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03.2016 | © Copyright, 2016 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.
Real Estate Development Law Update
Presented by:
John Condas, Esq.
Bill Devine, Esq.
Allen Matkins Leck Gamble Mallory & Natsis LLP
March 4, 2016
03.2016 | © Copyright, 2016 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.
• CEQA Developments
• Affordable Housing Case
• Resource Regulatory Trends
• Other Regulatory Trends and Strategies
Overview 2
03.2016 | © Copyright, 2016 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.
Center for Biological Diversity v. California Department
of Fish & Wildlife, California Supreme Court Case
• Newhall Project EIR Invalidated
• Greenhouse Gas Analysis Invalid – Relying on “Business As
Usual” Methodology Inappropriate
• “Potential Options” which may be Valid
 Use data relied upon in the Scoping Plan (this approach may not work)
 Rely upon approved Climate Action Plan for analysis
 Use a numerical threshold
• Supreme Court Also Invalidated Endangered Species Mitigation –
Impacts to Fully Protected Species cannot Rely upon Capture and
Relocation
3
03.2016 | © Copyright, 2016 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.
CBIA v. BAAQMD
(California Supreme Court)
• CEQA generally not required to analyze impact of existing
environmental condition on future residents or users
• Exception – exacerbating circumstances
• Project risk exacerbating those existing circumstances then
must analyze potential impact of such exacerbation
• Implications
4
03.2016 | © Copyright, 2016 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.
Friends of College of San Mateo v. San Mateo
Community College District
• Question to the court:
• Modification to a previously approved project
• Agency decides to treat proposed action as change to a
project rather than a new project
• What is discretion of a court to disregard the lead agency
and decide the changes to the project make it a new
project
• Save Our Neighborhood v. Lishman decision
5
03.2016 | © Copyright, 2016 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.
• AB 52 Summary
• OPR Discussion Draft Re: AB52 and CEQA
• Draft CEQA Guideline
• Tribal Cultural Resource
• Implications
6Implementing The Tribal Consultation Process
03.2016 | © Copyright, 2016 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.
SB 743 Update 7
03.2016 | © Copyright, 2016 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.
CEQA Non-EIR Strategies
• Use of Addenda – but pending San Mateo College case is
being considered by Supreme Court
• Mitigated Negative Declarations
 Trehas been greater deference of MNDs, but this could change,
based upon Keep Our Mountains case
 Increased Use of Exemptions? Berkeley Hillside Preservation
Supreme Court case
8
03.2016 | © Copyright, 2016 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.
CBIA v. City of San Jose
(California Supreme Court)
• Adoption of an Inclusionary Housing Ordinance is a valid
exercise of the Police Power
• Not an exaction subject to reasonable relationship standard
• Police Power standard
• Reasonable relationship standard
• Implications – Many more IHO’s
• Only applies to for sale housing
9
03.2016 | © Copyright, 2016 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.
Expanding SAA Jurisdictions
• CDFG Section 1602 SAA Authority
• Historic scope of jurisdiction
• Recent expansion – Dryland Watersheds Report
• MESA Field Guide
• New scope of jurisdiction
• CDFW General Counsel Memorandum (8/28/15)
• CDFW Notice (8/4/15)
10
03.2016 | © Copyright, 2016 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.
Resource Regulation Trends
• New Critical Habitat Rule Released – likely will increase the
Frequency of the Need for Section 7 Consultations
• Joint Corps – EPA “Waters of the U.S.” Definition under
Attack – Use of Rule Blocked by the Sixth Circuit U.S.
Court of Appeals
11
03.2016 | © Copyright, 2016 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.
Regulatory Trends and Strategies
• CEQA Attacks More Prevalent
• AQMD Attacks on Logistics Facilities
• Increased Local Regulation with Development Uptick
 Moratoria adopted
 Fee increases
• Land Use via Initiative and Referendum
• Strategies to Mitigate Risk
12
03.2016 | © Copyright, 2016 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.
Contact
Allen Matkins Leck Gamble Mallory & Natsis LLP
1900 Main Street, 5th Floor
Irvine, CA 92614
www.allenmatkins.com
13
John Condas
(949) 851.5551
jcondas@allenmatkins.com
Bill Devine
(949) 851.5412
wdevine@allenmatkins.com

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Real Estate Development Law Update

  • 1. 03.2016 | © Copyright, 2016 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. Real Estate Development Law Update Presented by: John Condas, Esq. Bill Devine, Esq. Allen Matkins Leck Gamble Mallory & Natsis LLP March 4, 2016
  • 2. 03.2016 | © Copyright, 2016 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. • CEQA Developments • Affordable Housing Case • Resource Regulatory Trends • Other Regulatory Trends and Strategies Overview 2
  • 3. 03.2016 | © Copyright, 2016 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. Center for Biological Diversity v. California Department of Fish & Wildlife, California Supreme Court Case • Newhall Project EIR Invalidated • Greenhouse Gas Analysis Invalid – Relying on “Business As Usual” Methodology Inappropriate • “Potential Options” which may be Valid  Use data relied upon in the Scoping Plan (this approach may not work)  Rely upon approved Climate Action Plan for analysis  Use a numerical threshold • Supreme Court Also Invalidated Endangered Species Mitigation – Impacts to Fully Protected Species cannot Rely upon Capture and Relocation 3
  • 4. 03.2016 | © Copyright, 2016 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. CBIA v. BAAQMD (California Supreme Court) • CEQA generally not required to analyze impact of existing environmental condition on future residents or users • Exception – exacerbating circumstances • Project risk exacerbating those existing circumstances then must analyze potential impact of such exacerbation • Implications 4
  • 5. 03.2016 | © Copyright, 2016 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. Friends of College of San Mateo v. San Mateo Community College District • Question to the court: • Modification to a previously approved project • Agency decides to treat proposed action as change to a project rather than a new project • What is discretion of a court to disregard the lead agency and decide the changes to the project make it a new project • Save Our Neighborhood v. Lishman decision 5
  • 6. 03.2016 | © Copyright, 2016 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. • AB 52 Summary • OPR Discussion Draft Re: AB52 and CEQA • Draft CEQA Guideline • Tribal Cultural Resource • Implications 6Implementing The Tribal Consultation Process
  • 7. 03.2016 | © Copyright, 2016 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. SB 743 Update 7
  • 8. 03.2016 | © Copyright, 2016 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. CEQA Non-EIR Strategies • Use of Addenda – but pending San Mateo College case is being considered by Supreme Court • Mitigated Negative Declarations  Trehas been greater deference of MNDs, but this could change, based upon Keep Our Mountains case  Increased Use of Exemptions? Berkeley Hillside Preservation Supreme Court case 8
  • 9. 03.2016 | © Copyright, 2016 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. CBIA v. City of San Jose (California Supreme Court) • Adoption of an Inclusionary Housing Ordinance is a valid exercise of the Police Power • Not an exaction subject to reasonable relationship standard • Police Power standard • Reasonable relationship standard • Implications – Many more IHO’s • Only applies to for sale housing 9
  • 10. 03.2016 | © Copyright, 2016 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. Expanding SAA Jurisdictions • CDFG Section 1602 SAA Authority • Historic scope of jurisdiction • Recent expansion – Dryland Watersheds Report • MESA Field Guide • New scope of jurisdiction • CDFW General Counsel Memorandum (8/28/15) • CDFW Notice (8/4/15) 10
  • 11. 03.2016 | © Copyright, 2016 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. Resource Regulation Trends • New Critical Habitat Rule Released – likely will increase the Frequency of the Need for Section 7 Consultations • Joint Corps – EPA “Waters of the U.S.” Definition under Attack – Use of Rule Blocked by the Sixth Circuit U.S. Court of Appeals 11
  • 12. 03.2016 | © Copyright, 2016 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. Regulatory Trends and Strategies • CEQA Attacks More Prevalent • AQMD Attacks on Logistics Facilities • Increased Local Regulation with Development Uptick  Moratoria adopted  Fee increases • Land Use via Initiative and Referendum • Strategies to Mitigate Risk 12
  • 13. 03.2016 | © Copyright, 2016 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. Contact Allen Matkins Leck Gamble Mallory & Natsis LLP 1900 Main Street, 5th Floor Irvine, CA 92614 www.allenmatkins.com 13 John Condas (949) 851.5551 jcondas@allenmatkins.com Bill Devine (949) 851.5412 wdevine@allenmatkins.com