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May 30, 2010

Moody’s/REAL All Property Type Aggregate Index

http://www.harriscompanyrec.com/moodyspriceindex.pdf

The Moody’s/REAL All Property Type Aggregate Index measured a 0.5% price decline in

March, marking a second month of falling values after a slight rebound reported earlier this

year. The index now stands at 111.16, down 24.9% from a year ago and 40.5% from two

years ago. Prices peaked in October 2007, and at their lowest point thus far in the downturn

(October 2009) they had fallen 43.7%. As of the end of March, commercial property prices

are down 42.1% from the peak.

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American Real Estate and Urban Economics Association's (AREUEA)

Welcome to the American Real Estate and Urban Economics Association's (AREUEA) online information resource. AREUEA trusts that you will find the information provided within the site to be beneficial and presented in an efficient format to ensure that we are meeting the needs of our members and visitors to the site.

http://www.areuea.org/

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THE PROMISE AND DILEMMA OF CONSERVATION EASEMENTS

http://www.harriscompanyrec.com/conservationeasement.pdf 

Local and regional private land trusts are among the most important and most numerous

conservation actors in contemporary America, and conservation easements

are perhaps the key land conservation tools used by these trusts. In recent decades,

privately held conservation easements and local and regional private land trusts

have grown at a rapid and increasing rate, and the total acreage protected by privately

held conservation easements is now larger than some states. The early

growth of privately held conservation easements met widespread approval, but more

recently, contemporary conservation easement practice has attracted many critics,

based in part on well-publicized national scandals involving fraudulent donations of

conservation easements for tax purposes and in part on more general concerns

about the potential inefficiency of these easements. To date, however, legal scholars

have not adequately tested or examined these concerns against the details of contemporary

conservation easement practice. This Article addresses this gap in the current

debate by examining various criticisms and proposals for reform of current

conservation easement practice in light of a detailed survey of conservation easements

held by local and regional land trusts in Massachusetts. More specifically,

the Article provides important detail on contemporary conservation easement practice,

considers the interaction between contemporary practice and the abstract concerns

raised in the academic debate, and offers some suggestions for reform and

further study.

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Tax Treatment of Real Estate

http://www.harriscompanyrec.com/2010briefingpapers20100407.pdf

Tax Treatment of Real Estate

Position: IREM and CCIM Institute believe that it is in our nation’s best interest for

Congress to encourage real estate investment in the United States by creating a tax system

that recognizes inflation and a tax differential in the calculation of capital gains from real

estate; while stimulating economic investment; and consequently leveling the playing field

for those who choose to invest in commercial real estate.

Status: Many of the Bush tax cuts are due to expire at the end of 2010. In addition, given

the current budget crisis, changes to the Tax Code could be used to pay for new or existing

programs. IREM and CCIM Institute have a number of areas of concern with respect to the

tax treatment of real estate. A number of proposals are circulating that would make real

estate a less attractive investment.

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May 29, 2010

Reminder: June 1 NY Court Of Appeals Oral Agument In Columbia "Blight" Case

Posted: 28 May 2010 02:33 PM PDT

A reminder: on Tuesday, June 1, 2010 at 2:00 p.m. ET, we will be live blogging the oral arguments in Kaur v. New York State Urban Development Corp.

In that case, the New York Supreme Court, Appellate Division (First Department) struck down the attempted taking of land north of Columbia University in New York City because of the record reflected overwhelming private benefit and lack of "blight." The agency appealed to the Court of Appeals.

The Court of Appeals webcasts oral arguments, so we will be able to follow along and live blog the event. Joining me will be eminent domain scholar and property owners' advocate Tim Sandefur, and my Damon Key colleague and fellow condemnation law attorney Mark Murakami. Sign up here for email notification, then on Tuesday, follow along and join in the discussion.

Here are the briefs in the Court of Appeals:

This posting includes an audio/video/photo media file: Download Now

Arkansas Supreme Court: Pipeline Taking Not A Private Use

Posted: 28 May 2010 02:01 PM PDT

In Smith v. Ark. Midstream Gas Servs, No 09-1186 (May 27, 2010), the Arkansas Supreme Court concluded that a taking for a natural gas pipeline by a private, for-profit utility company was not a violation of the state constitution's public use clause.

Arkansas law delegates the power of eminent domain to certain pipeline companies and deems them to be "common carriers" -- 

All pipeline companies operating in this state are given the right of eminent domain and are declared to be common carriers, except pipelines operated for conveying natural gas for public utility service.

Ark. Code Ann. § 23-15-101. The public use clause in the Arkansas Constitution isn't that much different than similar provisions in other constitutions:

The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation thereof.

Ark. Const. art. 2, § 22. The Smiths argued that the taking of a 60 foot right of way over their land for the natural gas pipeline was a private, not public, use because the pipeline is for use by less than the public, and the public at large is not able to ship materials through the pipeline. Slip op. at 6. The court rejected the argument because as a common carrier, the pipeline company is required by law to allow public access to the pipeline, even if the public does not actually use the pipeline. It is the right of the public to use the pipeline that makes the taking public, not the present actual use. Slip op. at 7 ("Again, the character of a taking, whether public or private, is determined by the extent of the right to use it, and not the extent to which that right is exercised.") (citing Ozark Coal Co. v. Pennsylvania Anthracite Co., 134 S.W. 534 (1911)).

The court also rejected the property owner's argument that the statutory delegation is unconstitutionally vague. Because the statute does not guide the property owner's conduct, the owner has no standing to challenge the statute. A statute is void for vagueness if it does not provide a discernible standard to which a person may conform their conduct. Since the delegation statute does not require the property owner to do (or not do) anything, he could not challenge the law.

This posting includes an audio/video/photo media file: Download Now

Reminder: June 1 NY Court Of Appeals Oral Agument In Columbia "Blight" Case

Posted: 28 May 2010 02:33 PM PDT

A reminder: on Tuesday, June 1, 2010 at 2:00 p.m. ET, we will be live blogging the oral arguments in Kaur v. New York State Urban Development Corp.

In that case, the New York Supreme Court, Appellate Division (First Department) struck down the attempted taking of land north of Columbia University in New York City because of the record reflected overwhelming private benefit and lack of "blight." The agency appealed to the Court of Appeals.

The Court of Appeals webcasts oral arguments, so we will be able to follow along and live blog the event. Joining me will be eminent domain scholar and property owners' advocate Tim Sandefur, and my Damon Key colleague and fellow condemnation law attorney Mark Murakami. Sign up here for email notification, then on Tuesday, follow along and join in the discussion.

Here are the briefs in the Court of Appeals:

This posting includes an audio/video/photo media file: Download Now

Arkansas Supreme Court: Pipeline Taking Not A Private Use

Posted: 28 May 2010 02:01 PM PDT

In Smith v. Ark. Midstream Gas Servs, No 09-1186 (May 27, 2010), the Arkansas Supreme Court concluded that a taking for a natural gas pipeline by a private, for-profit utility company was not a violation of the state constitution's public use clause.

Arkansas law delegates the power of eminent domain to certain pipeline companies and deems them to be "common carriers" -- 

All pipeline companies operating in this state are given the right of eminent domain and are declared to be common carriers, except pipelines operated for conveying natural gas for public utility service.

Ark. Code Ann. § 23-15-101. The public use clause in the Arkansas Constitution isn't that much different than similar provisions in other constitutions:

The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation thereof.

Ark. Const. art. 2, § 22. The Smiths argued that the taking of a 60 foot right of way over their land for the natural gas pipeline was a private, not public, use because the pipeline is for use by less than the public, and the public at large is not able to ship materials through the pipeline. Slip op. at 6. The court rejected the argument because as a common carrier, the pipeline company is required by law to allow public access to the pipeline, even if the public does not actually use the pipeline. It is the right of the public to use the pipeline that makes the taking public, not the present actual use. Slip op. at 7 ("Again, the character of a taking, whether public or private, is determined by the extent of the right to use it, and not the extent to which that right is exercised.") (citing Ozark Coal Co. v. Pennsylvania Anthracite Co., 134 S.W. 534 (1911)).

The court also rejected the property owner's argument that the statutory delegation is unconstitutionally vague. Because the statute does not guide the property owner's conduct, the owner has no standing to challenge the statute. A statute is void for vagueness if it does not provide a discernible standard to which a person may conform their conduct. Since the delegation statute does not require the property owner to do (or not do) anything, he could not challenge the law.

This posting includes an audio/video/photo media file: Download Now

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May 28, 2010

CDFI Fund Announces New Native Initiatives Workshop Series

CDFI Fund Announces New Native Initiatives Workshop Series


Workshops to Explore Economic Development Opportunities for Native Communities

Washington, DC—Today the Community Development Financial Institutions Fund (CDFI Fund) launched its new “Economic Development Strategies in Indian Country” workshop series. Co-sponsored with the Federal Reserve Bank of San Francisco, Seattle Branch, the workshops are being conducted to promote economic development in Native communities across the country. Participants will learn about resources available for Native economic development initiatives from the federal government and regional programs. 

 

“We are excited about this opportunity to partner with the Federal Reserve Bank to build upon our Native Initiatives efforts,” said CDFI Fund Director Donna Gambrell. “We are always exploring ways to help our nation’s distressed communities during the current economic recovery. We must remember the unique challenges our communities face, especially in Native areas across the nation. These workshops will help participants identify new ways to stimulate and revitalize their Native economic and community development programs.”  

 

The CDFI Fund and Federal Reserve staff will facilitate day-long workshops featuring various federal agencies and industry experts. Participants will be able to attend seminars on designing successful economic development strategies while networking with regional practitioners and local support organizations. Five cities will host the workshops - Albuquerque, Anchorage, Sacramento, Oklahoma City and Seattle.

 

“The “Economic Development Strategies in Indian Country” workshops are part of our overall plan to help ensure that economic opportunities are equally available throughout the nation, including Indian Country,” said Scott Turner, Vice President and Community Affairs Officer of the Community Development Department, Federal Reserve Bank of San Francisco. “After holding over 100 meetings on reservations within the 12th District, we understand the many difficulties confronting tribes and their members. We are proud to join with the CDFI Fund on this initiative and look forward to learning how we can support efforts to promote community and economic development in Indian Country.”

 

For more information about the series as well as to register for a specific workshop, please visit: http://www.frbsf.org/community/resources/events.html

 

2010 Economic Development Strategies in Indian Country Workshop Schedule

 

  • June 30, 2010: Oklahoma City, Oklahoma
  • July 28, 2010: Sacramento, California
  • August 17, 2010: Seattle, Washington
  • August 19, 2010: Anchorage, Alaska
  • September 16, 2010: Albuquerque, New Mexico
About the Native Initiatives

The CDFI Fund's Native Initiatives work to increase access to credit, capital, and financial services in communities by creating and expanding CDFIs primarily serving Native communities. This is achieved through two principle initiatives: 1) a funding program – the NACA Program – targeted to increasing the number and capacity of existing or new Native CDFIs, and 2) a complementary series of training programs, called “Expanding Native Opportunities,” that seeks to foster the development of new Native CDFIs, strengthen the operational capacity of existing Native CDFIs, and guide Native CDFIs in the creation of important financial education and asset building programs for their communities.

 

About the CDFI Fund
Since its creation in 1994, the CDFI Fund has awarded almost $1.2 billion to CDFIs, community development organizations and financial institutions through CDFI Program, the Bank Enterprise Award Program, and the Native Initiatives. In addition, the CDFI Fund has allocated $26 billion in tax credit authority to Community Development Entities through the New Markets Tax Credit Program.
For more information about the CDFI Fund, visit www.cdfifund.gov.

 

About the Federal Reserve Bank of San Francisco, Seattle Branch

The Federal Reserve's Community Development Department gives financial institutions, community based organizations and government entities the tools they need to effectively address community development issues affecting low- and moderate-income individuals and communities.

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May 27, 2010

What You Need to Know About the 2010 IRS Nationwide Tax Forums

What You Need to Know About the 2010 IRS Nationwide Tax Forums

The 2010 IRS Nationwide Tax Forums are about to begin! The tax forums are three-day events that provide tax professionals with the most up-to-date information on federal and state tax issues presented by IRS experts and partner organizations.

Here are nine things enrolled agents, certified public accountants, certified financial planners and other tax professionals need to know about the 2010 IRS Nationwide Tax Forums.

  1. Forums are held June through August in Atlanta, Chicago, Orlando, New York, Las Vegas and San Diego.
  2. Those who sign up early can qualify for discounted enrollment costs. The first forum, in Atlanta, begins on June 22 and the early registration deadline is June 8. 
  3. Forums offer an opportunity to receive up to 18 continuing education credits through a variety of training seminars and workshops.
  4. Forums will offer 43 separate seminars and workshops on valuable and relevant tax topics.
  5. Forums will also feature a two-day expo with representatives from the IRS as well as other tax, financial, and business communities offering their products, services, and expertise. 
  6. Attendees can sign up to become an Authorized IRS e-file Provider.
  7. Tax professionals attending a forum can bring their toughest unresolved case to meet with IRS personnel who may be able to help. 
  8. Registering for a tax forum is easy!  Register by internet, fax or mail.
  9. For more information or to register visit www.irstaxforum.com

 

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2010 Office and Industrial Market Outlook and Investment Strategies Webcast,

WEBCAST DETAILS

2010 Office and Industrial Market Outlook and Investment Strategies Webcast, presented by Marcus & Millichap
Date: May 27, 2010
Time: 10:30 am PT / 1:30 pm ET
Duration: 60 minutes

You will be able to download the slides at the time you are viewing the webcast.

http://www.harriscompanyrec.com/1005officeindustrialwebcastmasterv3.pdf

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How Remedying Blight "Pays For Itself"

How Remedying Blight "Pays For Itself"

Posted: 26 May 2010 11:05 AM PDT

Here's a case, issued yesterday by a California Court of Appeal, that is not directly about the use of eminent domain for redevelopment purposes to remedy "blight," but is nonetheless worth reviewing since it shows how redevelopment supposedly "pays for itself" (in the words of a court) through tax increment financing:

Under the [California Redevelopment Law (Cal. Const. art. XVI § 16], redevelopment is financed through tax increment financing. In essence, a redevelopment agency, which is not empowered to tax, but which is empowered to acquire debt through loans or the sale of bonds (§ 33601), finances a redevelopment project through borrowing. When the redevelopment results in increased property values in the redevelopment area, the tax attributable to the increase in value -- the tax increment -- is distributed by the taxing authority to a special fund of the redevelopment agency, to pay the principal of and interest on its debt. (§ 33670, subd. (b).) "'This way, the redevelopment project in effect pays for itself.' [Citations.])" (City of Dinuba v. County of Tulare, supra, 41 Cal.4th at pp. 865-866; Community Development Com'n of City of Oxnard v. County of Ventura (2007) 152 Cal.App.4th 1470, 1475-1476.)

Glendale Redevelopment Agency v. County of Los Angeles, No. B212718 slip op. at 3-4 (May 25, 2010). Couple tax increment financing with California's notoriously loose standards for defining "blight," and you can see why there is little disincentive to designating property as blighted. For additional background and commentary, see A Tiff Over TIF In Northern California and In Pursuit of the Free Lunch on Professor Kanner's blog.

Update: some additional thoughts on counties vs redevelopment agencies in Grab redevelopment cash from Cal Watchdog.

The dispute in the Glendale case involved whether the redevelopment agency was permitted to submit a revised request to the County for its share of the tax increment. The court held the statute permitted the redevelopment agency to amend its request after the annual deadline in order to correct an error in the original request, even though the statute did not expressly permit the County to accept it after the deadline.

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May 25, 2010

11.304J / 4.255J Site and Infrastructure Systems Planning

11.304J / 4.255J Site and Infrastructure Systems Planning

As taught in: Spring 2009

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Appraisal Abuse Red Flags

Appraisal Abuse Red Flags
<a href="http://www.harriscompanyrec.com/74874otsappraisal.pdf ">http://www.harriscompanyrec.com/74874otsappraisal.pdf</a>

No appraisal or property evaluation in file.

Mortgage broker or borrowers that always use the same appraiser.

Appraiser bills association for more than one appraisal when there is only one in the file.

Unusual appraisal fees (high or low).

No history of property or prior sales records.

Market data located away from subject property.

Unsupported or unrealistic assumptions relating to capitalization rates, zoning change, utility availability, absorption, or rent level.

Valued for highest and best use, which is different from current use.

Appraisal method using retail value of one unit in condo complex multiplied by the number of units equals collateral value.

Use of superlatives in appraisals.

Appraisal made for borrower.

Appraisals performed or dated after loan.

Close relationship between builder, broker, appraiser, lender and/or borrower.

Overvalued (inflated) or high property value.
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May 24, 2010

Appraiser Rule of Thumb

Download file

Appraiser Rule of Thumb

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FEMA Publications

Dear Colleague:

The Department of Homeland Security and Federal Emergency Management Agency (FEMA) are pleased to announce that the following compilations of are now available, at no cost, from the Publications Warehouse.

Earthquake Publications for Teachers and Kids, FEMA P-710CD
Educational resources (posters, teacher packages, a storybook for children, hands-on activities, and guidance) for teachers, students, and child care providers. All of the publications included on the CD are listed in the Teachers and Kids section of the Catalog of FEMA Earthquake Resources, FEMA P-736 (FEMA 159, 240, 253, 527, 529, and 531). Two additional publications are also included: Earthquake Safety Checklist, FEMA 526, and Earthquake Home Hazard Hunt Poster, FEMA 528.

Earthquake Publications for Individuals and Homeowners, FEMA P-711CD
Resources (guides and safety checklists) to help individuals, families, and homeowners prepare for an earthquake and prevent earthquake damage to their homes. The CD includes all of the publications listed in the Individuals and Homeowners section of the Catalog of FEMA Earthquake Resources, FEMA P-736 (FEMA 74, 232, 526, 528, 530, and Are You Ready? An In-depth Guide to Citizen Preparedness). The CD also includes the Drop, Cover, and Hold Poster, FEMA 529, and The Adventures of Terry the Turtle and Gracie the Wonder Dog, Grades 3 through 6, FEMA 531.

Earthquake Publications for Community Planners and Public Policy Makers, FEMA P-712CD
Resources for local planners, policy makers, and advocates interested in reducing the risks posed by seismic hazards to their communities. Seven of the publications are offered separately in the Catalog of FEMA Earthquake Resources, FEMA P-736 (FEMA 83, 84, 154, 266, 275, 366, and 474). Also included on the CD are Seismic Retrofit Incentive Programs: A Handbook for Local Governments, FEMA 254, and a series of mitigation planning "how-to" guides (FEMA 386-1 through 386-8) applicable to earthquakes and other hazards.

To order your copy of FEMA P-710CD, FEMA P-711CD, or FEMA P-712CD from the Publications Warehouse, call 1(800) 480-2520 or fax your request to (240) 699-0525.

To view or download these publications, please visit the FEMA Library.

To view or download other National Earthquake Hazards Reduction Program (NEHRP) publications and products or to sign up for updates on earthquake risk mitigation publications, news, and events, visit Earthquake Publications and Tools.

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May 23, 2010

NORTH CAROLINA COURT OF APPEALS

http://www.harriscompanyrec.com/farmvsadlerappraisal.pdf   

NO. COA09-1054

NORTH CAROLINA COURT OF APPEALS

Filed: 18 May 2010

NORTH CAROLINA FARM BUREAU

MUTUAL INSURANCE COMPANY, INC.,

Plaintiff,

v. Hyde County

No. 09 CVS 18

GERVIS E. SADLER, individually

and by and through STEVE ANTHONY

SADLER, his Attorney-in-fact,

Defendant.

Appeal by plaintiff from judgment entered 21 May 2009 by Judge

William C. Griffin, Jr. in Hyde County Superior Court. Heard in

the Court of Appeals 10 February 2010.

Young Moore and Henderson, P.A., by Walter E. Brock, Jr. and

Matthew J. Gray, for plaintiff-appellant.

Armstrong & Armstrong, P.A., by L. Lamar Armstrong, Jr., and

Ledolaw, by Michele A. Ledo, for defendant-appellee.

BRYANT, Judge.

Plaintiff North Carolina Farm Bureau (Farm Bureau) appeals

from an order granting defendant Gervis Sadler (Sadler) partial

summary judgment on a counterclaim for breach of contract and

awarding Sadler $150,000.00 plus interest from the date of breach.

For the reasons stated herein, we affirm.

On 1 September 2005, Sadler submitted a home owner’s insurance

claim to Farm Bureau for damage to his house occurring during a

wind storm on 6 May 2005. Farm Bureau initially denied the claim

but, after a request to re-assess the property, estimated Sadler’s

-2-

damages to be valued at $3,203.03 “for roof damage and damage due

to roof damage.” On 18 May 2006, Farm Bureau issued Sadler a check

for $3,203.03. The check went uncashed, and on 5 June 2006, Sadler

provided Farm Bureau with the following notice:

[W]e feel like there is a lot more you should

have covered. We have talked to some friends

of ours that have used the appraisal process

to work these sort of things out. This process

sounds like it would work perfect and we would

like to use it. Please go ahead and name the

parties you intend to represent you. We are

talking to . . . some other folks about being

our representative. As soon as we get someone

to agree to it we will give you their name.”

On 22 June 2006, Sadler retained Lewis O’Leary as his

representative in the appraisal process. Farm Bureau did not

immediately respond. On 30 June 2006, the trial court entered an

order appointing Martin Overbolt to serve as umpire for the

parties’ respective appraisers.

On 31 July 2006, Farm Bureau retained appraiser Rick Manning.

In his summary report, Manning stated that his “inspection was to

determine damages from wind which allegedly came from a storm on

May 6, 2005.” Manning noted damage to roof shingles, water stains

on interior ceiling, mold growth, and termite damage. Manning

assessed the value of loss at $31,561.39.

On 1 February 2008, Umpire Overbolt and Sadler’s appraiser

agreed on an appraisal amount of $162,500.00. Farm Bureau filed a

complaint for declaratory relief in which it argued among other

things that the appraisal award was not covered by the homeowner’s

policy. Sadler counterclaimed alleging breach of policy /

-3-

contract, breach of covenant of good faith, and unfair claim

settlement practices.

On 21 May 2009, the trial court entered an order granting

partial summary judgment in favor of Sadler, concluding that no

genuine issue of material fact existed with respect to Sadler’s

counterclaim for breach of contract and that considering the

categorical limits of Sadler’s homeowner’s insurance policy and the

pertinent deductible Sadler was “entitled to summary judgment

against Farm Bureau in the amount of $150,500, plus interest . . .

.” The order was certified for immediate appeal pursuant to Rule

54(b). Farm Bureau appeals.

 

 

Here, the insurance policy states that “[i]f [the appraisers]

fail to agree, they will submit their differences to the umpire. Adecision agreed to by any two will set the amount of loss.”

(Emphasis added). Farm Bureau does not suggest that fraud, duress,

or other impeaching circumstances occurred during the appraisal

process; therefore, we hold the trial court did not err in granting

partial summary judgment to Sadler for the amount of the appraisal

award. Accordingly, we overrule Farm Bureau’s assignments of

error.

Affirmed.

Judges ELMORE and STROUD concur

 

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May 20, 2010

LoopNet's New Commercial Property Database
Witness the Unveiling at ICSC RECon 2010

Product Launch & Cocktail Reception
LoopNet Booth: S312 N Street - South Hall - 2nd Floor

Sunday, May 23rd
4:30pm – 6:00pm
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"Unpublished" Opinion Round-Up

Posted: 19 May 2010 07:35 PM PDT

Appellate courts issue opinions and orders to decide cases. The opinions and orders in many cases get "published," meaning that they end up in the bound reporters (the U.S., Federal, Federal Supplement, the official state reports, and in West's Regional Reports, for example) and become precedential and set forth a rule of law governing future litigation.

Most appellate courts also issue opinions and orders that are not "published" in the sense referred to above, even though they are "published" meaning they are made available to the public. Generally speaking, these are cases presenting more routine issues. Unpublished decisions may be designated as unpublished opinions, memorandum opinions, summary disposition orders, "per curiam" opinions, or simply may bear the notation "Not For Publication." The rules vary by jurisdiction on whether unpublished opinions are precedential, and even whether they can be cited in a brief. [Barista's note: we are of the school believing that nearly everything an appellate court does is important (even if it may not think so), and should be both available and citeable. The published vs unpublished distinction may have made sense when we were dealing with actual books and shelf space in the law library, but in the days of ubiquitous pdf's, we don't think this is such an issue.]

On this blog, we mostly focus on "published" opinions. That is a function both of the relative importance of published opinions vs unpublished, but also of the sheer volume of unpublished material produced by many courts. For example, compare the product of California's appellate courts: here are the published opinions from the last 100 hours, and here are the unpublished opinions from the same time frame. On most days, there's a huge difference in appellate court output, and we simply don't have the time to comb through the unpublished opinions looking for interesting items.  

So in the interest of equal time, we bring you a sampling of "unpublished" opinions for your reading pleasure. Are these cases interesting, controversial, and otherwise blogworthy?

  • Karim v. City of Pomona, No. B210049 (Cal. Ct. App., May 18, 2010) (inverse condemnation, nuisance, damages, attorneys' fees).
  • Howard v. County of San Diego, No. D055419 (Cal. Ct. App., Apr. 29, 2010) (inverse condemnation, denial of permit, exhaustion of administrative remedies).

This posting includes an audio/video/photo media file: Download Now

"Unpublished" Opinion Round-Up

Posted: 19 May 2010 07:35 PM PDT

Appellate courts issue opinions and orders to decide cases. The opinions and orders in many cases get "published," meaning that they end up in the bound reporters (the U.S., Federal, Federal Supplement, the official state reports, and in West's Regional Reports, for example) and become precedential and set forth a rule of law governing future litigation.

Most appellate courts also issue opinions and orders that are not "published" in the sense referred to above, even though they are "published" meaning they are made available to the public. Generally speaking, these are cases presenting more routine issues. Unpublished decisions may be designated as unpublished opinions, memorandum opinions, summary disposition orders, "per curiam" opinions, or simply may bear the notation "Not For Publication." The rules vary by jurisdiction on whether unpublished opinions are precedential, and even whether they can be cited in a brief. [Barista's note: we are of the school believing that nearly everything an appellate court does is important (even if it may not think so), and should be both available and citeable. The published vs unpublished distinction may have made sense when we were dealing with actual books and shelf space in the law library, but in the days of ubiquitous pdf's, we don't think this is such an issue.]

On this blog, we mostly focus on "published" opinions. That is a function both of the relative importance of published opinions vs unpublished, but also of the sheer volume of unpublished material produced by many courts. For example, compare the product of California's appellate courts: here are the published opinions from the last 100 hours, and here are the unpublished opinions from the same time frame. On most days, there's a huge difference in appellate court output, and we simply don't have the time to comb through the unpublished opinions looking for interesting items.  

So in the interest of equal time, we bring you a sampling of "unpublished" opinions for your reading pleasure. Are these cases interesting, controversial, and otherwise blogworthy?

  • Karim v. City of Pomona, No. B210049 (Cal. Ct. App., May 18, 2010) (inverse condemnation, nuisance, damages, attorneys' fees).
  • Howard v. County of San Diego, No. D055419 (Cal. Ct. App., Apr. 29, 2010) (inverse condemnation, denial of permit, exhaustion of administrative remedies).

This posting includes an audio/video/photo media file: Download Now

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EPA Expands Public Participation on Hazardous Waste Cleanup

CONTACTS:
Latisha Petteway
petteway.latisha@epa.gov
202-564-3191
202-564-4355
Cathy Milbourn
Milbourn.cathy@epa.gov
202-564-7849
202-564-4355
FOR IMMEDIATE RELEASE
May 20, 2010
EPA Expands Public Participation on Hazardous Waste Cleanup
WASHINGTON – The U.S. Environmental Protection Agency (EPA) has launched an initiative to help communities more effectively participate in government decisions related to land cleanup, emergency preparedness and response, and the management of hazardous substances and waste.  The Community Engagement Initiative (CEI) plan lays out specific steps EPA is taking to provide communities with better information and opportunities to understand and influence decisions on environmental cleanups. The purpose of the plan is to present guiding principles, goals and actions to enhance EPA’s relationships with communities from across the country while protecting human health and the environment.
“Transparency, access and public involvement are essential to meaningful and deliberate decision-making at EPA,” said Mathy Stanislaus, assistant administrator for EPA’s Office of Solid Waste and Emergency Response.  “Getting a diverse group of citizens - all with their own unique experiences and expertise - to provide their views and expertise to inform  the decisions we make helps us better protect Americans where they live, work, play and learn."
Because many of EPA’s programs are delegated to states, EPA will seek a cooperative effort with state and local governments to better coordinate resources and efforts on this initiative.  The plan includes activities that will help EPA:
·         Improve transparency and upfront collaboration with community stakeholders
·         Enhance technical assistance to communities
·         Explain the hazards of environmental problems to affected communities
·         Connect with communities that have been historically underrepresented in environmental decision-making
Through the initiative, EPA will help interested community members more effectively participate in EPA decision-making processes.  The CEI implementation plan also details actions EPA is pursuing to more effectively explain the hazards of environmental problems to affected communities.  Implementation of this plan will help EPA conduct timely decisions and actions that are reliably informed by the broad diversity of voices and interests in the communities we serve.
The plan is intended to be a working document and specific actions will be refined with ongoing feedback from communities and other stakeholders. EPA invites public comment on the plan, will frequently evaluate the initiative’s progress and results, and will regularly post this information on the agency’s Web site.
More information on the CEI and to comment on the plan:  http://www.epa.gov/oswer/engagementinitiative
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May 19, 2010

Commercial Appraiser, Commercial Appraisal Los Angeles LA,Southern ...
Commercial Real Estate Appraiser and Consultant, Commercial Appraiser, ... Commercial Appraiser Blog (Archives) Residential Appraiser - Appraisal Blog ...
www.harriscompanyrec.com/ - Cached - Similar
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Multifamily Housing Starts Still in Doldrums

Multifamily Housing Starts Still in Doldrums

Use of redevelopment funds

Summary:
Use of redevelopment funds by a city formed non-profit to acquire and develop school administrative buildings and a senior housing project with units reserved for 16 percent low and very moderate income residents was a valid use of redevelopment funds and did not require an Article XXXIV voter approval.

View the entire entry:
http://blog.aklandlaw.com/2010/05/articles/local-government/article-xxxiv-voter-requirements-inapplicable-to-senior-housing-project-owned-by-a-city-formed-nonprofit-public-benefit-corporation/index.html
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May 18, 2010

CONTACT:
Dale Kemery
kemery.dale@epa.gov
202-564-7839
202-564-4355

FOR IMMEDIATE RELEASE

May 17, 2010

EPA Adds More Than 6,300 Chemicals and 3,800 Chemical Facilities to Public Database

Unprecedented access provided for the first time

WASHINGTON – As part of Administrator Lisa P. Jackson’s commitment to increase public access to information on chemicals, the U.S. Environmental Protection Agency (EPA) has added more than 6,300 chemicals and 3,800 chemical facilities regulated under the Toxic Substances Control Act (TSCA) to a public database called Envirofacts.

“The addition to Envirofacts will provide the American people with unprecedented access to information about chemicals that are manufactured in their communities,” said Steve Owens, assistant administrator for EPA’s Office of Chemical Safety and Pollution Prevention. “This is another step EPA is taking to empower the public with information on chemicals in their communities.”

The Envirofacts database is EPA’s single point of access on the Internet for information about environmental activities that may affect air, water and land in the U.S and provides tools for analyzing the data.  It includes facility name and address information, aerial image of the facility and surrounding area, map location of the facility, and links to other EPA information on the facility, such as EPA’s inspection and compliance reports that are available through the Enforcement Compliance History Online (ECHO) database. EPA is also adding historic facility information for another 2,500 facilities.

EPA has conducted a series of aggressive efforts to increase the public’s access to chemical information including reducing confidentiality claims by industry and making the public portion of the TSCA inventory available free of charge on the agency’s Web site. EPA intends to take additional actions in the months ahead to further increase the amount of information available to the public.

More information on Envirofacts: http://www.epa.gov/enviro/facts/tsca/index.html
More information about EPA’s efforts on increasing transparency on chemical information: http://www.epa.gov/oppt/existingchemicals/pubs/enhanchems.html   

Note: If a link above doesn't work, please copy and paste the URL into a browser.

 

View all news releases related to pesticides and toxic chemicals

 

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CRE "Forbearance" Bill Introduced

May 10, 2010

CRE "Forbearance" Bill Introduced

Yipee Notwithstanding the view of at least one of my readers that community banks who are in trouble because of commercial real estate lending have only their own poor judgment and greed to blame, others (including me) continue to think that we need to cut them some slack.

Three weeks ago, I wrote about proposed legislation being drafted by two Colorado members of the U.S. House of Representatives (one a Republican the other a Democrat) to grant community banks an extended period of time to write-off losses on commercial real estate loans and real estate owned. At the time, press reports indicated the write off period would be ten years.Today, those legislators announced that they had introduced the legislation as the "Capital Access for Main Street Act of 2010" (HR 5249) and that it had been assigned to the House Financial Services Committee. However, the amortization period for losses would be seven, not ten, years.

 http://www.banklawyersblog.com/3_bank_lawyers/2010/05/cre-forbearance-bill-introduced.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+typepad%2Fbanklawyer3%2F3_bank_lawyers+%28Bank+Lawyer%27s+Blog%29

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CARETS and ePropertyData have teamed up to create a new CARETS Commercial MLS, which will include Commercial Sale and Lease.   

CARETS Commercial MLS will consist of a property centric database designed by commercial agents for commercial agents . The database will include the commercial listing information of the following seven CARETS participating MLSs: CLAW, SoCalMLS, CRISNet, MRMLS, i-Tech MLS,Desert Area MLS, & Ventura Coastal MLS

On May 24, 2010, The MLS®/CLAW commercial listing information will go live and on May 25th, the commercial listing information of SoCalMLS and CRISNet will go live. MRMLS will quickly follow with i-Tech MLS, Desert Area MLS and Ventura Coastal MLS.

Attend One of The New CARETS Commercial MLS Webinar Training Sessions! All new listings will be entered in the new system as well all changes for the existing listings. Don’t Miss Out! Expose Your Commercial Listings to More than 100,000 Agents.

DO YOU NEED TRAINING? REGISTER TODAY
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May 17, 2010

Real Estate Professionals Free Trade Coalition (Appraisal/Title/Mtg Agency/Survey)

There are many issues of great concern facing appraisers today. Many of the problems that are now plaguing the appraisal profession are seen in the AGENDA section of this website.

One of the issues on our AGENDA is a bill that has been voted on by the house (section 203k of HR 3837), (but is yet to be voted on by the Senate) which may allow banks to favor appraisers who have designations from private organizations; ie The Appraisal Institute, negating state licensure alone as being ample for lender approval.

I have been appraising for 23 years now. I perform commercial appraisal work. The Institute does have excellent educational programs, yes. These educational programs were developed by very intelligent persons back in the 1940's and 50's, (Robert Ellwod, and others); however; despite education, competence, nor ability let alone, ethics and morals follow suit.

I have over the years had many dozens of appraisals given to me from clients, with the pretense that this old appraisal will help you with the job we are assigning you today.

I have read through the reports that have so often been prepared by MAI's, and I read them and see a comp sale for say, $65.00 psf, another for $130.00 psf, another for $89.00 psf, and the MAI concludes the value of the subject is $150.00 psf, with absolutely no reasoning at all, but in fact simply plugs in the value as the lender deemed; ie, "MADE AS INSTRUCTED".

In all honesty, I may have seen two or three jobs by MAI's that were very well written, yet, I have also seen a couple of hundred jobs, where they should have been put in Jail, and the key thrown away.

I keep their reports in files that I maintain. Back in 1989, when I went for my MAI, they considered all of my work refuse, namely to eliminate any threat of competition, and accordingly I never did get my MAI, as it is a nepotistic organization, and you are IN, if your relative was an MAI, otherwise you're not. When State Certification kicked in, I simply continued to do my work, and battle with lenders to fight my way onto their tight nit approved list(s).

There is not a week that goes by where a potential client does not say "My Bank requires an MIA appraisal" They rarely ever get the MAI letters in the right order. My absolute disbelief in the work many, if not most of the work the MAI's turn out, is all but inexpressible in words, though I am giving it a shot.

Comps chosen that are twenty miles distant, when comps were available, and quite similar perhaps a mile or two away, to MAKE THAT NUMBER.

The reason FIRREA, created the NON-DISCRIMINATION prohibition in 1989, was due to the so called Savings and Loan debacle, wherein the greatest majority of BAD LOANS made were based on BAD MAI/SRA appraisals, so the law was written to break down, the "Good Ol, Boy" network, and create FREE TRADE. The Institute is now lobbying and pushing to restore said network, more members, more fees, and looks to re-assert it's market industry dominance.

http://www.appraisalunion.org/letterfromthefounder.html

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Job Title: Commercial Appraiser

  • Salary: Not Specified
  • Category: Real Estate / Property Mgmt
  • Date Posted: 05/11/2010
  • Travel Required: Not Specified
  • Security Clearance: No
  • Work Type: Any
  • Job Description

    Job Title: Commercial Appraiser
    Profession: Real Estate -> Property Appraiser

    Baltimore, MD

    Commercial Appraiser Landmark Realty Advisors

    Certified General Real Estate Appraiser needed to join small appraisal / consulting firm conducting business in the Baltimore - Washington, DC area. Established client base with diversified assignments serving lenders, attorneys and government agencies.

    Desired Attributes

    Profession: Real Estate -> Property Appraiser
    Type of Property: Commercial
    Real Property Appraisal Responsibilities: Analyze/research potential markets
    Real Property Appraisal Responsibilities: Assemble/submit deal packages
    Real Property Appraisal Responsibilities: Improve real estate position/portfolios
    Real Property Appraisal Responsibilities: Research market trends/indicators
    Type of Property: Real property
    Personal Property Appraisal Responsibilities: Confirm/verify legal ownership of property items
    Personal Property Appraisal Responsibilities: Evaluate property condition for defects/makers mark
    Personal Property Appraisal Responsibilities: Compile inventory lists/photos

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    House Schedules Debate & Vote On Extenders Bill Thursday

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    House Schedules Debate & Vote On Extenders Bill Thursday

    Your sure to have questions--NH&RA has the experts to answer them

    Join key officials from HUD, the IRS and from key Congressional Committees just as the news is breaking at NH&RA's Spring Policy Forum on May 20 and 21 at the Liaison Hotel on Capitol Hill.

    • What are the final provisions in the compromise tax extenders legislation?
    • When will the Senate schedule its vote?
    • When will the extenders go into effect?
    • What does this important legislation mean for New Market Tax Credits? The LIHTC cash grant exchange program? Historic Preservation? The GO Zone? Multifamily finance? And most important--your business?

    Get right into the thick of the conversation and have all your questions answered in person.

    You still have time to register.

    NH&RA Spring Policy Forum
    May 20-21, 2010
    The Liaison Hotel
    Washington, DC

    Click here to view the conference agenda
    Click here to register online
    Click here to reserve your hotel room

    Questions about the legislation or the meeting? Can't attend both days? We have a limited number of one-day registrations available. Contact Thom Amdur at 202-939-1753 or tamdur@housingonline.com.


    NH&RA Thanks Our Gold Conference Sponsor:

     

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    LLandlords Ready to Move?

    LLandlords Ready to Move?

    City Council weighs costly rent control curb.

    GLB Properties’ Bramson, at his apartment building near Hancock Park.

    GLB Properties’ Bramson, at his apartment building near Hancock Park.  http://labusinessjournal.com/news/2010/may/17/l-landlords-ready-move/

    When landlord John Jones heard that the Los Angeles City Council was considering a moratorium on rent increases allowed under the city’s rent control ordinance, he put all capital improvement projects at his four rent control buildings on hold.

    That means a 120-unit Crenshaw Corridor property he owns won’t be getting new copper plumbing – a $350,000 maintenance project he refuses to take on with the threat of the moratorium.

    “Based on my budgets and forecasts, I expected to be able to raise rent,” said Jones, chief executive of Greystone Management Group Inc., which owns 283 units subject to the city’s rent control ordinance.

    “I don’t know what to expect going forward.”

    If Jones is any example, landlords across the city may be deferring maintenance projects. What’s more, since Jones and other landlords fear that any moratorium may be a prelude to a permanent change in the rent control ordinance, all manner of upgrades and maintenance may be postponed.

    Debate over the city’s Rent Stabilization Ordinance kicked into high gear May 7, when the council voted 8-6 to have the city attorney draft a moratorium that would prevent for up to six months apartment owners from levying the usual 3 percent annual rent increase at rent control units.

    The Rent Stabilization Ordinance allows landlords of apartments built before 1978 to raise rent beginning July 1 each year by 3 percent to 8 percent. The rent hikes must be less than, or equal to, the increase in the previous year’s Consumer Price Index. That means landlords have been able to raise rents by the 3 percent floor amount each year, even though the CPI has been below 3 percent in recent years.

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    Just Released: FY 2010 Income Limits

    Just Released: FY 2010 Income Limits

    Income Limits: 2010 Data Released. HUD has released the estimated median family incomes (MFIs) and income limits for Fiscal Year (FY) 2010. MFIs are used as the basis for income limits in several HUD programs (including the Public Housing, Housing Choice Voucher, CDBG, and HOME programs), as well as in programs run by the Department of Agriculture, the Department of Treasury, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, and Government Sponsored Enterprises.

    The FY 2010 estimates are calculated for 535 metropolitan and 2,037 nonmetropolitan areas in the U.S. and its territories, using the Fair Market Rent area definitions applied in the Section 8 Housing Choice Voucher program. The derivation of FY 2010 MFIs is unchanged from last year, but local and state data are updated with the 2006–2008 American Community Survey.

    The FY 2010 HUD income estimates and limits, a documentation system that explains the derivation of each area's limit and median income estimates, links to the current Income Limits Area Definitions, and other useful information are available as a free download from HUD USER at http://www.huduser.org/portal/datasets/il/il10/index.html.

    In addition to the traditional Income Limits described above, HUD has again developed a set of income limits specifically for projects that rely upon Internal Revenue Code Section 42 Low-Income Housing Tax Credits and Section 142 projects financed with tax-exempt housing bonds. Projects in these two categories are referred to by HUD as Multifamily Tax Subsidy Projects (MTSPs). The FY 2010 HUD MTSP income limits, a documentation system that explains the derivation of each area's MTSP limit and median income estimate, and other useful information are available as free downloads from HUD USER at http://www.huduser.org/portal/datasets/mtsp.html.

    The Federal Register Notice discusses all comments received on the proposal to end HUD’s hold–harmless policy and announces the end of the policy beginning with the FY 2010 Section 8 income limits. In eliminating the hold-harmless policy HUD allowed income limits to decline, but imposed a floor on this decline of 5 percent. Increases in income limits were capped at 5 percent or twice the change in the national median family income, whichever was greater. The Housing and Economic Recovery Act of 2008 changed the tax code to protect existing MTSPs from decreases in income limits and rents by creating project-level hold-harmless calculation of income limits for existing MTSPs, thus obviating the need for HUD to continue the hold-harmless policy for the benefit of MTSPs

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    Logo
    2010 Office and Industrial Market Outlook and Investment Strategies Webcast Registration
     If you have previously registered for this event, please login below:
     
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    Date: Thursday, May 27, 2010
    Time: 10:30 AM Pacific / 1:30 P.M. Eastern


    Join Marcus & Millichap for a comprehensive 2010 outlook of the office and industrial property sectors.

    The webcast will include speaker presentations followed by an interactive Q&A session and will address:
    • Will the recovery stay on track in the second half of 2010?
    • Are the improvements in capital markets impacting office and industrial financing?
    • Have we reached bottom on rents and occupancies?
    • What is the outlook for pricing, cap rates and investment opportunities?

    PRESENTED BY:
    Alan Pontius
    Managing Director
    National Office and Industrial Properties Group

    Hessam Nadji
    Managing Director
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    Managing Director
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    May 16, 2010

    Commercial Appraiser-Appaisal Blog

    QuickPost | System Overview | Movable Type Publishing Platform Commercial Appraiser-Appraisal
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    The Harris Company, REA/C

    The Harris Company, REA/C; http://www.harriscompanyrec.com

    Los Angeles/Southern California harris_curtis@sbcglobal.net

     

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    May 14, 2010

    New and evolving environmental regulations and legislation, combined with the current

      New and evolving environmental regulations and legislation, combined with the current 
              economic crisis, have put an unprecedented strain on development efforts in California.  
              Nossaman will address recent developments in environmental law and federal legislation 
              and will discuss what this means for your projects.

              This is a must attend event for government officials, developers, environmental consultants, 
              planners, engineers, attorneys, and other land use professionals.  Topics will include:             

    • The New CEQA Guidelines for Greenhouse Gas Impacts - Four Things You Need
      to Know
    • AB 32 - Four Years Later: Where Are We Now and What's Still to Come?
    • Update on SB 375
    • Issues in the Sacramento-San Joaquin Delta
    • Securing Coastal Development Permits from the California Coastal Commission -
      Emerging Issues and Successful Approaches
    • Green v. Green - Renewable Energy Development in the California Desert
    • Recent Developments in the Stormwater Permit Process and How to Adhere to 
      the New Requirements

    Join us for this important complimentary legal update presented by the 
    Environment & Land Use attorneys of Nossaman LLP.

    Wednesday, May 19, 2010
    Morton's The Steakhouse
    South Coast Plaza Village
    1641 West Sunflower Avenue
    Santa Ana, CA 92704

    Registration and Breakfast: 7:30 - 8:00 a.m.   
    Seminar: 8:00 - 9:30 a.m.   

    CA MCLE Credit will be offered. 

    Reserve your space today!  Click here to register.   

    For further information, please contact Jenni Benson at 949.477.7615 or
    jbenson@nossaman.com.

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    Buyer Beware: Improper Sale Documentation Results in Waiver of Inverse Condemnation Claim

    Buyer Beware: Improper Sale Documentation Results in Waiver of Inverse Condemnation Claim

     

    By Bradford B. Kuhn and Rick E. Rayl
    May 14, 2010

    If a party purchases property impacted by a governmental taking, and the purchase price already reflects the damages suffered by the taking, can the purchasing party still pursue the government for damages?  The California Court of Appeal chimed in on the issue this week in Ridgewater Associates, Inc. v. Dublin San Ramon Services District (May 11, 2010) __ Cal.App.4th __.  The court held that a property owner cannot recover for inverse condemnation where (1) it knowingly purchases property impacted by a government taking, and (2) the purchase price reflects the property's condition in light of the government impacts.

     

    The case is important not simply because the property owner was thrown out of court despite what amounted to an admitted taking of private property without payment of just compensation.  What really matters here is that it should have been relatively simple to avoid the problems the property owner faced in Ridgewater

     

    The simplest solution would have entailed the prior owner filing an inverse condemnation action.  However, even if the prior owner simply wanted "out," it could have easily assigned the inverse claim to the buyer.  Since both the seller and the buyer inadequately documented the transaction, neither had a remedy for what amounts to an ongoing taking of the property.  And the government essentially got a "free pass" for its taking.

     

    CLICK HERE TO CONTINUE

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    Eric Temple Bell, the brilliant Caltech mathematician, once complained, “‘Obvious’ is the most dangerous word in mathematics.”  “Obvious” can sometimes prove a pretty dangerous concept in the law as well.  One new appellate opinion from the First District suggests that even very perceptive, experienced appellate justices may arguably attach way too much significance to a fact - - just because it seems “obvious.”
          On May 11, 2010, the California Court of Appeal affirmed an Alameda County Superior Court’s ruling in Ridgewater Associates LLC v. Dublin San Ramon Services District (May 11, 2010, A124661 _____ Cal.App.4th _____).  The appellate court held that the owner of a warehouse property (Ridgewater) could not win on a claim for inverse condemnation, even though its warehouse sat next door to a sewage treatment facility - - and even though the evidence showed “that it is highly likely the [warehouse] property was damaged for public use.”
          This damage seems to have qualified as quite “obvious.”  Defendant Dublin San Ramon Services District operated six “sludge lagoons” next door.  The District re-filled the lagoons “periodically... to control odors.”  Some water periodically seeped onto Ridgewater’s warehouse property.  But despite this “highly likely,” or obvious damage, the court rejected Ridgewater’s claim.
          The appellate court, instead, focused heavily on another obvious fact:  Ridgewater (1) had knowingly purchased the property next door to the sludge lagoons “as is,” and (2) negotiated a reduced price that, according to the court, reflected the property’s market value “as is.”  In other words, the appellate court held that an owner cannot recover in inverse condemnation whenever the agency can show that a new owner was already aware of the public agency’s damage, before the owner’s purchase.
    Caution:  Slippery When Wet
          In December 2006, Ridgewater Associates LLC purchased a one-acre warehouse property adjacent to a Dublin San Ramon Services District property.  On its property, the District operated a sewage treatment facility and six “facultative sludge lagoons” (“FSLs”).  The 15-foot-deep FSLs over approximately 26 acres sat immediately adjacent to Ridgewater’s property.  The District used the FSLs to treat sludge from its treatment facility, and maintained a constant level of water over the sludge to control odor.
          Before closing escrow and completing the purchase, Ridgewater inspected the property and discovered that water seeped and sometimes flooded onto its property from the District’s FSLs.  Ridgewater negotiated a price reduction - - from $2.65 million to $2.5 million - - but still closed escrow.  After Ridgewater’s purchase, water continued to seep (and, at times, flood) onto its property.
          Sometime later, in December 2007, Ridgewater sued the District for inverse condemnation.  The District successfully moved for summary adjudication in the trial court.  The District argued that Ridgewater lacked standing to sue for inverse condemnation because any damage to the property had already occurred, before Ridgewater purchased in 2006.
    Owner Wins Battle, Loses The War
          In general, to recover in inverse condemnation, an “‘[owner] must allege the [public agency] substantially participated in the planning, approval, construction, or operation of a public project or improvement which proximately caused injury to plaintiff’s property.’ . . . ‘[A]n action for inverse condemnation is generally available only where the taking results in property damage, [or] other depreciation in market value.’”
          With these rules in mind, the appellate court aptly recognized that Ridgewater had standing to pursue an inverse condemnation claim.  Although the District had tried to rely on some authority barring claims by subsequent purchasers like Ridgewater, the appellate court disagreed.  It explained:  the District’s authorities all involved temporary takings where the condition causing the taking existed only for a period of time before the owner purchased the property.  Here, by contrast, the harm continued after Ridgewater’s purchase.  Ridgewater - - apparently correctly - - claimed that a new, recurring taking occurred during its ownership, every time the District topped off the FSLs with water.
    The Allure Of The Obvious:  Ridgewater Got A Discount
          The appellate court ultimately, however, concluded that Ridgewater should still lose.  The court of appeal explained:
          The evidence shows that it is highly likely the property was damaged for public use, but [also] that Ridgewater was aware of the damage when it purchased the property and was compensated for the damage by the reduced price [that apparently reflected the property’s condition].
          Unfortunately, the appellate court may have opted to rely too heavily on the too “obvious” point:  Ridgewater’s prior knowledge, and the “as is” discount.  In ruling against Ridgewater, the appellate court may have become confused over three important principles.  These are:
    Purchase Price Equals Fair Market Value?
          A plaintiff in inverse condemnation can recover “depreciation in market value.”  The Ridgewater opinion acknowledges this fact.  But the appellate court confused Ridgewater’s purchase price with market value.  Ridgewater may have gotten a great deal and paid less than market value; or it may have paid more.  (Ridgewater may have been counting on recovering against the District in this lawsuit.)  The proper question should have been:  Did the District’s activities diminish what a hypothetical buyer would have paid for the property, but for the seepage?  This is a type of question real estate appraisers answer all the time.  The actual purchase price Ridgewater paid up to a year earlier might have some slight - - but only slight - - relevance to the property’s market value.  The appellate court may have focused on the wrong “obvious” fact.
    Ignoring Date of Value?
          A property’s market value does not simply equal whatever the owner paid for the property in the past.  In inverse condemnation for an agency’s physical invasion of property, the time of the invasion typically sets the date of value.  (Leaf v. City of San Mateo (1984) 150 Cal.App.3d 1184, 1191 [198 Cal.Rptr. 447] [disapproved on other grounds by Trope v. Katz (1995) 11 Cal.4th 274, 292 [45 Cal.Rptr.2d 241]].)  Here, the invasion of Ridgewater’s property was ongoing, and occurred up to a year after Ridgewater’s purchase.  Markets can change over that period of time.  Because the appellate court equated Ridgewater’s purchase price with market value, it used the date of purchase as the date of value (2006), rather than the date of invasion (2007).
    Do Agencies Have A “Prior” Knowledge Defense To Inverse Condemnation?
          Little authority supports the court’s imputation of a “prior knowledge” defense for public agencies in inverse condemnation.  The one case the appellate court cites (County of Los Angeles v. Berk (1980) 26 Cal.3d 201 [161 Cal.Rptr. 742]) for this concept, in fact, involved a buyer who lacked knowledge of the property’s condition before the buyer’s purchase.
     
     Murphy Evertz bank logo.jpg

      650 Town Center Drive, Ste. 550, Costa Mesa, CA  92626
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    Judge Grants Class Action Status in Tenant-Pinnacle Suit

    NEW YORK CITY-The five West Harlem tenants that are suing New York City landlord the Pinnacle Group LLC are asking for tenants in Pinnacle buildings across New York City to submit evidence that will substantiate their charges.

    A press conference was held on Wednesday at The Dunbar where the five West Harlem tenants, Manhattan Borough president Scott M. Stringer, several members of the City Council and the group Buyers and Renters United to Save Harlem (Brush) spoke of the importance of a recent decision by US District Court Judge Colleen McMahon in granting class action status to the case originally filed in 2007 against Pinnacle and its CEO Joel Weiner. The tenants charge the Pinnacle Group fraudulently inflated rents, failed to make needed repairs and groundlessly harassed tenants out of rent-regulated apartments throughout New York City.

    Ken Fisher, an attorney representing Pinnacle in the case, says that it has filed for leave to appeal the class action status ruling rendered by Judge McMahon on April 27 with the US Court of Appeals.

    Supporters of the tenants in their case against Pinnacle term the class action ruling as "one of the most far-reaching court decisions in New York City’s history that could potentially benefit thousands of tenants in rent-regulated apartments across the city." The decision certifies that the class consists of all persons who are rent regulated tenants in Pinnacle properties as of April 27, 2010 and a liability class for rent regulated tenants who lived in Pinnacle properties between July 11, 2004 and April 27, 2010.

    http://www.globest.com/news/1661_1661/newyork/184987-1.html

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    Florida Court Of Appeal: State Must Pay When It Destroys Healthy Orange Trees

    Posted: 13 May 2010 11:51 AM PDT

    Orange-fruit-2When the state purposely destroys healthy citrus trees as part of a program to address citrus canker, it must pay the owners of the trees just compensation.

    In Dep't of Agriculture & Consumer Services v. Borgoff, No. 4D08-4474 (May 12, 2010), the Florida District Court of Appeal (Fourth District) affirmed an $11 million class action jury verdict ordering the Department of Agriculture to pay for the more than 100,000 non-commercial trees it cut down and destroyed in Broward County. The Department's eradication program destroyed any citrus tree within 1,900 feet of any tree found with citrus canker. The court concluded this was a taking: 

    Cutting down and destroying healthy noncommercial trees of private citizens could hardly be more definitively a taking. Government has regulatory power for the very purpose of safeguarding the rights of citizens, not for destroying them.

    Slip op. at 6 (footnote omitted) (emphasis added). The court first concluded that it would not disturb the jury's determination that healthy citrus trees "are not harmful or destructive, even though found within 1,900 feet of a tree having citrus canker." Slip op. at 3. The Department asserted that its scientific evidence was more convincing, but court held that it was the function of the jury to choose which side's evidence should be accepted. Because"[t]here is evidence in the record that the healthy trees taken under the [eradication program] had continued to produce the fruit, the juice, the shade, the pleasing aromas, the agreeable vistas — all the virtues for which their owners carefully planted and tended them," slip op. at 3, the appeals court would not override the jury's conclusion.

    The court also rejected the Department's argument that healthy trees exposed to citrus canker were valueless because they were a nuisance, and will eventually develop canker. "It is apparent from the history of this case that [the Department] destroyed these privately owned healthy trees not because they were really 'imminently dangerous' to anybody but instead to benefit the citrus industry in Florida." Slip op. at 4 (citation omitted). Nuisance is reserved for things that cause imminent "inconvenience or damage" to the public, and the court rejected the Department's claim that the healthy trees were a danger: 

    If trees are destroyed not to prevent harm but instead to benefit an industry, it is difficult to understand how [the Department] can argue on appeal that the trees legally constituted a nuisance without any value.

    Slip op. at 4. The court also rejected the Department's claim that multi-factored takings tests are applicable instead of a per se physical invasion rule. See slip op. at 5-6. Calling the multi-factored test "recondite," (the opinion does not cite Penn Central, but what else could it be referring to?), the court held: 

    Under any possible meaning, if government cuts down and burns private property having value, then government has taken it. And if government has
    taken it, government must pay for it.

    Slip op. at 6.

    Lastly, the court bluntly rejected the Department's claim that the Florida legislature replaced the common law claim for inverse condemnation for destruction of citrus trees with a statutory claim. Slip op. at 6 ("Like most of the arguments of [the Department] in this dispute, it seems to have been made without regard to history, positive law or precedent.").

    More about the decision from the Miami Herald: Court upholds $11M citrus canker payout, but Florida vows to appeal. It looks like we have not seen the last of this issue.

    This posting includes an audio/video/photo media file: Download Now

    Petition To Watch: Is A Littoral Owner Trespassing When The Shoreline Erodes?

    Posted: 13 May 2010 11:30 AM PDT

    SCOTUSblog has listed Sharp v. United States, No. 09-820 as a "petition to watch" for the Court's conference today.

    In that case, the property owners are asking the U.S. Supreme Court to review the Ninth Circuit's decision in United States v.  Milner, 583 F.3d 1174 (9th Cir. 2009), which held that a littoral owner was liable for trespass in waters held by the federal government for the benefit of the Lummi Nation, and for violation of the Rivers and Harbors Act for maintaining a "shore defense structure." The structure was built on private fast (dry) land, but the shoreline eventually eroded up to it.

    In the opinion, detailed in this post, the Ninth Circuit held that "both the tideland owner and the upland owner have a right to an ambulatory boundary, and each has a vested right in the potential gains that accrue from the movement of the boundary line." Slip op. at 14477. The shoreline defense structure may have been legal when it was built, according to the court, but it became illegal when it impeded natural erosion.

    We detailed the cert petition here.

    Here are the petition, BIO of the Lummi Nation, the U.S. government's BIO, and the amicus briefs:

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    May 13, 2010

     
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    As the IRS Nationwide Tax Forums are about to begin, the IRS invites enrolled agents, certified public accountants, certified financial planners and other tax professionals to make their reservations for one of six forums being held throughout the country this summer. Those who sign up by the pre-registration date will save $129.

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    Ely On "Stevens, Kagan and Property Rights"

    Ely On "Stevens, Kagan and Property Rights"

    Posted: 12 May 2010 04:48 PM PDT

    Vanderbilt lawprof James Ely (if you haven't read his book The Guardian of Every Other Right: A Constitutional History of Property Rights (1998), you really should) writes on the topic du jour, the nomination of SG Elena Kagan to the Supreme Court in Stevens, Kagan and property rights.

    Most of the article focuses on Justice Stevens' record in property cases:

    However, in at least one important area of constitutional law - the rights of property owners - Justice Stevens' record fell woefully short of protecting the interests of average citizens. In fact, Justice Stevens consistently dismissed property rights claims and voted to strengthen government control over the lives of individuals.

    He concludes with this:

    Hopefully Elena Kagan, Mr. Obama's nominee to replace Justice Stevens, holds a more balanced view of the importance of property rights in the American constitutional order. As in many other fields of law, however, Ms. Kagan's record with respect to property rights is a blank slate. It certainly would be appropriate for senators at Ms. Kagan's confirmation hearing to ask about her thoughts on this subject.

    Will they, and more importantly, will she respond with anything more than a the claim that judges are "umpires?"

    Yale Law Journal: Eminent Domain Due Process

    Posted: 12 May 2010 03:43 PM PDT

    A new article worth reading: Eminent Domain Due Process, 119 Yale L. J. 1280 (2010) by D. Zachary Hudson. Here's the abstract:

    This Note analyzes the apparent disconnect between eminent domain doctrine and due process doctrine. Following Kelo, numerous states have reformed their eminent domain laws in an effort to ensure that the takings power is not abused. Whatever one makes of these legislative reforms, at an absolute minimum, the Due Process Clause should guarantee that landowners receive notice and an opportunity for some sort of judicial determination of the legality of the taking before the land is actually taken. After cataloging existing eminent domain laws, this Note traces the evolution of these laws over time in both the legislatures and the courts. In parallel, this Note analyzes the evolving circumstances driving the judicial perception of eminent domain. Examining these facts, the Note explains why courts have failed to rein in the eminent domain power with procedural protections. After establishing the appropriateness of applying modern due process principles to eminent domain actions, the focus of the inquiry shifts to what procedural due process demands. This colloquy explains what process is due, what the content and form of that process should be, and the likely effects of recognizing due process rights in the eminent domain context.

    The article cites one of my home jurisdictions (Hawaii) as taking a "middle course" by providing "some process" before the taking:

    Several other states require notice by statute prior to allowing the exercise of eminent domain authority, but do not specifically afford any form of precondemnation judicial process. Under Hawaii law, for example, a taking can be accomplished by a simple filing with the court, but the condemnor must also provide notice to the owner of the property it seeks to condemn. There is no specific judicial proceeding provided for under this statute, but by ensuring notice to the property owner, the statute at least gives the individual the opportunity to attempt to insert herself in the process by seeking an injunction or pursuing some other equitable remedy.

    119 Yale L. J. at 1289 (citing Haw. Rev. Stat. § 101-28 (2006)).

    Thanks to my colleague Dwight Merriam for the heads up on this article.

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    May 12, 2010

    Cal Ct App: You Knew The Property Was Damaged When You Bought It

    Cal Ct App: You Knew The Property Was Damaged When You Bought It

    Posted: 11 May 2010 04:04 PM PDT

    In a partially-published* opinion in Ridgewater Associates, LLC v. Dublin San Ramon Services District, No. A124661 (Apr. 11, 2010), the California Court of Appeals (First District) held that a property owner did not muster sufficient proof to support its claim for inverse condemnation against a neighboring sewage treatment facility. Ridgewater claimed that water from the facility intruded on its property.

    The appeals court first rejected the trial court's conclusion that Ridgewater lacked standing because it was seeking relief for damages that occurred prior to its purchase of the property. The court held that by asserting it has been forced to pump intruding water off of its land, Ridgewater was asserting a claim for damages occurring during its ownership, and not for damages incurred before. Slip op. at 6 ("Ridgewater claims that rising water in the loading dock must be pumped to and over the paved surfaces on Ridgewater's property, erodes the pavement and requires additional maintenance and repairs.").

    Even though Ridgewater had standing, the appeals court concluded that it did not prove it was damaged by the water intrusion. "Ridgewater was aware when it purchased the property that it was affected by '[c]ertain water table and water intrusion conditions' and the price it paid was reduced to take those conditions into account." Slip op. at 6. Someone who purchases land knowing it is subject to such conditions "cannot claim to be the victim of a governmental taking." Slip op. at 7. The court published this portion of the opinion.

    In the unpublished portion, the court rejected Ridgewater's nuisance claim. The government is immune from liability for "injuries caused by the plan, design or construction of a public improvement that is built in conformance with the plan or design and is reasonably approved by a public body." Slip op. at 7 (citing Cal. Gov't Code § 830.6). The court concluded "[t]here is no reason to conclude the plans for the [sewage facilities] were not approved by the District's governing body and constructed in accordance with that approval." Slip op. at 10.

    --------------------------------
    *For those of you not aware of the California courts' unusual publication practices, find out more here.

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    May 11, 2010

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    Dear Curtis,
    Over the past several days NH&RA has met with several key House and Senate staffers on the tax writing, banking/financial services and appropriations committees to discuss critical legislation impacting affordable housing, historic rehabilitation and New Markets Tax Credit development.  We are pleased to report that Congress is poised to take action on several key pieces of legislation in the next several days. Here is a taste of what we learned...

    Tax Legislation On The Move...

    The Tax Extenders Legislation is still on track to be enacted before Memorial Day. House and Senate negotiators are working out the final details as we speak. Prospects seem very positive for a one-year extension of the 1602/Exchange program for 9% LIHTC, as well as extensions of the New Markets Tax Credit and GO Zone Historic Credits/Bonus Depreciation. It is also looking increasingly likely that the National Affordable Housing Trust Fund will finally get funded in the Tax Extenders Legislation bringing in much a needed new source of gap financing for affordable housing transactions.  Compromise legislation could move in the House of Representatives as soon as this week.

    Unfortunately, there is still a great deal of uncertainty on other key legislative initiatives. Budget constraints and the the mid-term elections have created a shortened legislative calendar and a heightened partisan atmosphere. There are still legislative vehicles to move forward our agenda but it is a a very challenging legislative environment.

    Learn More...

    Find out what this means for your business by joining us in Washington next week (May 20-21) for the NH&RA Spring Policy Forum to get all the latest updates from key legislative staffers and regulators on the extenders legislation and also learn about the prospects for other key programs and provisions still on the table including:

    • Expanding the 1602/Exchange Program to 4% LIHTC transactions
    • 5-Year Carry-Back
    • New Markets Tax Credit AMT Fix
    • Historic Tax Credit Amendments
    • Preservation Legislation
    • Transformation of Rental Assistance
    • FY-2011 HUD Appropriations
    • Choice Neighborhoods Initiative
    • Build America Bonds
    • Mid-West Flooding/Disaster Credits Extension
    • Taxing Carried Interest
    • Section 202/811 Funding and Fixes
    • ...and more

    NH&RA Spring Policy Forum
    May 20-21, 2010
    The Liaison Hotel
    Washington, DC

    Click here to view the conference agenda
    Click here to register online
    Click here to reserve your hotel room

    Questions about the legislation or the meeting? Can't attend both days? We have a limited number of one-day registrations available. Contact Thom Amdur at 202-939-1753 or tamdur@housingonline.com.


    NH&RA Thanks Our Gold Conference Sponsor:

     

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    May 07, 2010

    Southern California Apartments to See Further Rental Declines

    Southern California Apartments to See Further Rental Declines

    Home Builders' Amicus Brief In SCOTUS Eminent Domain Case: Is Wisconsin's Application Of The Undivided Fee Rule Unconstitutional?

    Posted: 05 May 2010 01:09 PM PDT

    Today, on behalf of the National Association of Home Builders and the Wisconsin Building Association, we filed this brief amici curiae in  City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010).

    The brief argues that the "undivided fee rule," as applied by the Wisconsin Supreme Court, violates the Fifth Amendment's Just Compensation Clause because it  requires that the value of a leasehold interest which would be worth over $1 million if condemned separately be valued at zero. Most eminent domain attorneys know about the infamous undivided fee rule (aka as the "unit rule" in some jurisdictions), a legal fiction which requires a trial court to calculate valuation of property as if a single owner possessed everything, even when it is held by more than one interest. Under the rule, the condemnor is not required to compensate each separate interest in the property, but treats the property as if it had one owner.

    For example, if a condemned building is being leased to tenants, compensation is measured by the value of the undivided fee simple absolute value of the building, not the aggregate value of the building and the leases. The building owner and the tenants must divide up the condemnation award by contract. In many if not most cases, the rule is uncontroversial. But in a few cases its rigid application works very unusual and unfair results.

    In City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, 768 N.W.2d 749 (Wis. 2009), a sharply divided Wisconsin Supreme Court applied the rule to conclude first that a tenant who owned an admittedly valuable long term lease ($1 rent per year, plus goodies) was not entitled to any compensation because the value of the building was zero.We deconstructed the opinion in this post: Wisconsin Supreme Court: The Whole Is Lesser Than The Sum Of Its Parts.

    The VFW's cert petition presents the following questions:

    When the Milwaukee Redevelopment Authority took by eminent domain the 11-story downtown building that housed the offices of Post 2874 of the Veterans of Foreign Wars (VFW) as a long-term lessee, the Wisconsin Supreme Court held 4 to 3 that—as a matter of law—the VFW was not entitled to present any evidence of value, nor entitled to recover any compensation whatever for its concededly valuable long-term leasehold.

    The questions presented are:

    1. Does it violate the 5th and 14th Amendments for Wisconsin—like some jurisdictions, but in conflict with others and with this Court’s repeated insistence that the appropriate question in an eminent domain proceeding is "what has the owner lost, not what has the taker gained"—to apply its "undivided fee rule" in such circumstances?

    2. Did the court below violate VFW’s constitutional right to due process of law by precluding it, as the owner of a valuable interest in property being taken through eminent domain, from introducing any evidence of the value of its leasehold property?

    The petition points out the split of authority in the lower courts on the applicability of the undivided fee rule. Some twenty states (Hawaii included) apply the rule regardless of the circumstances. Seven other jurisdictions never apply the rule. Still others (eight states and several federal courts) apply the rule, but are willing to deviate from it when its application would deny just compensation. A split of authority is one of the surest tickets to Supreme Court review. To add to this case's chances, the Court has appeared to be interested in the question of just compensation recently. During the oral arguments in Kelo v. City of New London, for example, two Justices asked counsel about it, even though just compensation was not at issue in that case.

    The petition sums up the basic issue, and the equities:

    The question is whether valuation by this fictional technique satisfies the 5th and 14th Amendments’ guarantee that those whose property is commandeered for public use will receive just compensation, usually defined as fair market value. The result below speaks eloquently. The Veterans of Foreign Wars received $0 as compensation for a long-term lease, a lease that the majority opinion had to concede had value, even though application of the  undivided fee rule forbade the VFW from presenting any evidence as to that value or receiving any compensation from the Redevelopment Authority for its taking.

    Petition at 4-5. Our amici brief argues:

    The "undivided fee" rule – a rule of convenience under which a court will not value a leasehold interest separately if it is condemned along with the fee simple estate – cannot override the Fifth Amendment’s guarantee of just compensation when property is taken.

    A uniform standard is sorely lacking and the Wisconsin Supreme Court’s rigid application of the undivided fee rule resulted in the literal evaporation of what was acknowledged by all parties to be a valuable property interest. The Private Property and Just Compensation Clauses require more.

    Leaseholds are"property" protected from uncompensated takings by the Fifth Amendment, and if the VFW’s lease alone had been condemned, there would be no question it would be entitled to compensation and to have a jury determine the lease’s value. See, e.g., United States v. General Motors Corp., 323 U.S. 373, 380 (1945) ("The right to occupy, for a day, a month, a year, or a series of years, in and of itself and without reference to the actual use, needs, or collateral arrangements of the occupier, has a value."). The Wisconsin court’s application of the undivided fee rule to value that lease at zero as a matter of law simply because the fee simple interest was also being acquired – and to prohibit the VFW from presenting evidence of the lease’s actual value to the jury – ignored its status as  Fifth Amendment property, entitled to recognition independent of the fee simple interest, and separate valuation.

    This Court should grant the writ of certiorari to review the Wisconsin Supreme Court’s conclusion that in eminent domain law, somehow the whole can be lesser than the sum of its parts.

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    A new lot has been added to the IRS Luxury Vessel and Vehicle Auction

    June 3, 2010- Broward County Convention Center

     

    Lot 16: 2010 Lamborghini Murcielago LP670-4 Super Veloce: 6.5L V12, 6 Speed Automatic Transmission w/ Manual Mode, OD, White Exterior, Black Interior, Automatic Climate Control, AM/FM/MP3, Navigation System, Power Steering, Power Locks, Power Windows, Aluminium Wheels, Odometer Reads: 298, VIN: ZHWBU8AHXALA03837

     

    Please visit http://treas.gov/auctions/treasury/gp/luxAuction.shtml for Terms of Sale and preview information. You may also call 888-534-2828 if you have other questions.

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    Eminent Domain and Valuation

     
     You're Going to Do What With My Property?
    City of Stockton v. Marina Towers, LLC (2009) 171 Cal.App.4th 93
     
       
     
    May a public entity condemn property first, then decide what to do with that property later? The answer, according to the recent decision of the California Court of Appeal in City of Stockton v. Marina Towers, is a resounding “no!

    Factual Background

    Marina Towers, LLC (“Marina”) owned two parcels of property along the North Shore of the Stockton Deep Water Channel. In early 2003, an agency of the City of Stockton (“City”) began planning to redevelop the North Shore area, including Marina’s property. Plans included construction of a multiuse event center containing a sports arena, hotel, baseball stadium and residential apartments.

    In August of 2003, City offered to purchase Marina’s property. When Marina refused, City adopted resolutions of necessity for the taking of the property. Despite City’s general plan for an event center, the resolutions contained no specific description of the use to which the property would be put, stating only that “the Proposed Project consists of the acquisition of additional land in conjunction with potential development on the North Shore of the Stockton Deep [W]ater Channel.” The resolutions also made reference to a laundry list of statutes purportedly authorizing the taking.

    In October of 2003, City filed its complaint in eminent domain. Marina answered, alleging that the resolutions were defective because they failed to sufficiently identify any public use for the property. While litigation was pending, City obtained possession of the property and constructed a public parking lot and baseball field. In April of 2005, trial commenced. Following Marina’s opening statement, City moved for nonsuit. The trial court granted the motion on the grounds that City had ultimately put Marina’s property to a public use. Marina appealed.

    Applicable Legal Authority

    California Code of Civil Procedure section 1240.030 provides that private property may only be condemned for a proposed project where (a) the public interest and necessity require the project; (b) the project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; and (c) the property sought to be acquired is necessary for the project.

    California Code of Civil Procedure section 1245.230, subd. (a), provides that a resolution of necessity must contain “[a] general statement of the public use for which the property is to be taken and a reference to the statute that authorizes the public entity to acquire the property by eminent domain.” (Emphasis added.)

    California Code of Civil Procedure section 1245.230, subd. (c), provides that a resolution of necessity must contain a declaration by the public entity that each of the elements of Code of Civil Procedure section 1240.030 is satisfied with respect to the proposed project.

    The Court's Decision

    The Court of Appeal reversed the trial court’s grant of nonsuit. In so doing, it opined that City’s resolutions of necessity were “woefully lacking” in their identification of the project proposed to be constructed on Marina’s property. According to the court, the project description was so “vague, uncertain and sweeping in scope” that it failed to identify the public use for which City sought to acquire the property. The court held that an adequate project description is a prerequisite to condemnation, and that for a resolution of necessity to support a taking, it must identify the proposed project with such specificity that “persons of ordinary intelligence can discern what the ‘project’ is.”1

    The court identified four reasons why an inadequate project description must be considered fatal to a taking. First, an inadequate description prevents a determination whether the elements of Code of Civil Procedure section 1240.030 are satisfied (e.g., that the public interest and necessity require the project, etc.). Second, if vague descriptions were permissible, a municipality could improperly evade the environmental protections provided by CEQA. Third, a private landowner’s due process rights require a specific project description. Finally, an adequate description is essential to enable judicial resolution of defenses to condemnation.

    In addition to finding an inadequate project description, the court also found fault with City’s reference in the resolutions of necessity to multiple statutes purportedly authorizing the taking. The court observed that, rather than referring to a specific statute as required by Code of Civil Procedure section 1245.230, subd. (a), City’s “resolution[s] simply trot[] out a laundry list of statutes setting forth a plethora of possible purposes for condemning property. This global, yet evasive enumeration constitutes an implied admission that [City] does not yet know to what use it intends to put the property.” (Emphasis added.)

    Finally, the court held that the fact that City had ultimately put the property to a public use was irrelevant to its determination whether the resolutions of necessity were adequate. The court opined that “the entire objective of requiring a resolution of necessity is to ensure that the public entity makes a careful and conscientious decision about the need for the … property before it condemns private property. This purpose would be eviscerated if the validity of a resolution of necessity could be validated by post hoc events.” (Emphasis added.)

    Despite the court’s findings of inadequacy of City’s resolutions, it ultimately gave City another chance to get the condemnation right. It remanded the case with directions that the trial court order a conditional dismissal, allowing City an opportunity to adopt new resolutions of necessity. This decision was based, in part, on the court’s observations that City had improved the property, and that allowing the return of the property would result in a substantial windfall to Marina. However, the court did award Marina reasonable litigation expenses.

    Lessons to Be Learned From the Decision

    For Public Entities Seeking to Condemn

    • A resolution of necessity must contain an adequate description of the proposed project! As mentioned by the court, the Law Revision Commission comments to Code of Civil Procedure section 1245.230 provide some guidance as to what constitutes an adequate description. Examples include statements that the public use is an “elementary school and grounds” or “right of way for a freeway” or “open space to be maintained in its natural condition.”

    • A resolution of necessity must carefully and appropriately limit references to statutes authorizing the taking.

    • It is important to consider whether the property in question may be condemned pursuant to the Community Redevelopment Law; this may obviate the need for a specific description of the project.

    • You can’t expect that deficiencies in a resolution of necessity will be excused simply because the subject property is ultimately put to a public purpose.

    • You can expect that attorneys’ fees may be awarded against you if a landowner successfully challenges a deficient resolution of necessity.

    For Private Landowners being Condemned

    • It is important to check the public entity’s resolution of necessity for an adequate description of the proposed project and to determine whether it references inapplicable statutes purportedly authorizing the taking.

    • You can’t expect deficiencies in a resolution of necessity to necessarily result in your being able to keep the property. The public entity may be allowed a second “bite at the apple” for the condemnation, particularly if it has improved the property prior to trial.

    • It is important to challenge a deficient resolution of necessity as early as possible. An early challenge may improve your chances of being able to keep the property.

    __________________

    1 As mentioned by the court, a notable exception to this rule exists where a redevelopment agency seeks to condemn property to combat urban blight pursuant to California’s Community Redevelopment Law (“CRL”). In such a situation, it is not necessary for the agency to specifically identify the particular use to which the condemned property will be put, as the CRL specifically defines the redevelopment of blighted areas as a “public use” subject to condemnation.

    Steven S. Wall
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    swall@luce.com
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    Antony D. Nash
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    Eminent Domain & Valuation

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    May 04, 2010

    SFG Bank Assets – Winning Bidder Announced

    SFG Bank Assets – Winning Bidder Announced

    FOR IMMEDIATE RELEASE
    May 4, 2010
    Media Contact:
    David Barr
    (202) 898-6992
    Email: dbarr@fdic.gov

     

    The Federal Deposit Insurance Corporation (FDIC) has signed a bid confirmation letter to sell a 40 percent equity interest in a limited liability company (LLC) created to hold assets of SFG, a subsidiary of Silverton Bank, Atlanta, Georgia, to Square Mile Capital Management LLC. The FDIC will initially hold the remaining 60 percent equity interest in the LLC.

    The offered assets for sale consisted predominantly of performing hospitality loans and loan participations with an unpaid principal balance of approximately $421 million. The sale was conducted on a competitive bid basis, and best and final offers were received on Friday, April 23, 2010. The bid received from Square Mile was determined to be the offer that would result in the greatest return for the receivership of all competing bids. Silverton Bank failed on May 1, 2009. The expected closing date is mid-May, 2010.

    ###

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    May 03, 2010

    Justice Department Opens Criminal Probe of Goldman

    Justice Department Opens Criminal Probe of Goldman
    The Associated Press

    Stepping up the pressure on Goldman Sachs just days after its executives were grilled and publicly rebuked by lawmakers, the Justice Department has opened a criminal investigation of the Wall Street powerhouse over mortgage securities deals it arranged. The investigation by the U.S. Attorney's Office in Manhattan stems from a criminal referral by the Securities and Exchange Commission, said a knowledgeable person who spoke on condition of anonymity because the inquiry is in a preliminary phase.
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    Jury Awards $200 Million in Punitive Damages in Asbestos Case

    Jury Awards $200 Million in Punitive Damages in Asbestos Case
    The Recorder

    A Los Angeles jury awarded $200 million in punitive damages and $8.8 million in compensatory damages in an asbestos product liability case last week. A California punitive damages expert said it's rare for punitives to be awarded in asbestos cases, but it remains to be seen how much of it will survive. After the jury handed down its verdict, Los Angeles County Superior Court Judge Conrad Aragon asked attorneys from both sides to write briefs on what an appropriate punitive damages award would be.
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    San Gabriel Valley Council of Governments

    The San Gabriel Valley Council of Governments is seeking a qualified firm to develop and conduct a baseline analysis of the land use, transportation, and mobility needs for the Valley Boulevard Corridor.  The SGVCOG is seeking an analysis that provides an understanding of the corridor’s function, adjacent land use, and the impact of this land use within the corridor. In addition, the analysis will serve to identify problem areas caused by mobility issues and potential beautification improvement areas.
    For your convenience, please find an attached a copy of the RFP for review. Interested candidates must submit questions to the SGVCOG by May 13th. A mandatory bidder’s conference will take place Monday, May 17th at 2pm. Proposals are due on June 4th, 2010.  All questions must be submitted in writing by May 13th (via email to sgv@sgvcog.org). 
    For more information please visit our website at www.sgvcog.org.
    Sincerely,
    Osvaldo Pena San Gabriel Valley Council of Governments
    3452 E. Foothill Blvd, Suite 910
    Pasadena, CA 91107
    Ph: (626) 564-9702
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    SENIOR COMMERCIAL REVIEW APPRAISER at Union Bank

    SENIOR COMMERCIAL REVIEW APPRAISER at Union Bank

    Location: Oakland, CA (San Francisco Bay Area) http://www.linkedin.com/jobs?viewJob=&jobId=945826&trk=tw&public_key=9ryayimakbqhpp13bwvhz1krs7rrg2ih6727j2

    URL: http://www.unionbank.com/careers

    Type:Full-timeExperience:Mid-Senior levelFunctions:Consulting, Project Management, Quality Assurance Industries:Banking, Commercial Real Estate, Real Estate Posted:April 29, 2010Compensation:DOEEmployer Job ID:11104

    Job Description

    Job Summary:

    Reviews appraisals to prior to their utilization by the Bank in connection with commercial real estate-related lending transactions, including new originations, renewals, asset monitoring, collection and workout activities. Also performs appraisals of complex properties, and participates in the training and development of junior staff appraisers and loan officers.

    Major Responsibilities:

    · Performs technical reviews of appraisals prepared by staff and independent fee appraisers for compliance with OCC appraisal regulations; for conformance to the Uniform Standards of Professional Appraisal Practice (USPAP); and, for adherence to Commercial Appraisal Section (CAS) policy and procedures.

    · Assures that appraisal report deficiencies, if any, are corrected by either the original appraiser or by the review appraiser.

    · Performs both desk reviews and, as required for quality control and audit purposes,

    · Periodic field reviews of commercial appraisals.

    · Prepares documentation of the review process.

    · Prepares evaluations of independent fee appraiser performance for use by the CAS Compliance Officer in the administration of the Commercial Appraisal Fee Panel.

    · Performs compliance audits/screens of appraisals and evaluations for which the scrutiny of a technical review is not required.

    · Prepares documentation of the compliance audit/screen process

    · As dictated by Regional Office workload and is directed by the CAS Regional Manager, performs appraisals of complex properties (existing and proposed), including large commercial, industrial, multi-family residential, tract developments, and special purpose.

    · Appraisal complexity may be determined by factors such as the nature of the interest appraised, e.g. complicated leasehold analysis; special project financing, e.g., bonds and assessments; and atypical market conditions.

    · Appraisal assignments typically pertain to California properties, but occasionally involve out-of-state properties.

    · Appraisals are prepared in compliance with OCC appraisal regulations; in conformance to the Uniform Standards of Professional Appraisal Practice (USPAP); and, in adherence to Commercial Appraisal Section (CAS) policy and procedures.

    · Participates in the training and development of junior staff, and in loan officer orientations.

    · Performs other duties as determined by the CAS Regional Manager or Area Supervisor.




    Skills

    Skills and Abilities Required-Effective planning, organization, and communication (oral and written) skills are required, as is the ability to perform research and analysis consistent with the complexity of the appraisal assignment. Must be able to perform job duties with minimal supervision. This position involves interaction with the Section, with other areas of the Bank, and with independent fee appraisers, and the ability to work with others is therefore an essential requirement.

    Knowledge required- This position requires a thorough knowledge and understanding of the following:

    · Appraisal theory and technique;

    · Appraisal regulations (FIRREA);

    · The Uniform Standards of Professional Appraisal Practice (USPAP)

    · UBOC Commercial Appraisal Policy (Bankwide);

    · CAS Policy and Procedures; and

    · Computer literacy in word processing and spreadsheet applications.



    Experience Required:

    · Four year college degree, or equivalent experience;

    · Minimum of three to five years of varies and increasingly complex commercial real estate appraisal experience;

    · Current licensure by the State of California Office of Real Estate Appraisers as a

    · Certified General Appraiser


    This position reports to: Area Supervisor - Commercial Appraisal Section
    Reporting to this position: None"



    Union Bank is committed to leveraging the diverse backgrounds, perspectives, and experiences of our workforce to create opportunities for our people and our business. EOE. M/F/D/V

    Company Description

    For consideration please forward resumes directly to huyen.phan@unionbank.com or apply online at www.unionbank.com/careers and reference job#11104

    At Union Bank, our people are our greatest asset. We invest in a diverse workforce as our employees come from many different backgrounds, bringing with them different experiences and perspectives. Union Bank has established a generous community reinvestment program that works to uplift communities and watch them grow. Headquartered in San Francisco, UnionBanCal Corporation is a financial holding company with assets of $78.2 billion at September 30, 2009. Its primary subsidiary, Union Bank, N.A., is a full-service commercial bank providing an array of financial services to individuals, small businesses, middle-market companies, and major corporations. The bank has 337 banking offices in California, Oregon, Washington and Texas and two international offices. UnionBanCal Corporation is a wholly-owned subsidiary of The Bank of Tokyo-Mitsubishi UFJ, Ltd., which is a subsidiary of Mitsubishi UFJ Financial Group, Inc. Union Bank is a proud member of the Mitsubishi UFJ Financial Group (MUFG, NYSE:MTU), one of the world's largest financial organizations. Visit www.unionbank.com for more information.

    Become part of a team where community, diversity, and exceptional service are part of everyone's job. Invest in you!

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    Court permits cross examination of expert appraiser's past disciplinary actions

    Court permits cross examination of expert appraiser's past disciplinary actions

    Thursday, April 29, 2010
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    Twitter

    You may be missing out if you are not folloowing us on twitter: http://twitter.com/Cochise007

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