Legislature Extends, Expands CEQA Streamlining for Major Projects

The Legislature recent passed, and the Governor signed into law, the Jobs and Economic Improvement Through Environmental Leadership Act of 2021 (“2021 Leadership Act”), which would extend the ability for certain qualifying projects to obtain streamlined judicial review for certain projects and would expand the types of projects that qualify.

Previously under the former 2011 Leadership Act, in order for projects to qualify for streamlining provisions, projects had to be of a certain specified type, be located on an infill site, result in $100 million or more in investment in California, meet LEEDs Gold standards, and pay prevailing wage to construction workers, among other requirements.  If a project met the qualifications, it could obtain streamlined judicial review of any challenges to the project.  These streamlining provisions included a requirement that the lead agency prepare the administrative record concurrently with the administrative process, certify the administrative record within 5 days of approval of the project, and that disputes regarding the administrative record be resolved through motions to augment filed concurrently with initial briefs in the trial court.  In addition, the 2011 Leadership Act required, to the extent feasible, that lawsuits filed challenging qualifying projects be resolved within 270 days of the certification of the administrative record, including any appeals.  The 2011 Leadership Act expired by its own terms on January 1, 2021.

The 2021 Leadership Act would reenact the 2011 Leadership Act, with certain changes, and would authorize the Governor, until January 1, 2024, to certify projects that meet the specified requirements to obtain the same streamlining benefits.  New in the 2021 Leadership Act is the inclusion of infill housing developments, which include a minimum 15% of the units dedicated to affordable housing, and which result in investment in California of between $15 million and $100 million.  Except for these housing development projects, the 2021 Leadership Act requires the quantification and mitigation of the impacts of a project from the emissions of greenhouse gases as provided in the statute.  In addition, the 2021 Leadership Act would allow the Governor to certify the project prior to the certification of the final EIR by the lead agency, and would allow the Governor to certify a project alternative to a project as described in the EIR.

Like the 2011 Leadership Act before it, the 2021 Leadership Act will likely apply only to a small range of projects.  The inclusion of more moderately-sized residential projects may, however, increase the number of qualifying projects.  In any event, with the passage of the 2021 Leadership Act, qualifying projects will continue to benefit from streamlined judicial review for another three years.

Update on California’s COVID-19 Emergency Temporary Standards, and OSHA

In a surprising move, last night, June 9, 2021, in a special meeting, the California Occupational Safety and Health Standards Board withdrew the revisions to Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards that it had just approved on June 3. The Standards Board may consider new revisions as soon as its next regular meeting on June 17.

The Standards Board is under pressure to align workplace requirements to the California Department of Public Health’s (“CDPH”) new guidance that as of June 15, face coverings will not be required for fully vaccinated Californians in most public settings. The CDPH guidance, however, provides that face coverings will still be required for everyone in settings such as public transit, K-12 schools, childcare settings, other youth settings, healthcare settings, correctional facilities, homeless shelters, and cooling centers.

Despite the new CDPH guidance, employers must continue to follow the Emergency Temporary Standards, which were first approved in November 2020. As a result, for now, even after June 15, face coverings will still be required for all workers when indoors.

In addition, today, June 10, the federal Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued an emergency rule that sets workplace safety parameters for employers in the health care sector for the duration of the COVID-19 pandemic. It also updated its guidance for mitigating and preventing the spread of COVID-19 for all industries. Information about both developments is located here.

This past week’s events make clear that employers need to continue to stay alert and flexible when it comes to managing COVID-19 issues in the workplace.

Round 2: Cal/OSHA Revises Emergency Temporary Standards for COVID-19 Prevention

June 10 Update: Please click here for the latest news.

While many employers were expecting that the California Division of Occupational Safety and Health (“Cal/OSHA”) would follow the lead of the Center for Disease Control to do away with most masking and physical distancing requirements for vaccinated people, Cal/OSHA is taking a much more conservative approach. While the revised rules relax some restrictions, the revised rules will add new required protections for unvaccinated employees.

On June 3, 2021, the Occupational Safety and Health Standards Board adopted Cal/OSHA’s revised COVID-19 prevention emergency temporary standards (“ETS”). As some will recall, California approved the original Cal/OSHA emergency temporary standards on COVID-19 infection prevention in November 2020. The new ETS is currently under review by the Office of Administrative Law, and if approved by June 13, will go into effect on June 15, 2021.

Employers should note that the revised ETS includes the following requirements, which apply to private employers and public entities:

Respirators:

  • After July 31, 2021, employers must provide respirators for voluntary use to all employees who are not fully vaccinated.
  • Respirators are defined as “a respiratory protection device approved by the National Institute for Occupational Safety and Health (“NIOSH”) to protect the wearer from particulate matter.”
    • Examples of proper respirators under this definition include an N95 filtering face piece respirator.
  • Whenever respirators are provided for voluntary use under the revised ETS, they must be trained and instructed on the following:
    • (1) How to properly wear the respirator provided;
    • (2) How to perform a seal check according to the manufacturer’s instructions each time a respirator is worn, and the fact that facial hair interferes with a seal.
  • Note that while the ETS are silent on how long an N95 mask may be used, most FDA-cleared N95 respirators are labeled as “single-use” disposable devices. Also, the Department of Industrial Relations’ educational materials regarding proper N95 respirator use indicate that masks should be discarded at least at the end of each day.

Physical Distancing:

  • Physical distancing measures will remain in place until at least July 31, 2021.
  • Employers must comply with either of the following for all employees working indoors or at outdoor mega events (a new term, defined as “an event that includes over 10,000 participants or spectators outdoors”):
    • (1) All employees must be separated from other persons by at least six feet, except for employees who are wearing respirators.
    • (2) All employees who are not fully vaccinated must be provided respirators for voluntary use.
  • After July 31, 2021, physical distancing is no longer required (except during outbreaks), but employers must provide all unvaccinated employees with respirators for voluntary use.

Face Coverings:

  • Face coverings are still required of all employees unless any of the following apply:
    • (1) An employee is alone in a room.
    • (2) All persons in a room are fully vaccinated and do not have COVID-19 symptoms.
  • “Fully vaccinated” requires that the employer has documentation showing the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. Vaccines must be FDA approved or have an emergency use authorization from the FDA.
  • Face coverings include surgical mask, a respirator worn voluntarily, and tightly woven fabrics with at least two layers.
  • Employers must provide training and guidance on the importance of face coverings, including the fact that particles containing the virus can travel more than six feet, especially indoors, so physical distancing must be combined with other controls, including face coverings and hand hygiene, to be effective.

Testing

  • Employers must offer free COVID-19 testing to unvaccinated symptomatic workers during paid working time, even if there is no indication that the exposure was work-related.

Exclusion from the Workplace

  • Fully vaccinated workers who test positive for COVID-19 still must be excluded from work for 10 days after the positive test, even if they are asymptomatic.

Takeaways for Employers

  • It is likely that California will adopt the revised ETS next week. Employers should plan to update their COVID-19 prevention plans. If employers do not have one already, one should be prepared, as they are required of all employers.
  • When drafting policies on how and when face covering requirements will remain in place, remember that the U.S. Equal Employment Opportunity Commission considers information about an employee’s COVID-19 vaccination status to be confidential medical information under the Americans with Disabilities Act.
  • Employers should plan for how they will collect and secure vaccination records.
  • If the new rules take effect, Cal/OSHA is likely to issue FAQs and other interpretative guidance to help employers to navigate these issues.

Meyers Nave can assist employers to comply with these new requirements.

Shiraz Tangri Selected as One of the 500 Most Influential People in Los Angeles

Meyers Nave proudly announces that the Los Angeles Business Journal selected Shiraz Tangri, a Principal in Meyers Nave’s statewide Land Use and Environmental Law Practice Group, for a second time to the 2021 edition of LA500 – its list of the 500 Most Influential People in Los Angeles.

As the Journal’s Publisher explained “the 2021 class of the LA500 was faced with challenges over the past year that many may never have to address again. It was a year of difficulty, tragedy, optimism and achievement. It was a year of growth, in so many ways, for our leaders, our communities and our nation. I believe it was a year that our Community of Business ™ can be proud of.”

Court of Appeal Upholds SB 35 and Orders City of Berkeley to Issue Ministerial Approval of Mixed-Use Affordable Housing Project

The Court of Appeal reversed a trial court judgment and issued an order directing the City of Berkeley to grant ministerial approval pursuant to Senate Bill (SB) 35 for a 260-unit mixed-use project. (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277.) This is the first appellate case to address the SB 35 streamlined approval process for housing. While much of the opinion concerned issues unique to the project, the court’s decision confirms the validity of the statute and its limitations on the discretion of local agencies under SB 35.

The case involved the City’s denial of one of the first SB 35 applications in the state. The City’s planning department denied the application for the mixed use development (with 135 apartments and retail) on grounds that SB 35 could not constitutionally be applied to limit the discretion of a charter city; that SB 35 does not apply to mixed-use developments; and that the project did not comply with the requirements for ministerial approval for various reasons, including that the project might require demolition of a historic structure.

The court first addressed whether the project is ineligible for SB 35 approval because it would require the demolition of a “historic structure,” which is an exception to ministerial approval included in the statute. The City had denied the developer’s application for ministerial approval, in part, on the grounds that construction of the project would require the destruction of a tribal shellmound, a local historic landmark that conflicting surveys indicated may encroach onto the project site. While the trial court had deferred to the City’s determination on the issue, the court of appeal reversed, rejecting the City’s interpretation of the term historic “structure” as including the shellmound and finding there was no evidence that the shellmound remnants could reasonably be viewed as a structure.

Next, the court turned to arguments that applying SB 35 to require ministerial approval would amount to an unconstitutional interference with the City’s “home rule” authority over historic preservation and land use issues as a charter city. On this issue, the court explained that, although local historical preservation and land use regulation are traditional municipal affairs, SB 35 was enacted to address a statewide issue—the housing crisis and specifically the lack of affordable housing. Moreover, because the statute’s interference with local governance is narrowed by limiting its application to cities that have failed to meet regional housing obligations and numerous other provisions limiting the scope of eligible projects, the court concluded there is no unconstitutional interference with the City’s home rule authority in this instance.

The court of appeal also rejected the City’s argument that mixed-use projects are ineligible for the ministerial approval process unless the zoning for the site specifically provides that mixed use projects contain two-thirds residential uses. Again disagreeing with the trial court, the court held that the relevant inquiry is whether the project includes at least two-thirds residential uses, reasoning that any interpretation which would further limit the number of eligible projects would be counter to the legislature’s intent to promote affordable housing construction.

Finally, the court rejected the City’s arguments that, even if SB 35 applies, the project is inconsistent with applicable objective zoning standards, namely, the City’s Affordable Housing Mitigation Fee ordinance and traffic standards. First, the court explained that an affordable housing mitigation fee is not the type of “objective planning standard” with which a project can be inconsistent, thus, the ordinance could not provide the City with a valid basis to deny ministerial approval under SB 35. Second, with regard to the alleged failure to comply with traffic standards, the court found that the City failed to provide the developers any specific criteria by which to assess project traffic impacts. Because the statute requires that a city provide applicants with documentation of which standard(s) a project conflicts with and explanation as to why, the court concluded that the City’s assertion the project fails to comply with traffic standards is an insufficient basis for its denial of ministerial approval.

While the opinion ultimately turned on the unique factual circumstances and regulations at issue, the court’s decision emphasizes the Legislature’s intent to promote housing construction and to limit local governments’ ability to impede development in areas where housing is needed most through the application of subjective local regulations. The opinion is likely to embolden the use of SB 35 for new housing projects in California and highlights that local agencies should provide objective development standards and strictly adhere to the procedures and timelines included in SB 35.

Deborah Fox Selected Among the “Top Women Lawyers” in California

Meyers Nave proudly announces that the Daily Journal selected Principal Deborah J. Fox to its 2021 list of “Top Women Lawyers” in California. The list honors women lawyers who have made a difference to their clients, their firms and their profession.

The Daily Journal award article features Deborah’s expertise with First Amendment issues, land use litigation and crisis management. “Her work over the past year has included precedent-setting wins and published decisions in the defense of counties, cities and public officials in a rapidly developing wave of state and federal court challenges to shelter in place orders, public health orders, and reopening plans.”

 

Gallagher v. Newsom – California’s Third District Court of Appeal Upholds Governor Newsom’s Broad Authority to Issue Executive Orders During the COVID-19 Emergency

On May 5, 2021, California’s Third Appellate District struck down a superior court injunction that sought to narrowly limit Governor Newsom’s authority to issue Executive Orders under the Emergency Services Act (“the Act”).  What began as California Assemblymen James Gallagher and Kevin Kiley’s challenge to an Executive Order requiring vote-by-mail ballots to be sent to all California voters evolved into a dispute that challenged the very power of the Governor to issue Executive Orders under emergency authority during the extended COVID-19 pandemic.

The case’s initial focus was Governor Newsom’s Executive Order requiring all voters be provided a vote-by-mail ballot for the November 2020 election, along with other measures intended to ensure voting access during the COVID-19 pandemic.  Assemblymen Gallagher and Kiley filed suit challenging the Executive Order as an unconstitutional exercise of powers reserved for the Legislature.  Sutter County Superior Court Judge Sarah Heckman ruled that the Governor had exceeded his authority under the Act, finding that the Governor had the power to suspend laws but not to make new laws or amend existing laws.  Judge Heckman enjoined the Governor from issuing any executive orders that amend or make statuory law, noting that the Governor had issued at least 50 executive orders under the Act and would likely continue to issue more executive orders relating to the COVID-19 pandemic.

Just one day after the Governor sought a writ challenging the ruling, the Third Appellate District stayed the injunction.  Now, the Court has issued its decision holding that the Emergency Services Act permitted the Governor to amend or make new laws.  The Court went on to explain that Government Code § 8627 authorized the use of “all police powers,” which includes the power to legislate by enacting laws that promote the public health, safety, and welfare.  The Court recognized the Act’s purpose of empowering the Governor to deal with a wide variety of differing emergencies from wildfires to floods to a pandemic.  As well, the Court found no violation of the separation of powers doctrine nor any improper delegation of legislative authority to the Governor.  Rather, the Court concluded that the Act provided guidance in how to implement the Act by requiring that their be a coordinated emergency response.  More crucially, the Act included a key safeguard that any orders pursuant to the Act cease to have effect once the emergency is over, and the Legislature itself has the authority to declare an end to the emergency.

Gallagher offers the strongest support yet for the Governor’s authority to use Executive Orders to address the COVID-19 pandemic.  The petitioners have gone on record that they will be seeking review by the California Supreme Court.

Deborah Fox selected among the “Most Influential Women Lawyers” in Los Angeles

Meyers Nave proudly announces that the Los Angeles Business Journal selected Deborah Fox to its 2021 list of the “Most Influential Women Lawyers” in Los Angeles. “The women covered in these pages have been recognized for exceptional legal skill and achievement across the full spectrum of responsibility, exemplary leadership as evidenced by the highest professional and ethical standards, and for contributions to the Los Angeles community at large. Congratulations to the extraordinary women included this year and thank you for your contributions to the people and businesses of our region.”

The Journal’s description of Deborah’s professional expertise is excerpted below.

Deborah Fox is a principal in the Los Angeles office of Meyers Nave, a member of the firm’s three-person Executive Committee, and the founder and leader of the firm’s Trial & Litigation Practice and First Amendment Practice. The cases Fox handles confirm her reputation as a go-to attorney for high impact complex litigation and crisis management involving controversial matters that are already front-page news or likely to become headlines in the greater Los Angeles region and across the U.S. She is particularly well known for handling cases in new areas of law that define pivotal eras in history that will leave powerful legacies, such as her pioneering COVID-19 litigation that lies at the intersection of law and highly charged considerations for society. She is currently defending counties, cities and public officials in 10 lawsuits throughout California in cases filed by businesses challenging COVID-related restrictions.

Public Agency Law Associate – 2 to 8 years of experience (Sacramento)

ABOUT MEYERS NAVE

Meyers Nave has a reputation in California as a go-to law firm serving as general counsel and city attorney to a variety of public agencies throughout the State.  Our public law attorneys handle our client’s highest profile, most complicated and significant transactions on the cutting edge of law and policy for public agencies in the State.  Attorneys work in multi-disciplinary teams across five offices to help our clients navigate local, state and federal laws and regulations.

Meyers Nave has served California local governments for over 30 years, growing into a state-wide firm with more than 60 attorneys with experience in the wide range of topics that impact our clients.  We provide day-to-day legal advice as well as representation in complex transactions and litigation.

Currently, Meyers Nave serves as city attorney for 16 cities and as general counsel to dozens of counties and special districts.  Many of these relationships have spanned decades—a fact which testifies to the quality of our work and our commitment to clients.

ABOUT THE POSITION

Meyers Nave is looking for a smart, thoughtful and motivated associate attorney with 2-to-8 years of experience to join the Municipal & Special District Law Practice Group in our Sacramento office.  The ideal candidate will have experience working with public agencies, including cities and special districts, and a demonstrated interest in public agency law or public service.

Key qualifications include excellent writing and research skills, superior public speaking ability and the ability to immediately work directly with clients.  Transactional experience is essential.  Prior experience in litigation is also valued.  Relevant professional experience may include, but is not limited to, Brown Act, Public Records Act, Political Reform Act, conflicts of interest and Government Code 1090, code enforcement, insurance, public contracting and procurement, land use and CEQA, transportation, public utilities, real estate and legislative affairs.

Meyers Nave offers a collaborative work environment where associate and of counsel attorneys are an essential part of our team of attorneys working directly with our clients.  Our Sacramento office provides a collegial, team-oriented work environment, with the support, structured training and resources of a mid-size state-wide firm.  We handle a broad variety of challenging issues on current legal and policy issues which offer exciting opportunities for our attorney teams.  Meyers Nave and the attorneys supervising this position are committed advancing the careers of our attorneys and creating client opportunities for them.  We are committed to mentoring and developing attorneys to advance within the firm and legal profession.

HOW TO APPLY

Meyers Nave is an equal opportunity employer and does not discriminate on the basis of any qualified applicant’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military or veteran status or any other category protected by law.

Interested candidates should CLICK HERE and follow the link to apply.  Please submit a cover letter, resume, transcript and one substantive writing sample.

SCOTUS Vacates Second Circuit Decision Finding President Trump’s Prior Twitter Ban Violated the First Amendment

On April 5, 2021 the Supreme Court granted the government’s writ of certiorari and vacated the Second Circuit’s decision in Knight First Amendment Institute v. Trump, 928 F.3d 226 (2nd Cir. 2019) where it found that then-President Trump violated the First Amendment when he blocked users from his Twitter account. The Supreme Court’s unanimous decision issued instructions to the Second Circuit to dismiss the case as moot given the change in Presidential administration. The opinion, (now titled Biden v. Knight First Amendment Institute), was issued without discussion save a concurring opinion by Justice Thomas. In his concurring opinion, Justice Thomas took aim at Twitter’s recent ban on Trump (which happened after the Second Circuit issued its opinion) noting that today’s digital platforms provide unprecedented amounts of speech and unprecedented concentrated power in the hands of a few private parties. While the Supreme Court did not address the issue, Justice Thomas opined that the Court would “soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”

The Supreme Court’s decision to vacate the Second Circuit’s ruling with directions to dismiss based on mootness, does not change the immediate legal landscape. But it is a foreshadowing that the jurisprudence in this arena is still very much evolving. Both the Fourth Circuit’s decision in Davison v. Randall, 912 F.3d 666 (4th Cir. 2019) and the Fifth Circuit’s decision in Robinson v. Hunt County Texas, 921 F.3d 440 (5th Cir. 2019) still stand and in those cases the courts viewed the interactive component of a government official’s social media account as a public forum. With the recent development of Twitter and Facebook more assertively banning or blocking certain posts, however, the courts may now look at the issue through a different lens. This coupled with the legislature’s increased interest in possible updates to Section 230 of the Communications Decency Act which shields social media platforms from liability, serves to highlight the dynamic issues at play with social media and the First Amendment.