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November 30, 2011

How Do You Calculate Absorption Rate?

questions

What does it mean when people talk about the absorption rate when it comes to real estate? Realtor® Leslie Monaco of Greenwood Village, Colorado breaks down what the term means and how it is calculated:

ABSORPTION RATE – Is the rate at which homes are selling in a specific area.

There are 3 pieces of information you will need to find absorption rate:

  1. The specific time frame
  2. The number of sold homes during that time frame
  3. The number of active homes right now

Here is how I calculated the absorption rate for the entire Metro Denver area based on October 2011 Residential/Condo Town Homes Market Data (provided by Metrolist):

THE DATA:

  • 1. Time Frame = 304 days (total days from January 1, 2011 to October 31, 2011)
  • 2. Number of Sold Homes = 33,163 (from January 1, 2011 to October 31, 2011)
  • 3. Number of Active Homes = 14,156 (at the end of October 31, 2011)

CALCULATIONS:

  • Rate of Home Sales = .00917 – 1 home is sold every .00917 days. This number is found by taking 304/33,163 (Time Frame/Number of Sold Homes)
  • Absorption Rate = 4.32 Months. Found by taking 14,156 x .00917 (Number of Active Homes x Rate of Home Sales)

What does this tell us?

If market conditions do not change and if no new listings come on the market it will take 4.32 months for the current inventory to sell at the current pace of the market. A balanced market’s absorption rate is typically between 5 – 7 months.

Click her to read more blog posts by Leslie Monaco.

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Related posts:

  1. Florida Existing Home And Condo Sales Still Increasing
  2. Builders Cut Prices, New Home Sales Rise
  3. Tallahassee Housing Market Best in Florida
  4. Home Closings Rally in Houston
  5. When Should We Put Our House for Sale?


Read more: How Do You Calculate Absorption Rate? | REALTOR.com® Blogs
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TODAY'S NEWS

November 30, 2011

TODAY'S NEWS

 

SPECIAL UPDATE:

California Housing Finance Agency’s “Keep Your Home California” Expands Eligibility and Benefits

Keep Your Home California, a federally-funded program administered by the California Housing Finance Agency, announced today that it is removing the “cash out” restriction from all four programs and will allow homeowners who own additional properties to qualify for much-needed assistance. Additionally, the length of time unemployed homeowners may receive mortgage assistance has been extended and the amount of money available has been increased.

 

AFFORDABLE HOUSING

Grand Opening of KTGY-designed Green Affordable Housing

On Monday, November 28, 2011, San Jose celebrated the grand opening of Brookwood Terrace Family Apartments, a development by ROEM Corporation and Eden Housing, Inc., in collaboration with the City of San Jose. The grand opening celebration was held at 1346 East San Antonio Street in San Jose, Calif. “As a long-time supporter of affordable housing in San Jose, I am proud of this new, attractive, sustainable community for low-income families in my district,” noted Assembly Member Nora Campos. “Developments like Brookwood Terrace not only provide a safe, decent home for working families, they provide important economic activity and create green jobs.”

 

SIERRA SUN: Kings Beach affordable housing project to be finished by late fall 2012

By Jason Shueh // Construction on the major affordable housing project in Kings Beach likely won't be finished until fall 2012, officials said this week, rather than an initial deadline of next spring. Meea Kang, of Domus Development, lead developer for the 77-unit, $33 million project — part of the Kings Beach Affordable Housing Now campaign launched in 2010 — said last year's 600-plus inches of lake-level snowfall delayed construction to the four sites located on Fox, Trout, Deer and Chipmunk streets.

 

SAN FRANCISCO BUSINESS JOURNAL: Wells Fargo donates $975,000 to Habitat for Humanity in Bay Area

By Mark Calvey // Habitat for Humanity Greater San Francisco and Habitat for Humanity East Bay said Tuesday that they received a $975,000 grant from Wells Fargo Wells Fargo, the single largest corporate gift in the two nonprofits’ history.

 

HOUSING DEVELOPMENT

NAPA VALLEY REGISTER: Napa County housing starts jump in October

California housing production increased for the third consecutive month in October as builders pulled permits for 17 percent more housing units when compared to October 2010, the California Building Industry Association (CBIA) announced. New housing unit permits for single-family homes in Napa County jumped from 4 to 22 in October 2011, compared to September 2011.

 

LAND USE / PLANNING / REGULATION

MARIN INDEPENDENT JOURNAL: Affordable housing need is obvious (opinion)

By Ron Albert // The Environmental Housing Collaborative recognizes the vital importance of affordable housing to our efforts to reduce greenhouse gas emissions. Marin needs more housing options for people with a range of incomes, including some of those who now commute long distances each day to work in our stores, restaurants, hospitals, schools and offices. Land-use policies are key to environmental protection. Affordable housing is also an asset to our communities.

 

HOUSING MARKETS / REAL ESTATE

TIME: Home affordability near highest level in 20 years

By Alison Rogers // It’s easy to drown in real estate statistics, but looking at “affordability” — the homes that someone on a median income could buy — is a fascinating gauge of housing markets. (Plus, it’s a statistic that can be fine-tuned to the local level). The recent release of the Housing Opportunity Index from the National Association of Home Builders/Wells Fargo shows that we’re still in a uniquely affordable phase of the market cycle. If you’re looking for good news to come from the housing slump, this is it.

 

MORTGAGE & FORECLOSURE ISSUES

FORBES: Renting out government-owned homes is the right move - but probably wouldn't make any difference to you

By Jed Kolko // The Federal Housing Finance Agency (FHFA), the regulator for Fannie Mae and Freddie Mac, is considering proposals for selling government-owned homes to investors, who would then turnaround and sell or rent them out. (The official request for policy ideas is here.) It’s hoped that this move would help government agencies earn some much-needed revenue, boost neighborhood home values by getting buyers or renters into vacant homes and ease tight rental markets by expanding the supply of rental housing.

 

Homeowners Take Wells Fargo to Court Over Denied Modification

Lawsuit Filed by Orange County-Based Real Estate Litigation Firm Seeks Damages Against Wells Fargo and Others to Reinstate Loan Modification Rescinded Following Take-Over of Countrywide Loan.  Avid Law Center continued its fight for distressed homeowners in a recent lawsuit against Wells Fargo, Bank of America, and others involved in the alleged unlawful denial of the homeowner's mortgage restructuring. The Orange County, California-based real estate and litigation law firm raised a number of potential legal violations, including improper securitization of the homeowner's loan, the refusal to honor an originally granted loan modification, and loan servicer interference in contractual relations.

 

HOMELESSNESS

SANTA CLARA WEEKLY: Homeless for the Holidays in the Santa Clara Valley

By Diane Andrews // On any given night in Santa Clara County, 7,045 people are homeless according to a 2011 Santa Clara County Homeless Census and Survey. Of this number, 2,520 are considered chronically homeless, an increase of eleven percent since the 2009 census.

 

ECONOMY / EMPLOYMENT

FRESNO BEE: Fresno County has state's highest poverty rate

Soaring unemployment has pushed California's poverty rate up for three straight years -- but nowhere higher than in Fresno County, according to new Census data. The nearly 250,000 county residents living in poverty in 2010 gives Fresno County claim to the state's highest poverty rate, at 26.8%. Almost 70,000 more people lived in poverty last year than in 2007 when the recession began. Statewide, 15.8% were impoverished, the census data show, up 3.4 percentage points from three years ago.

 

TURLOCK JOURNAL: Valley economy not so bad, states business report

The San Joaquin Valley economy is gradually recovering in 2011, with indicators pointing to a stronger-yet 2012, according to the first-ever Business Forecast Report from California State University, Stanislaus. “The good news is opposed to the general perception that the Valley counties' economy is really terrible or bad, that's not the case,” said CSU Stanislaus President Hamid Shirvani. “The data says that they're doing reasonably okay.”

 

NATIONAL HOUSING NEWS

SAN RAMON EXPRESS: Forum calls for housing to be a 'national priority'

By Jeb Bing // The struggling housing market needs to be a priority on the nation's public policy agenda, because housing and homeownership issues affect all Americans.
That was the message from speakers at the Legislative and Political Forum last week at the 2011 Realtors Conference & Expo in Anaheim.

 

ENVIRONMENT / CLIMATE CHANGE

HEALTHY CAL: Nonprofit fights for healthy housing in low income communities

By Jenn Walker // Rachel Iskow walked into an apartment complex and found herself surrounded by exposed electric wire, a walkway lined with dry rot, holes in the walls and a collapsed bathroom floor. In the eyes of Iskow, executive director of nonprofit Sacramento|Yolo Mutual Housing, it looked like third world conditions. Soon after, the complex, Norwood Annex, was demolished. Mutual Housing bought the foreclosed property, temporarily relocated its residents and tore it down. Safe new housing was built in its place, and the residents live in what is now called Mutual Housing at Norwood.

 

USC NEWS: Study: Apartments pose high secondhand smoke hazards

The Los Angeles County Department of Public Health announced Wednesday that multi-unit housing can expose hazardous secondhand smoke to non-smokers living adjacent to those who do smoke. Since 2006, secondhand smoke has been classified by the California Air Resources Board as a "toxic air contaminant" that can lead to death, serious illnesses, and a overall health hazards.

 

NEW YORK TIMES: Private dollars revive a solar panel plan for military housing

By Diane Cardwell // An ambitious project by a California company to install solar panels for more than 100,000 military housing units has been revived with private financing after it failed to receive a loan guarantee from the federal government. The company, SolarCity, plans to announce Wednesday that Bank of America Merrill Lynch will lend it up to $350 million to put solar electric panels on roofs and other areas to power as many as 120,000 homes for military personnel over the next five years.  

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Calculated Risk

Calculated Risk

 

Restaurant Performance Index "essentially unchanged" in October

Posted: 30 Nov 2011 08:31 AM PST

From the National Restaurant Association: Restaurant Performance Index Essentially Unchanged in October, Balanced by Softer Current Conditions and Stronger Future Optimism

The National Restaurant Association’s Restaurant Performance Index (RPI) – a monthly composite index that tracks the health of and outlook for the U.S. restaurant industry – stood at 100.0 in October, essentially unchanged from September’s level of 100.1. October’s steady RPI level was the result of softer sales and customer traffic being offset by a more optimistic outlook among restaurant operators.

“Although sales results were somewhat softer in October, restaurant operators reported net positive same-store sales for the fifth consecutive month,” said Hudson Riehle, senior vice president of the Research and Knowledge Group for the Association. “In addition, each of the four forward-looking indicators improved in October, which pushed the Expectations Index to its highest level in four months.”
...
Restaurant operators reported positive same-store sales for the fifth consecutive month in October, although results were somewhat softer than September’s performance. ... Restaurant operators also reported softer customer traffic levels in October.

Restaurant Performance IndexClick on graph for larger image.

The index decreased to 100.0 in October (above 100 indicates expansion).

Unfortunately the data for this index only goes back to 2002.

Restaurant spending is discretionary and is impacted by the overall economy. Right now this is moving sideways ...

All current retail related graphs





Misc: Chicago PMI increases to 62.6, Pending Home Sales increase

Posted: 30 Nov 2011 07:02 AM PST

• Chicago PMI: The overall index increased to 62.6 in November from 58.4 in October. This was above consensus expectations of 58.5.

From the Chicago ISM Chicago Business Barometer™ Rebounded:

The Chicago Purchasing Managers reported the CHICAGO BUSINESS BAROMETER rebounded to a 7-month high in November and marked the 26th month of expansion.

The employment index decreased to 56.9 from 62.3. "EMPLOYMENT reversed half of its gains since August"

The new orders index increased to 70.2 from 61.3. "NEW ORDERS expanded to an 8-month high and PRODUCTION expanded to a 7-month high"

Note: any number above 50 shows expansion.

• From the NAR: Pending Home Sales Jump in October

The Pending Home Sales Index, a forward-looking indicator based on contract signings, surged 10.4 percent to 93.3 in October from 84.5 in September and is 9.2 percent above October 2010 when it stood at 85.5. The data reflects contracts but not closings.
...
The PHSI in the Northeast surged 17.7 percent to 71.3 in October and is 3.4 percent above October 2010. In the Midwest the index jumped 24.1 percent to 88.7 in October and remains 13.2 percent above a year ago. Pending home sales in the South rose 8.6 percent in October to an index of 99.5 and are 9.7 percent higher than October 2010. In the West the index slipped 0.3 percent to 105.5 in October but is 8.1 percent above a year ago.





ADP: Private Employment increased 206,000 in November

Posted: 30 Nov 2011 05:41 AM PST

On Central Bank action, from the WSJ: Central Banks Take Coordinated Action and from the Federal Reserve: "The Bank of Canada, the Bank of England, the Bank of Japan, the European Central Bank, the Federal Reserve, and the Swiss National Bank are today announcing coordinated actions to enhance their capacity to provide liquidity support to the global financial system. The purpose of these actions is to ease strains in financial markets and thereby mitigate the effects of such strains on the supply of credit to households and businesses and so help foster economic activity."

Original post:

ADP reports:

ADP today reported that employment in the U.S. nonfarm private business sector increased by 206,000 from October to November on a seasonally adjusted basis. The estimated advance in employment from September to October was revised up to 130,000 from the initially reported 110,000. The increase in November was the largest monthly gain since last December and nearly twice the average monthly gain since May when employment decelerated sharply.

Employment in the private, service-providing sector rose 178,000 in November, which is up from an increase of 130,000 in October. Employment in the private, goods-producing sector increased 28,000 in November, while manufacturing employment increased 7,000.

This was well above the consensus forecast of an increase of 130,000 private sector jobs in November. The BLS reports on Friday, and the consensus is for an increase of 112,000 payroll jobs in November, on a seasonally adjusted (SA) basis.

Government payrolls have been shrinking by about 27,000 per month this year. So this suggests around 206,000 private nonfarm payroll jobs added, minus 27,000 government workers - or around 179,000 total jobs added in November. Of course ADP hasn't been very useful in predicting the BLS report.





Report: Payroll Tax Cut extension is likely

Posted: 29 Nov 2011 09:45 PM PST

From the WSJ: GOP Set to Back Payroll-Tax Cut

Republican leaders said Tuesday they would join Democrats in supporting an extension of the 2011 payroll-tax cut ... virtually assuring that American wage-earners will continue to receive the benefit next year.
...
Workers this year have seen their payroll taxes cut to 4.2% of their salary from 6.2%. Democrats want to cut it further, to 3.1%, but Republicans are unlikely to support that.

Probably the two most significant downside risks to the U.S. economy are contagion from the European financial crisis and more rapid fiscal tightening. The extension of the payroll tax cut will lessen the amount of fiscal tightening in 2012 - although government spending will still be a drag on GDP growth next year.

Earlier:
CoreLogic: 10.7 Million U.S. Properties with Negative Equity in Q3
Case Shiller: Home Prices decline in September
Real House Prices and House Price-to-Rent





Preparing for the end of the Euro

Posted: 29 Nov 2011 05:10 PM PST

The top story in the Financial Times says it all: Businesses plan for possible end of euro

Here is a quote from someone at Volkswagen: “The conclusion is that overall the impact would not be so negative to our company, as we are mainly an exporter ..."

Export to whom?

Earlier:
CoreLogic: 10.7 Million U.S. Properties with Negative Equity in Q3
Case Shiller: Home Prices decline in September
Real House Prices and House Price-to-Rent





Europe: EFSF viewed as insufficient, Greece to receive aid payment

Posted: 29 Nov 2011 01:49 PM PST

• From the Athens News: Eurogroup signs off on 8bn euro aid payment

Eurozone finance ministers agreed on Tuesday to release an 8bn euro aid payment to Greece, part of an 110bn euro package of support agreed with the government last year ...

It looks like Greece will not default in December, but there is a huge hurdle in January when the private creditors are supposed to "voluntarily" agree to large haircuts.

• Surprise! The EFSF is insufficient.

From the WSJ: Euro Zone Sees Shortfall in Rescue Fund

Euro-zone finance ministers acknowledged on Tuesday that the bloc's bailout fund would have less capacity to help troubled nations than once hoped, and stepped up calls on the European Central Bank and the International Monetary Fund to come to their aid.

An analysis presented at a meeting of finance ministers here suggested the fund would be able to raise a maximum of €500 billion to €700 billion ($666 billion to $932 billion), far short of the €1 trillion or even €2 trillion that many had expected. ... ministers are exploring further measures to stem the crisis, which they hope to announce at a European summit on Dec. 8-9.

From the Financial Times: Fears of shortfall lead to moves to boost EFSF

Eurozone finance ministers are weighing more radical options to strengthen their firewall against the sovereign debt crisis, after acknowledging that plans to expand the €440bn eurozone rescue fund could deliver as little as half the extra punch that was anticipated.
Excerpt with permission

• European bond yields were mostly lower today after (from Bloomberg) Italy Pays More Than 7% at Auction of EU7.5 Billion of Bonds

Italy was again forced to pay above the 7 percent threshold that led Greece, Portugal and Ireland to seek bailouts when it sold 7.5 billion euros ($10.1 billion) in bonds today, short of the maximum target for the auction.

The Italian 2 year yield was down to 7.1%, and the 10 year yield was at 7.24%.

The Spanish 2 year yield was down to 5.6%, and the 10 year yield was down to 6.39%.

The Belgian 10 year yield was down to 5.33%, and the French 10 year yield was down to 3.52%.

Note: There is a link below the first post for the table of European bond yields.

• Tim Duy has more: Another European "Solution" Coming?

Earlier:
CoreLogic: 10.7 Million U.S. Properties with Negative Equity in Q3
Case Shiller: Home Prices decline in September
Real House Prices and House Price-to-Rent





Philly Fed State Coincident Indexes increase in October

Posted: 29 Nov 2011 12:14 PM PST

From the Philly Fed:

The Federal Reserve Bank of Philadelphia has released the coincident indexes for the 50 states for October 2011. In the past month, the indexes increased in 43 states, decreased in five, and remained unchanged in two (Georgia and New Mexico) for a one-month diffusion index of 76. Over the past three months, the indexes increased in 42 states, decreased in seven, and remained unchanged in one (Delaware) for a three-month diffusion index of 70.

Note: These are coincident indexes constructed from state employment data. From the Philly Fed:

The coincident indexes combine four state-level indicators to summarize current economic conditions in a single statistic. The four state-level variables in each coincident index are nonfarm payroll employment, average hours worked in manufacturing, the unemployment rate, and wage and salary disbursements deflated by the consumer price index (U.S. city average). The trend for each state’s index is set to the trend of its gross domestic product (GDP), so long-term growth in the state’s index matches long-term growth in its GDP.

Philly Fed Number of States with Increasing ActivityClick on graph for larger image.

This is a graph is of the number of states with one month increasing activity according to the Philly Fed. This graph includes states with minor increases (the Philly Fed lists as unchanged).

In October, 45 states had increasing activity, up from 39 in September. This is the highest level since April.

Philly Fed State Conincident MapHere is a map of the three month change in the Philly Fed state coincident indicators. This map was all red during the worst of the recession, and all green earlier this year - but this is an improvement from September.

Earlier:
CoreLogic: 10.7 Million U.S. Properties with Negative Equity in Q3
Case Shiller: Home Prices decline in September
Real House Prices and House Price-to-Rent





 

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November 29, 2011

Multifamily Media Frenzy

Multifamily
Multifamily Media Frenzy

Apartment investments still rule the front page.

by Rich Rosfelder

We’ve all seen the headlines: “Apartments Shine as Beacon of Hope” and “Multifamily Sales Defy the Slump.” National newspapers, industry blogs, and local business publications, among others, have joined in a chorus singing the praises of apartment investment opportunities throughout the country.

“Multifamily investments have received a lot of good press over the past several years, and this has attracted more money — and more investors — into the mix,” says Jeff Siebold, CCIM, MAI, owner of Siebold Group Consulting in Caswell Beach, N.C.

Of course, this trend is the result of more than just the media frenzy. “The key [to multifamily’s success] in today’s market is net income or dividend to investors with upside potential, which is creating solid risk-adjusted returns,” says Kenneth P. Riggs Jr., CCIM, CRE, MAI, CCIM Institute’s chief real estate economist and president of Real Estate Research Corp.

And, compared with other sectors, apartments have shorter lease terms that allow for rent bumps as the economy grows. These factors, coupled with a large number of former homeowners entering the rental market, are making multifamily the go-to investment product right now, Riggs says.

For the last few years, apartment investment activity has mostly been concentrated in primary markets. And, in terms of volume and pricing, they’re still leading the pack. New York, Los Angeles, Washington, D.C., Atlanta, and Dallas saw a combined 1H2011 transaction volume of more than $7.9 billion, according to Real Capital Analytics.

The increased competition has pushed average class A capitalization rates in primary markets down to the 4-percent-to-4.5-percent range, with some markets reporting cap rates below 4 percent, according to Marcus & Millichap.

The star sector’s overexposure, manifested in the cap rate compression and the pricing rebound, has kept all but the largest institutional investors and real estate investment trusts from competing for assets in primary markets. And even these investors are now searching for alternatives.

“Some REITs are buying land to build apartments,” says Ben Thypin, RCA’s director of market analysis. “It would be more common if more land were available in markets like New York and San Francisco.”

But since land is a limited resource — especially in densely populated primary markets — multifamily investors have been forced to look for opportunities elsewhere. This is the story behind the story. It might not be garnering a lot of headlines, but it is good news for CCIMs.

http://www.ccim.com/cire-magazine/articles/multifamily-media-frenzy

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NAR: Growth in Commercial Real Estate Markets Expected in 2012

November 29, 2011
By Nicholas Ziegler, News Editor

The name of the game lately is optimism – and the National Association of Realtors is keeping that trend alive. In its most recent report, the NAR asserted that while commercial real estate markets have been relatively flat in 2011, improving fundamentals should show a more positive trend in 2012. The NAR predicts measurable declines in vacancy rates across all major sectors, comparing the fourth quarter of this year to the fourth quarter of 2012. Office vacancies should drop 0.6 percent; industrial, 0.4; retail, 0.8; and multi-family, 0.7.

Lawrence Yun, chief economist for the NAR, said there is currently little changing in commercial real estate, that situation will change in the coming months. “Vacancy rates are flat, leasing is soft and concessions continue to make it a tenant’s market,” he said. “However, with modest economic growth and job creation, the fundamentals for commercial real estate should gradually improve in the coming year.”

Attitudes, then, will also play a significant role in the country’s economic recovery. While the number of available jobs may increase, it’s going to take a change on a macro level to see lasting growth. The Society of Industrial and Office Retailers, in its SIOR Commercial Real Estate Index, measured those attitudes across 231 local-market experts. A full 92 percent of respondents feel that the national economy is having an effect on their markets.

Even so, the index did see a rise to 55.5 in the third quarter, following a decline of 2.6 points in the previous quarter. A level of 100 represents a “balanced marketplace,” which was last seen in the third quarter of 2007.

The NAR’s report went on to describe individual sectors. Office markets, as Yun mentioned, are expected to see vacancies decline to 16.1 percent by the fourth quarter of 2012. Rents, accordingly, are expected to increase by 1.7 percent next year nationwide. “Net absorption of office space in the U.S., which includes the leasing of new space coming on the market as well as space in existing properties, is projected to be 20.2 million square feet this year and 31.7 million in 2012,” the report noted.

Industrial vacancy rates, similarly, are expected to decline to 11.7 percent in the fourth quarter of 2012. The areas with the lowest current rates are Los Angeles, with a vacancy rate of 5.2 percent; Orange County, Calif., with a rate of 5.7 percent; and Miami, at 8.4 percent.

http://www.cpexecutive.com/property-types/retail/nar-growth-in-commercial-real-estate-markets-expected-in-2012/?utm_source=WhatCountsEmail&utm_medium=CPE%20Weekly&utm_campaign=CPE%20Weekly%20Newsletter

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Ohio Supreme Court Holds Application for Referendum Untimely

New post on LAW OF THE LAND


 


Ohio Supreme Court Holds Application for Referendum Untimely

by Patty Salkin

Under Ohio law, a property owner within a township may seek a zoning amendment by providing an application to the planning commission.  This application is then sent to a county or regional planning authority, and this body must submit a recommendation.  The township planning commission makes its recommendation, and sends both the regional and township planning commission recommendations to the board of township trustees.  The trustees must then make a decision, which becomes effective in thirty days unless a referendum petition is filed within the thirty days to the county board of elections.

Following this procedure, an application was made for a zoning amendment to rezone 216.3 acres of land from the designation of Farm Residence District to Planned Residence District.    The Liberty Township planning commission voted to recommend approval of the zoning amendment on January 26, 2011.  On April 4, 2011, the Liberty Township Board of Trustees orally amended portions of the zoning resolution and unanimously voted for the approval of the zoning amendment application.  On May 4, 2011, the board met again and approved the minutes from the April 4th meeting, thereby recording the April 4, 2011 oral amendment in writing.  On June 3, 2011, a group of citizens petitioned for a referendum on the rezoning application, which was 60 days from the April 4th oral amendment, and 30 days from the approval of the minutes, o n May 4th.  The Realtor submitted a protest to the petition application, claiming, among other things, that it was untimely, and an appropriate map of the subject parcel was not included in the application.  The county proceeded to put the referendum question on the ballot.

In determining whether the referendum request was timely, the court had to determine what the term “adoption” meant, as the time period to apply for a referendum accrues upon the adoption of the amendment, and must be made within 30 days of the accrual.  The court determined that “adoption” meant the date in which the application was approved.  The approval of the application occurred during the oral vote to approve, which was held on April 4, 2011.  The court held that a written recordation is not required; the vote itself constituted the approval as municipalities have no legal obligation to record their approvals in written documents.  Given that the application for referendum was not filed until 60 days after the April 4, 2011 adoption, it was held to be untimely.  Since it was untimely, the court found the respondent board of elections abused its discretion in submitting the question to the ballot, and the Realtor’s writ of prohibition was granted.

Three justices dissented, finding the adopting of the zoning amendment did not occur until the written recordation, as citizens seeking a referendum on the matter would not have an adequate opportunity to petition until they had a copy of what they were opposing.

State ex rel. Edwards Land Co. v. Delaware Cty. Bd. of Elections, 129 Ohio St.3d, 580, 2011-Ohio-4397 (2011)

The opinion can be accessed at: http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4397.pdf.

Patty Salkin | November 29, 2011 at 1:31 am | Categories: Current Caselaw, Referenda | URL: http://wp.me/p64kE-1vN

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November 28, 2011

3rd Circuit Court of Appeals Holds Redevelopment Plan in Jeopardy as Anti-Discrimination Issues Loom


3rd Circuit Court of Appeals Holds Redevelopment Plan in Jeopardy as Anti-Discrimination Issues Loom

by Patty Salkin

Defendant, Township of Mount Holly, proposed a redevelopment plan that would remove existing homes in the Gardens neighborhood, which is primarily low income housing, and replace these structures with housing options that were more expensive.  The plaintiff community group filed suit claiming the plan violated anti-discrimination laws, but the District Court granted summary judgment in favor of the Township.  The U.S. Court of Appeals, Third Circuit reversed, finding the District Court failed to apply the correct standard and failed to provide reasonable inferences in favor of the plaintiff.

The plaintiff community group first sought relief from the Township’s plan in state court.  The New Jersey courts found no violation of state law and also ruled that the antidiscrimination claims were not ripe as the plan had not yet been implemented.  The plaintiffs then brought suit in federal court, alleging violations of the Fair Housing Act, Title VIII of the Civil Rights Act 1968, the Civil Rights Act of 1866 and the Equal Protection Clause of the 14th Amendment.  During the course of the state and federal litigation, much of the property subject to the plan had been acquired and demolished by the Township in order to remove the blighted neighborhood, clearing the land for future development under the plan.  Even with relocation funds and resources being made available, many of the displaced residents were forces to move outside the Township.  Many of these displaced residents where low-income and African-American or Hispanic.

The plaintiffs could have made a prima facie case of discrimination if they meet the disparate impact standard.  This standard requires less than intentional discriminatory conduct, being satisfied where there is a “necessary and foreseeable consequence of furthering segregation[.]”  This can be found where the effect of the government act disproportionately impacts a certain group of people.  In this case, the Third Circuit found that such a disproportionate impact was present as the demolition of the neighborhood affected African-Americans residents eight times more likely than White residents, and it affected Hispanic residents eleven times more likely than White residents.  Additionally, White residents of the county would be much more able to live in the area once the plan is finalized.  Given this disproportio nate effect, the Third Circuit found there was a disparate impact and a prima facie case.

In addition to the District Court’s failure in not finding a disparate impact, which would have precluded summary judgment in favor of the Township, the Third Circuit also corrected numerous instances in which the District Court made incorrect inferences that should have been made in favor of the plaintiffs.  Given these deficiencies, the summary judgment in favor of the Township was vacated, and the matter was submitted back to the District Court for further pleadings and discovery.  At this point, the parties and the court would need to explore whether there was a legitimate government interest in the redevelopment plan and if there where alternatives to the plan that would have had less of a discriminatory affect on the Township’s minority residents.

Mt. Holly Gardens Citizens in Action, Inc. v. Township of Mount Holly, 658 F.3d 375 (3d Cir. 2011),

The opinion can be accessed at: http://www.ca3.uscourts.gov/opinarch/111159p.pdf.
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NAIOP SoCal Young Professionals Group

NAIOP SoCal Young Professionals Group
For Future Leaders Who Want to Be Involved in the Class of 2012-13




Orange County

Tuesday, December 6, 2011
7:30 to 9:00 a.m.

A NAIOP SoCal program that has received National recognition and is being used as a model for other chapters nationwide, the Young Professionals Group (YPG) is now accepting applications for the 2012-13 class. If you are 35 years of age or less and interested in the opportunity to become involved in this outstanding program as a candidate for the Class of 2012-13, this workshop will provide you with first-hand knowledge from the YPG advisors who launched the program and from individual students about their experiences and the value that the program delivers. You will learn about the criteria required, the curriculum, the fun and the pain of this 12-month, 70-hour course.

Click Here to learn more about the program

To register:

Register on-line by clicking on the link below.

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TODAY'S NEWS

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November 28, 2011

 

TODAY'S NEWS

AFFORDABLE HOUSING

PASADENA STAR-NEWS: Low-income senior housing project in Duarte gets federal boost

By Brenda Gazzar // DUARTE- The be.group, formerly known as Southern California Presbyterian Homes, was awarded more than $7 million in federal dollars toward the creation of a 43-unit housing project on Huntington Drive for low-income seniors in the city. The Glendale-based nonprofit organization will receive a capital advance of $7.13 million and a three-year rental subsidy of $742,800 for Andres Duarte Terrace II on the southeast corner of Huntington Drive and Pops Drive, federal officials announced. …

 

HEALTHY CAL.ORG: Nonprofit fights for healthy housing in low income communities

By Jenn Walker // Rachel Iskow walked into an apartment complex and found herself surrounded by exposed electric wire, a walkway lined with dry rot, holes in the walls and a collapsed bathroom floor. In the eyes of Iskow, executive director of nonprofit Sacramento / Yolo Mutual Housing, it looked like third world conditions. Soon after, the complex, Norwood Annex, was demolished. Mutual Housing bought the foreclosed property, temporarily relocated its residents and tore it down. Safe new housing was built in its place …

 

MARIN INDEPENDENT JOURNAL: Marin Voice: Affordable housing need is obvious

By Ron Albert [Opinion] // THE MARIN Environmental Housing Collaborative is a countywide partnership that includes affordable housing, environmental, neighborhood, and social justice advocates. The Environmental Housing Collaborative works collaboratively to promote public support for projects that advance affordable housing, environmental integrity and social justice. … Some Marin cities and towns may bow to local political pressures and attempt to resist state requirements, and some may choose to invest time and money to encourage amendments to housing element law.

 

LAND USE / PLANNING / REGULATION

SAN DIEGO UNION-TRIBUNE: Environmentalists sue over $200B transportation plan

By Christopher Cadelago // Two environmental organizations today challenged a plan outlining $200 billion in regional transportation projects through 2050, alleging that the San Diego Association of Governments’ planned investments in freeways would come at the expense of public transit, increased pollution and exacerbated global climate change. The lawsuit brought by the Cleveland National Forest Foundation and the Center for Biological Diversity alleges that regional transportation officials replied on inadequate environmental studies in approving the long-range planning …

 

HOUSING MARKETS / REAL ESTATE

PENINSULA PRESS: Real estate report -- Palo Alto near top of the class for expensive college towns

By David Ruiz // Palo Alto, next-door neighbor to Stanford University, trails only Westwood near UCLA in a new report that ranks the country’s most expensive college towns based on home prices. Using the average price of a three-bedroom, two-bath home listed in the past year by Coldwell Banker and its sister agencies, the report puts Palo Alto ahead of Honolulu (University of Hawaii), the greater Los Angeles area (University of Southern California​) and Boulder (University of Colorado). …

 

REUTERS.COM: October home sales rise 1.3 percent but prices fall

By Jason Lange // (Reuters) - Sales of new homes rose in October and the supply of homes on the market fell to its lowest level since April of last year, showing some healing in the battered housing sector. The Commerce Department on Monday said sales of new single-family homes edged up 1.3 percent to a seasonally adjusted 307,000-unit annual rate, which was the fastest pace in five months yet still below analysts' expectations. …

 

MONEYLAND.TIME.COM: Home Affordability near highest level in 20 years

By Alison Rogers // It’s easy to drown in real estate statistics, but looking at “affordability” -- the homes that someone on a median income could buy -- is a fascinating gauge of housing markets. (Plus, it’s a statistic that can be fine-tuned to the local level). The recent release of the Housing Opportunity Index from the National Association of Home Builders/Wells Fargo shows that we’re still in a uniquely affordable phase of the market cycle. … In fact, housing in California remains hyper-expensive …

 

MORTGAGE & FORECLOSURE ISSUES

USA TODAY.COM: Rate on 30-year fixed mortgage falls to 3.98%

By Christopher S. Rugaber // WASHINGTON – The average rate on the 30-year fixed mortgage hovered above its record low for a fourth straight week. But cheap mortgage rates have done little to boost home sales or refinancing. Freddie Mac says the rate on the 30-year fixed loan fell to 3.98% percent from 4% the previous week. Seven weeks ago, it dropped to a record low of 3.94% …

 

HOMELESSNESS

SAN DIEGO CITY BEAT: The evolution of San Diego's approach to homelessness

By Kelly Davis // … For the last few months, he’s been living Downtown in a building owned and operated by St. Vincent de Paul. He has a case manager who’s available 24/7, he attends AA meetings and is enrolled in a vocational rehabilitation program. He’s thinking about becoming a drug-and-alcohol counselor. In all, almost 150 people have been helped off the street and into housing in the last year, the result of Project 25 and a second initiative focused on Downtown San Diego. That alone is significant progress.

 

EUREKA TIMES-STANDARD: Unique emergency shelter offers help for Humboldt County homeless, runaway teens

By Megan Hansen // Teenagers and young adults who are in need of housing or who are experiencing difficulties at home don't have to be out on the streets this winter, thanks to a couple of programs offered by the Redwood Community Action Agency's Youth Service Bureau. Nine teenagers and young adults are currently living at the nonprofit Youth Service Bureau's office on California Street in Eureka. The three-story office is actually a home that was established in 1991 as a shelter …

 

COMMUNITY DEVELOPMENT

LOS ANGELES TIMES: Making the most of cooperation

By Lee Romney [11/27/11] // …The flurry of democratic enterprise has been guided by Mayor Gayle McLaughlin, a former schoolteacher who visited Mondragon, Spain, and recognized a possible path out of the poverty and unemployment that plague her city. The Basque hill town is dominated by Mondragon Corp., a web of cooperatives that employ 83,000 workers and together represent Spain's seventh-largest business. Co-op clusters based on Mondragon's model have emerged in Cleveland and the Bronx, N.Y., among other cities. Richmond, with a 16% unemployment rate, hopes to follow suit. …

 

SAN JOSE MERCURY NEWS: Bay Area tries to pull together to help seniors in need

By Karen de Sá // Advocates for Bay Area seniors this week will convene around a vexing social problem: As the number of elderly living in poverty grows, safety net programs from Meals on Wheels to basic medical coverage continue to shrink. Wednesday's Bay Area Senior Health Policy Forum will bring a busload of seniors from Santa Clara County together with state legislators and federal officials, Gray Panthers, doctors, affordable housing advocates and social workers. Among them will be liberals and conservatives who all share a common concern …

 

THE DAILY DEMOCRAT: West Sacramento awarded major federal grant

[11/26/11] // The city of West Sacramento has been awarded a $400,000 Community Challenge Planning Grant from the U.S. Department of Housing and Urban Development. The grant was announced yesterday by Mayor Christopher Cabaldon and HUD Field Office Director, Cynthia Abbott. The grant enables the city to complete the Washington District Plan for Sustainable Community Development, a major planning project that will result in improvements to the Washington area that encourage new transit-oriented development and improve conditions for existing residents. …

 

THE PRESS DEMOCRAT: PEP Housing receives major federal grant

By Jamie Hansen // A Petaluma non-profit that builds affordable housing for low-income seniors just received millions in federal grants to help fund a new, 50-unit senior facility in town. Petaluma Ecumenical Properties, or PEP Housing, was awarded a little over $15 million in total this November from the U.S. Department of Housing and Urban Development. The money will help fund construction and rental subsidies for two new housing units, one in Petaluma and another in Oroville. …

 

ECONOMY / EMPLOYMENT

SAN JOSE MERCURY NEWS: Recession may be over but many Silicon Valley residents feel left out of recovery

By Patrick May // … While economists say the recession is technically over, many in Silicon Valley certainly don't see it that way. Despite a recent hiring boom, 44 percent of those polled in the fall 2011 Silicon Valley Pulse survey said they felt left out of any recovery that might be going on. Even more troubling, a growing number of valley residents have lost all hope of finding relief any time soon. Asked how much longer they believe the recession will last, 21 percent of those polled said they think it will drag on for more than five years; that's more than twice as many respondents who felt that way in April 2009. …

 

TRANSPORTATION

SANTA MONICA PATCH: Bike Action Plan & Energy Resilience

By Gary Kavanagh [11/25/11] // This week the Santa Monica City Council approved the Bicycle Action Plan by unanimous vote and last week the ribbon was cut on a new high capacity Bike Center facility. Tuesday’s vote finishes the long public process of drafting a visionary document, and marking the beginning of the real work of implementation. I am much more hopeful for the full implementation of this plan than the never quite finished bicycle master plan from 1995. The momentum has shifted a lot since 1995 and there is a new and largely younger crowd emerging and rallying around bikes. …

 

REDEVELOPMENT

EAST COUNTY MAGAZINE: Community Leaders Voice Concern over Closure of El Cajon CDC

By Miriam Raftery // Nov. 27, 2011 (El Cajon) –  Community leaders are reacting with shock, dismay, and questions after learning that the Board of Directors of the El Cajon Community Development Corporation has voted to dissolve the redevelopment organization due to lack of funding from both the city and state.  President and CEO Cindi Fargo has been laid off, along with the remaining staff. “I am deeply disappointed,” said Eldonna Lay with the El Cajon Historical Society, also a former CDC board member and past design review commissioner for the city.  “It’s so unexpected and really tragic.”

 

INFRASTRUCTURE / BONDS

CENTRAL VALLEY BUSINESS TIMES: California gets $43.4 Million to pay old repair bills

The amount allocated Monday is part of a much larger $43.4 million coming to California for other past weather-related disasters. Nearly half -- $20.7 million – is going to the Devil’s Slide reports on the Central Coast where a tunnel is being bored to tuck Highway 1 safely away from the frequent landslides there. The project calls for construction of two tunnels beneath San Pedro Mountain … In all the U.S. Department of Transportation is providing more than $215 million to states to cover the costs of repairing roads and bridges.

 

CENSUS / DEMOGRAPHIC TRENDS

CENTRAL VALLEY BUSINESS TIMES: Central Valley could be part of new 'megapolitan' area

[11/25/11] // Much of the Central Valley could find itself part of two “megapolitan” areas by mid-century, according to a new study. Sacramento, Yolo, Yuba, San Joaquin, Stanislaus and Merced counties in the Valley could morph into what’s dubbed the “Sierra Pacific megapolitan area.” Based on largely common economic, physical, social, and cultural traits, it would stretch from the Bay Area eastward to Reno, Nev., says the study, published by the American Planning Association. …

 

ENVIRONMENT / CLIMATE CHANGE

EARTH TECHLING: LEED Housing for UC Santa Barbara Faculty

By Susan DeFreitas // Faculty at the University of California, Santa Barbara, have it good: not only are the homes in their new Ocean Walk faculty housing development just a few blocks from the beach, they’re also now LEED certified. Ocean Walk is the first housing project in the University of California system to receive LEED for Homes certification (though it will face some stiff competition from the net zero West Village project on the Davis campus for top green honors in this category). The Ocean Walk development was created to provide affordable housing for faculty …

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November 26, 2011

Asset Forfeiture, Civil Procedure, Property Law & Real Estate, Remedies

November 14, 2011 FindLaw.com Daily Opinion Summaries Newsletter

Table of Contents

LATEST SUMMARIES

Asset Forfeiture, Civil Procedure, Property Law & Real Estate, Remedies
LA County Metro. Trans. Authority v. Alameda Produce Market, LLC

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Asset Forfeiture, Civil Procedure, Property Law & Real Estate, Remedies
LA County Metro. Trans. Authority v. Alameda Produce Market, LLC, No. S188128
In an appeal from a judgment of the court of appeals concerning the scope of the waiver provisions of California's "quick-take" eminent domain procedure, Code Civ. Proc. sections 1255.010, 1255.410, judgment is reversed because if a lender holding a lien on condemned property applies to withdraw a portion of a Section 1255.210 deposit, and the property owner does not object to the application, the lender's withdrawal does not constitute a waiver of the property owner's claims and defenses under Section 1255.260. Read more...
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CA Supreme Court Grants Prop 8 Backers Right to Sue

CA Supreme Court Grants Prop 8 Backers Right to Sue
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The California Supreme Court, answering a question from the Ninth Circuit, has ruled that initiative backers in California have the right to participate in a lawsuit to defend an initiative when state officials have declined to do so. This decision should allow backers of Proposition 8 to continue their defense of the amendment against constitutional challenges.
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Calculated Risk

Calculated Risk

 

Summary for Week Ending Nov 25th

Posted: 26 Nov 2011 05:23 AM PST

It was a short holiday week, but the key story remained the same: the European situation continues to deteriorate as European policymakers fiddle. Europe continues to overshadow the U.S. economic situation and the European financial crisis continues to pose the greatest downside risk to the U.S. economy. I'll have more on Europe later ...

In the U.S., the economic data continues to indicate sluggish growth. Q3 GDP was revised down to 2.0% annualized from the advance report of 2.5%, however most of the downward revision was due to a large decline in the "change in real private inventories" - not final demand.

Personal spending slowed in October, although personal income picked up a little. The four week average of initial weekly unemployment claims is below 400,000, and at the lowest level since early April. This suggests some improvement in the labor market in November.

For manufacturing, the Richmond Fed survey showed activity was unchanged in November (after contracting in five out of the last six months), and the Kansas City survey showed sluggish expansion.

Two other items of interest: The Federal Reserve released the annual stress test scenario for the largest banks (with significant declines for the stock market and house prices), and the FOMC minutes showed the FOMC might consider providing the "likely future path of the target federal funds rate".

Here is a summary in graphs:

Existing Home Sales in October: 4.97 million SAAR, 8.0 months of supply

The NAR reported: October Existing-Home Sales Rise, Unsold Inventory Continues to Decline

Existing Home Sales
Click on graph for larger image in graph gallery.

This graph shows existing home sales, on a Seasonally Adjusted Annual Rate (SAAR) basis since 1993.

Sales in October 2011 (4.97 million SAAR) were 1.4% higher than last month, and were 13.5% above the October 2010 rate.

The next graph shows the year-over-year (YoY) change in reported existing home inventory and months-of-supply. Since inventory is not seasonally adjusted, it really helps to look at the YoY change. Note: Months-of-supply is based on the seasonally adjusted sales and not seasonally adjusted inventory.

Year-over-year InventoryInventory decreased 13.8% year-over-year in October from October 2010. This is the ninth consecutive month with a YoY decrease in inventory.

Months of supply decreased to 8.0 months in October, down from 8.3 months in September. This is still higher than normal. These sales numbers were just above the consensus.

All current Existing Home Sales graphs


Personal Income increased 0.4% in October, Spending increased 0.1%

Personal Consumption ExpendituresThe BEA released the Personal Income and Outlays report for October:

Personal income increased $48.1 billion, or 0.4 percent ... in October, according to the Bureau of Economic Analysis. Personal consumption expenditures (PCE) increased $8.2 billion, or 0.1 percent.
...
Real PCE -- PCE adjusted to remove price changes -- increased 0.1 percent in October, compared with an increase of 0.5 percent in September. ... PCE price index -- The price index for PCE decreased 0.1 percent in October, in contrast to an increase of 0.2 percent in September.

This graph shows real Personal Consumption Expenditures (PCE) through October (2005 dollars).

PCE increased 0.1% in October, and real PCE increased 0.1%.

Note: The PCE price index, excluding food and energy, increased 0.1 percent.

In October, income increased faster than spending - reversing a recent trend - and the saving rate increased slightly. However the saving rate has declined sharply over the last few months. Personal income was slightly better than expected, and spending a little lower than expectations.

Weekly Initial Unemployment Claims at 393,000

The DOL reports:

In the week ending November 19, the advance figure for seasonally adjusted initial claims was 393,000, an increase of 2,000 from the previous week's revised figure of 391,000. The 4-week moving average was 394,250, a decrease of 3,250 from the previous week's revised average of 397,500.


This graph shows the 4-week moving average of weekly claims since January 2000.

The dashed line on the graph is the current 4-week average. The four-week average of weekly unemployment claims decreased this week to 394,250.

This is the lowest level for the 4 week average since early April - although this is still elevated.

All current Employment Graphs


FDIC-insured institutions’ 1-4 Family Real Estate Owned (REO) decreased in Q3

The FDIC released the Quarterly Banking Profile for Q3. The report showed that 1-4 family Real Estate Owned (REO) by FDIC insured institutions declined to $11.9 billion in Q3, from $12.1 billion in Q2 - and from a record $14.76 billion in Q3 2010.

As economist Tom Lawler has pointed out before, the FDIC does not collect data on the number of properties held by FDIC-insured institutions, instead they aggregate the carrying value of 1-4 family residential REO on FDIC-insured institutions’ balance sheets.

Using an average of $150,000 per unit would suggest the number of 1-4 family REOs declined from 80,597 in Q2 to 79,335 in Q3.

FDIC insured Institutions REO DollarsHere is a graph of the 1-4 family REO carrying value for FDIC insured institutions since Q1 2003.

The left scale is the dollars reported in the FDIC Quarterly Banking Profile, and the right scale is an estimate of REOs using an average of $150,000 per unit. Using this estimate for the average per REO gives 79.3 thousand REO at the end of Q3.

Note: FDIC insured institutions have other REO and this is just the 1-4 family residential REO (other REO includes Construction & Development, Multi-family, Commercial, Farm Land).

Of course this is just a small portion of the total 1-4 family REO.

All current Mortgage Delinquency and REO graphs.


ATA Trucking Index increased 0.5% in October

Pulse of Commerce IndexFrom ATA: ATA Truck Tonnage Index Rose 0.5% in October

The American Trucking Associations’ advance seasonally adjusted (SA) For-Hire Truck Tonnage Index increased 0.5% in October after rising a revised 1.5% in September 2011.”

Here is a long term graph that shows ATA's For-Hire Truck Tonnage index.

The dashed line is the current level of the index. This index has started increasing again after stalling earlier this year - however this is still fairly sluggish growth.

All current Transportation Graphs


Moody's: Commercial Real Estate Prices declined 1.4% in September

CRE and Residential Price indexesFrom Dow Jones: Moody's: Commercial Real-Estate Prices Fell In September

U.S. commercial real-estate prices fell 1.4% in September, ending a four-month growth streak."

Here is a graph of the Moodys/REAL Commercial Property Price Index (CPPI). CRE prices only go back to December 2000.

According to Moody's, CRE prices are up 1.3% from a year ago, and down about 42% from the peak in 2007. This index is very volatile because there are relatively few transactions - but it does appear to be mostly moving sideways.

All current Commercial Real Estate graphs


Final November Consumer Sentiment at 64.1

Consumer SentimentThe final November Reuters / University of Michigan consumer sentiment index declined to 64.1 from the preliminary reading of 64.2, up from the October reading of 60.9, and up from 55.7 in August.

Consumer sentiment is usually impacted by employment (and the unemployment rate) and gasoline prices. But right now the European financial crisis is probably also impacting sentiment.

Although sentiment is up from October, this is still very weak, and slightly below the consensus forecast of 64.6.

Other Economic Stories ...
Q3 real GDP growth revised down to 2.0% annualized rate
FOMC Minutes: Discussion of providing "likely future path of the target federal funds rate"
Fed outlines new bank supervisory stress test
• From the Kansas City Fed: Growth in Manufacturing Activity Eased Slightly
• From the Richmond Fed: Manufacturing Activity Steadied in November; Expectations Were Upbeat
State Unemployment Rates "little changed or slightly lower" in October
DOT: Vehicle Miles Driven declined 1.5% in September
Chicago Fed: Economic activity up slightly in October





Unofficial Problem Bank list increases to 980 institutions

Posted: 25 Nov 2011 06:04 PM PST

Note: this is an unofficial list of Problem Banks compiled only from public sources.

Here is the unofficial problem bank list for Nov 25, 2011. (table is sortable by assets, state, etc.)

Changes and comments from surferdude808:

Happy Thanksgiving to all our readers!

The FDIC did not deliver a "Black Friday" to any bank today as they let their closing teams enjoy a long weekend off. Still, there were a number of changes to the Unofficial Problem Bank List as the OCC and FDIC released their enforcement actions for the past month this week. As a result, there were seven additions and four removals, which leave the list with 980 institutions with assets of $400.5 billion. A year ago, there were 919 institutions with assets of $410 billion.

During this month, the list fell by a net five institutions with changes including eight additions, four failures, two unassisted mergers, and seven cures. Positively, it is the fifth consecutive monthly decline; however, the list has only declined by a net 21 institutions with failure causing 40 removals over this span.

The removals this week were all cures and include Commercial National Bank of Texarkana, Texarkana, TX ($191 million); The National Bank of Waupun, Waupun, WI ($126 million); Texas National Bank, Mercedes, TX ($92 million); and First National Bank of the Lakes, Navarre, MN ($61 million).

Among the seven additions are First Community Bank, Santa Rosa, CA ($698 million); CoastalStates Bank, Hilton Head Island, SC ($372 million); Commerce Bank, Geneva, MN ($207 million); and Regal Bank & Trust, Owings Mills, MD ($182 million Ticker: RGBM).

The OCC and FDIC replaced a number of existing outstanding actions during the past month. The other change of note is a Prompt Corrective Action Order issued by the OCC against Western National Bank, Phoenix, AZ ($163 million).

CR Note: Thanks to surferdude808! Earlier this week, the WSJ reported that Bank of America was warned by regulators of a possible formal action if the bank doesn't make progress. That would be a huge addition to the Unofficial Problem Bank list!





Gasoline Prices and Brent WTI Spread

Posted: 25 Nov 2011 12:44 PM PST

According to Bloomberg, Brent Crude is down to $106.40 per barrel, while WTI is up to $96.77. The spread has been narrowing for over a month, especially following the recent announcement of a partial reversal of the Seaway pipeline to transport crude oil from Cushing, Oklahoma, to the Gulf Coast.

If the global economy really slows, oil and gasoline prices will probably fall - and probably offset some of the impact from lower exports. There hasn't been a sharp decline in world oil prices yet.

Oil Prices
Click on graph for larger image.

This graphs shows the prices for Brent and WTI over the last few years. Usually the prices track pretty closely, but the "glut" of oil at Cushing pushed down WTI prices relative to Brent. Now the gap is closing (the pipeline is scheduled to be reversed in Q2 2012).

On a longer term basis, here is a little good news for Bloomberg: Renewable power trumps fossil fuels for first time

Renewable energy is surpassing fossil fuels for the first time in new power-plant investments, shaking off setbacks from the financial crisis and an impasse at the United Nations global warming talks.

Electricity from the wind, sun, waves and biomass drew $187 billion last year compared with $157 billion for natural gas, oil and coal, according to calculations by Bloomberg New Energy Finance using the latest data. Accelerating installations of solar- and wind-power plants led to lower equipment prices, making clean energy more competitive with coal.

And here is a graph of gasoline prices. Gasoline prices have been slowly moving down since peaking in early May as the shown on the graph below. Note: The graph below shows oil prices for WTI; gasoline prices in most of the U.S. are impacted more by Brent prices.





S&P cuts Belgium's credit rating to AA

Posted: 25 Nov 2011 10:23 AM PST

Just a headline on Belgium ... I guess S&P noticed the Belgian bond yields are moving up sharply.

Also something we discussed this morning, from Bloomberg: Italian, Spanish Yield Curves Start Looking Greek: Euro Credit

Spain and Italy face paying more to borrow for two years than for a decade, echoing shifts that presaged bailouts in Greece and Portugal and suggesting skepticism about their new governments avoiding contagion.

The Italian 2 year yield is at 7.66%. And the ten year yield is at 7.26%.

But the Spanish curve is not inverted yet. The Spanish 2 year yield is at 6.09%, and the ten year yield is at 6.7%.





 

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November 25, 2011

California Appeals Court Rules Individual does not have Standing to Oppose Medical Marijuana Dispensary Ban

New post on LAW OF THE LAND


 


California Appeals Court Rules Individual does not have Standing to Oppose Medical Marijuana Dispensary Ban

by Patty Salkin

Plaintiff, Malinda Traudt, brought an appeal to the California Court of Appeal, Fourth District, Division Three, seeking to overturn the City of Dana Point’s banning of medical marijuana dispensaries.  The trial court dismissed the case and the court of appeals affirmed, finding the plaintiff did not have standing to challenge the City’s actions.

The plaintiff brought suit against the City for actions that constituted a ban on medical marijuana dispensaries within the community.  The City opined that since medical marijuana dispensing facilities are not expressly listed as a permitted land use within the City, such uses constitute a nuisance and are prohibited.  The plaintiff claimed this action was preempted by state law, namely the Compassionate Use Act of 1996 and the Medical Marijuana Program Act.

The Court did not reach the merits of the plaintiff’s assertion, rather finding that the plaintiff lacked standing since to seek relief from the prohibition, the petitioning party must represent a group or facility and here the plaintiff was suing as an individual.

The Court based this determination on rules governing corporate standing because much like corporations, dispensaries, operating as collectives or cooperatives, are legal organizations required to incorporate with the state.  As such, action seeking relief for a harm inflicted upon the dispensary would need to be brought by the dispensary itself.  This is similar to the shareholder not having the right to bring a direct action in the name of the corporation, absent a derivative action.  Since the plaintiff did not own this dispensary, nor does the plaintiff assert that she is representing all the members of the dispensary, she could not have brought a direct action.  In fact, the court stated that “while she is a member of [the dispensing facility], she has no ownership or potential other control over how it or any oth er dispensary or potential cooperative or collective association of qualified persons will react to a decision on the merits.”  Thus, the court found to appeal the determination was a right of the dispensing facility – a right the dispensary has exercised – and affirmed the dismissal.

 Traudt v. City of Dana Point, 11 Cal.App.4th 886 (4th Dist. 2011),

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=16121933460245612616&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

For an article on the land use aspects of medical marijuana see: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1635438

Patty Salkin | November 25, 2011 at 1:01 am | Categories: Current Caselaw, Medical Marijuana, Standing | URL: http://wp.me/p64kE-1vn

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Calculated Risk

Calculated Risk

 

Europe: On the Strasbourg meeting today

Posted: 24 Nov 2011 07:56 AM PST

From Bloomberg: Germany, France to Propose Treaty Adjustments on Fiscal Rules (ht Brian)

Germany and France said they will make proposals to amend European treaties in coming days to impose greater fiscal discipline on euro-area countries ...

The initiative announced today at a meeting in Strasbourg, France, involving German Chancellor Angela Merkel, French President Nicolas Sarkozy and Italian Prime Minister Mario Monti ...

The planned treaty changes prepared for a Dec. 9 European summit involve “the question of a fiscal union, that is a deepened political cooperation,” Merkel told reporters after the meeting over lunch. “It’s not about a quid pro quo. It’s about overcoming the defects in the euro zone’s construction, step by step.”

Merkel won backing on demanding changes to treaties as a prerequisite to discussing the issuance of common euro bonds.

From Bloomberg: Merkel Rejects Euro Bonds After Failed Auction ‘Wake-Up Call’

German Chancellor Angela Merkel again ruled out joint euro-area borrowing and an expanded role for the European Central Bank in fighting the debt crisis. ... Euro bonds are “not needed and not appropriate,” Merkel said today at a press conference

More from the WSJ: Leaders to Propose EU Treaty Changes





Thanksgiving morning reading: Mostly Europe

Posted: 24 Nov 2011 06:02 AM PST

• From the Athens News: Papademos says Samaras letter 'satisfactory'

The standoff over Antonis Samaras’ refusal to sign a written commitment that he backs austerity measures seems to have come to an end, after Prime Minister Lucas Papademos told the cabinet on Thursday that international lenders had reacted positively to the letter that the New Democracy leader sent to the country’s lenders yesterday.

"Papademos said the content of the letter was satisfactory. There is an initial positive response to it (from abroad)," a minister who attended the meeting told Reuters on condition of anonymity.

• From the WSJ: Portugal Hit by Downgrade and Strike

Fitch, which matched Moody's Investors Service's move in July to place Portugal in junk territory, lowered its rating one notch, to double-B-plus from triple-B-minus, and warned further downgrades were possible because a recession in the country will increase challenges for the government to comply with its austerity plans. It maintained a negative outlook.

"The country's large fiscal imbalances, high indebtedness across all sectors, and adverse macroeconomic outlook mean the sovereign's credit profile is no longer consistent with an investment-grade rating," Fitch said. "However, Fitch judges the government's commitment to the program to be strong."

• From the Financial Times: France pushes hard on ECB intervention The FT reports that Nicolas Sarkozy, Italy's Mario Monti, and Angela Merkel are meeting in Strasbourg today - and Sarkokzy is expected to push for ECB intervention.

• Something else to watch from the NY Times: Economic Trouble in the West Shows Signs of Catching Up With Asia

Within the last few weeks ... cracks have emerged in the region’s mighty economies, and analysts and policy makers have become more concerned about the painful disruption that could spill into Asia as the situation in Europe continues to deteriorate and the United States’ growth remains subdued.

Exports from Asia have been softening for months as demand in Europe, in particular, has slowed.

• And on German bonds:

From Paul Krugman: The Apocalypse Trade

the big story: German bonds are now being priced as a risky asset — what the FT calls the “apocalypse trade“. The interest rate on bunds, at 2.21% as I write this, is still very low by historical standards. But it’s above the rate on UK bonds (2.17%) and way above the rate on US bonds (1.88%).

The way to see this is that the market is in effect pricing in a real possibility of eurozone collapse.

And from the FT Alphaville: Borrowing costs in the United States of Europe

[L]et’s assume we get a Eurobond as envisaged by President Barroso. What would that yield? Some 4 per cent perhaps. Lower?

Viewed in this context one can understand why investors were reluctant to buy German paper with a 1.98 per cent coupon. Why not wait and pick up double the yield on German-backed Eurobonds.

The glib answer to that question is because it will never happen. Germany will never allow it.

However, this story, which ran on Reuters overnight, suggests that Eurobonds are not completely verboten, especially if Germany could force through treaty changes to enforce budgetary discipline in the eurozone.





Zillow Forecast for Case-Shiller House Price Index

Posted: 23 Nov 2011 08:32 PM PST

The Case-Shiller Home Price Indices for September will be released next Tuesday, November 29th. Zillow chief economist Stan Humphries put out a forecast for the Case-Shiller HPI yesterday: Zillow Forecast: September Case-Shiller Composite-20 Expected to Show 3.2% Decline from One Year Ago

Zillow predicts that the 20-City Composite Home Price Index (non-seasonally adjusted, NSA) will decline by 3.2% on a year-over-year basis, while the 10-City Composite Home Price Index (NSA) will show a year-over-year decline of 2.8%. The seasonally adjusted (SA) month-over-month change from August to September will be -0.2% and 0.0% for the 20 and 10-City Composite Home Price Index (SA), respectively.
...
"We expect to see continued home value depreciation as unemployment and negative equity remain high and as the pace of foreclosures, kept artificially low since the robo-signing controversy, increases again."

On an NSA basis, this would leave the 10-city composite about 3.9% above the post bubble low, and the 20-city composite about 3.5% above the post bubble low.

The CoreLogic (used by the Fed) index (NSA) for September was about 3.6% above the post bubble low.

However this would put the seasonally adjusted 20-City composite index at a new post-bubble low (and the 10-city would be just above a new low). Because the seasonal factor has been impacted by the high percentage of foreclosures, most people just report the NSA numbers - and the NSA numbers will probably not be at new lows until early next year.

But there is still a strong seasonal pattern to house prices, and it will be interesting if the SA numbers are at new lows ...





Real House Prices using Fed Reserve Stress Test Scenario

Posted: 23 Nov 2011 04:07 PM PST

Yesterday the Federal Reserve outlined the annual bank supervisory stress tests. The Fed included a stress test scenario for house prices and inflation, so we can calculate the impact on real house prices.

The stress test scenario is outlined here. The stress tests assume the unemployment rate will rise to 13% in 2013, that the Dow Jones Total Stock Market Index will decline by more than 50% from the current level. The scenario also assumes that nominal house prices will fall another 20%+.

Note: The Federal Reserve uses the CoreLogic House Price Index (Blue).

Stress Tests
Click on graph for larger image.

This graph shows real house prices through August 2011 (September for CoreLogic), and the Federal Reserves stress test scenario (blue after Q3 2011).

This scenario would take real house prices back to about mid-1984 prices in real terms (adjusted for inflation).





Europe: Italian 2 year yields above 7%, Belgian yields up sharply

Posted: 23 Nov 2011 03:05 PM PST

Yields are rising quickly ...

From Reuters: Belgian/German spreads hit euro-era highs on political deadlock

The yield premium of Belgian 10-year government bonds over German Bunds hit euro-era highs on Wednesday after a blow to prospects of forming a government left the country vulnerable to a fast-spreading debt crisis.

The highly-indebted country, which has been without a government for 18 months, suffered a further blow on Tuesday when its lead negotiator in forming an administration resigned.

From the WSJ: German Bond Auction Adds to Investor Worries on Euro Zone

A German government debt auction drew some of the weakest demand since the introduction of the euro, signaling diminishing investor appetite for even the safest euro-zone assets amid Europe's worsening debt crisis.

From the Athens News: Samaras addresses letter to creditors

In the latest move in the power game over the written commitment that EU leaders have asked Pasok and New Democracy to cosign, Antonis Samaras on Wednesday sent a letter to the European Union and IMF reiterating his support for the new prime minister and for fiscal adjustment targets.
...
He noted, however, that “certain policies have to be modified”.
...
It was not immediately clear whether the letter would satisfy the EU and IMF ... Earlier on Wednesday, German Chancellor Angela Merkel said that if Samaras did not sign, an 8bn euro bailout payment would not be released.

From Bloomberg: Three-Month Dollar Libor Reaches 0.5%, 1st Time Since July 2010

The London interbank offered rate, or Libor, for three- month dollar loans climbed to 0.50028 percent from 0.495 percent yesterday, data from the British Bankers’ Association showed. That’s the highest level since July 21, 2010.

Below is a table for several European bond yields (links to Bloomberg).

The Italian 10 year bond yield is at 6.97%; the Italian 2 year yield is up to 7.12%!

The Spanish 10 year bond yield has increased to 6.65%; the Spanish 2 year yield is up to 5.86%.

The Belgian 10 year yield is up sharply to 5.48%; the Belgian 2 year yield is 4.94%.

The Irish 10 year yield is at 8.21%. The Portuguese 10 year yield is at 11.3%.

The French 10 year bond yield is at 3.69%.





 

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Energy Efficiency / Mortgage Valuation

http://ei.haas.berkeley.edu/pdf/seminar/DOE_Valuation.pdf

 

Energy Efficiency / Mortgage Valuation

 

Sept 13

 

 

Energy efficiency is key to the future of the U.S. economy, and commercial

buildings are among the largest users of energy. However, existing loan

underwriting practices provide no incentive for building owners to make their

buildings more energy efficient. This paper proposes a commercial-mortgage

valuation and underwriting strategy that accounts for the energy risk of

individual office buildings.

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November 22, 2011

LOCAL APARTMENT REPORTS


LOCAL APARTMENT REPORTS
 

Apartment investments maintained momentum through the third quarter despite economic turbulence. Positive, though limited, employment growth blended with household "de-bundling" to drive absorption and pressure vacancies lower. As performance trends have strengthened, sales activity has increased, a trend that will likely continue as capital remains broadly available and interest rates continue to hover near record lows. With limited construction in most markets, investors are aggressively seeking acquisition opportunities in primary and secondary markets.

To help you set your investment strategy for the coming year, Marcus & Millichap offers the fourth quarter Local Apartment Reports, which provide insights, analyses and forecasts for 40 major U.S. apartment markets.

Please click here to access the Fourth Quarter 2011 Local Apartment Reports.

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 your local office to speak with an investment specialist.

Best wishes for your 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!

To change your e-mail address or update your research report distribution

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2011 FEWA Orange County Holiday Cruise




2011 FEWA Orange County Holiday Cruise
December 8, 2011


Location: Newport Harbor, aboard the Spirit of Newport Yacht

 

       We will be hosting a wonderful Newport Harbor Cruise Event on December 8, 2011 from 6-9pm aboard the Spirit of Newport Yacht, which can be seen at SpiritofNewport.net.  We will be the only group on board so that, in the event of rain or inclement weather, there will be plenty of room inside to accommodate everyone comfortably.

       Our evening will begin with sumptuous appetizers, followed by a complete dinner.  An assortment of homemade desserts will complete our holiday feast .  While we tour Newport Harbor and view all the Holiday décor, guests can take advantage of the complimentary soda and juice bar or the cash alcoholic beverage bar.  Music will be provided for your listening and dancing pleasure.

       This is a great opportunity to invite not only your significant other, but your valuable clients as well! The evening will offer an excellent time to cement relationships and create new ones

 

Please respond by December 6th, as we anticipate a large turnout for this event!

 

FEWA Members & their Guests: $125 each

Address: 2901 W. Coast Highway, Newport Beach, 92663.  Look for The Spirit of Newport on the waterfront side.  For more info, visit the spiritofnewport.net.

Times: 6:00-9:00pm
Dinner is included with salad, entrée, and dessert.  Please inform us if you prefer vegetarian options before the reservation deadline.

Reservation: Please PRINT THE RESERVATION FORM and return by mail, fax: (562) 692-3425 or email: RSVP@forensic.org

 

Cancellations are refundable prior to the reservation deadline.  Cash, Check, MasterCard, Visa, AmericanExpress accepted.
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November 21, 2011

Idaho Supreme Court Finds Procedural Due Process Violation from Insufficient Findings of Fact and Conclusions of Law by Zoning Commission

New post on LAW OF THE LAND


 


Idaho Supreme Court Finds Procedural Due Process Violation from Insufficient Findings of Fact and Conclusions of Law by Zoning Commission

by Patty Salkin

Patrick Dunn, a developer, seeking to develop land into residential lots, submitted an application the Zoning Commission.  After holding public hearings on the application, the Commission recommended that the Board of Commissioners deny the application.  The main concerns of the Commission were that there was no access to a public road because there was only an easement, that the road was a cul-de-sac and, thus, subject to further restrictions, and finally, that the application was incomplete for failure to discuss flood mitigation.  After some revision by Dunn, the Board approved the subdivision plan in a memorandum of findings of fact and conclusions of law. 

Two property owners, Jasso and Gorringe, who opposed the development, petitioned for judicial review.  The district court, after hearing the case, found that the road was a cul-de-sac, thus extra restrictions were necessary, and that the decision by the Board was arbitrary and capricious.  The district court further ordered the Board to pay Jasso and Girringe’s attorney fees.  The board appealed. 

The Supreme Court began by examining part of the Idaho Code which requires local decision makers to craft a written decision, discussing the “facts found and conclusions reached” and the “rationale underlying those findings and conclusions.”  After exploring prior case law on this section of the code, the court found that the statement must clearly state: its resolution of factual disputes, the evidence in support of its findings, and its legal support by identifying certain applicable laws or regulations.  Although the Board argued that an inadequacy may be overlooked if there is evidence to support the decision-maker’s legal and factual conclusions, the court pointed out that only the case where the decision offered by the decision-maker provides enough guidance and reasoning for their conclusions.  Here, the court found that the Board  submitted only conclusory statements with no “reasoned explanation” or grounds for their decision.  Thus, the Board’s findings did not satisfy the requirements under the Idaho Code.                              

The court then examined whether this failure by the Board violated Jasso and Gorringes’ procedural due process rights.  Procedural due process, explained the court, requires not only the opportunity to be heard, but also opportunity for judicial review.  Since the Board failed to provide Jasso and Gorringe with a basis for their decision, no court had the basis to review the decision.  Thus, procedural due process rights were violated here. 

Having decided the substance of the case, the court gave some guidance to the lower court on the actual issues.  First, the court determined that the Board lacked jurisdiction to determine the nature of any easement—regarding access to a public road—and, therefore, this determination must be made by a district court.  Second, the court determined that based on the definition of cul-de-sac, the statute is clear that the Board could have properly reached the conclusion that the street was not a cul-de-sac and, therefore, not subject to the extra requirements.  Third, the court advised the Board to make a determination concerning whether any subdivision is actually on a floodplain.  Finally, the court noted that a recent legislative amendment limits the award of attorney fees in proceedings which initiated as a civil complaint, thus, the award of attorney fees was error. 

Jasso v. Camas Ctny., 2011 WL 5299710 (Idaho 11/02/11) 

The opinion can be accessed at: http://www.isc.idaho.gov/opinions/Jasso%2037258.pdf

Patty Salkin | November 21, 2011 at 1:38 am | Categories: Current Caselaw, Due Process, Findings | URL: http://wp.me/p64kE-1vt

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Cell Towers, Shot Clocks, and Zoning: 2 Years Later

Municipal Minute

 

Cell Towers, Shot Clocks, and Zoning: 2 Years Later

Posted: 21 Nov 2011 05:00 AM PST

Most municipalitiesunderstand that cellular facilities are necessary to serve the needs ofresidents who increasingly rely on their cell phones. The need to site antennafacilities in a particular community can, however, conflict with amunicipality’s desire to preserve and protect property values and the aestheticcharacter of a community. The Telecommunications Act of 1996 was intended tostrike a balance between respect for local land use control and promotion ofcompetitive telecommunication services by establishing certain procedural andsubstantive regulations for local land use decisions on cellular facilities.

 

Two years ago, the FCCissued a ruling that clarified certain provisions in the Act. The rulingaddressed three principle issues: (1) the time-frame for local zoning authorities toact on cellular zoning applications; (2) the right of cellularservice providers to non-discriminatory treatment; and (3) whether ordinancesrequiring all cellular zoning proposals to apply for a variance are per se unreasonable.

One of the most significantissues addressed in the ruling was the establishment of a “shot clock” for amunicipality’s evaluation and decision on a zoning application. The rationalebehind the new time limits was that language in the Act requiring localgovernments to “act on any request…within a reasonable period of time,” was toovague.  A local zoning authority has 90 days (co-locations) or 150 days (allother applications) to make a final, written decision on a zoning application fora cellular facility. Once a zoning application is deemed complete, the shotclock begins to run. A municipality can have an additional 30 days to requestadditional information for the application, which tolls the clock. If amunicipality fails to act within the time frames, there is a rebuttablepresumption that the municipality has acted, or failed to act, unreasonably andthe cellular provider can bring suit.


Cases in the past two years have considered a variety of challenges by cellular providers, including claims of shot clock violations and discrimination and bias on the part of municipal officials.  Based on these cases, there are a few tips that municipalities should consider in processing, reviewing, and deciding zoning applications for cellular facilities. 


One way to avoid aclaim of unreasonable delay is for a zoning official to obtain the provider’sconsent to extensions of time. While repeated delays might test the bounds of aprovider’s patience, limited extensions for substantive purposes should begranted if the parties are acting in good faith. In at least one case, a courtheld that a provider that agreed to an extension of time was barred from makinga claim for unreasonable delay so long as a final decision was made within theextended time.

As a generalrule, courts have upheld zoning decisions by municipalities that have treatedcellular zoning applications similarly to other applications, and have appliedobjective standards in a non-discriminatory manner.  Courts have also beenreluctant to grant injunctive relief to a cellular provider solely because amunicipality violated the shot clock requirements.  However, a court might bemore favorably inclined to issue an injunction if it finds that themunicipality's delay in processing an application is based on some bias againstthe provider.  For that reason, municipalities should remind their zoning board, plan commission, and corporate authorities to review cellular zoning applications dispassionately since courts have easily seen through decisions that are rooted in a pre-existing bias against wireless facilities.  

 

Post Authored by Adam Simon.



 

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TODAY'S NEWS

November 21, 2011

TODAY'S NEWS

AFFORDABLE HOUSING

SANTA MARIA TIMES: Pismo celebrates low-income housing project

A groundbreaking ceremony was held in downtown Pismo Beach recently to celebrate the city’s first low-income housing project. The Pismo Creek Bungalows project at 360 Park Ave. will feature a 14-unit rental complex, laundry facilities, onsite parking and a common area for tenants. The project is a partnership between Pismo Beach and People’s Self-Help Housing … The property was purchased with money from the city’s inclusionary housing fund, which developers can pay into rather than building affordable units within their projects.

 

LAND USE / PLANNING / REGULATION

SAN LUIS OBISPO TRIBUNE: County plan to cut greenhouse gases locally

By David Sneed // Supervisors are set to vote Tuesday on a plan that maps out how the county would reduce its contribution to global climate change. The EnergyWise Plan focuses on reducing greenhouse gas emissions and ways to prepare for the anticipated effects of climate change. Greenhouse gases are emissions such as carbon dioxide that tend to trap the heat from the sun near the Earth’s surface. In San Luis Obispo County, the bulk of these emissions comes from vehicles, industry and homes. …

 

HOUSING MARKETS / REAL ESTATE

REDDING RECORD-SEARCHLIGHT: Housing affordability still at record levels

By Dave Benda // Sometimes lost in the gloom of plunging home values is that it's more affordable than ever to buy in Shasta County. So reiterates the latest installment of the National Association of Home Builders/Wells Fargo Housing Opportunity Index. Roughly eight of every 10 new and existing homes that sold in the third quarter in Shasta County were affordable to families earning the area's median income of $58,200, the index reported last week. …

 

MODESTO BEE: October home sales rose 1.4 percent but still weak

By Derek Kravitz // WASHINGTON -- The number of Americans who bought previously occupied homes rose slightly last month but remained at depressed levels. And more deals are being canceled at the last minute, a sign that even those who are looking to buy are worried about the housing market. Home sales rose 1.4 percent last month to a seasonally adjusted annual rate of 4.97 million, the National Association of Realtors said Monday. That's below the 6 million that economists say is consistent with a healthy housing market and slightly ahead of last year's sales - the worst in 13 years. …

 

MORTGAGE & FORECLOSURE ISSUES

BLOOMBERG.COM: BofA Clash with Fannie Mae Escalates Over Loan Buyback Stance

By Hugh Son // Bank of America Corp. (BAC) told Fannie Mae it refuses to cooperate with the U.S. mortgage firm’s new stance on loan buybacks, setting the lender up for a potential surge in claims and penalties. The bank is disputing Fannie Mae’s demand that lenders repurchase mortgages or cover any losses themselves if an insurer drops coverage, Bank of America said this month in a regulatory filing. The lender, ranked second by assets among U.S. banks, said it “does not intend to repurchase loans” under what it deems to be new rules …

 

HOMELESSNESS

HOLLISTER FREE LANCE: Officials hear 10-year plan to end homelessness

By Melissa Flores [11/16/11] // The San Benito County Board of Supervisors received a presentation Tuesday on a 10-year plan to end homelessness in the San Benito and Monterey county area - the outcome of 14 months of planning and meeting between stakeholder agencies in the region. One of the key reasons to devise the 45-page plan is so that it better positions San Benito County to apply for federal or state grant funding.

 

COMMUNITY DEVELOPMENT

SOUTHERN CALIFORNIA PUBLIC RADIO: OC may adopt mental illness law following homeless man's death

By Stephanie O’Neill // The July death of a schizophrenic homeless man after an altercation with Fullerton Police has focused attention on care for the mentally ill. Orange County supervisors might now adopt “Laura’s Law” so clinic workers can go into the streets to treat the mentally ill. Laura’s Law is in effect only in Nevada County, east of Sacramento. Officials there say it’s humane and cost-effective … The result? Laura’s Law, which allows counties, if they choose, to require medical treatment for a unique segment of the mentally ill community.

 

ECONOMY / EMPLOYMENT

HIGH DESERT.COM: Report: Positive signs for local economy

By Lynnea Lombardo // The Inland Empire was one of the first areas to see the effects of the Great Recession and remains one of the last places to see improvement. However, a new economic report indicates some positive signs for the High Desert. … The High Desert had the greatest increase in existing home sales, up 11 percent between September 2010 and this year. And while new homes sales declined an average of 19 percent in the Inland Empire, the Victor Valley only saw a 4.3 percent decline with 112 new homes sold. Underwater mortgages remain a problem.

 

SACRAMENTO BEE: Dan Walters: California's economic recovery is weak & rocky

[Opinion 11/20/11] // Technically, California's economy is recovering from the worst recession since the Great Depression. But it sure doesn't feel like it. The housing market is still in the sewer, retail sales are weak, and more than 2 million California workers are unemployed – not counting tens of thousands who have given up looking for work or are getting by with off-the-books jobs. With their families, an educated guess would be that recession still seriously affects …

 

GRASS VALLEY UNION: County unemployment -- and jobs -- down

By Trina Kleist // Unemployment in Nevada County held steady in October at 10.2 percent, down from 11 percent in October 2010. But the number of jobs also is down, and the declining rate of joblessness corresponds to a shrinking workforce, according to figures from the California Employment Development Department. That's been a continuing trend for more than a year, the figures show. The figures likely mean the unemployed are leaving the county to find jobs elsewhere. …

 

TRANSPORTATION

CONTRA COSTA TIMES: Bay Area transportation projects to be judged on benefits vs. costs

By Gary Richards // No longer is a speedier commute the primary way to assess the benefits of 90 of the most expensive transportation projects being considered in the Bay Area over the next 25 years. The Metropolitan Transportation Commission is looking at factors often ignored when assessing whether it is financially worthwhile to pay millions to widen highways and expand trains. Road fatalities and injuries, emissions reductions, the cost of owning and operating a car and even the health effects of physical inactivity are being considered in the Project Performance Assessment study…

 

SAN BERNARDINO COUNTY SUN: BLM Oks right-of-way for Victorville-to-Vegas passenger rail project

[11/18/11] // The Bureau of Land Management has given its blessing to the DesertXpress Victorville-to-Las Vegas passenger rail project. The decision authorizes a right-of-way grant to DesertXpress Enterprises LLC to construct and operate a high-speed passenger rail line on public lands between the High Desert city and the gambling mecca. … The Federal Railroad Administration estimates that the project would create more than 45,000 construction-related and 722 permanent operational jobs. About 821 acres of public land are needed for the permanent right-of-way, officials said.

 

REDEVELOPMENT / INFILL / REVITALIZATION

SACRAMENTO BEE: Is there new life for CADA's R Street warehouse project?

By Tony Bizjak // It was to be Sacramento's first "lofts living" project, bringing a touch of New York lifestyle to an industrial area a few blocks south of the state Capitol. Instead, the Capitol Lofts project at 11th and R streets has become a 13-year headache for its sponsor, the Capitol Area Development Authority [CADA] and its development partners, who have been unable to get it financed. … CADA is a joint city-state agency that promotes housing and retail south of the Capitol, similar to a redevelopment agency.

 

POPULATION

NEW YORK TIMES: Older, Suburban and Struggling, 'Near Poor' Startle the Census

By Jason DeParle, Robert Gebeloff & Sabrina Tavernise // WASHINGTON — They drive cars, but seldom new ones. They earn paychecks, but not big ones. Many own homes. Most pay taxes. Half are married, and nearly half live in the suburbs. None are poor, but many describe themselves as barely scraping by. … The Census Bureau, which published the poverty data two weeks ago, produced the analysis of those with somewhat higher income at the request of The New York Times. The size of the near-poor population took even the bureau’s number crunchers by surprise.

 

DEMOGRAPHICS / QUALITY OF LIFE

HANFORD SENTINEL: Study: 43% of county's low-income adults hungry

By Eiji Yamashita // Have you ever gone to bed hungry because you have nothing in the pantry? No canned food. No chips or bread. Nothing to tide you over until your next meal whenever that may be. That’s a miserable feeling. Now imagine that’s your life, and the life of your children, each and every day. According to data released this week, more than two out of every five low-income adults in Kings County face this predicament known as food insecurity, meaning they don’t always know where their next meal is coming from. About 21,000 low-income adults in the county …

 

REUTERS.COM: Help Wanted USA: Hiring hotspots emerge, but mobility an issue

(Reuters) - It's not like the people in Fort Wayne, Indiana aren't sympathetic with America's unemployed. It's just that they're not seeing as many of them as the rest of us. While most of the country is saddled with stubbornly high unemployment, numerous new construction projects and thousands of new jobs have made this Midwestern city of nearly 250,000 a pocket of relative prosperity. "We've gotten not only a lot of jobs, but a lot of good-paying jobs," says Andi Udris …

 

ENVIRONMENT / CLIMATE CHANGE

SACRAMENTO BEE: What will climate change mean for California?

By Matt Weiser [11/20/11] // The songbirds at the feeder outside your window are not the same as they used to be. The goldfinch, the grosbeak and even the ever-present sparrow are all a little bit bigger. The reason is climate change, according to a new study, which found that 70 bird species, all common to Central California, have evolved a longer wingspan and greater body mass over the past 40 years. … Cloern's study marks the first attempt to explain how climate change may affect habitat in an entire estuary, in this case the Sacramento-San Joaquin Delta.

 

SAN DIEGO UNION-TRIBUNE: Studies show climate change's impact on California

By Mike Lee // A spate of recent research offers new insight into how global warming is changing or could change California, from the mountains to the seashore, in both predictable and unusual ways. The studies show that common trees are fading from their current ranges, premium wine grape varieties are under siege, marine creatures are shifting locales, the hub of the state’s water system faces increasing risks and — surprisingly — birds in the state are getting bigger as the weather warms. …

 

STOCKTON RECORD: Energy Pioneer

By Alex Breitler // STOCKTON - Meet Dale Stocking - environmentalist, and guinea pig. Last spring, the city set an ambitious goal of making 8,500 homes more energy efficient by winter 2013. Stocking urged approval of that proposed ordinance. And after it passed, he decided it was only fair to start off by sealing his own drafty house. … The city's effort to seal up older homes is in harmony with state laws requiring a reduction in greenhouse gas emissions and establishing a road
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Tenant Loyalty Highest Since 2008—Use EER to Show Tenants Value

Tenant Loyalty Highest Since 2008—Use EER to Show Tenants Value

According to a recent report by Kingsley Associates, tenant loyalty is the highest it has been since 2008. There is no better incentive for a tenant to stay put than excellent operations and management, which helps to keep tenants’ total occupancy costs under control. Use the Experience Exchange Report® (EER) data to show your tenants and owners that your building outperforms the market.

More than 61 percent of tenants in U.S. office buildings intend to renew their leases, according to Q3 2011 Office Industry Trends, a newly released report by Kingsley Associates. During the four quarters starting October 1, 2010 and ending September 30, 2011, 61.3 percent of tenants indicated that they "definitely" or "probably" would renew their leases, the highest level of loyalty since the fourth quarter of 2008. Furthermore, 64.8 percent of tenants reported either "good" or "excellent" value for the amount paid in the third quarter, up from 63.9 percent last quarter.

Other signs hint at a strengthening office market. Nearly 15 percent (14.9) of tenants anticipate the need for more space, an increase of 2.8 percentage points since Q4 of 2009, the recent low. Furthermore, 37.8 percent of tenants expect to add headcount at their location.

Read the full report.

With data from more than 6,500 buildings and 278 markets and market–level reports from more than 140+ cities, the EER can be a valuable tool to help demonstrate good value to tenants.

Demonstrate superior management to your tenants and use the EER to…

  • Communicate total occupancy costs to tenants
  • Verify market data from brokers
  • Benchmark your asset’s financial performance
  • Do scenario planning and forecasting
  • Analyze and underwrite acquisitions
  • And, identify opportunities to increase operational efficiency

EER reports are available online at www.bomaeer.com. You may purchase markets individually or subscribe to all.

*EER subscriptions are valid until the next year’s EER becomes available.

Subscribe Today.
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Americas commercial real estate markets

Americas commercial real estate markets

The United States dominates the Americas commercial real estate (CRE) market with respect to legislative scope, capital markets maturity, and transaction flows. However, following the 2008-09 recession and the emergence of Latin American countries as the Americas growth engine, investors' interest in Brazil and Mexico has increased.

In the report
Americas Commercial Real Estate Markets, we examine CRE market trends across four key Americas markets - Brazil, Mexico, Canada, and the U.S. — with a focus on the comparative investment attractiveness of each country.


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November 20, 2011

Utah Supreme Court Finds No Takings Claim Where Council Properly Rescinded Ordinance

New post on LAW OF THE LAND


 


Utah Supreme Court Finds No Takings Claim Where Council Properly Rescinded Ordinance

by Patty Salkin

While in the process of finalizing purchase of a 15.359 acre parcel in Salt Lake County, Utah, L.C. Canyon requested that County officials rezone 3.543 acres of the parcel from FR 20 to FR 2.5, which would have allowed plaintiffs to construct a single-family residence on the property.  On October 18, 2005, the Salt Lake County Council approved amending the zoning map to reflect the zoning redesignation of the L.C. Canyon parcel to FR 2.5.  However, before the change took effect – which would have occurred 15 days after the ordinance’s passage—the Council decided to reconsider the approval after learning that the property was closer to Little Cottonwood Canyon than they had believed when initially voting to rezone.  One day before the change would have taken effect, the Council vote d to rescind it.  L.C. Canyon later sought a variance from the County Board of Adjustment, but the variance was denied.

L.C. Canyon filed suit against the Council, alleging that application of the FR 20 zoning designation to L.C. Canyon’s property lacked a rational basis; that the Council had overstepped its authority when it rescinded its own rezoning ordinance; and that the decision to rescind constituted a taking of L.C. Canyon’s property.  The district court found in favor of the Council, holding first that the FR 20 zone was rationally related to the County’s legitimate interests in protecting its environmental and scenic resources near Little Cottonwood Canyon.  The district court also upheld the Council’s authority to rescind its previous rezoning decision because the rescission occurred before the ordinance had become effective.  Lastly, the district court rejected the takings claim on the basis that the ordinance had not y et become effective at the time of rescission, thus any protectable interest that might have been created by the ordinance had not yet vested.  L.C. Canyon here appeals the district court’s decision.

The Utah Supreme Court upheld the district court on all three issues.  Regarding the rationality of the FR 20 zone, the court reiterated the County’s legitimate interests in protecting natural and scenic resources and noted that L.C. Canyon’s best recourse in challenging the designation was to apply for a variance.  L.C. Canyon had applied for a variance that was denied, but it never appealed that decision, which would have given it the opportunity to challenge the County’s alleged failure to consider its particularized challenge to the FR 20 zone.  However, that issue was not before the court on appeal.

On the matter of whether the County had the authority to rescind the rezoning ordinance, the court also upheld the district court’s decision.  The County had incorporated Robert’s Rules of Order into the County Code to address any procedural issues not explicitly covered by state or local law.  L.C. Canyon had challenged that ruling by pointing out that Robert’s Rule 36 should have applied to the situation, which would have given the Council only a one-day window to reconsider the rezoning ordinance.  However, the court sided with the Council, agreeing that Robert’s Rule 37 applied, which authorized the Council to rescind a vote either by a majority vote where notice of the motion to rescind has been given or by a two-thirds vote where no such notice had been given.  Since notice of the motion had been given at a prior meeting and the rescission vote received a majority vote, the rescission vote was proper.  The court pointed out that fairness was also on the side of this decision, since L.C. Canyon had not acted in reliance on the initial rezoning decision and had not incurred any liability or expense.

Regarding the takings claim, the court upheld the district court’s reasoning that any property interest created by the initial rezoning decision had not yet vested in L.C. Canyon because the necessary 15 day statutory period had not lapsed for the ordinance to become law.  Thus, at the time of rescission, L.C. Canyon had no protectable property interest which could be the subject of a takings claim.

L.C. Canyon Partners, L.L.C. v. Salt Lake County, 2011 WL 4917040 (Utah 2011). 

The opinion can be accessed at: http://www.utcourts.gov/opinions/supopin/LCCanyon101811.pdf 

For a more in depth 3-part examination of this case, see the Utah Appellate Blog at: http://www.utahappellateblog.com/2011/11/17/utah-supreme-court-l-c-canyon-partners-l-l-c-v-salt-lake-county-takings-and-changing-zoning-rules  


 

Patty Salkin | November 20, 2011 at 1:07 am | Categories: Current Caselaw, Rezoning, Robert's Rule of Order, Takings, Variances, Zoning Administration | URL: http://wp.me/p64kE-1vl

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November 19, 2011

Equipment and Fixtures Index, Percent Good and Valuation Factors (AH 581).

http://www.boe.ca.gov/proptaxes/pdf/ah58112.pdf

ASSESSORS' HANDBOOK SECTION 581,

EQUIPMENT AND FIXTURES INDEX, PERCENT GOOD AND VALUATION FACTORS

the 2012 revision of Assessors' Handbook Section 581

, Equipment and Fixtures Index, Percent Good and Valuation Factors (AH 581), was approved by the Board on November xx, 2011. The 2012 revision of AH 581 is available on the Board’s website at www.boe.ca.gov/proptaxes/prioryrs.htm. This annual revision includes updates to the equipment index and percent good factors tables. Also included are valuation factors for:

• Non-production computers (adopted by the Board in April 2009);

• Semiconductor manufacturing equipment and fixtures (adopted by the Board in October 2008);

• Biopharmaceutical industry equipment and fixtures (adopted by the Board in July 2008);

• Document processors (adopted by the Board in December 2009); and

• Offset printing presses (adopted by the Board in December 2009).

The nonproduction computers, semiconductor manufacturing equipment, and biopharmaceutical equipment valuation factor tables are a result of valuation studies conducted pursuant to Revenue and Taxation Code section 401.20. This revision also includes guidance to industry in identifying, gathering, and verifying data to submit to Board staff for the purpose of conducting a valuation study of their personal property/equipment.

All information is for use as of the 2012 lien date, January 1, 2012. The 2012 revision of AH 581 will only be available on the Board's website; no hard copies will be distributed. If you have questions regarding this publication, you may contact Mr. Isaac Cruz at 916-274-3355 or at Isaac.Cruz@boe.ca.gov.

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Equipment and Fixtures Index, Percent Good and Valuation Factors (AH 581).

http://www.boe.ca.gov/proptaxes/pdf/ah58112.pdf

ASSESSORS' HANDBOOK SECTION 581,

EQUIPMENT AND FIXTURES INDEX, PERCENT GOOD AND VALUATION FACTORS

the 2012 revision of Assessors' Handbook Section 581

, Equipment and Fixtures Index, Percent Good and Valuation Factors (AH 581), was approved by the Board on November xx, 2011. The 2012 revision of AH 581 is available on the Board’s website at www.boe.ca.gov/proptaxes/prioryrs.htm. This annual revision includes updates to the equipment index and percent good factors tables. Also included are valuation factors for:

• Non-production computers (adopted by the Board in April 2009);

• Semiconductor manufacturing equipment and fixtures (adopted by the Board in October 2008);

• Biopharmaceutical industry equipment and fixtures (adopted by the Board in July 2008);

• Document processors (adopted by the Board in December 2009); and

• Offset printing presses (adopted by the Board in December 2009).

The nonproduction computers, semiconductor manufacturing equipment, and biopharmaceutical equipment valuation factor tables are a result of valuation studies conducted pursuant to Revenue and Taxation Code section 401.20. This revision also includes guidance to industry in identifying, gathering, and verifying data to submit to Board staff for the purpose of conducting a valuation study of their personal property/equipment.

All information is for use as of the 2012 lien date, January 1, 2012. The 2012 revision of AH 581 will only be available on the Board's website; no hard copies will be distributed. If you have questions regarding this publication, you may contact Mr. Isaac Cruz at 916-274-3355 or at Isaac.Cruz@boe.ca.gov.

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FIGURE 4.3 Sample Appraisal Contract

FIGURE 4.3 Sample Appraisal Contract


Name and Address of Client

In consideration of an appraiser's fee, (name of appraiser) hereby agrees to evaluate the tangible property belonging to (person items belong to) located at (place where items are located).

The approximate completion date will be

I have agreed to pay your appraisal fee of $ on receipt of the appraisal. This fee is based on your standard appraisal charges:

Signed at: on this day of 19__.


FIGURE 4.4 Sample Letter of Agreement with Appraiser


Your Address

Date

Appraiser's Name

Address

Dear (Name):

This letter sets forth the terms of my engagement of your services as an appraiser for the (describe item[s] to be appraised). This appraisal is sought for the purpose of (reason for obtaining the appraisal).

I agree to pay you $ __________ as a retainer, which sum shall be applied against and deducted from the total fee due of $ ____________ which total sum shall be paid on presentment of a certified appraisal report (or set forth the terms of payment as discussed and agreed to with the appraiser).

You agree that the certified appraisal report that will be provided will accurately comply with all the requirements of the American Society of Appraisers. You further understand and agree that you will be responsible for all costs incurred by you in connection with your valuation of the (list the item to be appraised)

In the event of an inadequate appraisal, you further agree not to disclaim any and all liability. You agree to indemnify me and hold me harmless from any and all damages I may incur as a result of your false or inadequate appraisal.

If all of the above terms meet with your approval, please countersign both copies of this letter and return one to me. Thank you for your cooperation.

Very truly yours,

(Signature)

ACCEPTED AND AGREED:

(name of appraiser)

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New post on LAW OF THE LAND

FL Supreme Court Finds No Exactions Taking Where Permit Was Never Issued

by Patty Salkin

In 1994, Koontz sought a permit from the St. Johns River Water Management District to develop 3.7 acres of his commercial land, 3.4 acres of which were designated as wetlands. St. Johns initially agreed to recommend approval of the permit on the condition that Koontz agree to conservation and mitigation measures, either by deeding the remainder of his property to conservation and performing drainage work on other property or by reducing the amount of wetlands he planned to develop and turning the remaining wetlands into conservation areas. Koontz would not agree to the stipulations and St. Johns denied the permit.

Koontz brought an inverse condemnation claim in 1998, arguing that St. Johns had imposed an improper exaction in violation of the takings standards laid out in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994). The issues in Koontz’s case reached the Fifth District Court of Appeal four times, with courts ultimately determining that a taking had occurred and requiring that St. Johns take one of three actions: issue the permit; compensate Koontz for the taking; or modify its conditions to avoid a taking. St. Johns issued the permits after Koontz demonstrated his property contained a smaller portion of wetlands than originally thought. A circuit court then awarded $376,154 in damages to Koontz for the temporary taking of his property by St. Johns.

In St. Johns River Water Management Dist. v. Koontz, 5 So.3d 8 (Fla. 5th DCA 2009) (Koontz IV), St. Johns appealed the damage award, asserting that there had been no exaction because “nothing had been taken from Mr. Koontz,” and that the elements of an inverse condemnation had not been satisfied because the permit had been denied – St. Johns had not ultimately required any physical dedication of land because the permit negotiations involving the proposed dedication had failed. Despite these arguments, the Fifth Circuit affirmed the judgments in favor of Koontz and St. Johns filed a motion for certification of the case’s central question as one of great public importance.

In this case, the Supreme Court of Florida addressed the certified question on the applicability of the Nollan/Dolan regulatory takings rules to circumstances where the government had denied the permit sought. The question the court sought to reach was whether the Fifth Amendment recognized an exactions taking under Nollan/Dolan “where there is no compelled dedication of any interest in real property to public use and the alleged exaction is a non land use monetary condition for permit approval which never occurs and no permit is ever issued.” After examining at length the Supreme Court’s takings jurisprudence, the court concluded that the Nollan/Dolan standard applied in cases where government entities had issued a permit. However, the court declined to extend the Nollan/Dolan doctrine to situations where a permit was never issued and the exactions never implemented. The court stated that Nollan/Dolan will only apply “where the condition/exaction sought by the government involves a dedication of or over the owner’s interest in real property in exchange for permit approval; and only when the regulatory agency actually issues the permit sought, thereby rendering the owner’s interest in the real property subject to the dedication imposed.”

Since St. Johns never issued the permit to Koontz, and Koontz never undertook performance of the mitigation suggested by St. Johns, the court held that Nollan/Dolan had been erroneously applied and a taking had not occurred. Public policy also weighed in favor of this interpretation, according to the court, because finding a taking even where a permit was denied would unduly restrict government agencies’ land use regulation abilities by dramatically increasing the threat of costly litigation.

The Florida Supreme Court answered the certified question in the negative, quashed the Fifth District Court of Appeal decision in Koontz IV, and remanded the case for further proceedings.

St. Johns River Water Mgmt. Dist. v. Koontz, 2011 WL 5218306 (Fla. 11/3/2011)

The opinion can be accessed at: http://www.floridasupremecourt.org/decisions/2011/sc09-713.pdf

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November 18, 2011

Handouts Available for Municipal Law Seminar

Handouts Available for Municipal Law Seminar

Posted: 18 Nov 2011 01:27 PM PST

Ancel Glink attorneys conducted a municipal law training session for local government officials in Normal, Illinois, on November 17, 2011.  The presentations included the following topics:

 

1.  Five Easy Pieces to Employment Litigation

2.  Council and Board Practices & Procedures

3.  Zoning:  Best Practices and Legal Update

4.  Code Enforcement/Property Maintenance

 

You can download a copy of the handout materials for each of the sessions by clicking on the topic link above.
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TODAY'S NEWS

 

November 18, 2011

TODAY'S NEWS

AFFORDABLE HOUSING

CENTRAL VALLEY BUSINESS TIMES: Two Central Valley groups get millions for housing

[11/17/11] // Very low-income senior citizens and persons with disabilities will be getting affordable supportive housing thanks to a total of $749 million in housing assistance from taxpayers via the U.S. Department of Housing and Urban Development. The grants will help non-profit organizations produce accessible housing, offer rental assistance, and facilitate supportive services for the elderly and persons with disabilities.

 

THE ACORN: $90,000 state grant will help Calabasas build a new park

By Silvie Belmond // Calabasas officials plan to use a $ 90,050 California Department of Housing and Community Development grant recently awarded to the city to develop a new downtown park that will allow visitors to relax in a natural setting. The city became eligible for the grant after it contributed $1 million from its Affordable Housing Trust to build a 75-unit apartment complex dedicated to low income seniors. To qualify for the funds, officials had to pursue a park project within a half-mile walking distance of the new Canyon Creek apartments

 

Senior housing group gets big HUD grant

A group that provides affordable senior housing in Fresno and Clovis has been chosen to receive just under $10.6 million in federal grant money.

 

PETALUMA PATCH: PEP Housing receives $14 million for low-income housing

By Karina Ioffee // PEP Housing has been awarded $13.8 million from the U.S. Department of Housing and Urban Development, a part of which will be used to build new senior housing off North McDowell Boulevard.

 

HOUSING DEVELOPMENT

NATIONAL ASSOCIATION OF HOME BUILDERS: Single-Family Housing Starts, Permits Rise in October

[November 17, 2011] // Single-family housing starts rose 3.9 percent to a seasonally adjusted annual rate of 430,000 units in October, according to newly released data from the U.S. Commerce Department. This improvement was somewhat masked by an 8.3 percent decline in multifamily starts that kept the combined number for nationwide housing production virtually flat at 628,000 units in October. Meanwhile, single-family permits also posted a measurable gain of 5.1 percent to 434,000 units in the latest report, which is their fastest pace since December of 2010.

 

HOUSING MARKETS / REAL ESTATE

SAN JOSE MERCURY NEWS: Upper-end home sales sag in Bay Area

By Pete Carey [11/16/11] // Sales of upper-end homes slowed throughout the Bay Area in October, the first month of lower limits for cheaper government-backed mortgages in high-cost housing areas, DataQuick reported Wednesday. The number of homes sold for $500,000 or more dropped 20 percent from a year ago, while sales of homes priced at less than $500,000 were up by 8.8 percent over the year. October is typically a slow month, so the drop from $729,750 to $625,500 for the maximum government-backed loan …

 

DATAQUICK NEWS: Bay Area Home Sales Up From 2010, Prices Down

[11/16/11] // La Jolla, CA -- The Bay Area housing market logged another month of lackluster activity in October as some of the recent signs of incremental market improvement began to fade. High-end sales dropped markedly, likely the result of changes to “conforming loan” limits, a real estate information service reported. A total of 6,444 new and resale houses and condos sold in the nine-county Bay Area last month.

 

DATAQUICK NEWS: California October Home Sales

[11/16/11] // An estimated 34,087 new and resale houses and condos were sold statewide last month. That was down 3.7 percent from 35,404 in September, and up 4.3 percent from 32,669 for October 2010. California sales for the month of October have varied from a low of 25,832 in 2007 to a high of 70,152 in 2003, while the average is 43,528. …Distressed property sales – the combination of foreclosure resales and “short sales” – continued to make up more than half of California’s resale market.

 

SACRAMENTO BEE: Sacramento-area home sales rise but prices keep falling

By Rick Daysog // The number of single-family homes sold in the Sacramento region was up strongly in October but prices continued to fall, according to a new report. DataQuick of San Diego said today that a total of 1,732 homes were sold in Sacramento County last month, a 19.6 percent increase from the year-earlier period. Placer County's sales volume leaped 31.1 percent

 

STOCKTON RECORD: Affordable homes seem to be around every corner in S.J.

By Homes are more affordable in San Joaquin County than at any time in at least two decades. "Absolutely, 100 percent ... this is the best market we've ever seen for a buyer," said mortgage broker Don Burns of Residential Group in Stockton. The National Association of Home Builders/Wells Fargo Housing Opportunity Index shows that more than 84 percent of the homes on the market here in the third quarter were affordable to families making the area's median household income of $65,400.

 

MORTGAGE & FORECLOSURE ISSUES

LOS ANGELES TIMES: Fewer home loans going bad but foreclosures on rise

By E. Scott Reckard // Far fewer borrowers are delinquent on their home loans these days, a Mortgage Bankers Assn. report shows, but new foreclosure actions are on the rise in states like California, showing the nation still has much pain to endure before the housing crisis subsides. Private analysts say the nation is only halfway through the wrenching grip of the foreclosure epidemic. And that's reflected in the housing market, where home sales and prices continue to sag in many areas

 

CALIFORNIA WATCH: Cities increasingly use receiverships to deal with blighted homes

By Kendall Taggart // Cities throughout California are grappling with foreclosed homes and struggling or recalcitrant homeowners whose properties have become eyesores. Now, an increasing number of local authorities are initiating health & safety receiverships, a legal process in which control of the property is temporarily taken from the owner and placed with a court-appointed officer. “It’s really an emerging field and an emerging resource that cities are turning towards,” said Dean Pucci

 

ECONOMY / EMPLOYMENT

CONTRA COSTA TIMES: Bay Area to outpace state in job growth next year

By George Avalos // The Bay Area will outpace California in job growth next year, according to a new University of the Pacific forecast. Still, the Bay Area is at least two years away from recapturing the jobs lost during the recession, stated a separate forecast by Beacon Economics. "The job market has definitely hit the bottom," said Jeffrey Michael, director of the Stockton-based Business Forecasting Center at UOP.

 

CHICAGO TRIBUNE: Putting extended familes under 1 roof

By Alejandro Lazo // Home is where not only the heart is these days — but also the elderly parents, the boomerang kids and the aging-in-place boomer homeowners. To accommodate the new generations-stacked-upon-generations lifestyle spawned by one of the most severe economic downturns in decades, builder Lennar Corp. is focusing on houses with something few others on the block can boast about: another house.

 

TRANSPORTATION

Congress cuts future funding for California's bullet train
The U.S. Senate approved a package of legislation Thursday night that eliminates future funding for high-speed rail projects, including the California bullet train. The vote, coming after a similar vote in the House of Representatives, leaves the future of the ambitious state project to create a new rail system from Southern California to the Bay Area uncertain.

 

ENVIRONMENT / CLIMATE CHANGE

MERCED SUN-STAR: Merced County residents: Living in a land of risk

By Yesenia Amaro // About 1.2 million of the nearly 4 million residents living in the San Joaquin Valley face extreme levels of environmental hazards and social vulnerability that can lead to poor health, according to a study released Monday. An additional 1.9 million people face elevated levels of the same risks, the study found. In Merced County, the only community with a "very high health vulnerability" was El Nido, while Merced and Livingston have a "high health vulnerability."

 

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Public Meetings of the Appraiser Qualifications Board and the Appraisal Practices Board

Public Meetings of the Appraiser Qualifications Board and the Appraisal Practices Board are coming up near the end of this year. Please take the time to register for these meetings if you plan to attend.

  

Appraiser Qualifications Board - December 9, 2011 - Houston, Texas 


Location:

 

Omni Houston Hotel

Four Riverway, Houston, TX 77056

 

Date/Time:

 

Friday, December 9, 2011

9:00am - 12:00pm 

 

Meeting Agenda: 

-5th Exposure Draft of Proposed Revisions to the Future Real Property Appraiser Qualification Criteria

-Proposed Revisions to the Personal Property Appraiser Qualification Criteria

-Activities of the Course Approval Program

-National Licensing and Certification Examinations          

-Undergraduate/Graduate Degree in Real Estate Review Program


Lodging Accommodations:

You may make a reservation with the Omni Houston Hotel by contacting them directly at
(713) 871-8181Please note that The Appraisal Foundation no longer reserves “room blocks” for meeting attendees. Therefore, meeting attendees are responsible for making their own lodging arrangements at the best available rates.  

 

Please click the "register online" link below to register. 
If you have any questions about the meeting or the registration process, please contact Magdalene Vasquez, Qualifications Administrator, by email at magdalene@appraisalfoundation.org.

 

 

 

Appraisal Practices Board - December 12, 2011 - Atlanta, Georgia

Location:

 

The Westin Peachtree Plaza

210 Peachtree Street, Atlanta, GA 30303

 

Date/Time:

 

Monday, December 12, 2011

1:00 pm - 5:00 pm 

 

Meeting Agenda:

 

The Appraisal Practices Board (APB) was officially constituted July 1, 2010. The purpose of the APB is to issue voluntary timely guidance to appraisers on emerging valuation issues that are occurring in the marketplace. This guidance will be of assistance to appraisers, appraiser regulators and educators.

 

The following items are on the Board’s Meeting Agenda:


-Adjusting Comparable Sales for Seller Concessions

-Residential Appraising in Declining Markets

-Status of Valuation for Financial Reporting Work Groups 2 and 3 - The Valuation of Customer-Related Assets and Control Premiums for Financial Reporting 


Lodging Accommodations:


You may make a reservation with The Westin Peachtree Plaza, 210 Peachtree Street NW, Atlanta, GA 30303 by contacting them directly at (404) 659-1400. Please note that The Appraisal Foundation no longer reserves “room block” for meeting attendees. Therefore, meeting attendees are responsible for making their own lodging arrangements at the best available rates.


Please click the "register online" link below to register. 

If you have any questions about the meeting or the registration process, please contact Staci Steward, Appraisal Practices Board Administrator, by email at staci@appraisalfoundation.org.

  



 

Your online registration will assure proper seating at the meetings.

Qualifications Administrator:  Magdalene Vasquez, 202-624-3074, magdalene@appraisalfoundation.org

Practices Administrator:  Staci Steward, 202-624-3052, staci@appraisalfoundation.org

 
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November 17, 2011

MA Land Court Finds No Violation of Parking and Sign Regulations

New post on LAW OF THE LAND


 


MA Land Court Finds No Violation of Parking and Sign Regulations

by Patty Salkin

Snyder, a concerned resident, claimed city zoning officials had failed to address his neighbor’s alleged violations of residential parking and sign ordinances.  The parking ordinances mandated that property owners provide parking space for at least two vehicles per dwelling unit, but precluded landowners in residential zones from providing parking which exceeded 200 percent of the minimum requirements.  The sign ordinances put restrictions on certain types of signs, but exempted from these regulations directional signs which are installed for the purpose of “guiding, directing, warning, or regulating traffic.”

Under the city parking ordinances, the property, a single family residence with a detached two-car garage, was required to provide at least two parking spaces, but was prohibited from providing more than four spaces.  After being sued previously, and in order to comply with the parking regulations, the owners had striped the parking lot, designating four parking spots and marking “NO PARKING” on the other areas of the lot where there was space for cars to park.

Snyder had made 21 separate requests that the city enforce the parking and sign regulations, which he believed his neighbor had violated by painting “NO PARKING” on the pavement and by maintaining a parking lot which contained sufficient space to park more than four vehicles, despite the “NO PARKING” signs.  Snyder claimed that in painting “NO PARKING” on the pavement, the owners of the property had created “visual clutter and blight” which he could see from his property, that the writing constituted a sign that should have been prohibited under the city ordinances, and that the writing diminished his property value.  After the parking lot had been striped to contain only four spaces, Snyder provided photographic evidence showing that more than four vehicles had been parked there on several occasions, in vi olation of the ordinance.  Snyder also pointed out that the garage, which was unused at the time, could still accommodate two additional cars, meaning that the spaces provided on the paved lot could exceed the number allowed by the ordinance if the garage was in use.  Thus, he claimed that the property owners should be prohibited from maintaining a parking area with space sufficient to accommodate more vehicles than permitted by the statute.

On the issue of the sign, the court held that the city had acted reasonably in classifying the “NO PARKING” sign as a “directional sign” exempted from municipal sign ordinances, especially since the city had been concerned that construing the ordinance otherwise would have drawn into the purview of regulation many commonplace signs often found at residential properties, such as those containing instructions on where to leave packages or those warning visitors about dogs.  Thus, the court held that the city’s decision on the sign was entitled to deference and should be sustained.

On the issue of the parking area, the court also upheld the city’s decision to decline taking further action after receiving assurances from the property owner that the garage would not be used to store any vehicles.  The court pointed out that, contrary to what Snyder had suggested, “the ordinance does not contemplate, and certainly does not require, that every flat surface on a residential lot which might be used to park a vehicle be rendered physically unavailable for parking should the flat surface make possible the parking of a vehicle beyond the maximum number the parking area is required to provide.”  So long as the property owner did not park, or allow others to park, more than four vehicles in the parking area, the goals of the ordinance would be achieved, the court noted.  Therefore, the commitment not to park cars in the garage and her willingness to limit parking on the property to four vehicles was sufficient to meet the goals of the ordinance, and the city’s decision not to take further action on the matter was reasonable and proper.

The property owners had challenged Snyder’s standing to bring the suit and argued that their efforts to paint over the “NO PARKING” letters rendered moot Snyder’s claims about the alleged nonconforming sign.  With regard to Snyder’s standing, the court held that, since Massachusetts statute creates a presumption of aggrievement in persons such as Snyder who are entitled to notice of zoning board hearings, and since the property owners had failed to provide sufficient evidence to rebut that presumption of aggrievement by showing that Snyder suffered no particularized injury, there was standing in this case.  On the question of whether the sign violation was rendered moot by the efforts to paint over the sign, the court simply noted that the painted lettering was still visible despite the efforts to cover it.  The refore the motion to dismiss that issue for mootness was denied.

Snyder v. Arena, 2011 WL 4905590 (Mass. Land Ct. 10/17/11)                                    

The opinion can be accessed at: http://masscases.com/cases/land/2011/2011-09-404400-JUDGMENT.html

Patty Salkin | November 17, 2011 at 7:30 am | Tags: parking | Categories: Current Caselaw, Signs, Standing | URL: http://wp.me/p64kE-1vg

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November 16, 2011

Real Estate - Residential

$784K Verdict Against Insurance Grinch Who Stole Christmas

A woman whose house burned down at Christmastime 2009 has won a $784,000 jury verdict against her homeowner's insurer. The verdict included an 18 percent...more

by Lawyers.com

 

Condominium Developer Cannot Enforce CC&R's After Selling All Units: Promenade at Playa Vista Homeowners Association v. Western Pacific Housing, No. B225086 (2nd Dist. November 8, 2011)

This month the Second District Court of Appeal concluded that the developer of a condominium complex lacked standing to enforce the declaration of covenants,...more

by Sheppard Mullin Richter & Hampton LLP

 

How to File Bankruptcy in About an Hour

Lately I have had quite a few people come in lately who need to file for bankruptcy and need to file it RIGHT NOW! The typical things that usually require a...more

by John Skiba

 

What Happens to the Mortgage when Property is Transferred to Beneficiaries at Death?

Generally speaking, if you transfer a piece of real property subject to a mortgage to another person, that transfer violates the "due on sale" clause in your...more

by Fein, Such, Kahn & Shepard, P.C.

 

Can I File My Own Bankruptcy in Phoenix? Just Say No.

Recently the court released information on the number of people who represent themselves in bankruptcy. Arizona ranked third overall in number of "pro se"...more

by John Skiba

 

New Mortgage Servicing Practices

New Mortgage Servicing Practices NYS Banking Department now requires new mortgage servicing practices. Within the last few months, some of the largest...more

by Jonathan Foxx

 

Smith Law Group - Fall 2011 Newsletter

In This Newsletter: - SLG Assists in Jury Trial Victory - Firm Wins Discovery Mandamus - Amicus Curiae's Position Prevails - Other Noteables -...more

by Smith Law Group, P.C.

 

Supreme Court to Decide Fair Housing Act “Disparate Impact” Case with Broader Fair Lending Implications

On Monday, the U.S. Supreme Court agreed to decide whether “disparate impact” discrimination claims are cognizable under the federal Fair Housing Act (FHA)...more

by Sutherland Asbill & Brennan LLP

 

Going, Going, Gone . . . California’s Solar Incentives for Builders/Developers . . . Don’t Delay . . .

Over the past few months the California Energy Commission has reported a substantial increase in the number of rebate reservation applications received for New...more

by Luce Forward

 

Foreign Investment in South Florida Real Estate: Good and Getting Better According to International Conference of Real Estate Experts

Foreign investment in South Florida is growing and industry experts are predicting that next year, in 2012, there will be even more international interest in...more

by Rosa Eckstein Schechter

 

Going, Going, Gone . . . California Solar Incentives for Builders/Developers . . . Don't Delay . . .

Over the past few months the California Energy Commission has reported a substantial increase in the number of rebate reservation applications received for New...more

by Kathleen Carpenter, Esq.

 

Tackling Pollution Exclusions To Chinese Drywall Claims

Originally published in Insurance Law360 - November 8, 2011. Federal and state courts in Virginia, Florida, and Louisiana have now published at least...more

by Zelle Hofmann Voelbel & Mason LLP

 

Who Owns Shale Gas? PA Superior Court Decision Creates Uncertainty

As many property owners throughout Pennsylvania Marcellus Shale counties have learned in recent years, ownership of the surface does not necessarily include...more

by McNees Wallace & Nurick LLC

 

Arizona Insurance Department Places PMI Mortgage Insurance Company Into Receivership

On October 20, 2011, the Director of the Arizona Department of Insurance filed a Complaint to place PMI Mortgage Insurance Company (PMI) into receivership in...more

by Reed Smith

 

Important Changes to Federal Bankruptcy Rules Effective December 1, 2011 by Patricia Antonelli, Esq.

Mortgage holders and servicers should prepare for important changes to Federal Bankruptcy Rules of Procedure ("FRBP"), effective December 1, 2011, including...more

by Partridge Snow & Hahn LLP

 

Co-housing Provides Opportunity for More Sustainable Communities

In some California communities, the recent trend to build mixed use developments has morphed into “co-housing,” the practice in which homes are built to share...more

by Allen Matkins Leck Gamble Mallory & Natsis LLP

 

New York State Bans Private Transfer Fee Obligations; Joins Majority

On September 23, 2011, New York Governor Andrew Cuomo signed into law Senate Bill 5203A and Assembly Bill 7358A, codified as the “Private Transfer Fee...more

by Cole Schotz

See more Real Estate - Residential articles »

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TODAY'S NEWS

November 16, 2011

TODAY'S NEWS

AFFORDABLE HOUSING

REAL ESTATE RAMA: Enterprise Closes $8.3 Million LIHTC Deal to Build 47 Units of Affordable Housing in Santa Monica

[Press Release: 11/15/11] // SANTA MONICA, CA – (RealEstateRama) -- Enterprise Community Investment, Inc. (Enterprise) today announced it has closed an $8.3 million Low Income Housing Tax Credit (Housing Credit) syndication deal to help Community Corporation of Santa Monica (CCSM) build High Place West Apartments, which will offer 47 units of affordable housing. High Place West will enable families earning 35 percent to 60 percent of area median income

 

HOUSING DEVELOPMENT

ROSEVILLE PRESS TRIBUNE: New home construction continues in region

By Toby Lewis // In the midst of a volatile real estate market, some new home construction projects are still moving forward in Granite Bay and Roseville. Premier Homes, who recently partnered with Canadian firm United Communities to form Premier United Communities, is working on a project for several single family homes in West Colonial Estates, near South Cirby Way and Old Auburn Road.

 

LAND USE / PLANNING / REGULATION

MARIN INDEPENDENT JOURNAL: Marin Voice: New housing blueprint for Mill Valley

By Dennis H. Klein & David Levin [Opinion] // THE Mill Valley Affordable Housing Committee is a group of local citizens who actively promote affordable housing in Mill Valley and Southern Marin. As we all recognize, addressing the critical lack of affordable housing in our community is not possible without support from our citizens and local government officials. Many state and federal laws require specific actions that would support affordable housing in Marin, but these requirements have not been met

 

HOUSING MARKETS / REAL ESTATE

CALIFORNIA ASSOCIATION OF REALTORS: C.A.R. October sales and price report

[Press Release: 11/15/11] // LOS ANGELES -- California home sales posted a marginal increase in October and also were above year-ago levels, according to figures released today from the CALIFORNIA ASSOCIATION OF REALTORS® (C.A.R.).  Closed escrow sales of existing, single-family detached homes in California edged up to a seasonally adjusted 493,240 units in October, up 0.9 percent from a revised 488,700 in September, according to information collected by C.A.R. from more than 90 local

 

DATAQUICK NEWS: Southland Home Sales Inch Up from 2010; Median Price Down Again

[Nov. 15, 2011] // La Jolla, CA -- Southland home sales rose slightly in October compared with a year earlier but were still nearly 30 percent below the long-term average. The region’s median sale price dipped to its lowest level since January as activity above $500,000 fell sharply, distressed property sales rose slightly and mortgage availability worsened, a real estate information service reported. A total of 16,829 new and resale houses and condos sold in Los Angeles, Riverside, San Diego, Ventura, San Bernardino and Orange counties in October.

 

SAN FRANCISCO CHRONICLE: Congress may restore home-loan limit to $729,750

By Kathleen Pender // Congress will decide this week whether to reinstate the limit on government-backed home loans in high-cost areas to $729,750. The so-called conforming-loan limit dropped to $625,500 on Oct. 1. Although the odds of passage have fallen in the past week, FBR Capital Markets analyst Edward Mills says they are still better than 50-50.

 

MORTGAGE & FORECLOSURE ISSUES

MARKET WATCH.COM: Fremont Bank Encourages Homeowners to Take Advantage of the Upcoming Home Affordable Refinance Program Enhancements

[Press Release: 11/14/11] // FREMONT, Calif. (BUSINESS WIRE) -- Fremont Bank, a leading full-service mortgage lender in California, recently announced that it will be an early adopter of the enhanced Home Affordable Refinance Program (HARP 2.0) as announced in the October 24th news release by the Federal Housing Finance Agency (FHFA). HARP allows Fannie Mae and Freddie Mac borrowers who owe more than their home is worth to take advantage of historically low interest rates …

 

COMMUNITY DEVELOPMENT

THE DESERT SUN: Indio neighborhoods get $1.5 million facelift

By Xochitl Peña // INDIO -- Three of Indio's oldest neighborhoods have received almost $1.5 million in improvements -- and more are coming soon for other areas of the city. The Waller and Indio Terrace neighborhoods, north of Avenue 44, are the city's latest targets. Plans are to spend a combined $500,000 to make those areas more presentable thanks to the city's Better Neighborhoods Program funded with Community Development Block Grant funds.

 

REDWOOD TIMES: County receives grants for housing, micro-enterprise, and Alderpoint water project

By Virginia Graziani // The Alderpoint Community Water District will be one step closer to making needed improvements to its drinking water filtration system, thanks to a Community Development Block Grant, part of a funding package recently awarded to Humboldt County by the California Department of Housing and Community Development.  Alderpoint CWD will receive $70,000 for site investigation and pilot testing of filtration methods needed so that the district can then apply a much larger grant/loan package to complete the project.

 

ECONOMY / EMPLOYMENT

SACRAMENTO BEE: California's enterprise zone program lets companies cash in on existing workers

By Kevin Yamamura // As California struggles to combat an 11.9 percent unemployment rate, a $581 million economic development program designed to create jobs has drawn scrutiny for rewarding companies that hired workers years ago.

 

TRANSPORTATION

SAN JOSE MERCURY NEWS: Critics, proponents debate high-speed rail proposal at public hearing in Palo Alto

(AP) // PALO ALTO -- Supporters and opponents of an ambitious, multibillion-dollar plan to build a high-speed rail line in California got their first chance Tuesday to bring their opinions to lawmakers, who held a public hearing that at times got testy as environmental, economic and industrial concerns collided. The bullet train under consideration would link San Francisco and Anaheim, and include the Central Valley.

 

REDEVELOPMENT / INFILL / REVITALIZATION

BUSINESS WEEK: California seeks ruling to use development funds for budget

By Karen Gullo // California, seeking to avoid a shortfall in money for schools, roads and fire departments, asked the state’s highest court to uphold two laws allowing it to seize $1.7 billion from state redevelopment agencies.

 

NATIONAL HOUSING NEWS

TIME: What the Government could still do to help housing

By Tara-Nicholle Nelson // Earlier this month, President Obama announced tweaks to the Home Affordable Refinance Program (or HARP), which was designed to help homeowners refinance underwater homes but so far had helped only 838,000 of the 5 million homeowners at whom it was aimed.



LOANSAFE.ORG: Housing must be a national priority

By Alex Ferreras // The struggling housing market needs to be a priority on the nation’s public policy agenda, because housing and homeownership issues affect all Americans. That was the message from speakers at the Legislative and Political Forum yesterday at the 2011 Realtors(R) Conference & Expo.

 

LOS ANGELES TIMES: California should make that mortgage deal (Opinion)

State and federal attorneys have been negotiating with more than a dozen major national banks for months to settle claims that the banks' mortgage-servicing arms improperly foreclosed on homeowners. The negotiations are approaching a make-or-break point, and success could hinge on whether California Atty. Gen. Kamala Harris signs on to the proposed settlement.


POPULATION

CENTRAL VALLEY BUSINESS TIMES: Mover rate reaches record low

[Nov. 15, 2011] // Fancy free they may be, but footloose Americans are not. At least, not as much, according to new reports Tuesday from the U.S. Census Bureau. The percentage of people who changed residences between 2010 and 2011 ─ 11.6 percent ─ was the lowest recorded rate since the Census Bureau began collecting statistics on the movement of people in the United States in 1948.

 

ENVIRONMENT / CLIMATE CHANGE

VENTURA COUNTY STAR: Eye on the environment: New program promotes energy efficiency
For many in Ventura County, these issues are familiar: a utility bill that is too high, a home that is hard to keep comfortable and a local economy stuck in neutral. Last week, Ventura County homeowners gathered at the Camarillo Ranch to hear about Energy Upgrade California, a new statewide program that enables homeowners to create a more comfortable living environment, watch their utility bills go down and help create and sustain local green jobs.

 

 

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November 15, 2011

Moving to Opportunity for Fair Housing Demonstration Final Impacts Evaluation

Moving to Opportunity for Fair Housing Demonstration Final Impacts Evaluation

Icon image of Moving to Opportunity for Fair Housing Demonstration Final Impacts Evaluation. HUD recently released the “Moving to Opportunity for Fair Housing Demonstration Final Impacts Evaluation.” The final report details the findings of a 15-year, experimental study that examined the effects of moving from public housing developments to neighborhoods with lower poverty rates on adults and children in five U.S. cities. The research measured outcomes related to mobility, neighborhood and housing conditions, social networks, mental and physical health, economic self-sufficiency, risky and criminal behavior, and educational attainment.

Overall, the demonstration shows that housing vouchers provide expanded access to neighborhoods where poverty rates are lower and residents feel safer. In addition, women in the program who moved to neighborhoods with poverty rates less than 10 percent (the “experimental group”) were less likely to develop diabetes and extreme obesity compared to women in the control group who were not given vouchers to move. Moving did not result in less reliance on public assistance or improved economic outcomes, nor did it improve educational attainment in children.

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L.A. Dealmakers holiday

The L.A. Dealmakers holiday event is coming up on Wednesday, November 30, so mark your calendars and make sure to register.  There’s no charge to attend and we're expecting over 500 guests, including our friends in development, acquisitions, lending, JV equity, etc. 

Attached is the invite, and registration is at www.ladealmakers.com/holiday 

Forward the link to friends too - the more the merrier! We look forward to seeing you there.

Regards,
Jake

Jake Little
L.A. Dealmakers
Jake@ladealmakers.com

Note: If you’d like to be removed from our invite list just reply to this email and let us know.

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Sewer Tax Discrimination Case to be Decided by Supreme Court

Municipal Minute

 

Sewer Tax Discrimination Case to be Decided by Supreme Court

Posted: 15 Nov 2011 06:25 AM PST

The U.S. Supreme Court will hear the appeal of a tax discrimination case against the City of Indianapolis in Armour, et al., v. Indianapolis, et al.  This case grows out of sewer tax assessments on residents of the Northern Estates subdivision.   When the City made plans for a new sanitary sewer project, it provided homeowners with the option of paying the taxes up-front or by way of an installment plan over a period of years.  Owners of 31 parcels opted to pay the entire amount up-front, while the remaining subdivision owners chose to pay the sewer tax in installments.

 

Subsequently, the City Council adopted a new plan to finance the sewer project that would impose a flat fee per dwelling to connect to the sewer system.  In adopting the new plan, the City abandoned the existing tax assessment system and decided to forgive all assessment amounts that remained due from the homeowners.  As a result, the owners of 142 parcels in the Northern Estates Subdivision no longer needed to pay any more installments of the assessments.  The 31 owners who had paid the sewer assessments up-front requested that the City refund those assessments, and when the City refused, the homeowners brought suit. 

 

The Indiana Supreme Court ruled in favor of the City, holding that the City did not violate the Equal Protection Clause because forgiving only the outstanding assessment balances was rationally related to a legitimate governmental interest.  The Indiana Court accepted the City's justifications for the new financing plan, including that (1) the original financing plan imposed financial hardships on middle- and low-income property owners who were in need of sanitary sewers due to failing septic systems and (2) the owners who had paid the sewer assessments up-front were financially better off so the two groups of owners (those who paid up-front and those who opted for the installment plan) were not on equal legal footing and did not need to be treated equally.

 

This case should be of interest to municipalities in setting taxing and other assessment rates that might differ between classes of people or properties.  



 

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Cal Supremes: Lender's Withdrawal Of Condemnation Deposit Does Not Waive Property Owner's Defenses

Cal Supremes: Lender's Withdrawal Of Condemnation Deposit Does Not Waive Property Owner's Defenses

Posted: 14 Nov 2011 06:53 PM PST

This just in: In Los Angeles County Metro. Trans. Auth. v. Alameda Produce Market, LLC, No. S188128 (Nov. 14, 2011), the California Supreme Court held:

Under California's "quick-take" eminent domain procedure, a public entity filing a condemnation action may seek immediate possession of the condemned property upon depositing with the court the probable compensation for the property. (Mt. San Jacinto Community College Dist. v. Superior Court (2007) 40 Cal.4th 648, 653 (Mt. San Jacinto); see also Code Civ. Proc., §§ 1255.010, 1255.410.) Any defendant in the condemnation action — which includes anyone the public entity knows to have or claim an interest in the property (§ 1250.220, subd. (a)) — may apply to the court to withdraw all or any portion of the deposit (§ 1255.210). Section 1255.260 provides that, "[i]f any portion" of the deposit "is withdrawn, the receipt of any such money shall constitute a waiver by operation of law of all claims and defenses in favor of the persons receiving such payment except a claim for greater compensation." The Court of Appeal in this case held that, under this statute, if a lender holding a lien on condemned property applies to withdraw a portion of the deposit, and the property owner does not object to the application, the lender’s withdrawal of a portion of the deposit constitutes a waiver of the property owner’s claims and defenses, except a claim for greater compensation. We find that the Court of Appeal‘s conclusion is inconsistent with the relevant statutory language and framework. We therefore reverse the Court of Appeal's judgment.

Slip op. at 1-2 (footnote omitted).

We'll review the opinion and post more when we get a chance. But this looks about right.

Los Angeles County Metro. Trans. Auth. v. Alameda Produce Market, LLC, No. S188128 (Nov. 14, 2011)  

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November 14, 2011



Professional Liability Lawsuits
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As receiver for a failed financial institution, the FDIC may sue professionals who played a role in the failure of the institution in order to maximize recoveries. These individuals can include officers and directors, attorneys, accountants, appraisers, brokers, or others. Professional liability claims also include direct claims against insurance carriers such as fidelity bond carriers and title insurance companies.

The FDIC follows the policies adopted by the FDIC Board in 1992, Statement Concerning the Responsibilities of Bank Directors and Officers, which can be found at http://www.fdic.gov/regulations/laws/rules/5000-3300.html#fdic5000statementct, and require Board approval before actions are brought against directors and officers.

Professional liability suits are only pursued if they are both meritorious and cost-effective. Before seeking recoveries from professionals, the FDIC conducts a thorough investigation into the causes of the failure. Most investigations are completed within 18 months from the time the institution is closed. Prior to filing the claim, staff will attempt to settle with the responsible parties. If a settlement cannot be reached, however, a complaint will be filed, typically in federal court.

As receiver, the FDIC has three years for tort claims and six years for breach-of-contract claims to file suit from the time a bank is closed. If state law permits a longer time, the state statute of limitations is followed.

Professionals may be sued for either gross or simple negligence. The Supreme Court has ruled that the FDIC may pursue simple negligence claims against directors and officers if state law permits (Atherton v. FDIC). Federal law preempts state law that insulates directors and officers from gross negligence or worse conduct. Bank directors are allowed to exercise business judgment without incurring legal liability.

Not all bank failures result in Director and Officer (D&O) lawsuits. The FDIC brought claims against directors and officers in 24 percent of the bank failures between 1985 and 1992.

From 1986 through 2009, the FDIC and Resolution Trust Corporation collected $6.2 billion from professional liability claims. Over that same time, they spent $1.5 billion to fund all professional liability claims and investigations. Early in the process of professional liability claims, expenses will often exceed recoveries due to the costs incurred in handling new investigations. Professional liability program recoveries lag expenses by several years until settlements occur and judgments are awarded.

As of November 14, 2011, the FDIC has authorized suits in connection with 37 failed institutions against 340 individuals for D&O liability with damage claims of at least $7.6 billion. This includes 16 filed D&O lawsuits (2 of which have settled) naming 124 former directors and officers. The FDIC also has authorized 23 other lawsuits for fidelity bond, insurance, attorney malpractice, appraiser malpractice, and RMBS claims. In addition, 177 residential mortgage malpractice and fraud lawsuits are pending, consisting of lawsuits filed and inherited.

For additional background on Professional Liability Suits, please see Chapter 11 of "Managing the Crisis: The FDIC and RTC Experience" http://www.fdic.gov/bank/historical/managing/history1-11.pdf.

Authorized D&O DefendantsDamage Claims ($ millions)*
Authorized through 2010109$2,488.9
January 201110$60.2
February 201111$15.0
March 201128$1,007.9
April 201129$198.2
May 201121$92.7
June 201130$2,895.9
July 201110$54.6
August 201118$33.9
September 201128$375.1
October 201114$125.1
November 201132$217.1
Total340$7,564.6

*Losses typically exceed these amounts and may result in higher damage claims in filed lawsuits. Recovery on these claims is dependent upon available recovery sources, such as insurance and personal assets, and competing claims.

D&O Suits Filed

  1. FDIC as Receiver of IndyMac Bank, F.S.B. v. Van Dellen, et al., Case No. 2:10-cv-04915-DSF-SH (U.S. District Court for the Central District of California Filed Jul. 2, 2010).
  2. FDIC as Receiver of Heritage Community Bank v. Saphir, et al., Case No. 1:10-cv-07009 (U.S. District Court for the Northern District of Illinois Filed Nov. 1, 2010).
  3. FDIC as Receiver of 1st Centennial Bank v. Appleton, et al., Case No. 2:11-cv-00476-DDP-PLA (U.S. District Court for the Central District of California Filed Jan. 14, 2011).
  4. FDIC as Receiver of Integrity Bank of Alpharetta, GA v. Skow, et al., Case No. 1:11-cv-0111 (U.S. District Court for the Northern District of Georgia Filed Jan. 14, 2011).
  5. FDIC as Receiver of Corn Belt Bank and Trust Company v. Stark, et al., Case Number 3:11-cv-03060-JBM–BGC (U.S. District Court for the Central District of Illinois Filed Mar. 1, 2011).
  6. FDIC as Receiver for Washington Mutual Bank v. Killinger, et al., Case No. 2:11-cv-000459 (U.S. District Court for the Western District of Washington Filed Mar. 16, 2011).
  7. FDIC as Receiver for Wheatland Bank v. Spangler, et al., Case No. 10-cv-4288 (U.S. District Court for the Northern District of Illinois Filed May 5, 2011).
  8. FDIC as Receiver of IndyMac Bank, F.S.B. v. Perry, Case No. 11-cv-5561-ODW-MRWx (U.S. District Court for the Central District of California Filed Jul. 6, 2011).
  9. FDIC as Receiver of Haven Trust Bank v. Briscoe, Case No. 1:11-mi-99999-UNA (U.S. District Court for the Northern District of Georgia Filed Jul. 14, 2011).
  10. FDIC as Receiver of Michigan Heritage Bank v. Cuttle, Case No.2:11-cv-13422-BAF-MKM (U.S. District Court for the Eastern District of Michigan Filed Aug. 8, 2011).
  11. FDIC as Receiver of The Columbian Bank and Trust Co. v. McCaffree, Case No. 2:11-cv-02447-JAK-KGS (U.S. District Court for the District of Kansas Filed Aug. 9, 2011).
  12. FDIC as Receiver for Cooperative Bank v. Willetts, Case No. 7:11-cv-00165-BO (U.S. District Court for the Eastern District of North Carolina Filed Aug. 10, 2011).
  13. FDIC as Receiver for Silverton National Bank, N.A. v. Bryan, Case No. 1:11-cv-02790-JEC (U.S. District Court for the Northern District of Georgia Filed Aug. 22, 2011).
  14. FDIC as Receiver for First National Bank of Nevada v. Dorris, Case No. 11-cv-01652-GMS (U.S. District Court for the District of Arizona Filed Aug. 23, 2011).
  15. FDIC as Receiver for Alpha Bank v. Blackwell, Case No. 11-cv-3423 (U.S. District Court for the Northern District of Georgia Filed Oct. 7, 2011).
  16. FDIC as Receiver for Mutual Bank v. Mahajan, Case No: 1:11-cv-07590 (U.S. District Court for the Northern District of Illinois Filed Oct. 25, 2011).
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Changes For CA Real Estate Licensees Come 2012

Changes For CA Real Estate Licensees Come 2012

Monday, November 14, 2011

Effective Jan. 1, 2012 the California Real Estate Commissioner may issue citations to unlicensed persons the commissioner believes to be engaging in activities for which a real estate license is required or to licensees who are in violation of any provision of the Real Estate Law or any rule or order thereunder.

http://www.nationalmortgagenews.com/columns/changes-ca-real-estate-licensees-1027464-1.html?ET=nationalmortgage:e2028:22143a:&st=email&utm_source=editorial&utm_medium=email&utm_campaign=NMN_Fraud_Prevention_111411

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TODAY'S NEWS

November 14, 2011

 

TODAY'S NEWS

HOUSING DEVELOPMENT

PALO ALTO ONLINE: Equity prepares to buy East Palo Alto apartments

By Gennady Sheyner // Despite protests from the community and concern from the City Council, Wells Fargo Bank is now finalizing its sale of more than 1,800 housing units in East Palo Alto to a single buyer with a nationwide portfolio. The firm Equity Residential announced Friday that it is preparing to take ownership of the Woodland Park housing portfolio that was previously owned by the Palo Alto-based company Page Mill Properties. … The company, according to the statement, plans to operate the apartment community "with a commitment to maintaining its status as affordable, workforce housing in a region with a lack of available alternatives in this category of housing."

 

LAND USE / PLANNING / REGULATION

SAN BENITO PINNACLE: City spikes some developer fees, drops others

[11/11/2011] // Hollister City Council members on Monday voted 3-2 to approve new traffic impact fees for developers in a move that would drastically drop levies for residential units while spiking currently non-existing fees for commercial projects and others. Council members approved the fees associated with a "traffic impact nexus study" from a consultant hired by the Council of San Benito County Governments. That study is designed to link impact fees - which go toward road improvements - to the cost of new development. …

 

SAN DIEGO UNION-TRIBUNE: Train station parking holds key to Solana Beach project

By Jonathan Horn [11/12/11] // SOLANA BEACH -- Take notice the next time you drive to the Cedros Avenue train station in Solana Beach. You could be contributing to the eventual redevelopment of the coastal city’s major hub. That’s because Solana Beach and the North County Transit District this month began a study that ultimately could pave the way for a new commercial and residential development at the Cedros Avenue train station. The key piece of information they need is how locals and those from around the region use the center’s parking lot …

 

LOS ANGELES TIMES: Firms turning to environmental law to combat rivals

By Nicholas Riccardi // To halt a competing project near USC, Conquest Student Housing turned to a legal weapon that one of its co-owners allegedly compared to a crude bomb: cheap and destructive. Conquest owned 17 buildings that rented to USC students. When the developer Urban Partners proposed erecting a new complex to house 1,600 students, Conquest sued under California's landmark environmental law. It then filed similar challenges to unrelated Urban Partners projects elsewhere …

 

SACRAMENTO BEE: Dan Walters: Data differ greatly in California property tax debate

[Opinion] // It's amazing that more than three decades after its passage, Proposition 13 is still such a polarizing political symbol. Those on the right revere Proposition 13 for slashing property taxes and making it more difficult to raise other taxes, while those on the left see it as political deviltry, denying sustenance to vital public services. The latter know that a frontal assault would fail. …

 

HOUSING MARKETS / REAL ESTATE

LOS ANGELES TIMES: More Californians able to afford homes

By Alejandro Lazo [11/11/2011] // It's the silver lining of falling home prices: With low interest rates and cheaper housing, the percentage of Californians who could afford to buy a home increased in the third quarter, a real estate group said. The portion of households that could afford a home priced at the statewide median of $292,120 rose to 52%, up from 51% in the previous quarter, according to an index released Thursday by the California Assn. of Realtors. …

 

SAN FERNANDO VALLEY BUSINESS JOURNAL: Housing Affordability on the Rise in California, Industry Group Says

By Andrew Khouri // Low home prices and interest rates in California are making homes increasingly affordable for potential buyers, the California Association of Realtors said Thursday. During the third quarter, the number of home buyers who could afford a $292,120 single-family home — the state-wide median — was 52 percent, a one percent increase from the previous quarter, the organization said. Still tight lending restrictions are holding back purchases. …

 

CALIFORNIA ASSOCIATION OF REALTORS: C.A.R. releases Q3 Housing Affordability Index

[Press Release: 11/10/11] // LOS ANGELES -- Lower home prices and record-low interest rates in the third quarter of 2011 contributed to an improvement in housing affordability for California home buyers, the CALIFORNIA ASSOCIATION OF REALTORS® (C.A.R.) reported today.  The percentage of home buyers who could afford to purchase a median-priced, existing single-family home in California rose to 52 percent in the third quarter of 2011, up from 51 percent in second-quarter 2011 and was up from 46 percent in the third quarter of 2010 …

 

STOCKTON RECORD: Dorm with a view

By Scott Smith // STOCKTON - Rooms atop the glitzy University Plaza Waterfront Hotel hardly resemble your traditional college dorm. After all, they come with dazzling views of Stockton's waterfront and periodic housekeeping. The hotel's owner, Patrick Willis, spent $2.5 million transforming the upper floors with designs to lure University of the Pacific students who couldn't get on-campus housing. In addition to remodeling the rooms, he's wired the entire hotel with Wi-Fi …

 

FORECLOSURE ISSUES

HUNTINGTON NEWS.NET: College Students in Merced, CA Rent Underwater McMansions, Saving Money, Annoying Neighbors

By David M. Kinchen // If California didn't exist, somebody would have to invent it -- it's that different from most other places. I speak from experience living there from 1976 to 1992 -- most of that time spent covering real estate at the Los Angeles Times.  So I wasn't surprised when I read in The New York Times about students at the University of California-Merced saving money that would be spent on expensive dormitories deciding to rent foreclosed houses -- often ending up spending as little as $200 a month rent for luxurious digs with swimming pools and Jacuzzis and separate bedrooms …

 

NEW YORK TIMES: Animal McMansion: Students Trade Dorm for Suburban Luxury

By Patricia Leigh Brown [11/12/11] // MERCED, Calif. — Heather Alarab, a junior at the University of California, Merced, and Jill Foster, a freshman, know that their sudden popularity has little to do with their sparkling personalities, intelligence or athletic prowess. … Here in Merced, a city in the heart of the San Joaquin Valley and one of the country’s hardest hit by home foreclosures, the downturn in the real estate market has presented an unusual housing opportunity for thousands of college students.

 

FAIR HOUSING

SACRAMENTO BEE: New rules aim to simplify refinancing for troubled homeowners

By Susan Tompor [Detroit Free Press] // If you are a troubled homeowner hoping to refinance, pay attention next Tuesday as details come out on a new federal program that could make it easier starting in late December or early in 2012. In the meantime, be sure you keep up with your mortgage payments so that you can qualify for the new deal. …

The revised Home Affordability Refinance Program could apply to a broader base of people.

 

SAN FRANCISCO CHRONICLE: Mortgage fraud: State a holdout in bank settlement

By Andrew S. Ross [11/13/11] // With all due respect to the Occupy Wall Street movement and its local offshoots, there are some real battles being waged on behalf of members of the 99 percent that have little do with tent encampments, general strikes and shutting down the Port of Oakland. Take the case pitting California Attorney General Kamala Harris against the combined forces of the Obama administration and the nation's biggest banks. Harris said Sept. 30 that she would not be party to a proposed …

 

HOMELESSNESS

LOS ANGELES TIMES: Formerly homeless, they know whereof they speak

By Nita Lelyveld // Don't just walk by quickly, looking straight ahead. If you notice a person living on the street, don't pretend you don't. That's what Victor Rodriguez chose to say to a group gathered downtown one evening last week to hear from people who once were homeless and who know how it feels not to be seen. Rodriguez, 52, now lives in the Dewey Hotel Apartments, operated by the Skid Row Housing Trust …

 

NEW AMERICA MEDIA.ORG: San Francisco's Homeless Black Youth Invisible

By Peter Schurmann // SAN FRANCISCO – At 18, Valerie Klinker was kicked out of her grandmother’s house in San Francisco’s Fillmore District. Despite being without a roof, alternating from parks to cars to SROs, Klinker says she never identified as homeless, a fact that, in the eyes of the city, made her all but invisible. Indeed, advocates for homeless people here say there is a growing number of young African Americans who, like Klinker, are becoming homeless as the ongoing recession and nationwide trend of urban black flight erodes access to traditional safety nets. It’s a trend, they add, that’s happening largely under the city’s radar. …

 

COMMUNITY DEVELOPMENT

SMART MONEY.COM: New Options for Gay Retirees

By Catey Hill // Not too long ago, there was no such thing as a gay retirement community in America. But as the number of retirement facilities which cater specifically to seniors with a common interest, hobby or trait has multiplied, so too have the options for gays and lesbians. There are currently about a dozen seniors-only housing developments that are marketed specifically to gays and lesbians, says Andrew Carle, the founding director of the senior housing administration at George Mason University. That's up from just a few a decade ago. …

 

ECONOMY / EMPLOYMENT

U.O.P. EBERHARDT SCHOOL OF BUSINESS: California and Metro Forecast November 2011

Press Release: 11/11/2011 // (Stockton, Calif.) – The economic outlook for California over the next two years has deteriorated according to the most recent report from the Business Forecasting Center at the University of the Pacific. Real Gross State Product is forecast to grow 1.5% in 2012 and 2.2% in 2013 before picking up to a 3.5% to 4% pace in 2014 and 2015 after housing begins to significantly contribute to growth. Job growth will remain at a 1% to 1.5% annual pace through 2013, enough to keep pace with the labor force but to slow to bring the California unemployment rate below 10% until the end of 2014….

 

FRESNO BEE: Fresno program helps people build bridge to better life

By Valerie Gibbons [11/13/11] // Jesse Alonzo's job was at a dead end. As a quality control supervisor for a local irrigation parts company, Alonzo's $10-an-hour paychecks weren't doing much to help make ends meet. But with 16.5% unemployment in his southeast Fresno neighborhood, the 50-year-old Alonzo had few other choices. When he dropped by an information booth for the Bridge Academy at a job fair last spring, all [of] that began to change. The academy, run by the Regional Jobs Initiative …

 

REDEVELOPMENT

SACRAMENTO BEE: Agencies' bond blitz carries a big cost

By Loretta Kalb & Phillip Reese [11/13/11] // Targeted for extinction and running out of time, California's redevelopment agencies earlier this year embarked on a wave of costly borrowing unequaled in their history. When the dust settled, the agencies with a mission of helping economically galvanize California's urban areas had incurred a record $1.2 billion in new bonded indebtedness secured by property tax growth, according to a Bee analysis of records from the California State Treasurer's Office. The money didn't come cheap. …

 

DEMOGRAPHICS / QUALITY OF LIFE

ORANGE COUNTY REGISTER: Immigrants' return to Mexico alters Santa Ana

By Cindy Carcamo [Part I of II] // …The loss of the food bank is just one result of the changes in the flow of people between Orange County and Mexico. With the downturn in the economy, Mexicans residing in Santa Ana legally and illegally began to look south. In the city of about 325,000, this Mexican flight has manifested itself in a number of ways: Census data show a decline in the city's Latino population. Schools report plummeting enrollment. Foreclosed homes abound in historically Mexican immigrant neighborhoods. …

 

ENVIRONMENT / CLIMATE CHANGE

EARTH TECHLING: Making Solar Work for Public Housing

By Lauren Craig [11/11/2011] // With their often large, flat roofs, public housing projects are an obvious target for solar energy developers who want to maximize the technology’s social and environmental benefits. But in most parts of the United States, many hurdles make installing solar energy systems on public housing financially unfeasible. California’s Multi-family Affordable Solar Housing (MASH) incentive program is one of the few state incentives specifically designed to help clear those hurdles. Everyday Energy, an Oceanside, Calif.-based solar installer specializing in affordable housing and multi-tenant buildings, has installed several photovoltaic (PV) systems under the program …

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November 13, 2011

NY Appellate Court Finds Adjacent Property Owners Have Standing to Enforce Conditions in Special Use Permit

NY Appellate Court Finds Adjacent Property Owners Have Standing to Enforce Conditions in Special Use Permit

by Patty Salkin

The Plaintiffs, adjacent property owners along the driveway on Defendant’s 12 acres of land leased to a tennis and surf club, brought suit to enjoin the defendants from maintaining and operating the club on the property on the grounds that they have failed to comply with conditions in the special use permit issued in 1961 allowing the operation of the club. Specifically, the plaintiffs claimed that the defendants are in violation of the condition that requires them to construct and maintain a private roadway leading to the club. The appellate court denied the Defendant’s motion to dismiss on the grounds that the Plaintiffs lacked standing since they failed to demonstrate that the plaintiffs lacked the legal capacity to sure on the ground that they were not aggrieved by the alleged vio lations of the special use permit. Further, the court found that the defendants failed to prove plaintiffs lacked standing to maintain a common-law action to enjoin a violation of a special use permit.

Goldman v A & E Club Properties, LLC, 2011 WL 5222873 (N.Y.A.D. 2 Dept 11/1/1011)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2011/D32754.pdf

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NY Appellate Court Finds Adjacent Property Owners Have Standing to Enforce Conditions in Special Use Permit

NY Appellate Court Finds Adjacent Property Owners Have Standing to Enforce Conditions in Special Use Permit

by Patty Salkin

The Plaintiffs, adjacent property owners along the driveway on Defendant’s 12 acres of land leased to a tennis and surf club, brought suit to enjoin the defendants from maintaining and operating the club on the property on the grounds that they have failed to comply with conditions in the special use permit issued in 1961 allowing the operation of the club. Specifically, the plaintiffs claimed that the defendants are in violation of the condition that requires them to construct and maintain a private roadway leading to the club. The appellate court denied the Defendant’s motion to dismiss on the grounds that the Plaintiffs lacked standing since they failed to demonstrate that the plaintiffs lacked the legal capacity to sure on the ground that they were not aggrieved by the alleged vio lations of the special use permit. Further, the court found that the defendants failed to prove plaintiffs lacked standing to maintain a common-law action to enjoin a violation of a special use permit.

Goldman v A & E Club Properties, LLC, 2011 WL 5222873 (N.Y.A.D. 2 Dept 11/1/1011)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2011/D32754.pdf

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November 11, 2011

BVWire News

BVWire News

 

IRS expert presents new fractional interests model tomorrow!

Posted: 10 Nov 2011 08:43 AM PST

When we first broke the news about the IRS’s fractional interest model at the most recent ASA IRS National Symposium last spring, the halls were buzzing with appraisers’ debate, discussion, and even dismay. As the BVWire reported, the “minority premium model” takes fractional interest calculations through several levels of minority vs. majority ownership, and concludes that even when the owners are equally split, the 50% interest may not warrant a fractional interest discount any greater than 30%.

But then—why do empirical market data suggest that fractional interests routinely trade at discounts of 30% and higher? Aren’t the facts and circumstances of many such holdings much more complicated than the IRS model suggests? But consider this question: Would a court ever be persuaded that, for example, a 99% owner would be willing to sell at a 30% discount if he can buy out the 1% owner at the equivalent of a 1%-2% discount?

Get the answers to these and many more questions in Part IV, the last session of BVR’s Tax Summit: Valuing a Majority Fractional Interest. The event features Neil Mills-Mazer (Internal Revenue Service), who will introduce and describe his controversial model this Friday, Nov. 11.


Four days left to comment on USPAP discussion draft

Posted: 10 Nov 2011 08:39 AM PST

Last month the Appraisal Standards Board (ASB) issued the discussion draftCommunication and Reporting in the Uniform Standards of Professional Appraisal Practice (USPAP), requesting comments by Nov.14, 2011.

As Rick Warner, editor of the BVC’s weekly e-letter to members, points out in the latest issue, one of the questions that the discussion draft addresses is the general issue of “draft reports” and what changes, if any, need to be made to USPAP regarding the practice of providing draft reports to clients, particularly in litigation settings. “This is a topic where ‘words’ really are important,” Warner says, “so I encourage you to review this ASB discussion draft and consider how your business valuation practice might be affected by some of the changes being considered to USPAP.”

Chris Mercer (Mercer Capital) and the Standards Subcommittee of the ASA BV Committee are also aware of the discussion draft and are crafting a response on behalf of their constituencies, Warner notes. “However, you may want to consider reviewing this ASB document and responding on your own.”


 

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November 10, 2011

Inadequacies in Appraisal Body of Knowledge, Professor Says

From the Desk of The Appraisers Research Foundation

Inadequacies in Appraisal Body of Knowledge, Professor Says


HOUSTON, Texas — In a world energized by change and technology, should appraisers change the way they gather and calculate data as well?
 
The answer is emphatically yes, according to a new research report by Real Estate Professor Donald Epley of the University of South Alabama.
 
The 27-page report — titled "Areas in the Current Appraisal Body of Knowledge in Need of Revision" — was funded by The Appraisers Research Foundation (TARF).
 
Some approaches to valuation have “serious flaws which question the results,” Prof. Epley says. “The bodies of knowledge used by appraiser candidates to qualify for designation need revising.”
 
 In the report, Prof. Epley details the six most pressing issues:
 
— The need for a better market conditions measurement.
 
— The use of population data vs. sample data. “In this age of technology,” he says, “the complete population of all sales is available and produces a better analysis of price trends.”
 
— Deductive vs. inductive or inferential reasoning.
 
— The need to recognize that accounting and finance professionals view depreciation as an operating expense.
 
—The first-year estimate of net operating income differs between the Certified Commercial Investment Member Institute (CCIM) and the Appraisal Institute.
 
— The need for an operational definition of “fair value.”
 
 
After proposing the issues in need of revision, Prof. Epley offers these recommendations:
 
— Assure that the revevant trade organizations create and maintain a Body of Knowledge Committee.
 
—  Authorize the Body of Knowledge Committee to oversee the appraiser licensing and accreditation material.
 
— Create special topic study groups within the Body of Knowledge Committee with the authority to investigate and recommend changes in the assigned specialty.
 
—  Make it a priority to integrate modern technology into the required course work for accreditation and the post-accreditation education requirements. An example would be the use of all courthouse information in lieu of samples.
 
— Assure that the revevant trade organizations create and maintain a Body of Knowledge committee.
 
— Ask the Advanced Studies Institute of the Appraisal Institute to investigate and evaluate these topics as research projects.
 
— Ask The Appraiser’s Research Foundation in Houston to place these topics of their priority list.
 
— Communicate to all practicing appraisers the value of continual reading of the Appraisal Institute’s text, all required books and material in relevent AI and CCIM classes, and continuing education courses.
 
The full report is available here: http://www.appraiserresearch.org/research-results/body-of-knowledge-issues.html
 
Prof. Epley is also director of the Center for Real Estate Studies at the university's Mitchell College of Business in Mobile, Ala. He has served on the Education, Body of Knowledge, and Liaison Committees with the Appraisal Institute. He was elected as a Trustee to the Appraisal Foundation and was appointed to the Executive Committee. He is the author or coauthor of ten textbooks and 100 journal articles. He is a frequent contributor to the journal and serves on the Academic Review Panel.
 
To see other studies funded by The Appraisers Research Foundation, go to http://www.appraiserresearch.org and click on Research.
 
In addition to the six issues identified in Prof. Epley’s research report, the Foundation iscurrently seeking proposals for research projects to fund. Selected topics of interest include:
 
• Alternative uses of contaminated properties.
• Conversion of big box properties.
• Trends in golf courses that affect value.
• Appraisal fraud.
 
See all topics of interest at: http://www.appraiserresearch.org/topics-of-interest.html.
 
For information on applying for a research grant, go to the Foundation's website at http://www.appraisersresearch.org/grants.
 
For more information on this report, contact the author at depley@usouthal.edu.

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November 09, 2011

10th Annual Land Use and Sustainable Development Conference:Sustainable Development in Tough Economic Times

New post on LAW OF THE LAND


 


10th Annual Land Use and Sustainable Development Conference:Sustainable Development in Tough Economic Times

by Patty Salkin

On December 2, 2011, the Land Use Law Center of Pace Law School will present its annual land use and sustainable development conference.

Proponents of sustainable development have been dealt a tough hand by current economic conditions. This year, the program will focus on how the economy has altered the feasilbility of land use and development strategies. Sessions include the remediation of distressed properties, rethinking large projects that have failed, redevelopment readiness, small-scale solutions, and projects that embody cost and energy efficiency. Join the more than 200 lawyers, professionals, business leaders, and local leaders that attend this event yearly.The Conference Registration Fee is $ 100.00 for general admission and $75.00 for Student/Not for Profit/Government.  The agenda is available here: http://www.pace.edu/school-of-law/sites/pace.edu.school-of-law/files/LULC/Sus-Dev_Conf/Conf%20Agenda.pdf

CLE Credits (1.5 Ethics and 4.5 Practice) will be available at an additional cost of $120 for those that choose to downloaded the CLE Book from our website and $150 for those that choose to pick up printed material at the conference.

 For more information please contact:  Ann Marie McCoy at (914) 422-4262 or amccoy@law.pace.edu.

Patty Salkin | November 9, 2011 at 10:49 am | Categories: Uncategorized | URL: http://wp.me/p64kE-1uU

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UAD Uniform Appraisal Data

http://www.harriscompanyrec.com/files/Curtis_Rosenthal.pdf

UAD Uniform Appraisal Data

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PolicyMap client Citi Community Development (CCD)

PolicyMap client Citi Community Development (CCD) has worked with the PolicyMap team to develop their new data mapping tool. CCD’s PolicyMap Data Tool provides Citi’s community partners and stakeholders with an interactive map showing demographic data, housing statistics, education trends and information about jobs and the economy. The information is provided in an easily-accessible and user-friendly way.

Citi

PolicyMap and Citi launched this mapping tool today and will offer a webinar on its use on November 28, 2011, from 2-3 pm. The webinar hosts will be Laura Sparks, Director of Community Development Finance Initiatives at Citi Community Development, and Elizabeth Nash, Associate Director of PolicyMap. To register, click here.

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Calculated Risk

Calculated Risk

 

Housing: REO and Mortgage Delinquencies

Posted: 09 Nov 2011 09:11 AM PST

Yesterday Fannie Mae reported their third quarter results. Fannie's REO inventory fell to 122,616 houses from 135,719 at the end of Q2. Fannie's REO inventory has declined for four straight quarters.

Below is a graph of Fannie Mae REO acquisitions (completed foreclosure or deed-in-lieu) and dispositions (sales).

Note the slowdown in REO acquisitions in Q4 2010, and the increase in sales.

Since sales have been higher than acquisitions, REO inventory has been falling. However there are many properties delayed in the foreclosure process, and acquisitions will pick up when the mortgage servicer settlement is reached.

Fannie Mae REO
Click on graph for larger image.

If we just looked at REO inventory, we might think that the situation is getting better pretty quickly. However there are a large number of properties in the "90 days delinquent" and "in foreclosure" buckets.

The second graph shows the delinquent and REO buckets over time. The delinquency data is from LPS, and the REO estimates are based on work by Tom Lawler and my own calculations.

Delinquency and REOThe dashed lines are "normal" historical levels for each bucket. The 30 day bucket is only slightly elevated (as of September), and the 60 day buckets is somewhat elevated. But the glaring problems are in the 90 day and in-foreclosure buckets.

There are 4.1 million seriously delinquent loans (90 day and in-foreclosure). This is about 3.1 million more properties than normal. Probably when the mortgage settlement is announced, some of these loans will cure as part of the settlement with loan modifications that include principal reduction, but many of these properties will become REOs fairly quickly.

So even though REO inventory is declining, there are still many more to come.





Ceridian-UCLA: Diesel Fuel index increased 1.1% in October

Posted: 09 Nov 2011 06:00 AM PST

This is the UCLA Anderson Forecast and Ceridian Corporation index using real-time diesel fuel consumption data: Pulse of Commerce Index Increased 1.1 Percent in October, Offsetting the 1.0 Percent Decline in September

The Ceridian-UCLA Pulse of Commerce Index®(PCI®), issued today by the UCLA Anderson School of Management and Ceridian Corporation, rose 1.1 percent in October after three consecutive months of negative numbers.

Over the past three months, compared to the prior three months, the PCI declined at an annualized rate of 5.8 percent and the PCI remains lower than it was during most of the first half of 2011. “The October data offer some welcome relief from the double-dip fears that were rampant a month ago, but one month does not mean a new trend. Until we get a series of positive months, it remains a she-loves-me, she-loves-me-not economy with bad news followed by good followed by bad,” said Ed Leamer, chief economist for the Ceridian-UCLA Pulse of Commerce Index and director of the UCLA Anderson Forecast.

On a year-over-year basis, the PCI was up 1.3 percent in October compared to the -0.2 percent decrease in the prior month. ... Based on the latest PCI data, our forecast for October Industrial Production is a 0.12 percent increase when the government estimate is released on November 16.

Pulse of Commerce IndexClick on graph for larger image.

This graph shows the index since January 2000.

This index declined sharply in late summer and this small rebound only offsets some of the recent decline.

Note: This index does appear to track Industrial Production over time (with plenty of noise).

All current Transportation graphs





Italian Bond Yields hit 7.4%

Posted: 09 Nov 2011 04:58 AM PST

• The Italian 10 year yield is at 7.32% after hitting 7.48% this morning.

• From Reuters: LCH.Clearnet Raises Initial Margin Call on Italian Debt

LCH.Clearnet increased the margin on debt from the [Italy] at a time when its bonds yields are close to levels deemed unsustainable.
...
When LCH.Clearnet Ltd took similar action on Portuguese and Irish debt as bond yields soared, it added to selling pressure on the paper. Both countries were later forced to seek bailouts.

European stocks are off today with the FTSE down 2%, and the DAX down 3%.





MBA: Mortgage Purchase Application Index increased

Posted: 09 Nov 2011 04:40 AM PST

From the MBA: Mortgage Applications Increase in Latest MBA Weekly Survey

The Refinance Index increased 12.1 percent from the previous week. The seasonally adjusted Purchase Index increased 4.8 percent from one week earlier to the highest level since August 2011.
...
"Treasury rates dropped last week, as renewed turmoil in Europe once again led to a flight to quality, and 30-year mortgage rates dropped to their second lowest level of the year," said Mike Fratantoni, MBA's Vice President of Research and Economics. "Refinance applications jumped more than 12 percent to their highest level in a month and some lenders experienced even larger increases. As has been the case all year, many refinance applicants are opting to deleverage by choosing 15-year mortgages."
...
The average contract interest rate for 30-year fixed-rate mortgages with conforming loan balances ($417,500 or less) decreased to 4.22 percent from 4.31 percent.

The following graph shows the MBA Purchase Index and four week moving average since 1990.

MBA Purchase Index
Click on graph for larger image.

Although the purchase index increased, the index is still sharply below the levels of June and July - and at about the same level as in 1996. This does not include cash buyers, but this suggests weak home sales over the next couple of months.

All current Existing Home Graphs





Greek Politics

Posted: 08 Nov 2011 06:45 PM PST

An apt headline from the Athens News: Sinking with no captain

The European Union’s shattered trust in Greece and interparty wrangling have delayed the announcement of Greece’s new coalition government ...

The humiliating demand by EU Economic and Monetary Affairs Commissioner Olli Rehn that the next tranche of loans will not be disbursed unless New Democracy leader Antonis Samaras signs a declaration that he will support full implementation of the October 27 bailout threw his party into a tailspin.

The demand came a day after ND issued a nonpaper saying that the party will support the new government’s policies, only to reverse them when the conservatives come to power.

Designed to beat Samaras into complete submission, Rehn’s demand triggered an uproar in the ND party base ...

I don't know if this story is accurate, but if the plan is to default - just say so.





Fannie, Freddie and FHA REO Inventory declines in Q3

Posted: 08 Nov 2011 02:45 PM PST

Important: REO inventories have declined over the last few quarters. This is a combination of more sales and fewer acquisitions due to the slowdown in the foreclosure process. However there are many more foreclosures coming (I'll have more on this later).

From Fannie Mae today: Fannie Mae Reports Third-Quarter 2011 Results

Fannie Mae today reported a net loss of $5.1 billion in the third quarter of 2011, compared to a net loss of $2.9 billion in the second quarter of the year. The company’s third-quarter loss was driven primarily by two factors: $4.9 billion in credit-related expenses, the substantial majority of which were related to its legacy (pre-2009) book of business; and $4.5 billion in fair value losses driven primarily by losses on risk management derivatives due to a significant decline in swap interest rates during the quarter. These losses were partially offset by $5.5 billion in net revenues.
...
The Acting Director of the Federal Housing Finance Agency (“FHFA”) will submit a request to Treasury on Fannie Mae’s behalf for $7.8 billion to eliminate the company’s net worth deficit.

The combined REO (Real Estate Owned) inventory for Fannie, Freddie and the FHA1 decreased to 226,961 at the end of Q3 from 249,501 units at the end of Q2. The "F's" REO inventory decreased 23% compared to Q3 2010 (year-over-year comparison).

1 FHA is for August, not Q3. The FHA is having system problems and hasn't reported for September yet.

Fannie Freddie FHA REO Inventory
Click on graph for larger image.

This graph shows the REO inventory for Fannie, Freddie and FHA1 through Q3 2011.

The REO inventory for the "Fs" increased sharply in 2010, but may have peaked in Q4 2010. However there may be a new peak when the foreclosure dam eventually breaks - however I expect quite a few modifications as part of the settlement, and probably a bulk REO selling program from Fannie and Freddie.

I'll update the FHA data when it is released, and add the PLS and FDIC REO inventory.





Las Vegas: 100,000 foreclosures and counting

Posted: 08 Nov 2011 01:10 PM PST

From Steve Green at the Las Vegas Sun: Las Vegas house prices continue to slide, down 9 percent from year ago

“In less than four years, more than 100,000 homes in Las Vegas have been lost through foreclosure. That’s 18 percent of our privately owned housing stock: that’s nearly one home in five. And we’re nowhere near finished with foreclosures. In all likelihood, we have another 100,000 yet to go, and at the current rate, that’s another four years,” [housing analyst and SalesTraq President] Larry Murphy said.

According to Case-Shiller, house prices have declined almost 60% from the peak in Las Vegas ... no wonder foreclosure are so high.

And according to Core Logic, there were 426 thousand first mortgages in Las Vegas at the end of Q2 - and 270 thousand of these were in negative equity (about 63%). Another 100,000 foreclosures might be low.





 

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Florida Supreme Court Decision in Koontz is Bad News for Florida Land Developers and Real Estate Investment

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Florida Supreme Court Decision in Koontz is Bad News for Florida Land Developers and Real Estate Investment - Will It Go Up to the U.S. Supreme Court? Maybe.

By Rosa Schechter

November 08, 2011

The Florida Supreme Court made national news as well as in Florida land development and real estate investment circles this week as it released its opinion in

 

Koontz IV (read the full text here), ruling that it is not a "taking" by the government, for which payment must be made, when a government agency denies a development permit for private property.

What the Koontz Fight Was All About: Developing a Small Patch of Land Near a Florida Roadway

Specifically, Florida property owner Coy Koontz asked his local Florida water management district for commercial development permits for 3.7 of acres of his 15 acre patch of land on State Road 50, near the East-West Expressway. The majority of Koontz's land tract has been classified as wetlands.

Negotiations began, and the water management district responded with a request that the property owner reduce his development plan to 1 acre, cutting back 2.7 acres off the development project, as well as turning the rest of his 15 acre tract into a conservation area, restricted by language in the deed, in return for the requested development permit.

Not surprisingly, the property owner didn't agree with this proposal by the water management district, and litigation began. This, with many developers wondering how the water management district could have thought any other response to their proposal would be a reasonable reaction.

Mr. Loontz won at the Florida appeals court (read the Florida Fifth Court of Appeals decision here). Now, the tide has changed, and the state water management district is the victor after the Fifth Court of Appeals certified the issue to the Supreme Court as a question of great public importance.

From the Florida Supreme Court opinion (emphasis added):

Based on the above analysis, we conclude that the Fifth District in Koontz IV erroneously applied the Nollan/Dolan exactions test to the offsite mitigation proposed by St. Johns. Since St. Johns did not condition approval of the permits on Mr. Koontz dedicating any portion of his interest in real property in any way to public use, this analysis does not apply. Further, even if we were to conclude that the Nollan/Dolan test applied to non-real property exactions -- which we do not -- Mr. Koontz would nonetheless fail in his exactions challenge

 

because St. Johns did not issue permits, Mr. Koontz never expended any funds towards the performance of offsite mitigation, and nothing was ever taken from Mr. Koontz. As noted by the United States Supreme Court, Nollan and Dolan were not designed to address the situation where a landowner‟s challenge is based not on excessive exactions but on a denial of development.

 

See Del Monte Dunes, 526 U.S. at 703.

Here, all that occurred was that St. Johns did not issue permits for Mr. Koontz to develop his property based on existing regulations and, therefore, an exactions analysis does not apply. See id. ("[T]he rough-proportionality test of Dolan is inapposite to a case such as this one.").

What Does Koontz v. St. John's River Water Management District mean to Florida?

 

 

First, it's reversing two existing decisions, already in place as rendered by lower Florida courts, finding that this type of negotiation failure would constitute a taking worthy of compensation.

The St. Johns River Water Management District had been ordered to compensate a land owner in Orange County for the temporary taking of his land because of permit negotiations to the tune of $376,155.00. Now, with the Florida Supreme Court ruling, that land owner may be waiting a very long time to see a dime of that money.

According to the Florida Supreme Court, to rule otherwise would be cost-prohibitive to Florida land development:

"

 

Governmental entities must have the authority and flexibility to independently evaluate permit applications and negotiate a permit award that will benefit a landowner without causing undue harm to the community or the environment."

However, the argument remains that by demanding that a property owner cut back his proposed development along with turning the rest of his track into conservation lands -- or alternatively, get no development permit at all -- the water management district has essentially taken that land from the land owner.

 

This is how land developers and real estate investors both in Florida and in other parts of the country as well as the world will interpret this case.

 

 

Will the case be taken to the United States Supreme Court for review? Maybe. Koontz has been fighting this since 1994, cost-wise it seems like a worthwhile investment at this point. Assuming that he does so, there's still the big question: will the United States Supreme Court agree to hear his case? Who knows -- but it's an open issue before the High Court, so there's the chance that they might do so.

 

FYI -- interestingly, Justice Polston agreed with the result, but not the reasoning: Polston believes that failure to exhaust administrative remedies before filing suit was sufficient to reverse the lower court's decision. Chief Justice Charles Canady concurred with this position. Easy way out for the majority would have been to follow Polston's analysis and kick the case out because Koontz hadn't gone through agency channels before entering the courtroom.

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TODAY'S NEWS

November 9, 2011

TODAY'S NEWS

AFFORDABLE HOUSING

OC METRO: Locally designed affordable housing community open in Big Bear Lake

By Elaine Murphy // The Crossings at Big Bear Lake, an affordable housing community designed by Irvine-based architecture firm KTGY Group Inc., recently marked its grand opening. The apartment community is the city’s first affordable housing project designed to cater to families, and was developed by Santa Ana-based Urban Housing Communities LLC (UHC).

 

HOUSING DEVELOPMENT

U.S. NEWS: Where builders are breaking ground

By Meg Handley // With so many homes for sale and so few buyers, you'd be crazy to build a new house in this market, right? Nevertheless, multifamily and single-family home building has been heating up in pockets across the nation, causing more than a few people to scratch their heads.

 

MORTGAGE & FORECLOSURE ISSUES

SAN FRANCISCO CHRONICLE: More bay area homes underwater on mortgages

By Carolyn Said // Homes around the Bay Area are continuing to slide underwater - the term for a home worth less than what is owed on the mortgage - according to a report from real estate research firm Zillow. Nearly a quarter (24.6 percent) of homes in the nine-county area were underwater in the three months ended in September, Zillow said. That compares with 22.8 percent in the preceding quarter.

 

SACRAMENTO BUSINESS JOURNAL: State mortgage help program expands eligibility

Keep Your Home California, a program through the California Housing Finance Agency, said it has expanded eligibility for helping homeowners stay in their homes in the face of financial difficulties. Now, people who refinanced their homes are eligible for all four of the programs offered under Keep Your Home California.

 

USA TODAY: Foreclosure backlogs could take decades to clear out

By Julie Schmit // Foreclosure sales are moving so slowly in half the states that at the current pace, it will take more than eight years on average to clear the 2.1 million homes in foreclosure or with seriously delinquent mortgages, new research shows.

 

SACRAMENTO BEE: More than half of (Sacramento) area homes worth less than their mortgages

Housing prices in Sacramento have fallen to pre-boom levels as more than half of homes in the region are now worth less than their mortgages, a new report said.

 

SACRAMENTO BEE: Feds say Sacramento-area realty ring bilked banks for $16 million

By Rick Daysog // The collapse of the housing bubble exposed Sacramento as one of the nation's centers for mortgage fraud. Yet even here, prosecutors say, their latest case stands out for its scope and the number of people involved. In the past six months, 25 Sacramento-area residents have been indicted on charges of defrauding $16 million from banks, most of it from a single subprime lender now owned by Bank of America. Prosecutors say more indictments are on the way.

 

REDEVELOPMENT / INFILL / REVITALIZATION

SAN JOSE MERCURY NEWS: California Supreme Court takes on legal battle over redevelopment

By Howard Mintz and Tracy Seipel // With once powerful redevelopment agencies such as San Jose's on the brink of extinction, the California Supreme Court this week will consider whether state lawmakers staged an unconstitutional raid on redevelopment coffers to help close a multibillion-dollar budget deficit.

 

ENVIRONMENT / CLIMATE CHANGE

LA TIMES: State gets mixed reviews in solar power

By Marc Lifsher // California is on track to meet an ambitious goal of putting solar panels on up to 3 million Golden State homes by 2016, according to a new report by an environmental group. The $3.3-billion initiative, which provides subsidies to homeowners, has spurred the installation of 800 megawatts of rooftop panels over the last five years. That's the energy equivalent of two gas-burning power plants.

 

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Undergraduate Degree Review Program Approved by

 

 Undergraduate Degree Review Program Approved by

National Appraisal Board 

FOR IMMEDIATE RELEASE
November 9, 2011

Contact: 
Paula Douglas Seidel

Executive Administrator

The Appraisal Foundation

paula@appraisalfoundation.org

202.624.3048

 

WASHINGTON, D.C.,– The Appraisal Foundation, a congressionally-authorized nonprofit organization that fosters professionalism among appraisers by setting qualifications and standards, announced that its Appraiser Qualifications Board (AQB) has approved the University of Denver’s Bachelor of Science in Real Estate and Construction Management degree program through its Undergraduate/Graduate Degree in Real Estate Review Program. 

In 2009, the AQB established a Graduate Degree in Real Estate Review Program. This year, the AQB added an Undergraduate Degree in Real Estate Review Program. The program is free to any accredited undergraduate or graduate college or university that makes application.

Upon receiving a complete application, the AQB conducts an on-site analysis of college/university degree programs in real estate to determine if the course work completed to obtain a degree is consistent with the course requirements established by the AQB in the Real Property Appraiser Qualification Criteria.  Once the analysis is complete, the AQB publishes the results for state appraiser regulatory agencies to use when reviewing the educational qualifications of applicants that hold such a degree. 

 

The AQB established this program to benefit college degree applicants looking to obtain a real property appraiser credential, as well as state appraiser regulatory agencies in their review of an applicant’s qualifications. “The AQB believes this program is yet another step forward in attempting to attract the best and brightest to the profession,” said Rick Baumgardner, Chairman of the Appraiser Qualifications Board. “The Board intends to proactively seek out those colleges and universities that offer both graduate and undergraduate degrees in real estate to increase awareness of this important program,” Baumgardner added.

 

In addition to the Bachelor of Science in Real Estate and Construction Management from the University of Denver, individuals completing the entire course of study under the following graduate programs are also eligible to receive credit toward a state credential under the AQB’s Real Property Appraiser Qualification Criteria:


Texas A&M University

Mays Business School

Master of Real Estate Program

 

University of Denver

Daniels College of Business

Master of Science Degree in Real Estate and Construction Management

 

Official notification letters with details on courses and topics each degree covers is posted at the following link: 

https://netforum.avectra.com/eWeb/DynamicPage.aspx?Site=TAF&WebCode=DegreeProgram


Colleges and universities that wish to apply for this program should visit the Foundation’s web site at https://netforum.avectra.com/eWeb/DynamicPage.aspx?Site=TAF&WebCode=DegreeProgram for a copy of the application. 

While the program is complimentary, applications will be considered on a first come, first serve basis.

For more information on the program, please contact Magdalene Vasquez, Qualifications Administrator at 202.624.3074 or magdalene@appraisalfoundation.org.
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November 08, 2011

BVWire News

BVWire News

 

Do appraisers need to specialize now?

Posted: 07 Nov 2011 06:14 PM PST

Mark Edwards says that his peers at Grant Thornton use the term “chose a major” when mentoring new staff.  ”We want people to find an area they’re passionate about, learn it, and become the best in the business at it.”  Linda Trugman agrees that younger professionals will do better to pick an area, whether industry specialization, or tax, or litigation.  With the help of mentors, this can create valuation practices that produce future leaders and where, as Jay Fishman adds, “the partners have each others’ backs.”  Fishman concluded:  ”business valuation has been very very good to us, and we owe it to give back.”


Is your valuation work biased?

Posted: 07 Nov 2011 06:03 PM PST

Here’s a way to see if your valuation is not objective, recommended by Jim Hitchner at the wrap-up session at the AICPA BV Conference:

“List all of the assumptions you’ve made to come to your conclusion of value.   You know what they are.   Then, evaluate whether each assumption leads to a higher value or a lower value.  If they all lean in the same direction, your valuation is probably biased.”

In a profession that prides itself on objectivity, this kind of review makes a lot of sense.   As one appraiser recently told BVWire last week, “I’d really like to know that every appraisal I complete would have the same number at the bottom whether I was doing the work for the party that benefits from a high value or the party that benefits from a low value.  That’s the standard I try to hold myself to in this business.   Do I achieve that standard?  Well…”


How do you value “synergy” in an impairment test?

Posted: 07 Nov 2011 05:42 PM PST

“We actually try to figure out the cashflows from the competitive advantage,” said Mark Edwards (GT), speaking at the Hardball with Hitchner wrapup session at the AICPA National BV Conference this afternoon.  But others try to deal with it by looking at the BVR/Mergerstat Control Premium Study and applying a control premium.  ”I don’t particularly like the control premium approach here, though,” added Jim Alerding.

“The question that needs to be justified to auditors is why some one should pay 20% more,” said Edwards.  ”So just looking at control premium data may not be sufficient justification.   You’d like to see the benefits in the cashflow of the assumed control value.”


Quote from the latest AICPA BV Hall of Fame member…

Posted: 07 Nov 2011 05:26 PM PST

Robert Reilly (Willamette) was in the men’s room when the announcement was made that he had received this year’s AICPA Business Valuation Hall of Fame Award.   He said he was honored, and told BVWire that he wished his mother-in-law could have been in Las Vegas to hear this news.  ”She still doesn’t understand what I do, and often says to my wife ‘you could have married the doctor, but instead your married the CPA’.”

Ah well…congratulations to Robert…and we understand what you’ve done!


 

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ABA Journal

http://sblog.s3.amazonaws.com/wp-content/uploads/2011/05/Brief-05-19-11-154113.pdf

U.S. Supreme Court, ABA Journal

Supreme Court Accepts Case Claiming Property Code Cuts Affordable Rentals, Violates Fair Housing Act

Posted Nov 8, 2011 8:24 AM CST
By Debra Cassens Weiss

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The U.S. Supreme Court agreed Monday to decide a case involving a claim that a Minnesota city’s housing code clashes with the Fair Housing Act.

Rental property owners in St. Paul are arguing that housing code requirements will increase their costs and decrease the number of properties they are able to rent to African Americans, who make up a disproportionate number of low-income households, according to the petition for certiorari (PDF). The property owners claim city officials are violating the Fair Housing Act by aggressively enforcing the city code.

The St. Louis-based 8th U.S. Circuit Court of Appeals had allowed the disparate impact suit by the property owners. The threshold issue, according to the cert petition, is whether disparate impact claims are recognizable under the Fair Housing Act. Most appeals courts allow such claims, the cert petition says, but they are divided on the analysis.

City officials argue in the cert petition that it is the property owners who are seeking to thwart the Fair Housing Act. “Respondents seek to avoid fixing up their properties to meet the minimum housing code because it will cut their profits and prevent them from renting out dilapidated homes,” the cert petition says. “This defeats the goal of the Fair Housing Act.”

SCOTUSblog has highlighted the case, Magner v. Gallagher, as a petition of the day

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November 07, 2011

Better Government

Better Government

 

Will the Supreme Court Resolve the Takings Issue?

Posted: 07 Nov 2011 01:31 PM PST

The U.S. Supreme Court is expected to decide soon whether it will consider the appeal of the Ninth Circuit’s decision in West Linn Corporate Park, LLC v. City of West Linn that refused to extend Nollan/Dolan’s nexus and rough proportionality test to a municipality’s requirement that a developer construct off-site public improvements.

 

Since Nollan/Dolan, lower courts have struggled with the following question -- is the nexus and rough proportionality test limited to physical exactions of real property?  Some lower courts have decided that the test applies to all exactions, including impact fees and exactions that do not involve the dedication of land.  Other courts have disagreed, finding that the test only applies to a demand for dedication of land, most recently in the Florida Supreme Court’s decision in St. Johns River Water Management Dist v. Koontz. 

 

Thanks to Robert Thomas and his blog, Inverse Condemnation, for his summary of an issue of importance to land use attorneys, developers, and local governments across the country.



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TODAY'S NEWS

 

November 7, 2011

TODAY'S NEWS

AFFORDABLE HOUSING

SAN JOSE MERCURY: Fremont affordable housing project opens

By Wes Bowers [11/3/11] // A major affordable housing project officially opened this week in Irvington. City of Fremont officials, along with Alameda County and state leaders, celebrated the grand opening of Main Street Village Wednesday afternoon. The affordable rental apartment project, located at 3615 Main St., offers 64 units to very low-income individuals and families, including those who have been homeless or have faced mental health challenges. … According to officials, more than 4,000 people in Alameda County are homeless, and nearly 30 percent of those are families with children.

 

THE EXAMINER.COM: HUD Homes: Another Source of Great Potential Values for Homeowners and Investors

By Eric Dorer // Most people know that “HUD” stands for the U.S. Department of Housing and Urban Development.  Most people associate HUD with subsidized rental and low income housing.  However, HUD offers a great deal more than these programs.  One of the greatest sources of great potential bargains for both owner-occupants and investors is HUD-owned homes… “HUD Homes.”  However, like any other opportunity to uncover potentially great value, the need to do your homework …

 

HOUSING DEVELOPMENT

WASHINGTON POST: Finding more flaws in HUD's accounting of HOME program

By Debbie Cenziper [11/6/11] // The calls started in mid-May, two weeks before a looming congressional hearing. Staff members across the vast U.S. Department of Housing and Urban Development were racing to check in with hundreds of local agencies to determine the status of housing construction projects for the poor. Within days, the massive scramble came to a conclusion: HUD told Congress that its $32 billion HOME Investment Partnerships Program was doing just fine.

 

WASHINGTON POST: Dozens of delayed HUD projects found nationwide

By Debbie Cenziper // One lot was a tangle of tumbleweed sprawling over seven acres. The other sat empty in a neighborhood besieged by crack dealers. Seven years ago, the city of Turlock, Calif., promised to transform the properties into new homes for the poor, investing $400,000 in federal housing money to buy the land. But the lots are still barren and Turlock’s new housing chief is struggling to figure out what went wrong.

 

LAND USE / PLANNING / REGULATION

LONG BEACH PRESS TELEGRAM: Downtown development will it be: A Boon or a Bane

By Kristopher Hanson // LONG BEACH - The Planning Commission is preparing to vote Thursday on a massive long-term development blueprint for downtown that would rezone the area to permit more high-rise buildings and would fast-track approval for construction projects. Known as the Long Beach Downtown Plan, the proposal has been met with great enthusiasm and deep skepticism by residents, businesses, developers and neighborhood groups within and surrounding the 725-acre project area …

 

HOUSING MARKETS / REAL ESTATE

ORANGE COUNTY REGISTER: Calif. home price recovery expected in 2012

By Jeff Collins // UCLA economists forecast that California home prices will rise steadily over the next six years, although the recovery in home sales isn’t projected to begin until 2013. The UCLA Anderson Forecast predicted that the median price of an existing single-family home will increase 52.5% by 2017, rising to $438,980. This year’s median house price is projected to be $287,904 …

 

MORTGAGE & FORECLOSURE ISSUES

NU WIRE INVESTOR: Four Programs Offer Mortgage Assistance

By Jerold Leslie // With millions of Americans delinquent on their mortgages or in some phase of foreclosure, Uncle Sam has developed roughly a dozen programs designed to help struggling homeowners keep their properties. "We really lead the marketplace when it comes to bending over backward to keeping people in their homes," says Brian Sullivan of the U.S. Department of Housing and Urban Development. "We want to make sure that we've exhausted all other options before families lose their properties."

 

MARKET WATCH.COM: Keep Your Home California Expands Eligibility and Benefits

[Press release – 11/7/11] // SACRAMENTO, Calif. (BUSINESS WIRE) -- California's program to provide mortgage assistance to homeowners struggling to remain in their homes is making it easier to become eligible for help. Keep Your Home California, a federally-funded program administered by the California Housing Finance Agency, announced today that it is removing the "cash out" restriction from all four programs and will allow homeowners who own additional properties to qualify for much-needed assistance.

 

LOS ANGELES TIMES: More problems are found with home buyer tax credits

By Kenneth R. Harney [11/6/11] // Reporting from Washington— Remember the federal tax credit programs offering $7,500 and later $8,000 to first-time home buyers? The credits were designed to deliver a jolt to the reeling housing industry, and they did: More than 4 million people applied for and have received nearly $30 billion worth of credits. … The IRS also had trouble determining whether recipients of the non-repayable credits might have violated rules by selling their homes before the three years of required residency and earning a profit on the sale.

 

HOMELESSNESS

VENTURA COUNTY STAR: Affordable-housing charity re-creates soup lines to raise money

By Rachel McGrath // Bowls of steaming-hot soup were the right kind of comfort food Sunday as a storm passed through Ventura County, and so the timing was perfect for the Many Mansions Bowls of Hope Project in Camarillo. Several hundred people ate soup and bread donated by restaurants and bakeries and raised money for the Thousand Oaks-based nonprofit, which provides affordable housing and services for the homeless, low-income families and those with disabilities.

 

TRANSPORTATION

LOS ANGELES BUSINESS JOURNAL: High-Speed Rail Still Fits Bill Despite Higher Cost

By David C. Murphy [Opinion] // Last Tuesday’s release of the new plan for California’s high-speed rail system, showing the projected cost had doubled to $98 billion, will be used by naysayers to argue we cannot afford to build the project. But to keep California moving and for our long-term competitiveness, perhaps we cannot afford not to build it. We must not lose track of the long-term vision held by California voters who approved the project in 2008. Have no doubt: This project will bring enormous benefits to California’s economy and citizens

 

ENVIRONMENT / CLIMATE CHANGE

SANTA BARBARA INDEPENDENT: UCSB's Ocean Walk Faculty Housing Project Receives LEED Certification from U.S. Green Building Council

Ocean Walk is the first housing project in the University of California system to receive LEED for Homes certification. Ocean Walk at North Campus is UCSB’s newest planned faculty housing community. It was created under the authority of the Board of Regents to provide affordable housing for faculty. Situated on approximately 26.3 acres, Ocean Walk is about two miles from the main campus and about one-third of a mile from the beach.

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Calculated Risk

Calculated Risk

 

CoreLogic: House Price Index declined 1.1% in September

Posted: 07 Nov 2011 07:30 AM PST

Notes: This CoreLogic Home Price Index report is for September. The Case-Shiller index released two weeks ago was for August. Case-Shiller is currently the most followed house price index, but CoreLogic is used by the Federal Reserve and is followed by many analysts. The CoreLogic HPI is a three month weighted average of July, August and September (September weighted the most) and is not seasonally adjusted (NSA).

From CoreLogic: CoreLogic® September Home Price Index Shows Second Consecutive Month-Over-Month and Year-Over-Year Decline

CoreLogic ... today released its September Home Price Index (HPI®) which shows that home prices in the U.S. decreased 1.1 percent on a month-over-month basis, the second consecutive monthly decline. According to the CoreLogic HPI, national home prices, including distressed sales, also declined by 4.1 percent in September 2011 compared to September 2010.
...
“Even with low interest rates, demand for houses remains muted. Home sales are down in September and the inventory of homes for sale remains elevated. Home prices are adjusting to correct for the supply-demand imbalance and we expect declines to continue through the winter. Distressed sales remain a significant share of homes that do sell and are driving home prices overall,” said Mark Fleming, chief economist for CoreLogic.

CoreLogic House Price IndexClick on graph for larger image.

This graph shows the national CoreLogic HPI data since 1976. January 2000 = 100.

The index was down 1.1% in September, and is down 4.1% over the last year, and off 31.2% from the peak - and up 3.6% from the March 2011 low.

Some of this decrease is seasonal (the CoreLogic index is NSA). Month-to-month prices changes will probably remain negative through February or March 2012 - the normal seasonal pattern. It is likely that there will be new post-bubble lows for this index late this year or early in 2012.

All House Price Graphs





Sluggish Growth and Payroll Employment

Posted: 07 Nov 2011 06:18 AM PST

If we continue to see sluggish growth with 125,000 payroll jobs added per month (the pace this year), it will take an additional 52 months just to get back to the pre-recession level of payroll employment.

If job growth picks up a little - say to 200,000 payroll jobs per month - it will take an additional 33 months to get back to the pre-recession level.

The following two graphs show these projections.

The dashed red line is 125,000 payroll jobs added per month. The dashed blue line is 200,000 payroll jobs per month.

Employment Projection
Click on graph for larger image.

If we follow the red line path, payroll jobs will return to the pre-recession level in February 2016. The dashed blue line returns to the pre-recession level in July 2014.

And this doesn't include population growth and new entrants into the workforce (the workforce has continued to grow).

Employment Projection AlignedThe second graph shows the same data but aligned at peak job losses.

This really illustrates both the depth of the 2007 employment recession and the very sluggish recovery.

The recent debate has been between another recession and sluggish growth (I thought sluggish growth was more likely), but we have to remember even sluggish growth is a disaster for payroll employment.





Sunday Night Futures

Posted: 06 Nov 2011 07:55 PM PST

Greece is trying to form a coalition government, and the current Greek Prime Minister George Papandreou is expected to resign on Monday. Meanwhile in Italy ...

From Bloomberg:
Berlusconi’s Majority Unravels as Defections Mount Before Key Budget Vote

Prime Minister Silvio Berlusconi’s majority is unraveling before a key parliamentary vote tomorrow, with allies pressuring him to step aside after contagion from the region’s sovereign debt crisis pushed Italy’s borrowing costs to euro-era records.

From the NY Times: For Markets in Europe, the Focus of Fear Moves to Italy

Among fresh warning signs, Italy’s cost of borrowing has jumped to the highest rate since the country adopted the euro. Others signs include pressures building in the plumbing of Europe’s banking system. While those pressures are not yet at the levels experienced during the 2008 financial crisis ... they are high enough to cause worry, analysts say.

The Greek 2 year yield is down to 98%, and the Greek 1 year yield is up to 236%.

The Portuguese 2 year yield is at 20.1% and the Irish 2 year yield is up to 9.2%.

The Spanish 10 year yield is at 5.58% and the Italian 10 year yield is at 6.37%.

The Asian markets are mixed tonight. The Nikkei is down about 0.5%, the Hang Seng is down slightly.

From CNBC: Pre-Market Data and Bloomberg futures: the S&P 500 and Dow futures are down slightly.

Oil: WTI futures are up to $94.79 and Brent is up to $113.13 per barrel.

Yesterday:
Schedule for Week of Nov 6th
Summary for Week Ending Nov 4th





MERS Update: Multidistrict litigation decision

Posted: 06 Nov 2011 04:01 PM PST

CR Note: This is a guest post from albrt.

Howdy folks, this is albrt. I'm trying to get back in the habit of writing for CR once in a while, so this is an update on MERS and its role in the ongoing housing finance mess. Background posts on MERS from a couple of years ago are here and here.

The item that inspired me to start posting again was the October 3 decision by Federal District Court Judge James Teilborg of Arizona, dismissing the 72 cases in the MERS multidistrict litigation.

Background

A federal "multidistrict litigation" case (commonly called an "MDL") is set up to resolve a question that has come up in a large number of courts. The first thing that happens in an MDL case is that someone requests a panel of federal judges to look at the cases, and they decide whether it would make sense to centralize the cases with one judge to address the common issues.

All of these cases were brought by borrowers to defeat or reverse a foreclosure, which means the borrower is the plaintiff and one or more entities on the lender side are the defendants. Generally a borrower brings a case like this because the house is located in a state where foreclosures can be done without going to court, often based on a document called a deed of trust rather than a true mortgage.

The lender defendants in six cases, including MERS, requested centralization in Arizona. The MDL panel decided to send cases involving allegations that "various participants in MERS formed a conspiracy to commit fraud and/or that security instruments are unenforceable or foreclosures are inappropriate due to MERS's presence as a party." The panel did not send claims involving other allegedly unlawful loan origination or collection practices.

When an MDL is opened up, other federal judges can send cases that appear to qualify, so the MDL eventually grew from 6 to 72 cases.

By the way, Judge Teilborg is the same judge who dismissed a similar case by a plaintiff named Cervantes, and his decision was recently upheld by the 9th Circuit. The MDL panel specifically chose to send the cases to Judge Teilborg "because he presided over Cervantes." The 9th Circuit's decision in September may have had a lot to do with the timing of this decision in October.

Judge Teilborg's Decision

Judge Teilborg considered motions to dismiss 20 of the MDL cases, and dismissed each of them. Judge Teilborg then dismissed the remaining 52 complaints, but ordered the plaintiffs to take their best collective shot at submitting a "consolidated amended complaint" that avoided the shortcomings identified in the previous 20 complaints. The October 3rd order dismissed the consolidated complaint, and dismissed each of the 72 MDL claims with prejudice. At least some of the cases are apparently still alive in other courts based on claims that were not covered by the MDL decision.

The Fraud Issues

The fraud issues were essentially disposed of by earlier rulings, including Cervantes, and did not figure prominently in the October 3 MDL decision. Federal court rules require fraud allegations to be specific. Fraud is a hard claim to prove - to simplify it a little, the plaintiff needs to identify false statements, and explain how the plaintiff was harmed by relying on the statements.

The 9th Circuit said:

Although the plaintiffs allege that aspects of the MERS system are fraudulent, they cannot establish that they were misinformed about the MERS system, relied on any misinformation in entering into their home loans, or were injured as a result of the misinformation. If anything, the allegations suggest that the plaintiffs were informed of the exact aspects of the MERS system that they now complain about.

The 9th Circuit apparently based the latter observation on the deed of trust itself, which said MERS would be the beneficiary and the note could be transferred without notice, which was basically what happened.

The Invalidation Issue

Judge Teilborg summarized the issue like this:

Fundamentally, all of Plaintiffs' claims turn on their contention that naming MERS as a beneficiary on the deeds of trust, and the subsequent operation of the MERS system, splits the MERS deeds of trust from their promissory notes and renders these notes unsecured and unenforceable. . . . The documents alleged to be false would only be false if there is legal merit to these arguments; the wrongful foreclosures would only be wrongful if one of these theories holds.

Judge Teilborg decided that naming MERS as a beneficiary on a deed of trust does not permanently destroy the security interest and completely bar foreclosure. That eliminated the second major MDL claim, although Judge Teilborg recognized that some of the plaintiffs might be able to get some relief based on narrower allegations about what happened in their specific cases.

Miscellaneous Points

The plaintiffs argued that the deeds of trust in some of these cases could qualify as "false documents" for the purpose of an Arizona Statute prohibiting the recording of false documents. In addition to ruling that the documents could not be considered "false" based on general MERS invalidity, Judge Teilborg said "robosigning" was an issue between the parties to the assignment, and was not something the borrowers could sue over. I'm not sure this is right. Although courts in non-judicial foreclosure situations have generally have not upheld a broad "show me the note" doctrine, in at least some situations borrowers may have a right to know that the person foreclosing can prove title to the loan and the deed of trust.

Judge Teilborg also decided that the foreclosures could not be wrongful unless the plaintiffs had not defaulted. The plaintiffs argued that a foreclosure can be wrongful in other ways. The law is unclear on this point, and a decision from a state court while the MDL decision is up on appeal could change the outcome.

My Conclusions

I would be the last person to argue that banks did nothing wrong in the last ten years. I am very critical of the banks, and of the way the Bush-Obama administration has dealt with the banks. However, I am in about 90% agreement with Judge Teilborg that the plaintiffs in the MDL litigation were wrong about their two central arguments.

I haven't seen any evidence that the banks were intentionally trying to fool borrowers when they developed MERS. The banks were trying to avoid recording fees, and they were trying to develop a system for offloading inherently bad loans onto the buyers of mortgage backed securities and derivatives. I don't think the banks cared at all about borrowers.

Judge Teilborg also seems to me to be correct about automatically invalidating MERS mortgages. It is clear that there are many foreclosure cases where the wrong party has done the wrong thing, sometimes spectacularly wrong. Many of those foreclosures should be halted until things are sorted out. But even in the worst case scenario a judge can probably figure out who owns what, and eventually allow somebody to foreclose if the borrower isn't paying. That will be costly, but there is no reason why the mortgage should be permanently invalidated.

With 72 cases in this MDL, it is certainly possible that one or more plaintiffs will succeed in persuading the 9th Circuit that Judge Teilborg overlooked something. But there isn't any broad legal doctrine of "Bank error in your favor! Collect 1 free house." Screwed up paperwork makes things more difficult for borrowers in some respects, but it can also work in the borrower's favor in negotiations for a modification, or especially in bankruptcy. It rarely ends up completely and permanently invalidating the bank's security interest.

In fact, some folks may remember the case of Olga, whose mortgage was invalidated in bankruptcy. The lender appealed, and from what I can tell by looking at later court documents the parties reached a settlement including a mortgage modification. Even Olga does not appear to have gotten a free house.

Some lenders have apparently learned at least part of the lesson, and have stopped filing foreclosures in the name of MERS. If MERS assigns the deed of trust to the correct entity, that should resolve a lot of the complications by reuniting the mortgage and the note.

If folks have questions, I can try to address them in a follow-up post.





Report: Greek Government Agrees to Coalition Deal

Posted: 06 Nov 2011 02:12 PM PST

From Athens News: Coalition government deal reached

According to sources, Greek prime minister George Papandreou and opposition leader Antonis Samaras agreed on the form of a coalition governments at talks hosted by the president Karolos Papoulias on Sunday.

According to an announcement [from] the Presidency George Papandreou will not lead the new government. The new government will ratify the EU deal of Oct. 26th and afterwards will lead the country to elections.

UPDATE:

From the NY Times: Leaders in Greece Agree to Form a New Government

After crisis talks on Sunday night, Prime Minister George Papandreou and his main rival agreed to create a new unity government in Greece that will not be led by Mr. Papandreou, according to a statement released Sunday night by the Greek president, who mediated the talks.

Mr. Papandreou and the opposition leader Antonis Samaras agreed to meet again on Monday to hammer out the details. The name of the new prime minister is not expected until then.





Retail: Seasonal Hiring vs. Retail Sales

Posted: 06 Nov 2011 10:53 AM PST

On Friday I noted that retailers hired seasonal workers at close to the pre-crisis pace in October. Reader Hd asked about the correlation between seasonal hiring and retail sales. Below is a scatter graph of historical October retail hiring vs. the real increase in retail sales.

First, here is the NRF forecast for this year: NRF Forecasts Holiday Sales Increase of 2.8 Percent to $465.6 Billion

The 2011 holiday season can be summed up in one word: average. On the heels of a holiday season that outperformed most analysts’ expectations, holiday retail sales for 2011 are expected to increase 2.8 percent to $465.6 billion, according to the National Retail Federation. While that growth is far lower than the 5.2 percent increase retailers experienced last year, it is slightly higher than the ten-year average holiday sales increase of 2.6 percent.
...
NRF used its holiday forecasting model to create a projection for seasonal hiring in retail. According to NRF, retailers are expected to hire between 480,000 and 500,000 seasonal workers this holiday season, which is comparable to the 495,000 seasonal employees they hired last year.
...
Retail industry sales include most traditional retail categories including discounters, department stores, grocery stores, and specialty stores, and exclude sales at automotive dealers, gas stations, and restaurants.

Here is a repeat of the graph of retail hiring based on the BLS employment report:

Seasonal Retail Hiring
Click on graph for larger image.

This graph shows the historical net retail jobs added for October, November and December by year.

Retailers hired 141.5 thousand workers (NSA) net in October. This is about the same level as in 2003 through 2006 and the same as in 2010. Note: this is NSA (Not Seasonally Adjusted).

Seasonal Retail Hiring vs. SalesThe scatter graph is for the years 1993 through 2010 and compares October retail hiring with the real increase (inflation adjusted) for retail sales (Q4 over previous Q4).

In general October hiring is a pretty good indicator of seasonal sales. R-square is 0.69 for this small sample. Note: This uses retail sales in Q4, and excludes autos, gasoline and restaurants.

This suggests a real gain of around 2.5% in Q4 (plus inflation), well above the NRF forecast of 2.8% nominal (including inflation).

However November is the key month for seasonal retail hiring, and if retailers hire 330,000+ seasonal workers in November like last year, this retail season will probably be solid.





 

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Are predetermined Appraisal ADJUSTMENTS Legal/Ethical

Are predetermined Appraisal ADJUSTMENTS Legal/Ethical? Please see attached Predetermined adjustments provided
by
Curtis - Rosenthal, Inc. (MAI Appraiser Los Angeles) LLC. an MAI Firm. You be the judge and get back with us or call
them for this years update. If your property was acquired by the Los Angeles World Airport (LAWA) you had better read
this!
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Appraisal Institute and Racial Discrimination,


Posted by Cochise
Commercial Appraiser http://www.harriscompanyrec.com/files/http___mccoynet.pdf


It appears that discrimination is something that the Appraisal Institute knows a lot about. In fact they use to be called T
he American
Institute of Real Estate Appraisers
until they were sued, for discrimination, by the Federal Government. They then changed their
name to the Appraisal Institute, same pig, different shade of lipstick.
(The MAI Appraiser Standard, Larry A Mc Coy, MAI)
Application Local governments are not immune from proscriptions of Title VIII, and may be sued. United States v Black Jack ...
provides for actions against states and political subdivisions as well as actions against private transactions and practices;
comprehensive purpose of Fair Housing Act)... would be diluted if it were to apply only to actions of private individuals and entities. ...
applies to appraisers of real estate. United States v American Institute of Real Estate Appraisers etc. (1977, ND Ill) 442 F Supp
1072, 24 FR Serv 2d 880, app dismd (CA7 Ill) 590 F2d 242, 48 ALR Fed 657. 42 USCS ? 3604(a, b, d)’

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New post on LAW OF THE LAND

New post on LAW OF THE LAND


 


MA Supreme Judicial Court Holds Plaintiff Failed to Timely Object to Issuance of Building Permit

by Patty Salkin

Defendant owned property surrounded by plaintiff’s property.  Defendant notified the plaintiff that he planned to knock down the two-family house on his property and replace it with a new, bigger, two-family house, and he filed applications for a building permit on July 28th.  While visiting the building department, plaintiff found out that defendant had filed his applications.  Consequently, on August 20th, plaintiff sent a letter to the building commissioner, opposing the issuance.  The building permits were issued on September 15th.  Although plaintiff was not given notice of the issuance, he discovered it while visiting the building department on September 25th

Thirty-five days after the issuance of the building permits, on October 20th, plaintiff filed an appeal with the board.  The board held that plaintiff lacked jurisdiction because the statute requires an appeal within thirty days.  This decision was upheld by the land court and then affirmed by the Appeals Court.

Although plaintiff argues he had six years to file a request to enforce a zoning ordinance under Section 7 of the Zoning Act, the court disagreed, explaining that the six year limit in that Section is only available when the aggrieved person does not have notice of the issuance of the permit.  Here, plaintiff knew within ten days that the permit had been issued, and that Section 8 of the Zoning Act is clear that an aggrieved person must seek an appeal within thirty days of the issuance of the permit.  

Finally, plaintiff purports that his August 20th letter was an enforcement request.  The court denied this contention.  An enforcement request, explains the court, must be made after the violation has occurred.  Since the letter pre-dated the issuance of the permit, there was not yet a potential violation of plaintiff’s rights.  The claim is thus properly dismissed for lack of jurisdiction.

Connors v. Annino, 460 Mass. 790 (10/26/2011)

This opinion can be accessed at: http://massachusettssupremecourtopinions.justia.com/2011/10/26/connors-jr-v-annino 

For more information about this decision see the Massachusetts Land Use Monitor Blog at:  http://www.massachusettslandusemonitor.com/add-category/sjc-confirms-30-day-appeal-period-for-building-permits-where-abutter-has-adequate-notice

Patty Salkin | November 7, 2011 at 1:44 am | Categories: Current Caselaw, Statute of Limitations | URL: http://wp.me/p64kE-1uJ

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inversecondemnation

inversecondemnation ________________________________________ Final Cert Briefs In West Linn Case: Are Nollan And Dolan Limited To Exactions Of Land? Posted: 06 Nov 2011 04:30 PM PST We've been thinking a lot about exactions lately. First, it was the petition for certiorari in West Linn Corporate Park LLC v City of West Linn, No. 11-299 (petition for cert. filed Sep. 6, 2011), which asks whether the nexus and "rough proportionality" tests for a regulatory taking in Nollan and Dolan are limited to government demands for land. Then, late last week the Florida Supreme Court disagreed with the California and Texas Supreme Courts, and held in St. Johns River Water Management Dist v. Koontz, No. SC09-713 (Nov. 3, 2011) that Nollan and Dolan analysis is limited to real estate exactions, and do not apply to demands for offsite mitigation. Now we're back to the West Linn case, since the parties have filed their final briefs, and the Court is scheduled to decide whether to take the case at its upcoming November 10, 2011 conference. So here are the city's Brief in Opposition and the property owner's Reply Brief. We're following this case closely, so will have more after the Court releases its order from the conference. This seems like an issue that is ripe for resolution so to us the chances of a grant are as good as they can be. This posting includes an audio/video/photo media file: Download Now
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November 06, 2011

NY Appellate Court Finds Right-of-Way Easement is Not a Paper Street

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NY Appellate Court Finds Right-of-Way Easement is Not a Paper Street

by Patty Salkin

Defendant Valentine had proposed to improve Terrace Place, a right-of-way easement which benefitted his parcel and burdened parcels owned by plaintiffs, the Blums.  Following an Article 78 proceeding seeking to invalidate site plan approval given to Valentine’s plan, see Valentine v. McLaughlin, 930 N.Y.S.2d 51 (N.Y.A.D. 2 Dept. 2011), the Blums filed this action seeking a judgment that Terrace Place is not a “paper street” and to enjoin Valentine and town officials from developing it by virtue of its characterization as a “paper street.”  

In a related proceeding, the state Supreme Court, Westchester County, had remarked in dicta that it believed Terrace Place to be a street, and thus held that the Blums were collaterally estopped from challenging the legal status of Terrace Place.  However, the Appellate Division held that the Blums did not have a fair opportunity to litigate the legal status of Terrace Place, and that the injunctive relief they sought was not available to them in the original Article 78 proceeding.  Therefore, the state Supreme Court erred in holding that the Blums were collaterally estopped from seeking such relief, and the challenge to the legal status of Terrace Place could proceed.                    

On the matter of the legal status of Terrace Place, the Appellate Division noted that town law prohibited the issuance of a building permit for a parcel without access to a “street or highway,” and that Valentine’s property lacked access to any established “street or highway,” since it only had access to streets via the Terrace Place right-of-way.  Since the plaintiff failed to provide any evidence that Terrace Place was listed on any official town documents as a “paper street,” the court held that Terrace Place was not a “paper street” which would satisfy the requirements of town law.  Therefore, the state Supreme Court had also erred in denying the Blums’ motion for summary judgment declaring that Terrace Place was a “right-of-way,” not a “paper street,” and enjoining defendants from developin g Terrace Place as a paper street.  The case was remitted to the trial court for an entry of judgment in favor of the Blums. 

Blum v. Valentine, 2011 WL 4507168 (N.Y.A.D. 2 Dept. 9/6/2011) 

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2011/D32374.pdf

Patty Salkin | November 6, 2011 at 1:21 am | Categories: Current Caselaw - New York, Paper Streets | URL: http://wp.me/p64kE-1uk

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November 05, 2011

TODAY'S NEWS

November 4, 2011

TODAY'S NEWS

AFFORDABLE HOUSING

SAN FRANCISCO EXAMINER: Measure G has San Mateo affordable-housing mandate in limbo

By Niko Kyriakou // Unless voters approve Measure G next week, San Mateo may no longer be able to require developers to build affordable housing. Some 1,200 people are on the city’s affordable-housing wait list, and some 1,000 applicants recently applied for 67 affordable units in a new development, according to city data. But the city’s requirement that more affordable housing be built could be undone by a 2009 a lawsuit known as the Palmer case.

 

SAN JOSE MERCURY NEWS: Fremont affordable housing project opens

By Wes Bowers // A major affordable housing project officially opened this week in Irvington. City of Fremont officials, along with Alameda County and state leaders, celebrated the grand opening of Main Street Village Wednesday afternoon.  The affordable rental apartment project, located at 3615 Main St., offers 64 units to very low-income individuals and families, including those who have been homeless or have faced mental health challenges.

 

MORTGAGE & FORECLOSURE ISSUES

VENTURA COUNTY STAR: Delinquent borrowers won't qualify for plan to aid loan refinance
By Stephanie Hoops // After President Barack Obama's changes to a program meant to help Americans refinance their "underwater" homes, people who have been advised by banks to become delinquent on their loans don't see it as a savior. Full details for the revised Home Affordable Refinance Program won't be released to mortgage lenders and servicers until Nov. 15, but what is known is that homeowners who owe more on their loans than their houses are worth must be current on their mortgage payments.



ECONOMY / EMPLOYMENT

ASSOCIATED PRESS: US poverty data: 1 in 15 people among America's poorest poor

The ranks of America's poorest poor have climbed to a record high — 1 in 15 people — and spread widely across metropolitan areas, as the US housing bust pushed many inner-city poor into suburbs and other outlying places and reduced jobs and income.

 

Cost of living in L.A. County increases sharply over last decade

By Abbey Seltzer // The cost of living in Los Angeles County has increased more than 18 percent in the last three years, and 46 percent in the last eight years, according to a new study. “We take deep looks into the costs between counties,” said Jenny Chung Mejia, attorney and program manager for Insight Center for Community Economic Development, the entity that published the study. “Our figures are based on measures that fully encompass all aspects to the cost of living.”

 

TRANSPORTATION

SIERRA MADRE PATCH: Huff gets behind new California high speed rail plan

State Senator Bob Huff (R-Diamond Bar) has issued a statement showing his support for the recently released new business plan from the California High-Speed Rail Authority. Huff’s support of the new plan cites what he believes to be a growing need for transportation investment as California’s population grows.

 

REDEVELOPMENT / INFILL / REVITALIZATION

SAN JOSE MERCURY NEWS: California Supreme Court expected to hear redevelopment challange in January

By Carol Rosen // An upcoming California Supreme Court hearing could decide the fate of the state's redevelopment agencies, which are in a state of limbo. Last winter Gov. Jerry Brown and the California Legislature authorized two new laws, ABX26 and ABX27, that would allow the cash-strapped state to take money from municipal governments' redevelopment agencies. The first law essentially allows the state government to rescind its 1955 action creating redevelopment agencies for the cities. The second allows these agencies to remain in good stead with a $47 million payment to the state. The idea, according to several pundits, is to allow the state to uphold its promise to pay back schools for the money it took in recent years from the education budget.


 

 


 

POPULATION

ASSOCIATED PRESS: Mobility falls to record low as Americans stay put

By Hope Yen // Yet another symptom of the economic downturn: Americans aren't moving. Young adults are staying put, often with their parents. Older people aren't able to retire to beachfront or lakeside homes. U.S. mobility is at its lowest point since World War II. New information from the Census Bureau highlights the continuing impact of the housing bust and unemployment on U.S. migration, after earlier signs that mobility was back on the upswing.

 

DEMOGRAPHICS / QUALITY OF LIFE

PASADENA STAR-NEWS: Ohland and Zane: Smart growth in San Gabriel Valley

By Gloria Ohland & Denny Zane [Opinion] // Southern California is on the cusp of change in the way we live and get around, changes dictated by the never-ending problem of traffic as well as demographic shifts: retiring Baby Boomers, a big increase in single-person households, a decline in the number of families with children - that are causing dramatic changes in the housing market. The future is smart growth and, especially with the huge Measure R-funded investment in 12 rail lines, more transit-oriented development, as well as downtown revitalizations, mixed-use, infill development, more bike lanes, wider sidewalks.

 

ENVIRONMENT / CLIMATE CHANGE

WEST HOLLYWOOD NEWS: Apartment smoking ban: Evictions possible?

While WeHo council members John Heilman and Abbe Land went about banning outdoor smoking at restaurants and bars in West Hollywood, opponents decried the move as a slippery slope portending an expansion of the ban that would eventually threaten renters. Few imagined the veritable landslide coming down out of Sacramento that is Senate Bill 322, which allows landlords to prohibit smoking in rental units. The law goes into effect on January 1, 2012. Critics say the law targets smokers in rental properties for eviction, as landlords would be free to change the terms of tenancy.

 

SANTA BARBARA EDHAT: Housing project receives certification

The first 22 homes of UC Santa Barbara's Ocean Walk faculty housing project have been awarded Leadership in Energy and Environmental Design (LEED) for Homes certification by the U.S. Green Building Council (USGBC). Ocean Walk is the first housing project in the University of California system to receive LEED for Homes certification.

 

LOS ANGELES WAVE: Compton approves strict ban on smoking

By Leiloni De Gruy // The Compton City Council has unanimously approved an aggressive smoking ban that its backers call the most restrictive in the state. By Jan. 1, 2013, it will call for persons living in multi-unit residences to refrain from smoking inside their own living quarters. The ordinance allows the city to restrict smoking and tobacco use in public places as a means to “limit public exposure to secondhand smoke and promote a healthy environment for the residents in the city of Compton,” stated the Oct. 25 staff report.

 

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DOJ Announced Consent Decree Reached in Virginia Mosque Dispute

New post on LAW OF THE LAND


 


DOJ Announced Consent Decree Reached in Virginia Mosque Dispute

by Patty Salkin

The following is excerpted from the U.S. DOJ’s Religious Freedom in Focus Newsletter (October 2011)

On September 12, a federal court in Virginia approved a consent decree resolving the United States' lawsuit alleging that the County of Henrico, Virginia violated RLUIPA when it denied a request for rezoning by a Muslim organization to construct a mosque. The settlement, which was approved by the United States District Court for the Eastern District of Virginia in Richmond, resolved a suit by the United States filed on September 6.

The case arose from the county's denial of a 2008 application for construction of a mosque by 1241 Associates, LLC, a Muslim organization. The government's complaint, which was filed with the court along with a proposed consent decree, alleged that the county's denial of the rezoning application was based on the religious bias of county officials and to appease members of the public who, because of religious bias, opposed the construction of the mosque. The complaint further alleged that the county treated the Muslim organization differently than non-Muslim groups that regularly have been granted similar rezoning requests.

As part of the settlement, the county agreed to treat the mosque and all religious groups equally and to publicize its non-discrimination policies and practices. The county also agreed that its leaders and various county employees will attend training on the requirements of RLUIPA. In addition, the county will report periodically to the Justice Department.

On September 1, 2011, the Department reached a similar consent decree in federal court in Georgia, resolving allegations that the City of Lilburn violated RLUIPA when it denied an Islamic Center's requests for rezoning to expand its mosque. The United States' complaint in that case also alleged that th e city's denials of the rezoning requests were based on religious bias of city officials and to appease members of the public opposed to the mosque because of religious bias.

Patty Salkin | November 5, 2011 at 1:03 am | Categories: RLUIPA | URL: http://wp.me/p64kE-1uB

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DOJ Closes RLUIPA Investigation After NY Town Allows Church to Meet and Amends Zoning Code

New post on LAW OF THE LAND


 


DOJ Closes RLUIPA Investigation After NY Town Allows Church to Meet and Amends Zoning Code

by Patty Salkin

The following is excerpted from the U.S. DOJ’s Religious Freedom in Focus Newsletter (October 2011)

On October 27, the Civil Rights Division closed its investigation of Schodack, New York under the Religious Land Use and Institutionalized Persons Act (RLUIPA) after the town agreed to allow a church to move into space it had rented and amended its zoning code to treat religious assemblies equally with nonreligious assemblies. The Civil Rights Division had opened an investigation in November 2010, after receiving a complaint that the town had told the Immanuel Church that it had to obtain a variance to rent space in a commercial zone where nonreligious assemblies were permitted as of right, and then denied the church's variance request.

Immanuel Church is a small Christian church with less than 80 members. In late 2009, the church began a search for property to rent in the Town of Schodack for Sunday worship, offices, and religious education classes. The church entered into a lease for office space in a building in a commercial district that previously had been used as a training center. At the time, Schodack's zoning ordinance only allowed churches in three residential districts, and then only with a special use permit. Churches were barred from commercial districts, although non-religious assemblies such as membership clubs and lodges, funeral homes, libraries, and museums could locate as a matter of right in those districts. Certain other nonreligious assemblies, including recreational facilities, indoor and outdoor amusement businesses, civic centers, a nd theaters, could locate in a commercial zone with a special use permit.

The Civil Rights Division opened an investigation to determine whether the city's actions were in violation of Section 2(b)(1) of RLUIPA, which provides that "no government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution."

In response to the investigation, the town granted the Immanuel Church a five-year special use permit to rent the space. The town also revised its zoning ordinance on August 25, 2011. It now treats religious assemblies equally with membership clubs and lodges, permitting them as of right or with a special use permit in the vast majority of zoning districts.

Patty Salkin | November 5, 2011 at 1:58 am | Categories: RLUIPA | URL: http://wp.me/p64kE-1uy

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November 04, 2011

Fed. Dist. Court in NY Dismisses Claims Already Addressed by State Court

New post on LAW OF THE LAND


 


Fed. Dist. Court in NY Dismisses Claims Already Addressed by State Court

by Patty Salkin

To build a shed and a single family residence on his property, Plaintiff sought easement rights to access the parcel with a motor vehicle.  Defendants, Bond and Bootey live near the Plaintiff’s land and, along with the Village, opposed the application.  The Village ultimately refused to issue zoning permits, imposed restrictions because the parcel was considered a “corner lot”, and refused to grant the easement. 

Plaintiff built the shed anyway and subsequently commenced litigation in the state courts.  The state courts resolved three separate issues: that Plaintiff’s property is not a corner lot and, therefore is not subject to extra restrictions; affirmed the Village’s easement denial; and declared that the Plaintiff’s construction of the shed impedes the rights of Bond and Bootey. 

After this decision was rendered by the state court, Plaintiff filed this case in the federal court alleging violations of the Fourteenth Amendment for differential treatment in allowing other property owners to build; asking the court to revisit denial of the easement from the state court; alleging a constitutional challenge to the Village code; accusing the village of retaliation for exercising First Amendment rights; claiming sewer trespass by the village; and claims for  various injunctions to remove structures on Bond and Bootey’s land.  

The court began by dealing with the application of the Rooker-Feldman doctrine which prohibits cases brought to the federal courts by those who lost their case at the state level and are seeking rejection of the state court’s holdings.  The court found that the first three claims asserted by the Plaintiff in this federal action resemble the claims decided by the state court.  Even if the Rooker-Feldman doctrine did not apply, the court points out, alternatively, the actions would be barred under the doctrine of res judicata because the claims either were or should have been raised at the state court. 

Regarding the alleged First Amendment violation, the Court found that the Plaintiff had not pled any information to satisfy its claim.  The court deduced that plaintiff was arguing that because of his victory in the corner-lot issue, actions by the village were in retaliation.  The court found that Plaintiff merely reiterated his issues from the state courts and that the Village had simply taken a position against the issues presented by Plaintiff.  The Plaintiff did, said the court, have two allegations that may be re-pleaded: allegations that the village posted an advertisement criticizing plaintiffs and that an amendment to the Code was meant to target the Plaintiff.  

Since this court dismissed all the federal claims brought by the Plaintiff, they decline to extend supplemental jurisdiction to any remaining state law claims but allowed plaintiff to reassert them at the state court.  

Turner v. Village of Lakewood, 2011 WL 4899965 (W.D.N.Y. 10/14/2011).  

The opinion can accessed at: http://scholar.google.com/scholar_case?case=11665571315498801366&q=turner+v.+village+of+lakewood&hl=en&as_sdt=2,33

Patty Salkin | November 4, 2011 at 6:20 am | Categories: Current Caselaw - New York, Res Judicata, Retaliation, Rooker-Feldman Doctrine | URL: http://wp.me/p64kE-1uw

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November 03, 2011

VT Supreme Court Holds Individual Board Members Need Not Disclose Records Under State Disclosure Law Directly to Plaintiff, but Rather May Comply Through the Zoning Administrator


VT Supreme Court Holds Individual Board Members Need Not Disclose Records Under State Disclosure Law Directly to Plaintiff, but Rather May Comply Through the Zoning Administrator

by Patty Salkin

Plaintiff owns land that abuts a proposed subdivision.  The Development Review Board approved the subdivision application in 2009 and Plaintiff appealed to the Environmental Division.  In connection with the appeal, the Plaintiff made various pro se written requests for public records to the Town’s Zoning Administrator and the individual Board members.  

One of the members responded personally to the Plaintiff by sending the records sought, but indicated that she regularly deleted emails due to volume of email, and emails prior to a specific date had been deleted.  Everyone else on the Board responded through the Zoning Administrator, who sent a letter to Plaintiff stating that some of the records requested were exempt under the State’s Public Records Act, but that all non-exempt records would be provided on a certain date.  Plaintiff did not show up at the Town Offices to retrieve the records on the date indicated by the Zoning Administrator (and the Plaintiff conceded he did not show up).
The Town then filed for a protective order to enjoin the Plaintiff from requesting additional records or contacting Board members other than through counsel, arguing these were nothing more than discovery requests and therefore the Plaintiff’s attorney should be involved in the requests. The Environmental Court granted the protective order in part, noting that so far as the requests were public records requests under State statute, those requests must be addressed in Superior Court.  The Town then filed a motion to remand the Board’s decision back to the Board, which the Environmental Division granted.  

The Plaintiff then appeared at a Town Board meeting and alleged that the engineering firm tasked with evaluating the proposed subdivision had a conflict of interest.  He was told his comments were inappropriate for the meeting due to the pending litigation, and that he should take up his concern up with the Town attorney.  Plaintiff then filed a series of complaints against the Town and the Board.  One complaint sought the same records originally requested under the State records law, the second was to enjoin the Town from taking any action to intimidate him from exercising his right to petition the Town for a redress of grievances (arguing that the Town was retaliating against him by seeking a protective order); and third, sought an injunction against the Town. His complaint against the Board sought an order to compel production, alleging that the Zoning Administrator’s participation in deliberations waived the public records exception and violated the Municipal Administrative Procedures Act’s prohibition on ex parte communication when the Board allowed the Zoning Administrator to participate in the Board’s deliberative sessions as its clerk.  

Plaintiff issued discovery requests to both the Town and the Board that contained requests to admit which Defendants did not respond to in a timely manner, which prompted the Plaintiff to file a motion for summary judgment, alleging that that since the Defendants had not replied, they therefore admitted the facts as alleged in the requests to admit and that he was therefore entitled to summary judgment.  The Defendants, however, said that they were not aware of the requests to admit because Plaintiff buried them in the document that they did not read carefully enough.  The Town and the Board then requested an extension to respond to the discovery requests and file their own motions for summary judgment. 

At a status conference, the Plaintiff was provided with a copy of all remaining public records and the Board and Town told the court that they had responded to the request in full.  After the Court said that the Plaintiff was entitled to that representation in writing, the Defendants sent two letters to Plaintiff so stating.  The court later granted the Defendants’ motions to enlarge time, and after responding to the requests, they filed cross motions for summary judgment.   

The Plaintiff objected to the Defendants’ cross-motions, asserting that the grant of the motion to enlarge time didn’t include permission to file cross-motions.  Defendants then filed additional motions to enlarge time, specifically requesting leave to file cross-motions for summary judgment.  The trial court noted that such motions were unnecessary, but granted them regardless, and then granted the Defendants’ motions for summary judgment finding that they had complied with the State’s record access law, and that litigation immunity applied with respect to the protective order.  The court did conclude, however, that the board chair violated Plaintiff’s rights to free speech at the meeting when Plaintiff was not permitted to continue discussing his concern over the alleged conflict of interest.  But, the Court said, the violation was cured with future open meetings and the opportunity to appeal to the Environmental Division.  

Plaintiff then appealed, first alleging that the trial court erred in granting summary judgment because the Board failed to comply with the state records law by responding to his requests through the clerk, rather than through individual members, and because the Town Zoning Administrator does not qualify as the clerk.  Yet the Plaintiff had already conceded that he was provided with all requested documents. 

The Vermont Supreme Court noted that the statute refers to the “custodian” of a public record—a word not defined in the statute and that the trial court consulted Black’s Law Dictionary to define “custodian” and concluded that the Zoning Administrator fit the definition.  Although the Plaintiff asserted that the statute must be liberally construed to afford disclosure, the Court found the trial court’s approach reasonable and noted that the Plaintiff did not explain how this interpretation hindered or injured him.  With respect to the Plaintiff’s argument that the Board members should have responded directly to him and not through the Zoning Administrator, the Court said such had no basis in law.  

With respect to Plaintiff’s argument that his free-speech rights were violated when he was quieted during an open meeting, the Supreme Court said any violation had been cured by subsequent open meetings, and noted that the Plaintiff did not seek any monetary damages, so the Court found no error. With respect to Plaintiff’s claim that his due process rights were violated because he did not get a fair hearing before the Board on the subdivision application, the Supreme Court noted that the appropriate remedy was an appeal to the Environmental Division, and that since this occurred and the Environmental Division remanded, any violation was cured.  

Pease v. Windsor Development & Review Board, 2011 WL 4634240 (VT. 9/29/2011) 

The opinion can be accessed at:  http://info.libraries.vermont.gov/supct/current/eo2010-286.html
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VT Supreme Court Holds Individual Board Members Need Not Disclose Records Under State Disclosure Law Directly to Plaintiff, but Rather May Comply Through the Zoning Administrator


VT Supreme Court Holds Individual Board Members Need Not Disclose Records Under State Disclosure Law Directly to Plaintiff, but Rather May Comply Through the Zoning Administrator

by Patty Salkin

Plaintiff owns land that abuts a proposed subdivision.  The Development Review Board approved the subdivision application in 2009 and Plaintiff appealed to the Environmental Division.  In connection with the appeal, the Plaintiff made various pro se written requests for public records to the Town’s Zoning Administrator and the individual Board members.  

One of the members responded personally to the Plaintiff by sending the records sought, but indicated that she regularly deleted emails due to volume of email, and emails prior to a specific date had been deleted.  Everyone else on the Board responded through the Zoning Administrator, who sent a letter to Plaintiff stating that some of the records requested were exempt under the State’s Public Records Act, but that all non-exempt records would be provided on a certain date.  Plaintiff did not show up at the Town Offices to retrieve the records on the date indicated by the Zoning Administrator (and the Plaintiff conceded he did not show up).
The Town then filed for a protective order to enjoin the Plaintiff from requesting additional records or contacting Board members other than through counsel, arguing these were nothing more than discovery requests and therefore the Plaintiff’s attorney should be involved in the requests. The Environmental Court granted the protective order in part, noting that so far as the requests were public records requests under State statute, those requests must be addressed in Superior Court.  The Town then filed a motion to remand the Board’s decision back to the Board, which the Environmental Division granted.  

The Plaintiff then appeared at a Town Board meeting and alleged that the engineering firm tasked with evaluating the proposed subdivision had a conflict of interest.  He was told his comments were inappropriate for the meeting due to the pending litigation, and that he should take up his concern up with the Town attorney.  Plaintiff then filed a series of complaints against the Town and the Board.  One complaint sought the same records originally requested under the State records law, the second was to enjoin the Town from taking any action to intimidate him from exercising his right to petition the Town for a redress of grievances (arguing that the Town was retaliating against him by seeking a protective order); and third, sought an injunction against the Town. His complaint against the Board sought an order to compel production, alleging that the Zoning Administrator’s participation in deliberations waived the public records exception and violated the Municipal Administrative Procedures Act’s prohibition on ex parte communication when the Board allowed the Zoning Administrator to participate in the Board’s deliberative sessions as its clerk.  

Plaintiff issued discovery requests to both the Town and the Board that contained requests to admit which Defendants did not respond to in a timely manner, which prompted the Plaintiff to file a motion for summary judgment, alleging that that since the Defendants had not replied, they therefore admitted the facts as alleged in the requests to admit and that he was therefore entitled to summary judgment.  The Defendants, however, said that they were not aware of the requests to admit because Plaintiff buried them in the document that they did not read carefully enough.  The Town and the Board then requested an extension to respond to the discovery requests and file their own motions for summary judgment. 

At a status conference, the Plaintiff was provided with a copy of all remaining public records and the Board and Town told the court that they had responded to the request in full.  After the Court said that the Plaintiff was entitled to that representation in writing, the Defendants sent two letters to Plaintiff so stating.  The court later granted the Defendants’ motions to enlarge time, and after responding to the requests, they filed cross motions for summary judgment.   

The Plaintiff objected to the Defendants’ cross-motions, asserting that the grant of the motion to enlarge time didn’t include permission to file cross-motions.  Defendants then filed additional motions to enlarge time, specifically requesting leave to file cross-motions for summary judgment.  The trial court noted that such motions were unnecessary, but granted them regardless, and then granted the Defendants’ motions for summary judgment finding that they had complied with the State’s record access law, and that litigation immunity applied with respect to the protective order.  The court did conclude, however, that the board chair violated Plaintiff’s rights to free speech at the meeting when Plaintiff was not permitted to continue discussing his concern over the alleged conflict of interest.  But, the Court said, the violation was cured with future open meetings and the opportunity to appeal to the Environmental Division.  

Plaintiff then appealed, first alleging that the trial court erred in granting summary judgment because the Board failed to comply with the state records law by responding to his requests through the clerk, rather than through individual members, and because the Town Zoning Administrator does not qualify as the clerk.  Yet the Plaintiff had already conceded that he was provided with all requested documents. 

The Vermont Supreme Court noted that the statute refers to the “custodian” of a public record—a word not defined in the statute and that the trial court consulted Black’s Law Dictionary to define “custodian” and concluded that the Zoning Administrator fit the definition.  Although the Plaintiff asserted that the statute must be liberally construed to afford disclosure, the Court found the trial court’s approach reasonable and noted that the Plaintiff did not explain how this interpretation hindered or injured him.  With respect to the Plaintiff’s argument that the Board members should have responded directly to him and not through the Zoning Administrator, the Court said such had no basis in law.  

With respect to Plaintiff’s argument that his free-speech rights were violated when he was quieted during an open meeting, the Supreme Court said any violation had been cured by subsequent open meetings, and noted that the Plaintiff did not seek any monetary damages, so the Court found no error. With respect to Plaintiff’s claim that his due process rights were violated because he did not get a fair hearing before the Board on the subdivision application, the Supreme Court noted that the appropriate remedy was an appeal to the Environmental Division, and that since this occurred and the Environmental Division remanded, any violation was cured.  

Pease v. Windsor Development & Review Board, 2011 WL 4634240 (VT. 9/29/2011) 

The opinion can be accessed at:  http://info.libraries.vermont.gov/supct/current/eo2010-286.html
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Contamination Valuation: Oral Arguments heard before the Wisconsin Supreme Court

Contamination Valuation: Oral Arguments heard before the Wisconsin Supreme Court

November 3, 2011 · 0 comments

in Articles on Eminent Domain

Dan Biersdorf presented oral arguments before the Wisconsin Supreme Court on November 1st, 2011 regarding the determination of contamination value in 260 N 12th Street, LLC and Basil Ryan Jr., vs. Dep’t of Transp., No. 2009AP001557 (Wis. filed 2010)

Our firm initially became involved with this case in March 2008 after Ryan’s initial attorney withdrew from the case. Given the complexity of his issues, he was advised to hire an attorney with extensive eminent domain experience and was referred to our firm shortly thereafter. Given our past experience handling valuation contamination cases, (Dealers Manufacturing Co. vs. County of Anoka, No. C9-99-1869 (Minn., 2000) and several favorable interim rulings in two New York cases) we agreed to represent Ryan.

Upon initial review of the case documents, we discovered a significant valuation issue associated with the subject property caused by a claim of environmental contamination. This claim had an impact upon the damage assessment made by the DOT in excess of $600,000.

One of the key issues in this case is the admission of contamination and remediation evidence in Chapter 32 condemnation cases. I’d like to address two key issues on this matter:

  1. Should contamination and remediation evidence be admitted in Chapter 32 condemnation cases where: just compensation remedies must be liberally construed in favor of the property owner; there exists separate statutory frameworks (both federal and state) to address contamination and remediation costs; and there are due process concerns and the danger of a double taking where the State reduces the amount of just compensation by contamination remediation estimates while it still can assess penalties for remediation under other regulations?
  2. Should speculative evidence of the impaired value of the property be admitted into evidence in a condemnation case where Respondent relied on estimates that had no basis of fact?

The attached brief details our stance on the issues above and others. With the intention of keeping this article brief (no pun intended), I’ll merely address a few arguments.

Regarding #1 above, if contamination/remediation evidence is allowed (especially in this case where no rebuttal contamination/remediation evidence was allowed), then the property owner is assessed with all the costs without any due process to determine whether the property owner was the responsible party. The property owner is penalized (in this case $645,000) without any determination or due process as to responsibility. In addition (the double dip) the property owner loses the ability to recover the loss in value which the State can still do because it can collect remediation costs. That is the definition of violation of due process.

Additionally, since the cleanup costs being deducted against the fair market value for the subject property were created only because of the public improvement being built by the WisDOT, the determination of just compensation for Ryan had been wrongfully diminished in violation of his rights under W.S.§32.09z95)(b). In order to comply with this statute, the costs associated with contamination remediation must not be considered in determining just compensation in this case.

Regarding #2 above, admitting contamination and remediation costs into this case would be especially egregious where the appraiser has ignored USPAP methodology, typical market norms, and failed to provide a nexus between the remediation costs and the value reductions. The WisDOT’s cost discount is entirely speculative, and we believe their appraisal report, or at least any reference to the Site Conditions adjustment, must be excluded. At trial, the WisDOT’s appraiser acknowledged that he did not use the impaired value analysis prescribed in the USPAP Advisory Opinion 9 (AO-9) or by the Appraisal Institute.

For those interested in reading more, we’ve included our Supreme Court brief. We’ll provide an update once a decision has been made.

http://www.condemnation-law.com/blog/articles-eminent-domain/2379/contamination-valuation-oral-arguments-heard-before-the-wisconsin-supreme-court/

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III. What are Some Alternative Value Definitions?

THERE MAY BE SOME LIGHT AT THE END OF THE TUNNEL 

III. What are Some Alternative Value Definitions?

Some appraisers have expressed difficulties in obtaining clear guidance from their clients or 278 from secondary market participants on the correct meaning of terms and applicability of different 279 value definitions. Some clients ask for "market value" but don‟t define or understand the term. 280 Some clients want to adjust the appraisal conclusion by stipulating terms in the analysis, e.g. a 281 sale within 30 days. This usually results in a variance from the commonly-used definitions of 282 value and the appraiser must then define the term within the document to ensure the client and 283 intended users understand what type of value is conveyed in the report. 284

Most value definitions are provided to appraisers within the customary forms, e.g. URAR. Some 285 terms in common use today include market value, liquidation value, disposition value, distress 286 sale, forced sale, forced price, short sale, foreclosures, etc. Other literature may reveal additional 287 terms of importance. (Many are reprinted within a glossary at the end of this paper.) 288

Market Value: The Public Perception –

 

It is important to understand that most real estate 289 owners, lenders, investors and government officials believe that the term "market value" reflects 290 a gross sale price that an owner of the subject would receive if the subject were put on the market 291 as of the effective date of appraisal. 292

In most definitions, market value assumes a sale to the most probable buyer within the highest 293 and best use opinion. This means the definition of the term is based on a sale from the current 294 owner to a new owner. When an appraiser is asked for a "Market Value Opinion," the public 295 perception would be that the appraiser will tell the client how much they can sell it for. This 296 necessitates an opinion of "the most probable buyer." 297

Client Expectations –

 

It is important to discuss the type and definition of value with a client to 298 ensure the appraiser is not developing an opinion of value that is different than the client‟s 299 expectations and different than the one utilized in the appraisal. This is to avoid any 300 misunderstanding between the client and the appraiser as to the type and definition of value the 301 opinion is based on. Appraisers should match the intended use of the appraisal with the defined 302 value and carefully consider each part of the defined value. For example: 303

An appraiser is asked to use residential comparable sales to provide an opinion of value 304 on a property that has a highest and best use as commercial land. The client says, "Value 305 First Exposure Draft –

 

Residential Appraising in a Declining Market 13

it as a residence and ignore the commercial land value." If the appraiser agrees to do this, 306 this appraisal has shifted from market value (commercial) to value-in-use (residential). 307

Some terms that may be significant in this issue are listed below and defined in the Glossary of 308 Terms. 309

1.

 

Disposition Value – This is a defined value that can be used by appraisers and clients 310 who are attempting to find a value that represents a particular need. This can be used by 311 clients in some markets to represent the value that they might sell the asset for after a 312 foreclosure. For a complete definition of these terms, and others that follow please see 313 the glossary. 314

2.

 

Foreclosure sale – This is the sale of a property ordered by the court and/or process of 315 law, where the seller is ordered to sell the property at auction or by other means to satisfy 316 the mortgage against that property. In many states, this is called a "sheriff‟s sale." 317

3.

 

Liquidation Value – This definition is different than the standard market value definition 318 because it assumes: 319

1. Actual market conditions currently prevailing are those to which the appraised 320 property interest is subject; 321

2. The seller is under extreme compulsion to sell; and 322

3. A limited marketing effort and time will be allowed for the completion of a sale. 323

4.

 

Market Value – This is the standard definition used in most residential appraisals. There 324 are other value definitions used for relocation and condemnation appraisals. This 325 definition refers to a "fair sale" without "undue stimulus." This definition is based on a 326 transaction occurring under ideal market conditions. 327

5.

 

Other Values – Clients may modify existing defined values to suit their current needs. If 328 an appraiser is asked to use an alternative definition, the appraiser must include that 329 defined value in the report and if another defined value is also included in the report, the 330 appraiser must be clear what definition they are using in conjunction with each value 331 opinion. 332

More than One Defined Value – Appraisers may be asked to provide more than one

 

333 type of value in an assignment. Appraisers should also remember that if they are conveying 334 a value opinion other than market value, the use of standard secondary market forms requires 335 caution. These forms have incorporated the definition of "Market Value" into the form. If 336 an appraiser were asked for "Liquidation Value," it may be necessary to utilize something 337 other than a preprinted form and include the type and definition of value being utilized. In 338 most cases, preprinted secondary mortgage market forms do not offer an option of a different 339 defined value. It is possible for appraisers to add a second defined value in the report and 340 then give the client two value opinions, e.g. market value and liquidation value. However, 341 both values must be defined within the report and the report cannot be misleading and in 342 violation of USPAP.

https://appraisalfoundation.sharefile.com/d/sbdb218d49bc48c6a

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ASTM INTERNATIONAL

Phase I/Phase II
Environmental Site
Assessment

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Phase I Environmental Site Assessment, ASTM E1527, ONLINE COURSE
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Working Papers The Lusk Center for Real Estate publishes papers

Working Papers

The Lusk Center for Real Estate publishes papers on a wide-ranging set of topics including real estate finance and investments, land use, transportation, urban growth and regulation, asset pricing, and the like. These papers reflect real estate research undertaken by faculty in the Marshall School of Business, School of Policy, Planning, and Development and the Law School. Papers are available electronically below. For hard copies, contact Nina Tibayan.

2011 | 2010 | 2009 | 2008 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999

2011
#TitleAuthor(s) Download
2011-1007What happens to household formation in a recession?Gary D. Painter and Kwan Ok Lee
Download Paper (PDF)
2011-1006Is the Art Market More Bourgeois Than Bohemian?Jenny Schuetz, Elizabeth Currid-Halkett, and Richard Green
Download Paper (PDF)
2011-1005Housing Tenure Transitions of Older Households: How close do they want to live to their kids?KwanOk Lee and Gary Painter
Download Paper (PDF)
2011-1004The Impact of the Taxpayer Relief Act of 1997 on Housing Turnover in the U.S. Single Family Residential MarketAndrea J. Heuson and Gary Painter
Download Paper (PDF)
2011-1003The nature of information and its effect on bidding behavior: laboratory evidence in a common value auctionIsabelle Brocas, Juan D. Carrillo, and Manuel Castro
Download Paper (PDF)
2011-1002Tiered Housing Allocation: an Experimental AnalysisJuan D Carrillo and Saurabh Singhal
Download Paper (PDF)
2011-1001Household Location and Race: A Twenty-Year RetrospectiveStuart A. Gabriel and Gary D. Painter
Download Paper (PDF)

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Sign Up for Buildings Webinars in November

Sign Up for Buildings Webinars in November

Mark your calendars for these free building technology webinars:

Direct-DC Power Systems for Efficiency and Renewable Energy Integration

Date: Thursday, November 3, 1:00 – 3:00 p.m. EDT
Summary: This webinar will examine the viability of using direct current (DC) generated by on-site renewable energy (RE) systems directly in its DC form to supply DC loads in residential and small commercial buildings—referred to here as ‘direct-DC’—instead of converting the DC to alternating current (AC) for distribution to the load, as is the current dominant practice. Three speakers will address the following issues: (1) The role of DC in the future building electric power system, (2) the energy savings potential of direct DC, and (3) DC power standards and the emerging market.

Register now

Ductless Hydronic Distribution Systems

Date: Tuesday, November 8, 1:00 - 2:30 p.m. EST
Summary: This webinar, presented by
Alliance for Residential Building Innovation (ARBI), will review findings from a feasibility study of ductless hydronic distribution systems in new homes and deep retrofits. The potential to eliminate ducting in homes using hydronic heating and cooling holds promise for energy savings, especially for new high performance buildings and deep retrofits with low heating and cooling loads. Presenters will discuss the advantages of hydronic distribution over traditional forced air systems.

Register now

Opportunities to Apply Phase Change Materials to Building Enclosures

Date: Friday, November 11, 2:00 – 3:00 p.m. EST
Summary: This webinar will review characteristics and properties of phase change materials (PCMs), and provide guidance on how to most effectively apply PCMs in buildings. PCMs as building materials components have the potential to achieve significant reductions in space cooling energy consumption and peak cooling loads. Our presenter is Dr. Jan Kosny, a leading researcher on both building enclosure thermal performance and the application of PCMs to building enclosures.

Register now

An Intro to the Cool Energy House Retrofit Demonstration Project

Date: Monday, November 14, 1:30 - 2:30 p.m. EST
Summary: The webinar will present a demonstration project in progress by the
Building America Retrofit Alliance (BARA), the Consortium for Advanced Residential Buildings (CARB), and NAHB Research Center. The Cool Energy House will be educational demonstration home in Windermere, Florida. Builders, remodelers, and the general public will have an opportunity to tour the home and learn about deep-energy remodeling during the 2012 International Builders show. The webinar will provide attendees with a tour of the cost/benefit approach the project is taking to build healthy, comfortable, and energy-efficient homes.

Register now

Restaurant Energy Performance Evaluation: How-To Guide and Spreadsheet

Date: Wednesday, November 16, 2:00 EST
Summary: Restaurant building owners and operators have expressed difficulty in prioritizing energy-saving building upgrades within their building portfolio. To address this gap, the National Renewable Energy Laboratory (NREL) developed a performance evaluation how-to guide and spreadsheet toolkit to identify poorly performing buildings. This webinar will present an overview of these tools, which help owners prioritize use of capital resources for cost-effective energy-efficiency measures.

Register now

Assessing and Reducing Plug and Process Loads in Commercial Office and Retail Buildings

Date: Monday, November 21, 3:00 p.m. EST
Summary: This webinar will focus on plug and process loads (PPLs) for two building types: commercial offices and large retail buildings. Presenters will provide an overview of strategies from recent NREL research and publications designed to help building owners, occupants, and facility managers reduce PPL energy consumption. They will also discuss recommendations for information technology (IT) equipment (data centers, servers, computers), which use most of the plug load energy in a typical commercial building.

Register now

Implementation of the ENERGY STAR® Commercial Kitchen Package

Date: Wednesday, November 30, 1:30 p.m. EST
Summary: This webinar will present an overview of EPA’s ENERGY STAR Commercial Kitchen Package, outlining energy- and cost-savings benefits for commercial kitchens and providing recommendations on how to achieve energy savings for this end use. The focus will be on implementing strategies in the retail and food service sectors.

Register now

Update your subscriptions, modify your password or e-mail address, or stop subscriptions at any time on your Subscriber Preferences Page. You will need to use your e-mail address to log in. If you have questions or problems with the subscription service, please contact support@govdelivery.com.

This service is provided to you at no charge by DOE's Office of Energy Efficiency & Renewable Energy (EERE). Visit the Web site at http://www.eere.energy.gov.

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November 02, 2011

New Takings Article Answers the Question - Are Raisins Property for Purposes of a Takings Claim?

New Takings Article Answers the Question - Are Raisins Property for Purposes of a Takings Claim?

Posted: 02 Nov 2011 06:54 AM PDT

Check out the recently published article by Robert Thomas on regulatory takings law, "Recent Developments in Regulatory Takings Law:  What Counts as “Property," 34 Zoning & Planning Law Report 1 (Thomson West 2011).  You can read the entire article on the author's blog, Inverse Condemnation.  The article takes an interesting look at unique takings claims around the country, such as whether a court-appointed attorney’s services is property for purposes of a takings claim in South Carolina  (spoiler alert: it is) or whether a set-aside requirement for raisin producers is an unconstitutional takings in California  (it is not).
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November 2, 2011

 

TODAY'S NEWS

AFFORDABLE HOUSING

MARIN INDEPENDENT JOURNAL: Housing questions overshadow debate of Novato's Hanna Ranch project

By Rob Rogers // Novato's long, bitter battle over affordable housing — which theoretically ended months ago — cast its shadow Tuesday over plans to develop the 19.7-acre former Hanna Ranch site at the intersection of Highways 37 and 101. Much of the Novato City Council's discussion of the $30 million project focused on traffic or environmental concerns — as well as whether Novato could support the 116-room hotel envisioned in the proposal.


SAN JOSE MERCURY NEWS: Mountain View council members split over contentious talk over affordable housing funds

By Kristen Marschall // According to the agenda for Tuesday night, the Mountain View City Council was to consider a levying a fee on apartment developers for affordable housing funds. Instead, the study session went on for an extra hour, four council members voted to scrap the fee, and talk of a possible parcel tax gained momentum. The city is being forced to reconsider how it provides below-market-rate housing after a 2009 Los Angeles lawsuit known as the Palmer case impacted how cities enforce such programs. A state appellate court ruled that Los Angeles could not force developers to set aside affordable rental housing.

 

HOUSING DEVELOPMENT

HOUSING FINANCE: Jamboree opens Doria Apartments

By Donna Kimura // Jamboree Housing Corp. marked several firsts with the recent opening of Doria Apartment Homes here. The development is the first that the nonprofit developer has completed in joint venture with the Irvine Community Land Trust (ICLT), an organization established by the city in 2006 to provide affordable housing opportunities for the region.

 

MORTGAGE & FORECLOSURE ISSUES

THE DESERT SUN: Desert Hot Springs home fees illegal, agency says

By Kate McGinty // The city violated state law when it tried to impose more than $500,000 in impact fees on a mobile home park, according to the agency that has intervened in the dispute. The California Department of Housing and Community Development's division of legal affairs said Desert Hot Springs cannot collect impact fees from the owners of Palm View Estates and should immediately repeal the ordinance that authorizes such fees.

 

BUSINESS INSIDER: The 10 cities with the most underwater mortgages

Last week, President Obama announced he would extend the mortgage refinancing program in an effort to provide relief to homeowners whose mortgages are worth more than the value of their homes.



SONOMA PATCH: Increase in foreclosures still a concern in Sonoma

By Alexis Fitts and Karina Loffee // Among the concerns mentioned by the Occupy Wall Street protesters, foreclosures are high on the list. Many people have lost their homes, either after being laid off from their jobs or when their adjustable rate mortgages reset.

 

BUSINESS JOURNALS: CalHFA backs off foreclosures on owners renting homes

By Michael Shaw // The California Housing Finance Agency has agreed to temporarily stop foreclosing on borrowers who remain current on their mortgage payments in response to an inquiry into the practice, California Senate President Darrell Steinberg said Friday.

 

ECONOMY / EMPLOYMENT

REUTERS: Jobless rates dip in most metropolitan areas

In 249 out of 372 metropolitan areas, unemployment rates were lower than a year earlier. They were higher in 102 areas and stayed the same in 21, according to the U.S. Labor Department. Metropolitan areas tend to include cities along with their surrounding suburbs.

 

POPULATION

HUFFINGTON POST: California poverty rate spikes: One in six now living in poverty

According to a report by the U.S. Census Bureau, nearly six million Californians are currently living below the poverty line. The number of Californians living in poverty jumped from 5.1 million in 2009 to 5.8 million between 2009 and 2010. The poverty rate correspondingly rose to 16.3 percent of the state's total population.

 

MODESTO BEE: Stanislaus population growing faster than cities

Density debates raged a couple of years ago when valley leaders wrestled over targets for collaborative planning in the eight-county area. Heading toward unprecedented 2012 growth votes throughout Stanislaus County, the rumpus has returned. As its nine cities develop potential growth boundaries, people are throwing around terms such as transit-oriented development, prime soils, water recharge and — of course — density.



 

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Broker Price Opinions (BPOs) and the Valuation Process

https://www.efanniemae.com/lc/sir/pdf/bpolmv.pdf

 

 

Broker Price Opinions (BPOs) and the Valuation Process

All properties secured by a Fannie Mae loan that are involved in a HAFA Preforeclosure Sale, a HAFA Deed-in-Lieu, a Fannie

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BVWire Issue #110-1: Expert Reports Still Discoverable in Tax Court

Reminder: Expert reports still discoverable in Tax Court

The long-awaited amendments to Rule 26 of the Federal Rules of Civil Procedure, made effective at the beginning of this year, have largely been “great,” according to attorney Edward M. Robbins (Hochman Salkin Rettig Toscher & Perez, P.C.), who presented in last week’s “Lawyers Roundtable,” part 2 of BVR’s 2011 Tax Summit, moderated by Jay Fishman (Financial Research Associates). Prior to the amendments, which specifically exempt draft expert reports from discovery in federal court proceedings, “you wasted a lot of time trying to ‘get behind’ the reports—and frankly, by the end of the day, it wasn’t worth your time,” Robbins conceded. “But you did it anyway because everybody did.” Under the amended rule, an expert’s compensation is still discoverable, along with any facts or assumptions the attorney may have provided the expert to form his or her opinion. But the bottom line: In federal court, “‘collaboration’ is no longer a bad word,” Robbins said, and attorneys and experts no longer have to “walk on eggshells” every time they communicate.

But not in Tax Court: Roughly 80% of the tax valuations that appraisers perform are related to federal tax cases, Stephanie Loomis-Price (Winstead PC) reminded listeners—and the U.S. Tax Court has not yet adopted an analogous rule to the amended Rule 26. As a result, “we still struggle with what we can say to our experts, what we can get from them, whether we can edit or even comment on their drafts,” Loomis-Price said. When an attorney writes on a draft report, the comments are protected under the work product privilege—but as soon as the expert receives the draft, the protection disappears. This means that tax experts should still “assume everything you do, say, or write will be discoverable to the other side,” Robbins said. Hopefully, the Tax Court will “see the light,” he added, and Loomis-Price agreed: Members of the tax bar as well as appraisal associations “ought to be pestering the Tax Court,” she said, to amend its rules.

Are you having issues with professional liability insurance for your BV firm?   Let us know.

We've been hearing rumors of disappearing coverage, changing premiums, coverage exclusions, and new policy requirements demanded by providers of errors & omissions (E&O) insurance for business appraisers. Is this true? Are you among those affected? Let us know your experiences here (and you can get the results for free by leaving your email at the end, if you wish).

Thanks from your colleagues—and from BVR.  We'll publish our findings in BVWire next week.

Will I-bankers ever understand what BV appraisers do?

Last week’s report from an investment banker on providing the “market value” of an ambulatory surgery center (ASC) prompted Gary Trugman (Trugman Valuation Associates) to point out that the I-banker’s comments were “not only self-serving, but it shows his ignorance about business valuation. A business appraiser interprets the market and does not make the market,” Trugman says. “A proper business valuation will use the information from sales of similar properties to assist in the valuation project.” Take the I-banker’s encouragement to let buyers determine an ASC’s value, rather than valuation experts. “This only proves that the writer does not understand what we do,” Trugman says. “It is time for the investment bankers to follow some set of standards and learn about business valuation rather than do the slipshod work that is being seen in the market. Maybe they would be sued less often!”

In the healthcare field, the I-banker’s remarks may be “misleading and potentially dangerous,” says Jason Ruchaber (HealthCare Appraisers, Inc.). “In many instances the sale of a surgery center (or interest therein) is subject to healthcare regulations that preclude the buyer from paying anything other than FMV,” which “has a very specific definition in the healthcare industry,” more nuanced and perhaps more restrictive than the standard FMV definition used in other fields. “Deviating from the ‘hypothetical world’ of FMV to the real world of investment bankers may also lead buyers and sellers of these interests to face the real world possibility of fines, loss of their Medicare license and/or jail time,” Ruchaber warns.

 “For example, if a hospital buys an ASC, it will need to demonstrate that they are not paying above FMV; otherwise this could be construed as a kick-back to fill beds by referrals through the ASC,” adds Kevin Jackson (PwC Transaction Services) in a separate comment. And, taking a step back from healthcare, “Aren’t we potentially mixing standards of value—i.e., fair market value vs. investment or strategic value?” asks Michael Prost (Mueller Prost PC).

Another example: When pricing a business for sale, “Why would you ever use a BV expert . . . when using ‘fair market value,’ as the standard of value excludes strategic or synergistic value?” asks David Bishop, an attorney/CPA with Bishop Dulaney & Joyner, who also provides BV services through Bishop & Co. “I never have figured out how you could have a ‘willing seller’ at a price lower than what the best buyer (perhaps a strategic buyer) will pay unless the seller is not ‘reasonably informed of the relevant facts,’” he adds. “I suppose the BV expert could use a different standard of value but I rarely see that.” Not to criticize BV experts or brokers, Bishop adds: “There are plenty of good professionals—too bad we don’t always work together.”

Key takeaways from Turner and recent
FLP cases

As we recently reported, the taxpayer in Estate of Turner failed to persuade the Tax Court to preserve the discounted value of a family limited partnership (FLP), due largely to the passive character of the transferred assets (marketable securities) and the partnership’s lack of any legitimate, non-tax business purpose, including any overriding investment philosophy.

The takeaways from Turner: If asset consolidation and centralized management are among the stated, non-tax purposes for the FLP, then “don’t hold passive assets; don’t have the same management [before as after formation]; and don’t have the same investment philosophy,” said Stacey Delich-Gould (Cahill Gordon & Reindel LLP), who spoke at the recent 2011 Fall Meeting of the ABA Section of Taxation and Section of Real Property and Trust & Estate Law in Denver. “Do have arms-length bargaining” among the designated general and limited partnership interests, she added. The bottom line: “The [FLP] cases in which the estate has been successful in Tax Court have all come under the protection of the bona fide sale exception,” Delich-Gould said. “Therefore, a real, significant non-tax purpose for the partnership is an essential element of any successful plan.”

For the first time: Valuation Advisors adds foreign transactions

Exciting news from the Valuation Advisors Lack of Marketability Discount Study: We’ve just added 867 new deals to the database, including—for the first time—757 international transactions from 26 countries, with a median revenue of $42 million. China tops the list of new foreign transactions, making the current breakdown by countries (top 10):

Country

Count

United States

7,624

China

426

Israel

103

United Kingdom

41

Korea

22

Canada

21

Netherlands

17

France

14

Taiwan

14

Argentina

12

Hong Kong

11

Digging deeper into the data, “although we haven’t statistically analyzed the relationship between U.S. and international DLOMs,” says Brian Pearson, president of Valuation Advisors, the general trend appears to parallel results from the domestic data; that is, “the international discounts tend to increase over time from the IPO date,” he says. Predictably, analysts will want to use the international data when valuing international companies or a company that has a considerable portion of its sales, earnings, or operations overseas, using new tools that permit searches by aggregate or individual country, in addition to the existing search parameters for U.S. companies.

At the same time, “If you are trying to calculate discounts by industry or for a particular time period only, you may want to use all the companies (foreign and domestic) in the database,” Pearson suggests, noting that with over 9,000 transactions—2,487 added this year alone—Valuation Advisors is currently the “largest valuation discount database in the world.”

Preview of new data from Pepperdine Private Capital Markets survey

New from the Pepperdine Private Capital Markets Project Fall '11 Survey: During the past year, the bank loan success rate was 44% for businesses with less than $5 million in revenues; 72% for businesses with $5 to $25 million in revenues; and 90% for businesses with greater than $25 million in revenues.

That’s just one data point, provided by John K. Paglia, associate professor of finance at Pepperdine University, who will present more from the survey at next week’s AICPA National BV Conference in Las Vegas. BVWire will be there, covering multiple sessions, news, and updates. Stay tuned . . .

Must an LLC turn over the valuation records of its subsidiary?

The Delaware Chancery Court just provided a good checklist of documents to request and require in a “books and record” action by the controlling member of a limited liability company (LLC), particularly when the purpose of the request is to ascertain the value of the member’s holdings, not just in the LLC but in its subsidiary. In this case, the LLC held the assets of a company that owned and operated eight wine brands. When the subsidiary started to founder, the LLC’s limited partners petitioned the Delaware Chancery to access the books and records of the LLC as well as the subsidiary. The LLC objected under Delaware law, maintaining that since the subsidiary was near insolvency, the valuation was zero (or a simple matter of mathematics), the request was “meaningless.” The LLC also said the relevant operating agreements gave members no separate contractual right of access to the sub’s records.

The court disagreed on both points. The operating agreements gave members inspection rights equal to those provided by Delaware law. And under the case law, since the defendant had no separate value from the subsidiary, it would be “unfair” to require the member to attempt to value its holdings without providing access to the records of the LLC’s only asset—in particular, those records pertaining to value, the court held. It then approved most of the petitioner’s 16-item request for books and records, excepting only those that did not relate directly to value (e.g., the subsidiary’s ability to pay its creditors) and permitting redaction for trade secrets. Read the complete digest of DGF Wine. Co., LLC v. Eight Estates Wine Holdings, LLC, C.A. No. 6110-VCN (Del. Ch.)(Aug. 31, 2011), in the November Business Valuation Update; the court’s opinion is posted at BVLaw.

Filings for 2010, 2011 decedents: new insights on IRS requirements, including determining FMV of undivided interests

Last August, the Internal Revenue Service released Notice 2011-66 , concerning the methods for electing and applying a carryover basis treatment under Sec. 1022 of the Internal Revenue Code (IRC) to 2010 estates, and Rev. Proc. 2011-41 , providing optional safe harbor guidance under Sec. 1022 IRC. In a detailed, thorough analysis, Steve Akers (Bessemer Trust) summarizes what’s new and important in the IRS guidance, and highlights the provisions relevant to fair market value appraisals. In particular, Akers observes that under the “Aggregation Rule” in Section 4.04 of Rev. Proc. 2011-41:

The “Basis Increase” allocated to any asset cannot result in the basis of that asset exceeding the fair market value of the asset on the date of death. If Basis Increase is allocated to an “undivided portion” of an asset that is distributed to a particular recipient, the IRS takes the taxpayer-favorable position that discounts do not have to be applied in determining the fair market value limit of each recipient’s “undivided portion.” Instead, “the FMV of an undivided portion of the decedent’s property that is acquired from the decedent at death is a fractional share of the FMV of the decedent’s property at death.”

“That rule would apply explicitly to undivided interests in real property,” Akers observes. “Presumably, it will also apply to minority interests in partnerships, LLCs, and corporations that are distributed among the estate beneficiaries.” Read Akers’ complete overview, written for Leimberg Information Services and presented to the National Association of Estate Planners Council, here.

Appraisers know the importance of a single letter—and of continuing education

There’s a world of difference between the IRS and IFRS. A CVA is not a CBA, just as a DLOM is never a DLOC. So when we ran a headline last week on options for “CLE” instead of “CPE”—we misplaced an important letter in the acronym for continuing education for appraisers, standing for: “Professional.” Our apologies—and here’s our current overview of Continuing Professional Education for business appraisers, to complete your year-end requirements as well as your penchant for getting all the facts, information, and important details in any valuations:

  • Judges Roundtable: View From the Bench, Part III of BVR’s Tax Summit, with Hon. David Laro, Hon. Julian Jacobs, Hon. Mary Ann Cohen (all U.S. Tax Court), moderated by Jay Fishman and hosted by Georgetown Univ. Law Center, on Friday Nov. 4.
  • Valuing a Majority Fractional Interest concludes the Tax Summit and features Neil Mills-Mazer (Internal Revenue Service), who will introduce his controversial “minority premium” model of fractional interest valuations, on Friday Nov. 11.

ASA will move forward with healthcare, strategic initiatives

In its meeting prior to last month’s national conference in Chicago, the ASA’s Business Valuation Committee approved a proposal representatives from the business valuation, machinery and technical services, and real property sections to design and teach a “multi-discipline course in valuing health care entities,” reports Linda Trugman, chair of the BV Committee, in her monthly e-update to members. “The committee will also be making a recommendation to the Board of Governors to go forward with this initiative,” Trugman adds. “I know that many of you are interested in health care valuation and we are looking forward to meeting those needs.” Another major item on the agenda: the design and implementation of a strategic plan, which the committee will continue to work on over the next few months.

FASB to try new outreach program with next release

In his remarks to the National Association of State Boards of Accountancy last week, FASB chairman Leslie Seidman announced a “new technique” to solicit feedback from the financial community regarding its standards convergence project with the IASB. Starting with the joint release of a revised exposure draft on revenue recognition in the next few weeks, the boards will hold workshops with representatives from certain key sectors, asking companies to prepare “before and after” examples of their common transactions under current GAAP and the proposed standard. “This will reveal whether companies understand the requirements and help identify any unintended consequences,” Seidman said. “We then plan to use these materials to discuss the results with users of financial statements to help them understand the nature of any changes that may result. We have other forms of field work planned,” he added, “which we view as an essential element of our due process to evaluate the costs and benefits of new standards. We welcome your input and involvement in the process.” In addition to addressing the status of the international convergence project, Seidman also discussed his views on the SEC’s proposal to incorporate IFRS and “where we stand on the issue of standard-setting for private companies.” Read his complete remarks here. 

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RECENT DEVELOPMENTS IN REGULATORY

RECENT DEVELOPMENTS IN REGULATORY

TAKINGS LAW: http://www.inversecondemnation.com/files/41048522appvd.pdf

WHAT COUNTS AS “PROPERTY?”.............................1

I. Introduction.................................................................... 1

II. Court-Appointed Attorney’s Service Is Property for

Purposes of the Takings Clause........................................... 1

III. No Right to Own Property Free of Regulation................. 3

IV. Substantial Decrease in Value is a Regulatory

Taking … Under the State Constitution.............................. 6

V. Conclusion..................................................................... 8

OF RELATED INTEREST............................................10

RECENT CASES........................................................10

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inversecondemnation

inversecondemnation

 

New Article: What Counts As "Property" In Regulatory Takings Law?

Posted: 02 Nov 2011 12:58 AM PDT

ZPLR_11_2011Here's an article I recently published in the Zoning and Planning Law Report, Recent Developments in Regulatory Takings Law: What Counts as "Property?", 34 Zoning & Planning Law Report (Thomson | West 2011).

If you subscribe to ZPLR, look for it in the mail (and if you don't, you should).

If you are not a subscriber (and again, you really should not be, it is one of the better ways, along with Gideon Kanner's Just Compensation, to keep up with the latest goings-on), the good people at West provide this freebie, as authors are allowed to post their own articles on their web site. So here you go.

Thomas, Recent Developments in Regulatory Takings Law: What Counts as "Property?" 34 Zoning & Planning Law ...  



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Podcast: Sackett v. EPA - SCOTUS Preview: Immediate Judicial Review, Or Death By A Thousand Days?

Posted: 02 Nov 2011 12:57 AM PDT

Yesterday, I gave an informal presentation to the Natural Resources Section of the Hawaii State Bar Association about the case currently pending in the U.S. Supreme Court regarding the ability of property owners to challenge a determination by the U.S. Environmental Protection Agency that their property contained "wetlands" under the Clean Water Act, Sackett v. United States, No. 10-1062 (cert. granted June 28, 2011).

We videotaped the session, and (if tech cooperates) we will post the video. But in the meantime, stream the audio below, or download the 45mb mp3 here:

Here are the links to the briefs that have been filed in the case (so far):

§ Petitioner's Brief

§ Amici briefs supporting Petitioner (except the States' brief)

§ The amici brief filed by several states, including Hawaii, in support of the property owners.

§ Here are the cert stage briefs.

Here's the Court's docket report. We will post the Respondent's Brief when it becomes available, and any amicus brief filed supporting the Respondent. Below are links with more video and information about the case:

§ Pacific Legal Foundation (my colleagues who represent the property owners) resource page.

§ Video of a recent congressional hearing. 

§ NPR's story, with photos and audio.



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Epstein On Kelo's Rational Basis Test: "You think two plus two equals five, and I don't know how to add."

Posted: 01 Nov 2011 10:56 AM PDT

Whenever a judge turns to rational-basis analysis, he's basically saying, 'You think two plus two equals five, and I don't know how to add.' -

Professor Richard Epstein, at an interesting debate sponsored earlier this evening by the Columbia Law School Federalist Society. Professor Epstein and Chief Judge Alex Kozinski (9th Cir.) debated the merits of Kelo v. City of New London (2005). Professor Epstein attacked Kelo and Chief Judge Kozinski defended the decision.

Via Above the Law and Dwight Merriam.



 

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November 01, 2011

KS Supreme Court Finds Board’s Annexation and Rezoning of Land From Agricultural Use to Industrial Use Arbitrary and Capricious

New post on LAW OF THE LAND


 


KS Supreme Court Finds Board’s Annexation and Rezoning of Land From Agricultural Use to Industrial Use Arbitrary and Capricious

by Patty Salkin

In early 2008, the owners of 155 acres of land on Douglas County petitioned the City requesting the voluntary annexation of the land, as well as a rezoning of the property from agricultural to industrial use, in order to create an industrial park.  City Planning Staff raised concerns with the annexation proposal, based on the fact that utility service did not reach that area and the fact that environmental requirements such as a watershed plan remained undeveloped.  Despite the strong urging of staff, and despite the fact that the developer could not provide a more specific description of the proposed use of the property beyond the general “industrial” characterization it envisioned, the Board voted to annex the property, holding that the annexation and development would not “hinder or prevent proper growth and development of the area,” but would instead provide much-needed industrial space and create jobs and tax revenue for the city.  Individual homeowners residing in parcels adjacent to the property in question opposed the annexation and appealed, but the district court upheld the Board’s decision.  The homeowners appealed. 

The Board’s failure to evaluate the potential impacts of changing the acreage to industrial use was the Court’s principal reason for finding the annexation decision was arbitrary and capricious, and that it lacked sufficient basis in evidence provided on the record.  The Court noted that the annexation decision was inconsistent with the city’s previous formal planning policy statements and recommendations contained in its growth management plan.  Further, the Court agreed with plaintiffs that the developer’s request to change the property use to “industrial” could allow development in a broad range of areas, since the City maintained several industrial zoning types, each more permissive than the last.  The most permissive, a general industrial district zone, would allow many activities “commonly recognized a s nuisance[s],” including explosive storage, blasting operations, and ready-mix cement operations.  The court agreed with plaintiffs that converting what had previously been considered “prime farmland” to such heavy industrial use would almost certainly impact neighbors, and concluded that the Board had failed to consider those and other potentially incompatible uses.  Such a failure showed that the Board could not possibly have had a sound basis from which to conclude that the annexation and zoning changes would not “hinder or prevent proper growth and development” of the existing area.  Therefore, the Board’s finding was merely conclusory and unsupported by the record, making it “inherently arbitrary and capricious.”  Thus, the court held that “where the developer of land in an island annexation cannot specify the intended uses of the land but provides only a category of potential uses, the Board must examine those potential uses – or at least the most deleterious uses—and determine whether those potentially deleterious uses would ‘hinder or prevent the proper growth and development of the area.’”  Since the Board failed to do so in this case, the state Supreme Court reversed the district court’s decision and remanded the case for further proceedings. 

Baggett et al. v. Board of County Commissioners of Douglas County, Kansas, 2011 WL 4505571 (Kan. 9/30/2011) 

The opinion can be accessed at: http://www.kscourts.org/cases-and-opinions/opinions/CtApp/2011/20110930/104441.pdf

Patty Salkin | November 1, 2011 at 1:13 am | Categories: Annexation, Current Caselaw, Rezoning | URL: http://wp.me/p64kE-1ui

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Another Good Decision From The Court Of Federal Claims

inversecondemnation

 

Another Good Decision From The Court Of Federal Claims

Posted: 01 Nov 2011 03:01 AM PDT

This has been a pretty good week for my St. Louis colleague Thor Hearne.

First, he obtained summary judgment in the Court of Federal Claims for the property owners in a rails-to-trails case, Dana R. Hodges Trust v. United States, No. 09-289 L (Oct. 25, 2011). Next, his Cardinals come back from the edge to take the World Series. And now comes Rogers v. United States, No. 07-273L (Oct. 31, 2011), another good decision for property owners from the CFC. 

Rogers involves the appraisal standard applied in a partial takings case. As Thor writes:

The case involves a partial taking of an easement. Under the National Trails Act the federal government converted an abandoned railroad easement into a public recreational trail. Under Florida law the owner of the fee estate had the right to exclusive and unencumbered use and possession of their land. But, the federal law – and the Surface Transportation Board's order – destroyed and effectively eliminated the landowner’s state-law right to their land.

Today's decision involved the appropriate appraisal standard to value the property interest that the government had taken. The landowners and the DOJ both agreed on the before and after method.  [The parties] also – originally – had agreed that the "before-taken" condition of the property was as an unencumbered fee parcel and the "after-taken" condition was the same parcel now encumbered with an easement for public recreation and "railbanking" allowing the STB possibility to authorize a new railroad across the land in the future. 

But, literally at trial the DOJ changed their position. They argued everyone – including the DOJ themselves – had gotten it wrong. The DOJ argued the land needed to be reappraised using a new "before-taken" condition. Under the DOJ’s new "before-taken" condition the land was to be appraised assuming the property was still encumbered by the railroad right-of-way easement. This, the DOJ argued, means the government needed to only pay for the "nominal" or "incremental" cost of putting a public trail across an existing railroad easement.

Judge Williams entirely rejected the DOJ’s argument. Judge Williams called the DOJ’s arguments "wholly inappropriate," "misguided" and a "red herring."  By making this argument, the DOJ delayed resolution of this case more than 14 months and caused the taxpayer’s interest liability to increase by more than an additional $1.4 Million.

Read the entire opinion below.

Rogers v. United States, No 07-273L (Oct. 31, 2011)  



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Book Value was 2% of Fair Market Value in NJ Buyout Case

In Estate of Cohen v. Booth Computers (421 N.J. Super. 134, 22A. 3d 991, July 13, 2011), the question addressed was whether a family partnership agreement that provides for a buyout based on net book value may be enforced when the disparity between book value and fair market value is substantial. In this case, book value was less than 2% of fair market value.

Background

Booth Computers was a family partnership established by Robert Cohen for his three children, Claudia, Michael and James. The Partnership Agreement provided that in the event of the death of a partner, the remaining partners were obliged to buy out the interest of the deceased partner,  and the estate of the exiting partner was obliged to sell. The Agreement specified that the buyout price was to be equal to the partner's share of the Partnership's value. This value was defined in the Agreement as net book value as shown on the Partnership's most recent financial statement, plus $50,000.

The principal assets of the Partnership were two warehouses in Egg Harbor, New Jersey, acquired in 1980 and 1984, and a 45% LP interest in a limited partnership which owned an oceanfront estate in Palm Beach, Florida. The Florida LP interest was acquired in by the Partnership in 1978 for a capital contribution of $90,000. The Partnership's assets were carried on the Partnership's books at cost.

The First Buyout

Michael Cohen died in 1997. James and Claudia invoked the buyout provision, and Michael's estate was paid $35,000 for his 1/3 interest in the Partnership, based on the formula in the Partnership Agreement.

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IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding any penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction(s) or tax-related matter(s) addressed herein.
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