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2016 APA California Conference

22 Oct 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the 2016 American Planning Association California Conference in Pasadena, Calif.

BB&K Speakers

Thomas Rice: "CEQA and Noticing: Best Practices for Complying with CEQA, Brown Act, and Other Public Noticing Requirements"
Saturday, Oct. 22
1 - 2:30 p.m.

Jennifer Lynch: “10 Crucial Things Planning School Didn’t Teach You”
Saturday, Oct. 22
1:15 - 2:30 p.m.

Jennifer Lynch: “Quick Hits: Demographics, Housing, CEQA and More”
Monday, Oct. 24
9:45 - 11:15 a.m.

When
Saturday, Oct. 22 - Tuesday, Oct. 25

Where
Pasadena Convention Center
300 E. Green St.
Pasadena, CA 91101

For more information or to register, click here.

California Coastal Act Takes Priority Over Housing Density Laws

11 Oct 2016 00:00:00 -0800

The Second District Court of Appeal recently held that local agencies may be required to grant affordable housing density bonuses unless doing so would violate the Coastal Act, which is designed to ensure that state policies for the coastal zone prevail over local government concerns. While the court recognized the importance of providing affordable housing in California and was careful to note that housing density statutes still apply in the coastal zone, the Coastal Act prevails over such statutes where a project violates its provisions.

In the published opinion Kalnel Gardens, LLC v. City of Los Angeles, the City disapproved a 15-unit residential project in the Venice area allowed to exceed density, height and setback restrictions because it designated two very low income units. The City’s planning department issued various approvals for the project, including a coastal development permit under the California Coastal Act, which governs land use planning for the state’s entire coastal zone. Ultimately, the project was overturned by the planning commission on appeal by neighboring residents because of its incompatibility with aesthetic policies in the Coastal Act rather than density concerns. The City Council denied the developer’s appeal and adopted the commission’s findings.

The developer sued the City for violation of state housing density statutes. The Court of Appeal affirmed the trial court’s determination that such laws are superseded by the Coastal Act. Specifically, it found clear legislative intent in Government Code section 65915 of the Density Bonus Act, which requires a local land use authority to award a density bonus and certain itemized concessions for the setting aside of a certain percentage of housing units for low or very low income residents, to be subordinate to the Coastal Act.

The court further considered Public Resources Code section 30604 of the Coastal Act stating a density bonus granted under the Density Bonus Act, or the Housing Accountability Act in Government Code section 65589.5, may be denied if the local agency issuing a coastal development permit finds it is infeasible to accommodate the project on the site in a manner that is in conformity with the Coastal Act. The Housing Accountability Act prohibits a local agency from rejecting housing developments based on their density without a thorough analysis of the economic, social and environmental effects of the action and findings.

In contrast, the Mello Act, which requires new affordable housing units as part of new developments constructed within the coastal zone unless found infeasible by the local agency under Government Code section 65590, does not state it is superseded by the Coastal Act. The court, however, found an undisputed violation of Coastal Act provisions requiring new development design to protect scenic views and be visually compatible with the character of surrounding areas. Interpreting the Coastal Act in a manner most protective of coastal resources, the court concluded the Mello Act’s affordable housing requirements apply so long as a project is consistent with the Coastal Act’s overall protective provisions.

If you have any questions about this opinion or how it may impact your agency, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

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Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Eminent Domain Case Law and Statutory Updates

07 Oct 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Jim Gilpin will speak on "Eminent Domain Case Law and Statutory Updates" at the San Diego County Bar Association’s Eminent Domain Law Section lunch program. The program will also be webcast live.

Jim will discuss eminent domain in the appellate arena and updates to the eminent domain case law and statutory changes. In addition, he will provide an overview of eminent domain appellate practice and process and a review of appellate decisions over the last two years.

CLE Credit: 1.0 GEN

When
Friday, Oct. 7
Noon - 1 p.m.

Where
SDCBA Conference Center
401 West A St., Suite 120
San Diego, CA 92101

For more information or to register, click here.

BB&K Successful in Post-Redevelopment Case for City Client

28 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP partners Victor L. Wolf, Iris P. Yang and Danielle G. Sakai successfully represented the City of Fontana in challenging the California Department of Finance’s refusal to approve payments owed under a long-standing Owner Participation Agreement following the dismantling of redevelopment agencies. The decision, handed down in August, preserved the City’s ability to receive settlement payments under the OPA amounting to an estimated $50-$70 million over the next 15 years.

The legislation that dissolved redevelopment agencies in 2012 requires successor agencies to periodically file a Recognized Obligation Payment Schedule listing payments that are owed on the obligations that the successor agencies inherited from the dissolved redevelopment agencies. The ROPS must be approved by the successor agency’s oversight board and, ultimately, by the Department of Finance. The DOF disapproved the payments to the developer due under the OPA, preventing the developer from making settlement payments due to the City, on the grounds that the OPA violated public policy and other provisions of the Dissolution Law.

The OPA and its amendments were previously validated by the San Bernardino County Superior Court in four separate judgments pursuant to Code of Civil Procedure Sections 860, et seq. Despite these judgments and despite approving the OPA payments on seven previous ROPS, the DOF suddenly changed course. Following the precedent set in the recent ruling that Victor and Danielle secured in Macy v. City of Fontana 244 Cal.App.4th 1421 (2016), the trial court found that, because the OPA had been validated, it could not be challenged based upon the later-enacted Dissolution Law. As a result, the court held that the OPA constitutes an enforceable obligation and the DOF abused its discretion in refusing to approve the OPA payments.

The case is City of Fontana v. Michael Cohen, Director of Department of Finance, Sacramento County Superior Court Case No. 34-2015-80002138.

BB&K Represents City in Successful Recovery of Redevelopment Loans

19 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Iris Yang represented the City of La Habra in its successful effort to recover millions of dollars in redevelopment financing.

The legislation that dissolved redevelopment agencies in 2012 provided that, in general, agreements between a redevelopment agency and the city (or county) that created it were invalid with a couple of exceptions. One exception was agreements executed in connection with a financing.

To receive property taxes to be able to make payments on their various obligations, successor agencies (the entities created after redevelopment agencies were dissolved) must periodically file a Recognized Obligation Payment Schedule. The ROPS must be approved by the successor agency’s oversight board and, ultimately, by the California Department of Finance. The DOF can overrule an oversight board’s determination.

In 1998, La Habra issued Certificates of Participation to refinance bonds issued several years earlier by the former Redevelopment Agency. The City and Redevelopment Agency made a loan agreement whereby the Agency agreed to make payments to the City that were equal to the payments that the City had to make under the COPs documents.

The Successor Agency listed the loan agreement payments on its various ROPS. DOF approved payments under the loan agreement for several cycles, but then began disapproving them. DOF did not like the fact that the Agency had to pay accrued interest on payments that it was unable to make for a period of time, so it determined that the entire loan agreement was invalid.

The trial court agreed that the penalty provision was a standard provision in any loan agreement, and that DOF had abused its discretion in denying that the loan agreement was a valid enforceable obligation. For example, if one doesn’t make a mortgage payment, interest will accrue on the unpaid amount until both the accrued interest and unpaid amount are fully repaid.

For La Habra, this represents being able to recover about $9 million, which includes about $5.5 million in accrued interest and principal payments that were advanced by the City General Fund to make payments on behalf of the former Redevelopment Agency.

The case is City of La Habra and City of La Habra Successor Agency v. Michael Cohen in his Capacity as Director of the Department of Finance, et al., Sacramento Superior Court Case No. 34-2015-80002208.

MOUs, LPAs, NDAs, and Other Prenups: Can't We All Just Get Along?

16 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Seth Merewitz will serve as a panelist at the Southern California Association of NonProfit Housing Conference. The topic will be "MOUs, LPAs, NDAs, and Other Prenups: Can't We All Just Get Along?" The panelists will provide best practices and offer general suggestions.

When
Friday, Sept. 16
1:30 - 3 p.m.

Where
JW Marriott @ LA Live
900 W. Olympic Blvd.
Los Angeles, CA 90015

For more information or to register, click here.

New and Improved Funding Tools for Projects

14 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Seth Merewitz will serve on a panel discussing "New and Improved Funding Tools For Projects" at The Seminar Group’s one-day conference, Tools for Economic Development in California.

Seth's panel will discuss the effects of new economic and policy shifts in California on cities and developers interested in creating successful revitalization projects, and using new economic development tools to create successful real estate and infrastructure projects that help communities thrive.

When
Wednesday, Sept. 14
10:30 - 11:45 a.m.

Where
Aon Center
707 Wilshire Boulevard
Los Angeles, CA 90017

For more information or to register, click here.

Local Economic Development in California - What Developers and Their Attorneys Need to Know

12 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Seth Merewitz will speak on "Local Economic Development in California - What Developers and Their Attorneys Need to Know" at the Sacramento County Bar Association's Real Property Law Section's September luncheon.

When
Monday, Sept. 12
Noon - 1 p.m.

Where
SCBA Event Center
425 University Ave., Ste. 120
Sacramento, CA 95825

For more information or to register, click here.

BB&K Attorney Joseph E. Coomes, Jr., Pioneer of Redevelopment, Contributes to ULI’s Public-Private Partnerships Report

09 Sep 2016 00:00:00 -0800

For Immediate Release: Sept. 9, 2016
Media Contact: Denise Nix • 213-787-2552 • denise.nix@bbklaw.com

SACRAMENTO, Calif. - Best Best & Krieger LLP attorney Joseph E. Coomes, Jr., who pioneered the successful market-based use of redevelopment in California and other states, is a contributing author and editor of the newly released Urban Land Institute’s “Successful Public-Private Partnerships: From Principles to Practice.”

The report, which was overseen by ULI’s Public-Private Partnership Council and funded by the ULI Foundation, discusses the challenges and opportunities associated with creating successful P3s in today’s economic environment. It builds on ULI research originally published more than a decade ago that identified the core principles essential for effective joint development projects.

Coomes, a frequent and long-time contributor to ULI publications on P3s, redevelopment and development, is credited with creating the development and financing model, among other innovations, that enables major retailers to return to downtowns they once abandoned for the suburbs. He has negotiated some of the largest and most difficult urban mixed-use redevelopment projects in California, including San Francisco’s Yerba Buena Gardens and downtown San Jose’s Silicon Valley Financial Center. He was one of the first to negotiate closures and reuses of military bases, allowing for private developers to work with public agencies to create residential, mixed-use and urban redevelopment projects.

“Joe’s contributions to this important and practical report will be tremendously useful to both public agencies and private investors,” said BB&K Partner Seth Merewitz, chair of the firm’s Public-Private Partnership group.

The report identifies the top challenges to creating successful P3s and the three most common types of P3s. It also provides a toolkit of best practices, which includes several examples of successful projects.

To see the full report, click here.

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Best Best & Krieger LLP is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With 200 attorneys, the law firm has nine offices nationwide, including Indian Wells, Los Angeles, Sacramento, San Diego and Washington, D.C. For more information, visit www.bbklaw.com or follow @BBKlaw on Twitter.

Post-CRA Legal Tools to Bring Retail Centers into the Modern Age

01 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Seth Merewitz will speak on "Post-CRA Legal Tools to Bring Retail Centers into the Modern Age" at the ULI Public Realm Initiative Council meeting.

When
Thursday, Sept. 1
10 a.m. - Noon

Where
KTGY
17911 Von Karman Ave., Suite 200
Irvine, CA 92614

For more information, click here.