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January 31, 2011

This year’s first edition of Breakthroughs has just been posted on the Regulatory Barriers Clearinghouse (RBC) website. In this issue, you’ll read about Bainbridge Island, Washington’s innovative housing program, communities adopting the SmartCode, and Montgomery County, Maryland’s plans for developing a mixed-use, pedestrian-friendly neighborhood.
Check out the January issue of Breakthroughs to see how...
·         Bainbridge Island is encouraging the development of homes that are innovative, affordable, and sustainable;
·         Communities are customizing the SmartCode with added provisions for affordable housing development; and
·         Montgomery County is planning to transform an auto-dependent corridor into a livable and walkable suburban urban center.
Again, you can read or download the current issue at http://www.huduser.org/portal/rbc/newsletter/vol10iss1_1.html. If you have similar stories that you think would help others, we’d like to know about them. Call us at 1-800-245-2691, option 4, or send us an email at rbcsubmit@huduser.org. Who knows, we may even highlight your community’s efforts in a future issue of Breakthroughs!
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January 29, 2011

2011 NATIONAL APARTMENT REPORT

!
2011 NATIONAL APARTMENT REPORT
 
The recovery of the apartment market exceeded expectations both in timing and magnitude, laying the foundation for extraordinary improvements in operations in 2011. All 44 major U.S. apartment markets are forecast to register employment growth and extremely limited construction this year. As these powerful trends combine, renter demand will significantly outpace new supply, generating tightened vacancies and rent gains. This accelerated recovery has opened exceptional investment opportunities, and yields for the best assets have already begun to decline..
To help you formulate your investment strategy for the coming year, Marcus & Millichap presents the 2011 National Apartment Report. The 2011 National Apartment Report explores the unique market dynamics of 44 metros across the country, delving into construction activity, rents, vacancy rates and investment trends. The report also contains our industry-renowned National Apartment Index, which ranks each market based on a series of 12-month forward-looking supply and demand indicators.
Click here to download the 2011 National Apartment Report.
As a service to our clients, Marcus & Millichap provides research reports through the Research Services page of MarcusMillichap.com. If you would like additional information on a particular market, please contact the local office nea! rest you to speak with one of our investment specialists.
Best wishes for continued success, and we look forward to serving your investment needs.
John Chang
Vice President, Research Services
2398 E. Camelback Road, Suite 550
Phoenix, Arizona 85016
Ph: (602) 687-6700 | Fax: (602) 687-6710 | E-mail: jchang@marcusmillichap.com

Follow Marcus & Millichap Research Services on Twitter!
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January 28, 2011

Description

This map shows the location of green buildings, symbolizing them based on their U.S. Green Building Council (USGBC) certification level. The green building certification is defined by USGBC based on the Leadership in Energy and Environmental Design (LEED) international green building certification system. The map also presents U.S. State polygons symbolized by the number of LEED buildings within the state.  http://www.arcgis.com/home/item.html?id=2ea2cf4f949b4593b1ffcd272e081b7c

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An Inconvenient Value

An Inconvenient Value

By Rese Fox / Deloitte Financial Advisory Services LLP

Getting the true assessment of a LEED-certified building's value is worth the inconvenience

Send to a friend!
Your name:  
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Link:  
  

http://www.awarenessintoaction.com/whitepapers/getting-the-true-assessment-of-a-leed-certified-buildings-value.html

Many companies are taking the plunge and deciding to build green LEED-certified buildings (LEED is the U.S. Green Building Council’s Leader­ship in Energy and Environmental Design green building rating system). They’re not just for granola-crunching tree huggers who appreciated Al Gore’s dramatic use of a cherry picker when discussing greenhouse gasses.

Indeed, the checkbook greenies are rejoicing in LEED-certified buildings because they save money. Recent studies show that efficiency pays off start-up costs, especially since energy prices have mushroomed in recent years. For example, contractor Robert Mader suggests that a mechanical contractor can save an owner 36 cents per square foot per year by reducing energy costs by 20 percent.1

Furthermore, with a healthier, more pleasant interior environment, LEED-certified buildings can improve personnel returns by improving productivity, reduc­ing illness, bolstering recruitment and raising reten­tion.2 Labor is a huge expense in the United States, averaging about $150 per square foot per year.3 One study suggests a 1 percent improvement in worker productivity saves $1.30 per square foot per year.4

LEED buildings generate not only energy savings and enhanced employee productivity, they also reduce stormwater runoff, increase groundwater recharge, utilize sustainable transportation systems and support other societal benefits. All told, one study shows that an investment of $4 per square foot in LEED building features adds about 50 cents per square foot to the annual rent.5 As a high-performance product, LEED buildings can generate a 7 to 12 percent increase in net operating income by reducing operating costs.6 Also, an initial invest­ment of 2 percent in green design can benefit the owner tenfold in savings.7 It’s no wonder the U.S. Green Building Council expects that in the future LEED buildings will constitute at least $200 billion of the real estate industry.8

An Inconvenient Value

By Rese Fox / Deloitte Financial Advisory Services LLP

Getting the true assessment of a LEED-certified building's value is worth the inconvenience

Send to a friend!
Your name:  
Your email:  
Your friend's email:  
Link:  
  

 

Many companies are taking the plunge and deciding to build green LEED-certified buildings (LEED is the U.S. Green Building Council’s Leader­ship in Energy and Environmental Design green building rating system). They’re not just for granola-crunching tree huggers who appreciated Al Gore’s dramatic use of a cherry picker when discussing greenhouse gasses.

Indeed, the checkbook greenies are rejoicing in LEED-certified buildings because they save money. Recent studies show that efficiency pays off start-up costs, especially since energy prices have mushroomed in recent years. For example, contractor Robert Mader suggests that a mechanical contractor can save an owner 36 cents per square foot per year by reducing energy costs by 20 percent.1

Furthermore, with a healthier, more pleasant interior environment, LEED-certified buildings can improve personnel returns by improving productivity, reduc­ing illness, bolstering recruitment and raising reten­tion.2 Labor is a huge expense in the United States, averaging about $150 per square foot per year.3 One study suggests a 1 percent improvement in worker productivity saves $1.30 per square foot per year.4

LEED buildings generate not only energy savings and enhanced employee productivity, they also reduce stormwater runoff, increase groundwater recharge, utilize sustainable transportation systems and support other societal benefits. All told, one study shows that an investment of $4 per square foot in LEED building features adds about 50 cents per square foot to the annual rent.5 As a high-performance product, LEED buildings can generate a 7 to 12 percent increase in net operating income by reducing operating costs.6 Also, an initial invest­ment of 2 percent in green design can benefit the owner tenfold in savings.7 It’s no wonder the U.S. Green Building Council expects that in the future LEED buildings will constitute at least $200 billion of the real estate industry.8

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January 26, 2011

LEED Rating System Development

LEED Rating System Development

 


NEXT VERSION  (projected November 2012)

In early November, USGBC launched the 1st Public Comment Period for the next version of the LEED Rating System. The 1st Public Comment Period was open through January 19th and generated over 5,000 comments from LEED stakeholders. Comments and recommendations will be reviewed by staff and LEED committees throughout the next several months, with responses to be posted on this webpage. Further revisions will be made to rating system language based on comments, emerging themes, and knowledge we gained from participants in the Pilot Credit Library. The LEED Rating System 2nd Public Comment Period is expected to begin in July 2011.

At the end of this process, a final draft will go before USGBC's membership for a vote.  http://www.usgbc.org/DisplayPage.aspx?CMSPageID=2360

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Cal Ct App: Inverse Condemnation Statute Of Limitations For Physical Taking Begins When Invasion Becomes Wrongful

January 26, 2011

Cal Ct App: Inverse Condemnation Statute Of Limitations For Physical Taking Begins When Invasion Becomes Wrongful

In Cobb v. City of Stockton, No. C062328 (Jan. 26, 2011), the California Court of Appeal (3d District) concluded that the property owner's claim for inverse condemnation for a physical invasion of his property was not barred by California's five-year statute of limitations, even though the City took possession nine years earlier.
In 1998, the City initiated an action in eminent domain to take a portion of the Cobb's property for a road. The City deposited its estimation of just compensation into court after which the court placed the City in prejudgment possession of the land. The City built the road, and the property owner withdrew the deposit. In 2007, nine years after it was filed, the court dismissed the condemnation action because it was not brought to trial within five years as required by California law (California applies the five year adverse possession statute to physical inverse condemnation claims).
A few months later, Cobb instituted an inverse condemnation action. The City demurred (that's a "motion to dismiss" for you non-Californians) because the action was not filed within five years of the time when the City first acquired the property. The trial court agreed, and after a few attempts to amend the complaint to allege the claim so that it would not have a limitations problem (alleging trespass, for example), the trial court sustained the demurrer without leave to amend.
The appeals court reversed. The court began by distinguinshing Klopping v. City of Whittier, 8 Cal.3d 39, 500 P.2d 1345 (1972), in which the California Supreme Court held that a condemnor's unreasonable precondemnation actions caused a lowering of the value of the targeted property. Here, however,"the plaintiff does not allege the City's announcement of an intention to condemn or its promise to re-file the condemnation action somehow reduced the value of the Property. Plaintiff's claim is that the actual invasion of the Property by the construction of a roadway across it reduced the value of the Property and is a taking requiring just compensation." Slip op. at 6. 
The court concluded the property owner's physical invasion did not accrue when the City took possession in 1998, but rather when the City's occupation became wrongful. The general rule in California is that the statute of limitations begins to run on a physical invasion inverse condemnation claim when the condemnor takes possession, but that the period is tolled until the property owner is aware of the encroachment. The court held this rule did not bar the claim even though the property owner was aware of the encroachment in 1998 when the City took possession, because possession was pursuant to a court order. Thus, the court concluded the invasion was permissive until the trial court dismissed the condemnation action. Slip op. at 12. Until that occurred in 2007, the property owner could not have brought a trespass suit, which requires that the entry is without permission, nor could he have instituted an adverse possession claim, which requires that the possessor not have a claim of right to the property. Because the plaintiff filed his action less than a year after the dismissal of the City's condemnation lawsuit, the action was timely.
The court rejected the trial court's conclusion that it was the physical invasion alone that should have put the property owner on notice of his claim:
Taken to its logical conclusion, the trial court's ruling would mean that every time a condemning authority takes prejudgment possession of the subject property, the owner would have to file a protective inverse condemnation claim in the event the eminent domain action is later dismissed. Such action would then remain dormant while the eminent domain action ran its course.
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Summary:

 

When it comes to development agreements, local agencies are treated like any other private contracting party, including the payment of damages if the agency breaches the agreement. The Town of Mammoth Lakes learned this lesson the hard way when a jury awarded $30 Million to a developer for the town's failure to process a development application in good faith pursuant to the development agreement.

 

 

View the entire entry:

 

http://blog.aklandlaw.com/2011/01/articles/planning-zoning-development/town-forced-to-pay-30-million-for-breach-of-a-development-agreement/index.html

 

 

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January 25, 2011

Third HUD Notice of Public Information Grant Now Available

Third HUD Notice of Public Information Grant Now Available
HUD is soliciting applications for the Natural Experiments Grant Program announced through a Notice of Funding Availability. This program supports scientific research that makes use of natural experiments to evaluate the impacts of local, state, and federal policies in the areas of housing and community development. HUD is particularly interested in funding evaluations that can help policymakers determine how to spend taxpayer dollars effectively and efficiently, though other types of projects will also be considered. Applications for this grant, ranging from $100,000 to $250,000, are due February 21, 2011.
The Sustainable Communities Research Grant Program and the Homeless Families Demonstration Small Grant Research Program, announced through two NOPIs, are still open, with applications due February 4, 2011 and February 18, 2011, respectively.
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January 22, 2011

Condemnation CasePosted by Anthony F. Della Pelle

Condemnation CasePosted by Anthony F. Della Pelle under Court Decisions | Tags: Condemnation, Eminent Domain, Property Rights, Real Estate Valuation |
Leave a Comment 

Brokerage Fee Issue Considered “Peripheral” 

  

A trial court’s decision to deny a real estate broker’s motion to intervene into an existing condemnation action to argue for a brokers fee was affirmed after the Appellate Division found “those issues have nothing to do with adjudicating the fair market value of the property as determined by the procedures set forth in the [Eminent Domain Act].”  The broker argued it should have been permitted to intervene based upon “an interest relating to the property or transaction which is the subject of the action.”  The property owner countered that the broker was wrongfully seeking “prejudgment attachment of the condemnation proceeds to ‘secure’ its unliquidated . . . claim for a commission.” 

Without examining the merits of the broker’s claims, which the court noted was pending in a separate action at the trial court level, the Appellate Division found that the broker’s ability to protect its interests were not impeded or impaired by denying it the opportunity to participate in the condemnation action.  Moreover, the alleged commission claim only related to the ultimate price paid for the property, and was peripheral to the only issue in the condemnation action – determining just compensation for the subject property “by what a willing buyer and a willing seller would agree to, neither being under any compulsion to act.”  Finally, the court noted that the broker’s intervention would delay the condemnation trial. http://njcondemnationlaw.com/2011/01/21/broker-denied-right-to-intervene-in-condemnation-case/

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January 21, 2011

Tax Court Recognizes Full Valuation Discount for Capital Gains

Tax Court Recognizes Full Valuation Discount for Capital Gains

September 2010 | Issue 48

In Estate of Marie J. Jensen v. Commissioner, T.C. Memo. 2010-182, (August 10, 2010). Judge Vasquez allowed an estate to deduct from the value of a corporation, 100% of the latent or “trapped in” capital gains tax that would be payable if the corporation were to be liquidated.

The IRS had determined a $333,000 deficiency against the Estate of Marie J. Jensen. The Estate owned an 82% interest in Wa-Klo, a closely-held C corporation. Wa-Klo’s principal asset was a 94 acre waterfront parcel in New Hampshire. Both the Estate and the IRS agreed that the company should be valued by valuing its assets and liabilities. Wa-Klo’s net asset value was $3,772,000 before deduction of a discount for built-in long-term capital gains tax. The federal LTCG liability was $1,133,000. The Estate felt it was entitled to deduct its portion of the entire amount. The IRS was willing to countenance a discount for LTCG of only $490,000. The difference of opinion on this issue accounted for the lion’s share of the deficiency.  http://www.hempsteadco.com/tax-court-recognizes-full-valuation-discount-for-capital-gains

 

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DCF VALUATION SCUTTLED BY UNSOUND UNDERLYING PROJECTION

DCF VALUATION SCUTTLED BY UNSOUND UNDERLYING PROJECTION
A new Delaware case illustrates again that the Discounted Cash Flow approach seems to be the favored valuation method in the Delaware courts. It also shows, however, that for the method to prevail, the projections underpinning it need to be sound and reasonable.
Background
In September 2005, John Q. Hammons Hotels, Inc. ("JQH") was acquired by Jonathan Eilian for $24 per share in cash. A number of JQH shareholders sued, claiming, among other things, that the $24 per share price was inadequate. The matter, In re John Q. Hammons Hotels, Inc. Shareholder Litigation (January 14, 2011), ended up in front of Chancellor Chandler in the Delaware Court of Chancery.

Defendants' Case
Both sides presented expert witness testimony on the issue of the fair value of the shares. The defendants presented the testimony of a finance professor from the University of Pittsburgh. He used a discounted cash flow ("DCF") analysis to value JQH as at September 16, 2005, determining the value of the company's shares to be between $14.97 and $18.71 per share.

Defendant's expert relied on "management-approved" projections in performing his DCF analysis, and employed a 7.5% weighted average cost of capital. He chose not to use the comparable companies approach to value. He felt that it was not reliable, because of the lack of comparable companies.
Plaintiffs' Case
Plaintiff's expert also relied on a DCF analysis, as well as a comparable companies analysis and a comparable transactions analysis. He concluded that the value of the JQH shares at the time of the merger was $49 per share. This was more than twice the $24 merger price.

Plaintiff's expert also adopted a 7.5% weighted average cost of capital. He relied on a set of projections that, although they had originally been prepared by management, had been modified, using what the Court felt were "unrealistic assumptions." The Court rejected plaintiff's calculations because of what it felt were unrealistically high projections.
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January 20, 2011

California Tax Credit Allocation Committee

California Tax Credit Allocation Committee

 

 

A minor correction has been made to page 29 of the Final Proposed Regulation Changes for 2011. The correction to LEED found at the bottom of page 28 is also applicable to the LEED reference on page 29. This constitutes a minor correction for a typographical oversight. No other changes have been made to this document.

 

For more information, visit our website at: http://www.treasurer.ca.gov/ctcac/programreg/20110113.pdf
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U.S. v. Warren Properties, Inc.,

Historic Housing Discrimination Settlement Highlights Housing Providers’ Duty to Provide Reasonable Accommodations under the Fair Housing Act 

 

By Guest Blogger Bryan Greene, General Deputy Assistant Secretary, U.S. Department of Housing and Urban Department, Office of Fair Housing and Equal Opportunity

 

Recently, the federal government reached an unprecedented $1.25 million settlement in U.S. v. Warren Properties, Inc., a housing discrimination case that the U.S. Department of Housing and Urban Development (HUD) charged in 2009. Jeremiah Stadtlander has paraplegia and relies on leg braces and crutches to get around. He lived in a second-floor apartment...

 

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Job Opp

Harris,

 

I found your profile on Linkedin and am trying to reach you for some help.  We have a major Bank that we are working in who has three openings:

 

·         Commercial Appraisal Manager, VP
·         Commercial Appraiser
·         Chief Appraiser, 1VP

 

These positions are located in either Santa Monica OR Pasadena. Do you perhaps know someone who is licensed who may consider?  The salary is 100 -150k plus bonus.

 

Please let me know asap.

 

Thanks for your help!

 

 

Nina Kittlitz
Director
Spencer White & Company
70 South Lake Avenue
Suite 1000 - 10th Floor
Pasadena, CA  91101

 

Office:     (626) 463-7086
Mobile:    (626) 385-7598
Fax:         (213) 232-3267
Website:    www.SpencerWhite.com
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The Complexities of Managing Maximum Revenue

The Complexities of Managing Maximum Revenue

CONTACTS:

CONTACTS:
Richard Yost (News Media Only)
yost.richard@epa.gov
202-564-7827
202-564-4355



Latisha Petteway (News Media Only)
petteway.latisha@epa.gov
202-564-3191
202-564-4355

Dennis O’Connor (Other Inquiries)
oconnor.dennis@epa.gov
202-343-9213

FOR IMMEDIATE RELEASE
January 20, 2011

EPA Seeks Applications for Community-Based Environmental Grants

Grants will help communities address local health and pollution issues

WASHINGTON – The U.S. Environmental Protection Agency is making $2 million available in 2011 to reduce pollution at the local level through the Community Action for a Renewed Environment (CARE) program.  CARE is a community-based program that works with county and local governments, tribes, non-profit organizations and universities to help the public understand and reduce toxic risks from numerous sources to protect people’s health.

EPA will award CARE cooperative agreements in two levels.  Level I awards range from $75,000 to $100,000 and will help establish community-based partnerships to develop local environmental priorities.  Level II awards, ranging from $150,000 to $300,000 each, will support communities that have established broad-based partnerships, identified the priority toxic risks in their communities, and are prepared to measure results, implement risk-reduction activities and become self- sustaining.

In 2010, EPA’s CARE program distributed $2 million throughout 14 communities.  Among the grant recipients, projects included tackling drinking water and stormwater pollution, solid waste, and toxics issues in Cordova, Alaska; addressing air and water pollution sources, municipal solid waste collection and chemical releases in Ashland, Ky.; targeting pest and solid waste issues in New York, N.Y.; tackling air pollution and land use issues in Detroit, Mich.; focusing on threats from lead in paint, mold, and hazardous household products in Gary, Ind.; and addressing air pollution, greenhouse gas emissions, water pollution, and poor waste management in Kansas City, Kan.
Since 2005, 81 communities in 39 states and territories have used CARE grants to help reduce pollution and protect people’s health.  A recent evaluation by the National Association of Public Administrators (NAPA) recognized the CARE program as a solid tested framework for engaging communities and other stakeholders.

Applications for the CARE grants are due March 22, 2011, 4:00 p.m. EST.  EPA will conduct three webcasts to answer questions from prospective applicants about the application process on February 8, February 23, and March 2 from 1:00 p.m. to 3:00 p.m.

More information about the grants and webcasts:
http://www.epa.gov/care
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Federal Reserve Bank of Philadelphia

Earlier this week the Federal Reserve Bank of Philadelphia announced the launch of Map Your Community, a new tool that allows visitors to their site to create customized maps using a PolicyMap widget. Map Your Community provides a snapshot of current and historical economic and demographic conditions and can be used to analyze data for a wide range of community development activities.

 

The Federal Reserve Bank (FRB) of Philadelphia teamed up with PolicyMap to develop customized views of their most-requested datasets, including CRA eligibility (the default map on Map Your Community) and CRA Small Business Lending (available in the Lending Activity menu on PolicyMap). The FRB also worked with PolicyMap to create custom Home Mortgage Disclosure Act calculations, which are located in the Mortgage Originations tab on the FRB’s Map Your Community and in the Lending Activity tab on PolicyMap. This data is also available through a report that the FRB designed with us that’s available on PolicyMap, the Federal Reserve Bank of Philadelphia HMDA Report. You’ll see the 2009 update for these HMDA calculations live in Map Your Community and on PolicyMap in the next few days.

 

Federal Reserve Banks across the nation subscribe to PolicyMap, so you may be seeing PolicyMap widgets on your local Bank’s website, as well.

 

Stay tuned to our PolicyMap update emails and our blog for more information about our upcoming release of the latest American Community Survey data and our many other continually updated datasets!
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January 19, 2011

lta

LTA No. 2011/005 - Parent-Child/Grandparent-Grandchild Exclusion - Signature Requirements, dated January 19, 2011, has been posted to our website.
 

It can be viewed at:
http://www.boe.ca.gov/proptaxes/pdf/lta11005.pdf          
  


LTA No. 2011/004 - Disaster Relief - Homeowners' Exemption, dated January 19, 2011, has been posted to our website.
 

It can be viewed at:
http://www.boe.ca.gov/proptaxes/pdf/lta11004.pdf          
  


LTA No. 2011/003 - Summary of 2010 Property Taxes Legislation, dated January 19, 2011, has been posted to our website.
 

It can be viewed at:
http://www.boe.ca.gov/proptaxes/pdf/lta11003.pdf          
  

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January 18, 2011

CLTA NEWS

CLTA NEWS
Title Industry Meets with GAO
CLTA Executive Vice President Craig Page and CLTA representative Bill Burding recently met with the Government Accountability Office (GAO) ...
 
CLTA Wins Lawsuit
Counsel for the California Land Title Association ("CLTA") successfully defended the CLTA in a unique lawsuit in the San Luis Obispo County Superior Court. ...
 
2011 CLTA Annual Directory Available Now
The 2011 CLTA Annual Directory will be in the hands of our members soon! This important industry publication reaches all regular title company members ...
 
SACRAMENTO REPORT
SAFE Act Regulations
California regulations implementing the federal Secure and Fair Enforcement of Mortgage Licensing Act of 2008 (SAFE Act) are in effect. The Act created a ...
 
Insurance Commissioner Announces Staff
Insurance Commissioner Dave Jones has announced his staff appointments. Jones retained more than a half dozen members of the CDI executive staff, including ...
 
Senate Insurance Committee
The Senate Banking, Finance and Insurance Committee has been divided into two committees, with Sen. Juan Vargas, D-San Diego, chairing the ...
 
New Short Sale Law
Senate Bill 931 was intended to give homeowners the same anti-deficiency protections as borrowers losing their home in a foreclosure. The law provides ...
 
INDUSTRY NEWS
E-Recording Millions of Documents
Two electronic recording systems have been certified by the California Attorney General under the Electronic Recording Delivery Act (ERDA). Last year ...
 
NAIC Adopts Model Act Changes
The NAIC last month adopted changes to the Model Insurance Holding Company System Regulatory Act and Model Regulations. In California any changes ...
 
NAIC Updates Examination Handbook
The NAIC guide to assist examiners in conducting examinations has a revised chapter on training examiners of title companies. In updating the chapter the NAIC incorporated ALTA suggestions. ...
 
COURT CASES
CC&R's
Schuman v. Ignatin (B215059)
The applicable CC&R's would have expired, but an amendment was recorded extending them. Plaintiff filed this action alleging ...
 
Marketable Record Title Act
Schelb v. Stein (B213929)
In a previous divorce action, in order to equalize a division of community property, the husband was ordered to give the wife a note secured by a ...
 
CALENDAR OF EVENTS
Mark Your Calendar: CLTA's 104th Annual Convention
Don't miss CLTA's 104th Annual Convention, May 22-24, 2011 at the Siverado Resort in Napa, CA. Sponsorship Opportunities are available now!
 
Lorman Education Services Offers New Courses for 2011
CLTA's partnership with Lorman continues. Please take a look at the upcoming classes being offered.
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January 16, 2011

here is fresh content in the bepress Law Collection

There is fresh content in the bepress Law Collection that matches your notification criteria "Full Text is real estate appraisal in bepress Law Collection."

Interested in having your papers distributed via bepress alerts? Try The Berkeley Electronic Press SelectedWorks for free. Go to http://works.bepress.com and use the January access code of "scholarship144" to join the network.


---------------------------
Sustainable
Development
Law & Policy (January 2005)
Volume 5 Issue 1
http://digitalcommons.wcl.american.edu/sdlp/vol5/iss1/1

Margaret Tarkington (March 2010)
A Free Speech Right to Impugn Judicial Integrity in Court Proceedings
http://lawdigitalcommons.bc.edu/bclr/vol51/iss2/2

Robert W. Gordon (January 2010)
The Role of Lawyers in Producing the Rule of Law: Some Critical Reflections
http://digitalcommons.law.yale.edu/fss_papers/1397

---------------------------

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New Laws Report

In order to view PDF files, you may need a free viewer from Adobe.


New Laws Report is a list of all bills enacted in a calendar year during the Regular Session of the Legislature. The list identifies the bill and chapter number, lead author, and the subject of the measure. All bills on the list become effective on January 1 following the year of enactment, unless otherwise noted.

Bills Enacted Report - 2010

AB 0041 Ch. 340 Assembly Member Solorio Insurance: community development

investments.

 

AB 0133 Ch. 33 Assembly Member Smyth Subdivisions: major thoroughfares.

AB 0153 Ch. 226 * Assembly Members Hernandez and

Eng

Safe, Clean, and Reliable Drinking Water

Supply Act of 2012: groundwater

contamination.

 

AB 0157 Ch. 341 * Assembly Member Anderson Property taxation: transfer of base year

value: disaster relief.

 

AB 0183 Ch. 12 * Assembly Member Caballero Income tax credit: qualified principal

residence.

 

AB 0231 Ch. 432 * Assembly Member Huber Environment: California Environmental

Quality Act: overriding consideration.

 

AB 0655 Ch. 439 Assembly Member Emmerson Self-service storage facilities.

AB 1004 Ch. 417 Assembly Member Portantino Solid waste: State Solid Waste Postclosure

and Corrective Action Trust Fund.

 

AB 1263 Ch. 144 Assembly Member Audra Strickland Unlawful detainer: service of notice.

SEE http://www.leginfo.ca.gov/pdf/BillsEnactedReport2010.pdf FOR ADDITONAL

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January 15, 2011

E-Alerts

E-Alerts

2010 Eminent Domain Year in Review

By: Bradford B. Kuhn, Rick E. Rayl
01/12/11

 

In contrast to 2009, eminent domain had a big year in 2010.  The courts handed down a number of important decisions, and there was even an attempt to pass some new legislation.  On the ground, stimulus dollars appeared to reach local agencies and projects started moving forward.  And at the polls, Proposition 22 passed in November, helping to secure redevelopment agencies' coffers. 

As 2011 evolves, we expect another exciting year.  Stimulus dollars mean long-delayed projects will finally be built, and there are already some cases awaiting decision that should provide fireworks. 

What follows is an eminent domain recap of 2010, along with our thoughts on what the Right of Way profession can expect in 2011.

Regulatory Takings/Inverse Condemnation

The most anticipated 2010 case was almost certainly Guggenheim v. City of Goleta.  Following what we thought would be a landmark takings decision in 2009, the Ninth Circuit Court of Appeals ordered a rehearing of the Guggenheim case, en banc.  In December, the Court issued its new decision, this time holding that the city's rent control ordinance did not constitute a taking.  Because the city's rent control ordinance was in place long before the property owner purchased the property, and the purchase price likely reflected the ordinance's impact on the property's value, the owner failed to establish the necessary "investment-backed expectations."  That said, the Guggenheim decision still goes down as the first time the Ninth Circuit ever reached the merits of such a claim, meaning the decision is not a complete loss for property rights advocates. 

In MHC Financing Limited Partnership Two v. City of Santee, another court confronted a rent control ordinance.  In a much more typical regulatory takings decision, the court rejected the claim on procedural grounds, never reaching the merits.  In a painful twist for the owner, the court held that its "as applied" challenge to the rent control ordinance was not ripe, while its "facial" challenge was stale. 

In Adams Bros. Farming v. County of Santa Barbara, the owner argued that the county effected a taking by improperly designating 95 percent of the owner's property as wetlands.  The state court concluded that the claim was not ripe, and when the owner thereafter sued in federal court, the Court held that the claim was barred under principles of res judicata.

Business Goodwill

In Los Angeles Unified School District v. Casasola, the Court held that business owners cannot recover as lost business goodwill anything that falls within the scope of California's Relocation Assistance Act, regardless of whether the losses are actually recoverable under the Act.  The decision has the effect of precluding compensation for any reestablishment costs the owner incurs above the Relocation Act's $10,000 cap, a paltry sum in the context of any large-scale relocation. 

Property Valuation

In City of San Jose v. Union Pacific Railroad, the Court addressed the amount of compensation to which a railroad was entitled as a result of a street widening.  While the Court seemed to deviate from traditional fair market value rules, on closer inspection, the Court simply applied a traditional highest and best use analysis, concluding that when an agency acquires an easement across a rail line for a street, nominal compensation is appropriate since the taking has no measurable impact on the underlying fee value.

Attorneys' Fees

In Tracy Joint Unified School District v. Pombo, the Court clarified when attorneys' fees are recoverable by a property owner.  Where the agency's final offer is unreasonable and the owner's final demand is reasonable, agencies typically seek to avoid paying attorneys' fees by asserting that they acted in "good faith."  The Pombo court concluded that mere "good faith" reliance on the agency's appraisal is not enough; where the agency's offer is way off, it will be on the hook for attorneys' fees unless (i) the difference in the figures is due to a weighty issue of law and (ii) the agency proves good faith efforts to negotiate, including a showing that it took the owner's appraisal into consideration in framing its final offer.

In Transwestern Pipeline Co. v. 17.19 Acres of Property, the Ninth Circuit confronted the question of whether a private utility company constituted a "federal agency" when exercising the power of eminent domain under a license from the Federal Energy Regulatory Commission (FERC).  At stake was whether the utility company was liable to the property owner for attorneys' fees when it abandoned the condemnation action.  The Court concluded that the utility company did not qualify as a "federal agency," and therefore was not liable for fees.

Right to Take

In County of Los Angeles v. Glendora Redevelopment Project, the Court struck down an agency's redevelopment plan for inadequate blight findings.  In particular, the Court held that the agency failed to present substantial evidence to support the "physical blight" test, and therefore could not exercise the power of eminent domain.  The significance of the opinion lies not just in the holding itself, but in the Court's willingness to scrutinize the blight findings, rather than merely deferring to the agency's determination.

Supreme Court Action – and Inaction

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, beachfront property owners alleged that Florida's efforts to restore beaches by depositing sand, which created a new public beach between the owners and the water, resulted in a taking by cutting off the owners' littoral rights (the rights owners possess by owning property that extends to the water's edge).  By the time the case reached the Supreme Court, the issue presented was whether a court decision (here the Florida Supreme Court's decision finding no actionable conduct by the government) could constitute a "judicial taking" of property.  The Court concluded that the decision did not constitute a taking, but did recognize, at least conceptually, the idea of a "judicial taking."

The U. S. Supreme Court had at least three other chances to weigh in on eminent domain issues, and all three seemed like pretty good candidates for review, yet the Court declined to review each of these cases: 

1. Tuck-It-Away, Inc. v. New York State Urban Development Corp., dba Empire State Development Corp., in which the New York Court of Appeals concluded that a government agency's use of eminent domain to transfer property from one private owner directly to another private owner (the University of Columbia – a private institution) was constitutional;

2. 480.00 Acres of Land v. United States, in which an owner's property was acquired as part of the Everglades National Park expansion, and the issue was whether a government's actions must be the primary cause of precondemnation depression of a property's market value, or whether there only needs to be a nexus between the government's actions and the depressed market value to warrant precondemnation damages; and

3. Kimco of Evansville, Inc. v. State of Indiana, in which the owner argued review was necessary to change a fundamentally unfair principle that damages arising from access impairments in eminent domain cases are non-compensable as long as the owner is left with reasonable access.

Legislative Updates

Assembly Bill 2531 proposed to allow the Community Redevelopment Association of Los Angeles to expand its eminent domain authority to acquire non-blighted property outside of its redevelopment area.  On the eve of the deadline for taking action, Governor Schwarzenegger vetoed the bill noting that it "would violate the primary purpose of redevelopment law."

On the other hand, Proposition 22 passed in November, and while the campaigns both for and against it took on the negative tone typical of American politics these days, the bottom line is that its passage will make it harder for the state to usurp certain local agency funds, including funds directed to redevelopment agencies.  California's Redevelopment Association viewed Proposition 22 as providing crucial protection to cash-strapped agencies, all of which undoubtedly breathed a huge collective sigh of relief on November 9. 

Themes for 2011

Since 2005's Kelo decision, we have seen heightened scrutiny, and a lot of anger, directed at eminent domain.  As time passes and stimulus dollars make their way into the system, there appears to be a shift in public perception taking place.  While the public will undoubtedly continue to denounce eminent domain for redevelopment purposes, the major infrastructure projects under construction and on the horizon (1) are generally badly needed and long overdue, (2) will improve the lives of huge segments of the population, and (3) generate large numbers of jobs. 

It appears that the public may be ready to move past Kelo and embrace these traditional infrastructure projects, even if it means more eminent domain.  We've even seen some examples in the past year of the public actually pushing government agencies to use their powers of eminent domain to improve local communities. 

That said, with Proposition 22's passage and Kelo more than five years behind us, redevelopment agencies may once again start to consider eminent domain to implement their projects.  If they do, the public will undoubtedly watch closely, and where redevelopment projects do not have wide-spread public support, the battle cry of Kelo will likely ring out again. 

On the other hand, Proposition 22 will do little to save redevelopment agencies' budgets if Governor Brown has his way.  His January 10 budget proposal would (1) freeze redevelopment agencies' ability to create new contracts or obligations, (2) "disestablish" all redevelopment agencies in the state, effective July 1, and (3) use existing redevelopment agencies' budgets to service existing debt obligations and, over time, to be distributed to other local agencies for general use.  This developing story will be closely watched over the next several months.

Projects to Watch for in 2011

We expect a busy 2011 in the right-of-way profession.  Things to watch for:

  • The 91 freeway is one of the most congested in California, and efforts have been ongoing for years to alleviate the gridlock.  Late last year, AB 2098 was passed, opening the door for the Riverside County Transportation Commission (RCTC) to utilize a design-build process to deliver expansion of SR-91 and I-15.  Construction is scheduled to commence in 2012 on the $1.3 billion freeway widening project.  
  • In the last week of December 2010, a contract was awarded for $33.8 million in Recovery Act funds to be used towards the Colton Grade Separation Project in San Bernardino, which will elevate two Union Pacific Railroad tracks over two Burlington Northern Santa Fe Railway tracks.  
  • Also during the last week of December 2010, the U.S. Department of Transportation announced a $46 million grant agreement for the final phase of the Doyle Drive -- or Presidio Parkway -- Project in San Francisco, which will include a redesign of the road and improve access to the Presidio.
  • On January 5, 2011, the Los Angeles County MTA announced that the Federal Transit Administration has given the MTA formal approval to commence preliminary engineering work on the Westside Subway Extension and the Regional Connector, another proposed subway project.  This approval signals the likelihood that the FTA will approve the projects as part of its New Starts program, a key federal funding component for large-scale transit projects.
  • Ever since the devastating 2008 Metrolink accident in Chatsworth, the public has demanded a safer commuter rail system.  SB 1371 will enable the Southern California Regional Rail Authority (SCRRA) to move forward with a $200 million rail safety program to implement Positive Train Control throughout the Metrolink system.


Bradford B. Kuhn is a member of Nossaman's Eminent Domain and Valuation Practice Group and specializes in real estate and business litigation with an emphasis on eminent domain, inverse condemnation, and other real estate disputes.  He can be reached at bkuhn@nossaman.com or 949.833.7800.

Rick E. Rayl is the Chair of Nossaman's Eminent Domain and Valuation Practice Group and a member of the Firm's Real Estate Practice Group.  Mr. Rayl is an experienced trial attorney dealing with eminent domain, inverse condemnation, and other real estate and business disputes.  He is also editor of the blog, "California Eminent Domain Report."  He can be reached at rrayl@nossaman.com or 949.833.7800.

 

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E-Alerts

E-Alerts

Ninth Circuit Reverses Course: Rent Control Ordinance Does Not Constitute Regulatory Taking

By: Rick E. Rayl, Bradford B. Kuhn
12/29/10

 

More than a year ago, the Ninth Circuit Court of Appeals issued its controversial regulatory takings opinion in Guggenheim v. City of Goleta, holding that the City of Goleta's rent control ordinance constituted a taking. Last week, the Court reversed itself, holding that the Guggenheims have no takings claim against the City.

The Guggenheims, the owners of a mobile home park, claimed that the City of Goleta's rent control ordinance had the effect of transferring the vast majority (as much as 90 percent) of the property's value to the tenants, constituting a regulatory taking. The Ninth Circuit issued the initial Guggenheim opinion in September 2009, siding with the owners. The Court remanded the case for a trial on the amount of compensation the owners should be awarded. At the time, the opinion was hailed by property rights advocates as a rare victory in federal takings jurisprudence.

Nearly six months after publishing its opinion, however, the Ninth Circuit granted a request from the City, ordering an en banc hearing (a new hearing before a larger panel of judges). Just as 2010 was winding to a close, the Ninth Circuit issued its new Guggenheim opinion, reversing its earlier decision, and holding that Goleta's ordinance does not constitute a taking.

Regulatory Takings, Some Background

A "regulatory taking" occurs when government regulation goes too far, "taking" property away from its owner. At one end of the spectrum, takings claims are easy to understand. Where a government regulation eliminates all economically viable use of property, it constitutes a taking. But government regulation rarely eliminates all economic uses of property.

In cases where a regulation leaves some potential economic value in the property, the test is more complicated. In Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), the Court held that takings claims should be analyzed by looking at three factors: (i) the economic impact of the regulation on the claimant; (ii) the extent to which the regulation has interfered with investment-backed expectations; and (iii) the character of the governmental action.

But before courts ever address the Penn Central test, regulatory takings claims must overcome huge procedural hurdles. In particular, a federal takings claim generally is not ripe unless the owner first exhausts all state court remedies. In exhausting state-court remedies, owners typically wind up with a final state-court decision on the merits which federal courts then conclude has a res judicata – or conclusive – effect on the subsequent federal lawsuit. In other words, a property owner faces the ultimate "Catch 22": if the owner litigates to a final decision on the merits in state court, the federal claim is barred, and if the owner fails to litigate to a final decision on the merits in state court, the federal claim is not ripe.

Thus, not surprisingly, federal regulatory takings claims only rarely proceed to a hearing on the merits. In fact, prior to Guggenheim, the Ninth Circuit had never reached the merits of a Penn Central claim.

The Original Guggenheim Opinion

When the Ninth Circuit navigated its way through all of the procedural obstacles, reached the merits, and found that a taking had occurred, the original Guggenheim opinion understandably generated some buzz. Of particular importance, the court held that failure to proceed to a final decision in state court is not always fatal to a federal claim.

The court held that the City's rent control ordinance flunked the Penn Central test, and the case was remanded to the trial court to determine how much compensation the mobile home park owner would be paid by the City of Goleta. But before the compensation hearing could occur, the Court ordered the new, en banc hearing.

The New Guggenheim Opinion

Following the en banc hearing, the Ninth Circuit reached a different conclusion. The Court concluded that the Guggenheims failed to establish the "investment-backed expectations" required to state a takings claim under Penn Central because the rent control ordinance preexisted the Guggenheims' purchase of the property.

While the decision tends to fall in line with the general conception that proving a regulatory taking is extremely difficult, the fact that the Ninth Circuit waded through the procedural landmines and reached the merits is hugely significant. Merely by reaching the merits of the takings claim, the Ninth Circuit broke new ground, meaning the decision still qualifies as a "victory," at least of sorts, for property owners.

Lessons Learned

Despite the Ninth Circuit's finding that the City's rent control ordinance did not constitute a taking, government agencies still must be aware of the risks of exposure to regulatory takings claims. The simple fact that the Court reached the merits is hugely significant, and it may signal a turning of the tide for federal takings claims.

With respect to the ordinance at issue in Guggenheim, the Ninth Circuit may well have reached a different conclusion had the ordinance been enacted while the Guggenheims owned the property. Thus, cities and counties contemplating similar rent control ordinances should weigh carefully the degree to which the ordinance will effect a transfer of value from the property's owner to the tenants.

Where that transfer is substantial, agencies should anticipate legal challenges, with owners who can establish the necessary "investment-backed expectations" trumpeting the Guggenheim decision as proof that a taking occurred. Time will tell whether the lower courts actually read such an implied holding into the Guggenheim decision.

Rick E. Rayl is the Chair of Nossaman's Eminent Domain and Valuation Practice Group and a member of the Firm's Real Estate Practice Group. Mr. Rayl is an experienced trial attorney dealing with eminent domain, inverse condemnation, and other real estate and business disputes. He is also editor of the blog, "California Eminent Domain Report." He can be reached at rrayl@nossaman.com or 949.833.7800.

Bradford B. Kuhn is a member of Nossaman's Eminent Domain and Valuation Practice Group and specializes in real estate and business litigation with an emphasis on eminent domain, inverse condemnation, and other real estate disputes. He can be reached at bkuhn@nossaman.com or 949.833.7800.

 

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January 14, 2011

EPA, Schools To Tackle Indoor Air Quality

CONTACT:
Stacy Kika
Kika.stacy@epa.gov
202-564-0906
202-564-4355

FOR IMMEDIATE RELEASE
January 14, 2011


EPA, Schools To Tackle Indoor Air Quality
WASHINGTON - The U.S. Environmental Protection Agency (EPA) is holding its 11th Annual Indoor Air Quality (IAQ) Tools for Schools National Symposium in Washington, D.C. on January 13-15, 2011.  The meeting is bringing together school board officials, administrators, health association members, school nurses, teachers, parents, and others to take charge in protecting the indoor air environments of children in schools.  Nearly 55 million children and approximately 6 million adults spend a significant portion of their days in more than 132,000 public and private school buildings in the United States. Many of these buildings are old, in poor condition, and may have environmental conditions that inhibit learning and pose risks to the health of children and staff.

“Protecting children’s health is a top priority for EPA,” said Gina McCarthy, assistant administrator for EPA’s Office of Air and Radiation. “School kids, parents and teachers face challenges every day, so EPA designed the Tools for Schools Program to make sure that poor indoor air quality isn’t one of them.”

Poor indoor air quality in schools can impact the comfort and health of students and staff, which, in turn, can affect concentration, attendance, and student performance. Eight school districts across the country are being recognized at the IAQ Tools for Schools National Symposium for leading the way to improving conditions at their schools and taking action to prevent future IAQ health risks. The symposium focuses on a wide range of environmental risks, including radon, mold, pest management, and asthma management.

Here are a few tips schools can take to start improving their indoor air quality:

- Get an IAQ Tools for Schools Action Kit online
- Review the IAQ Coordinator’s Guide provided in the IAQ Tools for Schools Action Kit

- Develop an IAQ team and review current IAQ practices in your school
- Develop an IAQ program and encourage good IAQ practices across the school and community
- Test your school for radon

The IAQ Tools for Schools Program, launched in 1995, assists school districts in identifying the actions they can take to successfully plan and implement an effective IAQ management program.

More information on IAQ Tools for Schools: 
http://www.epa.gov/iaq/schools/index.html

More information on the symposium: http://www.epa.gov/iaq/schools/awards.html

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California Health Facilities Financing Authority

California Health Facilities Financing Authority

 

 

Please click on the link below for the California Health Facilities Financing Authority's January 27, 2011 Meeting Agenda.

 

CHFFA's Agenda
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The Appraiser Qualifications Board (AQB) has issued the following Exposure Draft:

The Appraiser Qualifications Board (AQB) has issued the following Exposure Draft:

Second Exposure Draft of Proposed Revisions to the Future Real Property Appraiser Qualification Criteria
Link: <a href="https://appraisalfoundation.sharefile.com/d/sebfff78033547a2a">https://appraisalfoundation.sharefile.com/d/sebfff78033547a2a</a>Issued on January 14, 2011. Written comments requested by February 18, 2011.
Send Comments to AQBComments@appraisalfoundation.org  
 

Second Exposure Draft of Proposed Revisions for the FutureReal Property Appraiser Qualification Criteria (Criteria)

Issued January 14, 2011

Comment Deadline: February 18, 2011

Each section of this exposure draft begins with a rationale for the proposed changes. The

rationale is identified as such and does not have line numbering. Where proposed changes to the

Criteria are noted, the exposure draft contains line numbers. This difference is intended to

distinguish for the reader those parts that explain the changes from the proposed changes

themselves.

When commenting on various aspects of the exposure draft, it is very helpful to reference the

line numbers, fully explain the reasons for concern or support, provide examples or illustrations,

and suggest any alternatives or additional issues that the AQB should consider.

Please note that where text is to be deleted from what appeared in the First Exposure Draft, that

text is shown as strikeout. For example: This is strikeout text proposed for deletion. Text added

to what appeared in the First Exposure Draft is underlined. For example: This is text proposed

for insertion.

NOTE: All current Interpretations of the Criteria will be incorporated into the main text of the

Criteria when any revisions are adopted by the AQB (unless an Interpretation applies to a section

of the Criteria that is being proposed for deletion). In the sections shown in this document where

Interpretations would be included, they are shown in underlined text in the same manner as the

proposed revisions to the Criteria itself are shown.

For ease in identifying the various issues being addressed, the exposure draft is presented in

sections.

TABLE OF CONTENTS

Section Issue Page

1 Proposed Revision to Require Education and Experience as Prerequisites

for the Examination 4

2 Proposed Revision to College Degree Requirements and Removal of “In

Lieu Of” Option for College-Level Education 7

3 Proposed Requirement for Background Checks 14

4 Proposed Revisions Pertaining to College Degrees in Real Estate 17

5 Proposed Revision to 7-Hour National USPAP Update Course

Eligibility 20

6 Proposed Removal of Segmented Approach to Criteria Implementation 22

7 Proposed Restriction on Continuing Education Course Offerings 23

8 Proposed Revisions to Distance Education Requirements 25

9 Proposed Revisions to Trainee Appraiser Qualifications 27

10 Proposed Supervisory Appraiser Requirements 31

11 Proposed Revisions to Guide Note

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January 13, 2011

n this issue

n this issue

 

OSHA acts to protect workers in residential construction

 

OSHA issued a new directive withdrawing a former one that allowed residential builders to bypass fall protection requirements. The directive being replaced, issued in 1995, initially was intended as a temporary policy and was the result of concerns about the feasibility of fall protection in residential building construction. However, according to data from the department's Bureau of Labor Statistics, there continues to be a high number of fall-related deaths in residential construction and industry experts now feel that feasibility is no longer an issue or concern. The National Association of Home Builders, the National Advisory Committee for Construction Safety and Health, and the Occupational Safety and Health State Plan Association all recommended rescinding the 1995 directive. To view the directive and for more information, visit OSHA’s Residential Fall Protection page.

 

Green Jobs: New online resource provides information on green job safety and health

 

Information on Green Job Hazards is now available on the OSHA Web site. Green jobs are being defined broadly as jobs that help to improve the environment, such as in the wind and solar energy, recycling and biofuels industries. However, green jobs are not necessarily safe jobs. Workers in the green industries may face hazards that are commonly known in workplaces -- such as falls, confined spaces, electrical, fire, and other similar hazards. Additionally, workers may be exposed to new hazards which may not have been previously identified. For example, workers in the solar energy industry may be exposed to Cadmium Telluride, a known carcinogen, if adequate controls are not implemented. The information now available online is part of OSHA’s commitment to helping workers and employers ensure that green jobs are safe jobs.

 

Solis will re-establish advisory committee to protect maritime industry workers

 

Secretary of Labor Hilda L. Solis will re-establish the charter of OSHA’s Maritime Advisory Committee for Occupational Safety and Health. Established in 1995, the committee is composed of approximately 15 members who are industry professionals selected to represent the interests of the maritime community. The maritime industry has been selected for special attention because of high injury and illness rates and the specialized nature of some maritime occupations. See the news release for more information.

 

OSHA hosts Web chat on new Regulatory Agenda

 

OSHA hosted a live Web chat Jan. 5 so that members of the public and press could ask questions about the agency’s Fall 2010 Regulatory Agenda. The Labor Department's entire regulatory plan was published in the Dec. 20, 2010, issue of the Federal Register. The agenda contains a statement of OSHA's regulatory priorities and the regulatory actions OSHA wants to highlight as its most important and significant. More than 1,000 readers viewed the live Web chat with nearly 280 submitting questions. OSHA Assistant Secretary David Michaels and a panel of OSHA subject matter experts were able to provide more than 70 responses during the one-hour exchange. The entire Web chat can be read on the OSHA Web site.

 

Illinois contractors fined more than $470,000 for exposing trench workers to cave-in hazards

 

OSHA issued a total of $473,000 in fines against two Illinois contractors who willfully exposed workers to trenching and excavation hazards. Cited in separate incidents were Di Paolo Co. in Glenview and Gerardi Sewer & Water Co. in Norridge.

 

Di Paolo was cited with 10 violations and fined $113,000 for allowing workers at a site in Elgin to perform trenching and excavation work at depths of up to 12.5 feet without cave-in protection. OSHA standards require that all excavations five feet or deeper be protected against collapse. Gerardi was cited with 13 violations and fined $360,000 after four separate inspections conducted under OSHA’s Trenching and Excavation Special Emphasis Program found that the company failed to properly protect workers at several worksites from trench cave-ins. OSHA had previously issued a combined total of 48 citations to these two companies since 1982. The Gerardi case meets the criteria for OSHA's Severe Violators Enforcement Program, which focuses enforcement efforts on certain employers who defy or ignore their OSH Act obligations.

 

Hazardous waste company fined more than $780,000 after processing plant explosion

 

OSHA cited the hazardous waste management processor, WRR Environmental Services Co., after an investigation stemming from a June 29, 2010, explosion and fire at the company’s Eau Claire, Wis., facility. OSHA issued 15 citations and fined the company $787,000 for failing to fully develop and implement a process safety management program at the facility to prevent potentially catastrophic chemical fires and explosions.

 

This case meets the criteria for OSHA's
Severe Violators Enforcement Program. See the news release for more information on WRR Environmental Services’ disregard for worker safety.

 

Two Missouri employers arrested for failing to correct life-threatening worker hazards

 

The Eighth Circuit Court of Appeals in St. Louis ordered the arrest of Brian Andre, former owner of Andre Tuckpointing and Brickwork, and Regina Shaw, owner of Andre Stone & Mason Work Inc., the successor company to Andre Tuckpointing and Brickwork, for repeatedly failing to comply with court sanctions enforcing OSHA citations. The two were taken into custody by authorities Dec. 28, 2010. The order for incarceration stems from Mr. Andre’s and Ms. Shaw's failure to comply with sanctions ordered by the Eighth Circuit Court of Appeals, following the court's initial ruling of contempt against Andre and Shaw in January 2010.

 

OSHA issued numerous citations from June 2003 to Dec., 2010, to both the original company and its successor, for willful, repeat and serious violations related to fall hazards and scaffolding erection deficiencies, among other issues. See the news release for more information.

 

OSHA orders railroad to pay whistleblower more than $80,000 in punitive damages

 

OSHA ordered Metro North Commuter Railroad Co., which provides commuter rail service in Connecticut, New York and New Jersey, to take corrective action and pay $80,500 in punitive damages to a worker at the company’s New Haven, Conn., rail yard who was disciplined after filing a whistleblower complaint with OSHA. OSHA’s investigation, conducted under the whistleblower provisions of the Federal Railroad Safety Act, found merit to the complaint. OSHA ordered Metro North to expunge disciplinary actions and references to the worker from various records, reimburse the worker a total of $5,500 in attorney’s fees and pay him punitive damages in the amount of $75,000. See the news release for more on this case and www.whistleblowers.gov for information on OSHA’s Whistleblower Protection Program.

 

OSHA will continue requiring independent safety testing for electrical devices

 

OSHA announced that it will not abandon its system for ensuring that electrical products used in the workplace are safe. The European Union requested that OSHA explore the possibility of adopting its system, known as Supplier's Declaration of Conformity. Under the EU system, manufacturers declare that their products meet safety requirements before placing these products on the market, thus requiring EU governments to operate a post-market surveillance system to verify whether products are safety compliant after they already are on the market.

 

Currently, OSHA requires employers to use electrical devices tested and certified by independent testing companies known as Nationally Recognized Testing Laboratories. These companies conduct tests to determine whether products are safe before manufacturers or distributors place them on the market and employers use them in the workplace. See the news release for more information.

 

OSHA appoints new head of Construction Directorate

 

OSHA Assistant Secretary David Michaels appointed Jim Maddux as the new director of the agency’s Directorate of Construction, effective Dec. 20, 2010. Maddux most recently served in OSHA’s Directorate of Standards and Guidance as the Director of the Office of Physical Hazards and Acting Director of the Office of Engineering Safety. Maddux has held several leadership positions at OSHA, including Director of the Office of Maritime and Acting Deputy Director for the Directorate of Standards and Guidance.

 

"Jim has been a valuable member of the OSHA team for over 20 years," said Michaels in a
news release. "I congratulate him on his new position, and I am confident that he will be an effective leader in construction safety working to accomplish the agency's mission of protecting America’s workers."

 

Advisory committee offers recommendations to improve construction worker safety

 

The Advisory Committee on Construction Safety and Health met Dec. 9-10 in Washington, D.C., to discuss recent OSHA activities and their impact on construction workers. ACCSH advises the Secretary of Labor on developing standards and policies that affect the safety and health of construction workers. The committee is made up of 15 members representing employers, workers, state safety and health agencies and the public, as well as one member designated by the Secretary of Health and Human Services. Recommendations made to OSHA by the committee at this meeting included using Susan Harwood Training Grants to provide additional training on residential fall protection in construction specific to the type of residential construction being performed, addressing construction issues within the scope of OSHA's rule-making and guidance on Injury and Illness Prevention Programs and moving forward expeditiously with the rulemaking to protect workers from hazards related to silica exposure. The complete transcripts from the Dec. 9 and Dec. 10 ACCSH meetings are available at www.regulations.gov.

 

Pennsylvania woodworking company improves worker safety with help of On-site Consultation Program

 

Keystone Wood Specialties, Inc., a wood cabinet and millwork manufacturer located in Lancaster, Pa., took a proactive approach to protecting the well-being of its workers by contacting OSHA’s On-site Consultation Program to improve its safety and health management program. A consultant conducted a walkthrough of Keystone’s facility, explained OSHA regulations and worked with the company to identify and correct hazards. After reviewing Keystone’s written safety and health policies and answering questions about properly completing the OSHA 300 Recordkeeping log, the consultant recommended improvements to the company’s safety and health management program. Keystone improved its written safety and health program policy manual and established a safety and health bulletin board. The company also developed a safety calendar and began conducting monthly training sessions on safety and health issues related to the company's operations. As a result of continued improvement, for the last nine years Keystone has been a member of the On-site Consultation Program’s Safety and Health Achievement Recognition Program. See OSHA’s Web site for more information on this safety and health success story.

 

North Carolina’s OSH Division enters roadway construction safety partnership

 

The North Carolina Department of Labor’s Occupational Safety and Health Division is working to reduce roadside construction injuries, illnesses and fatalities through a partnership with Raleigh-Durham Roadbuilders, a joint venture between Archer Western Contractors and Granite Construction. The partnership brings together government and private industry to protect worker safety and health during the construction phase of the Western Wake Freeway section of the Triangle Expressway. At its peak, the project will involve as many as 34 subcontractors and between 300 and 400 workers. See the North Carolina Department of Labor’s November-December 2010 newsletter* for more information.

 

Job openings

 

Are you interested in a career with the Department of Labor? The department has job opportunities throughout the country.

 

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State Board of Equalization

 

 

Notice of Letters to Assessors

 

 

You have subscribed to the State Board of Equalization Notice of Letters to Assessors (LTAs).

 

LTA No. 2011/002 - Base Year Value Transfer - Over 55/Disabled: Eligible Claimant, dated January 13, 2010, has been posted to our website.
 

 

It can be viewed at:
http://www.boe.ca.gov/proptaxes/pdf/lta11002.pdf          
  
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January 11, 2011

Toward An Ignorance-Based World View (LR81)

Wes Jackson

Presented October 3, 2004

This is adapted from a talk at The Land Institute's 2004 Prairie Festival, published in The Land Report, Spring 2005, Number 81, Pages 14-16 and reprinted by permission.

 


At The Land Institute several of us get a great deal of joy from looking for the relatedness of the seemingly unrelated. Here is an example: In 1859 Charles Darwin's Origin of Species was published. The same year Colonel Drake drilled the first oil well in Pennsylvania. And John Brown was hanged at Harper's Ferry. Now let's connect the dots.

Darwin's idea of evolution through natural selection was sponsored by coal. If it hadn't been for coal and the infrastructure that gave slack to this country gentleman, the idea would have had to wait. Its refinement was sponsored further by coal, and by oil and natural gas. The important ideas in ecology really took off after 1859.

What about John Brown? Coal again. The industrial North could afford to be pretty self-righteous about opposing slavery in the much more sun-powered plantation South. Before the fossil carbon era, slavery of some form or another was widespread. The slack from energy-rich carbon pools is what has made civilization possible. First it was agriculture and soil carbon, later the cutting of forests. The king of Tyre struck a deal with Solomon for the cedars of Lebanon to build the temple. The Greeks had already done in thousands of acres of their trees. By the time of Charlemagne the onslaught against Europe's forests was well under way. Carbon pools exploited. So it went, and so it goes today. Our fossil fuel epoch — some 250 years old — is dependent on highly dense and vast pools of coal, oil and natural gas.

We tend to think that the ideas of humanity arise rather intrinsically. We seldom pay attention to their sponsorship, to the slack made available by our species skating from one energy-rich carbon pool to another.

Why is this a prologue to what I have to say about ignorance? Simply this: Before agriculture, long before the industrial revolution, we could afford to be very ignorant about what supported us. We didn't need to know about nutrient cycling and energy flow within the ecosystems of the ecosphere. We didn't need to know that the earth goes around the sun — and still don't.

Do we really need to know Einstein's equations? How much do we really need Newton's calculus? A harder question. As creatures of the upper Paleolithic we certainly didn't need Newton's calculus back then. We don't need to know about plate tectonics now, though I'm glad to know about plate tectonics. In fact, I'm glad to know what's come in from the Hubble telescope.

But as a consequence of scientific and technological tampering, we have created ignorance of things we now do need to know.

This is part of what led to a conference we held in 2004 called "Toward an Ignorance-based Worldview." The inspiration started with a letter Wendell Berry wrote to me in 1982. Here are parts of it:

I want to try to complete the thought about "randomness" that I was working on when we talked the other day. The Hans Jenny paragraph that started me off is the last on page 21 of The Soil Resource:

"Raindrops that pass in random fashion through an imaginary plain above the forest canopy are intercepted by leaves and twigs and channeled into distinctive vert space patterns of through-drip, crown-drip and stem flow. The soil surface, as receiver, transmits the "rain message" downward, but as the subsoils lack a power source to mold a flow design, the water tends to leave the ecosystem as it entered it, in randomized fashion."

My question is: Does "random" in this (or any) context describe a verifiable condition or a limit of perception?

My answer is: It describes a limit of perception. This is, of course, not a scientist's answer, but it may be that anybody's answer would be unscientific. My answer is based on the belief that pattern is verifiable by limited information, whereas the information required to verify randomness is unlimited. As I think you said when we talked, what is perceived as random within a given limit may be seen as a part of a pattern within a wider limit.

If this is so, then Dr. Jenny, for accuracy's sake, should have said that rainwater moves from mystery through pattern back into mystery.

To call the unknown "random" is to plant the flag by which to colonize and exploit the known. (A result that our friend Dr. Jenny, of course, did not propose and would not condone.)

To call the unknown by its right name, "mystery," is to suggest that we had better respect the possibility of a larger, unseen pattern that can be damaged or destroyed and, with it, the smaller patterns.

This respecting of mystery obviously has something or other to do with religion, and we moderns have defended ourselves against it by turning it over to religion specialists, who take advantage of our indifference by claiming to know a lot about it.

What impresses me about it, however, is the insistent practicality implicit in it. If we are up against mystery, then we dare act only on the most modest assumptions. The modern scientific program has held that we must act on the basis of knowledge, which, because its effects are so manifestly large, we have assumed to be ample. But if we are up against mystery, then knowledge is relatively small, and the ancient program is the right one: Act on the basis of ignorance. Acting on the basis of ignorance, paradoxically, requires one to know things, remember things — for instance, that failure is possible, that error is possible, that second chances are desirable (so don't risk everything on the first chance), and so on.

What I think you and I and a few others are working on is a definition of agriculture as up against mystery and ignorance-based. I think we think that this is its necessary definition, just as I think we think that several kinds of ruin are the necessary result of an agriculture defined as knowledge-based and up against randomness. Such an agriculture conforms exactly to what the ancient program, or programs, understood as evil or hubris. Both the Greeks and the Hebrews told us to watch out for humans who assume that they make all the patterns.

How'd you like to receive a letter like that? It took 22 years to digest it and to finally put together a conference.

As you can imagine, when we announced "Toward an Ignorance-based Worldview," it was a source of great mirth.

To get ready for this conference, I sent out sort of an invitation. Here's what it said: "Imagine an ignorance-based science and technology in which practitioners would be ever conscious that we are billions of times more ignorant than knowledgeable and always will be."

Now, if you know that knowledge is not adequate to run the world, what do you do? What do you do if you recognize that you are up against ignorance?

You ask before launching a scientific or technological venture: How many people will be involved? At what level of culture? Will we be able to back out? Scientists, technologists and policy-makers would be assiduous students of exits.

I have spent a fair amount of my life studying exits, starting with classrooms. How are we going to get out of here in case something goes wrong? Such students of exits would want to know not only how to exit, but also how to not leave irrevocable damage.

Knowledge seeking would not stop, but would, as Wendell Berry has said, "force us to remember things, cause us to hope for second chances and provide an incentive to keep the scale small." Acknowledging ignorance might be the secular mind's only way to humility.

Harvard's Dick Levins, a sort of a mathematical modeler ecologist, wrote, "Structured ignorance is a prerequisite for knowledge." Also, "Ignorance is not passive. It requires energy to sustain it."

By embracing an ignorance-based worldview, at least we go with our long suit. Knowledge and insight accumulate fastest in the minds of those who hold an ignorance-based worldview. Having studied the exits, their imaginations are less narrow. Darting eyes have the potential to see more.

At the conference, Wendell said, "Our purpose here is to worry about the predominance of the supposition in a time of great technological power that humans either know enough already or can learn enough soon enough to foresee and forestall any bad consequences." He said this supposition is typified by Selfish Gene author Richard Dawkins' assertion in an open letter to Prince Charles: "Our brains are big enough to see into the future and plot long-term consequences."

Wendell said, "When we consider how often and how recently our most advanced experts have been wrong about the future and how often the future has shown up sooner than expected with bad news about our past, Mr. Dawkins' assessment of our ability to know is revealed as a superstition of the most primitive sort."

Several people brought to the conference something Defense Secretary Donald Rumsfeld said at a news briefing: "There are known knowns. There are things we know we know. We also know there are known unknowns. That is to say we know there are some things we do not know. But there are also unknown unknowns, the ones we don't know we don't know."

Believe it or not, some thought Mr. Rumsfeld was really right on. Mario Rizzo, an author of The Economics of Time and Ignorance, said Rumsfeld's distinctions are important: "I know that I do not know Rumsfeld's home telephone number. On the other hand, I may arrive in a foreign country and be completely unaware that there are books or directories available that will tell me where to find other English speakers." So as a result of this uncertainty the poor tourist doesn't know where to search for those English speakers or how long it's worthwhile to keep searching. You can see that soon he'll be wondering how to find the restroom — and studying exits.

The conference then took up a Harvard Business Review piece called "Wanted: A Chief Ignorance Officer." It said that ignorance management is arguably a more important skill than knowledge management.

What interests me the most about ignorance is the kind that The Land Institute is willing to embrace as we think about building an agriculture based on the way a natural ecosystem works.

I think I can help you understand by reading from an Aldo Leopold essay called "The Last Stand." It describes a forest in the Alps that had produced quality timber since the 1600s by selective harvesting. A contiguous forest of the same kind of timber was clear-cut in the 1600s and never recovered, despite intensive care. Here's what Leopold says:

Despite this rigid protection, the old slashing now produces only mediocre pine, while the unslashed portion grows the finest cabinet oak in the world; one of those oaks fetches a higher price than a whole acre of the old slashings. On the old slashings the litter accumulates without rotting, stumps and limbs disappear slowly, natural reproduction is slow. On the unslashed portion litter disappears as it falls, stumps and limbs rot at once, natural reproduction is automatic. Foresters attribute the inferior performance of the old slashing to its depleted microflora, meaning that underground community of bacteria, molds, fungi, insects and burrowing mammals which constitute half the environment of a tree.

The existence of the term microflora implies, to the layman, that science knows all the citizens of the underground community, and is able to push them around at will. As a matter of fact, science knows little more than that the community exists, and that it is important. In a few simple communities like alfalfa, science knows how to add certain bacteria to make the plants grow. In a complex forest, science knows only that it is best to let well enough alone.

What we are acknowledging here is the integration of nature's life forms over a long evolutionary history, and that the entropy law has forced the efficiencies inherent to those natural integrities. We can't keep track of this. We have not even named most of the fungi or bacteria. To plow this information-rich world and simplify it and then treat it as though there's only phosphorus, potassium, manganese, iron, calcium and so on, and then presume you can just keep on, is acting as though knowledge is adequate to run that world.

We live in a very exciting time, but we need a different way of thinking. That means we need a kind of house arrest on the destructively dominating thoughts from the architects of the Enlightenment and beyond, to the Greek and Hebrew dualists. For example, in the early 17th century Rene Descartes' Meditations on the First Philosophy said that we can remake the world in the interests of humanity with no discussion of negative consequences. Imagine if in the 21st century we could see the end of the idea that knowledge is adequate to run the world. This would cause us to feature questions that go beyond the available answers. We would learn patience, and we would enjoy a kind of yeastiness for thought. I think this also would do the absolutely necessary job of driving knowledge out of its categories.

I have an example. Several years ago in the New York Review of Books, Harvard zoologist Dick Lewinton told about how he and Carl Sagan visited a church related college to take the evolutionist view in debate with a creationist. The creationist had a doctorate in zoology from the University of Texas — not a creationist department, but he was teaching in the church school. Afterward they asked for a show of hands, and found that the creationist won overwhelmingly. Lewinton wrote that in the cab going back to the airport, Sagan said this was obviously a problem of education. Lewinton said it was about cultural and regional history. Then he told how Sagan spent his life trying to change things through education.

I've been around a fair number of universities, and I've witnessed friends and the children of friends from creationist homes go to college and graduate, some of them cum laude, and they're still creationists. Cultural and regional history overrode education.

I give this example because here is a question that goes beyond the available answers: Why? If cultural and regional history overrides educational power, what do we do? If education isn't good enough, what do educators do?

Well, maybe it's time to start with a certain amount of humility and say we're fundamentally ignorant about the way minds change. Acknowledging that we are fundamentally ignorant, we now can ask a question that goes beyond the available answers, and that's going to force knowledge out of its categories.

We would be fundamentally respectful of our original relationship with the universe. There might even be a more joyful participation in our engagement with the world.

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January 10, 2011
TIGTA - 2011-3
Contact: Karen Kraushaar
(202) 622-6500
karen.kraushaar@tigta.treas.gov
TIGTA-PAO@tigta.treas.gov

 

IRS Contractors Owe Back Taxes, TIGTA Finds

 

WASHINGTON – The Internal Revenue Service (IRS) does not annually verify that government contractors have paid Federal taxes, despite a presidential directive that contractors with serious tax delinquencies not receive new work from Federal agencies, according to a report publicly released today by the Treasury Inspector General for Tax Administration (TIGTA).

 

On January 20, 2010, President Obama directed the IRS to review whether contractors bidding for Federal contracts owed Federal taxes. TIGTA reviewed whether businesses contracting to provide services to the IRS were compliant with Federal tax laws, including filing and paying Federal income taxes.

 

TIGTA determined that Federal guidelines prevent the IRS from using tax-indebtedness information to preclude a contractor from obtaining a contract. Those guidelines permit the IRS to conduct tax checks only at the time of the initial award to determine whether tax-indebtedness exists and if it indicates serious issues that could jeopardize contract performance.

 

In addition, Federal Government guidelines do not require the IRS to complete tax checks when contracts are being considered for renewal. Therefore, annual tax checks are not performed. As a result, contractors that may have become delinquent or noncompliant since the initial award date can continue to receive Federal payments without being subject to additional tax checks.

 

TIGTA’s review of 135 current IRS contactors identified 20 (15 percent) with delinquent tax liabilities and penalties totaling approximately $5.2 million. Six of these contractors had delinquent tax liabilities totaling approximately $943,000 when they were awarded the contracts. In addition, tax checks were not completed for seven of the 20 contractors. The contracts were awarded between October 2006 and December 2008.

 

“In accordance with the presidential directive, the Internal Revenue Service must ensure that businesses contracting to provide services to the IRS are compliant with Federal tax laws,” said J. Russell George, the Treasury Inspector General for Tax Administration. “IRS contractors should be held accountable to the same tax compliance requirements as IRS employees.”

 

TIGTA recommended that the IRS:

 

  • communicate to its senior executives the Administration’s request that contractors with tax liabilities not receive additional Federal contracts;

     

  • ensure that tax checks and financial capability surveys are performed before contracts are awarded, and;

     

  • establish procedures to require an annual tax check of all IRS contractors.

     

IRS management agreed with the recommendation to evaluate the contract award process and to ensure tax checks and financial capability surveys are done before contracts are awarded. In addition, the IRS plans to include tax-check responsibilities in future employee training. The IRS disagreed with TIGTA’s recommendation to establish procedures to conduct annual tax checks on all contractors to identify subsequent tax delinquencies.

 

To view the report, including the scope, methodology, and full IRS response, go to: http://www.treas.gov/tigta/auditreports/2010reports/201030120fr.pdf.

 

###

 

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LOGO For invite
2011 Real Estate Trends Exposed in IRR-Viewpoint from Integra Realty Resources
21st edition of the report forecasts local, national and international commercial real estate trends in all property sector types
NEW YORK- January 11, 2011- Integra Realty Resources, Inc. (Integra) just released its 2011 IRR-Viewpoint , the industry's annual compendium of real estate valuation, trends and forecasts. This year's report provides thorough data and analysis on local, national and international market conditions for nine industry sectors, including office, retail, multifamily, industrial, lodging, and green building properties throughout the United States, Mexico, Japan and Canada.
"Certain real estate markets and sectors began to stabilize in the past year," says Jeffrey Rogers, FRICS, JD, MBA, COO and President of Integra. "We attribute this stabilization to a number of factors, including the deleveraging of the market, with the notable exception of the multifamily sector, and the bifurcation of real estate markets. Economic forecasts predict that the U.S. economy should slowly begin adding jobs towards the end of 2011, which will play a major role in real estate. While the level of growth expected is modest/minimal, we anticipate slight improvements in certain corresponding sectors, such as vacancy rates for office, industrial and retail properties in the coming year."
Key findings of this year's IRR-Viewpoint include:
Office
• Continued high unemployment rates, particularly in cities such as Detroit and Las Vegas, are suppressing recovery in the office sector. In locales where major employers continue to downsize their workforce, vacancy rates continue to increase and rents fall as supply overshadows demand. The CBD office vacancy rate increased from 13.42% at the end of 2009 to a current rate of 14.55%. Similarly, suburban office vacancies have increased from 15.45% to 17.10%.
•  Due to limited construction activity, office inventories have remained relatively unchanged from last year. Furthermore, development in the pipeline remains low. For both CBD and suburban markets, construction activity for the next three years is expected to decrease approximately 10%. Partly due to/related to these trends, the projected years required to balance office supply and demand decreased over last year, falling from 6.25 to 5.66 for CBD markets and 5.96 to 5.28 for suburban markets.
• Cities with diversified industries were less impacted by the downturn in the economy than were cities that relied heavily on financial services and real estate sectors. In order to combat rising vacancy rates, many markets have turned to offering increased rent abatements and tenant improvement allowances.
Retail
• Cities with high unemployment such as Detroit, Sacramento, and Syracuse have suffered the largest setbacks in the retail market, with steadily climbing vacancy rates since 2008. Those markets have seen vacancy increases of 6.09%, 7.32%, and 4.62% respectively in the past two years. The markets with the highest retail vacancy rates in 2010 are Houston at 16.17%, Dayton at 17.57%, and Providence at 20%. At the other end of the spectrum, some locales have seen a drop in vacancy rates, including Austin, Greenville, and San Francisco.
• Many survey participants indicated that stabilized, well anchored properties with a good tenant mix were still in demand despite an influx in supply of retail property as a whole.
• The falling rents, increased vacancy rates, and an inability to obtain capital that has been associated with the economic downturn have effectively shut down many new retail construction projects.
Multifamily
• The apartment sector was the only sector to see expansion during 2010 and is usually the first sector to rebound after a recession. 81% percent of markets are in the recovery or expansion phase compared to only 9% last year.
• The average apartment vacancy rates decreased from 7.63% to 5.05%. At 13.87%, Houston posted the highest apartment vacancy, while New York reported a vacancy of just 3.30%, the lowest of all surveyed markets. In conjunction with decreased vacancy, the estimated years required to balance current supply and demand fell from 2.74 to 1.83.
• While higher quality properties continue to enjoy strong occupancies and stable rent, many older Class B properties are struggling to compete. As single-family residences are added to the market, Integra expects further pressure to be placed on lower end multifamily properties.
• Construction forecasts are up 6% this year. With construction and absorption expectations improving, of the four major markets (office, multifamily, industrial, and retail), the apartment sector is showing the strongest signs of recovery.
Industrial
• Vacancy rates continued to climb from 8.57% in 2008, to 10.17% in 2009, to 10.85% in 2010. Notably, projected annual absorption for 2011-2013 reversed its freefall of 41%, from 86 million square feet per year in 2009 to 51 million square feet per year in 2010, by increasing to 59 million square feet per year in 2011.
• Planned development has seen a decrease. Last year, 197.1 million square feet were in the pipeline as compared to this year's 184.3 million square feet.
•  2010 survey participants anticipate that the number of years required to balance the industrial market is slightly less than 4.5 years. This represents a marginal improvement over past projections. Some Integra locations, such as Boise, are indicating that the industrial sector is the strongest of the three non-residential markets. The industrial markets which fared the best over the past couple of years are those that entered the economic slowdown with little current speculative construction. Many markets report the first submarkets to show signs of recovery include well-located, high-quality properties.
Lodging
• As of 3Q 2010, the market appears more than ready to recognize the inherent value of quality full service properties and well-known brands. Lodging Econometrics reports that REITs have spent $1.87 billion on 3Q 2010 acquisitions, over ten times the amount spent by REITS for the same period in 2009.
• Occupancy is forecasted to increase by 4.4% in 2010, reaching a level of57.1% as compared to the 61% average occupancy from1999 to 2009. Occupancy is expected to increase another 1.4% by 2011, reaching 57.9%. Average daily rate (ADR) is projected to end 2010 at $97.74, up 0.5% from the same time last year. ADR is expected to further increase to $101.55 for 2011.
• These dramatic changes in occupancy and ADR, combined with scarce construction financing and a sparse development pipeline suggest the favored brands and locations of this sector will be able to regain footing quickly. In the secondary and tertiary markets, however, and where the demand drivers remain distressed, solid footing may remain elusive for the foreseeable future.
Green Building
• The growing trend toward sustainable construction and retrofitting, otherwise known as the "greening" of commercial real estate, is linked to social pressures and expectations from both the public and the younger workforce, as well as government agencies. According to figures from various studies, including the U.S. Environmental Protection Agency (EPA) and U.S. Green Building Council (USGBC), Denver, Colorado has more green building activity per capita than any other major city in the nation. Other cities in which significant green building and retrofitting are occurring are San Francisco, Houston, Minneapolis/St. Paul, Washington D.C., and Chicago. Even traditionally non-green cities are getting into the action.
• The primary variable in which green buildings excel over non-green buildings is in vacancy and tenant retention. Even without an increase in lease rates, higher leasing velocity, higher occupancy/tenant retention, and lower operating costs can demonstrate why green buildings have a lower risk profile and are ultimately a more stable investment relative to competing non-green buildings. Market demand, current construction projects, and societal trends in the green real estate market are profoundly affecting current purchase and leasing activity.
"It is no secret that the last year has been challenging for the commercial real estate industry," said Anthony S. Graziano, MAI, CRE, FRICS, Chairman of the Board. "Most areas of the real estate and financing industries are still struggling to recover from the recession. The high unemployment rate and difficulty obtaining financing will continue to limit the ability of the industry to fully recover for the foreseeable future. On the other hand, there are signs of life in commercial real estate. Transaction volumes are up, and cap rates reported by our offices are slightly lower. Integra professionals are reporting a segmenting of the markets as a major theme as we look toward 2011. The best Class A properties are getting the tenants, buyers and financing, but much of the industry is still struggling in these areas."
The full 2011 IRR-Viewpoint report includes 60 market breakdowns and in-depth analyses for Japan, Canada, Mexico, and the seniors housing, green building, self-storage and gaming sectors. Additional resources included are documented methodology, 25 graphs and 17 tables, is available for free download on Integra's home page: www.irr.com.
ABOUT INTEGRA REALTY RESOURCES, INC. (IRR)
With corporate offices in New York City, Integra Realty Resources, Inc. is an independent real estate valuation and consulting firm that offers local expertise on a national scale with 60 offices and 850 credentialed consultants and staff located across the United States and in Mexico. Founded in 1999, the Firm specializes in real estate appraisals, feasibility studies, market studies, expert testimony, and related property consulting services. Many of the nation's largest and most prestigious financial institutions, developers, corporations, law firms, and government agencies are among its clients. Because of the high quality of its professionals, integrated systems, and state-of-the-art technology IRR is capable of handling a wide array of assignments and producing high quality, meaningful results on a timely basis. Please call Integra for your next assignment or visit us at www.IRR.com.



This email was sent to: harris_curtis@sbcglobal.net
This email was sent by: Integra Realty Resources, Inc.
1133 Avenue of the Americas, 27th Floor New York, NY 10036 USA



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January 10, 2011

HUD USPS ZIP Code Crosswalk Files

HUD USPS ZIP Code Crosswalk Files
One of the many challenges that social science researchers and practitioners face is the difficulty of relating United States Postal Service (USPS) ZIP codes to Census Bureau geographies. There are valuable data available only at the ZIP code level that, when combined with demographic data tabulated at various Census geography levels, could open up new avenues of exploration.
While some acceptable methods of combining ZIP codes and Census geography exist, they have limitations. To provide additional avenues for merging these data, PD&R has released the
HUD-USPS Crosswalk Files. These unique files are derived from data in the quarterly USPS Vacancy Data. They originate directly from the USPS; are updated quarterly, making them highly responsive to changes in ZIP code configurations; and reflect the locations of both business and residential addresses. The latter feature is of particular interest to housing researchers because many of the phenomena that they study are based on housing unit or address. By using an allocation method based on residential addresses rather than by area or by population, analysts can take into account not only the spatial distribution of population, but also the spatial distribution of residences. This enables a slightly more nuanced approach to allocating data between disparate geographies.
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January 09, 2011

Join Marcus & Millichap for a comprehensive update and outlook of the apartment property sector.

60-Minute Webcast
Tuesday, January 11, 2011
10:30 a.m. Pacific / 1:30 p.m. Eastern
!
This live webcast will include speaker presentations followed by an interactive Q&A session.
The webcast will address:

How much longer the economic slowdown will last

The outlook for financing and the capital markets

Whether the rent and occupancy recovery will continue in 2011!

The outlook for pricing, cap rates and investment opportunities
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January 07, 2011

Concerned about the passage of the ADA Amendments Act,

Concerned about the passage of the ADA Amendments Act, the enactment of the new Executive Order 13548, and the implementation of Schedule A? Find practical solutions with JAN's 2011 Federal Employer Winter Webcast Series. JAN will be providing three free 1.5 hour Webcast sessions to begin January 2011.

The three part series will cover the hiring and employment of people with disabilities in the Federal government and the reasonable accommodation process. JAN welcomes guest speakers from the Equal Employment Opportunity Commission, the Office of Personnel Management, Department of Defense's Computer/Electronic Accommodations Program, and the U.S. Environmental Protection Agency. Audience members will include federal disability program managers, hiring managers, supervisors, EEO representatives, selective placement coordinators, and others who may be involved in hiring and managing workers in the Federal government. Register early to reserve your seat, as this series will close due to high demand. Learn more at: http://AskJAN.org/webcast/indexfed.htm

The JAN Staff

Staff

 

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January 06, 2011

Residential Appraising in Declining Real Estate Markets.

Fellow Real Estate Professionals, Property Owners and Investors 

Most of you know that I have been ranting for years about the number of unqualified "professonals" in our industry.  This conversation peaked with the most recent decline in real estate values.  Since then I have told anyone that would listen that the Appraisal Foundation/Appraisal Institute, FannieMae, Freddie Mac, and a number of other affilaited agencies that, appraisers were inapproperately using non-arms length sales (REO-Short Sales) as comparables.  This practice continues and has resulted in an inestimable geometric decline in both residential and commercial values.

Now we have the opportunity to do something constructive about this mess.   The Appraisal Foundation/Appraisal Institute is in the process of setting up a SME panel to investigate this problem.  I am not a member of either of these organizatons, you might call me a Real Estate Tea Party Planner!   To protect the interest of millions of families and investors, it is imperative that I be selected to this pannel.  If you and your associates are concerned with appaisal values and the decline of the Real Estate Market  please spread the word, write to

staci@appraisalfoundation.org 

and insist that I be consitered for the panel. 

Curtis D. Harris, BS, CGREA, REB http://www.harriscompanyrec.com

The Appraisal Practices Board (APB) has issued the following Solicitation for Subject Matter Experts (SMEs) to assist in the research and development of voluntary guidance on Residential Appraising in Declining Real Estate Markets. The SME panel chosen to address this topic will accomplish its goal by, at a minimum, gathering, citing and researching all existing literature and publications. For more information on the background and qualifications required to be considered for the Subject Matter Expert panel, please see the SME application at https://appraisalfoundation.sharefile.com/d/s7298621e0e7403abCompleted applications must be submitted by January 10, 2011.  Appraisal Practices Board

 

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First Exposure Draft of Proposed Revisions to the Personal Property Appraiser Qualification Criteria

The Appraiser Qualifications Board (AQB) issued the following Exposure Draft:

 

First Exposure Draft of Proposed Revisions to the Personal Property Appraiser Qualification Criteria 

 

Link: https://appraisalfoundation.sharefile.com/d/s5d5d9a9af3f4793a

 

Issued on October 26, 2010. Written comments requested by February 15, 2011.

 

Send Comments to AQBComments@appraisalfoundation.org 

 

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Benchmarking Energy Use in Commercial Buildings,

CTAC is offering a free seminar.  Reservations are required to attend a, Benchmarking Energy Use in Commercial Buildings, at SCE's Customer Technology Application Center (CTAC), in Irwindale on Thursday, January 13.

 


Using Technology to Comply with California State Law

 


California state law requires non-residential building owners and operators to disclose a building’s benchmarking energy performance score at the time of sale, lease, or refinancing. Attend this introductory hands-on workshop to learn how to use the Environmental Protection Agency (EPA) ENERGY STAR® Portfolio Manager benchmarking tool to benchmark your building. ENERGY STAR® Portfolio Manager can help guide investment priorities, identify under-performing buildings, verify energy efficiency improvements, and receive EPA recognition for superior performance.

Topics covered:
• AB1103 - the energy benchmarking law in California
• Automated Benchmarking Service (ABS) provided by utilities
• The ENERGY STAR® energy performance scale
• Utility incentive programs to assist in improving a building’s energy performance
 

 

Event Details
Event Name: Benchmarking Energy Use in Commercial Buildings
Event Number: 27423
Event Date: Thursday, January 13, 2011
Event Time: 8:30 a.m. - 12:30 p.m.
Registration & Continental Breakfast: 8:00 a.m.
Event Location:  SCE CTAC

                         6090 N. Irwindale Ave
                         Irwindale, CA 91702
 

Reservations can be made by calling (626) 812-7537 or (800) 336- 2822- ext 42537 or by registering online at www.sce.com/workshops.
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January 05, 2011

Commercial Real Estate News Feeds:

Commercial Real Estate News Feeds: http://www.harriscompanyrec.com/NewsFeeds2.html
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Summer Institute

Wednesday, February 23

8:00 am
New Markets Tax Credit Steering Committee Meeting
Please note this meeting is open to NMTC Steering Committee Members only. If you are interested in learning more about this committee please contact Thom Amdur at tamdur@housingonline.com or 202-939-1753 for details.
9:15 am
to
4:00 pm
Pre-Conference Symposium On New Markets Tax Credits

Click here for complete agenda with speaker information.
4:00 pm
Legislative Leadership Committee Meeting
Please note this meeting is open to Legislative Leadership Committee Members only. If you are interested in learning more about this committee please contact Thom Amdur at tamdur@housingonline.com or 202-939-1753 for details.
6:30 pm
Board of Directors Dinner
Please note this dinner is open to NH&RA Directors and Spouses only.

Thursday, February 24

8:30 am
Historic Preservation Development Council Breakfast
This optional breakfast is open to all attendees. There is a $50.00 catering fee to attend. Contact Thom Amdur at tamdur@housingonline.com or 202-939-1753 for details.
10:00 am
NH&RA Executive Committee Meeting
This meeting is for NH&RA Executive Committee members only.
11:00 am
NH&RA Board of Directors Meeting
Please note this meeting is for NH&RA Directors only.
1:00 pm
Welcome & Introductions
1:30 am
The Big Picture: National Economic & Housing Forecast

David Crowe, National Association of Homebuilders, Washington, DC
Sharon Bell, National Association of Homebuilders, Washington, DC

2:15 pm
Shaping the Future of Affordable Housing Policy in 2011
  • Tax Reform Proposals and How They Impact Affordable Housing & Historic Rehabilitation
  • GSE and Housing Finance System Reform
  • Implications of the New Congress on Housing & Tax Credit Policy
Michael Berman, CW Capital/Mortgage Bankers Association, Boston, MA
Additional Speakers TBA
3:15 pm
New Bond Financing Structures For 2011
NH&RA members are known for being first adopters and innovators of new financing structures. Be the first to learn about the newest multifamily bond structure making waves in the investment banking community. Learn how to market your 4% transaction without credit enhancement.

John Rucker, Merchant Capital, Montgomery, AL
John Peck, Peck Shaffer & Williams LLP, Cincinnati, OH
Mikiyon Alexander, Standard & Poor's, New York, NY

4:00 pm
Securing Debt For Affordable Housing Transactions
  • FHA Program Updates
  • Fannie Mae & Freddie Mac Program Updates
Nick Gesue, Lancaster Pollard, Columbus, OH
Bob Simpson, Fannie Mae, Sioux Falls, SD
Kimball Griffith, Freddie Mac, McLean, VA
Tom Capp, Gorman & Company, Madison, WI
4:45 pm
Securing Tax Credit Equity in CRA Markets

Victor Sostar, First Sterling, Manhasset, NY
David Leopold, Bank of America Merrill Lynch, Washington, DC
Patrick Nash, JP Morgan Chase, Chicago, IL
Vihar Sheth, US Bank, St. Louis, MO
Ronne Thielen, Centerline Capital Corporation, Irvine, CA
Greg Voyentzie, Boston Financial Investment Management, Boston, MA
Bob Greer, The Michaels Development Company, Marlton, NJ

5:45 pm
Securing Tax Credit Equity in Non-CRA Markets

Tony Bertoldi, City Real Estate Advisors, Boston, MA
Jay Segel, Stratford Capital, Boston, MA
Darrick Metz, WNC & Associates, St. Paul, MN
Linda Hill, Aegon Realty Advisors, San Francisco, CA
Bernie Husser, The Richman Group Affordable Housing Corp., Boston, MA
Ben Applegate, Applegate & Thorne-Thomsen, Chicago, IL

6:30 pm
Opening Reception & Dinner

Friday, February 25

8:00 am
Council for Energy Friendly Affordable Housing Breakfast
This optional breakfast is open to all attendees. There is an additional $50 registration fee to attend to cover catering costs. Space is limited. Advanced RSVP required. If you are interested in learning more about this committee please contact Thom Amdur at tamdur@housingonline.com or 202-939-1753 for details.
9:15 am
Planning for 2011: Tax Credit Allocators Roundtable
This NH&RA staple will bring together leading executives from regional tax credit allocating agencies to discuss LIHTC policy including QAP updates, implementation of ARRA programs and more.  This is a can't-miss opportunity to network and learn from the people reviewing your LIHTC applications.

Dan Rosen, Klein Hornig LLP, Boston, MA
Steve Auger, Florida Housing Finance Corporation, Tallahassee, FL
Ted Fellman, Tennessee Housing Development Agency, Nashvile, TN
Milton Bailey, Louisiana Housing Finance Agency, Baton Rouge, LA
Additional Speakers TBD
10:30 am
NH&RA's Developers Council Presents:
Leading The Market: A Conversation with Innovators

At our core, NH&RA is a developer's organization.  This free-flowing roundtable discussion brings together some of our most innovative and successful members involved in the development, ownership and management of affordable housing, multifamily rental and historic properties.  Learn about new opportunities, trends and best practices from the most successful minds in the business.

Debra Koehler, Sage Partners, Tampa, FL
Additional Speakers TBD
11:30 am
Doing More With Less in 2011: Lessons from New York
We are entering period that will be characterized by fiscal austerity and diminishing federal support for affordable housing. Learn how innovative agencies and municipalities are responding to these challenges and doing more with less.

Mark Jahr, New York City Housing Development Corp., New York, NY
Jacquelyn Harris, New York City Department of Planning, New York, NY
Adolfo Carrion, NY & NJ Regional Director, HUD, New York, NY
Additional Speakers TBD
12:30 pm
Developers Council Luncheon
NH&RA's Developers Council is a peer-to-peer network of developers that discusses topics of mutual interest, focusing on development, finance, construction, and business management issues. This Developers Only session provides a unique forum to share ideas and strategies with your fellow developers. Advanced RSVP Required.
The NH&RA Developers Council will continue its work session over lunch. This optional luncheon is restricted to Developers only. There is an additional $70 registration fee to attend. Space is limited. Advanced RSVP required. If you are interested in learning more about this committee please contact Thom Amdur at tamdur@housingonline.com or 202-939-1753 for details.

Saturday, February 26

9:00 am
Making the Best of a Bad Situation: Acquiring and Redeveloping REO and Distressed Properties

Stephen Roger, Centerline Capital Corp., New York, NY
John Gahan, Murtha Cullina LLP, Boston, MA
Sheldon Schreiberg, Pepper Hamilton LLP, Washington, DC
Marianne Votta, Bank of America Merrill Lynch, Boston, MA
Doug Koch, RSM McGladrey, Boston, MA
Steve Erie, Vesta Corp., Weatogue, CT
Bradley Bullock, Guardian Real Estate Services LLC, Portland, OR

10:30 am
Integrating LIHTC and Energy Credits

John Mackey, Reznick Group, Boston, MA
Forrest Milder, Nixon Peabody, Boston, MA
Additional Speakers TBD
11:15 am
Gap Financing In 2011
Gap financing promises to be one of the biggest challenges in 2011. The TCAP program is long-gone and state and municipal budgets and trust funds drying up. Fortunately, developers are not without options. This panel will explore creative options to fill your gaps in 2011 including NSP and AHP funds, state credits and more...

Patrick Sheridan, Volunteers of America, Alexandria, VA
Hannah Cassidy, Reno & Cavanaugh, Nashville, TN
Bill Russell, Sarasota Housing Authority, Sarasota, FL
Loretta Owens, The Housing Fund, Nashville, TN
12:30 pm
End of Sessions
1:00 pm
Golf Tournament / Recreational Activities
6:00 pm
Closing Reception
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This revenue procedure provides guidance regarding aspects of a taxpayer’s

Part III

Administrative, Procedural, and Miscellaneous

26 CFR 601.105: Examination of returns and claims for refund, credit, or abatement;

determination of correct tax liability.

(Also Part I, §§ 856(c), 1001; 1.856–3, 1.856–5, 1.1001–3.)

Rev. Proc. 2011-16

SECTION 1. PURPOSE

This revenue procedure provides guidance regarding aspects of a taxpayer’s

qualification as a real estate investment trust (REIT) in the context of transactions

involving debt secured by real estate the fair market value of which has declined.

SECTION 2. BACKGROUND

.01 To qualify as a REIT for a taxable year, at least 95 percent of an entity’s

gross income must be derived from the types of qualifying income listed in

section 856(c)(2) of the Internal Revenue Code, and at least 75 percent of its gross

2

income must be derived from the types of qualifying income listed in section 856(c)(3).

Specifically, all interest is qualifying income for the 95 percent income test under section

856(c)(2); and interest on obligations secured by mortgages on real property or on

interests in real property is qualifying income for purposes of the 75 percent income test

under section 856(c)(3).

.02 Section 856(c)(4)(A) provides that at the close of each quarter of its taxable

year, at least 75 percent of the value of a REIT's total assets must be represented by

real estate assets, cash and cash items (including receivables), and Government

securities.

.03 Under section 856(c)(5)(B), the term “real estate assets” includes real

property (including interests in real property and interests in mortgages on real property)

and shares (or transferable certificates of beneficial interest) in other REITs.

.04 Section 856(c)(5)(C) provides that the term “interests in real property”

includes fee ownership and co-ownership of land or improvements thereon, leaseholds

of land or improvements thereon, options to acquire land or improvements thereon, and

options to acquire leaseholds of land or improvements thereon, but does not include

mineral, oil, or gas royalty interests.

.05 If a mortgage loan is secured by both real property and other property, then,

for purposes of section 856(c)(3), § 1.856–5(c) of the Income Tax Regulations provides

rules for apportioning the interest on the loan between interest on an obligation that is

secured by real property (or by an interest in real property) and interest on an obligation

that is not so secured. Under this apportionment test, the “loan value of the real

3

property” is compared to the “amount of the loan.” If the loan value of the real property

is equal to or exceeds the amount of the loan, then all of the interest income from the

loan is apportioned to the real property. If the amount of the loan exceeds the loan

value of the real property, the interest income apportioned to the real property is an

amount equal to the interest income multiplied by a fraction the numerator of which is

the loan value of the real property and the denominator of which is the amount of the

loan. The interest income apportioned to the other property is the excess of the total

interest income over the interest income apportioned to the real property.

.06 For purposes of the apportionment test, § 1.856–5(c)(2) generally defines the

“loan value of the real property” that secures a loan as the fair market value of the real

property, determined as of the date on which a commitment became binding on the

REIT either to make the loan or to purchase the loan, as the case may be.

Section 1.856-5(c)(3) defines the “amount of the loan” as the highest principal amount

of the loan outstanding during the taxable year.

.07 Section 1.1001–3(c)(1)(i) defines a “modification” of a debt instrument as any

alteration, including any deletion or addition, in whole or in part, of a legal right or

obligation of the issuer or holder of the debt instrument, whether the alteration is

evidenced by an express agreement (oral or written), conduct of the parties, or

otherwise. Section 1.1001–3(e) governs which modifications of debt instruments are

“significant.” Under § 1.1001–3(b), for most federal income tax purposes, a significant

modification produces a deemed exchange of the original debt instrument for a new

debt instrument.

4

.08 Section 1.860G–2(b)(1) concerns modifications of mortgages held by real

estate mortgage investment conduits (REMICs). Certain loan modifications are not

significant for purposes of § 1.860G-2(b)(1) even if the modifications are significant

under the rules in § 1.1001-3. In particular, under § 1.860G-2(b)(3)(i), if a change in the

terms of an obligation is “occasioned by default or a reasonably foreseeable default,”

the change is not a significant modification for purposes of § 1.860G-2(b)(1), regardless

of the modification's status under § 1.1001-3.

.09 Section 857(b)(6) imposes a tax equal to 100 percent of the net income

derived from “prohibited transactions.” Section 857(b)(6)(B)(iii) defines the term

“prohibited transaction” as a sale or other disposition of property that is described in

section 1221(a)(1) and that is not foreclosure property.

SECTION 3. SCOPE

.01 Section 4.01 of this revenue procedure applies to a modification of a

mortgage loan which (or an interest in which) is held by a REIT if –

(1) The modification was occasioned by default; or

(2) The modification satisfies both of the following conditions:

(a) Based on all the facts and circumstances, the REIT or servicer of the loan

(the “pre-modified loan”) reasonably believes that there is a significant risk of default

of the pre-modified loan upon maturity of the loan or at an earlier date. This

reasonable belief must be based on a diligent contemporaneous determination of

that risk, which may take into account credible written factual representations made

by the issuer of the loan if the REIT or servicer neither knows nor has reason to

5

know that such representations are false. In a determination of the significance of

the risk of a default, one relevant factor is how far in the future the possible default

may be. There is no maximum period, however, after which default is per se not

foreseeable. For example, in appropriate circumstances, a REIT or servicer may

reasonably believe that there is a significant risk of default even though the foreseen

default is more than one year in the future. Similarly, although past performance is

another relevant factor for assessing default risk, in appropriate circumstances, a

REIT or servicer may reasonably believe that there is a significant risk of default

even if the loan is performing, and

(b) Based on all the facts and circumstances, the REIT or servicer reasonably

believes that the modified loan presents a substantially reduced risk of default, as

compared with the pre-modified loan.

.02 Section 4.02 of this revenue procedure applies to any corporation that has

elected to be taxed as a REIT.

SECTION 4. APPLICATION

.01 Modifications. If a modification of a mortgage loan is described in

section 3.01 of this revenue procedure—

(1) For purposes of ascertaining under § 1.856-5(c)(2) the “loan value of the real

property” securing that loan, a REIT may treat the modification as not being a new

commitment to make or purchase a loan; and

(2) The modification of the mortgage loan will not be treated as a prohibited

transaction under section 857(b)(6).

6

.02 Asset test. The Service will not challenge a REIT’s treatment of a loan as

being in part a “real estate asset” for purposes of section 856(c)(4) if the REIT treats the

loan as being a real estate asset in an amount equal to the lesser of—

(1) The value of the loan as determined under § 1.856-3(a), or

(2) The loan value of the real property securing the loan as determined

under § 1.856–5(c) and this revenue procedure.

SECTION 5. EXAMPLES

.01 Example 1. In 2007, X, a REIT, made a $100 mortgage loan to A. X’s loan

to A was secured by both real property and personal property. When X’s commitmentto make the loan became binding on

X, the real property had a fair market value of$115. At the end of the calendar quarter in which X made the loan, the value of the loan

as determined under § 1.856-3(a) was $100. At all times through the end of 2010,

under § 1.856–5(c)(3), the amount of the loan continued to be $100.

By the start of 2009, the fair market value of the real property had fallen to $55

and the fair market value of the personal property was $5. They remained at these

levels throughout 2009 and 2010. Throughout 2009 and 2010, the value of the loan, as

determined under § 1.856-3(a), was $60.

During 2009, X and A modified the terms of the mortgage loan. The modification

of the loan is described in section 3.01 of this revenue procedure and is a significant

modification under § 1.1001-3.

(1) Income Test. When X made the mortgage loan in 2007, the loan value of the

real property for purposes of § 1.856–5(c) was its fair market value ($115) determined

as of the date on which the commitment to make the loan became binding on X. This

amount exceeded the amount of the loan for that year ($100). Accordingly, in the year

that the loan was made, all of the interest from the loan was apportioned to the real

property. See § 1.856–5(c)(1).

Between the time that the loan was made and the time of the modification, the

loan value of the real property continued to be $115, notwithstanding changes in the fair

market value of that real property. See § 1.856–5(c)(2). Similarly, the amount of the

loan continued to be $100. Accordingly, the loan value of the real property ($115)

continued to exceed the amount of the loan ($100), and all of the interest on the loan

continued to be apportioned to the real property.

7

The fair market value of the real property that secured the mortgage loan had

fallen to $55 by the time that X and A modified the loan in 2009. That modification,however, is described in section 3.01, and X chose to treat the modification as not being

a new commitment to make or purchase a loan. Therefore, the loan value of the real

property ($115) does not change. Because the loan value of the real property ($115)

continued to exceed the amount of the loan for the year of modification ($100), all of the

interest from the loan during that year is apportioned to real property.

(2) Asset Test. In 2007, at the end of the calendar quarter in which X made the

mortgage loan, the value of the loan (as determined under § 1.856-3(a)) was $100, and

the loan value of the real property securing the loan (as determined under § 1.856–

5(c)(2)) was $115. For this calendar quarter, under section 4.02 of this revenue

procedure, X may treat the lesser of these two values ($100) as the amount of the loan

that is a real estate asset for purposes of section 856(c)(4).

In 2009, at the end of the calendar quarter in which X modified the mortgage

loan, the value of the loan (as determined under § 1.856-3(a)) was $60, and the loan

value of the real property securing the loan (as determined under § 1.856–5(c) and

section 4.01 of this revenue procedure) was $115. For this calendar quarter, under

section 4.02 of this revenue procedure, X may treat the lesser of these two values ($60)

as the amount of the loan that is a real estate asset for purposes of section 856(c)(4).

.02 Example 2. The facts include all of the facts in Example 1. Additionally,

during the first quarter of 2010, Y, a REIT, committed to purchase, and purchased, themortgage loan from

X for $60.(1) Income Test. Under § 1.856–5(c)(2), the loan value of the real property

securing the loan is the fair market value of the real property determined as of the date

on which Y’s commitment to purchase the loan became binding on Y ($55). This value

is compared to the amount of the loan for the year ($100). Because the amount of the

loan exceeds the loan value of the real property, the interest income apportioned to the

real property is an amount equal to the interest income multiplied by a fraction the

numerator of which is the loan value of the real property ($55) and the denominator of

which is the amount of the loan ($100). Therefore, 55 percent of the interest income

from Y’s loan is apportioned to the real property securing the loan. Interest income

apportioned to the other property is the excess of the total interest income over the

interest income apportioned to the real property. See § 1.856–5(c)(2).(2) Asset Test. At the end of every calendar quarter during 2010, the value of the

loan (as determined under § 1.856-3(a)) was $60, and the loan value of the real

property securing the loan (as determined under § 1.856–5(c) and this revenue

procedure) was $55. For every calendar quarter during 2010, under section 4.02 of this

8

revenue procedure, Y may treat the lesser of these two values ($55) as the amount of

the loan that is a real estate asset for purposes of section 856(c)(4).

SECTION 6. EFFECTIVE DATE

This revenue procedure is effective for all calendar quarters and all taxable

years.

SECTION 7. DRAFTING INFORMATION

The principal author of this revenue procedure is Jonathan D. Silver of the Office

of Associate Chief Counsel (Financial Institutions & Products). For further information

regarding this revenue procedure contact Jonathan D. Silver on (202) 622-3930 (not a

toll free call).

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By Leslie Z. Walker, Cori Badgley, Katherine J. Hart and William W. Abbott

Abbott & Kindermann, LLP’s annual California Environmental Quality Act (“CEQA”) review summarizes important developments over the past year. Among 2010’s highlights were three decisions from the California Supreme Court: two enforcing the abbreviated statutes of limitations set forth in Public Resources Code section 21167 subdivisions (d) and (e), and one holding the baseline for air quality emissions to existing physical conditions, not existing permitted conditions. The question of what constitutes the appropriate baseline for environmental review reverberated through the appellate courts as the Court of Appeal for the Fourth Appellate District held that adjudicated water rights, rather than actual water consumption, could serve as the baseline in a master plan; and the Sixth Appellate District held that the use of 2020 traffic conditions, as opposed to existing conditions, constituted an abuse of discretion.

Other highlights include three firsts on the climate change front: (1) adoption of CEQA guidelines for the quantification and mitigation of greenhouse gas emissions (“GHG”), (2) the adoption of the first thresholds of significance for GHG, and (3) the First Appellate District case finding an Environmental Impact Report’s (“EIR”) analysis of GHG inadequate.

Condensed summaries of this year’s cases and developments are presented below, organized based upon the major CEQA issues discussed, and linked to the full length articles published earlier this year on our blog. To print this summary click here.

GREENHOUSE GASES

CEQA Guidelines for Addressing Greenhouse Gas Emissions: The Amendments to the CEQA Guidelines Addressing GHG mandated by Senate Bill 97 (Chapter 185, Statutes 2007; Pub. Resources Code, § 21083.05) took effect in March 2010. The Amendments require the quantification and mitigation of GHGs.The Amendments do not set forth numeric thresholds but add the following questions to the Appendix G checklist: a)Would the project generate greenhouse gas emissions, either directly or indirectly, that may have a significant impact on the environment? b) Would the project conflict with an applicable plan, policy or regulation adopted for the purpose of reducing the emissions of GHGs? See California Environmental Quality Act Air Quality Guidelines.

Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70: In the first published CEQA case pertaining to GHG analysis, the court found that a mitigation measure requiring the city to submit a plan for achieving complete reduction of GHG emissions within one year of project approval constituted a classic case of deferred mitigation. See 898,000 Metric Tons of Unmitigated CO2: Prime Conditions for the First Appellate Court Decision on CEQA and Climate Change.

AB 1846 Chapter 195 - Environment: expedited environmental review: climate change Regulations Statutes 2010: Amends the Public Resources Code to authorize the use of a focused environmental impact report for a project consisting solely of the installation of pollution control equipment or other components that are necessary to complete the installation of equipment that reduces greenhouse gas emissions.

Bay Area Air Quality Management District Thresholds of Significance: In June 2010, the Bay Area Air Quality Management District adopted the first ever numeric thresholds for GHG. The Bay Area Guidelines impose plan-level and project-level guidelines for operations only (as opposed to the construction and operation thresholds proposed for Criteria Air Pollutants.) The project-level thresholds of significance for the San Francisco Bay Area’s GHG are:

  • For land use developments project, compliance with a qualified GHG Reduction Strategy, or annual emissions less than 1,100 metric tons per year of carbon dioxide equivalent, or 4.6 metric tons per year carbon dioxide per service population, which includes residents and employees. Land use development projects include residential, commercial, industrial and public land uses and facilities.
  • For a project level, compliance with a qualified GHG reduction strategy or 6.6 metric tons per service population per year of carbon dioxide equivalent.

See Bay Area Air Quality Management District Defers Adoption of Greenhouse Gas Threshold.

IS IT A PROJECT?

Parchester Village Neighborhood Council v. City of Richmond (2010) 182 Cal.App.4th 305: A municipal services agreement between the Scotts Valley Band of Pomo Indians of California and the City of Richmond did not constitute a project for the purposes of CEQA. The agreement required the tribe to make payments in exchange for fire, police and public works services and the city to support the tribes fee-to-trust application submitted to the federal government. The court found the agreement was not a project because the city had no authority over the fee-to-trust application, casino construction, or public works programs and the potential construction of fire facilities was too speculative to constitute a project.  See City Gambles and Wins on Agreement with Tribe Over Casino: CEQA Does Not Apply.

San Diego Navy Broadway Complex Coalition v. Manchester Pacific Gateway LLC (2010) 185 Cal.App.4th 924: The agency’s discretionary authority, if it had any at all, was limited only to aesthetics. Because the agency would have no power related to climate change impacts, there was no discretionary action that triggered CEQA. See Limited Discretion Related to Aesthetics did not Trigger Need for Supplemental EIR on Climate Change Impacts

Juana Briones House v. City of Palo Alto (2010) 190 Cal.App.4th 286: A provision of the Palo Alto municipal code requiring a 60-day delay prior to the issuance of a demolition permit did not render the act discretionary. The city properly treated the demolition permit as ministerial and exempt from environmental review under CEQA. The court found that under the municipal code the issuance of the demolition permit was ministerial because 1) the decision involved only the use of fixed standards or objective measurements; and 2) the city did not have the authority to impose conditions on approval of the permit that would render it discretionary. See Authority to Delay a Project Does Not Make the Project Discretionary.

City of Santee v. County of San Diego (2010) 186 Cal.App.4th 55An agreement between the county of San Diego and the Department of Corrections under which the county identified potential locations for a state prison reentry facility in exchange for preference in the awards of state financing of county jail facilities did not constitute a commitment to a definite course of action. As such, the holding of Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, did not require the county to conduct environmental review prior to entering into the agreement. See Appellate Court Post - Save Tara: Preliminary Exploration Does Not Constitute Project Commitment for CEQA.

Tomlinson v. County of Alameda, (2010) 188 Cal.App.4th 1406: The CEQA Guidelines section 15332 infill exemption only applies to projects within the limits of a city.

LEAD AGENCY

Nelson v. County of Kern (2010) 190 Cal.App.4th 252: The county of Kern was the lead agency under Surface Mining and Reclamation Act and CEQA and thus was required to conduct environmental review of the entire proposed mining and reclamation plan, not just the reclamation plan, as advocated by the county. See County Dug Itself a Hole by Limiting its Scope of Review.

NEGATIVE DECLARATIONS

Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310: A Negative Declaration containing evidence that a proposed project would contain between 201 and 420 pounds per day of additional NOx emissions, in light of the district’s NOx threshold of 55 pounds per day constituted evidence that the project would have substantial air quality impacts and thus an EIR should have been prepared. See Baseline Depends Upon Whether You Have a New or Modified Project or Existing Project Without Significant Expansion of Use.

Save the Plastic Bag Coalition v. City of Manhattan Beach (2010) 181 Cal.App.4th 521: Substantial evidence of a fair argument existed that an ordinance prohibiting certain retailers and establishments from distributing plastic bags may have a significant environmental impact and thus an EIR had to be prepared. Petition for Review has been granted.  See Paper or Plastic? Public Right Exception Allows Plastic Bag Producers to Challenge Negative Declaration for Environmental Ordinance.

EIRS

PROJECT DESCRIPTION

Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70: The EIR prepared for Chevron’s Energy and Hydrogen Renewal Project failed CEQA’s informational purpose because the project description was inadequate with respect to whether the project would enable the refinery to process heavier crude, and the EIR failed to properly establish and analyze baseline conditions. See 898,000 Metric Tons of Unmitigated CO2: Prime Conditions for the First Appellate Court Decision on CEQA and Climate Change.

California Oak Foundation v. The Regents of the University of California (2010) 188 Cal.App.4th 227: The EIR for projects located within the southeast quadrant of the U.C. Berkeley campus phased master plan, including the Athlete Center in the first phase, contained an adequate project description. The court found the minimal requirements for the project description and project objectives were met, and that additional detail could be inferred from the various topical discussions. With respect to the less precisely stated later phases, the EIR included a commitment to do later EIRs should the project description later prove to be inadequate. See Go Bears! Court Approves Cal Bears Athletic Facility Expansion.

BASELINE

Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310: CEQA air quality impacts are to be measured against existing physical conditions not existing permitted level of operations for emitter. See Baseline Depends Upon Whether You Have a New or Modified Project or Existing Project Without Significant Expansion of Use.

Cherry Valley Pass Acres and Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316: In defining the baseline for a water impact analysis, a lead agency could rely upon an adjudicated groundwater right. See Alternative Baseline Considered a Good Egg.

Sunnyvale West Neighborhood Association v. City of Sunnyvale (Dec. 16, 2010, No. H035135) __ Cal.App.4th __: The City of Sunnyvale prepared an EIR for a proposed road extension using 2020 conditions rather than present day conditions, as a baseline. The court held that while deviations for the normal baseline standard of existing conditions is possible, the record in this case did not contain substantial evidence to support a decision to deviate. The city’s failure to analyze the project’s impacts based on existing conditions constituted a prejudicial abuse of discretion. See Project to Remedy Traffic Congestion Not Exempt from Analysis of Current Baseline Conditions.

ALTERNATIVES

Jones v. The Regents of the University of California (2010) 183 Cal.App.4th 818: The court upheld the EIR for a Long Range Development Plan for Lawrence Berkeley National Library against the challenge that its range of alternatives was insufficient. The court found the range of alternatives was adequate, and an off-site alternative was not necessary because it would not meet the project’s primary objective of creating a campus-like setting with existing facilities. See Regents' CEQA Document Receives a Passing Grade; Opponent Marked Down for Inadequate Participation.

Watsonville Pilots Association v. City of Watsonville, et al. (2010) 183 Cal.App.4th 1059: A city acting as its own Airport Land Use Commission is subject to all of the substantive requirements under the State Aeronautics Act. The city should have considered a low growth alternative as part of its general plan update as it would meet most general plan update objectives. See City's New General Plan is not Cleared for Take-off, Returns to Base and is Grounded.

Center for Biological Diversity v. County of San Bernardino (2010) 184 Cal.App.4th 1342: The County of San Bernardino presented insufficient evidence of economic and technological infeasibility to support its decision to reject a project alternative that could feasibly mitigate the air quality impacts of an open air composting facility by approximately 80 percent. See Put a Lid on It: EIR for Open Air Human Waste Composting Facility Held Invalid.

MITIGATION MEASURES

Katzeff v. California Department of Forestry and Fire Protection (2010) 181 Cal.App.4th 601: Once imposed, an agency must state its basis, supported by substantial evidence, for cancelling or nullifying a mitigation measure, even if the proposed act is many years after the mitigation measure is imposed. See The Long Life of CEQA Mitigation Measures.

Cherry Valley Pass Acres and Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316: A lead agency’s rejection of agricultural land mitigation strategies was supported by substantial evidence, and sufficient evidence supported the statement of overriding considerations. See Alternative Baseline Considered a Good Egg.

SUPPLEMENTAL/SUBSEQUENT EIR

Melom v. City of Madera (2010) 183 Cal.App.4th 41: A CEQA document is not mandated to address urban decay merely because the project contains a retail supercenter. The holding in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, does not require this analysis for every CEQA document. Like most CEQA issues, whether an impact analysis is required is determined based upon the specific facts of each situation. See Subsequent EIRs: It is Still a Matter of the Evidence in the Record.

SB 1456 (Chapter 496) – Tiering of Overriding Statement of Considerations: A later project that is tiering off of an environmental impact report for which the lead agency also made a finding of overriding considerations may incorporate the finding of overriding considerations, if specified conditions are met.

 WATER SUPPLY ANALYSIS

Center for Biological Diversity v. County of San Bernardino (2010) 184 Cal.App.4th 1342:  SB 610 analysis should have been prepared because the project, an open-air composting facility, falls within the definition of processing plants. See Put a Lid on It: EIR for Open Air Human Waste Composting Facility Held Invalid.

Watsonville Pilots Association v. City of Watsonville, et al. (2010) 183 Cal.App.4th 1059:  A water analysis as part of a general plan update does not have to identify a firm source of water supply, rather it must analyze the likely impacts. See City's New General Plan is not Cleared for Take-off, Returns to Base and is Grounded.

Sonoma County Water Coalition v. Sonoma County Water Agency (2010) 189 Cal.App.4th 33: In preparing an urban water management plan (“UWMP”), the agency may rely upon reasonable assumptions, supported by substantial evidence. A reviewing court should apply deference to the agency’s decision. The issue is not whether or not there are more reasonable assumptions which should have been incorporated into the UWMP, but whether or not substantial evidence supported the agency’s choice. See Court Upholds Agency's Reasonable Assumptions in its Urban Water Management Plan.

EIR EQUIVALENT

San Joaquin River Exchange Contractors v. State Water Resources Control Board (2010) 183 Cal.App.4th 1110: Final staff report prepared by Central Valley Regional Water Quality Control Board Staff for basin plan amendments qualifies for an EIR-equivalent document because basin planning is a certified regulatory program under CEQA. See Basin Plan Amendments Addressing Impairments for Salt, Boron and Dissolved Oxygen are Valid.

FEES

Friends of Glendora v. City of Glendora (2010) 182 Cal.App.4th 573: Local agencies may impose a fee for the filing of an appeal of a CEQA decision so long as that fee is reasonable. See Yes, Local Appeal Fees Apply to CEQA Appeals.

AB 2565 (Chapter 210) – Fees for Copies of Environmental Documents: This bill permits agencies to collect a fee from members of the public for copies of environmental documents. The fee cannot exceed the reasonable copying costs. The bill also allows the agency to provide the documents in an electronic format.

CEQA LITIGATION

STATUTE OF LIMITATIONS

Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32: Filing a notice of determination triggers a 30-day statute of limitations for all CEQA challenges to the decision announced in the notice regardless of the nature of the CEQA violation. See NODs Provide Bullet-Proof Protection 30 Days After Posting.

Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481: Flaws in the decision-making process underlying a facially valid and properly filed Notice of Exemption do not prevent it from triggering the 35-day period to file a lawsuit challenging the agency’s approval of a CEQA-exempt project.  See No Fooling: A Facially Valid NOE Triggers a 35-Day Statute of Limitations.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Jones v. The Regents of the University of California (2010) 183 Cal.App.4th 818: Project opponents’ general identification of water quality impacts was insufficient to preserve for trial the more specific complaint that the project failed to attain water quality benchmarks. Project opponents also failed to exhaust their administrative remedies on the GHG issue because they had the opportunity to bring the issue to the lead agency’s attention prior to certification of the EIR, but did not do so. See Regents' CEQA Document Receives a Passing Grade; Opponent Marked Down for Inadequate Participation.

Center for Biological Diversity v. County of San Bernardino (2010) 184 Cal.App.4th 1342: Petitioner exhausted its administrative remedies to challenge the water supply assessment even though it did not specifically mention the 610 analysis. See Put a Lid on It: EIR for Open Air Human Waste Composting Facility Held Invalid.

Tomlinson v. County of Alameda, (2010) 188 Cal.App.4th 1406: Public Resources Codesection 21177 requiring exhaustion of administrative remedies does not apply to exemption determinations.

COSTS AND ATTORNEY’s FEES

Ebbetts Pass Forest Watch v. California Department of Forestry and Fire Protection (2010) 187 Cal.App.4th 376: Although the case resulted in an opinion from the Supreme Court clarifying the California Department of Forestry and Fire Protections’ duties in relation to timber harvest plans, such a result was insufficient to qualify the unsuccessful petitioner as the prevailing party for the purposes of the private attorney general doctrine under Code of Civil Procedure section 1021.5. See Are 1021.5 Attorneys Fees All or Nothing?

California Oak Foundation v. The Regents of the University of California (2010) 188 Cal.App.4th 227: The trial court approved the costs associated with preparing the record, but reduced the charge for the paralegal, and adjusted the recovery to reflect the Regents’ degree of success on the merits (85%). Generally, the appellate court will not disturb the trial court’s determination absent a clear abuse of discretion, and the appellate court found no basis for modifying or reversing the award. See Regents' CEQA Document Receives a Passing Grade; Opponent Marked Down for Inadequate Participation.

Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2010) 190 Cal.App.4th 217:  The court enunciated three principles: (1) under the element of “necessity of private enforcement,” exhaustion of administrative remedies does not satisfy any prelitigation settlement requirement; (2) attempts at prelitigation settlement must be considered when evaluating whether private enforcement was necessary, but it is not dispositive; and (3) in evaluating whether a petitioner had limited success warranting a reduction in attorney’s fees, the fact that all of the causes of action are based on the same administrative record does not mean that all of the claims are necessarily related for purposes of Section 1021.5.

Tags: CEQA
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Cityscape Highlights Brownfields Research

Cityscape Highlights Brownfields Research
The research symposium in PD&R's newest issue of Cityscape: A Journal of Policy Development and Research (Volume 12, Number 3) examines perspectives and approaches to brownfield issues. The collected studies focus on whether state voluntary cleanup programs support brownfield redevelopment (Dennis Guignet and Anna Alberini), the effects of brownfields on industrial land sales and prices (Marie Howland), the conflict between economic development and environmental improvement (Peter B. Meyer), the issues associated with HUD brownfield redevelopment policy in 2003 and site contamination (Eugene Goldfarb), and barriers to brownfield redevelopment that include uncertainty regarding cost and environmental liability (David Slutzky and A.J. Frey). The symposium’s guest editor, Edwin Stromberg, contextualizes these studies in an historical account of brownfields as a federal policy issue.
This issue of Cityscape also features refereed research by Kirk McClure, "The Prospects for Guiding Housing Choice Voucher Households to High-Opportunity Neighborhoods" and by Brent D. Mast, “Measuring Neighborhood Quality With Survey Data: A Bayesian Approach.” The issue concludes with Alastair McFarlane’s “The Impacts of More Rigorous FHA Underwriting Guidelines.”
To learn more, see press release.
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January 04, 2011

Abbott & Kindermann Land Use Law Blog

Abbott & Kindermann Land Use Law Blog

REMINDER! Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

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Abbott & Kindermann, LLP | 2100 21st Street, Sacramento, CA 95818
916-456-9595, 916-456-9599 fax
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NH&RA is here to help

NH&RA is here to help
Get the insight and analysis you need for 2011.
Join us in Florida this February for the NH&RA Annual Meeting
Key Highlights Include:
  • National Economic & Housing Forecast
  • Key Insight into Tax and GSE Reform
  • New Bond Structures
  • State of the Equity Market
  • Securing Permanent and Gap Debt Financing
  • ...and Much More
NH&RA Annual Meeting
Feb. 23-26, 2011
The Hyatt Regency Coconut Point
Bonita Springs, Fla.
Questions? Contact Thom Amdur at 202-939-1753 or tamdur@housingonline.com.
Conference Agenda

Wednesday, February 23: New Markets Tax Credit Symposium

New Markets Tax Credit Steering Committee Meeting
8:00 am
Please note this meeting is open to NMTC Steering Committee Members only. If you are interested in learning more about this committee please contact Thom Amdur at tamdur@housingonline.com or 202-939-1753 for details.
Pre-Conference Symposium On New Markets Tax Credits
9:15 am to 4:00 pm
Click here for complete agenda.
Legislative Leadership Committee Meeting
4:00 pm
Please note this meeting is open to Legislative Leadership Committee Members only. If you are interested in learning more about this committee please contact Thom Amdur at tamdur@housingonline.com or 202-939-1753 for details.
Board of Directors Dinner
6:30 pm
Please note this dinner is open to NH&RA Directors and Spouses only. Location TBD.
Thursday, February 24: NH&RA Annual Meeting
Historic Preservation Development Council Breakfast
8:30 am
This optional breakfast is open to all attendees. There is a $50.00 catering fee to attend. Contact Thom Amdur at tamdur@housingonline.com or 202-939-1753 for details.
NH&RA Executive Committee Meeting
10:00 am
Please note this meeting is for NH&RA Executive Committee members only.
NH&RA Board of Directors Meeting
11:00 am
Please note this meeting is for NH&RA Directors only.
Welcome & Introductions
1:00 pm
The Big Picture: National Econonic & Housing Forecast
1:30 pm
Speakers: David Crowe, Chief Economist, National Association of Homebuilders, Washington, DC
Sharon Bell, National Association of Homebuilders, Washington, DC

Shaping The Future Of Rental Housing Policy In 2011
2:15 pm
Speakers: Michael Berman, Chairman, Mortgage Bankers Association and CEO of CW Capital, Boston, MA
INVITED: Steven Wecshler, President & CEO, National Association of Real Estate Investment Trusts, Washington, DC
INVITED: Jeff Deboer, President & CEO, Real Estate Roundtable, Washington, DC
T.B.A.

New Bond Financing Structures For 2011
3:15 pm
Speakers: John Rucker, Merchant Capital, Montgomery, AL
John Peck, Peck, Shaffer & Williams LLP, Cinncinatti, OH
T.B.A.

Securing Debt For Affordable Housing Transactions
4:00 pm
Speakers: Nick Gesue, Lancaster Pollard, Columbus, OH
Bob Simpson, Fannie Mae, Sioux Falls, SD
Kim Griffith, Freddie Mac, McLean, VA
Tom Capp, Gorman & Company, Madison, WI

Securing Tax Credit Equity In CRA Markets
4:45 pm
Speakers: Victor Sostar, First Sterling, Manhasset, NY
David Leopold, Bank of America Merrill Lynch, Washington, DC
Pat Nash, JP Morgan Chase, Chicago, IL
Vihar Sheth, US Bank, St. Louis, MO
Ronne Thielen, Centerline Capital Corp, Irvine, CA
Bob Greer, The Michaels Development Company, Marlton, NJ

Securing Tax Credit Equity In Non-CRA Markets
5:30 pm
Speakers: Tony Bertoldi, City Real Estate Advisors, Boston, MA
Jay Segel, Stratford Capital, Boston, MA
Darrick Metz, WNC & Associates, St. Paul, MN
Linda Hill, Aegon Realty Advisors, San Francisco, CA
Bernie Husser,The Richman Group Affordable Housing Corporation, Boston, MA
Ben Applegate, Applegate & Thorne-Thomsen, Chicago, IL

Opening Reception & Dinner
6:30 pm

Friday, February 25

Council for Energy Friendly Affordable Housing Breakfast
8:00 am
This optional breakfast is open to all attendees. There is an additional $50 registration fee to attend to cover catering costs. Space is limited. Advanced RSVP required. If you are interested in learning more about this committee please contact Thom Amdur at tamdur@housingonline.com or 202-939-1753 for details.
Planning for 2011: Tax Credit Allocators Roundtable
9:15 am
Speakers: Dan Rosen, Klein Hornig, LLP, Boston, MA
Steve Auger, Florida Housing Finance Corporation
Ted Fellman, Tennessee Housing Development Agency
Milton Bailey, Louisiana Housing Finance Agency
T.B.A.

NH&RA's Developers Council Presents: Leading The Market: A Conversation With Innovators
10:30 am
Speakers: Debra Koehler, Sage Partners, Tampa, Florida
T.B.A.
Doing More With Less in 2011: Lesson's From New York
11:30 am
Speakers: Mark Jahr, New York City Housing Development Corp., New York, NY
Jacquelyn E. Harris, Deputy Executive Director, New York City Department of Planning
Adolfo Carrión, New York & New Jersey Regional Director, HUD, New York, NY
T.B.A.

Developers Council Luncheon
12:30 pm
NH&RA's Developers Council is a peer-to-peer network of developers that discusses topics of mutual interest, focusing on development, finance, construction, and business management issues. This Developers Only session provides a unique forum to share ideas and strategies with your fellow developers. Advanced RSVP Required. The NH&RA Developers Council will continue its work session over lunch. This optional luncheon is restricted to Developers only. There is an additional $70 registration fee to attend. Space is limited. Advanced RSVP required. If you are interested in learning more about this committee please contact Thom Amdur at tamdur@housingonline.com or 202-939-1753 for details.
Saturday, February 26
Making The Best Of A Bad Situation: Acquiring and Redeveloping REO and Distressed Properties
9:00 am
Speakers: Stephen Roger, Centerline Capital Corp., New York, NY
John Gahan, Murtha Cullina LLP, Boston, MA
Shel Schreiberg, Pepper Hamilton, LLP, Washington, DC
Marianne Votta, Bank of America Merrill Lynch, Boston, MA
Doug Koch, McGladrey, Boston, MA
Steve Erie, Vesta Corp
Bradley Bullock, Guardian Real Estate Services, LLC, Portland, OR

Integrating LIHTC and Energy Credits
10:30 am
Speakers: John Mackey, Reznick Group, Boston, MA
Forrest Milder, Nixon Peabody, Boston, MA
T.B.A.

Gap Financing In 2011
11:30 am
Speakers: Pat Sheridan, Volunteers of America, Alexandria, VA
Hannah Cassidy, Reno & Cavanaugh, Nashville, TN
Loretta Owens, The Housing Fund, Nashville, TN

Winter Golf Tournament
1:00 pm
Closing Reception
6:00 pm
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January 03, 2011

Southern California Edison has partnered with the Frontier Project in Rancho Cucamonga to bring you quality Education and Training classes

Southern California Edison has partnered with the Frontier Project in Rancho Cucamonga to bring you quality Education and Training classes hosted by SCE's Customer Technology Application Center (CTAC).
The Frontier Project, a 14,000 square foot sustainable demonstration building, serves to display the latest methods and technologies in water, energy and site conservation. Take advantage of the SCE 'Energy Center On-Location' workshop, and the optional guided tour of this new, green showcase facility.  
Seating is still available, for the January 14, 2011 workshop: Save Energy, Save Money: An Introduction to Energy Efficiency and Rebates.
See the flyer below for details about date, time, and registration for this workshop. To learn more about the Frontier Project, visit http://www.frontierproject.com

 
CTAC is offering a free seminar.  Reservations are required to attend a, Save Energy, Save Money: An Introduction to Energy Efficiency and Rebates, at the Frontier Project in Rancho Cucamonga on Friday, January 14, 2011.


Let Us Help You Save Energy, Save Money and the Environment!


Whether you are a business or residential customer you can profit from learning
about easy and straightforward ways to reduce energy costs and take advantage of SCE rebates. This workshop gives you a starting point for energy efficiency strategies and incentives, and will show you how to save money on lighting, air conditioning, office equipment, and more. You will also learn helpful hints for low-or no-cost maintenance measures and retrofit opportunities.
 

 

Event Details
Event Name: Save Energy, Save Money: An Introduction to Energy Efficiency and Rebates
Event Number: 27228
Event Date: Friday, January 14, 2011
Event Time: 8:30 a.m. - 12:30 p.m.
Registration & Continental Breakfast: 8:00 a.m.
Event Location:  Frontier Project

                         10435 Ashford Street
                         Rancho Cucamonga, CA 91730
 

Reservations can be made by calling (626) 812-7537 or (800) 336- 2822- ext 42537 or by registering online at www.sce.com/workshops.
FOR OVER 100 YEARS...LIFE. POWERED BY EDISON.
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Institute for Justice article about Mount Holly Gardens redevelopment project http://fb.me/RKzMnfsI
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Article can be found at http://www.crainsnewyork.com/article/20110102/FREE/301029996


Gold standard for green buildings under fire

LEED wilts as new gauges better measure energy use and costs.

By Theresa Agovino

Published: January 2, 2011 - 5:59 am

This year, for the first time, owners of 25,000 commercial properties in New York must report their buildings' energy use to the city. The data will be compiled into publicly posted report cards that officials hope will shame energy hogs into making the renovations needed to improve their scores, much the same way that issuing letter grades to restaurants is making owners shape up.

The city's effort comes as pressure mounts to find alternatives to the pioneering 10-year-old LEED ranking system, which reflects a building's environmental performance. But LEED doesn't measure energy use and costs, something a growing number of engineers, architects and landlords insist must be done. Their concerns and a general blossoming of environmental awareness have spawned a host of rating systems that could test LEED's dominance.

Developers including the Durst Organization and Silverstein Properties have built to meet the standard. But as LEED's prestige has grown, so have doubts about whether it accurately measures a building's sustainability. Those misgivings hit the courts in October, when a mechanical systems designer filed a lawsuit challenging the verification system, in part because it doesn't gauge energy use.

“LEED has made people realize the importance of looking at how buildings are affecting the environment,” said Constantine Kontokosta, director of the Center for the Sustainable Built Environment at the NYU Schack Institute of Real Estate.

But critics argue that the rating is hollow without an energy measurement. They insist that such data prove that a building's ecological bells and whistles are succeeding in cutting consumption and costs—figures that are vital to owners and tenants, even those who aren't die-hard environmentalists.

“More people want to see quantitative data that show they are saving money,” said Anthony Malkin, president of Malkin Holdings, an owner of the Empire State Building and its asset manager.

Mr. Malkin has almost completed a $50 million renovation—including such green features as better-insulated windows and an upgraded air-conditioning system—that he said will lower energy consumption by 38%. He believes the Empire State can earn a LEED rating but said his motivation was energy savings.

Proliferating standards

Later this year, the American Society of Heating, Refrigeration and Air-Conditioning Engineers will introduce an energy-usage index for buildings. Last year, the Greenprint Foundation released its first carbon-footprint index tracking the performance of 600 buildings. The nonprofit was founded in 2009 by a group of property owners and investors who wanted to connect quantifiable environmental factors and property values.

“You need the two greens [the environmental and financial] to line up,” said Charles Leitner, Greenprint's CEO.

The major problem with such endeavors is that information collectors can't make their findings public without the property owner's consent. That is the catch-22 that the U.S. Green Building Council, which developed the LEED system, faces as it tries to improve the usefulness of its ratings. USGBC began gathering energy-usage data from its ranked buildings in 2009 but is not allowed to release them.

Only an option

“We can't make people [allow us to release data],” said Scot Horst, the council's senior vice president of LEED. But providing building owners with such input can help them improve their performance, he added.

To determine rankings, the LEED system uses computer models that calculate factors ranging from air quality to construction materials. The USGBC has rated nearly 7,400 buildings in 125 countries; about 36,500 properties await certification.

Henry Gifford's suit against the USGBC claims that it pushes owners to add costly components that don't necessarily lower energy costs or benefit the environment. Mr. Horst wouldn't comment.

“LEED is voluntary, and it takes a very big view of the environment,” said Robert LiMandri, commissioner of the city's buildings department.

The beauty of New York's reporting law is that the city can disclose energy information—whether or not property owners want it made public. The law is designed so that owners can examine their usage and make changes to help their bottom line as well as the environment.

In requesting LEED designations, landlords are often targeting tenants that want to enhance their image by leasing in a green building. For them, lower energy costs may be only part of the allure.

“LEED is a recognizable standard that tenants are willing to pay for,” said developer Jonathan Durst. His firm and Bank of America built One Bryant Park, which has the highest LEED rating available.


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Federal Agencies Join Efforts to Reduce Radon Exposure

202-564-4355

FOR IMMEDIATE RELEASE

January 3, 2011


Federal Agencies Join Efforts to Reduce Radon Exposure

Radon exposure is the leading cause of non-smoking lung cancer

WASHINGTON
– January is National Radon Action Month and the U.S Environmental Protection Agency (EPA) and eight other federal agencies are announcing a new effort to strengthen the fight against radon exposure. Radon exposure is the leading cause of non-smoking lung cancer. Senior leaders from the federal agencies are pledging to work together to create a national risk reduction plan for radon that will help save lives and create safer, healthier homes for all Americans.

“Radon is a serious public health threat that leads to more than 21,000 deaths each year,” said Gina McCarthy, assistant administrator for EPA’s Office of Air and Radiation. “This new federal partnership will help Americans reduce their risk of radon exposure.” 

Radon is a naturally-occurring, invisible and odorless radioactive gas. One in 15 American homes contains high levels of radon. Millions of Americans are unknowingly exposed to this dangerous gas. By taking simple steps to test your home for radon and fix if necessary, this health hazard can be avoided.

If your home hasn't been tested for radon in the past two years, EPA and the Surgeon General urge you to take action. Contact your state radon office for information on locating qualified test kits or qualified radon testers.

The federal commitment made by EPA, the General Services Administration, and the departments of Agriculture, Defense, Energy, Health and Human Services, Housing and Urban Development, Interior, and Veterans Affairs will focus efforts on radon reduction and mitigation in homes, especially those of low-income families, many of whom do not have the resources to make the simple fixes necessary to protect their homes and loved ones.

At the end of January, the federal consortium will meet with key leaders in the public health, environmental and private sectors to begin shaping a national action plan that includes both immediate and long-term steps to reduce radon exposure.

More information on the joint federal initiative to reduce radon exposure:
http://www.epa.gov/radon/federal_summit.html

More information on radon and testing your home:
http://www.epa.gov/radon/index.html

To find your state radon office:
http://www.epa.gov/radon/whereyoulive.html

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Note: If a link above doesn't work, please copy and paste the URL into a browser.
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January 02, 2011

Commercial and Forensic Real Estate Appraisers

A Public Service of The Harris Company, Commercial and Forensic Real Estate Appraisers & Consultants, LA, Los Angeles. For appraisal or other consulting services we can be reached at 310.337.1973, harris_curtis@sbcglobal.net, http://www.harriscompanyrec.com

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Join Marcus & Millichap for a comprehensive update

Join Marcus & Millichap for a comprehensive update and outlook of the retail property sector.

60-Minute Webcast
Tuesday, February 1, 2011
10:30 a.m. Pacific / 1:30 p.m. Eastern
!
This live webcast will include speaker presentations followed by an interactive Q&A session.
The webcast will address:

How much longer the economic slowdown will last

The outlook for financing and the capital markets

If the rent and occupancy recovery will continue in 2011!

The outlook for pricing, cap rates and investment opportunities
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January 01, 2011

Ohio AG to Judges: Stay Vigilant on Foreclosure Procedure Flaws

 

In a letter sent to Ohio judges, the state's Attorney General Richard Cordray has requested that its courts continue to pay close attention to foreclosure cases that may have affidavits signed by so-called robo-signers and highlighted several Common Pleas courts that have taken action to address the situation.

 

Free with Registration

 

Two of B of A's Servicer Ratings Slip Slightly

 

In the wake of an internal consolidation, Fitch has affirmed Bank of America NA's primary residential mortgage servicer rating for prime-credit loans, but downgraded slightly its primary servicer ratings for alternative-A credit loans and home equity lines of credit.

 

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

/tbody>
60-Minute Webcast
Thursday, January 6, 2011
10:30 a.m. Pacific / 1:30 p.m. Eastern
This live webcast will include speaker presentations followed by an interactive Q&A session.
The webcast will address:
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Option Contract Template

Option Contract Template

Contributor: Nicole Flannagan Virginia One Law, PLLC
RSS

SUMMARY: This is an Option Contract for land and or real estate.  http://www.jdsupra.com/post/documentViewer.aspx?fid=6273bede-7285-46a3-a124-f3c88a86eaaf&utm_source=twitterfeed&utm_medium=twitter

 

This template is ONLY an example intended to educate the general public about real estate law and small business issues. It is not intended to be legal advice. Every property transaction is different and a legal professional should be consulted to complete such Contract so that important legal rights are identified and protected.

 

An option contract limits the property owners' ability to transfer title to the property in some way for valuable consideration. This contract is frequently used by real estate professionals when control of property is necessary to secure and or inquire as to additional financing options, zoning, assemblage of property, and etc.

 

 

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