The Week in Land Law - SB 9 goes to committee, new CEC building standards, Tournament of Roses appeals, Oakland A’s get expedited review for ballpark project, and CDC eviction moratorium lives on
I combined two weeks of action due to a family trip to Tahoe. The lake was as gorgeous as ever, despite the air quality hitting 474 due to several Northern California wildfires. Thankfully our COVID masks helped cut the stench of the smoke. In other less (or more) dystopian news, SB 9 goes to another committee vote this week, the CEC adopted new building standards, the Tournament of Roses filed a notice of appeal, the Oakland A’s will get expedited review for the Howard Terminal ballpark project, and the CDC eviction moratorium lives on (for now).
Legislation
SB 9 – SB 9 is set for hearing on August 19 in the Appropriations Committee of the State Assembly. Read more about the controversial legislation here, here and here.
2022 Building Energy Efficiency Standards - On August 11, the California Energy Commission adopted the 2022 Building Energy Efficiency Standards (Energy Code), set to take effect January 1, 2023. The updated code for newly constructed & renovated buildings aims to support California's move towards carbon neutrality and a clean energy future. You can read the executive summary here.
The 2022 Energy Code focuses on four key areas in newly constructed homes and businesses:
“Encouraging electric heat pump technology for space and water heating, which consumes less energy and produces fewer emissions than gas-powered units.
Establishing electric-ready requirements for single-family homes to position owners to use cleaner electric heating, cooking and electric vehicle (EV) charging options whenever they choose to adopt those technologies.
Expanding solar photovoltaic (PV) system and battery storage standards to make clean energy available onsite and complement the state’s progress toward a 100 percent clean electricity grid.
Strengthening ventilation standards to improve indoor air quality.”
After the CEC adopts these standards, they are submitted to the California Building Standards Commission for approval and inclusion with other changes to the California Building Code.
The California Building Standards Commission Approval Hearing will be held in December 2021
Case Law
Pasadena Tournament of Roses Association v. City of Pasadena, Central District Case No. 2:21-cv-01051
The Pasadena Tournament of Roses Association will appeal the District Court’s decision dismissing their lawsuit in July, which I wrote about in this post. This sad saga involves a seemingly one-sided battle for control over the Rose Bowl name.
Pacific Merchant Shipping Association v. Newsom A162001; filed August 10, 2021. Oakland A’s Howard Terminal stadium project can proceed with expedited CEQA review.
In other sports-related news, a California Court of Appeal has confirmed that the Oakland A’s new baseball stadium project at the Howard Terminal will receive expedited CEQA administrative and judicial review.
Project opponents contended that the stadium project could not take advantage of expedited CEQA review procedures because the project had not been certified by Governor Newsom prior to the January 2020 deadline in AB 900 (streamlining for “leadership projects”). The Court sided with respondents, explaining that the deadlines contained in AB 900 were not intended to be imported into AB 734, which is a special law designed to expedite CEQA challenges for this particular project only.
AB 734 was modeled closely on legislation previously enacted for the Sacramento Kings and other environmental leadership projects by expediting judicial review for the adjudication of legal challenges within 270 days.
Two projects have used expedited judicial review procedures enacted since 2011: the Sacramento Kings arena project under SB 743 (Steinberg); and the Golden State Warriors arena project in San Francisco under AB 900.
CEQA lawsuits were filed against both projects, and the lawsuits, including appeals, were resolved, in favor of the applicants, within the 270-day timeline.
Pursuant to AB 734, codified as Public Resources Code section 21168.6.7, the baseball park and any nonresidential construction in the project must achieve LEED gold certification, and residential construction must achieve either LEED gold certification or “the comparable GreenPoint rating, including meeting sustainability standards for access to quality transit.” The project must also achieve greenhouse gas neutrality, reduce by 20 percent the collective vehicle trips, and offer a “comprehensive package of community benefits.”
My takeaway - legislators love sports (or they recognize that their constituents love sports). If we can give sports stadiums expedited CEQA review, why not give it to everyone?
Other News
CDC Extends Residential Eviction Moratorium Again - On August 3, the CDC extended the residential eviction moratorium once again to October 3, despite shaky legal authority.
The new order temporarily halts “evictions in counties with heightened levels of community transmission in order to respond to recent, unexpected developments in the trajectory of the COVID-19 pandemic, including the rise of the Delta variant. It is intended to target specific areas of the country where cases are rapidly increasing, which likely would be exacerbated by mass evictions.”
While the new order does not rescind the moratorium on most evictions for nonpayment of rent, it states that landlords may challenge tenant declarations and initiate eviction proceedings at any time.
On August 4, the Alabama and Georgia Associations of Realtors filed an emergency motion in the U.S. District Court for the District of Columbia, seeking enforcement of the Supreme Court’s recent order that the CDC could not extend the moratorium without new legislation and lifting the stay.
In their motion, the realtor groups pointed to how the Supreme Court handled the moratorium when it reached the justices at an earlier stage in the litigation in June. At that time, the Supreme Court voted 5-4 to let the moratorium continue, but Justice Kavanaugh indicated that he would not uphold the moratorium if it was extended again past July 31 without a vote of Congress. I wrote about that decision here.
In the Court’s order denying the motion, Judge Friedrich wrote:
“It is true that the Supreme Court’s recent decision in this case strongly suggests that the CDC is unlikely to succeed on the merits. Four Supreme Court Justices voted to vacate the stay, ‘an action which would have been improbable if not impossible had the government, as the stay applicant, . . . made a strong showing that it was likely to succeed on the merits.’ CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 229 (4th Cir. 2020) (Wilkinson, J.). And while Justice Kavanaugh voted to uphold the stay, he squarely concluded ‘the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium.’ Ala. Ass’n of Realtors, 141 S. Ct. at 2320 (Kavanaugh, J., concurring).
…
But the Court’s hands are tied…. The Supreme Court did not issue a controlling opinion in this case, and circuit precedent provides that the votes of dissenting Justices may not be combined with that of a concurring Justice to create binding law…. To lift the stay, the plaintiffs must accordingly seek relief before the D.C. Circuit...”
In a briefing prior to the latest moratorium extension, Biden’s team admitted:
“Unfortunately, the Supreme Court declared on June 29th that the CDC could not grant such an extension without clear and specific congressional authorization. But given the rising urgency of the spread of the Delta variant, the President has asked all of us, including the CDC, to do everything in our power to look for every potential legal authority we can have to prevent evictions.
To date, the CDC Director and her team have been unable to find legal authority, even for a more targeted eviction moratorium that would focus just on counties with higher rates of COVID spread.”
My takeaway - the moratorium will be struck down by the D.C. Court of Appeals or United States Supreme Court barring any further legal gymnastics.
