Developers of single- and multi-family density bonus projects should submit their applications now

December 5, 2014

By Neill Brower and Sheri Bonstelle

AB2222: Significant Changes to California's Density Bonus Law Occur on January 1, 2015

On January 1, 2015, California Assembly Bill 2222 (Nazarian) goes into effect and modifies the State's Density Bonus Law by establishing significant additional constraints on density bonus projects. Key measures of this bill include:


  • Mandatory replacement of all existing affordable units on a site for the density bonus to apply. Affordable units will include, among others:

  • Affordable units;

  • Rent-stabilized units;

  • Units subject to any City ordinance or policy regarding affordability; and

  • Any units owned or occupied by low- or very-low income households, even if no ordinance or policy applies.

  • Inclusion of affordable units occupied or demolished within the previous five years within the provisions above; and

  • Increasing the term of affordable housing covenants from 30 years to 55 years.

  • AB 2222 exempts your project if you submit an application or the application is processed by December 31, 2014. Therefore, a small window still exists to submit your application for a density bonus project and avoid these new provisions.

    JMBM's experts in the State's existing and proposed density bonus laws are ready to assist you.

    Continue reading "Developers of single- and multi-family density bonus projects should submit their applications now" »

    Land Use Lawyer: Downtown Los Angeles Benefits from Chinese Investment

    November 24, 2014

    By Benjamin M. Reznik

    Downtown Los Angeles' real estate market is riding a wave of success, due in no small part to investment from major firms based in China. This past August, our client Shenzhen Hazens Real Estate Group Co. acquired the 178-room Luxe City Center hotel, located across the street from Staples Center and L.A. Live, and will be adding condominiums and retail space to the site. As noted by the Wall Street Journal's Craig Karmin, this purchase is part of a "flurry of new development and property sales," and comes on the heels of two other major Chinese-based investments in major Downtown Los Angeles properties: the Greenland Group's purchase of the Metropolis site just east of L.A. Live, and Oceanwide Real Estate Group's purchase of the Fig Central site in Downtown's South Park neighborhood.

    It's important to note that Shenzhen Hazens Real Estate Group's investment is for the long-term: just after the purchase of the Luxe site, Shenzhen Hazens and the Luxe Hotel Group signed a five-year contract to continue their partnership and to maximize their opportunities.

    Why is Downtown Los Angeles appealing to large, institutional investors? First, Downtown Los Angeles' status as an urban center with a solid base of residential, retail, and hotel real estate makes it very appealing for investors looking for longer-term investments. Second, unlike San Francisco and New York City, Downtown Los Angeles still has underutilized parcels, such as parking lots, in strategically-located areas that are appealing as sites for future large-scale projects. Third, as a trading hub that is home to one of the world's busiest container shipping ports, Los Angeles is in a prime location in the Pacific Rim to benefit from future global economic growth.

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    CEQA Bill to Protect Native American Cultural Resources Creates New Challenges and Opportunities for Project Applicants

    November 10, 2014

    By Garrett Colli

    On September 25, 2014, Governor Brown signed Assembly Bill 52 ("AB 52"), which modifies the California Environmental Quality Act ("CEQA") to add new protections for Native American cultural resources and enhances the role of Native American tribes in the environmental review process. AB 52 is a significant amendment to CEQA that poses both challenges and opportunities for project applicants. A brief summary of the new law, which takes effect July 1, 2015, is provided below.

    AB 52 Creates a New Category of Potentially-Significant Environmental Impacts

    Under current CEQA law, lead agencies typically evaluate whether a project would impact historic or archaeological resources. Although impacts to Native Americans may be evaluated, AB 52 specifically mandates evaluation of whether a project will impact "tribal cultural resources" which include sites, features, places, cultural landscapes, sacred places, and objects with cultural value to tribes. If the potential for impacts to such resources exists, as with other environmental impacts, increasing levels of CEQA analysis, mitigation measures, and the consideration of alternatives is required. Input from a tribe as to what is culturally significant to that tribe will drive the analysis for a given project. These changes take effect on July 1, 2015.

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    JMBM Named as a 2015 Best Law Firm in Land Use and Zoning Law for Third Year in a Row

    November 5, 2014

    JMBM Named as a 2015 Best Law Firm in Land Use and Zoning Law
    JMBM's Land Use Group Recognized for Third Year in a Row

    Best Law Firms BadgeLOS ANGELES - Jeffer Mangels Butler & Mitchell LLP (JMBM) is pleased to announce it is has been named a 2015 Best Law Firm by U.S. News & World Report / Best Lawyers® and is recognized with a Metropolitan First-Tier Ranking in the area of Land Use and Zoning Law. This is the third year in a row that JMBM's Land Use practice has been included in the first tier for Metropolitan Los Angeles.

    "Our clients are involved in development projects that range from urban mixed use developments and master planned communities, to coastal development and industrial siting. We are also involved in both traditional and renewable energy projects, representing the land use and environmental needs of solar energy companies as well as those in the oil and gas industry," said Benjamin M. Reznik, Chair of JMBM's Government, Land Use, Environment and Energy Department and publisher of the California Land Use Blog.

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    Downtown Los Angeles Real Estate is Taking Off

    October 10, 2014

    by Benjamin M. Reznik

    Once considered an area of Los Angeles that had virtually nothing to do after 5pm, downtown Los Angeles is experiencing a development boom. Sure, part of it is due to the fact that our regional economy is on an upswing. But it's more than that - what we're now seeing is an entire section of Los Angeles undergoing an incredible transformation that's changing the minds of the most hardened skeptics.

    New residential, mixed-use, office, and hotel projects make up nearly 100 active development projects in the downtown area, with 14 projects alone announced since May of 2014, according to the Downtown News. My firm and I are proud to be part of this boom firsthand. JMBM is working on behalf of a major hotel project in the area, which will also include condominiums and retail space, on the site of the current Luxe City Center across from LA Live and Staples Center.

    So, what accounts for downtown Los Angeles' new-found appeal?

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    California Oil and Gas Update: In-depth look at the California BLM's fracking decision

    September 16, 2014

    By Scott Castro

    California Oil and Gas Update:
    In-depth look at the California BLM's fracking decision

    Oil and gas lease sales on public lands set to resume in 2015 based upon independent fracking report

    On August 28, 2014 the California State Office of the Bureau of Land Management (BLM) signaled its intent to resume oil and gas lease sales on Federal lands in the state beginning next year with its announcement of a "comprehensive strategy for the federal oil and gas program in California." This announcement was issued after an independent study commissioned by the BLM found limited environmental effects from hydraulic fracturing (i.e., "fracking") and other enhanced drilling techniques. The BLM's decision lifts a self-imposed BLM moratorium on oil and gas lease sales in California put in place on May 3, 2013, and marks another chapter in the seesaw debate in California and the nation over the use of well stimulation techniques, and raises some important considerations for the oil and gas industry in the state.

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    New Law Allows Mining Operators to Remedy Compliance Issues and Retain AB 3098 List Status

    April 9, 2014

    by Kerry Shapiro and Garrett Colli

    This article was first published in The Conveyor, a publication of the California Construction and Industrial Materials Association.

    Mining companies are subject to myriad requirements under the Surface Mining and Reclamation Act (SMARA) and implementing regulations that can trip up even the most diligent of operators from time to time. When a potential violation occurs, SMARA holds that either the lead agency or the Department of Conservation (read OMR) may initiate enforcement proceedings by issuing a notice of violation (NOV). All too often, the process results in an order to comply issued against the operator, which in turn can jeopardize the operator's AB 3098 List eligibility. Removal from the AB 3098 List forecloses an operator's ability to sell materials to State and/or local agencies, often a major component of many operators' customer bases.

    Enter SB 447. Under this new CalCIMA-driven legislation operators can maintain AB 3098 List eligibility while working to resolve enforcement issues required by an order to comply, and may now also negotiate the terms of, and stipulate to, such an order. These are called stipulated orders to comply.

    Continue reading "New Law Allows Mining Operators to Remedy Compliance Issues and Retain AB 3098 List Status" »

    Clean Water Act Update: EPA and Army Corps Propose Significant Changes to the Definition of "Waters of the United States"

    March 27, 2014

    By Scott Castro

    On March 25, 2014, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers announced the release of their proposed rule clarifying which waters will be governed by the federal water pollution laws. The draft rule - literally years in the making following several notable U.S. Supreme Court decisions - proposes significant changes to the definition of "waters of the United States," which determines which activities are subject to federal jurisdiction under the Clean Water Act. One key element of the proposed rule would automatically subject nearly every natural and artificial stream and wetland that is adjacent to or near a traditional navigable water, interstate water, or territorial sea to federal jurisdiction.

    The agencies, led by the EPA, contend that the rulemaking is needed to clarify ambiguities left in the wake of the U.S. Supreme Court's rulings in U.S. v. Riverside Bayview, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. U.S. While clarification may be needed, the proposed rule would effectively broaden, as a matter of law, federal jurisdiction over many types of streams and wetlands that are currently subject to a case-by-case assessment. Indeed, heavy criticism has been lodged at the automatic expansion of federal jurisdiction, including the potential for jurisdiction to be asserted over water bodies where a "nexus" to navigable waterways or other traditionally regulated bodies of water no longer exists.

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    Bowman v. California Coastal Commission: New California Court of Appeal Decision Holds that a Collateral Attack is no Substitute for Challenging a Condition Imposed upon the Issuance of a Quasi-Judicial Permit through a Direct Appeal

    March 24, 2014

    By Matthew Hinks

    Sometimes in land use law, the most impactful court holdings come from the simplest of cases. That may be the situation with the new California Court of Appeal decision in Bowman v. California Coastal Commission, issued by the court on March 18, 2014.

    Factual Background

    Walton Emmick owned property in San Luis Obispo County. In May 2002, Emmick applied to the County for a Coastal Development Permit ("CDP") to rehabilitate an uninhabitable home on the property. Emmick died in March 2003. The County subsequently issued the CDP ("CDP-1") to Emmick's successor, SDS, subject to a condition that SDS dedicate a lateral access easement for public access along the shorefront portion of the property. SDS did not appeal the condition.

    In December 2004, SDS applied to the County for a second CDP ("CDP-2") for construction of a new barn. The application included a request that the lateral access easement condition of CDP-1 be removed. The County approved CDP-2, including the removal of the coastal access condition. Environmental groups and coastal commissioners appealed the County's decision to the California Coastal Commission. After hearing, the Commission determined that the easement condition contained in CDP-1 is "permanent and binding on the landowner" and conditioned its grant of CDP-2 upon implementation of the easement condition. SDS sued.

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    Property Reserve, Inc. v. Superior Court: California Property Owners Secure Victory in New Eminent Domain Opinion

    March 21, 2014

    By Matthew Hinks

    In a victory for California property owners, the California Court of Appeal, on March 13, 2014, issued a new opinion holding that the State of California's proposed entry onto hundreds of properties in Northern California for geological and environmental testing amounted to a taking under the state constitution. The opinion of the court in Property Reserve, Inc. v. Superior Court may have a profound impact upon major public works projects throughout the state.

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    SB 1270 Proposes Significant California Mining Reform

    March 7, 2014

    by Kerry Shapiro, Esq. and Scott Castro, Esq.

    The recent submittal of significant proposed revisions to California's mining law, the Surface Mining and Reclamation Act ("SMARA"), signals potentially broad-reaching changes to the statute. On February 21, 2014, Senator Fran Pavely (D) introduced SB 1270, a bill proposing to overhaul various sections of SMARA. SB 1270 proposes fundamental changes to SMARA. Click here for a copy of SB 1270.

    If these changes go through, mine owners and operators will be subject to a new regulatory system under which the State will assume a far greater and centralized role in various aspects of SMARA, including mine inspections, enforcement, and establishment of financial assurance mechanisms. The mining industry also faces the likely prospect of increased carrying costs, arising from such proposals as changes to the annual reporting fee structure (proposed at a minimum of $1,000/year on a per-acre basis, and with no maximum cap), to increased ability to appeal decisions relating to the State's "3098" list.

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    Tower Lane Properties v. City of Los Angeles: JMBM Prevails in Published Court of Appeal Opinion Holding that a City's Erroneous Interpretation of an Ordinance At Odds with its Historical Practice is Entitled to No Deference

    March 3, 2014

    By Matthew Hinks

    JMBM has prevailed in the Court of Appeal on behalf of its client in a well-publicized and hotly-contested development project in the City of Los Angeles. The court's published opinion will come as welcome relief to property owners who got caught in the bureaucratic mire when the City chose to "re-interpret" a half-a-century-year-old ordinance dealing with subdivision proposals to apply to all large hillside lots. However, the lasting impact of the decision will be what the court had to say about the deference a municipal authority is entitled to in connection with the interpretation of city ordinances and regulations.

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    Appellate Court Rules in Favor of Saudi Prince in Benedict Canyon Case

    March 3, 2014


    Appellate Court Rules in Favor of Saudi Prince in Benedict Canyon Case
    Rejects arguments that ordinance requires environmental review

    In the much publicized case of a Saudi Prince seeking to build his residential estate, a unanimous three-judge panel of the Court of Appeal published a decision in which it affirmed a lower court judgment and ruled in favor of the Prince and against the City of Los Angeles, Bruce Karsh and Martha Karsh. In Tower Lane Properties v. City of Los Angeles, Bruce Karsh, Martha Karsh, the appellate court rejected the City and Karsh arguments that the residential project must first file a tentative tract map and undergo environmental and discretionary review before issuance of a building permit.

    In reaching its conclusion, the court considered the plain meaning of the subject ordinance (Los Angeles Municipal Code 91.7006.8.2) as well as the City's historical interpretation and application. The court found that the prior owner of the Prince's property has been granted grading permits in 2005 and 2006, and that "...the Karshes obtained grading permits for nine projects on their large hillside property, all without undergoing any environmental review under the Ordinance." The court concluded: "Thus, out of 22 grading permits for properties having hillside grading sites larger than 60,000 square feet, only one required any type of clearance, which was obtained without undergoing any environmental review."

    The court rejected the City's efforts to interpret the Ordinance in such a manner as to require the Saudi Prince to undergo environmental review, concluding: "Because the City cannot point to a consistent and long-standing interpretation, its current interpretation is entitled to no deference."

    Tower Lane's land use attorney, Benjamin M. Reznik of Jeffer Mangels Butler & Mitchell LLP in Los Angeles, stated that his client, who has been the target of allegedly unfair and at times vicious attacks by local residents and the media, feels completely vindicated by the court ruling. "The City continues to single out the Saudi Prince with new requirements never before applied to other property owners all in an effort to deny him the right to a building permit. This unfair treatment has to stop," said Reznik.

    Tower Lane Properties is an entity established by Saudi Prince Abdulazziz ibn Abdulazziz al Saud, who is currently the Deputy Foreign Minister of Saudi Arabia, to develop his family residence in the hills above Benedict Canyon. Next door neighbors Bruce and Martha Karsh have been leading and funding efforts to stop the Saudi Prince.

    New California Court of Appeal Opinion Holds That Supreme Court's Seminal Nollan and Dolan Opinions do Not Apply Where a Permit Condition Does Not Otherwise Constitute a Taking

    February 25, 2014

    By Matthew Hinks

    The well-known "nexus" and "rough proportionality" tests from the United States Supreme Court's opinions in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994) do not apply where a condition to issuance of a building permit does not otherwise constitute a taking. So says the California Court of Appeal in Powell v. County of Humboldt, a new published opinion that could potentially limit the reach of Fifth Amendment takings protections for California property owners.

    Factual Background

    Scott and Lynn Powell own property near the Arcata-Eureka Airport in Humboldt County. The previous owners of the property constructed a covered porch and carport without securing a building permit. In May 2008, the County gave notice to the Powells that unless they secured an "after-the-fact" permit for the porch and carport they would be subject to monetary penalties. The Powells thereafter filed a permit application, which included work to secure the porch foundation and strengthen the structures to bring them into compliance with building codes. The County informed the Powells that, pursuant to a County general plan requirement, the County would require, as a condition to issuance of the permit, that the Powells dedicate an aircraft overflight easement over their property granting the County the right to, among other things, allow flights and noise inherent thereto, and regulate the release of substances, light and electrical emissions, in the airspace over the property.

    Continue reading "New California Court of Appeal Opinion Holds That Supreme Court's Seminal Nollan and Dolan Opinions do Not Apply Where a Permit Condition Does Not Otherwise Constitute a Taking " »

    Foothill Communities Coalition v. County of Orange: New California Court of Appeal Upholds Use of "Spot Zoning" Where a "Substantial Public Need" Exists

    February 25, 2014

    by Matthew Hinks

    Spot zoning - the practice of singling out a parcel of property for either more or less restrictive zoning regulations - does not always constitute an impermissible abuse of discretion according to a new opinion from the California Court of Appeal in Foothill Communities Coalition v. County of Orange that could potentially alter the way spot zoning is viewed in California.

    Continue reading "Foothill Communities Coalition v. County of Orange: New California Court of Appeal Upholds Use of "Spot Zoning" Where a "Substantial Public Need" Exists " »