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Utah Supreme Court Allows Citizens to Block Real Estate Development Project by Voter Referendum

June 10, 2019 — Sean M. Mosman & Mark O. Morris - Snell & Wilmer Under Construction
The Utah Supreme Court recently decided Baker v. Carlson, 2018 UT 59, which considered a developer’s ongoing effort to build a mixed-use, part-residential and part-commercial development on the site of the long-defunct Cottonwood Mall located in Holladay, Utah. On November 28, 2018, the Supreme Court affirmed the Third District Court’s ruling that a voter referendum to block the development was valid. This ruling calls into question the certainty of investment-backed real estate decisions in Utah and thus could carry negative implications for the Utah construction and real estate development communities. The Cottonwood Mall opened in the early 1960s, and for several decades was a popular regional shopping destination. But the mall fell on financial hard times in the mid-1990s, and since 2007 the 57-acre lot has sat vacant. Around that time, the owner of the lot made plans to redevelop it, and asked Holladay City to rezone the site to permit mixed uses. In response, the City rezoned the lot as Regional/Mixed-Use (R/M-U). The City also created a process to control the development of an R/M-U zone, requiring prospective builders to first submit a site development master plan—which sets forth guidelines for the overall development and design of the site—to the City for approval. After the City approves a master plan, the developer must enter into a development agreement with the City, giving the developer certain rights and addressing other development-related issues. Reprinted courtesy of Sean M. Mosman, Snell & Wilmer and Mark O. Morris, Snell & Wilmer Mr. Mosman may be contacted at smosman@swlaw.com Mr. Morris may be contacted at mmorris@swlaw.com Read the court decision
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Canada to Ban Foreigners From Buying Homes as Prices Soar

April 25, 2022 — Brian Platt & Ari Altstedter - Bloomberg
Canada will ban most foreigners from buying homes for two years and provide billions of dollars to spur construction activity in an attempt to cool off a surging real-estate market. The measures will be contained in Finance Minister Chrystia Freeland’s budget on Thursday, according to a person familiar with the matter, asking not to be named because the matter is private. The move signals that Prime Minister Justin Trudeau is becoming more assertive about taming one of the developed world’s most expensive housing markets -- and that the government is growing more concerned about the political backlash to inflation and the rising cost of housing. Reprinted courtesy of Brian Platt, Bloomberg and Ari Altstedter, Bloomberg Read the court decision
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The EPA and the Corps of Engineers Propose Another Revised Definition of “Waters of the United States”

February 14, 2022 — Anthony B. Cavender - Gravel2Gavel
On December 7, 2021, the most recent proposed revision to the Clean Water Act’s term, “Waters of the United States” was published in the Federal Register. (See 86 FR 69372.) Comments on this proposal must be submitted by February 7, 2022. This term controls the scope of federal regulatory powers in such programs as the development of water quality standards, impaired waters, total maximum daily loads, oil spill prevention, preparedness and response plans, state and tribal water quality certification programs, the National Pollutant Discharge Elimination System (NPDES) permit program, and the Corps of Engineers’ dredge and fill program. The Environmental Protection Agency (EPA) and the Corps of Engineers have jointly drafted this comprehensive proposed rule, which also responds to President Biden’s Executive Order 13990, issued in January 2021. Background The agencies noted that they have repeatedly defined and re-defined “Waters of the United States” since the Clean Water Act was enacted in 1972. This level of sustained commitment is unique to this program, perhaps reflecting the importance of the programs that are implemented through the Clean Water Act. The most recent rulemaking efforts took place in 2015, 2017, 2020 and now 2022, and the Supreme Court has issued several landmark rulings in response to these efforts. See City of Milwaukee v. Illinois, 451 US 304 (1981), United States v. Riverside Bayview, 474 US 121 (1985), SWANCC v. United States, 531 US 159 (2001), Rapanos v. United States, 547 US 715 (2006), National Association of Manufacturers v. Department of Defense, 138 S Ct 617 (2018), and County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S, Ct 1462 (2020). The rules promulgated in 2015 and entitled, “Clean Water Act: Definition of Waters of the United States” expanded the scope of federal regulatory jurisdiction, but the 2020 rule, entitled the “Navigable Waters Protection Rule,” contracted that scope. Now, the agencies have proposed the “Revised Definition of ‘Waters of the United States,’” which will rescind the 2020 rule and inevitably restore something of the scope of the 2015 rule by returning to the familiar “1986 rules” that were issued by the Corps of Engineers in 1986 and EPA in 1988, as modified by the recent Supreme Court decisions mentioned above. Both the 2015 and 2020 rules were mired in litigation and the Corps and EPA view the resort to the 1986 rules as a fresh start for the Clean Water Act. In short, the topsy-turvy history of regulation under the Clean Water Act continues. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Insurers Can Sue One Another for Defense Costs on Equitable Indemnity and Equitable Contribution Basis

March 21, 2022 — Garret Murai - California Construction Law Blog
Since I don’t do insurance defense work, fights between insurers isn’t something I have to deal with. It’s good sport nonetheless. In the next case, Travelers v. Navigators Specialty Insurance Company, Case No. D078852 (October 15, 2021), three of the biggies – Travelers, Navigators and Mt. Hawley – got into it over indemnity. The Travelers Case General contractor TF McGukin, Inc. was involved in a construction defect lawsuit with respect to a condominium project. TFM entered into subcontracts with several subcontractors including F&F Steel and Stairway, Inc and Calvac Paving which required the subcontractor to defend and indemnify TFM against any claims arising out of the subcontractor’s work. The subcontracts also required the subcontractors to name TFM as an additional insured. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Domingo Tan Receives Prestigious Ollie Award: Excellence in Construction Defect Community

May 28, 2024 — Wood Smith Henning & Berman
(Anaheim, CA.) - Wood Smith Henning & Berman is thrilled to announce that Domingo Tan, a partner in the Los Angeles office, has been awarded the prestigious Jerrold S. Oliver Award of Excellence. Fondly known as the "Ollie", this esteemed accolade is presented annually to a standout professional in the construction defect community who has demonstrated exceptional contributions and unwavering dedication to the field. The exciting announcement of Tan's victory took place during the 30th Anniversary of the West Coast Casualty Construction Defect Seminar in Anaheim. Widely recognized as the nation's largest conference for professionals handling construction defect matters, the event drew a remarkable gathering of general counsel, risk managers, claim professionals, and attorneys who actively participated in the nomination and voting process. The Ollie award pays tribute to the late Judge Jerrold S. Oliver, a highly respected legal professional renowned for his groundbreaking work in alternate dispute resolution methods for construction defect disputes. It celebrates individuals who embody the values of loyalty, commitment, and trust within the industry. Read the court decision
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California Joins the Majority of States in Modifying Its Survival Action Statute To Now Permit Recovery for Pain, Suffering And Disfigurement

January 03, 2022 — Krsto Mijanovic & Elizabeth D. Rhodes - Haight Brown & Bonesteel
On January 1, 2022, California Code of Civil Procedure (“CCP”)Section 377.30 et seq., as amended by Senate Bill 447, otherwise known as the “survival action” statute1, goes into effect. On that date, all plaintiffs filing new civil cases filed on or after January 1, 2022, and before January 1, 2026, and plaintiffs in any action or proceeding granted trial preference pursuant to CCP Section 36 before January 1, 2022, will be expressly allowed to recover damages for a decedent’s pain, suffering, or disfigurement in a survival action.2 This is a significant change in California law. In that regard, California is now the 46th state to permit this form of recovery. As reported in the Legislative Counsel’s Digest3, Consumer Attorneys of California and Consumer Federation of California, which co-sponsored Senate Bill 447, opined to the Legislature that the prior law provided a “death discount” to defendants which incentivized bad faith delays in resolution, and caused unnecessary congestion of the already overburdened court system. These argued issues will be vetted by the Legislature using the four-year reporting requirement that is also part of the amendment to the statute, requiring plaintiffs who recover this newly permitted category of damages to report the valuation and details of the case to the Judicial Council within 60 days of the judgment or other operative court document being entered in the court’s docket.4 The amendment will be evaluated by the Legislature for amendment or extension on or before January 1, 2026. Reprinted courtesy of Krsto Mijanovic, Haight Brown & Bonesteel and Elizabeth D. Rhodes, Haight Brown & Bonesteel Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com Ms. Rhodes may be contacted at erhodes@hbblaw.com Read the court decision
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New York State Legislature Passes Legislation Expanding Wrongful Death Litigation

July 18, 2022 — Lisa M. Rolle & Justyn Verzillo - Traub Lieberman
In early June, New York State Legislature passed legislation, often referred to as “The Grieving Families Act” (A.6770/S.74-A), which expands New York’s Wrongful Death Statute. This legislation is pending approval from Governor Kathy Hochul and has the ability to drastically impact wrongful death litigation by expanding how parties can bring an action, as well as expanding on recoverable compensation. Pursuant to the existing statute (EPTL §5-4.1), the statute of limitations requires commencement of an action within two years after the decedent’s death. The proposed Grieving Families Act expands the statute of limitations for a wrongful death action to three years and six months after the decedent’s death. Further, under the existing statute (EPTL §11-3.3), recovery in a wrongful death action is restricted to distributees (the intended beneficiaries under the will). The proposed legislation expands the parties permitted to bring a wrongful death action, replacing the term distributees with surviving close family members. These may include, but are not limited to, spouse or domestic partner, issue, parents, grandparents, step-parents, and siblings, leaving it to the finder of fact to determine which persons are close family members of the decedent based upon the specific circumstances relating to the person’s relationship with decedent. It remains to be seen what the burden of proof will be for the surviving close family members, as well as what process will be instituted with respect to the finder of fact. Presumably, the finder of fact will be a Judge. Reprinted courtesy of Lisa M. Rolle, Traub Lieberman and Justyn Verzillo, Traub Lieberman Ms. Rolle may be contacted at lrolle@tlsslaw.com Mr. Verzillo may be contacted at jverzillo@tlsslaw.com Read the court decision
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Real Estate & Construction News Roundup (11/8/23) – New Handling of Homelessness, Decline in Investments into ESG Funds, and Shrinking of a Homebuyer’s Dollar

December 11, 2023 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
Our latest roundup includes two large flood control projects in New Jersey, how residential REITs could benefit from higher interest rates, how the downfall of WeWork could cause expansive collateral damage, and more!

• The Federal Reserve said the possibility of large losses in the $24 trillion U.S. commercial real estate market poses a top risk to financial stability. (Jim Tyson, CFO Dive)
• According to proptech firm MRI Software, apartment leasing patterns are “reverting to pre-pandemic patterns and becoming more predictable.” (Leslie Shaver, Multifamily Dive)
• Los Angeles has developed a new way to handle homelessness—real estate agents for those without a home. (Jennifer Ludden, NPR)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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