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By Neill Brower
The California Supreme court determined the California State University (“CSU”) could not rely solely on earmarked appropriations from the State Legislature for payment of “fair share” mitigation fees the CSU determined necessary for full mitigation of impacts, and the absence of specific legislative appropriations for mitigation fees did not render payment of mitigation fees infeasible. On August 3, 2015, the California Supreme Court filed its decision in City of San Diego v. Bd. of Trustees of the California State University, Case No. S199557, rejecting the notion that the contingent nature of State budgeting excused a failure to commit to enforceable mitigation for off-campus impacts resulting from on-campus development. Further, because the CSU relied on the purported infeasibility of paying mitigation fees as a basis for its Statement of Overriding Considerations, the Statement of Overriding Considerations was unsupported by substantial evidence as to that finding.

In this case, the CSU approved an Environmental Impact Report (“EIR”) to expand the San Diego State University (“SDSU”) campus to accommodate, among other significant components; a hotel, academic research, medical, social, administrative, and conference facilities; faculty and student housing; a 10,000-student enrollment increase; and associated increases in faculty and staff by 2030 school year. Among other impacts, the EIR determined the project would result in significant contributions to cumulative traffic impacts on off-campus roads in the City of San Diego and Caltrans jurisdictions. The EIR determined the specific improvements required to mitigate these impacts and calculated the “fair-share” fees necessary to construct those improvements.
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Los Angeles — The Government, Land Use, Environment & Energy Group of Jeffer Mangels Butler & Mitchell LLP (JMBM) is pleased to welcome Daniel Freedman as an associate in its Los Angeles office.

Mr. Freedman’s experience includes representing and advising clients on matters relating to real estate development, zoning, project entitlements, CEQA, NEPA, federal and state environmental law, and governmental advocacy. He has advised clients working major commercial, residential, and industrial developments, renewable energy, high-speed rail, billboard siting, mining and government contracting. Daniel also has civil litigation experience in both state and federal courts.

“In addition to his impressive legal experience, Daniel’s consulting background in government and public affairs will bring an added dimension of effectiveness for our clients,” said Benjamin M. Reznik, Chair of JMBM’s Government, Land Use, Environment and Energy Department.

Prior to entering the legal profession, Daniel advised government agencies, energy and infrastructure development companies, and environmental organizations on issues relating to environmental policy, government affairs, and political strategy. He also organized and managed regional and statewide advocacy and outreach campaigns on environmental policy and regulatory issues, and clients working on complex projects such as concentrated solar, off-shore liquefied natural gas terminals, waste-to-energy, long-haul transmission, wind energy, carbon capture and sequestration and water infrastructure. Daniel also takes pride in his role as co-founder and board chairman of the Los Angeles Sustainability Collaborative, an executive committee member of the Bet Tzedek New Leadership Council, and volunteer for United in Harmony. Daniel is a graduate of U.C. Berkeley, where he earned his Bachelor of Science in Conservation Resources Studies, and UCLA where he earned his Master’s degree in Urban Planning. He then received his Juris Doctorate from Loyola Law School, Los Angeles.

“I’m excited to join a law firm with such a strong reputation for effective advocacy in the land use and environment arena,” said Freedman. “I look forward to contributing to the success of our clients.”

About JMBM’s Government, Land Use, Environment & Energy Group
JMBM’s land use attorneys represent a wide range of industries, businesses, trade groups and individuals with interests before all levels of local, state and federal government, especially throughout California. Our particular strength is handling all permitting and compliance issues for clients seeking to locate and develop new sites, relocate or expand operations. Projects we have helped move through the approval process include residential developments and apartment complexes, hotels, shopping centers, theaters, office buildings, and a wide range of industrial projects such as mines, energy plants and manufacturing facilities. Jeffer Mangels is recognized as a “2015 Best Law Firm” by U.S. News & World/Best Lawyers®, ranking in the first tier for Land Use and Zoning Law in Metropolitan Los Angeles.

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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
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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by Kerry Shapiro, 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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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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To review the statistical results of the survey, click here.

JMBM’s Real Estate Group recently polled nearly 200 California real estate professionals, gathering their views about the California real estate market and their expectations for 2013.

According to these industry insiders, there is a lot of good news to report. California real estate appears to be in the midst of a sustainable recovery. Survey respondents indicated that capital is more widely available than in recent years, and, for the first time since the housing bubble burst, developers are eager to commence project entitlements.

In terms of the real estate market in general, here is what we learned:

  • 2% of our respondents described themselves as “bullish.”
  • 55% described themselves as “cautious.”
  • 28% believe the market has already recovered; 43% believe the real estate market will achieve sustained recovery by the end of this year; 29% feel it will take at least 2 years to recover.
  • 90% feel that acquiring debt will be easier or the same in 2013, while a similar percentage (89%) believe acquiring equity will be easier or the same.

Over 93% indicated being active in the distressed market. However, nearly 61% noted a material decrease in note sale activity, signaling that loan defaults are down and that large numbers of expiring conduit loans appear not yet to have created a second wave of defaulted note sales.

Movement from distressed properties to stabilized real estate. JMBM represents clients in all facets of real estate, from entitlement through completion, from acquisition to disposition and, according to JMBM Real Estate Partner Seth Weissman, the survey results are consistent with what JMBM’s real estate lawyers are seeing. Weissman’s clients have been particularly active in the distressed market. “However, those transactions are giving way to more traditional ‘market’ deals as more conservative investors, looking to stabilized real estate as a traditional component of their portfolios, are re-entering the market,” said Weissman. “As the overall economy improves and interest rates remain low, we are seeing increased activity in office, multifamily, and industrial projects as well as the upscale single-family market.”

Multifamily. While cautiously optimistic about most sectors, our respondents indicated that multifamily is the most attractive market segment for investment. “Nearly two-thirds of our survey respondents are involved in some way in multifamily housing,” said Benjamin Reznik, Chair of JMBM’s Government, Land Use, Environment and Energy Group. “Demand for quality rentals remains very strong, and developers and lenders are eager to meet that demand.”

Hospitality and retail. A full third of our respondents are involved in the hospitality sector. “These hotel investors and developers see that the stage is set for continuing improvement in hotel industry fundamentals and hotel valuations for at least the next 5 years,” said Jim Butler, Chairman of JMBM’s Global Hospitality Group®. “The market is also experiencing a renaissance of ‘hotel-retail mixed-use’ development, as retail and hotel developers both seek the increased revenue that is generated when the right hotel is added to a shopping center.”

What’s coming online. Niche areas of development and acquisition that our respondents are actively involved in include transit oriented development (18% ), creative office (16%), medical office buildings (13%), senior housing (10%) and student housing (9%). “These unique infill opportunities have gained momentum for developers able to identify strategic development sites and seize upon demographic, transit or employment opportunities in local markets,” said JMBM Real Estate, Land Use and Environmental Partner David Waite.

EIRs and Entitlements. As projects get back underway, respondents are keenly interested in entitlements, but challenged by the process.

  • While nearly 90% of respondents feel 2013 will be a good year to entitle or re-entitle properties, and almost half (49%) reason that zoning authorities will be more lenient due to lingering economic difficulties, we learn more as we delve into specific responses. As one respondent noted, this year will be “a good year because of cycle considerations, not an easy year.” Another noted, “Getting entitlements is hard, and getting harder. Waiting just makes it worse.”
  • The picture on entitlements appears to dovetail with the general market sentiment. As one person said, “Entitlement now is necessary for successful delivery into a robust market.” Another noted that, “Market demand for entitlement projects are high, and barriers to entry are difficult.” A third agreed: “Entitlement is still very hard, so new entitlement will add great value.”
  • A majority also suggest that applicants will be more aggressive with their applications, and 36% think projects will be approved more quickly because the pool of applications has remained small.
  • 50% of participants said they would face the challenge of preparing and circulating a new or updated environmental impact report (EIR) this year. “While the prospects for CEQA reform appeared promising at the end of 2012, expectations for meaningful reform should be muted as a variety of environmental stakeholders and special interests jealously guard their cherished seat at the CEQA table,” said Waite.

Developers continue to be challenged by the entitlement process and realize that success may be buoyed by other factors, including the skills of qualified professionals. As one person wrote, “Applicants who engage high quality land use attorneys and consultants have a much higher chance of getting projects approved.”

Waite agrees. “There are so many good projects in the pipeline that languish simply because they lack knowledgeable advisors willing to thoughtfully and aggressively engage with regulators to achieve positive outcomes,” he said. “As development activity increases, having the right team of professionals in place will be more important than ever.”

We are pleased to share this feedback from our survey participants, and thank our clients and friends for their participation in the survey.

We look forward to assisting you in any way possible and invite you to contact us.

For a list of all JMBM real estate lawyers, click here.

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by Matthew Hinks
Litigating property rights cases in California requires navigating a confusing mélange of sometimes unfamiliar and often times conflicting groups of laws, rules and regulatory agencies.

On October 17, 2012, at the Marriott Los Angeles Downtown Hotel, I will be co-chairing an advanced one-day seminar entitled Litigating Property Rights and leading a distinguished panel of speakers who will help us understand this procedural and substantive thicket.
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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.”
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