10 Things Anyone Representing Clients Buying or Developing Real Estate Should Know About Land Use

1. 10 Things Anyone Representing Clients Buying or Developing Real Estate Should Know About Land Use Beth Collins-Burgard and Hillary Steenberge Brownstein Hyatt Farber Schreck January 21, 2017 Bench & Bar Conference Santa Barbara, CA

2. Key Issues to Spot 1) In the Coastal Zone? 2) Permits Expired or Vested? 3) Parcel Validation – Subdivision Map Act 4) Beware of General Plan Policies & Design Guidelines 5), 6), 7) CEQA, CEQA, CEQA -- CEQA Litigation risks -- CEQA Exemptions -- CEQA Streamlining (i.e., Tiering, Transit Oriented Development) 8) Water – Is enough available? 9) Traffic Mitigation Fees 10) Prevailing Wage

3. California Coastal Act Is property in the Coastal Zone? Very broad definition of “development” "Development" means “the placement or erection of any solid material or structure; discharge or disposal of any dredged material or of any gaseous, liquid, solid, or thermal waste; grading, …change in the density or intensity of use of land, including, but not limited to, subdivision pursuant to the Subdivision Map Act, and any other division of land, including lot splits…change in the intensity of use of water, or of access thereto; construction, reconstruction, demolition, or alteration of the size of any structure, including any facility of any private, public, or municipal utility; and the removal or harvesting of major vegetation other than for agricultural purposes, kelp harvesting, and timber operations …. 3

4. California Coastal Act Is property in the Coastal Zone? Local Coastal Plan or White Hole? In Appeal Zone? Risk of appeal to Coastal Commission Outside Coastal Zone and need federal permit? Federal Coastal Zone Management Act 4

5. Permits Expired or Vested? • Many Types of Entitlements • Land Use Permit, Site Plan Review • Tract or Parcel Map • Development Agreement • Conditional Use Permit for Alcohol • Conditional Use Permit for Shopping Center • Permits valid and vested? • Hedge against legal/political changes • Warning: Vesting/expiration date varies • No automatic expiration if vested

6. Parcel Validation • Subdivision Map Act limits sales to legal parcels • Parcel validation may reveal hidden legal parcels • Warning: APNs do not equal legal parcels • Warning: Hidden legal parcels can be lost inadvertently

7. Beware of Policies & Guidelines • General Plan Consistency required for all projects • General plan – policies and goals • Traffic policy in community plan restricting new trips • Is proposed use or store consistent with existing General Plan? • Specific plan – zoning overlay • Limits on development or design, operations, and alcohol permits • Is proposed use or store consistent with existing Specific Plan?

8. CEQA, CEQA, CEQA • Litigation risk (i.e. CEQA)? • Litigation stops projects for years • Developer pays petitioners’ attorneys’ fees • Developer pays agency’s fees • CEQA Exemptions • I.e., infill, ministerial approvals • Beware of exceptions! • CEQA Streamlining • Modifying entitled project • Tiering off plan level analysis • Transit Oriented Development

9. Water – Is there Enough? • Is the parcel currently served or using water? • Does project require more than existing usage? • Moratorium on new development or wells? • Existing water agreement?

10. Traffic Mitigation Fees Beware! • Traffic mitigation fees can be enormous • Look at local transportation overlays/plans • Ask the local jurisdiction

11. Prevailing Wage • Beware of gift of public funds associated with public improvements or below market leases

12. Others…. 1) Density Bonuses with Affordable Housing • State or local 2) Permit Streamlining Act • Not generally helpful 3) LAFCO

13. Questions?