JMBM Hotel Developers Forum: Miguel Santana advocates hotel expansion for downtown Los Angeles

November 8, 2013

At the recent Hotel Developers Forum hosted in JMBM's Los Angeles office, LA City Administrative Officer Miguel Santana emphasized the City's commitment to development, particularly of hotels in the downtown area. Santana is the chief financial advisor to the mayor, and his office has direct oversight over the city's budget, labor negotiations, and development incentives for the City.

"We're big advocates for hotel expansion in the City," he said, adding that the City of Los Angeles is willing to work with property owners in a variety of ways to create projects that balance profitability with revenue for the city.

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JMBM Recognized as a 2014 Best Law Firm in Land Use & Zoning Law

November 1, 2013

JMBM Best Law Firm 2014LOS ANGELES - Jeffer Mangels Butler & Mitchell LLP (JMBM) is pleased to announce its land use practice has been selected for inclusion in the U.S. News & World Report / Best Lawyers® list of Best Law Firms. JMBM achieved a number of First-Tier Rankings, including a Metropolitan First-Tier Ranking (Los Angeles) in the area of Land Use and Zoning Law.

"Our clients count on us to successfully guide their development projects through the maze of politics, community concerns, and the law. It's rewarding to deliver hard-won results, and a pleasure to be recognized for it," said Benjamin M. Reznik, Chair of JMBM's Government, Land Use, Environment and Energy Department. "My colleagues at JMBM and I are particularly pleased to be recognized as a Best Law Firm in this area, as it is an honor bestowed by our clients and peers."

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Last-Minute CEQA Bill Brings Significant Changes for Major Infrastructure Projects and Projects within Transit Priority Areas

September 24, 2013

By Garrett Colli

This session's California Environmental Quality Act ("CEQA") reform bill, Senate Bill 743 ("SB 743") packs a potentially large punch, but only for a narrow group of projects. SB 743 is the brainchild of Senator Darrell Steinberg (D-Sacramento), who made CEQA reform a top political priority for 2013. While Senator Steinberg's primary objective was to deliver on a promise to NBA Commissioner David Stern to streamline approval of the Sacramento Kings arena project, SB 743 also provides new rules of general applicability that significantly benefit select projects. First, with regard to projects in transit priority areas, SB 743 reduces the scope of CEQA's impact analysis and may also change the standard traffic evaluation. Second, SB 743 substantially expedites judicial review of so-called "environmental leadership development projects." Thus, while many will be disappointed that SB 743 does not completely overhaul CEQA, certain project proponents will benefit tremendously from the new rules.

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Planned Use of Eminent Domain Powers to Condemn Underwater Mortgages Faces Uncertain Constitutional Outcome

August 13, 2013

By Matthew Hinks

Amidst reports of rising home prices throughout California and fears of a new housing bubble, controversial plans floated by California cities to deal with the lingering effects of the mortgage meltdown by invoking their powers of eminent domain are gaining traction. The City of Richmond in Northern California has begun implementing the plan by sending letters to hundreds of holders of underwater mortgages -- mortgages on homes that are now worth less than the mortgage amount -- offering to purchase the loans at a discount. If the mortgage holders refuse, Richmond's mayor has indicated that the city will move to seize the loans pursuant to its eminent domain powers.

The idea came to national prominence last year when the County of San Bernardino combined with the cities of Ontario and Fontana to form a Joint Powers Authority to publicly examine proposals to assist homeowners within their jurisdictions who are underwater on their mortgages. The JPA publicly flirted with the use of eminent domain to seize underwater mortgages only to abandon the idea after opposition surfaced.

The Los Angeles Times reports that the City of El Monte is considering adopting a similar plan. Other cities across the country and throughout California, including La Puente, near El Monte, and Orange Cove and San Joaquin in Fresno County, are reportedly doing the same.

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California Supreme Court to Local Agencies: Hypothetical Future Baselines in CEQA are not per se Improper in All Cases, but likely are Improper in the Vast Majority

August 5, 2013

by Neill Brower

An August 5, 2013, the California Supreme Court provided some additional flexibility to local agencies in deciding what conditions properly constitute the "baseline" for analysis under the California Environmental Quality Act ("CEQA"). The decision, Neighbors for Smart Rail v. Exposition Metro Line Construction Authority ("Neighbors"), Case No. S202828, narrowly upholds the environmental impact report ("EIR") prepared for phase 2 of the Exposition Corridor Transit Project ("Expo Phase 2") and strikes a middle ground among previous decisions regarding the use of various future baselines. The court ruled, among other things, that although an agency may, in very limited circumstances, evaluate project impacts on the basis of conditions anticipated to exist at the time of certification of an environmental impact report ("EIR") for the project, or on a hypothetical longer-term future baseline, these cases remain the exception, rather than the rule. If using only a hypothetical future conditions and omitting existing conditions as a baseline, an agency must demonstrate that an analysis based on existing conditions "would detract from an EIR's effectiveness as an informational document" by providing an uninformative or misleading analysis. In most cases, an agency must still evaluate the impacts of a project in comparison to existing conditions, though nothing prevents additional analysis of long-term impacts, particularly in the context of a cumulative analysis or a "no project" alternatives analysis.

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Citizens for Ceres v. Superior Court: New California Court of Appeal Opinion Addressing Privilege Issues in Connection with Review Under California's Environmental Quality Act Will Have Lasting Impact on Litigation Involving Land Use Entitlements

July 26, 2013

By Matthew Hinks

Effective environmental review of a real estate development project under the California Environmental Quality Act ("CEQA") often requires that the approving agency and representatives of the developer work together collaboratively to ensure that environmental review is carried out according to the dictates of the law. However, doing so raises the question of the protectability of communications shared between the developer, the CEQA lead agency and their lawyers. Communications between an attorney and his or her client are privileged and are therefore not subject to disclosure as part of the discovery process or the administrative record in CEQA litigation. But what about in situations where communications take place or are shared among a developer, a lead agency and their lawyers?

A new California Court of Appeal opinion -- Citizens for Ceres v. Superior Court -- offers a new answer to that question, which will have significant practical implications for property owners and developers engaged in the CEQA process. However because the opinion appears to conflict with a prior Court of Appeal opinion, it is unclear how the rule announced by the Ceres court will get applied in future litigation. Moreover, there is significant question as to whether the Ceres rule will get applied outside of the CEQA context.

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Good News for Developers and Affordable Housing Advocates: California Court of Appeal Rejects Significant Challenge to State's Density Bonus Law

July 16, 2013

By Matthew Hinks

State density bonus law -- one of many California statutes enacted to implement the state's policy of promoting the construction of affordable housing -- has withstood a significant challenge posed by the County of Napa (the "County") in a new California Court of Appeal opinion, Latinos Unidos del Valle de Napa y Solano v. County of Napa. The Court's opinion is good news, not only for advocates of affordable housing, but also developers of multifamily housing who rely upon the law, which provides valuable development incentives and is a useful and powerful tool in the permitting process.

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State Law Preemption of Local Land Use Regulations and the Supreme Court's Recent Decision Upholding Citywide Ban on Medical Marijuana Dispensaries

June 19, 2013

by Matthew Hinks

The recent spate of court cases dealing with local regulation of medical marijuana dispensaries ("MMDs") offers an interesting illustration of the interplay between federal, state and local laws that regulate the same subject matter, and the impact that dynamic has upon local land use regulation. Each of the three levels of government regulate the use and sale of marijuana, albeit for different purposes and in vastly different ways. Federal law continues to classify marijuana as a Schedule I controlled substance under the Controlled Substance Act. With the passage by voter initiative of the Compassionate Use Act of 1996 ("CUA") and the legislatively-adopted Medical Marijuana Program of 2003 ("MMP"), the State of California chose to remove certain state law obstacles from the ability of qualified patients to obtain and use marijuana for legitimate medical purposes. On the local level, many municipalities have taken steps to either outright ban MMDs or otherwise heavily regulate them through their zoning laws.

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Inclusionary Housing Ordinance Withstands Facial Challenge in New California Court of Appeal Decision; California Building Industry Association v. City of San Jose

June 17, 2013

By Matthew Hinks

The California legislature has declared the availability of housing for every Californian to be a matter of "vital statewide importance." Thus, the legislature has charged local governments with facilitating the provision of housing for all economic segments of the community through the implementation of "housing elements" as part of the community's general plan. The components of those housing elements, including an assessment of housing needs for all income levels, the identification of adequate housing sites, and a program that assists in the development of such housing to meet the needs of low-income households.

San Jose's Inclusionary Housing Ordinance

To implement the state's inclusionary housing policy, the City of San Jose (the "City") passed in 2010 an Inclusionary Housing Ordinance ("IHO"). The IHO requires multi-unit residential developments including at least 20 units to set aside 15 percent of the units for purchase at a below-market rate to households earning no more than 110 percent of the area median income. Alternatively, the developer could comply with the IHO by paying an in-lieu fee not to exceed the difference between the price of a market rate and affordable housing unit or dedicating land.

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Developers' Rights Alert: California Property Owner Prevails in Significant Regulatory Takings Case

June 7, 2013

By Matthew Hinks

Chief Justice John Roberts recently observed during oral argument on the Supreme Court's latest foray into the field of regulatory takings that the government does not lose a Penn Central case very often. A new opinion from the California Court of Appeal in Lockaway Storage v. County of Alameda represents one of those rare instances. But more than offering just an isolated example of a property owner victory in such cases, the court's opinion in the Lockaway case delivers a significant blow to a major obstacle that has stood in the way for developers alleging damages caused by project delays -- the California Supreme Court's seminal decision in Landgate v. California Coastal Commission.

Facts of Complaint

In May 2000, Lockaway Storage ("Lockaway") purchased an 8.45-acre parcel of land in an unincorporated area of Alameda County. The property was zoned for agricultural uses with an alternative conditional use for "open storage of recreational vehicles and boats". Prior to Lockaway's purchase of the property, the County had issued a Conditional Use Permit ("CUP") authorizing an rv storage facility, which would expire if it was not implemented by September 22, 2002.

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CEQA Claimants Be Warned: New California Court of Appeal Opinion Holds That CEQA Filing Deadlines are Mandatory and Not Subject to Extension for Good Cause

April 25, 2013

By Matthew Hinks

Statues of limitations issues frequently loom large in litigation under the California Environmental Quality Act ("CEQA") and can confound litigants and their counsel. Depending on the challenge being made and the context in which it is made, claims brought under CEQA may be subject to a range of limitations periods -- from 30 to 180 days. Moreover, the date on which a CEQA claim accrues is not always clear. For example, an agency making a CEQA decision may file a Notice of Determination, which generally triggers the shorter CEQA limitations periods, but parties with an interest in that same decision may not always get notice of the filing. For these reasons, among others, calculating the correct statute of limitations period applicable to a CEQA claim can be risky business. A new opinion from the California court of appeal, Alliance for the Protection of the Auburn Community Environment v. County of Placer, raises the stakes even higher and holds that a party may not obtain relief from a late filing by reason of mistake, inadvertence, surprise, or excusable neglect.

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Endangered Species Act to Trump Mining Claims: Supreme Court Lets Stand Ninth Circuit Ruling in Karuk Tribe of California v. U.S. Forest Service

March 22, 2013

By Scott Castro

On March 19, 2013, U.S. Supreme Court declined to hear an appeal of the ruling in Karuk Tribe of California v. U.S. Forest Service, a Ninth Circuit en banc decision broadly construing the scope of the Endangered Species Act (ESA) consultation requirements.

By denying the petition for certiorari brought by recreational miners and other interests, the Supreme Court lets stand the Ninth Circuit's ruling, which broadens the scope of when consultation is required under Section 7 of the ESA to include instances where an agency makes a decision not to regulate an activity.

For the mining industry and other operations on U.S. Forest Service lands, the Supreme Court's action makes clear that low-impact mining operations that could previously operate pursuant to notices to the Forest Service now are confronted with the likely need to undergo lengthy and expensive consultation under the ESA. For the regulated community in general, the implications are broader, because reach of the ESA's consultation requirement is effectively expanded to apply to instances of agency "inaction."

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Save Cuyama Valley v. County of Santa Barbara: JMBM Scores Significant Victory in CEQA Ruling on Significance Thresholds and Mitigation Measures

February 15, 2013

By Scott Castro

In a decision published on February 8, 2013, the Second Appellate District ruled in favor of the JMBM client Troesh Materials, LLC in a challenge brought pursuant to the California Environmental Quality Act ("CEQA") against the County of Santa Barbara's approval of Troesh's Diamond Rock Sand and Gravel Mine and Processing Facility (the "Diamond Rock Mine"). The decision, Save Cuyama Valley v. County of Santa Barbara (Case No. B233318), ruled on several important grounds under CEQA, and is further notable because it upholds the County's approval of an in-stream mining project within the bed of the Cuyama River. Troesh Materials, LLC was represented before the trial court and court of appeal by JMBM partner Scott N. Castro. The underlying County approval effort for Troesh's Diamond Rock Mine was led by JMBM partner Kerry Shapiro, leader of the Firm's land use group in San Francisco and co-chair of the Firm's Building Materials Group.

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Ninth Circuit Ruling in Center for Biological Diversity v. Salazar Creates Tension Between Federal and California Law Regarding Idle Mines and Interim Management Plans

February 15, 2013

by Kerry Shapiro

As reported earlier this week in this blog, the recent Ninth Circuit Court of Appeals decision in Center for Biological Diversity v. Salazar allowed a uranium mine on federal lands in Arizona to re-open after being idled for seventeen years absent any new federal approval or supplemental environmental review. This decision is notable on its own, but carries added significance in California, where it now highlights a potential conflict between federal and state law regarding idle mines and the resumption of mining operations at such mines.

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Ninth Circuit Upholds BLM's Decision to Allow Uranium Mine -- Idled for Seventeen Years -- to Reopen Without a New Plan of Operations or Supplemental NEPA Review

February 11, 2013

By Scott Castro

On February 4, 2013, a Ninth Circuit Court of Appeals panel issued a ruling in Center for Biological Diversity v. Salazar holding that a mine idled for seventeen years could restart operations without obtaining a new approval from the Bureau of Land Management (BLM) or conducting additional environmental review. The Ninth Circuit's ruling is notable because it clarifies that:

(1) The need for new ancillary permits for an already-approved federal project -- even after being idle for seventeen years -- does not create a "major Federal action" requiring supplemental environmental analysis under the National Environmental Policy Act (NEPA);

(2) A mine may be idle for extended periods of time if the mine is maintained in accordance with an interim management plan set forth in a plan of operations; and

(3) There is no provision under the BLM's surface management regulations (43 CFR subpart 3809) requiring a new plan of operations to restart mining operations following a period of idleness.

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