Articles Posted in Development

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2020 has been an unprecedented year, and, while there are likely more twists and turns to come before December 31, it is essential to look at how the real estate markets have changed this year and which trends are likely to continue into 2021. The COVID-19 pandemic has impacted nearly every industry, including commercial real estate, and its impact will continue to influence the market and commercial real estate long after the virus has been eradicated.

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The global effect of the Coronavirus disease (COVID-19) is still unknown, and the progress of many large-scale construction projects has been affected by “Shelter in Place” orders, although some states and localities have classified construction projects as “essential.” Just last Friday, New York shut down all construction, with few exceptions.

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On August 13, 2019, in a case that may have an impact on the leasing of federal lands for energy development in the future, the U.S. District Court for the Missoula, Montana Division, issued a ruling in the case of Western Organization of Resource Councils v. Bernhardt, which involves the application of the Federal Advisory Committee Act (FACA) to the Department of the Interior’s Royalty Policy Committee. This advisory committee, initially established in 1995 to provide advice to the Secretary on issues related to the leasing of federal and Indian lands for energy and mineral resources production, is subject to the provisions of FACA, codified at 5 U.S.C. app. Sections 1-16. The plaintiffs challenged the operations of this advisory committee, which was reestablished for two years beginning in 2017, because it allegedly “acts in secret and works to advance the goals of only one interest: the extractive industries that profit from the development of public gas, oil, and coal.” More specifically, the plaintiffs alleged that this advisory committee violated FACA because: (a) it was not properly established as provided in the implementing GSA rules (which are located at 41 CFR Section 102-3); (b) did not provide public notice of its meetings and publicly disseminate its materials; (c) ensure that its membership was fairly balanced; and (d) failed to exercise independent judgment without inappropriate influences from special interests.

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The availability of broadband internet service in multiple tenant environments (MTE) is always a bit of a balancing act between promoting competitive access to tenants and preserving adequate incentives for the initial service providers to deploy, maintain, and upgrade infrastructure. In “FCC Seeks Comment on Accelerating Broadband Deployment in Multi-Tenant Buildings and Preempts Wire-Sharing Requirement in San Francisco Ordinance,” colleague examines the FCC’s recent Notice of Proposed Rulemaking (NPRM) and Declaratory Ruling on the subject.

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LODGING Magazine recently published an article by Pillsbury attorneys Brian Finch and Zack Kessler titled Modernizing Hotel Security Protocols To Protect Against 21st Century Threats. The article discusses the recent bombings and shootings at high-profile hotels in the U.S. and abroad, and how the hospitality industry can benefit from risk management tools available under the Support Anti-Terrorism by Fostering Effective Technologies Act of 2002 (the SAFETY Act), enacted as part of the Homeland Security Act of 2002, Public Law 107-296.

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On February 26, 2019, the Council on Environmental Quality (CEQ) and Office of Management and Budget (OMB) issued a joint memorandum (Memo) clarifying how state transportation departments that have been delegated responsibility under National Environmental Policy Act (NEPA) should implement federal directives to streamline the environmental review and approvals of major infrastructure projects. While the Memo establishes no new affirmative duties on these state agencies, it reflects yet another step in the Trump administration’s continued efforts to ensure collective adherence to its goal of expediting environmental review under NEPA.

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In September 2017, the California legislature and Gov. Jerry Brown enacted Senate Bill 35 (SB 35) to streamline housing development in cities that are not meeting their housing needs. SB 35 is aimed at easing California’s severe housing shortage and affordability crisis but was highly controversial due to concerns about loss of local control over housing development. In the year since SB 35 was enacted, several development projects in the San Francisco Bay Area have invoked SB 35 to bypass local opposition or cumbersome permitting timelines.

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The California Natural Resources Agency (CNRA) recently posted final adopted text for amendments to the CEQA Guidelines.  The result of over five years of development efforts by the Governor’s Office of Planning & Research and CNRA, the amendments are the most comprehensive update to the CEQA Guidelines since 1998.  In “Natural Resources Agency Finalizes Updates to the CEQA Guidelines,” Pillsbury environmental attorneys Norman F. Carlin, Kevin Ashe and Eric Moorman explore the wide range of issues covered in the amendments, including the new Vehicle-Miles-Traveled (VMT) methodology for analyzing transportation impacts; use of regulatory standards as significance thresholds; environmental baselines; and numerous procedural and technical improvements.

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On April 9, 2018, the heads of twelve Federal agencies and departments entered into a Memorandum of Understanding (“MOU”) committing their respective agencies to implement certain concepts and directives from Executive Order (“EO”) 13807,[1] the Trump administration’s effort to streamline environmental review and approval of major infrastructure projects. The signatory agencies are the Departments of the Interior, Agriculture, Commerce, Housing and Urban Development, Transportation, Energy, and Homeland Security, the Environmental Protection Agency, Army Corps of Engineers, Federal Energy Regulatory Commission (“FERC”), Advisory Council on Historic Preservation, as well as the Federal Permitting Improvement Steering Council. These agencies frequently are involved in large-scale, complex infrastructure projects, such as traditional and renewable energy facilities and interstate pipelines; highway and bridge improvements, and transportation projects. While much of the MOU recites requirements previously set forth in the EO, it adds details and deadlines regarding interagency coordination, communication and dispute resolution in order to carry out the EO’s “One Federal Decision” concept and the goal of completing environmental review under the National Environmental Policy Act (“NEPA”) within two years.

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On March 30, the U.S. District Court for the Northern District of California decided the case of Californians for Renewable Energy, et al., v. EPA. The plaintiffs, public interest organizations located in several states, filed a lawsuit against the Environmental Protection Agency (EPA) complaining that EPA failed to act on anything like a timely basis on their administrative complaints. EPA argued that the case should be dismissed because of (a) improper venue; (b) lack of standing; and (c) mootness. The District Court rejected these arguments, and denied EPA’s motion to dismiss and granted the plaintiffs’ and EPA’s motion for summary judgment, each in part. However, the District Court reserved judgment until the parties had an opportunity to meet and confer on the outstanding issues and then advise the court where things stand.

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