2013 real estate law update

Real Estate Development Law UpdateReal Estate Development Law Update

Presented by:John CondasBill DevineAllen Matkins Leck Gamble Mallory & Natsis LLP

February 27, 2013

02.2013 | © Copyright, 2013 Allen Matkins Leck Gamble Mallory & Natsis LLP. All Rights Reserved. The information contained herein does not constitute a legal opinion and should not be relied upon by the reader as legal advice or be regarded as a substitute for legal advice.

O iOverview 2

• Chapter 4 of RDA Dissolution

• SB 375 Update• SB 375 Update

• Climate Change Impacts on Regional and Local R l tiRegulations

• CEQA Update

• Other Noteworthy Updates

R f h H i P d i T l• Refresher on Housing Production Tools


RIP RDARIP, RDAs 3

• Chapter 1: AB 26, AB 27

Ch t 2 M t t• Chapter 2: Matosantos

• Chapter 3: “Clean Up” via AB 1484p p

• Chapter 4: After AB 1484


RIP RDA

Chapter 1

RIP, RDAs (cont.) 4

Chapter 1• AB 1X 26 and 27 were Approved in June 2011

f• AB 26: Winding down and Dissolution of RDAs

• AB 27: RDAs could Continue Operating if they “Paid to Play”

Chapter 2• California Redevelopment Association and others Sued

• In California Redevelopment Association v. Matosantos, the California Supreme Court Upheld AB 26 and Invalidated AB 27AB 27

• Due to the Litigation, AB 26 Deadlines were Delayed


RIP RDA

Chapter 3

RIP, RDAs (cont.) 5

Chapter 3• AB 1484 “Clean Up”

CChapter 4• Real World Applications and Future of Redevelopment


Ch t 3 AB 1484 “Cl U ”Chapter 3 - AB 1484 “Clean Up” 6

• AB 1484 to “Clean Up” AB 26

• Successor Agency to Undertake Due Diligence, Forensic Accounting of RDA to Determine “Unobligated Balances”

• Unobligated Balances to be Transferred to the “Taxing Entities”

• Due Diligence Report must be sent to Oversight Board, County Auditor Controller, Controller and Department of Finance by December 15 2012 (October 1 2012 for Low and ModerateDecember 15, 2012 (October 1, 2012 for Low and Moderate Income Housing Fund)

• Oversight Board to Review and Take Action on Due Diligence g gReport by January 15, 2013 (October 15, 2012 for Low and Moderate Income Housing Fund)


Ch t 3 AB 1484 “Cl U ”Chapter 3 - AB 1484 “Clean Up” 7

• Dept. of Finance to Approve Due Diligence Report by April 1, 2013 (November 9, 2012 for Low and Moderate Income Housing Fund)

• Once Successor Agency Pays the Unobligated Balances, then DOF i “Fi di f C l ti ”DOF issues a “Finding of Completion”

• After Finding of Completion issued, all Former RDA Property is Transferred to the “Community Redevelopment Property TrustTransferred to the Community Redevelopment Property Trust Fund”


Ch t 3 AB 1484 “Cl U ”

Withi 6 M th f R i t f th Fi di f C l ti

Chapter 3 - AB 1484 “Clean Up” 8

• Within 6 Months of Receipt of the Finding of Completion, Successor Agency Shall Prepare a “Long Range Property Management Plan”g

• Management Plan must be Submitted to DOF for Approval no later than 6 Months Following Issuance of the Finding of Completion

• Management Plan Shall Include: An Inventory of all Properties

Address the Use or Disposition of all Properties in the Trust

Proceeds of Disposition Sent to “Taxing Entities”


Ch t 3 R lt f DOF R iChapter 3 - Results of DOF Review 9

• DOF Denied Funding to Numerous Projects, Based Upon Appeals of 240 of the 400 Successor AgenciesAppeals of 240 of the 400 Successor Agencies

• Oxnard Lost $15.3 Million Loan

• Santa Clara Suing Based Upon 49ers Stadium• Santa Clara Suing Based Upon 49ers Stadium


Ch t 3 AB 1484 “Cl U ”

56 lawsuits filed

Chapter 3 - AB 1484 “Clean Up” 10

• 56 lawsuits filed

• 18 lawsuits filed in December 2012

f• 5 lawsuits filed in January 2013

• 3 lawsuits on appeal


Ch t 4 R l W ld A li ti

• Developer – RDA in Negotiation but no Agreement by June 28

Chapter 4 - Real World Applications 11

• Developer – RDA in Negotiation, but no Agreement by June 28, 2011 Unlikely to be considered an “Enforceable Obligation”

• Developer – RDA Entered into an Exclusive Negotiation Agreement

P ibl “E f bl Obli ti ” if ENA h d l ifi it

• Existing Agreement between Developer and RDA

Possibly an “Enforceable Obligation” if ENA has deal specificity

Enforceable obligation, but subject to review by Oversight Board, Auditor Controller, State Department of Finance, or State Controller

Insure Agreement is on ROPSInsure Agreement is on ROPS


Ch t 4 F t f R d l t

U lik l th t G B ill ll iti d ti t

Chapter 4 - Future of Redevelopment 12

• Unlikely that Governor Brown will allow cities and counties to divert new redevelopment-generated revenues from the taxing entities

• Therefore, no more tax increment funding• Possible Use of Eminent Domain?• CFDs• Infrastructure Financing Districts


SB 375 U d tSB 375 Update 13

• GHG Reduction Targets

S t i bl C iti St t• Sustainable Communities Strategy

• SANDAG Litigationg

• SCAG SCS


SCS C t tSCS Content 14

• ID locations of uses, densities and intensities within region

• Areas to house population over 20 year period• Areas to house 8 year RHNA projectionsAreas to house 8 year RHNA projections• ID transportation networks to serve region• Information re resource and agriculture land• Forecast of development pattern• Quantify GHG reductions


SANDAG Liti tiSANDAG Litigation 15

• Scope and purpose of SB 375

AG' ff t t i l d E O S 3005• AG's effort to include E.O. S-3005

• Role of CEQA v. Role of MPO'sQ

• State v. local control of land use authority


SCAG' SCSSCAG's SCS 16

• Land Use Growth Patterns

T t ti N t k• Transportation Network

• Transportation Demand Managementp g

• Transportation Systems Management


Regional and Local Climate ChangeRegional and Local Climate Change Regulatory Trends

17

• SCAQMD Advocacy– Truck Trip StudyTruck Trip Study

• Background: ITE Land Use Code 152 for “High Cube” Warehouses and Logistics FacilitiesCube Warehouses and Logistics Facilities

• Land Use Code 152 results in lower ADTs and lower AM and PM peak hour truck trips resulting inlower AM and PM peak hour truck trips, resulting in o Less transportation impacts

Concomitant decrease in air quality ando Concomitant decrease in air quality and greenhouse gas impacts



18

• AQMD Responses:– Preparation of a “White Paper”, to attempt toPreparation of a White Paper , to attempt to

discredit Land Use Code 152• White Paper based upon incorrect information andWhite Paper based upon incorrect information and

insistence that Land Use Code 152 assumptions be changed

– Preparation of a truck trip study, to attempt to discredit Land Use Code 152



19

• PR 2301 ResuscitatedSimilar to San Joaquin APCD Program– Similar to San Joaquin, APCD Program

– Payment of Air Quality Impact Fee; payment required or significant unavoidable impactrequired or significant unavoidable impact



20

– Local TrendsCounty of San Bernardino Greenhouse Gas– County of San Bernardino Greenhouse Gas Reduction PlanCity of Chino Climate Action Plan– City of Chino Climate Action Plan

– CEQA Litigation


CEQA U d tCEQA Update 21

• CEQA Reform

SB 226 G id li• SB 226 Guidelines

• CEQA and SB 50Q

• Exemptions

• Baseline


CEQA R f

SB 317 (R bi ) SB 731 (St i b )

CEQA Reform 22

• SB 317 (Rubio) – SB 731 (Steinberg)

• Use of existing environmental lawsg

• Consistency with Plan and Plan EIR

• Consistency with SB 375

• New Significance Thresholds

• Litigation ReformsLitigation Reforms


SB 226 G id liSB 226 Guidelines 23

• Located in urban area

S ti f f t d d• Satisfy performance standards

• Consistency with SCS or APSy

• Falls within scope of Plan prepared with EIR

• Uniformly applicable development standards


CEQA T dCEQA Trends 24

• Flood of lawsuits to get settlement payout

L b U i l it• Labor Union leverage suits

• School District leverage suits – Chewanakee caseg

• Challenge to exemptions – Berkeley Hillside and Tomlinson casesTomlinson cases

• Baseline issues re traffic – Neighbor For Smart Rail gCase


Oth N t th U d tOther Noteworthy UpdatesPart I - WATER

25

• Draft Water Quality Control Policy

• Consistency between WSA and EIR

• Discharge Under CWA L A County Flood Control• Discharge Under CWA-L.A. County Flood Control case


Oth N t th U d tOther Noteworthy UpdatesPart II - LAND

26

• Serial lot line adjustments okay – Napa case

• Avoiding Prevailing Wage Requirements in Charter Cities – City of Vista case

• New Burrowing Owl Survey and Mitigation GuidelinesGuidelines


H i P d ti T l R f hHousing Production Tools Refresher 27

• Government Code § 65589.5(j)

– Local Government Cannot Reject or Require aLocal Government Cannot Reject or Require a Reduction in Density of Housing Projects Unless Health and Safety Findings Can be Made (see Honchariw case)

• Government Code § 65863– Each Jurisdiction Must Ensure that its Housing Element

Inventory or its Housing Element Program can Satisfy its RHNA N mbersits RHNA Numbers


H i P d ti T l R f h

– No Jurisdiction shall Reduce Require or Permit the

Housing Production Tools Refresher (cont.) 28

– No Jurisdiction shall Reduce, Require or Permit the Reduction of the Residential Density, for any Parcels, or Allow Development of any Parcel at a Lower Residential Density Without these 2 Findings:

• Reduction is Consistent with the Adopted General Pl d H i El t dPlan and Housing Element; and

• Remaining Sites Identified in the Housing Element are Adequate to Meet the RHNA NumbersAdequate to Meet the RHNA Numbers

• Government Code § 65915– Density Bonus Law – Especially Powerful Without RDA

Assistance


C t tContact 29

John Condas Bill Devine(949) 851.5551 (949) [email protected] [email protected]

Allen Matkins Leck Gamble Mallory & Natsis LLP1900 Main Street, 5th Floor

Irvine, CA 92614www.allenmatkins.com


2013 real estate law update

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