Kelly M. Rem

Partner | Walnut Creek

krem@lozanosmith.com
Tel: 925.953.1620
Fax: 925.953.1625
Vcard Bio

Overview

Kelly M. Rem is the Office Managing Partner of Lozano Smith's Walnut Creek Office. Ms. Rem specializes in Facilities and Business law and Litigation for public agency clients throughout California.

Experience

Ms. Rem has extensive experience advising clients throughout the state on real property issues, ranging from school closures to asset management to the complicated process associated with sale or lease of school district real property.  During her career, she has handled tens of millions of dollars’ worth of real property sales, acquisitions, and leases, as well as property exchanges.  She greatly enjoys helping school districts and other local agencies capitalize on their assets for the benefit of their students and the community.

She is also an expert on the California Environmental Quality Act (CEQA), including procedural requirements, deadlines and statutes of limitations, exemptions, and review of environmental impact reports and other environmental documents. She represented the California School Boards Association as amicus curiae in the matter of Berkeley Hillside Preservation v. City of Berkeley before the California Supreme Court.

Ms. Rem also has extensive litigation experience, particularly related to facilities and property matters including CEQA and eminent domain proceedings.  Ms. Rem is experienced in reviewing and providing advice to clients relating to all types of business contracts. She also regularly advises clients regarding school facilities or "developer" fees and construction matters.

Presenter Experience

Ms. Rem is a regular presenter at various events including the California Association of School Business Officials (CASBO) annual conference and local workshops, and Lozano Smith's Facilities and Business workshops and webinars. She is particularly experienced in presenting topics related to contracting, public bidding, and construction issues.

Education

Ms. Rem received her Juris Doctor degree from University of California, Hastings College of the Law. As a student, she worked as a Senior Articles Editor for the Hastings Communications and Entertainment Law Journal, and was a volunteer and tutor with the Tenderloin After-School Program. She earned her Bachelor of Arts degree from the University of Michigan.

Professional Affiliations

Ms. Rem is admitted to the Central District of California.

Bid Thresholds Raised For 2023

By: Kelly RemJunaid Halani-

December 2022Number 61According to the California Department of Education Office of Financial Accountability and Information Services, pursuant to Public Contract Code section 20111(a), the bid threshold for K-12 school district purchases of equipment, materials, supplies, and services (except construction services) has been adjusted to $109,300, effective January 1, 2023.  The notice may be viewed here.The California Community Colleges Chancellor’s Office is expected to announce a...

New Law May Mean Higher Food Costs, More Paperwork for School Districts

By: Kelly Rem-

December 2022Number 60School districts could face higher food costs and more paperwork under a bill set to take effect on January 1, 2024.Senate Bill (SB) 490 will require school districts that receive federal meal reimbursements of one million dollars or more to buy all of their agricultural products from domestic sources unless certain exceptions apply.  The law will also require school districts to include new language in their food purchase bid and contract solicitations regarding th...

Governor Newsom's Executive Order Regarding Economic Sanctions on Russia Creates Confusion for Local Agencies

By: Kelly Rem-

June 2022Number 25On March 4, 2022, Governor Gavin Newsom issued Executive Order N-6-22 in response to Russia's invasion of Ukraine. The Order instructs all agencies and departments that are subject to the Governor's authority to review their investments and contracts to ensure compliance with economic sanctions imposed on Russia by the US government or the State of California. This includes refraining from completing new investments and financial transactions with Russian institutions or c...

Bid Thresholds Raised For 2022

By: Ruth MendykKelly Rem-

December 2021Number 46According to the California Department of Education Office of Financial Accountability and Information Services, pursuant to Public Contract Code section 20111(a), the bid threshold for K-12 school districts’ purchases of equipment, materials, supplies and services (except construction services) has been adjusted to $99,100, effective January 1, 2022. The notice may be viewed here.The California Community Colleges Chancellor’s Office is expected to announce a...

Federal Procurement Requirements Apply When Using ESSER Funds for Construction Projects

By: Kelly Rem-

September 2021Number 25As of March 2021, the federal government has authorized three rounds of COVID relief grant funding through the Elementary and Secondary School Emergency Relief (ESSER) Fund (i.e., ESSER I, enacted on March 27, 2020; ESSER II, enacted on December 27, 2020; and ESSER III, enacted on March 11, 2021). Local educational agencies (LEAs) have until September 30, 2024, to spend ESSER III funds. With the flood of funds that have come in since March 2020, questions have arisen re...

Surplus School District Property and the Budget Crisis: New and Proposed Legal Requirements and Opportunities

By: Harold FreimanKelly Rem-

June 2020Number 47The COVID-19 pandemic has created a looming fiscal crisis across California. As local agencies prepare to adopt their fiscal year 2020-21 budgets, some are eyeing the option of selling or leasing surplus property in order to generate funds to ease potential shortfalls. There is a great deal happening in Sacramento currently that may impact that option for better or worse.School districts must follow specific procedures prior to selling or leasing real property. These procedu...

State Allocation Board Adopts Developer Fee Increases For 2020

By: Harold FreimanKelly RemPeter Sumulong-

January 2020Number 9The State Allocation Board (SAB) has increased the amount of "Level 1" developer fees that school districts are authorized to collect to $4.08 per square foot of residential development and $0.66 per square foot of commercial development. The increase takes effect immediately, and may now be implemented by school districts through local action.The new rates, which the SAB approved on January 22, 2020, represent a 7.64 percent increase over the maximum amounts authorized as...

New Law Will Significantly Impact Local Agencies' Disposition Of Property; Impact On School Districts Is Limited

By: Kelly Rem-

October 2019Number 61On October 9, 2019, Governor Gavin Newsom signed into law a bill that will have sweeping effects on local agencies disposing of real property under the California Surplus Land Act. Assembly Bill (AB) 1486 adds several new requirements to the process, as well as potentially severe penalties for non-compliance. The bill also makes changes to planning and zoning laws applicable to cities and counties. Application of the new law to school districts is expressly limited.Change...

Significant New Developer Fee Cases

By: Harold FreimanKelly Rem-

October 2019Number 44As part of an uptick of cases in recent years regarding school impact fees, two recent cases argued by Lozano Smith on behalf of school districts have been decided by the California Sixth District Court of Appeal, with mixed results. The court ruled in relation to an "adults only" agricultural worker housing project that, when imposing prospective developer fees on development projects, school districts need not establish a reasonable relationship between the fee and the ...

Lay Opinions May Trigger The Need For An Environmental Impact Report

By: Kelly Rem-

February 2019Number 12A California appellate court has ruled that lay public opinions on nontechnical issues concerning a project's size and general appearance can provide substantial evidence of environmental impact, triggering the need to prepare an environmental impact report (EIR) under the California Environmental Quality Act (CEQA).The California Environmental Quality ActCEQA generally requires public agencies to identify potentially significant impacts of projects they carry out or app...

Updates to Food Service and Nutrition Laws Affecting Students

By: Kelly Rem-

November 2018Number 67Numerous California laws surrounding food service funding and nutritional guidelines for school districts, charter schools, and county offices of education are set to change next school year. Assembly Bills (AB) 2271 and 3043 will increase or expand the use of available state funding for food service equipment and other food services, and will modify certain pupil nutrition guidelines.Existing State Aid Expansion and New State Matching Grant for EquipmentExisting state l...

New Rules for Use of Federal Funds Effective July 1: Are You Ready?

By: Kelly Rem-

June 2018Number 26New requirements for using federal funds become effective this coming fiscal year. The requirements apply to non-federal entities such as school districts, institutions of higher learning, and state and local governments.In order to comply with the new rules, non-federal entities seeking federal funds may need to revise their board policies and administrative regulations, contract documents, and other internal procedures by the beginning of their 2018-2019 fiscal year. For s...

Alert: California Public Records Act Requests Regarding Lease-Leaseback Procedures

By: Harold FreimanKelly Rem-

June 2018Number 23Many school districts throughout the state have recently received one or more California Public Records Act (CPRA) requests from the California Taxpayers Action Network (CalTAN) and the Carlin Law Group regarding lease-leaseback (LLB) transactions. CalTAN and the Carlin Law Group filed multiple lawsuits against school districts in the past regarding lease-leaseback practices, and this CPRA request may be a precursor to future litigation.The first of the recent CPRA requests ...

Court Confirms That Calculation of Level 1 Developer Fees for Apartment Buildings Includes Interior Common Areas

By: Kelly Rem-

April 2018Number 16A California court has confirmed that school districts are authorized to assess Level 1 developer fees against interior common areas of apartment buildings, including hallways and walkways.School districts have received pushback from developers regarding whether "assessable space" includes interior common areas. With its decision in 1901 First Street Owner, LLC v. Tustin Unified School District, the court has provided districts with legal authority for imposing fees on such...

State Allocation Board Adopts Developer Fee Increases

By: Harold FreimanKelly Rem-

February 2018 Number 3 The State Allocation Board (SAB) has increased the amount of "Level 1" developer fees that school districts are authorized to collect to $3.79 per square foot of residential development and $0.61 per square foot of commercial development. The increase takes effect immediately, and may now be implemented by school districts through local action. The new rates, which the SAB approved on January 24, 2018, represent an 8.78 percent increase over the maximum amounts a...

New Laws Update Nutrition Program Purchasing Rules

By: Kelly RemAlyse Nichols-

October 2017 Number 62 Governor Jerry Brown has signed four bills that update purchasing rules related to school food and nutrition programs and improve access to healthy food. Each of these bills will take effect January 1, 2018. Senate Bill 544: Bill Offers Clarity on Food Contract Award Rules Senate Bill (SB) 544 resolves an inconsistency between state and federal law regarding the award of contracts in support of child nutrition programs by clarifying that school districts can c...

Environmental Review Not Necessarily Required Prior to Approval of a Real Property Purchase Agreement

By: Kelly Rem-

September 2017 Number 49 The Fourth District Court of Appeal has ruled that the execution of a purchase and sale agreement for real property that is contingent upon compliance with the California Environmental Quality Act (CEQA) does not trigger a public agency's duty to prepare an environmental impact report (EIR) under CEQA. The California Environmental Quality Act CEQA is a complicated body of law which requires public entities to consider environmental effects of their projects ...

Appellate Court Reopens Door for Level 3 Fees

By: Harold FreimanKelly Rem-

November 2016 A California court decision has cleared the way for eligible school districts to begin charging Level 3 developer fees to fund new school construction. The Third District Court of Appeal had previously issued a "stay," or a legal hold, on a decision from the Sacramento County Superior Court that would allow eligible districts to collect Level 3 fees. On November 1, 2016, the court denied a request from the California Building Industry (CBIA) to continue the stay. Immediate...

New Claims Resolution Process Will Apply to All Public Contracts Effective January 1, 2017

By: Kelly Rem-

October 2016 Number 83 Effective January 1, 2017, a new claims resolution process will be required for all public works projects. On September 29, 2016, Governor Jerry Brown approved Assembly Bill (AB) 626, which adds section 9204 to the Public Contract Code. The law is aimed at assisting contractors in enforcing claims against public agencies. Currently, the law requires public agencies to follow a certain claims process for claims that are $375,000 or less. Section 9204 will apply to all c...

Requirement to Offer Surplus Property to Interested Charter Schools Prior to Sale or Lease No Longer in Effect

By: Harold FreimanKelly Rem-

July 2016 Number 44 School districts selling or leasing surplus property are no longer required to first offer that property to interested charter schools. The requirement has expired and is no longer effective as of July 1, 2016. Surplus property is real property belonging to a school district that is not needed for school classroom buildings. Before a school district can dispose of surplus property, it must generally take certain steps, which include making written offers or solicita...

Level 3 Litigation Underway, Prohibiting Collection of Level 3 Fees

By: Harold FreimanMegan MacyDaniel MarucciaKelly Rem-

Lozano Smith Alert May 2016 As Lozano Smith reported yesterday, the State Allocation Board (SAB) took unprecedented action this week authorizing eligible school districts to collect 'Level 3' developer fees. The litigation that was threatened and that was mentioned in our client news brief has become a reality. On the same day that SAB approved Level 3 fees, the California Building Industry Association (CBIA) filed a Petition for Writ of Mandate in Sacramento County Superior Court. Ye...

State Allocation Board Authorizes Collection of "Level 3" Developer Fees for the First Time in California History

By: Harold FreimanMegan MacyDaniel MarucciaKelly Rem-

*** Update: May 27, 2016*** The litigation that was threatened and that was mentioned in the below client news brief has become a reality. Details here. May 2016 Number 33 The State Allocation Board (SAB) has taken the unprecedented step of determining that state funding is no longer available for apportionment for school facilities, triggering some school districts' eligibility to collect higher 'Level 3' fees for the first time ever. The Board's historic May 25 decision is alrea...

State Allocation Board Adopts Increase to Level One Developer Fees That Can Be Imposed by School Districts

By: Harold FreimanKelly Rem-

February 2016 Number 9 On February 24, 2016, the State Allocation Board (SAB) adjusted the amount of "Level 1" developer fees that school districts are authorized to collect to $3.48 per square foot of residential development and $0.56 for commercial development. The SAB's action represents a 3.59 percent increase over the maximum amounts authorized as of January of 2015. The increase takes effect immediately, and may now be implemented by school districts through local action. The latest...

Local Agency Ordered to Refund More Than Ten Million Dollars for Failure to Comply with Developer Fee Accounting Requirements

By: Harold FreimanKelly Rem-

October 2015 Number 55 A recent court decision underscores the importance of local agencies complying with accounting requirements related to the collection and use of developer fees. In Daniel Walker v. City of San Clemente ((August 28, 2015) 2015 Cal.App. Lexis 757 (Walker)), the Court of Appeal affirmed a trial court decision finding the City's accounting and related findings to be inadequate, and requiring that all unspent developer fees be refunded with interest. This case is a remin...

Court Overturns School Closure Decision Based on Insufficient Evidence to Support a CEQA Categorical Exemption

By: Harold FreimanKelly Rem-

October 2015 Number 54 In a recent decision, a California appellate court voided a school district's action to close two schools and transfer the students to other schools based on the court's finding that the district did not comply with the California Environmental Quality Act (CEQA). The district had found the closure and transfer to be exempt from CEQA, but the court held that there was insufficient evidence in the record to support that finding. The case is a reminder of the importance ...

California Supreme Court Restores the Integrity of Categorical Exemptions Under CEQA, But Questions Remain

By: Harold FreimanKelly Rem-

March 2015 Number 12 The California Supreme Court has reversed a 2012 appellate court decision that, if allowed to stand, would have significantly narrowed the application of categorical exemptions under the California Environmental Quality Act (CEQA). (Berkeley Hillside Preservation v. City of Berkeley (March 2, 2015) 2015 Cal. Lexis 1213 ("Berkeley Hillside").) The Supreme Court's decision in Berkeley Hillside preserves the ability of a public agency to exempt itself from CEQA's require...

Public Agencies May Recover Costs of Preparing the CEQA Record Even if the Party Suing the Agency Elects to Self-Prepare the Record

By: Harold FreimanKelly Rem-

September 2014 Number 65 An appellate court has held that a public agency may recover administrative record preparation costs in a lawsuit filed against it under the California Environmental Quality Act (CEQA), even where the petitioner elects to prepare the record. This decision calls into question CEQA petitioners' tendency to elect to prepare the record themselves in order to avoid paying agency costs. In CEQA lawsuits, Public Resources Code Section 21167.6 governs the record of pro...

State Allocation Board Increases Developer Fees School Districts are Authorized to Collect

By: Harold FreimanKelly Rem-

January 2014 Number 10 On January 22, 2014, the State Allocation Board (SAB) approved an inflationary increase applicable to "Level 1" developer fees. Based on application of the Marshall & Swift Eight California Cities Index for construction costs, SAB adjusted the Level 1 fee to $3.36 per square foot for residential development and $0.54 for commercial development. The increases take effect immediately, and constitute a 4.93 percent change over the previously authorized amounts of $...

School Districts May Be Required to Refund Certain Surplus Property Proceeds to the State Allocation Board

By: Harold FreimanKelly Rem-

October 2013 Number 68 A newly signed bill will require school districts and county offices of education to return moneys received from the state school facilities funding program if the school districts or county offices sell real property that was purchased, modernized, or improved with such moneys in the prior ten years, and if certain other criteria are met. The bill, Assembly Bill (AB) 308, which was recently signed by the Governor, applies only to sales and not leases. Existing l...

Legislature Extends and Revises Requirements Related to Charter Schools and Surplus Property

By: Harold FreimanKelly Rem-

July 2013 Number 38 As part of the trailer bills adopted to implement the 2013-2014 State Budget, the Legislature extended until July 1, 2016, the requirement that school districts offer surplus property to interested charter schools. The Legislature also made other modifications to the law relating to such offers, and extended the right of school districts to deposit the proceeds from the sale of certain surplus real property into the general fund for one-time general fund purposes to Ja...

Court Allows Eminent Domain Action to Proceed Prior to Completion of CEQA Review

By: Megan MacyKelly Rem-

April 2013 Number 22 A recent court decision provides authority for public agencies to commence an eminent domain proceeding, in some circumstances, prior to completion of environmental review under the California Environmental Quality Act (CEQA). In Golden Gate Land Holdings, LLC. v. East Bay Regional Park District (April 12, 2013) __ Cal.App.4th __ (2013 WL 1491547) ("Golden Gate Land Holdings"),the Court of Appeal for the First Appellate District held that a park district had improperl...

Two New Decisions Address the Adequacy of Environmental Impact Reports

By: Harold FreimanKelly Rem-

November 2012 Number 75 California courts at all levels have been faced with an increasing myriad of lawsuits and appeals relating to the California Environmental Quality Act (CEQA). Two courts of appeal recently considered issues relating to the adequacy of environmental impact reports (EIRs), with mixed results. CEQA requires an EIR to be prepared in certain circumstances when an agency finds that a non-exempt project may have a significant effect on the environment. When required, the ...

California Courts Explore Issues Relating to CEQA Exemptions

By: Harold FreimanKelly Rem-

September 2012 Number 49 Continuing a recent trend, another California Court of Appeal has reviewed a public agency's reliance on a Notice of Exemption under the California Environmental Quality Act (CEQA). In Coalition for Clean Air v. City of Visalia (Sept. 14, 2012) __ Cal.App.4th __ (2012 WL 4653808), the court confirmed that a Notice of Exemption must be filed after project approval in order to trigger a 35-day statute of limitations for any challenge to the exemption. CEQA is a c...

California Legislature Suspends School Districts' Ability to Collect Level Three Developer Fees

By: Harold FreimanKelly Rem-

July 2012 Number 44 On June 27, 2012, the Governor signed Senate Bill (SB) 1016, a budget-related bill which, among other things, suspends school districts' ability to levy "Level 3" developer fees until December 31, 2014. Although these types of fees represented part of a compromise between the interests of school districts and the building industry when SB 50 was enacted in 1998, and notwithstanding disappearing state bond funds, school districts have yet to actually collect any Level 3...

School Districts Must Offer Surplus Property to Charter Schools Requesting Notification

By: Harold FreimanMegan MacyKelly Rem-

July 2012 Number 41 New legislation that became effective on June 27, 2012, gives charter schools interested in surplus school district real property priority to buy or lease such property. Senate Bill (SB) 1016 requires school districts seeking to sell or lease surplus property to offer that property first to any charter school that has submitted a written request to be notified of surplus property offered for sale or lease by the school district. Such offers are required for any propert...

New Case Lends Support To Agency Discretion Under CEQA

By: Harold FreimanKelly Rem-

May 2012 Number 20 The California Environmental Quality Act (CEQA) requires a lead agency to consider the environmental impacts of a proposed project. Generally, when considering such impacts, a lead agency uses as the baseline the conditions in the vicinity of the project as they exist at the time environmental analysis is commenced. This approach of using existing conditions as the baseline is supported by the CEQA Guidelines. (Cal. Code Regs., tit. 14, §§ 15000 et seq.) Bas...