Since the EPA and the Army Corps published the final Clean Water Act rule defining “waters of the United States” on June 29, 2015, 72 plaintiffs have filed ten separate complaints in eight federal district courts challenging the final rule. Additional district court actions raising facial challenges to the rule are expected to be filed in the near future. Plaintiffs in some of these cases have already filed motions for preliminary injunctions seeking to bar application of the rule.
In connection with a commercial lease with an international company, a commercial landlord is often asked to accept U.S.-based subsidiary as the tenant entity. The U.S. subsidiary often does not have independent financials or credit history, leading the landlord to request additional lease security. In this context, the landlord may be offered a guaranty from a foreign-based parent company. Although it may seem prudent to accept a guaranty from an international entity with substantial assets, these guaranties present certain challenges. Even if the foreign guarantor has significant financial strength, a guaranty may prove worthless if the landlord cannot collect on a judgment against the guarantor. Continue Reading
Fourth Annual California EB-5 Conference Featuring Keynote Speaker Congressman Bob Goodlatte.
Sheppard Mullin is proud to announce that both John Tishler and Michael Gibson will be participating as panelists at the event, which is designed for an array of attendees, including those interested in the EB-5 program for project finance or immigration purposes. The 2015 California EB-5 Conference will offer attendees access to both advanced and introductory level panels on pertinent EB-5 program topics, ranging from EB-5 financing for real estate development to complex immigration legal issues, all of which will be discussed in detail by expert EB-5 industry speakers. Continue Reading
Paulek v. Western Riverside County Regional Conservation Authority (Anheuser-Busch, LLC, Real Party in Interest) (6/19/2015, 4th Civil No. B253935) (opn. modified on denial of rehearing, http://www.courts.ca.gov/opinions/documents/E059133M.PDF.)
In Paulek v. Western Riverside County Regional Conservation Authority, the California Court of Appeals, Fourth District, held that removal of the protected status from a parcel of land still needs to comply with the environmental review requirement of the California Environmental Quality Act (CEQA). In doing so, the court concluded that the Western Riverside County Regional Conservation Authority’s (“Conservation Authority”) re-classification of land was a fundamental land use decision, akin to a change in zoning laws or a municipal general plan. Continue Reading
Schafer v. City of Los Angeles; Triangle Center, LLC, Real Party in Interest (6/17/2015, 3d Civil No. E059133)
The California Court of Appeal, Second District, recently re-affirmed the heightened standard for invoking equitable estoppel against the government. In Schafer v. City of Los Angeles, the court rejected a claim that the City was estopped from requiring a property owner to abate a long‑standing parking lot use in violation of the City’s zoning code. Continue Reading
On June 29, 2015, the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) published a final rule defining “waters of the United States.” The rule becomes effective on August 28, 2015. Because the Clean Water Act (“CWA”) grants regulatory authority only to areas under federal jurisdiction, the new rule will play a central role in determining when and to what extent the Corps and EPA will be involved in land use decisions. It will affect many industries, including agriculture, energy development and transmission, transportation, and housing.
In California Building Industry Association v. City of San Jose (Case No. S212072, filed June 15, 2015), the California Supreme Court upheld an inclusionary housing ordinance imposing affordable housing requirements as a valid exercise of a municipality’s police power, rather than an exaction subject to a constitutional takings analysis. Continue Reading
In Save Our Uniquely Rural Community Environment v. County of San Bernardino, __ Cal.App.4th ___, 2015 WL 1259781 (4th Dist., Div. 2, 2015) (SOURCE) , the Fourth District Court of Appeal affirmed the trial court’s decision to significantly reduce plaintiff Save Our Rural Community Environment’s (SOURCE) claim for attorney fees from $231,098 to $19,176. The Fourth District found that the court’s failure to provide an explicit analysis of its decision was not enough to indicate an abuse of discretion by the trial court. The court determined reversal of the attorney fees award would require that the record contain some indication that the trial court had considered improper factors, or some evidence that the award had been snatched from “thin air.” Continue Reading
CREED-21 v. City of San Diego (2/18/2015, 4th Civil No. D064186)
The Fourth District Court of Appeal upheld a CEQA exemption related to the City of San Diego’s approval of a project comprising emergency storm drainage repair and site revegetation. The decision addressed various CEQA issues, including the environmental baseline determination, the “common sense” exemption, and the “unusual circumstances” exception. Continue Reading
The Court of Appeal for the Third Appellate District of California has ruled in favor of the City of Sacramento with regard to a series of challenges brought under CEQA to certification of an EIR and approval of a project to build a new arena in downtown Sacramento. The project involves a partnership between the City and Sacramento Basketball Holdings LLC to build a downtown arena at which the Sacramento Kings will play. To facilitate the timely opening of a new downtown arena, the Legislature modified several deadlines under CEQA by adding section 21168.6.6 to the Public Resources Code. Section 21168.6.6 also allows the City to exercise limited eminent domain powers to acquire property for the project before its environmental review, but does not substantively alter other CEQA requirements. The court held that the City had not prematurely committed itself to the project; the EIR was not deficient for failing to address the remodel of the existing Sleep Train arena; the traffic analysis was not deficient; the failure to study “crowd safety” did not implicate CEQA; and trial court orders may be reviewed only by writ petition, not direct appeal. Continue Reading