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Fast Tracking Lawsuits Challenging Large Construction Projects

In an effort to address the State’s alarming unemployment rate, certain large construction projects which implement innovative measures to reduce environmental impacts will be processed under new procedures designed to fast track such projects.

The Jobs and Economic Improvement through Environmental Leadership Act (the “Leadership Act”) was signed by Governor Brown last year and took effect January 1, 2012. The Leadership Act establishes an expedited process for judicial review of lawsuits challenging a project’s compliance with the environmental review required by the California Environmental Quality Act (“CEQA”) for certain large projects.

In order for a project to qualify, the project must (1) be related to the clean energy industry or non-industrial development projects that comply with LEED (Leadership in Energy and Environmental Design) energy-efficiency standards and are located on an infill site; (2) result in a minimum investment of $100,000,000; (3) create high-wage, highly skilled jobs that pay prevailing wage and living wages and provide construction jobs and permanent jobs for Californians; and (4) not result in any net additional emission of greenhouse gases.

In addition, the project applicant must enter into a binding and enforceable agreement that all mitigation measures will be conditions of approval and will be fully enforceable by the lead agency. Further, the project applicant must agree to pay the costs of any hearing challenging the project.

The Governor must certify each project individually for streamlining under the Leadership Act. If the Governor determines that a project qualifies, that determination must be submitted to the Joint Legislative Budget Committee for their review which must make a determination within thirty days of receipt of the determination.

The draft and the final environmental impact report for a project that has been deemed to qualify under the Leadership Act must include a notice that the environmental impact report is subject to the procedures set forth in the Leadership Act. The lead agency processing the project application must prepare the administrative record concurrently with the administrative process and certify the administrative record within five days of its approval.  This ensures that if the project is challenged the administrative record will already be prepared and available.

If the environmental review of a project that qualifies under the Leadership Act is challenged, the action will go directly to the California Court of Appeal. The Court of Appeal will have 175 days to issue its decision. This will greatly decrease the time within which CEQA challenges are typically resolved. Such challenges usually are commenced in the superior courts and may take several months to one year to resolve. This expedited judicial process will allow project applicants to receive a final determination sooner, which will allow construction to commence sooner.

The Leadership Act is scheduled to sunset on January 1, 2015.  The legislation states the purpose of the Leadership Act is to provide unique and unprecedented streamlining benefits for a limited period of time to put people to work as soon as possible.

The full text of the Leadership Act can be accessed at: http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0851-0900/ab_900_bill_20110927_chaptered.html

Carmel & Naccasha has lawyers who are familiar with the California Environmental Quality Act and the new Leadership Act, should you desire any additional information.

Heather K. Whitham

hwhitham@carnaclaw.com

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Development Agreements – A Useful Tool for Developers and Government Agencies (Part 2)

Part 1 of our primer on development agreements discussed the requirements for adoption and execution of development agreements enacted in accordance with the Government code commencing at Section 65864. Part 2 outlines when a development agreement requires environmental review under the California Environmental Quality Act (“CEQA”) and provides a useful tip to consider for those contemplating a development agreement.

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Development Agreements – A Useful Tool for Developers and Government Agencies

A development agreement is an agreement negotiated between a city or county and a developer with regard to a particular development. Development agreements allow a developer to lock into the rules, regulations, and policies governing permitted uses, density, design, improvements, and construction that are in effect at the time the agreement is executed. As such, development agreements are a tool developers may use to gain some certainty regarding the requirements that may be imposed on a proposed development.  This affords a developer the ability to better estimate the scope and cost of a project.

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