Legal Challenges To CEQA And How Environmental Law Can Impact Construction in California

When you consider the intersection of construction and the environment, and what these two topics mean for California, a lot comes to mind: For contractors, it could be solar panel installation, renewable building materials or energy efficient upgrades. In terms of developers, they may be affected to a larger extent by the state’s environmental laws. These laws are aimed at protecting environmental resources, by examining the ecological implications of commercial and residential developments. In California this is accomplished in large part through CEQA, California Environmental Quality Act, which requires that the government, at state and local level to be aware of how construction projects will affect air quality, protected species, resources, etc. and to take action to reduce any harmful effects. CEQA lawsuits can delay projects for quite some time while environmental review is conducted. A flurry of activity has recently arisen around CEQA, of which I will provide a brief overview.

CEQA has received much attention recently. The impact of the law is often felt with larger construction projects, which could often be transportation-oriented, as we’ve seen with the High Speed Rail. The big news around CEQA most recently is Senate Bill 734, which was introduced to extend a previous law passed five years ago. Passage of the bill speeds up environmental litigation for larger construction projects, as it streamlines the manner by which California courts handle legal challenges faced by these developments under CEQA.  Projects, under the law, which is known as the Jobs and Economic Improvement Through Environmental Leadership Act, have to meet certain criteria including economic factors, through a process that this law also established.  The bill, which just passed into law, could ease the environmental review process for future construction projects, in addition to the handful of projects already affected.

Another way in which environmental review has come to the forefront is with regard to Governor Brown’s sense of urgency towards building affordable housing. The Governor’s “by-right” housing proposal required that changes be made to environmental law that would help the developments move faster.  The changes affecting affordable housing construction projects received a varied response, with some urging for a more cautious approach and claiming that the governor’s actions could be setting up future housing development in the state to fall short of the standards to which successful projects are currently held. Proposed legislation, which would have allocated $400 million to affordable housing has now been shelved.

For quite some time now, Californians have been debating the need and extent of reforming CEQA, with arguing that the housing industry suffers due to the protracted process of environmental review mandated by CEQA, and the potential for abuse, while others point to evidence to the contrary. Some believe that the passage of laws such as the aforementioned SB 734 may have potential to initiate changes in how we approach environmental oversight of the construction industry in the future. It’s understandable then that anyone who is a member of the construction or housing industry in California, particularly developers, as well as environmental protection groups, and some others, probably pays close attention to any legal challenges or modifications that can affect CEQA.

What Insight Into Commercial Construction Can We Gain by Looking at the Industry's Assessment of Integrated Project Delivery (IPD)?

Whether we’re talking about real estate, eminent domain or construction, important distinctions exist with commercial property, in terms of use, zoning, legal issues and project size and scope and more. Trends in demographics, technology, environmental concerns and economic fluctuations affect the entire construction industry, but the commercial market has unique challenges. Commercial builders have to move quickly to adapt and keep up with the times, moving in a different space, one where larger trends and subtle influences are important factors to determining how goals should be set and met. While a discussion about something as expansive as the commercial construction industry can seem abstract, industry professionals are aware that a large part of their work is managing risk, which is a very real objective. What tools do commercial developers have to mitigate risk and maximize efficiency? One approach gaining steam in commercial construction is IPD, Integrated Project Delivery. A brief discussion of IPD follows here.

What is IPD?

Integrated Project Delivery (or "IPD") is a project management method that emphasizes collaboration and communication over a more common “oppositional” approach –  IPD has been described as a “shared risk/reward model”.  It’s also an approach that requires participants to come into a project as early as possible, and then stay on, rather than a more traditional approach where a project comes together in a more piecemeal fashion. IPD arose out of a need to implement a project management approach that could be more cost-efficient, less wasteful and a better way to manage risk, during a challenging time for the industry.

What Makes IPD Different?

It shouldn’t come as a surprise to any commercial developer, or anyone who runs a business of any kind, that working relationships are an important factor in the successful resolution of projects, large and small. In the construction industry however, because the investments of time and resources are so large, sharp divisions have traditionally existed between parties in order to control risk on all sides. IPD challenges this approach on the basis that cooperation is a more effective method to meeting goals, including timing and budgetary considerations. While IPD offers a framework for closer collaboration, there is a perceived difference in “natural” business relationships that we are used to seeing arise among participants in a project or working in the same industry. When examining IPD, more of a top down approach, the roles of each party appear less rigid. In the construction industry, most have come to the understanding that the key to a successful project may be found in a course of action that aims to reduce claims and disputes. In terms of carrying out a plan, we’re accustomed to relationships that develop organically as a result of working side-by-side, but while protecting the interests of the parties with traditionally defined roles. IPD, as the name implies, offers a more integrated approach. Integrated Project Delivery seems to fly in the face of how we are used to seeing risk management in construction. There is certainly hesitation among those in the industry that new modes of project management are riskier precisely because roles are less sharply defined.

What are the realistic implications of IPD for the Construction Industry?

As one could infer, IPD is very closely connected to the rise of technology in general, and as it applies to construction and design in particular. The idea that collaboration could be achieved in a meaningful way on a construction project of any size is dependent on easy and quick access to information. The ability for various parties to work towards one goal rather than their own portion of the job is made possible by mobile apps and design programs that were created with the purpose of providing a “big picture” to participants with current data available to all who may need it. As I’ve written previously on this blog, construction is an industry that could take more time than others to adopt new technology, so there are some potential barriers to new developments such as IPD, to the extent that its place in the industry is tied to the acceptance of other technological advancements.  Although IPD does appear to offer the construction industry some important benefits, concerns about drastic changes to familiar systems and methodology loom large. In other words, because of the nature of the industry, construction responds to attempts to increase productivity and lower costs with a measured approach, for fear that the opposite may happen.  As usual, it appears that with IPD, as with most new ideas in construction, we’ll be taking it slow.

California Construction July 2016: One Year After the Berkeley Balcony Collapse + Net Zero Construction Efforts in Silicon Valley

The construction industry isn’t a solid, uniform mass but rather a constantly evolving entity. On this blog, I have tracked technological and environmental trends transforming the industry, as well as, of course, legal updates. The construction industry in California, and in the larger United States is affected by a variety of events and fluctuations. Taking a look at current events, as well as what’s around the bend, is one way construction business owners and others involved with the industry could prepare, where possible, for coming changes. In this post, I’m looking at three things that are shaping the construction industry as we head further into the summer of 2016, with an emphasis on California construction issues.

One development taking shape now originated a year ago, when a balcony collapse in Berkeley led to 6 fatalities.  Criminal charges were not filed in connection with the incident, but the owner, builder and management company of the property were named in a civil lawsuit. Since that incident, government authorities have been taking steps to potentially address any future issues that could arise from similar circumstances. For example, following a determination that wood rot was the cause of the collapse, the City of Berkeley released a report which found that omissions in the Building Code itself could have contributed to the collapse. Immediately after the incident, a bill was introduced that would have required California contractors to officially report certain civil lawsuit settlements. Senate Bill 465 failed to move forward in the California Assembly. Then, last month, the California legislature advanced an amended bill that would mandate contractors to notify the California State License Board (“CSLB”) of felony or work-related criminal convictions .The bill put forward last year caused a stir among California contractors. A trade association representing the interests of contractors argued that a civil litigation settlement may not provide an accurate representation of the quality of work performed.  

Some big news recently came from the other side of the Atlantic, the departure of Great Britain from the European Union, what has been called “Brexit”. Americans immediately began to wonder if economic or other effects of the move would be felt in the United States. The housing market may have responded quickly to this development, which some see as a positive.  The logic is that America could receive a possible financial boost due to Brexit causing real estate investors to move their interests out of England . Others believe that the long term effects may not be so beneficial, as the overall consequences of Britain’s decision could slow down the US economy and therefore, the housing market.

Finally, a growing demand for green construction has taken what could be an important turn in Northern California. In the coming  years, California contractors will be required to meet certain standards in the building of new homes, set forth by the California Energy Commission. In an attempt to create a pathway for meeting these standards, a Canadian firm is now working on a net-zero residential project, the first of its kind. In Silicon Valley, a newly constructed home could mark the beginning of a new trend in residential construction, the use of steel instead of wood as building material. A company called BONE Structure is working on a custom home in Palo Alto that differs from the standard approach to construction in several ways – in addition to the steel frame, the building method consists of the off-site manufacture of custom made components, that are then shipped and put together at the location of the property. The objective of BONE Structure’s model appears to build energy efficient homes, which are also protected from natural events and other types of damage, and allow for less waste during construction, in a way that’s potentially feasible on a larger scale for California builders and homeowners.

May is National Bicycle Safety Month: What Californians Should Know About Sharing the Road

May is National Bicycle Safety Month, an opportunity for anyone concerned with staying safe on the road to focus on what we can do to reduce the risk of bicycle accidents/collisions.  The main goal of the effort is to spread awareness of how everyone who shares the road can work together to make our roads and streets safer.  In California, bicycle safety is of particular interest, for several reasons. Transportation is at the forefront for any of us in urban areas, and many commuters have turned to alternatives that include public systems, ride-share and biking in response to increasingly crowded roads and freeways. Another reason bicycles are an important part of a discussion on road safety in California has to do with climate and environment – A large part of our state allows for nearly year-round biking.

Californians may bike because of environmental concerns or as exercise, in addition to easing their daily commute.  But as the number of bicycles on the road rises, so do the numbers of bicycle related deaths. Those on their bikes, in addition to pedestrians, are more vulnerable than someone behind the wheel of a car. We should always emphasize safety for all drivers, bikers and pedestrians in California  but taking the opportunity to focus on bicycles in particular is an important component of shaping a larger transportation plan for our state.  In honor of Bicycle Safety Month, here is what all Californians should know about being a cyclist or sharing the road with one.

The goal of a safe and efficient transportation network is to streamline traffic in such a way that minimizes risk. Obeying the laws, yielding right of way and taking the responsibility to protect oneself is imperative in order to help ensure safety on the road. In California, each party who uses the road has the responsibility to follow the rules – bicycle riders are required to obey the same traffic laws as drivers, and drivers must share the road with cyclists, like they would with another vehicle – drivers must check for cyclists before turning or merging or any action that requires it to be clear of any motorist or obstruction.  Ensuring bicycle safety also includes an emphasis on certain rules of the road which drivers should always abide by, such as avoiding distraction and never driving under the influence.

For cyclists, there are several important laws that apply to them directly, and obeying these can significantly reduce the risk of injury or death. Some laws regarding operating a bicycle in the California Vehicle Code include wearing a helmet at all times for cyclists under the age of 18, using a bike line or staying as close as possible to the right side when speed is below that of normal traffic and maintaining a brake on any bicycle that is operated on a roadway. A great resource is the California Bicycle Coalition, which summarizes the California law pertinent to cyclists. 

What does the concept of safer streets look like in the near future? Bike safety today depends on several elements working together to help reduce collisions, property damage and/or injuries. Obeying traffic laws and the rules of the road is the best thing we can do as drivers and cyclists. Simultaneously, urban planners and engineers are working to build systems that take into consideration all of the vehicles that share the road. Cars, buses, bicycles and pedestrians all travel in different areas at different speeds, and need clear directions as well as the optimum size and configuration of streets and lanes. An example of the work being done is a current study regarding the treatment of bicycles at intersections that aims to assess the best approach for infrastructure that takes into account all of the factors that influence road safety. One of the main objectives is to inform design that helps reduce the variables which could lead to accidents involving bicycles. Here in Pasadena, we could see the emergence of bicycle detection systems at intersections, a technology which could remove some obstacles to traffic flow and reduce safety risks.

Finally, we should recognize the importance of education and communication. Promoting awareness is a key tool to maximizing safety on our roads. If you have children who bike, make sure they know and adhere to all of the applicable laws, and along those lines, bring up sharing the road when and if you teach your teenager how to drive. If you’re a cyclist, pay attention to certain areas or intersections that are particularly risky because of traffic volume or infrastructure. There are also resources that you can access online that provide safety videos and even help you find a bicycle safety class. If we know what our responsibilities are on the road, and what we can all do to encourage safety, we help contribute to a transportation system that works to reduce injuries for everyone involved.

"Crash" is Replacing "Accident" in Media Reports of Car Collisions: Why it's a Shift with Significance for All Drivers

A victory for victims of vehicular collisions and their family members was achieved this week when the AP Stylebook announced a change to how reporters should describe a car collision, urging them to use the term “crash” rather than “accident”. In a court room or legal document, words have to be painstakingly precise, so it stands to reason that when it comes to life and death issues,  journalists and reporters should also be explicit in order to convey accurate information. Activists behind “Vision Zero” the campaign to erradicate traffic related fatalities, pushed to expunge the word accident , in the event negligence is or could be present, where car crashes are discussed in the media. Those that challenge “accident” as the appropriate word believe that it unnecessarily lifts the onus off of a liable party in a car collision.   A brief exploration of the word “accident” when it comes to traffic collisions  reveals historic, semantic and even psychological roots to the word in our lexicon, but it could become obsolete, and many would be pleased to see it go.

The first recorded car crash happened in 1891 in the state of Ohio. The facts of the incident were that a car with a driver and one passenger drove over a tree root, and then crashed into a hitching post, and, by modern standards most people would describe it as an “accident”, due to the seeming inevitability of the events. The many car crashes that were seen in the early days of automobiles, and their apparent unavoidability, illustrate why “accident” maintains such a tight grip on us when discussing traffic collisions. Other factors at play, such as road and climate conditions, vehicle malfunctions, etc.,  have always been seen as influential components in crashes. Since 1891 however, many of these factors have been improved or accounted for, through engineering and modern technology, and of course the Vehicle Code. While “accident” allows car crashes to continue to appear unavoidable,  in many cases that’s not necessarily true. But now consider the alternative:  admitting that a tragic occurrence that resulted in property damage, inury or even death was foretold by the liable party or parties, and they proceeded with their reckless acts anyway. Some make the argument that we have to participate in some mental gymnastics when we get behind the wheel, because the potential losses that could be caused by something as dangerous as a motor vehicle are so significant.

Because  our lives are subject to many hazards that we would prefer to circumnavigate but seem unavoidable, and also because we would prefer to judge actions on the basis of their intention, are some possible explanations for why a preference arose for the word “accident” to describe a tragic event like a fatal car wreck. There are some who would argue that a bad decision with no ill-intent should not be considered sufficient to supplant the word accident with crash. Although it’s entirely understandable why someone would take this view, that is not how a situation may be viewed in the eyes of the law. When the direct actions of the operator of a motor vehicle lead to severe injury or death, significant penalties apply even without intent. A fatality with the absence of intent is known as manslaughter. A charge of vehicular manslaughter is based on the driver’s negligence and not any intent to cause harm.

Who is liable when a car crash occurs and how is it determined?   

CA Vehicle Code Sec 17150 states:

“Every owner of a motor vehicle is liable and responsible for death or 

injury to person or property resulting from a negligent or wrongful act 

or omission in the operation of the motor vehicle, in the business of the 

owner or otherwise, by any person using or operating the same with the 

permission, express or implied, of the owner." 

It’s difficult to overstate the  significance of a “negligent or wrongful act or omission

in the operation” when it comes to automobile collisions -  in many if not most crashes 

we see negligence by at least one party. Negligence is a legal term that implies that 
there were precautions a driver could have taken, that he or she did not, which would 

have prevented the collision. Therefore, as Vision Zero activists would argue,  if 

negligence is evident, the word “accident” is misleading: it does not accurately describe

a situation where a party or parties failed to meet their obligations as a driver 

and/or owner of a vehicle.

That being said, there can be occasions when an accident is just that – in order to be seen as such however, both drivers must be cleared of any fault, so you can imagine these circumstances are exceedingly rare. These events are what’s known as subject to an Act of G-d, which, in order to prove, must entail that predicting the event would have been impossible.

Ultimately, what the “Crash not Accident” movement illustrates, and what the traffic laws and regulations confirm, is that a sizable responsibility rests with everyone who operates a motor vehicle, to take every possible precaution in order to avoid being involved in a collision. When it comes to being a licensed driver and car-owner, it’s not at all bad practice to subscribe to the  adage “There are no accidents.”

What Obstacles Stand in the Way of the Construction Industry Embracing Emerging Technology?

When it comes of the potential technology holds for transforming the construction industry, an interesting question to ask at this point is: what are the obstacles standing in the way of adopting new and emerging technology on a large scale? Those that are or have been employed in construction know what a unique industry it is. There are employment & labor, safety, management and legal factors that make construction stand apart from other businesses. When it comes to technology, the industry is typically late in making use of new innovations. We’re at a moment now when it seems like change is coming fast and strong, but what does that timeline really look like? Perhaps the industry should be moving quicker to utilize the advancements now available, but realistically practical uses could be much further away. Here are a few reasons why we see change come so slowly to construction, and what stands in the away of technical innovation being embraced by the industry.

One huge argument for why the construction industry is so slow to innovate is risk management. The sheer size and heft of the building industry make change difficult and expensive. Some argue that waiting until there is no longer a choice in the matter is bad for the industry, and by holding out, construction businesses put themselves in a position where they are unprepared for inevitable change. We already see products emerging that could force the industry to take the leap into a new era defined by digital technology. Much more work remains to be done until 3D and virtual reality become commonplace, and depends quite a bit on action to be taken by those inside the industry.  Some glaring concerns on the part of construction industry professionals when it comes to technology were illustrated by a study from Texas A&M published last year, which lists among it’s findings that although cloud-computing is becoming more widespread among contractors, proper security measures are not.

Alongside a need to mitigate risk, is a conservative attitude characteristic of many builders. In an industry where aversion to risk is paramount, seeing technology move through not just the communication and government sector, but entertainment and consumer goods, makes these innovations appear less relevant.  This is a current problem when it comes to Virtual Reality use in building and design, which could be overcome simply when the  technology becomes widely used, according to experts. When technology is allowed to prove itself as an invaluable business tool, that will go a long way to removing some of the stigma associated with some types of technology that may currently be viewed as a novelty. There can also be a tendency in the industry to view each new innovation as indicating a cumbersome overhaul.  At least in terms of Virtual Reality, the technology already exists and could potentially be worked into the professional setting, piece by piece.

Another obstacle to adopting technology in construction is the fact that on every level, the industry requires, at least currently, human labor.  The fact that technology has not yet mechanized the industry is what in effect also keeps further advancement at bay. Tech products must be easy to use by everyone who works in the industry in order to be effective and become a mainstay.

There in another trend is transforming the residential construction industry in particular, aside from technology, and that is demographics. Millenials are entering the housing market, but it’s not an easy transition for anyone. Young people are looking for affordability and convenience, and they also believe that if they invest a large sum of money into something, it has to reflect their needs and core values in very specific ways. For example, they might be more attracted to a smaller living space, as home maintenance activities fall low on their list of priorities.

With unprecedented access to information and resources, the younger sector of the population wants and is able to be more hands on than ever in every aspect of their lives. They want to participate more fully in creating their living environment. Millenials want a home that’s an accurate reflection of who they are. With access to technology and a deeper understanding of design elements, millenials have the potential to work very closely with builders to achieve their desired living goals. As demand for homes increases among Millenials, we could see the need for technology to become more urgent.

Technology has the potential to solve a lot of problems for the construction industry – it could reduce the need for labor at a time when the industry is experiencing a significant shortage, it could lower costs just as the housing market calls for more affordable new homes, it may allow for the customization young home-buyers are seeking. But we won’t know how quickly change is coming to an industry that is defined by tradition and is typically skeptical of new developments. We may need to see some practical applications and tangible results before a real transformation occurs.

5 Things To Know About How Current Technological Advancements Could Influence Driver Safety and Faciliate Autonomous Vehicles

When it comes to the technology we use in our cars and while driving, the goals for car manufacturers and software developers in 2016 are twofold – communication and safety. Although sometimes these seem to be at odds with each other, a lot of current developments are attempting to make that more and more a thing of the past. Distracted driving is not a new phenomenon but has become an increasingly more prevalent concern in the last decade because of cellular and smart phones. The temptation to use your phone behind the wheel is very strong. Some companies are creating products to counter it. But eliminating distraction caused by your mobile device is just one way safety goals can be met. Vehicle manufacturers are exploring new approaches to strengthen a car’s features, like the brakes, and others are making unprecedented strides in safety technology. Here are 5 important things you should know about how technology can potentially make you a safer driver, and what obstacles still must be overcome.

1.  Apps – The LifeSaver Distracted Driving App is an example of mobile technology that modifies your behavior while driving, by impeding your ability to use your phone. The app locks your phone while your car is moving. It’s aimed towards young/inexperienced drivers with features like text notifications to a designated party when the device is unlocked while the vehicle is in motion. However, it could potentially be used by anyone who wants to build better safety habits. The App’s simplicity makes it a useful tool to prevent distracted driving. Including parents or a spouse obstructs the ability to use a phone behind the wheel even further.

2. Vehicles that incorporate the “Internet of Things” – A important implication of driverless cars, whenever they eventually emerge, is that, at least in theory, automating personal vehicles will result in increased safety and a reduction in automobile collisions. Seemingly the first step in that direction is the rise of “smart”  autombiles. These are cars that can easily communicate with each other. Car manufacturers are now striking deals with wireless service providers that will allow their vehicles to be more connected to each other, as well as to the driver’s other devices. As cars are able to more and more “talk” to each other, it lays the foundation for an eventual autonomous vehicle system on our roads.

3. Not So Fast! – Rapid fire advancements in tech are now putting consumer trust in car manufacture’s at risk. Complaints about in-vehicle technology have been rising according to J.D. Power & Associates, and last year it was listed as the most prevalent issue affecting car owners. The reasoning for that increase is that new in-car tech is moving too quickly to ensure it’s viability, and in the mad dash for the next new thing consumers are inheriting features that are rife with problems. Most issues have to do with Bluetooth and GPS, which is an annoyance, but PROBABLY not life-threatening. The implication here is that for truly effective and lasting safety improvements, car companies will have to slow down their pace and focus on one significant  upgrade  at a time.

4. Not long from now, the vehicle itself could be your strongest ally in preventing distracted driving – While there are apps like the aforementioned LifeSaver that could keep you from reaching for your phone while behind the wheel, we could see that distraction-prevention system built in to the car itself in coming years. Manufacturers are testing a technology that could monitor your gaze and notify you if you avert your eyes from the road for an extended period of time.  This could be a harbinger of a possible future where your car and the other technology you own and use could work together much more closely.

5. Automatic Braking and the Driverless Revolution - We can now draw a parallel between safety improvements and companies inching towards autonomous vehicles, as we also see a trend of car manufacturers moving in the same direction as each other on a lot of these innovations. One more example of this is automatic braking systems – 6 years from now 99% of cars on the market in the United States will have one of these, per a commitment made by 20 car manufacturers. According to the U.S. Department of Transportation’s National Highway Traffic Safety Administration, this is an important step on behalf of the auto makers, because if they didn’t come to the decision on their own, and instead waited for regulators to act, the process would take much longer. Manufacturers recognizing the importance of improving their vehicles’ safety features, and the impact that has on the evolution of personal vehicles, illustrates that we are truly experiencing a unique moment in the history of transportation.