Land Use Entitlements and Environmental Review
Real Estate Transactions
Business Transactions
Business and Real Estate Litigation
Local Government

Land Use Entitlements and Environmental Review  

     The California land use approval process is probably the most difficult in the country for the prospective developer of real property.  The developer faces a complex and time-consuming series of planning, zoning, subdivision, and other requirements administered by a variety of local, regional, state, and federal governmental bodies and agencies. 

     Despite the resultant time and expense, the developer does not ordinarily acquire a legally binding (vested) right to build a project until she/he has reached the end of the process, received a building permit, and actually commenced substantial construction.  Until that time, any project approvals are subject to change due to intervening political and other changes.  Also, while the governmental agencies involved frequently make errors in their processing of project approvals, the risk of such error falls on the developer, since many errors offer the disgruntled citizens or environmental group a legal basis for setting aside the project's approvals. 

     We bring unique strengths to bear in assisting the real estate developer in reducing the time, complexity, expense, and risks of the land use approval process.  Members of the firm combine the planning and law disciplines, with degrees, professional affiliations, and experience in each field. They have found the combination invaluable in this area of the law, with its numerous mixed questions of planning and law. 

     For example, every local project must be consistent with the local jurisdiction's general plan, which must itself meet minimum standards of adequacy.  The typical general plan is out-of-date, internally inconsistent, and incomplete.  While the responsibility for correcting this lies with the city or county, the problem is the developer's, since a serious in­consistency offers project opponents the option of setting aside the developer's project approvals.  Determining consistency and plan adequacy are planning issues, but their requirements are legal ones.  The firm's combined planning and law backgrounds enable it to understand and (to the extent feasible) to cure the general plan's weaknesses, by seeking modifications to make it as consistent with the proposed project as circumstances permit. 

     We have also represented local government and citizens and environmental groups in land use matters, and so we bring to bear substantial experience in litigating on behalf of groups seeking to set aside project approvals, and in the representation of local governments in reviewing and modifying real estate development projects.  This background provides a very useful understanding of the significantly different perspectives which local government and citizens groups often have in the project approval process.  This and their joint planning-law backgrounds enable members of the firm to work well with city and county staffs and decision makers.  Members of the firm frequently find that they have a professional planning or other affiliation with local government staff members and Council or Board members, and these pre-existing relationships are frequently helpful in enlisting needed cooperation and confidence at the local government level. 

     In order to lock in development rights to the maximum extent, the firm works with its developer clients where feasible to negotiate development agreements and seek approval of vesting tentative subdivision maps, the two legal tools generally available under California law to help protect a developer's right to build.  The firm also assists the developer in taking advantage of more specialized means of protection where available, such as a disposition and development agreement (DDA) available under California's Redevelopment Law.  Here, the firm's combined planning-law expertise is also quite helpful, for a DDA is an agreement to implement a land use plan, and its enforceability and validity are partly dependent on the nature and quality of the underlying plan. 

     Wherever possible, we seek to expedite the approval process with concurrent processing of all general and specific plan, zoning, subdivision map, and development agreement approvals, with the adoption of a programmatic or other EIR covering subsequent stages in the project, and with early governmental adoption of clear, specific, limited requirements for such further approvals as may still be required at the more detailed planning stage.  Successive applications and approvals can double or triple the time required, and invariably open a project to greater risks of political and other changes. 

     Finally, we work to reduce the likelihood of "bal­lot box zoning," an increasingly common phenomenon in California.  Prior to project approval, we seek to eliminate the threat of a citizen initiative, either by a preemptive initiative or other means.  After project approval has been obtained, we attempt to reduce the threat of a citizen referendum by building community support for the project during the approval process.  Once the referendum period has passed, we preclude the possibility of a future initiative through either a development agreement or vesting tentative map, or both.

          Other services which we offer in the land use and environmental area include the following:

• Creation of Special Assessment Districts, Mello-Roos Community Facilities Districts, Integrated Financing Districts, and other public and private means of financing infrastructure costs and allocating them to subsequent buyers and adjoining landowners;

• Assistance in assembling a strong consultant team, with the needed expertise in engineering, site planning, economics, and the other disciplines needed to bring a project to fruition, and in the negotiation and preparation of agreements with consultants;

• Representation before state agencies with land use jurisdiction, such as the San Francisco Bay Conservation and Development Commission, California Coastal Commission, etc.;

• Preparation and review of local zoning, subdivision, and other ordinances and resolutions to implement project plans and local approvals; and

• Subdivisions, condominiums, condominium conversions, and other forms of common ownership, including Subdivision Agreements, CC&Rs, Homeowners' Associations, Department of Real Estate Reports under Subdivided Lands Act, etc.

Real Estate Transactions  

Business Transactions  

Business and Real Estate Litigation  

Local Government