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March 31, 2008


From: HUD USER News
The Departments of Housing and Urban Development and
Health and Human Services have jointly posted a new
compendium of research on homelessness. Toward
Understanding Homelessness: The 2007 National Symposium
on Homelessness Research contains papers presented and
discussed at the symposium. The gathering of
researchers, policy experts, practitioners, and
consumers met in Washington, D.C. in March 2007 to
review the decade of research that has accrued since the
two departments jointly published Practical Lessons: The
1998 National Symposium on Homelessness Research.
Individual papers and a complete version of the report,
as well as the symposium agenda, presenter biographies,
and participant list, can be downloaded free of charge
at www.huduser.org/publications/homeless/homeless_symp_07.html.
Information on how to obtain the report in print from
the Department of Health and Human Services can also be
found there. The 1998 symposium report can be ordered
for a fee from the HUD USER Web Store by going
to www.huduser.org/publications/homeless/practical.html
or by calling HUD USER at 800-245-2691, option 1.
Please contact us at:
P.O. Box 23268
Washington, DC 20026-3268
1-800-927-7589 (TDD)
202-708-9981 (fax)
The HUD USER News eList keeps busy professionals in the
fields of housing and community development informed of
new research and resources available from the U.S.
Department of Housing and Urban Development's Office of
Policy Development and Research (PD&R). Periodically,
publication announcements and other useful information
will be sent via the eList. The HUD USER and Regulatory
Barriers Clearinghouses value your privacy; we do not
share our mailing lists with other groups, and you can
unsubscribe at any time.
You can search the eList archives
at http://listserv.huduser.org/.
Why not share HUD USER's resources and information with
a colleague? Forward this email to associates who may be
interested in the housing research and data sets we have
to offer. Thanks!
To keep up with the latest HUD research and related
resources, you can also sign up for a free subscription
to our ResearchWorks newsletter (in either electronic or
print-based formats) by visiting http://www.huduser.org/emaillists/subscr.html.
You were sent this HUD USER News update because
you expressed interest in receiving a weekly email to
stay informed of new HUD research and resources. If you
no longer wish to receive this email, please send an
email to hudusernews@huduser.org with "unsubscribe"
as the SUBJECT.
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March 29, 2008

SwiftEstimator Commercial Estimator

Dear Curtis Harris:  

Get the most from your SwiftEstimator Commercial Estimator valuation tool with tips and techniques straight from a Marshall & Swift expert. 

This live, online seminar is FREE to SwiftEstimator Commercial Estimator users! 

You'll Learn:
.Easy steps to a cost approach appraisal. 
.What costs are the most important to pay attention to.
.How to speed through the details with confidence!

Thursday, April 10

Click the date above to sign up. Webinar is 11 a.m. to 12 p.m., PACIFIC.    

Note: please use Microsoft Windows and Internet Explorer 6 or higher for your webinar session.

To ensure you continue to receive Marshall & Swift promotions please add csinquiry@marshallswift.com to your address book.

2007 - 2008 Marshall & Swift/Boeckh, LLC and its licensors. Marshall & Swift LLC.
350 S. Grand Ave. 34th Floor
Los Angeles, CA 90071


Subscription Information
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Airport Noise Report


What Subscribers Say About ANR
Noise-Related Links
Copyright Information
How to Subscribe
Contact ANR
 Airport Noise Report - A Weekly Newsletter on Litigation, Regulations, and Technological Developments

Welcome to Airport Noise Report, the only newsletter published exclusively for those interested in the complex topic of aircraft noise.

With dynamic growth in aviation forecast well into the 21st century, aircraft noise will remain a challenging environmental problem and one that will affect more and more people as air traffic routes and procedures change in the future.

Whether you are an airport or aviation industry professional, elected official, aviation consultant, attorney specializing in airport noise cases, or community activist, a subscription to Airport Noise Report will give you valuable insight into noise problems at airports throughout the country and help you find effective ways to deal with your own noise problems through ANR's in-depth coverage, timely reporting of federal, state, local, and international developments, and incisive analysis of events.

You will benefit from special reports prepared by ANR's Editorial Advisory Board and through interviews with experts in the field of airport noise. And our annual index will allow you to use the newsletter as a valuable research tool.

Our many subscribers include airport and aviation officials, acoustical experts, consultants, land use planners, attorneys, city, state and federal government officials, and community groups.

The weekly newsletter includes clear, concise coverage of the following topics:

Local, state, federal, and international regulations concerning aircraft noise
Airport plans to impose new noise rules under FAA's Part 161 process
Litigation stemming from the impact of airport noise, airport noise regulations, and attempts to block airport expansions
The latest research findings in the area of airport noise, including health effects
Status of hushkit and re-engining technology and activity
Federal agency activity
FAA approvals of Part 150 noise compatibility programs and airport noise maps, and status reports on program
Funding and revisions of the federal Airport Improvement Program
Congressional activity, reports, and hearings
Trends in compatible land use planning around airports
Advances in noise measurement methodologies, modeling, and computer simulation
Status of sound insulation programs and noise monitoring programs
Interviews with newsmakers and special in-depth reports on current topics of interest

Format and Frequency

Weekly report sent by e-mail in PDF format
Indexed annually
Back issues available


Airport Noise Report
43978 Urbancrest Court • Ashburn, Virginia 20147
Phone: (703) 729-4867 • Fax: (703) 729-4528

E-mail: editor@airportnoisereport.com
URL: http://www.airportnoisereport.com

Page updated January 22, 2007

Home | What Subscribers Say About ANR | Noise-Related Links
Copyright Information | How to Subscribe | Top of Page

  Copyright © 2007 by Airport Noise Report. All rights reserved.

Request Permission To Reuse Content


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March 28, 2008

The American Bankruptcy Institute

The American Bankruptcy Institute is the largest multi-disciplinary, non-partisan organization dedicated to research and education on matters related to insolvency. ABI was founded in 1982 to provide Congress and the public with unbiased analysis of bankruptcy issues. The ABI Canal Center Plaza membership includes more than 11,500 attorneys, auctioneers, bankers, judges, lenders, professors, turnaround specialists, accountants and other bankruptcy professionals providing a forum for the exchange of ideas and information. In fulfillment of its mission to provide information to its members, journalists, Congress and the public, ABI is engaged in numerous educational and research activities, as well as the production of a number of publications both for the insolvency practitioner and the public.

ABI is the nation’s leading provider of quality bankruptcy educational programs. ABI’s national and regional conferences are highly rated in the bankruptcy community for their thorough discussions of the latest developments and the opportunities to earn continuing legal and professional education. ABI’s conference and workshop panelists always include expert practitioners and bankruptcy judges who provide a unique perspective.


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In the
United States Court of A Appeals ppeals
For the Seventh Circuit
No. 07-1101
Plain Plaintiff-A iff-Appe ppellan llant,
De Defe fendan ant-A t-Appe ppelle llee.
Appea ppeal from t the U e Unit ited S ed States Dist es District rict Court
for t the N e Nort rthern D hern Dist stric rict of I Illinois, East llinois, Eastern D ern Division. sion.
No. 06 C . 657— Amy J. St. Eve y Eve, Judge dge.


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March 27, 2008

This is a special message from the Office of the Mayor of Los Angeles.

The Mayor and Los Angeles World Airports (LAWA) invite you to participate in a survey to evaluate various aspects of the operations of LAWA, which include Los Angeles International Airport (LAX), Ontario International Airport, Van Nuys Airport and Palmdale Regional Airport.


The City of Los Angeles has retained KH Consulting Group (KH) to conduct this study. KH will treat your individual responses confidentially. The survey will take 5 to10 minutes to complete. The survey deadline is April 6, 2008.


To complete the survey in English, use the link below:

Para completar la encuesta en español, haga clic en el enlace siguiente:


Thank you for your participation.


This message was sent to harris_curtis@sbcglobal.net by:
Mayor Antonio R. Villaraigosa
200 North Spring Street, Room 303
Los Angeles, CA 90012

Forward to a Friend

Join OurLA Newsletter

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Building Operator Certification

Building Operator Certification • www.theBOC.info/ca
BUILDING OPERATOR CERTIFICATION (BOC) is a nationally-recognized training and certification program for
building operators offering improved job skills and more comfortable energy-efficient facilities. Building engineers, building
service managers, maintenance supervisors, O&M technicians, electricians, skilled trades and facilities specialists have
benefited from participating in BOC training. Certification provides a credential for professional development and offers
employers a way to identify skilled operators.
Registration is now open for the Downey, CA
level I class series. First class starts Wednesday April 9.
BOC 101 Building Systems Overview 4/23/08
BOC 107 Facility Electrical Systems 5/21/08
BOC 102 Energy Conservation Techniques 6/18/08
BOC 103A HVAC Systems and Controls 7/14/08
BOC 103B HVAC Systems and Controls 7/15/08
BOC 104 Efficient Lighting Fundamentals 8/20/08
BOC 105 Environmental Health & Safety Regulations 9/17/08
BOC 106 Indoor Air Quality 10/15/08
Space is limited. Sign up today at:
The Northwest Energy Efficiency Council (NEEC) is pleased to have the following companies and organizations sponsor
BOC course series for their customers.
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March 24, 2008

From: HUD USER News

From: HUD USER News
HUD recently released the fourth quarterly report of
U.S. Housing Market Conditions for 2007, which contains
a comparative analysis with both the previous quarter
and the fourth quarter of 2006. The report provides
national and regional data, as well as historical trends
in housing markets, production, and affordability.
The feature article of this issue, "New Low-Income
Housing Tax Credit Project Data Available," briefly
explains the Low-Income Housing Tax Credit (LIHTC)
program, announces an update to the LIHTC Database, and
provides examples of the information that is available
in the database. The report also contains in-depth
housing market profiles of Abilene, Texas; Augusta,
Georgia-South Carolina; Baltimore-Towson, Maryland;
Baton Rouge, Louisiana; Boston-Cambridge-Quincy,
Massachusetts-New Hampshire; Denver-Aurora-Boulder,
Colorado; Longview, Texas; Rapid City, South Dakota;
Reno, Nevada; Seattle, Washington; Tucson, Arizona;
Williamsport, Pennsylvania; and Yakima, Washington.
This and previous USHMC reports are available online and
can be downloaded at www.huduser.org/periodicals/ushmc.html
or ordered for free from the HUD USER Clearinghouse by
calling 800-245-2691, option 1.
Please contact us at:
P.O. Box 23268
Washington, DC 20026-3268
1-800-927-7589 (TDD)
202-708-9981 (fax)
The HUD USER News eList keeps busy professionals in the
fields of housing and community development informed of
new research and resources available from the U.S.
Department of Housing and Urban Development's Office of
Policy Development and Research (PD&R). Periodically,
publication announcements and other useful information
will be sent via the eList. The HUD USER and Regulatory
Barriers Clearinghouses value your privacy; we do not
share our mailing lists with other groups, and you can
unsubscribe at any time.
You can search the eList archives
at http://listserv.huduser.org/.
Why not share HUD USER's resources and information with
a colleague? Forward this email to associates who may be
interested in the housing research and data sets we have
to offer. Thanks! 

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You Don’t Have to Give 110% to Get 100% Financing

You Don’t Have to Give 110% to Get 100% Financing


Recently CalHFA announced that effective Tuesday, March 25, 2008, the maximum Loan-to-Value on our conventional mortgage loan products will be limited to 95%. 


This raises the question: "How do I continue offering my clients 100% financing through CalHFA?"


Fortunately, this question has a relatively easy answer:  Layering.  Now is the time to re-familiarize yourself with the down payment assistance programs offered by CalHFA and its housing partners. 


Many, if not most, cities and counties in California offer one or more forms of down payment assistance for homebuyers.  This down payment can usually be layered with a CalHFA first loan through the Affordable Housing Partnership Program. The AHPP is a collaboration between CalHFA and more than 300 cities, counties, housing authorities, nonprofit entities and redevelopment agencies to help low income homebuyers purchase their first home.  To find a local AHPP participant in your area, simply visit our list of participating agencies. 


Of course, CalHFA continues to offer a variety of other down payment assistance programs, including the CalHFA Housing Assistance Program (CHAP), the California Homebuyer’s Downpayment Assistance Program (CHDAP) and the High Cost Area Home Purchase Assistance Program (HiCAP).


And don’t forget about our Extra Credit Teacher Program for employees in High Priority Schools, and the School Facility Fee grant for buyers of newly constructed homes.  Details on all of these programs can be found on our web site.


Granted, some of these subordinate programs can be used together and others cannot, but no matter how you slice it, 100% financing is still attainable, despite the volatile housing climate.   Find out more by calling CalHFA, toll free at 877.9.CalHFA (877.922.5432) or visit us at www.calhfa.ca.gov.


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NeighborWorks America NCHEC
MARCH 2008  NeighborWorks Center for Homeownership Education and Counseling

NCHEC Place-Based Training
San Francisco, CA
Apply Online for a HUD Tuition Scholarship


NCHEC & HUD Regional Place-Based Training
San Francisco, CA
May 14-15, 2008

Apply now for a scholarship to attend FREE training offered exclusively for staff of HUD-approved housing counseling agencies. Provided by HUD and the NeighborWorks® Center for Homeownership Education and Counseling (NCHEC), the training curriculum is part of the nationally-recognized NeighborWorks® Training Institute.

HO109 Foreclosure Basics
2 day course

Apply today. Deadline for applications is FRIDAY, APRIL 18, 2008.

Click here for details and to apply online.
Please do not submit scholarship applications without first receiving approval from your supervisor and/or Executive Director.

NCHEC logoHUD Logo

NeighborWorks® America through the NeighborWorks® Center for Homeownership Education and Counseling (NCHEC) and the U.S. Department of Housing and Urban Development (HUD) are working together to provide training opportunities to all HUD-Approved housing counseling agencies. HUD-Approved housing counseling agency staff and counselors are eligible to receive tuition scholarships and expanded training courses at the NeighborWorks® Training Institute and regional place-based training locations throughout the U.S. Learn more about NCHEC and the HUD agreement online at www.nw.org/nchec.


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March 22, 2008

St. Vincent's School for Boys v. City of San Rafael, No. A116690

California Appellate Districts, March 18, 2008
St. Vincent's School for Boys v. City of San Rafael, No. A116690
In an action involving challenges to the City of San Rafael's zoning rules, denial of a petition for writ of mandate is affirmed over claims that: 1) the city unlawfully amended the provisions of its general plan to delete plans for the future annexation of property owned by plaintiff; 2) the city violated the California Environmental Quality Act (CEQA) by certifying an inadequate environmental impact report for the revisions to the general plan; 3) the housing element outlined in the city's amended general plan was legally deficient; and 4) the trial court erred by awarding the city costs for document retrieval. Read more...



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March 21, 2008




Luce Forward's mission is to provide quality, efficient solutions to our clients' legal needs and to enable our clients to achieve their goals and objectives. Luce Forward's E-Updates are published as a free service to our clients and friends. The material contained herein is provided for informational purposes only and is not intended to constitute advertising, a solicitation or legal advice. If you wish to receive additional or more specific information about any subject covered in an E-Update, please contact one of the attorneys at Luce Forward.

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Copyright © 2008 Luce, Forward, Hamilton & Scripps LLP. All rights reserved.



Thomas Hobbes, the dour 17th Century English philosopher, wrote that "a foolish consistency is the hobgoblin of little minds." Judging by the past few months, the Fourth District of the California Court of Appeal cannot be accused of consistency - much less a foolish one. Within a two-week period in December, two different divisions of the California Court of Appeal's Fourth District managed to reach inconsistent results - and to muddy substantially the waters regarding a key issue in eminent domain: the proper date of value for condemned property.

Yesterday, March 19, 2008, the California Supreme Court resolved some of the tension. It denied review of San Diego Metropolitan Transit Development Board v. RV Communities (2007) 158 Cal.App.4th 313 - so the landowner in RV Communities won. But the court also depublished the RV Communities pro-landowner opinion. Public agency attorneys will like this fact.

The Issue

Landowners facing condemnation typically prefer the latest date possible - usually the trial date - at least in a rapidly rising real estate market. Public agencies, by contrast, often prefer an earlier date of value - usually the date of pretrial deposit, around the time the agency first files its complaint. The stakes can be large. In some California counties, the time lag between the filing of a complaint and the actual trial date can be several years. In a volatile real estate market, values can differ hugely, depending on which date is chosen. So who is correct?

Two New Cases

It depends. The California Eminent Domain Act has a set of three simple, bright-line rules. (See Code Civ. Proc., § 1263.110 et seq.) The California Supreme Court in February 2007 seemed to endorse strict application of these rules. (See Mt. St. Jacinto Community College District v. Superior Court of Riverside County (2007) 40 Cal.4th 648.) But last December, two California Appellate Court panels reached very different conclusions. Specifically:

In RV Communities, the court held that, under some circumstances, landowners are entitled to benefit from appreciation in value while they are awaiting trial. The proper date of valuation is the latest date - the date of trial - if the condemning agency failed to make an accurate, adequate pretrial deposit. Any earlier date would be unfair.

By contrast, in Eastern Municipal Water District v. Superior Court of Riverside County (2007) 157 Cal.App.4th 1245, the court held the opposite. So long as a public agency makes a pretrial deposit of probable compensation - even if later events prove that the deposit was inaccurate - the agency is still entitled to the earlier date of value if it increases the deposit as ordered by the court.

The Supreme Court Steps In: Agencies Lose the Battle, But May Have Won the War

The California Supreme Court relieved some of the tension when the Metropolitan Transit Development Board petitioned for review in RV Communities. Yesterday, the California Supreme Court denied review in RV Communities, letting the Court of Appeal's pro-landowner holding stand. But the Court also depublished the Court of Appeal's opinion, leaving Eastern Municipal the only precedent left standing.


Three statutes in California's eminent domain law provide a simple scheme for determining the proper date of value. If the agency chooses not to make a pretrial deposit, then the proper date of value is either (i) the date the complaint in eminent domain is filed; or (ii) the date of trial. (Code Civ. Proc., §§ 1263.120, 1263.130.) If the case is brought to trial sooner than one year after the complaint was filed, the landowner is saddled with the early date: the date the complaint was filed. (Code Civ. Proc., § 1263.120.) The trial judge can change that rule in a rapidly rising market. (Saratoga Fire Protection Dist. v. Hackett (2002) 97 Cal.App.4th 895.) If the case is brought to trial more than one year after the date the complaint was filed, however, the date of value is later: the date of trial. (Code Civ. Proc., § 1263.130.)

If the agency chooses to make a pretrial deposit, a third rule applies. The date of value is the date of deposit. (Code Civ. Proc., § 1263.110.) This is usually an early date, close to, or at the date the complaint was filed.

The California Supreme Court formally endorsed this set of bright-line rules in Mt. San Jacinto, but its endorsement literally applies only when the agency complies with the statutory requirement to make a deposit. Mt. San Jacinto leaves open the question whether the agency can have the benefit of an early date of value if it makes a deposit that is laughably below fair value.

Two Different Answers

Ironically, two different divisions in the very same appellate district reached different answers about what happens when the agency deposits funds that are not fair value.

The RV Communities Answer.

On September 27, 2001, the San Diego Metropolitan Transit Development Board deposited $79,357 as the probable amount of just compensation for the taking of a portion of a RV park. Over a year later, the Board's appraiser confessed to multiple errors in determining the amount of the deposit and testified that as of the date of deposit the proper sum was actually much higher: $300,300.

The Court of Appeal held that the trial court properly changed the date of value from the early date, the date of deposit in 2001, to the later date, the date of trial in February 2003. The California Supreme Court subsequently ordered the Court of Appeal to reconsider its ruling in light of its Mt. San Jacinto opinion. On remand, the Court of Appeal affirmed its prior ruling.

In its lengthy and thoughtful opinion, the Court of Appeal noted several factual differences between RV Communities and Mt. San Jacinto. In Mt. San Jacinto, the plaintiff deposited a sufficient amount of probable just compensation. But in RV Communities, the agency had deposited a severely inadequate amount of probable just compensation. The initial deposit was less than one-third of the correct amount of probable compensation in the appellate court.

The Eastern Municipal Answer.

The Eastern Municipal Water District deposited $50,800 as the probable compensation for the taken property and severance damages. The parties disagreed substantially over the amount of severance damages. The trial court ordered the deposit increased to a midway point between the two appraisals. It ordered the deposit increased by about $200,000.

The Court of Appeal held that the trial court erred when it changed the date of value from the date of deposit to the date of trial - even though the initial deposit was inadequate. Unlike the RV Communities court, the court in Eastern Municipal adhered strictly to the bright-line statutory rule endorsed by the California Supreme Court in Mt. San Jacinto. The Eastern Municipal court dismissed as dicta language in the Mt. San Jacinto opinion suggesting that the adequacy of the deposit makes a difference. Although the opinion does go so far explicitly, public agencies will certainly argue that Eastern Municipal means that a motion to increase the deposit is the exclusive remedy for an inadequate initial deposit.


RV Communities and Eastern Municipal show that - despite the Supreme Court's efforts in Mt. San Jacinto - the rules on dates of value are still uncertain. Depublishing RV Communities left Eastern Municipal as the only citable precedent, but Eastern Municipal is not so definitive as to preclude an owner's argument that a condemning agency's conduct so completely violated the deposit statute as to deprive the agency of the benefit of an early date of value. Agencies would be well served to exhibit vigilance and caution in calculating pretrial deposits.

and show that - despite the Supreme Court's efforts in - the rules on dates of value are still uncertain. Depublishing left as the only citable precedent, but is not so definitive as to preclude an owner's argument that a condemning agency's conduct so completely violated the deposit statute as to deprive the agency of the benefit of an early date of value. Agencies would be well served to exhibit vigilance and caution in calculating pretrial deposits.

Note: Luce Forward partner Charles A. Bird was lead appellate counsel for the property owner in RV Communities.




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March 20, 2008

This 2-day course provides an overview of ASTM’s PCA standard (E 2018) and explains why the standard was developed.


  • How to use the standard to conduct a baseline PCA
  • To identify the property’s physical deficiencies
  • How to prepare a Property Condition Report (PCR)
  • How to read a PCR
  • Procedures for conducting a walk-through survey
  • How to establish reasonable expectations for PCRs
The next classes will be held in Las Vegas, NV on April 22-23 and in West Conshohocken, PA (ASTM HQ) on June 10-11, 2008. For more information, including complete course outline and additional dates, use this link. For on-site training at your business location, contact Scott Murphy.

Attend and get a FREE 1-year membership in ASTM International and Committee E50 on Environmental Assessment, Risk Management, and Corrective Action. This applies to new memberships only and may not be used to renew existing memberships.

Professional Engineers, if your state has a continuing education requirement for license renewal, ASTM training courses should count towards your Continuing Professional Competency (CPC) Professional Development Hour (PDH) requirement. ASTM is an approved sponsor of PDH activities in some states. For more information, use this link.

For a full course description, including fees and other 2005 dates, use this link or contact Scott Murphy, 610-832-9685 or Eileen Finn at 610-832-9686.

You have received this email based on your related purchases made at ASTM International. If this email has reached you in error or if you prefer not to receive such ASTM product updates, please use this link to request we remove your name from our list.

ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959 • USA
phone: 610-832-9585 • email: service@astm.org



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Building Life-Cycle Cost (BLCC) Programs

Building Life-Cycle Cost (BLCC) Programs

The Building Life-Cycle Cost Program BLCC 5.3-07 is a program developed by the National Institute of Standards and Technology (NIST) to provide computational support for the analysis of capital investments in buildings. BLCC5 is a windowed version of its predecessor, the DOS-based BLCC 4.9-07. NIST will continue to support BLCC4 until all its modules have been transferred to BLCC5. Associated programs DISCOUNT 3.9-07, EMISS 1.0, and ERATES 1.11 are stand-alone programs that enhance life-cycle cost analysis. EERC 1.0-07 is a program to calculate an escalation rate for contract payments for financed projects when payments are based on projected annual energy cost savings. Handbook 135 (PDF 9.21 MB, 222 pp), the Life-Cycle Costing Manual for the Federal Energy Management Program (FEMP), explains in detail the principles of life-cycle cost analysis and integrates them with the FEMP criteria. The Annual Supplement to Handbook 135 (ASHB 135), Energy Price Indices and Discount Factors for Life-Cycle Cost Analysis, contains tables of present-value factors calculated with the same discount rates and energy price projections as are used in the computer programs. Some of these documents are available as Adobe Acrobat PDFs. Download Adobe Reader. Some of the following files are self-extracting files. Download WinZip.

BLCC 5.3-07
For PCs only. Register and download. (If you would like BLCC 5.3 for an operating system other than Windows, please e-mail amy.rushing@nist.gov.)

BLCC5 is programmed in Java with an XML file format. The user's guide is part of the BLCC5 Help system. BLCC version 5.3-07 contains the following six modules:

  1. FEMP Analysis, Energy Project for energy and water conservation and renewable energy projects under the FEMP rules based on 10 CFR 436;
  2. Federal Analysis, Financed Project for federal projects financed through Energy Savings Performance Contracts (ESPC) or Utility Energy Services Contracts (UESC) as authorized by Executive Order 13123 (6/99);
  3. OMB Analysis, Projects subject to OMB Circular A-94 for non-energy, federal government construction projects, but not water resource projects;
  4. MILCON Analysis, Energy Project for energy and water conservation and renewable energy projects in military construction;
  5. MILCON Analysis, ECIP Project for energy and water conservation projects under the Energy Conservation Investment Program (ECIP); and
  6. MILCON Analysis, Non-Energy Project for military construction designs that are not primarily intended for energy or water conservation.

The BLCC computer programs conduct economic analyses by evaluating the relative cost effectiveness of alternative buildings and building-related systems or components. Typically, BLCC software is used to evaluate alternative designs that have higher initial costs but lower operating-related costs over the project life than the lowest-initial-cost design. It is especially useful for evaluating the costs and benefits of energy and water conservation and renewable energy projects. The life-cycle cost (LCC) of two or more alternative designs are computed and compared to determine which has the lowest LCC and is therefore more economical in the long run. BLCC also calculates comparative economic measures for alternative designs, including Net Savings, Savings-to-Investment Ratio, Adjusted Internal Rate of Return, and Years to Payback. The software can evaluate federal, state, and local government projects for both new and existing buildings. BLCC also contains a module for evaluating non-profit and for-profit projects in the private sector. While the BLCC programs are oriented toward building-related decisions, they can be used to evaluate alternative designs for almost any project type in which higher capital investment costs result in lower future operating-related costs.

BLCC 4.9-07 & QuickBLCC 2.9-07
(DOS-based version of BLCC for PCs only) (ZIP 511 KB)
BLCC4 Readme and Registration (MS Word 69 KB)
BLCC4 Manual (PDF 413 KB, 105 pp)
Updated April 2007

BLCC4 is the DOS-based version of BLCC. It includes QuickBLCC for evaluating projects with multiple alternatives requiring relatively simple data inputs. BLCC4 contains designated modules for analyzing energy and water conservation projects subject to 10 CFR 436A; MILCON projects; OMB projects subject to Circular A-94; and private-sector projects including tax and financing analyses.

QuickBLCC is used in conjunction with BLCC4. It provides a convenient method of evaluating multiple alternatives in one file. With BLCC4, the user must set up a different file for each alternative; in QuickBLCC, the user inputs "header" information common to all alternatives and relatively simple line-item entries for each alternative. The requirements for this multiple analysis are: (1) all of the alternatives must be evaluated in the same LCC context (i.e., using the same study period, service date, and discount rate); and (2) projects must be (approximately) functionally independent. This latter requirement means that none of the alternatives significantly affect the energy savings or the LCC of any of the other alternatives included in the same QuickBLCC project file.

DISCOUNT Manual (PDF 35 KB, 19 pp)
DISCOUNT 3.9-07, EMISS 1.00 & ERATES 1.11 (ZIP 375 KB for PCs only)

The DISCOUNT program computes discount factors and related present values, future values, and periodic payment values of cash flows occurring at specific points. DISCOUNT is especially useful for solving life-cycle cost analysis problems that do not require the comprehensive summation and reporting capabilities provided by the BLCC programs. DISCOUNT performs all of the functions of standard discounting tables, computing present values of future amounts, future values of present amounts, present and future values of periodic payments, periodic payments corresponding to present and future amounts, and corresponding discount factors. In addition, DISCOUNT computes the present value of periodic payments that increase at rates projected by the U.S. Department of Energy for use in federal life-cycle cost analysis. DISCOUNT provides the added flexibility of accepting non-integer discount rates, time periods, and escalation rates in its computations.

EMISS 1.00
EMISS 1.00 Manual (PDF 86 KB, 36 pages)
DISCOUNT 3.9-07, EMISS 1.00 & ERATES 1.11 (ZIP 375 KB for PCs only)

EMISS is a special-purpose computer program for use in generating data files that can be imported into BLCC4. EMISS output files contain location-specific emission factors for CO², SO², and NOx related to energy usage in buildings. The emission factors are generated for electricity, distillate and residual fuel oils, natural gas, liquefied petroleum gas, and coal. The resulting data can be accessed by BLCC4 to calculate reductions in air pollution emissions attributable to energy conservation investments in buildings and building systems. BLCC4 does not place an explicit dollar value on these reduced emissions, but the additional information on the emission reductions themselves may prove useful to decision makers in selecting among alternative building systems.

The default values in EMISS are based on U.S. average data. The user can substitute location-specific fuel characteristics and end-use data needed to generate emission factors representative of a particular region or location. This feature has been incorporated into the present BLCC5 version; other features of EMISS will be programmed into future versions. The EMISS user can also enter and edit emission factor files directly if appropriate emission factors are available. Emission factor files can be generated at the national, regional, state, or local level, as appropriate to the analysis. These emission factor files are saved to disk, usually to the subdirectory where the BLCC4 program is located. The files can generally be used over a long period of time without change as long as the underlying emission factors do not change.

The default emission factors for electricity are based on the average mix of fossil-fired generation facilities (coal, oil, and natural gas) in the region or state indicated. Emissions from fossil-fired generation facilities are used instead of averages for all generation facilities. This type of emission is used because conservation measures will more likely result in reductions in electrical generation from fossil-fired generation facilities, which have higher variable generation costs than nuclear and hydroelectric facilities. which have lower variable generation costs. SO² factors for electricity generation require a table of yearly scalars that represent the anticipated reductions in SO² emissions (per kWh of output) as a result of increasing environmental controls on electricity generation over time.

ERATES 1.11 Manual (PDF 126 KB, 52 pages)
DISCOUNT 3.9-07, EMISS 1.00 & ERATES 1.11 (ZIP 375 KB for PCs only)

ERATES (Electricity Rates) is used to calculate the monthly and annual electricity costs for a facility, building, or system under a wide range of electric utility rate schedules. Both kilowatt-hours (kWh) usage and maximum kW demand during on-peak periods can be included in these costs. Most typically, these calculations will be used to support engineering-economic studies that assess the cost-effectiveness of energy conservation measures or measures to shift electricity use from on-peak to off-peak time periods.

ERATES is intended to provide more accurate estimates of annual electricity costs (or savings) for specific design and operating conditions than can be calculated using average unit rates (e.g., $0.07/kWh) and annual kWh usage data.

With ERATES, users can set up time-of-use rate schedules, block-rate schedules, and demand-rate schedules for a specific geographic location and customer class. ERATES can use these rate schedules to compute annual electricity costs, given hourly or monthly kWh usage, and kW demand data for a specific end use. Users can set up experimental rate schedules to estimate their impact on electricity costs under varying usage and demand patterns. Block-rate and demand-rate schedules created with ERATES can also be imported by BLCC4.

Because utility rate schedules, especially kW demand schedules, can be quite complex, ERATES provides a means of simulating these schedules in computing monthly and annual electricity costs for a specific activity, given appropriate energy usage and demand data. ERATES cannot incorporate all of the potential complexities of utility rate schedules and is not intended for use by utilities in setting up or administering such schedules.

EERC 1.0-07
(EXE 7.4 MB)

The Energy Escalation Rate Calculator computes an average annual escalation rate for fuel prices from the annual energy price forecasts of the DOE Energy Information Administration. This rate can be used to escalate contract payments in Energy Savings Performance Contracts and Utility Energy Services Contracts when the payments are based on projected annual energy cost savings. The calculator prompts the user for information on project location, fuel usage, industry sector, and the beginning and end dates of the performance period. It then calculates the average rate of fuel price escalation over the duration of the performance period, weighted by the proportions of fuel types used in the project.

Energy Price Indices and Discount Factors
Energy Price Indices and Discount Factors for Life-Cycle Cost Analysis - April 2007, Annual Supplement to Handbook 135 (PDF 1.4 MB, 75 pp)

The annually updated discount factors used in life-cycle cost analysis (and embedded in the software) are also available as printed tables in this publication. The factors are calculated with the latest FEMP discount factors and energy price escalation rates for U.S. Census regions, rate types and fuel types. Hard copies are obtainable on request from the Energy Efficiency and Renewable Energy (EERE) Information Center at 1-877-337-3463.

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The BEES (Building for Environmental and Economic Sustainability)

The BEES (Building for Environmental and Economic Sustainability) software brings to your fingertips a powerful technique for selecting cost-effective, environmentally-preferable building products. Developed by the NIST (National Institute of Standards and Technology) Building and Fire Research Laboratory the tool is based on consensus standards and designed to be practical, flexible, and transparent. Version 4.0 of the Windows-based decision support software, aimed at designers, builders, and product manufacturers, includes actual environmental and economic performance data for 230 building products.

In support of the 2002 Farm Security and Rural Investment Act (P.L. 107-171), BEES has been adapted for application to biobased products. For more information about this program, go to BEES for USDA.

BEES measures the environmental performance of building products by using the life-cycle assessment approach specified in the ISO 14040 series of standards. All stages in the life of a product are analyzed: raw material acquisition, manufacture, transportation, installation, use, and recycling and waste management. Economic performance is measured using the ASTM standard life-cycle cost method, which covers the costs of initial investment, replacement, operation, maintenance and repair, and disposal. Environmental and economic performance are combined into an overall performance measure using the ASTM standard for Multi-Attribute Decision Analysis. For the entire BEES analysis, building products are defined and classified according to the ASTM standard classification for building elements known as UNIFORMAT II.

BEES has been supported in part by the U.S. EPA Environmentally Preferable Purchasing (EPP) Program. The EPP program is charged with carrying out Executive Order 13423, "Strengthening Federal Environmental, Energy, and Transportation Management," which encourages Executive agencies to reduce the environmental burdens associated with the more than $230 billion in products and services they buy each year, including building products.

BEES 4.0 runs on Windows 95, and beyond personal computers with at least 60 MB of available disk space. A printer must be installed. Download your free copy of BEES now. If you prefer a free BEES 4.0 compact disc and printed manual, place your order through the EPA Pollution Prevention Information Clearinghouse by calling (202) 566-0799 or e-mailing ppic@epa.gov.



Office of Applied Economics
Please send technical questions about BEES to barbara.lippiatt@nist.gov
Last modified: 8/20/2007

Office of Applied EconomicsPlease send technical questions about BEES to Last modified: 8/20/2007
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Re-Appraising Risk: Some Appraisers See Cracks in Commercial ‘Firewall'

Re-Appraising Risk: Some Appraisers See Cracks in Commercial ‘Firewall'

Written by Randyl Drummer rdrummer@costar.com

Overvalued Commercial Appraisals Based On Speculative Comps Could Add to Woes of Commercial Lenders Over The Next Year


My article in CoStar Advisor two weeks ago about the proposed Fannie Mae and Freddie Mac agreement to curb inflated property appraisals prompted some lively feedback from commercial appraisers and other property professionals.
Many appraisers agreed a regulatory "firewall" between lenders and property appraisers erected after the savings & loan debacle of the late 1980s and early '90s has helped protect commercial lenders and appraisers from the misery of the current residential mortgage meltdown. Others wrote in, however, to point out that despite the ‘90s reforms that followed the S&L crisis, commercial appraisers continue to face pressure from clients and lenders to "hit the numbers" -- though most agree it’s far less common, at least so far, than in the residential space.

Some worry that pressures on in-house commercial appraisal staffs at the nation’s largest banks and S&Ls during the five-year commercial real estate boom -- along with seductive bonuses and other incentives to approve as many loans as possible -- will lead to an inevitable surge in inflated appraisals, and problem mortgages, over the next year. Others in the industry fret that the emergence of the so-called appraisal management companies, including those offering online services, will erode the due diligence, strict value verification and high standards for appraisers that safeguard the integrity of real estate transactions.

Aggressive appraisals of numerous condominium projects in the overbuilt South Florida market will come back to haunt the commercial lending industry over the next year, wrote Michael Vincent John Spaziani, a State Certified General Real Estate Appraiser in Palm Beach.

The risky appraisals were "heavily influenced by the pressures of the developers, and the lack of demand/supply research in their reports," Spaziani said.

When a party has a pecuniary interest in the appraisal process and pressures an appraiser -- and when that appraiser bends to the pressure -- then the appraisal process is corrupted, Deborah L. Tripp, MAI, SRA of Property Solutions, LLC in Columbia, SC, told Advisor.

"The pressure I have experienced from my commercial appraisal business is relatively infrequent and doesn’t come close to the pressure I received from clients soliciting residential appraisals in 2003," Tripp said. "After six months, I closed down my residential division, because constantly educating residential clients about why I couldn’t provide predetermined value conclusions was not my idea of a fun or profitable business."

"But when a commercial appraiser does get pressured, it’s a far bigger kind of pressure and could cause much more damage," she adds. "Not all commercial clients are great clients, and just as there are unscrupulous lenders, there are also unscrupulous mortgage brokers, accountants, developers, real estate brokers, appraisers and many more bad actors."

So far, the proposed Home Valuation Protection Program, established by Fannie Mae, Freddie Mac and the Office of Federal Housing Enterprise Oversight in an agreement earlier this month with New York Attorney General Andrew Cuomo's Office, is focused on problem single-family mortgages. The new rules are set to take effect Jan. 1, 2009, pending a 45-day public comment period. However, the proposed rules are far from a "cure all" for maintaining independence, said Andrew Miliotis, a 20-year commercial real estate agent with AIT Realty Corp. in Los Angeles.

"So long as appraisers have knowledge of the sales price of the transaction and are able to talk with the agents involved in the transaction, they are going to be influenced to come to the ‘desired’ valuation," Miliotis said. "It would be interesting to find out how common it is for agents to assist appraisers by providing comps to justify the sales price."

"It is not only mortgage brokers/lenders who have created the mess that we see in the residential market, but also the greed of agents and even buyers themselves who cannot grasp the cyclical nature of the real estate market and are certain that no matter what they've agreed to pay, they will 'make a killing’ in a short time," Miliotis added.

The Fannie/Freddie pact won't guarantee independence -- just ensure that it's the GSA lender that orders the appraisal rather than the buyer or mortgage broker, noted Charles R. Harris, a Realtor with Prudential Florida WCI Realty in Fort Myers, FL.

"[Lenders] will still ask for a copy of the contract, and in my experience, [appraisers] have usually came in at or just above the contract price -- regardless of what the fundamentals may indicate," Harris said. "One solution to the problem would be to disallow comps that are speculator driven and only allow comps based on investor or end-user purchases -- those are the only true values of the properties."

"That was the major problem with residential as well as some commercial vacant land appreciation in Southwest Florida," Harris continued. "The speculators were buying everything at any price and the appraisers were writing appraisals based on those reckless purchases -- and the lenders weren’t doing their homework and saying, ‘wait a minute, this is way above the last 20 years of normal annual appreciation," Harris said. "Everyone is pointing fingers, but the truth is they were all guilty of sleeping with the ‘green monster.’"

"Whenever you have a sale, and you have real estate commissions and brokerage commissions and loan fees at risk, you have pressure. Nobody in that deal gets paid unless it goes through," added Steven Smith, REA, MAI, owner of San Bernardino, CA-based Smith Realty Advisors. "They don’t want to know the truth as much as they want to get their commission."

Smith, who has conducted seminars on appraisal and mortgage fraud prevention since 1982, said commercial appraisers are increasingly being asked to provide "comp checks" -- preliminary estimates of a property’s value, usually before the client even hires the appraiser to complete a formal appraisal with full due diligence. Comp checks -- epidemic in problem residential appraisals where they are used as instruments of buyer/lender pressure -- are routinely cited as a violation of ethical standards under the Uniform Standards of Professional Appraisal Practice (USPAP), the generally accepted best-practices guidelines administered by The Appraisal Foundation and first established for licensed and certified appraisers in the 1980s.

"At my office, we don’t use price parameters at all," Smith told Advisor. "If it’s in a known project, we’ll look there first, and then we’ll go to a project of similar value if we need to. No one’s going to knowingly call us that are perpetrating a fraud. Sometimes I’ve taken the call and the loan person has no concept why I can’t and won’t do what they want -- because they think everybody does it," Smith added.

"So our phones don’t ring as much, but guess what -- you can actually make a living being neutral. What a concept."

On the other hand, Stanley B. Reed, MAI, a Lakeland, FL appraiser, said that he has experienced "essentially no problems in the commercial appraisal/lending field."

"The major elements of change [in 1991] were the separation of the appraiser from the borrower, and the separation of the appraiser and appraisal reviewer from the lender," Reed said. "Our profession did not fix the problem in the ‘80s, so the government did. Now the government must fix this mess. Too bad: No guts and too many people scared of lawyers."

Other appraisers declined to identify themselves publicly, spooked by the fear of being blacklisted by clients or lenders -- or running afoul of the Appraisal Institute, the best-known trade group for appraisers which bestows the coveted MAI and SRA designations. Some of the most strident warnings about inflated commercial appraisers came from professionals who are licensed and certified through appraisal organizations and state certification programs other than the Appraisal Institute.

"Commercial appraisers face client pressure on value all the time," said one Arizona residential and commercial appraiser with 30 years in the business, who is not an MAI. "While the level is less than in residential, it still exists. Residential appraisers are subject to the same reforms that impacted the commercial appraisers after the S&L crisis. They are subject to the same standards, advanced education and testing."
"I personally know what it is like to lose a major client for half a month’s production after I missed three numbers. All of the commercial shops are run by MAIs. To openly comment against the [Appraisal Institute] would be a death knell for my working in the Phoenix market."

The aggressive bonus structures put in place at banks and S&Ls for commercial review appraisers allowed lenders to accept in-house commercial appraisals that "never should have been allowed to pass muster," said Warren K. Hoppke, SRPA, of Newport Beach, CA, a member of the Appraisal Institute and owner of AppraiserValues.com.

"Overvalued commercial appraisals will start to appear toward the end of this year," he predicted. "Many commercial appraisals were [simply] accepted by lending institutions who merely placed the appraiser on their approved list, and then accepting the appraisal," Hoppke added.

Hoppke said he heard reports that at one of the larger U.S. banks, commercial review appraisers were pressured "to produce as many loans as possible to increase profits."

"The review appraiser’s job was to utilize fundamental appraisal methodology to review these commercial appraisals. However, they were so swamped and were so motivated by per-review-appraisal high bonus structures that they rubber-stamped appraisals in their reviews and accepted appraisals by any certified general appraiser."

"Most of the appraisals had extremely low cap rates, understated expenses and overblown future projections on discounted cash-flow analyses that would never materialize,"
Hoppke continued. "I have reviewed numerous commercial appraisal reports ... and I can tell you that many of these reports are overvalued."

In a letter to the Appraisal Institute forwarded to CoStar, a MAI-certified appraiser in the Midwest echoed those concerns, expressing dismay about the "continued, flagrant abuses in the commercial appraisal profession." The appraiser asked the institute to incorporate provisions for commercial into the agreement with New York Attorney General Andrew Cuomo. The appraiser argues that on-staff appraisers hired by banks such as Wells Fargo and Washington Mutual "cannot be viewed as independent."

"We are aware of many instances that these on-staff employee ‘appraisers’ must fill in required responses to comply with bank requirements, even if these "appraisers" know that their responses are not independent or even correct," the appraiser wrote. "As an independent appraiser, I have the ability to refuse working with clients that do not allow for me to properly complete my appraisals in compliance with my own ethics and in compliance with USPAP."

Commercial mortgage bankers abuse the appraisal system just as much as residential mortgage bankers, the Midwest appraiser wrote in the letter.

"Compared to their residential cohorts, commercial mortgage bankers are a little more savvy in directing commercial appraisers in the direction of what value they need."

One mortgage broker and Realtor chimed in, warning against painting all mortgage brokers with too broad a brush.

"I have never, ever suggested, inferred, or requested or put pressure on any appraiser to inflate any appraisal in order to make a loan for any reason," she said. "Most honest brokers -- and there are a lot of us in the world -- have never used this practice."

"My concern is that we will revert to the Dark Ages -- where minority properties were redlined by the lenders and the appraisers, to the past when certain appraisers would appraise down properties because of prejudice. If this [Fannie/Freddie] change happens, there will have to be some additional regulating standards/safeguards put in place."

"A lot of the blame has to also be shouldered by the lenders -- who seemingly pressured their account executives to push higher rates not just for the subprime client, but for any client -- to make their profit."

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March 19, 2008

CCIM Kick-Off Fiesta

You're invited to the


2008 Spring Meerting of CCIM Partners Deal Making and Networking Event. Hope you can make it!


Newport Beach ,CA April 11th





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March 18, 2008

ASW Engineering Management Consultants

The three founders of ASW Engineering, Ramon Alvarez, Richard Stamm, and David Wylie, have provided leadership and vision since the company began in 1976. The principles they established decades ago remain the cornerstone of the business:
  • Maximize the value of our client's investment

  • Model, develop, modify, and build energy systems that assure the highest integrity

  • Provide comprehensive, affordable approaches to energy efficiency and environmental measures, using the best possible technologies for each application

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March 16, 2008

Information on Decline in Value Reassessments

 Information on Decline in Value Reassessments

It has been widely reported that the property values of single-family homes and condominiums throughout most of the State have been declining. While the declines in Los Angeles County have not been as dramatic as those in other parts of the State, property values have dropped in some areas of Los Angeles County.

How does this impact your property taxes? In 1978, California voters passed Proposition 8, a constitutional amendment that allows a temporary reduction in assessed value when a property suffers a “decline-in-value.” A decline-in-value occurs when the current market value of your property is less than the assessed value as of January 1.

Typically, an application is required to initiate a review of your property’s value by the Assessor. However, in 2008 the Los Angeles County Assessor’s Office will be proactive in reviewing those single-family homes and condominiums that were purchased between July 1, 2005 and June 30, 2007. We will look at sales of comparable properties that sold near the lien date, January 1, 2008. If the market value is less than the assessed value indicated on your 2007-08 tax bill, the assessed value will be reduced accordingly. An application will not be necessary.

We will complete this review by June 1, 2008 and will notify in writing those property owners who qualify for a reduction in the assessed value of their property. Applications will be accepted prior to June 1, 2008, but if you purchased your home between July 1, 2005 and June 30, 2007, we urge you to wait for notification from our office before filing. Should it be necessary, you will have until December 31, 2008 to file an application for review.

If the sale date of your property is not within the dates noted or is other than a single family home or condominium, it will not be included in the review. However, if you believe the assessed value of the property shown on the 2007-08 tax bill is more than the fair market value as of January 1, 2008, you may file an application at any time through December 31, 2008.

We are aware of at least one private company that did a mass mailing to property owners offering their services to pursue a reduction in their property taxes. Specifically, they are seeking to file an assessment appeal on the property owner’s behalf. While there is no initial fee charged for the filing of an appeal, if a reduction is granted, this particular company will receive 45% of the amount of the tax savings for the next two years. We expect other private companies to offer similar services for a fee or a percentage of any tax savings.

Solicitations of this type may not be illegal, but property owners should be aware that the Assessor’s Office provides a simple filing process for a reduction in their property taxes at no charge.

Click here for a link to the Decline-in-Value Reassessment Application (Prop. 8).

Click here for more information about temporary reduction in the assessed value of your property.
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March 13, 2008

March 2008

Dramatic declines in commercial real estate investment activity mask respectable fundamentals so far in 2008...

While investment in commercial real estate has decreased to levels not seen in four years, fundamentals (vacancy, rent growth, absorption) have remained relatively buoyant. There have not been any great spikes in vacancy rates nor have that many markets experienced negative rent growth. Under normal circumstances, full or near-to full occupancy coupled with positive rent growth would be ample incentive for investor interest. Where is the disconnect?

Many analysts have assumed that capital does not exist and that banks or other sources of equity have put a halt to lending for commercial real estate. This is not the case. The decline in investment activity actually has more to do with a lack of confidence by investors and lenders who are leery about current conditions and are taking a “wait and see” attitude. More than anything else, the decline in confidence levels is due to investor concerns and reticence about the current and future state of the economy.

The NAR forecast for four major commercial sectors includes analysis of quarterly data for various tracked metro areas. The sectors include the office, industrial, retail and multifamily markets. Metro data were provided by Torto Wheaton Research and Real Capital Analytics.

Check out the latest report at:

(For members only).

Detailed analysis of each property segment is available to NAR Members Only. REALTORS® need only key in their user name and password to access the full report. (Registration help is available.)

Or, for a summary of the highlights:


Check out the full range of NAR Research Products at:


Contact Scott MacIntosh, Sr. Economist, Commercial/Investment Real Estate, (202) 383-1188 or smacintosh@realtors.org.

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March 07, 2008

“Temporary Severance Damages Only to Compensate for Actual Damages”

City, county and state road projects often temporarily disrupt our lives. We all get
annoyed, now and then, when some street widening project in our neighborhood goes on
for months and months - especially when it prolongs our daily commute. Most of us try to
grin and bear it. A key question for public agencies and landowners: Exactly when does
the temporary annoyance become compensable in eminent domain?
This question is addressed in City of Fremont v. Fisher (February 28, 2008, A116935,
____ Cal.App.4th ____). The Fishers lived on a small residential lot next to a city street
grade separation project. The city took a temporary construction easement (“TCE”) over
some of the Fishers’ land - and thereby allegedly delayed and disrupted the Fishers’
development plans. The city offered them rent for the land it took temporarily, but the
Fishers wanted more. They wanted temporary severance damages.
But the appellate court said “no.” In Fisher, the California Court of Appeal borrowed
some of the reasoning in the California Supreme Court’s Metropolitan Water District of
Southern California v. Campus Crusade For Christ, Inc. (2007) 41 Cal.4th 954 [161 P.3d
1175]. Temporary severance damage awards should be limited to actual damages,
actually suffered. To recover temporary severance damages, a property owner must
show that a temporary taking interfered with the owner’s actual intended use - not with
some hypothetical future development plan.
Factual Background: Rent And Damages, Too?
As part of its grade-separation project, the city of Fremont took, among other things, a 5-
year TCE from the Fishers. The city offered the reasonable rental value of that part of the
land burdened by the TCE. No question existed over whether the Fishers should receive
But the Fishers’ additional claim for temporary severance damages raised red flags. The
Fishers argued that the TCE interfered with their ability to develop and sell their property
because the TCE cut across a portion of the property they could most easily develop.
Moreover, the property was worth substantially less during the five years that the TCE
was in effect.
The trial court allowed the jury to hear evidence on the value of the temporary severance
damages and the jury awarded nearly $200,000. The jury awarded the temporary
severance damages in addition to awarding $85,000 as the fair rental value for that
portion of the property subject to the TCE.
Background Legal Principles
California’s Eminent Domain Law statute allows a property owner to recover severance
damages as part of the owner’s constitutionally-guaranteed just compensation.
• Severance damages compensate an owner for injury that a partial taking and the
project as a whole cause to the remaining property. (Code Civ. Proc., §§ 1263.410-

• Temporary severance damages compensate an owner for injury that a temporary partial taking and the
project’s temporary impacts cause to the remaining property. (Campus Crusade, supra, 41 Cal.4th at p. 975;
Pierpont Inn, Inc. v. State (1969) 70 Cal.2d 282, 294-295, 299 [449 P.2d 737].) The award of temporary
severance damages can be controversial under any circumstances. (Compare People ex rel. Dept. of Public
Works v. Ayon (1960) 54 Cal.2d 217 [352 P.2d 519] and Orange County Flood Control District v. Sunny
Crest Dairy, Inc. (1978) 77 Cal.App.3d 742 [143 Cal.Rptr. 803], with Pierpont Inn, supra, 70 Cal.2d 282 and
Liontos v. County Sanitation Districts of Los Angeles County (1998) 61 Cal.App.4th 726 [72 Cal.Rptr.2d
In an eminent domain case, the trier of fact - usually a jury - determines the amount of severance damages. The
jury bases the award on evidence that the partial taking interfered with the owner’s use of the remaining
property. Campus Crusade and Fisher discuss when a trial court should allow the jury to hear evidence on the
value of temporary severance damages - damages that are limited in time.
Fisher Follows The California Supreme Court’s Lead In Campus Crusade
In July 2007, the California Supreme Court held in Campus Crusade that the jury can hear evidence of
temporary severance damages only if the owner establishes that the temporary taking interfered with the owner’s
actual intended use of the remaining property and not some hypothetical use.
Fisher repeated Campus Crusade’s holding.
• The Fishers argued that the TCE interfered with their ability to develop and sell their remaining property.
• However, they presented no evidence that they actually intended or attempted to develop or sell their
remaining property while the TCE burdened the property.
• Thus, the appellate court concluded that the TCE caused the Fishers no actual injury, since the TCE did not
interfere with their actual use of the remaining property.
• Therefore, the appellate court held that evidence on the value of temporary severance damages from the
TCE should not have been admitted. The court of appeal reversed the jury award of nearly $200,000.
Future Application
An owner may still recover temporary severance damages resulting from a partial temporary taking, but only if
the owner can show actual injury. The owner normally will need to provide evidence that the temporary taking
interfered with the owner’s actual use of the remaining property during the temporary taking. For example:
• If an owner sells his remaining property during a construction period and construction lowers the sale price,
the owner is entitled to recover for the decreased sale price.
• If a TCE interferes with an owner’s ability to develop the property and the eminent domain action reaches
final judgment before the TCE expires, the owner may bring a subsequent action to recover for the loss
resulting from the TCE’s interference.
Luce Forward's mission is to provide quality, efficient solutions to our clients' legal needs and to enable our clients to achieve
their goals and objectives. Luce Forward's E-Updates are published as a free service to our clients and friends. The material
contained herein is provided for informational purposes only and is not intended to constitute advertising, a solicitation or
legal advice. If you wish to receive additional or more specific information about any subject covered in an E-Update, please
contact one of the attorneys at Luce Forward. Visit Luce Forward's "Subscription Preferences" page on www.luce.com, where
you can subscribe or unsubscribe to Luce Forward's E-Updates in this area and/or other practice areas or industries.
Copyright © 2008 Luce, Forward, Hamilton & Scripps LLP. All rights reserved.

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March 06, 2008

LoopLink 7.0 Releases To Rave Reviews

LoopNews: Your Commercial Real Estate NewsletterLoopNet, Inc.
LoopNews: Your Commercial Real Estate Newsletter
spacerMarch 06, 2008www.LoopNet.comOver 825,000 LoopNews Subscribersspacer
In This Issue
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LoopLink 7.0 Releases To Rave Reviews
The next generation of LoopNet's market leading LoopLink service was released earlier this week. More than 100 commercial real estate organizations have switched to LoopLink in the past 12 months. Among the global organizations recently implementing LoopLink are the CCIM Institute, Colliers International, NAI Global and ONCOR International. Additionally, CB Richard Ellis, Grubb & Ellis, Staubach, First Industrial, SIOR and many major regional firms have already opted to implement the new LoopLink 7.0 service. The next generation LoopLink 7.0 features market leading mapping tools with integrated street, aerial and bird's-eye property views, enhanced international capabilities and the ability to distribute properties with LoopNet's exclusive network of 100+ leading online newspapers including New York Times, LA Times and Chicago Tribune.

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March 05, 2008

Fannie, Freddie Set

Fannie, Freddie Set
Stricter Appraisal Rules

March 4, 2008; Page A3

Fannie Mae and Freddie Mac announced an agreement with New York Attorney General Andrew Cuomo to discourage inflated appraisals by enforcing new standards in the home-mortgage market.

Seeking to head off the threat of lawsuits from Mr. Cuomo, the two government-sponsored providers of funding for mortgage loans agreed to a code of conduct due to take effect next Jan. 1. Because Fannie and Freddie are the dominant sources of funds for home loans, the code will become an effective standard for the industry.


The code bars lenders and their representatives from pressuring appraisers to supply inflated estimates of property values, which are widely viewed as an important contributor to the mortgage crisis. Appraisers have long complained that they risked losing business if they didn't appraise homes at values that would allow loans to be made.

Bank employees who are involved in making loans won't be allowed to choose appraisers. And lenders won't be able to make loans on the basis of appraisals from their own employees or from other companies they control.

The code also bars lenders from using appraisals ordered by mortgage brokers. The National Association of Mortgage Brokers said that rule could drive many brokers out of business. Officials of the trade group said appraisals ordered by brokers sometimes can be used for more than one potential lender, giving the consumer more flexibility. Under the new code, they said, consumers who use brokers might end up paying for two appraisals. Mr. Cuomo said he didn't believe the code would hurt brokers who follow "legitimate" practices.

Fannie and Freddie also agreed to create an independent organization to monitor the new appraisal standards. Their main regulator, the Office of Federal Housing Enterprise Oversight, approved the new code.

Lenders generally require appraisals before making home loans. The appraisal is supposed to ensure that the lender has an authoritative estimate of the property's value. An inflated appraisal can cause lenders to advance more money than a house is worth, exposing both lender and borrower to losses, especially when home prices fall.

"In my opinion, 70% to 80% of appraisals that were done during the housing boom are probably not worth the paper they're written on," said Jonathan J. Miller, a New York appraiser and longtime critic of industry practices. He estimates that home values are overvalued nationwide by at least 10% because of inflated appraisals.

Mr. Cuomo said he is still investigating the practices of Wall Street firms involved in creating mortgage securities, as well as ratings companies.

Meanwhile, a new loan program being offered by Fannie is stirring debate over methods being used to hold down the number of foreclosures. Fannie last week announced a plan to finance unsecured loans of as much as $15,000 to people who have fallen behind on their mortgage payments, allowing them to pay the past-due amounts. The loans would be made by mortgage lenders, then Fannie would buy the loans and hold the risk.

These 15-year, 5% loans are aimed at people who fell behind on their payments because of a temporary financial squeeze -- caused, for instance, by a divorce, death in the family or medical problem -- but who can afford to meet future monthly payments, Fannie officials say. They say such loans will be one of several ways to help distressed borrowers keep their homes. The new loans won't go to people who can't afford the homes they occupy, Fannie says.

Fannie and Freddie guarantee payments on mortgage loans that are bundled into securities and held by other investors. When a loan defaults, Fannie and Freddie have to compensate those investors. Often Fannie and Freddie must buy the loans at their face value, then take a financial hit by marking them down to the current market value. Fannie reported a loss of $1.36 billion from writing down such loans last year.

If they can help borrowers catch up on payments, Fannie and Freddie can avoid taking those immediate hits.

But such moves "allow them to hide the true condition of their credit exposure," says Joshua Rosner, an analyst at Graham Fisher & Co., a research firm in New York. He said unsecured lending also represents a move beyond the traditional role of Fannie and Freddie.

Mike Quinn, a senior vice president at Fannie, said it is too early to say how many unsecured loans may be offered. But he said making such loans is a simpler process than refinancing mortgages or modifying mortgage terms and so may help lenders overwhelmed with demands for loan workouts.

Deciding which borrowers can be rescued is tricky. Among delinquent borrowers helped with modified terms or other arrangements in 2001 through 2005, 60% were current on their payments or had paid off their loan 24 months later, Fannie says. About 9% of the loans ended up in foreclosure, and the rest of the borrowers were behind on payments again.

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March 04, 2008

Introducing a New MBA Signature Conference:


Introducing a New MBA Signature Conference:
MBA's Government Housing and Loan Production Conference 2008

Hilton Washington
Washington, D.C.
June 12-13, 2008

Visit the Conference Web Site and Register Today


Visit MBA's Government Housing and Loan Production Conference 2008 Web site and register today. Attend this conference and gain insight into the dramatic changes taking place in mortgage origination as a whole, and the federal government's housing programs in particular. This conference provides insight on how to make the most of the Federal Housing Administration's (FHA) programs such as FHASecure, the Veterans Affairs (VA) Loan Guarantee Service and the Department of Agriculture's Rural Housing Service (RHS). Attending this conference also will also give you a chance to discover alternative sales approaches and evaluate new strategies, products and technology outside the government lending environment.

Government officials and industry experts lead sessions exclusively designed for mortgage professionals with loan production and regulatory compliance responsibilities, including CEOs, heads of production, credit policy professionals, lenders of government loans and loan officers and brokers.

Who Should Attend
Wholesale and retail originators, brokers and loan correspondents, residential underwriting professionals, credit policy professionals, quality assurance professionals, executives involved in the development of their organization's strategic plan, and anyone interested in learning more about the current government housing programs.

Additional Government Housing Resources from MBA
CampusMBA FHA Central is a collection of valuable educational resources providing the most comprehensive set of solutions for getting you and your business up to speed on FHA and VA loans. FHA Central resources include classroom-based courses, LIVE online workshops and more. Visit CampusMBA FHA Central.

Register Online »
Download Form [PDF] »
Call (800) 793-6222
9:00 a.m.-5:00 p.m. ET
Early registration cutoff:
May 29, 2008

Hilton Washington
1919 Connecticut Ave., NW
Washington, D.C. 20009
(202) 797-5820
Fax: (202) 232-0438
MBA discount rate:
Hotel discount cutoff:
May 20, 2008

* Program registrants are responsible for making hotel reservations. Contact the Hilton Washington and state that you will be attending MBA's Government Housing and Loan Production Conference 2008.

Speaking Opportunities
Contact Norman Edwards at nedwards@mortgagebankers.org or call (202) 557-2793.

Network with Attendees
Conference sponsorship is the ideal vehicle to grab the attention of this important audience and position your company as a leader in the industry. All sponsorships include a tabletop exhibit opportunity, but space is limited. For more information download the sponsorship brochure or contact Phil Giorgianni at phil@mortgagebankers.org or call (202) 557-2733.


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This advertisement is brought to you by the Mortgage Bankers Association (MBA).

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Mortgage Bankers Association
1919 Pennsylvania Avenue, NW
Washington, DC 20006-3404
(800) 793-6222

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Bucking the Downward Trend: Why Commercial Real Estate is Still a ‘Best in Show’ Asset

Bucking the Downward Trend: Why Commercial Real Estate is Still a ‘Best in Show’ Asset
Why Commercial Real Estate is Still a ‘Best in Show’ AssetDeloitte Insights podcast

With stock markets rising and falling at speeds dizzying enough to cause nosebleeds, and with banks writing off billions of dollars in bad debt and house prices plunging, investors are understandably jittery about putting their money into real estate. Yet there are some surprising signs of health in the real estate market that often go ignored in the scandal-ridden subprime mess. While the residential market has taken a beating, commercial real estate continues to be a clear winner both in terms of performance and stability.

Access this podcast and other information about the real estate market:
Bucking the Downward Trend: Why Commercial Real Estate is Still a ‘Best in Show’ Asset

Listen to our complimentary podcasts anytime, anywhere.

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Olson v. Auto. Club of S. California, No. S143999
A prevailing plaintiff is not entitled to an award of expert witness fees in addition to attorney's fees under Code of Civil Procedure section 1021.5, which provides that upon motion, a court may award attorneys' fees to a successful party in any action which has resulted in the enforcement of an important right affecting the public interest if a significant benefit has been conferred on the general public. Read more in DOC...   Read more in PDF...

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