentz Patch Duffy & Bass LLP is a premier provider of innovative, results-oriented legal services, specializing in real estate, litigation, business, intellectual property, employment, tax and family wealth. Law360 named Coblentz a California Powerhouse firm in 2017. The National Law Journal named Coblentz to its 2016 Midsize Hot List, the fourth year the firm has made this prestigious nation-wide list. U.S. News & World Report recognizes Coblentz as one of the nation’s top law firms in the Best Law Firm list, with national rankings in 13 practice areas and six prestigious “Tier 1” rankings in the highly competitive San Francisco law firm category. For more information: www.coblentzlaw.com.

    Posted on: January 8, 2018 Tags: Categories: News

  • State Grants Two Year CEQA Streamlining Extension for “Environmental Leadership Projects”

    On October 6, 2017, Governor Brown approved Assembly Bill (AB) 246, extending certain CEQA litigation streamlining provisions under the Jobs and Economic Improvement Through Environmental Leadership Act of 2011 (the Act) for two years. The Governor may now certify projects as eligible for streamlining until January 1, 2020.  Projects that are certified for streamlining have until January 1, 2021 to complete the CEQA process and obtain project approval.

    The Act provides three key litigation streamlining benefits to qualifying projects:

    1. All judicial challenges to an EIR certification or related project approvals, including “any potential appeals,” must be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings (i.e., the administrative record) for the EIR with the court. Pub. Res. Code § 21185.  Absent such streamlining, CEQA litigation can last for two years or more with appeals;
    2. The schedule for preparation of the administrative record is shortened and the record must be prepared by the lead agency, eliminating the petitioner’s ability to elect to prepare it; and
    3. The lead agency must certify the record within 5 days of its approval of the project (rather than 60 days after filing the petition under the normal CEQA process).

    Qualifying Projects:

    Three types of projects can qualify as an Environmental Leadership Project: (1) a clean renewable energy project that generates electricity exclusively through wind or solar; (2) a clean energy manufacturing project; or (3) a “residential, retail, commercial, sports, cultural, entertainment, or recreational use project.”

    Project sponsors must submit a detailed application to the Governor demonstrating that the project meets eligibility criteria for streamlining, such as achieving a LEED gold rating or better and enhancing transportation efficiency metrics. Cal. Pub. Res. Code § 21180  (Guidelines available here).  Upon receipt and review, the Governor has the discretion to certify the project after making findings, including that the project will “result in a minimum investment of $100,000,000 in California upon completion of construction”; generate “high-wage, highly skilled jobs that pay prevailing wages and living wages and provide construction jobs and permanent jobs”; and not produce any net additional greenhouse gas emissions.

  • Environmental Justice Element Now Required for California’s General Plans

    As of January 1, 2018, California’s cities, counties, and charter cities are required to either adopt an Environmental Justice Element in their General Plan or integrate Environmental Justice policies and goals into the elements of their General Plan “upon the adoption or next revision of two or more elements concurrently.” Gov. Code Sec. 65302(h)(2).

    The new Environmental Justice element differs from other General Plan elements because it applies to jurisdictions with “disadvantaged communities” (defined below) and requires those jurisdictions to “[i]dentify objectives and policies to reduce the unique or compounded health risks in disadvantaged communities by means that include, but are not limited to, the reduction of pollution exposure, including the improvement of air quality, and the promotion of public facilities, food access, safe and sanitary homes, and physical activity.” The element also requires jurisdictions to develop policies that promote participation in public decision-making and to prioritize programs that address the needs of disadvantaged communities. Gov. Code Sec. 65302(h)(1)(A), (B), (C).

    Many of the Environmental Justice element’s requirements include topics that are already found in other General Plan elements. For example, the Office of Planning and Research 2017 General Plan Guidelines state that promoting transit-oriented development, locating residential zones away from industrial sites and pollution emitters, and promoting bike and pedestrian connectivity in disadvantaged communities are all policies that satisfy various statutory requirements.

    The statute defines a “disadvantaged community” as (1) an area designated by the California Environmental Protection Agency under Health & Safety Code Sec. 39711 (mapped here) or (2) a low-income area “that is disproportionately affected by environmental pollution and other hazards that can lead to negative health effects, exposure, or environmental degradation.” Gov. Code 65302(h)(4)(A). A “low-income area” has “household incomes at or below 80 percent of the statewide median income . . . ” or is an area designated by the Department of Housing and Community Development. Gov. Code 65302(h)(4)(C); Health & Safety Code 50093.

    California currently has two municipalities that have adopted Environmental Justice Elements: Jurupa Valley and National City. Even though both elements predate the Environmental Justice element statute, and therefore do not clearly meet all its requirements, the Office of Planning and Research General Plan Guidelines cite the policies in both elements extensively and hold them up as models.