California Land Use Blog

by Matthew Hinks

Court judgments finding a regulatory taking are relatively rare. So too are decisions upholding the oft-heard complaint of "spot zoning". In the recent case of Avenida San Juan Partnership v. City of San Clemente, 201 Cal.App.4th 1256 (2011), the court (and the plaintiff) hit the daily double.

by Jon Welner

California's rural landscapes are some of the most productive farmlands in the world. However, some of the qualities that make these lands suitable for farming--sunshine and wide open spaces--also make them attractive for another kind of "farming": solar and wind farms. In recent years, the conflict between farming and renewable energy production has grown more pronounced in California. Central to this conflict is the California Land Conservation Act of 1965, generally known as the Williamson Act (Gov't Code §§ 51200-51297.4).

Ben Reznik

In an attempt to appease a well-heeled group of neighbors in Benedict Canyon who want to stop one particular project, the City of Los Angeles has adopted a new interpretation of its municipal code which will result in more than $1 billion worth of construction being delayed into 2013. This equates to the loss of several thousand jobs this year.

For the particulars, read my op-ed column from this week's Los Angeles Business Journal, reprinted with permission below.

Ben Reznik and Sheri Bonstelle

In a blow to the more than 400 redevelopment agencies in California, the California Supreme Court issued an opinion today upholding the constitutionality of AB1X26, the Dissolution Bill and finding AB1X27, the Pay for Continuation Bill, unconstitutional in the California Redevelopment Agencies v. Matosantos case.

Neill Brower

The Fourth District of the California Court of Appeal recently ruled that the California State University system could not use budgetary uncertainty as a basis for determining the feasibility of mitigation for off-campus impacts. In City of San Diego v. Board of Trustees of the California State University, 2011 DJDAR 17803, filed on December 13, the court upheld a broad-based challenge to the EIR for the San Diego State University Master Plan.

Among other things, the EIR claimed that the University could not feasibly mitigate project-related traffic impacts that would occur off-campus. Consistent with mitigation measures in the EIR, the resolution approving the project and certifying the EIR required the University to request from the State legislature the necessary funding for the University's fair share of off-campus traffic- and transit-related improvements. The resolution also stated that because the University ultimately relied on funding from the State legislature, the University could not guarantee the allocation of sufficient funds or the timing of that allocation, nor could the University guarantee that the local agencies would fund the measures for which those agencies were responsible. Nevertheless, the resolution directed the Chancellor of the University to proceed with the project even if the legislature allocated insufficient funds for mitigation, finding that due to the various funding uncertainties, the off-campus traffic impacts would remain significant and unavoidable, but "are necessarily outweighed by the Statement of Overriding Considerations adopted by [the University]."

Legislative Elimination of Redevelopment Agencies
As part of its 2011 - 2012 budget proposal, the California Governor's Office proposed permanently shutting down local redevelopment agencies to free up $1.7 billion of tax increments to apply to the State's budget deficit. The monies were slated to help fund schools, public safety and transit districts. On June 28, 2011, Governor Jerry Brown signed AB1X26 (the "Dissolution Bill") and AB1X27 (the "Pay for Continuation Bill") into law. The Dissolution Bill would permanently eliminate redevelopment agencies by October 1, 2011. The Pay for Continuation Bill allows redevelopment agencies to continue their existence and operation if the city or county that created the redevelopment agency commits to making annual payments to special funds administered by the county auditor controller by November 1, 2011.

Ensuing Litigation
In response to the passage of the Dissolution Bill and the Pay for Continuation Bill (the "Bills"), on July 15, 2011, the California Redevelopment Association, League of California Cities, City of Union City and the City of San Jose (collectively, "CRA") filed a Petition for Writ of Mandate to the California Supreme Court challenging the Legislature's adoption of the Bills and seeking an immediate stay of the Bills pending the outcome of the litigation.

Neill Brower

A recent court decision upheld the use of multiple scenarios in a traffic analysis in an environmental impact report ("EIR") for a redevelopment project. On November 22, 2011, the Sixth District of the California Court of Appeal certified for publication its decision in Pfeiffer v. City of Sunnyvale City Council ("Pfeiffer"), Case No. H036310, which rejected, among other claims, a challenge to an EIR traffic analysis that used future baseline scenarios to evaluate impacts. The decision highlights and reinforces (1) the necessity of discussing existing conditions in addition to other scenarios that may provide more useful information regarding project impacts; and (2) the importance of substantiating a decision to deviate from existing conditions as the analytical baseline.

Ben Reznik

Why is the City of Los Angeles singling out the Deputy Foreign Minister of Saudi Arabia and forcing him to follow procedures never before imposed on others in order to allow him to build his home in the Benedict Canyon neighborhood of Los Angeles?

That's a question being raised following the recent Vanity Fair article written by Michael Shnayerson, There Goes the Neighborhood, about my client Prince Abdulaziz bin Abdullah bin Abdulaziz al-Saud, the current Deputy Foreign Minister of Saudi Arabia.

For some inexplicable reason, the City of Los Angeles Planning Department is erroneously maintaining and insisting that the Prince's entity developing the project, Tower Lane Properties, Inc., must undergo additional, unnecessary and inapplicable steps in the plan check review process, before the project is cleared for construction. However, other similarly-sized residential projects in Benedict Canyon and nearby neighborhoods were built without being subjected to any such additional review whatsoever. A 35,046 square-foot home on North Carolwood Drive, a 45,891 square-foot home on Bel Air Road, and a 52,503 square-foot home on S. Mapleton Drive, to name a few, were all built without the City of Los Angeles subjecting them to this procedure. It's not even the largest residential project in the area. [SOURCE: City of Los Angeles Department of City Planning, Los Angeles County Assessor's Office]

Ben Reznik

Vanity Fair reporter Michael Shnayerson recently visited the Los Angeles hillside neighborhood of Benedict Canyon to report on a proposed residential project by JMBM client Prince Abdulaziz bin Abdullah bin Abdulaziz al-Saud, Deputy Foreign Minister of Saudi Arabia. Shnayerson's article, There Goes the Neighborhood, includes interviews with some of the property's high profile neighbors and sheds light on what is really driving the opposition.

Tower Lane Properties, Inc., the prince's entity seeking to build the project, has reached out to the surrounding community, heard the community's issues and concerns, and has come forward with new, revised plans that reduce the project's size and significantly reduce project-related truck traffic. Tower Lane Properties, Inc. is committed to maintaining an open and ongoing dialogue with area neighbors to ensure that this residential development on private property can move forward.

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 National First-Tier Ranking and a Metropolitan First-Tier Ranking (Los Angeles) in the area of Land Use and Zoning Law.

"Land use is where the law, politics and community all intersect and navigating a client's project through this intersection can be quite treacherous," said Benjamin M. Reznik, Chair of JMBM's Government, Land Use, Environment and Energy Department. "My colleagues and I are honored to have our work recognized by inclusion in the list of Best Law Firms," he said.

The Best Law Firms designation is based on client and lawyer evaluations, peer review from leading attorneys in their field, and a formal submission process. Lawyers are not required or allowed to pay a fee to be listed. Corporate Counsel magazine has called Best Lawyers "the most respected referral list of attorneys in practice."

Kerry Shapiro

This three-part blog series on California SB 108, a bill which changes provisions in the Surface Mining and Reclamation Act of 1975 (SMARA) pertaining to "idle" mines, is based on a paper I first presented at the CalCIMA Conference in October 2011. If you have not yet read part one which gives background on the Interim Management Plan problem, or part two which discusses what SB 108 does and who it affects, you will want read those first.

SB 108: Unresolved Problems and Ideas to Address Them

1. Application to Active Mines. It is arguably inappropriate to designate as "idle" an operation that is generating returns that seem adequate to support continuing operation and defray ultimate reclamation costs. One solution might be to establish a minimum annual quantity of production as a so-called "safe harbor" to qualify a mine as "active" without regard to changes in historical production level. After all, why should a mine be classified as "idle" simply because it now produces less than it used to? Future legislation could establish a minimum quantity of annual production as a "safe harbor" from classifications of "idle" or "abandoned."

Kerry Shapiro

This three-part blog series on California SB 108, a bill which changes provisions in the Surface Mining and Reclamation Act of 1975 (SMARA) pertaining to "idle" mines, is based on a paper I first presented at the CalCIMA Conference in October 2011. If you have not yet read part one of this three-part series, which gives background on the Interim Management Plan problem, you will want read that first.

SB 108: What it Does

Revised Definition of "Idle": SB 108 addresses only one of the substantive issues discussed above, by changing the current definition of "Idle" in SMARA Section 2727.1 to look at the curtailment of production by more than 90 percent of the maximum annual production within any of the last five years, rather than by more than 90 percent of the previous historical maximum annual production. See SB 108 (a copy is attached to this paper). This avoids some of the record problems discussed above and likely limits the
number of operations falling within the definition of idle.

Additional Renewals of IMPs: Currently SMARA allows for renewal of an IMP for an additional 5-year period. SB 108 clarifies that an IMP may be renewed for additional 5-year periods at the expiration of each 5-year period. SMARA Section 2770(h)(2)(A)

Limited Window to Change Mine Status: Although not a substantive change to address the overall IMP problem, perhaps the most significant and practical benefit of SB 108 is the change of status provision. SB 108 adds new SMARA Section 2777.5, to authorize operators to file amended annual reports for prior years in order to revise mineral production or to change mine status from active to idle. One impact of this is to allow mine operators that may have failed to timely file an IMP in prior years (and thus could be subject to claims by OMR of abandonment notwithstanding resumption of production in subsequent years) to either correct production numbers for prior years (thereby avoiding claims of past idleness and failure to prepare a timely IMP) or to properly identify, i.e., change the status of the mine as having been idle in prior years and allow for the filing of a "retrospective" or "late" IMP (thereby avoiding potential claims of abandonment).

Kerry Shapiro

This three-part blog series on California SB 108, a bill which changes provisions in the Surface Mining and Reclamation Act of 1975 (SMARA) pertaining to "idle" mines, is based on a paper I first presented at the CalCIMA Conference in October 2011.

Background: What is the Interim Management Plan Problem?

SB 108 is designed to address some (but not all) of the problems existing in the current SMARA statutory scheme regulating so-called "idle" mines through the requirement of submitting an interim management plan ("IMP"). Having passed though the legislature without a single no vote, the bill was signed by Governor' Jerry Brown on October 5, 2011 will be effective on January 1, 2012. This presentation identifies the problems with the current regulation of idle mines though IMP requirements, explains SB 108, including its key terms and the limited window for mine operators to take advantages of SB 108's "change of status" provisions, and finally identifies IMP problems not addressed by SB 108 and proposes ideas for addressing such problems.

On July 11, 2011, the Global Hospitality Group® at Jeffer Mangels Butler & Mitchell LLP announced the formation of the Chinese Investment Group™, a dedicated team of hotel and real estate lawyers that provides a gateway for Chinese investment in the United States.

Using experience gained from more than $60 billion in hotel transactions, involving more than 1,300 properties worldwide, together with substantial experience in general real estate transactions, the Group provides Chinese investors with legal and business advice to make prudent and economically successful hotel and real estate investments in the United States.

The Group and its network of reliable professional resources help Chinese investors identify, analyze, evaluate, validate, acquire, finance and manage hotel and real estate opportunities. The Group does not receive any finder's fees, incentive fees, commissions or payments from any promoters, and provides independent advice to Chinese investors regarding all hotel and real estate opportunities. The Group also represents selected hotel, restaurant and other real property owners and developers in structuring investments for foreign investors -- particularly Chinese investors -- using the EB 5 immigrant investor visa program.

Sheri Bonstelle

JMBM's land use attorneys partnered with the Hollywood Chamber of Commerce, including its developer members, to draft amendments to the California Environmental Quality Act ("CEQA") (Public Resources Code, Division 13, Sections 21000 et al) that will provide developers more certainty and protection from frivolous lawsuits that have threatened Hollywood development in a time of economic turmoil. Hollywood Chamber president, Leron Gubler, stated that thousands of construction and permanent jobs were lost in Hollywood, because CEQA lawsuits against eight key projects delayed the developments for one year to eighteen months. As a result, owners decided to put their projects on hold or abandon construction, because either the project lost financing backing or the onset of the recession eliminated the anticipated market. JMBM and the Hollywood Chamber met with State Senator Curren Price in January 2011 to discuss the serious implications of the lawsuits that threaten Hollywood's growth, even when the developer ultimately prevails. Senator Price lauded these amendments as changes that would strengthen CEQA, and agreed to sponsor the bill in the 2011 Senate term.

CEQA is the foundation for environmental law in California, and its primary objective is to require disclosure of any significant environmental effects of proposed projects and mitigation of these effects to the extent feasible. CEQA also provides strict timelines and expedited litigation schedules for cases involving a challenge to such environmental reviews. However, the law allows for lenient extensions by judges, and the one-year time limit to proceed to hearing is often extended to over two years. In recent years the State legislature considered numerous amendments to CEQA to further expedite the litigation schedule and eliminate frivolous claims to allow more certainty for owners and developers in the process. However, the amendments did not ultimately provide a timely resolution of pending lawsuits. As a result, owners decided to put their projects on hold or abandon construction, because either the project lost financing backing or the onset of the recession eliminated the anticipated market.