The state Supreme Court has agreed hear to an unusual case from the Sonoma County city of Cotati that involves both mobile home rent control and an alleged strategic lawsuit against public participation (SLAPP). Several years ago, Cotati implemented mobile home rent control in response to rapidly rising rents. Mobile home park owners in town sued in federal court, arguing that the rent control ordinance was unconstitutional. Cotati responded by filing a lawsuit in state court that sought to have the ordinance declared lawful. The mobile home park owners contended that Cotati's state court litigation was a SLAPP suit intended to prevent them from having their day in federal court. A trial court ruled against Cotati but the First District Court of Appeal reversed the decision and remanded the case back to the trial court in July. The appellate panel ruled that Cotati's lawsuit sought to resolve the same constitutional issues that mobile home park owners had raised themselves. The court held that Cotati's lawsuit served the public interest and did not result in additional expense or inconvenience for the park owners. The state high court has not yet set a date for oral arguments. The case is City of Cotati v. Gene Cashman, No. S099999, 2001 DJDAR 7375.

The City of Palm Springs has agreed to pay $1.2 million to a conservation organization because the city built a golf course on land donated to the city as desert preserve. The settlement apparently ends the protracted litigation between the city and the Living Desert Reserve of Palm Desert. Nearly 10 years ago, a landowner donated 30 acres of open space to the city on the condition that the land be used for a preserve. The grant deed stated that if the city did not keep the land as an open space preserve, the Deserve Reserve would get the property. However, the city condemned the property and developed the Tahquitz Creek Municipal Golf Course on the site. The Fourth District Court of Appeal eventually ruled for the Desert Reserve, harshly criticizing the city's tactics. With a trial date for determining compensation pending, the city sought to settle the lawsuit. The case is City of Palm Springs v. Living Desert Reserve, Riverside County Superior Court Case No. CIVI69605.

After years of design changes and project delays, a troubled North Hollywood redevelopment project finally appears to be headed toward construction. The Los Angeles Community Redevelopment Agency board in September approved $31.7 million in loans and subsidies to aid the $194-million NoHo Commons infill project. The 16-acre NoHo Commons project site sits in a blighted North Hollywood neighborhood and adjacent to the newly constructed Metro Red Line Station. The mixed-use project has undergone several modifications and now contains approximately 810 residential apartment units (247 units of which will be loft-style live-work spaces); 228,000 square feet of retail space that will include a 50,000-square-foot supermarket; 200,000 square feet of office space; a community health center; and a child care center. The development is the largest mixed-use project adjacent to a Metro station. NoHo Commons is part of a larger North Hollywood redevelopment project overseen by the mayor-appointed Los Angeles Community Redevelopment Agency (CRA). The agency is managing a 740-acre redevelopment project to bolster the arts and entertainment district. Along with the NoHo Commons project, the CRA plans to build new single-family homes and restore the historic Lankershim Train Depot. This is the third adaptation of the problem-plagued NoHo Commons project since original plans were unveiled in 1999. At that time, the proposal called for a $1 billion, 4 million-square-foot development to include larger retail, residential and office spaces as well as a hotel, multi-screen cinema, and film sound stages. But when the market turned sour, the previous developer, J. Allen Radford, dramatically downsized the project. Then in February, lacking financial backing, Radford agreed to sign over rights to the property to developer J. H. Snyder in exchange for a 12.5% share in the project. The troubled project seemed to make progress when Snyder took control. The mixed-use project was last scaled back in July only after the Los Angeles Unified School District proposed building a high school on some of the property originally set-aside for the development. Los Angeles Unified School District plans to build a school on about eight acres, said David Stolzer, senior real estate development agent for the CRA. The Los Angeles-based J. H. Snyder touts development of many retail, office and residential projects, but senior partner Cliff Goldstein said that Snyder has never integrated all of these elements into one mixed-use project of this magnitude. "This is our attempt to remove a blighted area and be a catalyst for redevelopment in the North Hollywood area," Goldstein said. "And we want to build a new community that will utilize mass transportation." The community surrounding NoHo Commons will get ample opportunity to make use of the nearby subway. The rail station will be easily accessible from the Commons and the Metropolitan Transit Authority plans to develop 13 acres of its nearby property to enhance the rail station, Goldstein said. Absent from the infill project is the usual opposition from neighborhood residents. In fact, North Hollywood Residents Association President Victor Viereck said he is eager to see the project move along. When it comes to shopping, area residents do not have many options and must drive to Burbank and Sherman Oaks to shop, he said. "I am eager to see it happen, finally," Viereck said. "Anyone familiar with North Hollywood knows there is no downtown to it. … This needs to be done." Goldstein said ample retail, such as a supermarket, restaurants, small storefronts, and a major bookstore, will be available, but the developer is staying away from big-box retailers common in large malls. Despite a good reception from residents, the welcome wagon is not exactly revving its engine. The North Hollywood Residents Association does oppose one aspect of the project: the $31.7 million CRA project funding. Viereck argued that Snyder should be responsible for the entire tab of the project and that taxpayers should not have to foot any part of the bill. But he does not blame the developer. Viereck instead blames the CRA, complaining that the agency is largely responsible for the lack of progress in the North Hollywood area. "It has been delayed for so long, and the CRA has been the main reason why nothing has happened until now." Viereck says. "The CRA is an additional layer of bureaucracy for the developer to go through." Without the CRA, other areas of the city have developed property faster and more efficiently, Viereck charged, pointing to efforts in Sherman Oaks and Northridge. While it opposes the public funding of NoHo Commons, the North Hollywood Residents Association has not made any demands on the project. But one labor advocacy group, the Los Angeles Alliance for a New Economy (LAANE), has made demands on the project. The group has worked with the CRA and NoHo Commons developers for two years to hammer out a deal that LAANE says satisfies the local community. According to Goldstein, the community benefits package that the three disparate groups signed includes a promise that 75% of the employment at NoHo Commons will be living-wage jobs, and there will be an on-site health care clinic, an affordable child care facility and a one-stop job resources center. Roxane Auer, a researcher for the LAANE accountable development project said that her organization met numerous times with North Hollywood residents to assess the community needs. After deciding on several elements, including living-wage jobs and affordable child care, LAANE put together a six-member negotiating team that bargained with the CRA and Snyder for concessions. LAANE does not oppose the subsidy like the NoHo Residents Association does, but it does believe that when taxpayer subsidies are used for private developments, workers should be compensated with living-wage jobs. Auer said that many projects receive public subsidies, and those projects need to be accountable to the communities where they are built. LAANE's mission, she said, is to work with those projects and not against them. "At first they might have been reluctant to deal with us, but they were receptive to our ideas," Auer said of NoHo Commons proponents. "And after a time they realized that we had very focused concerns." Although LAANE did not get everything it wanted out of the bargaining sessions, Auer called the community benefits package they did receive a "major step forward" in the development process. The NoHo Commons project has just one more step on its way to groundbreaking. The Los Angeles City Council must give final approval to the project. A vote is scheduled for this fall, and developers plan to break ground on the first of three phases in June 2002. Goldstein says that barring any further delays, NoHo Commons should be complete sometime in 2006. Contacts: David Stolzer, Los Angeles Community Redevelopment Agency, (818) 753-1918. Cliff Goldstein, J.H. Snyder (323) 857-5546. Victor Viereck, North Hollywood Residents Association, (818) 985-9174. Roxane Auer, Los Angeles Alliance for a New Economy, (213) 486-9880. LAANE website: www.laane.org

Other land use bills approved during 2001: CEQA AB 436 (Chan). Allows a focused EIR to be prepared in parts of the City of Oakland for certain urban infill, multi-family, residential developments, or residential and commercial projects, or retail mixed-use developments with not more than 25% of the total floor area used as retail space. Signed by governor. AB 1532 (Pavley). Requires a lead agency to call at least one scoping meeting for a project of statewide, regional or area-wide significance. Signed by governor. SB 244 (Speier). Extends the public review period to 120 days for the draft EIR on the San Francisco International Airport expansion, and gives the San Mateo County Board of Supervisors a say over the runway project. Signed by governor. General Plans AB 1367 (Wiggins). Establishes a meet-and-confer process between school districts and local governments to address long-range school-siting plans. Signed by governor. AB 1553 (Keeley). Requires the Office of Planning and Research to include environmental justice procedures in its general plan guidelines. Signed by governor. SB 520 (Chesbro). Requires general plan housing elements to consider the needs of disabled people. Signed by governor. SB 932 (McPherson). Extends by six months the deadline for jurisdictions in the Association of Monterey Bay Area Governments to complete updated housing elements. The new deadline is December 31, 2002. The bill also extends by six months the deadline for all local governments not otherwise specified in statute to update their housing elements. That new deadline is December 31, 2003. Signed by governor. Housing AB 8 (Cedillo). Increases the amount of per-unit assistance available under the Department of Housing and Community Development's Downtown Rebound Program. The bill also requires the units to be in a school attendance area where at least 50% of students qualify for free meals. Signed by governor. AB 369 (Dutra). Allows courts to award attorneys' fees against local governments that violate the anti-NIMBY law. Developers or housing advocates are eligible for receiving attorneys' fees after winning a lawsuit. Signed by the governor. AB 807 (Salinas). Extends the Farmworker Housing Grant program to include seasonal, migrant housing. Signed by governor. AB 1359 (Lowenthal). Merges four existing predevelopment loan programs. The consolidated program will provide loans for technical and financial assistance to local government agencies and nonprofit corporations for predevelopment expenses incurred in the production or rehabilitation of affordable housing in urban and rural areas. Signed by governor. AB 1611 (Keeley). Authorizes the California Educational Facility Authority to sign agreements with nonprofit entities to finance housing construction for students, staff and faculty near UC, CSU, community college and participating private college campuses. Signed by governor. SB 73 (Dunn). Increases the State Low-Income Housing Tax Credit program by $20 million to $70 million a year, and indexes the program for inflation. Signed by governor. SB 784 (Torlakson). Establishes the Jobs-Housing Balance Program within HCD as an on-going program, and allows local governments to use grants for any purposes. Signed by governor. SB 1098 (Alarcon) Prohibits cities and counties from extending beyond 45 days a moratorium on housing projects that have large multi-family components. A city or county could extend the moratorium only if it makes specific findings based on substantial evidence that the moratorium was the only way to avoid significant, quantifiable health and safety impacts. Signed by governor. SB 1209 (Romero). Enables the California Educational Facility Authority to offer tax-exempt revenue bonds for construction of faculty housing owned by private colleges. Vetoed by governor. Natural Resources ABX2 27 (Lowenthal). Authorizes the State Lands Commission to execute a contract with the City of Long Beach and any city contractor to provide incentives to explore and develop gas reserves in the Long Beach tidelands. Signed by the governor. AB 104 (Nation). Allows boards of supervisors in nine Bay Area counties to levy a vehicle registration fee of up to $4 to fund open space purchases, improve water quality and restore wetlands. Vetoed by governor. AB 134 (Kelley). Allows the Castaic Lake Water Agency, which sells water wholesale, to provide retail water service to a specific area. Signed by governor. AB 252 (Pavley). Grants temporary protection under the California Endangered Species Act to any plant or animal thought to have been extinct but is rediscovered. The bill's target is the 3,000-home Ahmanson Ranch project in Ventura County, where a flower thought to have disappeared was rediscovered. Vetoed by governor. AB 910 (Wayne). Modifies the process by which a government agency can condemn wildlife conservation easements that have been acquired by the state. The bill, aimed at construction of water infrastructure in waterfowl habitat, creates a more stringent process for water agencies. Signed by governor. AB 1207 (Longville). Gives cities and counties until April 15, 2002, to enact ordinances governing the development of power-generating windmills in non-urbanized areas. If a city or county does not adopt rules, a landowner may build a windmill by right. The bill also places restrictions on how much a city or county can regulate windmills. Signed by governor. SB 909 (Chesbro). Extends the time for public comment on timber harvest plans. Signed by governor. Redevelopment AB 212 (Correa). Requires the City of Tustin to give 100 acres of the former Tustin Marine Corps base to the Santa Ana Unified and Rancho Santiago Community College school districts. Signed by governor. AB 237 (Papan). Requires the final offer of a public entity that is in eminent domain proceedings to include compensation for loss of goodwill. The bill also sets up a process for mediating eminent domain disputes. Signed by governor. AB 637 (Lowenthal). Makes a number of changes to housing requirements in redevelopment law. The bill eliminates the January 1 sunset date for the 15% inclusionary housing requirement, mandates that redevelopment agencies leverage their housing spending with private and commercial financing, and requires that housing units provided by agencies remain affordable for up to 55 years. Signed by governor. AB 1567 (Runner). Allows the Lancaster Redevelopment Agency to satisfy the inclusionary housing requirement by purchasing long-term affordability covenants on mobile home parks. Signed by governor. SB 32 (Escutia). Is a three-part brownfields bill. First, it enables local governments to order the investigation and cleanup of idle parcels of less than 5 acres. Second, it requires Cal EPA to conduct a peer reviewing of "screening numbers," which are advisory figures that provide rough estimates of what level of cleanup might be required before redeveloping a property for a particular use. Third, it requires Cal EPA to publish information helping local officials and developers to understand the factors and procedures the Department of Toxic Substances Control and regional water boards use when ordering cleanups. Signed by governor. Others AB 93 (Wayne) Creates the San Diego Regional Airport Authority. The new nine-member, appointed entity will have exclusive authority to plan, build and operate regional airports in San Diego County. The bill removes the Port of San Diego and the San Diego Association of Governments from the process of planning a new airport to replace Lindbergh Field in San Diego. Signed by governor. AB 330 (Reyes). Allows cities that annex land covered by a Williamson Act contract to avoid Williamson Act restrictions on development. Vetoed by governor. AB 545 (Steinberg) Requires the state, when leasing, purchasing or constructing state government office buildings, to consider the availability of public transit, proximity to affordable housing, pedestrian access to retail businesses, and the need for an area's economic revitalization. The bill gives priority to use of buildings with historic, architectural or cultural significance. It also requires state-owned office buildings, when feasible, to include ground-floor retail or other amenities to serve pedestrians. Vetoed by governor, who then signed an executive order containing many provisions of this bill. AB 1171 (Dutra). Calls for the state to pay 40% of the cost of earthquake retrofits of Bay Area toll bridges — about $820 million. The bill also extends a $1 toll surcharge until enough money is collected. Signed by governor. AB 1419 (Aroner). A complicated bill that, among other things, requires Caltrans to provide 20 acres to San Francisco for $1 to allow redevelopment of the San Francisco Transbay Terminal project. The bill also provides a limited exemption from CEQA. Vetoed by governor. AB 1495 (Cox). Alters the procedures for revenue neutrality calculations when new cities are proposed, and sets up new ways to handle appeals for city incorporations. Signed by governor. AB 1564 (Cardenas). Allows American Indian tribes to negotiate directly with Caltrans for highway projects to serve reservations. The legislation is intended primarily to help the Miwok Indian tribe get a Highway 50 interchange in El Dorado County to serve a proposed casino and resort. Vetoed by governor. SB 975 (Alarcon). Extends prevailing wage requirements to developments that receive subsidies of almost any sort, including fee waivers and reimbursements. The bill makes a few exceptions for certain affordable housing projects. Signed by governor.

The Ninth Circuit Court of Appeals has allowed members of the building industry to intervene in a lawsuit that environmentalists filed regarding the San Diego Multi-Species Conservation Program (MSCP). In overturning a district court ruling, the Ninth Circuit held that Pardee Construction, the Building Industry Legal Defense Foundation, the National Association of Home Builders, the California Building Industry Association and the Building Industry Association of San Diego adequately demonstrated that their interests were at stake in the lawsuit and that the government agencies that had been sued would not necessarily represent the builders' interests. The San Diego MSCP is possibly the broadest plan of its type in the country. Drafted to meet the dictates of habitat conservation planning under federal law, and natural communities conservation planning under state law, the plan addresses scores of species and about 900 square miles in unincorporated San Diego County, the City of San Diego and other cities. It sets aside 171,000 acres for permanent habitat protection. The plan also provides a basis for jurisdictions to adopt subarea plans. After adopting the MSCP and a subarea plan, San Diego signed an "implementation agreement" with the U.S. Fish & Wildlife Service and the California Department of Fish & Game. The implementation agreement gives the city the power for 50 years to allow "incidental take" of endangered and threatened species to accommodate a development project that meets the requirements of the various plans. In December 1998, the Southwest Center for Biological Diversity and 30 other environmental groups sued federal and city officials. The environmentalists challenged the formulation, approval and implementation of the MSCP, San Diego's subarea plan, the implementation agreement and San Diego's incidental take permit. Environmentalists took specific issue with the treatment of vernal pools — seasonal puddles that provide habitat for five endangered plant species and two species of endangered fairy shrimp. In June 1999, Pardee and the building trade groups filed a request to intervene in defense of the lawsuit. The environmentalists opposed the request while the government remained neutral. Federal Circuit Judge Irma Gonzalez denied the request for a variety of reasons. But the unanimous three-judge panel of the Ninth Circuit reversed Gonzalez and allowed the builders to help defend the suit. In arguing to become intervenors, Pardee said that it had five projects that rely on the plans, and members of the organizations said they have developed land based on the plans. The prima facie showing of an interest was enough for the builders to be allowed into a lawsuit, the Ninth Circuit held. "There is no doubt that the central goal of this action is the protection of the vernal pool species," Judge Ronald Gould wrote for the court. "Given the scope of the action, Applicants' projects that are in the pipeline for design and mitigation assurances and approval under the may be affected whether or not they impacted vernal pool species." Furthermore, the city and federal governments have different interests than do the builders, the court ruled. "Just as the City could not successfully negotiate the Plans without some private sector participation from Applicants, so too the City in this case cannot be expected successfully to safeguard Applicants' legally protectable interests," Gould wrote. The case heads back to the trial court level for further proceedings. The Case: Southwest Center for Biological Diversity v. Ken Berg, No. 99-56627, 01 C.D.O.S. 8453, 2001 DJDAR 10457. Filed September 27, 2001. The Lawyers: For Southwest Center: Neil Levine, Earthlaw, (303) 623-9466. For the builders: John C. Eastman, Claremont Institute Center for Constitutional Jurisprudence, (714) 628-2587.

When taking property by eminent domain, a city does not have to pay for the property's value as a potential garbage dump, the Third District Court of Appeal has ruled. The court held that the farmland's value as a landfill was too speculative under eminent domain law. The case involved the City of Stockton's condemnation of land owned by Albert Brocchini Farms. Prior to the trial to determine the property's value, the city asked the court to prohibit the testimony of a Brocchini expert regarding the property's value as a landfill. The city argued that the expert failed to establish the likelihood of a private developer receiving permits to open a landfill on the site, and that the expert made speculative assumptions regarding landfill operating costs and income. Brocchini countered that public and private landfills sit adjacent to the property in question. Brocchini also contended that a landfill was analogous to land with mineral rights, which must be considered when determining property value. Brocchini argued that private parties in the trash business use the discounted cash value for determining property value. San Joaquin County Superior Court Judge Duane Martin ruled for the city, calling the expert's analysis too speculative. The appellate court agreed. A fair value to be paid during an eminent domain procedure may take into account rental income from the property itself, but not income from business conducted on the property, the court held. In this case, the property owner sought compensation for a hypothetical business on the property, which the court viewed with skepticism. The court further ruled that a proposed landfill was nothing like property with mineral rights. Mineral interests "are a commodity with an intrinsic value," Justice Rodney Davis wrote for the unanimous three-judge panel. The market for a landfill, however, is volatile and affected by the awarding of collection franchises, public opposition to siting, and the efficacy of conservation and recycling efforts. "Under these circumstances, a claimed expertise at fixing a value is chimerical," Davis wrote. The court also considered an appeal from Stockton. The city had allowed Brocchini to continue farming the land until June 1997, 14 months after an order of possession took effect. Judge Martin ruled that Brocchini Farms was entitled to interest on the judgment during those 14 months, as the company was not paid until it surrendered the property. The city argued that the interest should have been offset by consideration for Brocchini's use of the property. Brocchini argued — and the trial court agreed — that the offset was itself offset because Brocchini lost money on its final crop of alfalfa. The Third District reversed the trial court on this point. Whether or not Brocchini made money while continuing to occupy the land was irrelevant, the court ruled. The city was entitled to the offset under Code of Civil Procedure § 1268.330, and there was no basis for the trial court to limit the offset. The law even presumes the offset amount to be equal to the rate of interest unless there is evidence otherwise. Such evidence did not exist in this case, the court ruled. The Case: City of Stockton v. Albert Brocchini Farms, Inc., No. C034813, 01 C.D.O.S. 8016. Filed September 10, 2001. The Lawyers: For Stockton: Richard Denhalter, city attorney, (209) 937-8333. For Brocchini: John McKinley, Brown, Hall, Shore & McKinley, (209) 477-8171.

In the clearest decision to date on antiquated subdivisions, the First District Court of Appeal has ruled that subdivision maps recorded prior to the first version of the Subdivision Map Act in 1893 do not create legal parcels. "Despite the bold vision of those who created them, such early subdivision maps — if drawn and recorded before 1893 — do not create legal parcels within the meaning of California's Subdivision Map Act," Justice James Marchiano wrote for court. The case, which stems from an 1865 map in Sonoma County, appears to resolve what has been one of planning's stickiest issues — the legal status of "paper subdivisions" that were recorded with no review and often without regard to topography or provision of public services. An estimated 400,000 to 1 million paper lots exist in California, many in coastal counties. "It really was an unclear area. It was like dancing on the head of a pin," said Les Perry, who represented landowners Jack and Jocelyn Gardner in the case. Perry, who said he will seek a state Supreme Court review of the decision, said he was "disappointed, but not surprised" by the ruling. Both Perry and Sonoma Deputy County Counsel Sue Gallagher, who defended against the lawsuit, agreed that the clear facts of the case made it a good one for resolution of the issue. "It's quite important for us and quite a few other counties," Gallagher said. "We have many other old maps here in Sonoma County from the mid- and late-1800s." Other recent cases have not been so clear-cut. Last year, the Second District Court of Appeal ruled in a complicated case from Santa Barbara County that pre-1893 subdivisions do not exist unless the parcels therein have been subject to a transfer of title at some point. (Circle K Ranch Corp. v. Board of Supervisors of the County of Santa Barbara, No. B124996, see CP&DR Legal Digest, May 2000.) However, the state Supreme Court ordered that decision depublished. The Second District tackled another antiquated subdivision case this year but ruled that the plaintiff did not have standing to bring the lawsuit. (County of San Luis Obispo v. Superior Court, 2001 DJDAR 6739, see CP&DR Legal Digest, August 2001.) A few important cases have touched on the issue of antiquate subdivisions, but none dealt with it directly. The state Supreme Court came close in the landmark case of Morehart v. County of Santa Barbara, (1994) 7 Ca.4th 725. The parcel in question in Morehart appeared on an 1888 map. However, the county conceded that the lot existed and the question was whether the Subdivision Map Act's merger provision applied. The state high court "explicitly declined to decide the issue of whether a pre-1893 antiquated map ‘creates' a legal parcel …" Justice Marchiano wrote in the case at hand. This case was brought by the Gardner family, which owns about 158 acres west of Sebastopol. The property is depicted on a 90-lot map recorded in 1865 by landowner S.H. Greene. The Gardners' property contains two full lots and portions of 10 others depicted on the Greene map. These days, the site is zoned Resource and Rural Development. It contains steep slopes and is the subject of a timber harvest plan. In 1996, the Gardners applied for 12 certificates of compliance for their lots. County planners denied the application, a decision that both the Planning Commission and the Board of Supervisors upheld. The board found that recognizing the old map would undermine "rational land use planning." So the Gardners filed a lawsuit, alleging that the Subdivision Map Act's grandfather provision covered the Greene map. Sonoma County Superior Court Judge Knoel Owen ruled for the county. A unanimous three-judge panel of the First District, Division One, agreed. The appellate court found that the grandfather clause was inapplicable. "The Legislature intended the grandfather clause to apply to subdivisions approved under prior versions of the Act, i.e., to exempt from the current Act those subdivisions established in compliance with or exempt from laws then in effect. The Legislature, with its strenuous emphasis on local control and approval of subdivisions, did not intend the grandfather clause to apply to the pre-1893 legal ‘State of Nature' when no subdivision statute was in existence," Marchiano wrote. He continued, "The Map Act does not reveal a legislative intent to exempt recorded subdivision maps which were not subject to any subdivision law from a time when there was little land use regulation. … f the Legislature wished to exempt antiquated maps from the Map Act, it could have done so in clear and express language. Grandfathering does not spring up by inference." To make his point, Marchiano noted that every version of the Subdivision Map Act since 1907 has had a grandfather clause — but the original act from 1893 did not. If lawmakers wanted to grandfather in pre-1893 maps, it would have done so at the time, he wrote. Gallagher said she was happy to get this issue resolved. But, she said, there still exists the question of validity of maps recorded between 1893 and 1929 because not until the 1929 revision of the map act was local government review and approval required. Prior to that time, the map act was concerned with the mechanics of drawing and recording maps, not whether the subdivisions were a good idea. The Case: Jack A. Gardner v. County of Sonoma, No. A093139, 01 C.D.O.S. 8793, 2001 DJDAR 10909. Filed October 11, 2001. The Lawyers: For Gardner: Leslie Perry, Perry, Johnson, Murray, Anderson & Miller, (707) 525-8800. For the county: Sue Gallagher, deputy county counsel, (707) 565-2421.

It was surprising news when the Center for Biological Diversity announced it had signed an out-of-court agreement regarding endangered species with its longtime adversaries at the U.S. Fish & Wildlife Service. With a decade-long winning streak in court, the Tucson-based Center has become arguably the most important entity in the Endangered Species Act debate. Why wouldn't the organization want to continue kicking butt in court, especially since Gail Norton had replaced Bruce Babbitt as head of the Interior Department? Many of the answers to that question are surprisingly simple and are based largely on both sides' concern over some species that could disappear within the next 12 months. And, it is important to note that although the Center and the federal government have become friends this one time, there is no reason to believe conflicts will not continue in the future. In fact, the Center has filed new lawsuits against the federal government over protection of species since the agreement was announced at the end of August — and the agency has decided not to place on the endangered list one of the species that was the subject of the agreement. The agreement has drawn mixed reviews, with developers' reactions ranging from cautious to hostile, and environmentalists generally saying neutral or good things. The National Association of Home Builders criticized the agreement, saying that the Interior Department needs to focus on revising the Endangered Species Act. Under the agreement, the Center gave the Fish & Wildlife Service more time to make decisions on eight critical habitat designations for species that have already been declared endangered or threatened. The Fish & Wildlife Service agreed to use the $600,000 it would have spent on the critical habitat designations for making decisions on the status of 29 species. The federal officials agreed to make emergency listings for three species, make final decisions on 14 candidate species, propose eight other species for protection, and make decisions on four Endangered Species Act petitions. This activity marks a turnaround from November 2000, when the Fish & Wildlife Service announced a moratorium on new listings. Since the agreement was signed, the agency has announced decisions and rules regarding a number of the involved species, which include five animals and one plant that live in California. Those actions and others to come in the near future would not have occurred without the agreement, said Chris Tollefson, a spokesman for the Fish & Wildlife Service in Washington, D.C. Everyone agreed that the species involved appear to have suffered major losses in recent years and need immediate attention, he said. "It really was not adversarial at all," said Kiernan Suckling, the Center's executive director. "We and the Fish & Wildlife Service had a common concern, which was that species are not getting protected." One of the major effects of the settlement was to highlight the Fish & Wildlife Service's lack of funding to carry out the Endangered Species Act. The agency estimates that tackling the full listing backlog — including implementation of 83 court orders — would cost $120 million. Yet the agency's listing budget this year is $6.3 million, and the agency has hesitated to ask for a major appropriation increase. The agreement "would never have been necessary if, over the years, the Congress had provided Interior with the resources it needed to enforce the act in a systematic, timely way," The New York Times opined in an editorial. Added David Henkin, a Honolulu-based attorney for Earthjustice Legal Defense Fund, "What this agreement really underlines is the need for the Fish & Wildlife Service to acquire sufficient funding for its listing program." Suckling said that for all the disputes his organization has had with the Fish & Wildlife Service, he believes the agency really does care. "This is an agency that is under tremendous political pressure," Suckling said. Most of that pressure has been applied by officials from the West who believe strongly in private property rights. But recently, U.S. Sen. Harry Reid (D-Nevada) has led a contingent urging greater funding for Endangered Species Act programs. Curiously, Suckling believes that species advocates may have more success on the ground — especially in California — under the Republican administration than under the regime of Bill Clinton and his Interior secretary, Bruce Babbitt. Babbitt tried to achieve consensus and compromise on Endangered Species Act issues, and was the major proponent of Habitat Conservation Plans, especially in California (see CP&DR, June 2001, March 1998, December 1997, April 1994). But hard-core environmentalists have criticized HCPs as political answers to scientific problems, and have railed against HCPs' "no surprises" provision, under which landowners cannot be required to spend more money or set aside additional resources for species covered by the HCP. Suckling said that Babbitt was never interested in the type of deal that Norton was willing to cut after only four months of negotiation. Suckling argues that Babbitt wanted to appease California developers, some of whom he has gone to work for since leaving office. On the other hand, Bush was trounced in California during the election and has shown little interest in reaching out to anyone in the state. "Oddly, I think California developers may have less influence under the Bush administration than they did with the Clinton administration," Suckling said. So, does the settlement signal a new truce among an odd couple? "We're hopeful it will set a tone for the future," Fish & Wildlife Service spokesman Tollefson said. "We'd like to make the Endangered Species Act work better." The agency, he said, has been inundated with litigation and has spent most of its money on court orders and settlements from those lawsuits — rather than on systematically addressing rare species. "As has been proven, the litigation route is not the most effective. It doesn't benefit species," Tollefson said. Suckling spoke of a "new trust" and said the agreement shows that the Center is willing to work with federal regulators. But Suckling made clear that future activities — or inactivity — of the Interior Department might be the subject of legal action. "If lawsuits have become part of the listing system, it's only because politics have taken up residency in the heart of the listing system. Lawsuits are the one thing we can use to counter that," he said. Nor should builders and government officials consider existing HCP's safe, Suckling vowed. Some of the new listings should force changes to HCPs, especially Southern California plans that account for the yellow-legged frog, he said. "We're not going to accept that a deal is a deal even if it means the extinction of a species. That is precisely why we have an Endangered Species Act," Suckling said. Contacts: Kieran Suckling, Center for Biological Diversity, (360) 468-2810. Chris Tollefson, U.S. Fish & Wildlife Service, (202) 208-5634. David Henkin, Earthjustice Legal Defense Fund, (808) 599-2436. Center for Biological Diversity's settlement website: www.sw-center.org/swcbd/press/settlementesa.html

A new state program intended to spur housing construction is being watched closely by planners and housing advocates. Supporters of the Jobs-Housing Balance Program believe it could spur cities and counties to approve needed housing developments, but some skeptics wonder if it will simply provide money to jurisdictions that would permit new homes anyway. Even though the program has yet to be implemented, it has already suffered a significant budget reduction. The 2000-01 state budget contained $100 million for the program, money that remains available. The governor's original proposal for the 2001-02 budget contained another $200 million. However, when the electricity situation drained state funds and tax revenues fell below projections, the Davis administration eliminated the proposed $200 million and cut $40 million from the original allocation. This leaves just $60 million, which Department of Housing and Community Development officials intend to start granting during 2002. To be eligible for grants ranging from about $1,000 to $4,900 per unit, a city or county must issue permits for at least 12% more units during 2001 than its annual average from October 1997 through September 2000, and it must have a state-approved housing element. Jurisdictions in counties with the highest job growth (the Bay Area, the Los Angeles area, and San Diego and Sacramento counties) would receive the largest grants. The program contains additional incentives for permitting multi-family units, affordable housing and infill development. "This is the first time that there has been money made available that rewards good behavior. It's a milestone," said Cathy Creswell, HCD Deputy Director. "We think, clearly, that looking at how you incent jurisdictions is critical to improving housing conditions across the state." In the past, the state's primary means of forcing affordable housing construction was to withhold funding from cities and counties for affordable housing projects – a weapon that few people see as effective. To make the Jobs-Housing Balance pot even sweeter, the Legislature this year modified the program to allow cities and counties to use program grants for any purpose. State Sen. Tom Torlakson (D-Pittsburg), the author of the original Jobs-Housing Balance legislation in 2000 also carried this year's legislation, SB 784, which modified the program. Originally, SB 784 was the vehicle for the additional $200 million. Although that money dried up — and the state budget picture for next year already looks grim — Torlakson and the Davis administration maintain that they are committed to this new program, in part because it provides one of the few incentives available to local governments for "smart growth." What sets the program apart from typical HCD programs is that the Jobs-Housing Balance program addresses housing needs within a larger framework that also considers job growth, land preservation and affordability, supporters say. Others, though, are not sure what to make of the program. Tom Jones, executive director of the California Futures Network (a coalition of environmental, neighborhood, business and transportation groups), declined to predict the program's success rate, but added a note of caution. "Our caution about it is that the program tries to address the supply problem — and there is one, no doubt about that — but we don't know what kind of supply this program will yield," Jones said. Julie Snyder, a lobbyist for the nonprofit organization Housing California, said determining whether the Jobs-Housing Balance Program truly induced housing development in job-rich areas will require a "fairly sophisticated analysis." Many of jobs created in the state during recent years pay less than $30,000 annually, which is not enough to live on in most urban areas, Jones said. "The big housing-jobs imbalance is for working lower- to middle-income people who took one of these new jobs that were created and can't find housing," he said. Other people argue that there is not enough money in the program to force cities to provide their fair shares of low- and moderate-income housing. Still, Creswell said that the program's grants — say a few hundred thousand dollars that could go toward a new park – could help local decision-makers overcome typical resistance to affordable housing development. And the requirement that qualifying cities and counties also have an approved housing element "is very consistent with the notion that the state's housing element law is the foundation for planning well in California," she said. Creswell believes there is widespread interest in the program. Through a series of workshops and other means, HCD officials have contacted representatives of more than 200 cities and counties. How far the $60 million will go is unknown. This year's legislation did make the program into an annual one. It appears housing will remain a topic of discussion in Sacramento during the months that lawmakers are on break. A working group is meeting every few weeks to discuss SB 910 (Dunn), which is intended to penalize cities and counties that do not comply with the housing element law. Dunn promises to pursue some form of the bill next year. Also, Torlakson and Democratic Assemblymen Howard Wayne and Alan Lowenthal have convened a Housing and Land Use Working Group that includes about 20 representatives of local government, housing groups, environmental organizations, developers and business. One recent session addressed fiscal and non-fiscal incentives for construction of infill housing. Although the Housing and Land Use Working Group has met only a few times, some participants believe it could produce legislation for 2002. It is probably significant that the lawmakers themselves have attended the meetings. And even a Republican — Assemblyman John Campbell — has shown interest in the working group. Contacts: Cathy Creswell, Department of Housing and Community Development, (916) 445-4775. Sen. Tom Torlakson's office, (916) 445-6083. Tom Jones, California Futures Network, (510) 238-9762. Julie Snyder, Housing California, (916) 447-0531. HCD Jobs-Housing Balance Program website: www.hcd.ca.gov/ca/jhbig/

An environmental impact report for a proposed Oakland International Airport expansion has been found flawed on numerous grounds by the First District Court of Appeal. The court held that the Port of Oakland, which operates the airport, relied on outdated air pollution information, did not support its decision not to study health risks related to that air pollution, and failed to analyze adequately nighttime noise impacts. In an unpublished portion of the opinion, the court held that the Port improperly delayed crafting a plan to mitigate harm to the western burrowing owl. The unanimous three-judge panel also rebuked Solano County Superior Court Judge William Jensen for continuing to issue rulings in the case after appeals had been filed, saying that the rulings greatly lengthened the time needed to resolve the case. In December 1997, the Board of Port Commissioners approved the Airport Development Plan (ADP) and an EIR. The ADP outlined plans to consolidate and reconfigure two existing passenger terminals, add 12 gates, widen and reconfigure access roads, build a 6,000-space parking garage and expand cargo facilities. The expansion was intended to accommodate a near doubling of flights between 1994 and 2010. Soon after the Port's decision, the cities of Alameda and San Leandro and two citizens groups sued over the adequacy of the EIR. In February 1999, Judge Jensen found that the EIR's discussion of alternatives was lacking, and that a new analysis of cumulative impacts was needed. The environmental groups, Alameda and the Port all appealed the ruling. The First Appellate District, Division Two, found even more flaws in the EIR. The published portion of the court's opinion dealt at length with air pollution and noise. The EIR concluded that emission of toxic air contaminants (which the court called TACs) would increase, and that the contaminants may cause cancer and other health effects. But the EIR said the environmental effects could not be known because no standardized protocol for determining risks existed. However, the court found that the Port improperly relied on a 1991 technical guide from the California Air Resources Board (CARB) and ignored an updated, 1994 technical document from CARB despite CARB's insistence that the latter report provided "the most accurate characterization of jet exhaust available." The court held that this omission "is such as to prevent a decisionmaker and the public from gaining a true understanding of one of the most important environmental consequences of increasing the number of flights." The court went on to reject the EIR's conclusion that the health effects of air contaminants were unknowable. The court noted that after the Port published the draft EIR, airport opponents had provided the Port with input from government and private experts and even hired a consultant to prepare a sample health risk assessment. Yet the final EIR contained "virtually no reference" to this material. "Voluminous documentary evidence was submitted to the Port supporting the assertion that an approved and standardized protocol did exist which would enable the Port to conduct a health risk assessment," Justice Ignazio Ruvolo wrote for the court. Citing Public Resources Code § 21080.3, subd. (a), Ruvolo continued, "The Port has not cited us to any reasonably conscientious effort it took either to collect additional data or to make further inquiries of environmental or regulatory agencies having expertise in the matter. These failures flaunt the requirement that the lead agency consult ‘with all responsible agencies and with any other public agency which has jurisdiction by law over natural resources affected by the project.'" Ruvolo went on, "The fact that a single methodology does not currently exist that would provide the Port with a precise, or ‘universally accepted,' quantification of the human health risk from TAC exposure does not excuse the preparation of any health risk assessment — it requires the Port to do the necessary work to educate itself about the different methodologies that are available." The court also rejected the Port's contention that it could call air pollution a significant impact and simply adopt an overriding consideration. "This approach," Ruvolo wrote, "has the process exactly backward and allows the lead agency to travel the legally impermissible easy road to CEQA compliance." The court was equally dissatisfied with the EIR's treatment of noise. The EIR concluded that — even though there would be an increase in nighttime flights under the expansion plan — noise levels would actually decrease because federal law required air carriers to convert to quieter jet engines by 2000. For its study, the Port adopted a fixed standard of 65 decibels CNEL, which is essentially an average of 65 decibels over a 24-hour period. This noise level is often considered compatible with residential living. However, the plaintiffs raised many questions about the noise impacts occurring within the 65-decibel threshold of acceptability. During EIR adoption, many citizens had complained that the EIR did not address increased nighttime flights and suggested that the decibel increases should be considered significant even though they still fell within the 65-decibel threshold. Acoustical engineers urged the Port to study single-event noise levels from the passing of an airplane over homes. In court, airport opponents said the Port's reliance solely on the CNEL standard did not provide a true picture of noise impacts. The court agreed, holding that CEQA Guidelines urge a lead agency to adopt site-sensitive thresholds of significance for noise. Thus, the Port should not have relied on an ironclad standard of 65 decibels CNEL. " he Port concedes that implementation of the ADP will increase the existing noise levels for quiet East Bay neighborhoods. Despite this acknowledgement, the EIR contained no quantitative discussion of ambient noise levels in any nearby community," Ruvolo wrote. He continued: " mplementation of the ADP could increase a community's nighttime noise level to 64.9 CNEL, and under the sole criterion of the CNEL metric, this increase would not create a significant impact for purposes of CEQA. This conclusion is derived without any meaningful analysis of existing ambient noise levels, the number of additional nighttime flights that will occur under the ADP, the frequency of those flights, to what degree single overflights will increase noise levels over and above the existing ambient noise level at a given location, and the community reaction to aircraft noise, including sleep disturbance. … CEQA requires that the Port and the inquiring public obtain the technical information needed to assess whether the ADP will merely inconvenience the Airport's nearby residents or damn them to a somnambulate-like existence." In the unpublished part of the decision, the court held that the EIR's discussion of aircraft safety and growth inducements was adequate. But the court ruled that the Port improperly postponed a plan to protect the western burrowing owl. The court also found that Judge Jensen should not have discharged a writ of mandate after his original ruling, which he did when the Port adopted a supplemental EIR. Finally, the court remanded the issues of attorneys' fees, suggesting that airport opponents were due hundreds of thousands of dollars. The Cases: Berkeley Keep Jets Over the Bay Committee v. Board of Port Commissioners, City of San Leandro v. Board of Port Commissioners, City of Alameda v. Board of Port Commissioners, Nos. A086708, A087959, A089660, 01 C.D.O.S. 7700, 2001 DJDAR, 9453. Filed August 30, 2001. The Lawyers: For airport opponents: John Shordike, (510) 841-5056. For the Port: Stephen Kostka, McCutchen, Doyle, Brown & Enersen, (925) 937-8000.

The City of Salinas has dropped its lawsuit against San Jose regarding approval of Cisco Systems' plan to build a research park in Coyote Valley. Salinas filed the lawsuit last year after San Jose approved the 688-acre research park, but the city in September agreed to dismiss the suit in exchange for a redress of the area's housing, transportation and education needs. (See CP&DR, June 2000.) The settlement calls for the property owners, Coyote Valley Research Park LLC, to pay $250,000 for a regional transportation study and will limit the size of the research campus until San Jose addresses the area's housing issue. Cisco will also contribute up to $1 million in matching funds if the Monterey County region establishes an affordable housing trust. In addition, San Jose will consider extending Caltrain to Salinas. The 20,000-worker campus still faces three similar lawsuits from groups opposing the project. El Toro airport foes in September delivered 175,000 petition signatures—twice the amount needed—that would force another vote on fate of the former Marine Corps Air Station in Orange County. But the validity of the signatures on the Orange County Central Park and Nature Preserve Initiative is up in the air. Orange County Superior Court Judge James Gray earlier ruled the petitions invalid because the ballot summary understated the extent of possible development under the initiative. The ruling is pending a state appeals court decision on whether the language of the ballot measure is misleading. The airport plan calls for a new airport that would serve up to 29 million passengers, but opponents support transforming the former base into a "great park" that would house — among other things — schools, health-care facilities, museums and an urban park. If the measure appears on the March 2002 ballot, it will mark the fourth time Orange County voters have been asked to decide the fate of the former base. (See CP&DR In Brief, May 2000, CP&DR Local Watch, November 1999) A Huntington Park casino owner was charged in September with bribing Huntington Park Mayor Richard Loya. The FBI charged Harry Hwang of bribing Loya with $5,000 to gain Loya's support on a proposed $66 million entertainment and retail complex and to win his vote for the city to forgive a $40,000 debt owed by the casino. Loya first reported Hwang to authorities on June 10 and worked with the FBI to record conversations between Hwang and himself. Hwang pleaded not guilty. He faces up to 10 years in prison and a $250,000 fine if convicted. He may face more charges of bribing other city council members. The Oakland Port Commission chose the development group of Signature Properties and Reynolds & Brown to transform a 60-acre industrial area on the Oakland Estuary into a residential and retail neighborhood. The development is part of the port's effort to increase housing and retail development and reconnect people with the waterfront area. (See CP&DR Economic Development, September 2001.) The commission said it chose Signature and Reynolds & Brown over the Shorenstein Co. and Interland Growth partnership because of the former's emphasis on residential development. The development group said it would not seek public funds for the $500 million project. In addition to developing the 60 acres, Signature will also come up with a master development plan for the entire 120 acres the port owns along the estuary. The Board of Forestry in September adopted the new rule that requires environmental review for before loggers cut trees that predate the 1800s. The board for the first time defined "old-growth" trees as those existing "before 1800 A.D." and measuring at least 48 inches in diameter at the stump, or at least 60 inches for redwoods. Under the new rule, timber owners wishing to cut down old-growth trees must hire a state-registered forester to conduct an assessment of the trees' wildlife and ecological value. Environmentalists say the regulation allows too many exemptions and fails to protect the state's ancient forests. State officials concede that the regulation is not a ban on cutting down trees, but reduces careless cutting. Environmental groups including the Sierra Club say that the new rule is an attempt by Davis administration to thwart a planned 2002 statewide ballot initiative that would require tougher rules against old-growth cutting. The Los Angeles City Council has unanimously approved plans for a $1 billion shopping, dining and entertainment district around downtown's Staples Center. Council members expressed concern over a much-needed hotel in the area that developers are reluctant to build. And developers plan to seek a public subsidy for the 1,200-room hotel project. The development agreement calls for the construction of a four-star hotel, a 7,000-seat arena, two apartment towers, parks and office space. (See CP&DR Deals, August 2001.) The Califia development project in Lathrop was dealt another setback when San Joaquin County Superior Court Judge Bob McNatt in late August ruled that the city must perform new environmental studies before building a sewage treatment plant. The plant would serve the nearby Califia development, which was proposed to have four theme parks, retail development and 8,500 homes. But the 290 acres of farmland that would hold the treatment plant was hit by severe floods in 1997, one year following a feasibility study conducted by the city. The judge ruled that new studies considering the public health risk must be performed. This is not the first hurdle for Califia, formerly called Gold Rush City. Citing lack of investor funding, developers announced in August that the planned theme parks — which had attracted so much early attention — would likely be replaced with office buildings. And the Sierra Club successfully sued the San Joaquin LAFCO over its 1996 approval of Lathrop's annexation of land that was to be developed. (See CP&DR Legal Digest, January 2001, Local Watch, August 1996.) Embattled San Bernardino County Supervisor Jerry Eaves was indicted by a federal grand jury in late August for allegedly accepting bribes in exchange for approving billboards on county-owned land in Colton. The indictment came just two months after Eaves — who continues to hold office — pleaded no contest to state charges of perjury and illegally accepting gifts. Federal prosecutors have charged Eaves with 14 counts of bribery, conspiracy to pay and accept bribes and mail fraud. Eaves pleaded not guilty and a trial is scheduled to begin November 20. Federal authorities also charged William "Shep" McCook of Newport Beach for giving Eaves about $6,000 worth of trips to Las Vegas, and former Colton City Councilman James Grimsby with accepting $25,000 in cash. Grimsby and McCook have pleaded not guilty. But Laguna Beach businessman Allan Steward, who allegedly bribed Grimsby, Colton Councilmen Abe Beltran and Donald Sanders, and former Mayor Karl Gayton all have pleaded guilty in the bribes-for-billboards scheme. The State Auditor has concluded that the California Energy Commission has not acted significantly slower on power plant applications than states with similar review processes. The auditor examined 23 applications submitted to the Energy Commission from 1990 through 2000 under the standard 12-month review process. The auditor found that the Energy Commission went beyond the 12-month deadline by more than a month 10 times for a variety of reasons. In every instance, the applicant failed to provide required information in a timely manner. Slow local, state and federal reviewing agencies and protests by project opponents also caused delays. The average approval time for all projects was 14 months, after an average of 2.5 months spent reviewing the adequacy of an application. Minnesota, Florida and Connecticut took seven to 15 months to approve applications. Oregon took an average of 30 months to decide power plant proposals, according to the auditor's report released in August. The auditor also found that Energy Commission's process is quicker than reviews conducted under the California Environmental Quality Act or the Permit Streamlining Act. The Energy Commission in late September unanimously approved the 600-megawatt Metcalf Energy Center in south San Jose's Coyote Valley. The decision came three months after the San Jose City Council, under intense political pressure, dropped its opposition to the project. Still, residents of Coyote Valley and the Santa Theresa district continue to complain about potential air pollution from the plant. They have appealed to the Bay Area Air Quality Management District and have vowed to file a lawsuit. (See CP&DR, July 2001, March 2001.)

An en banc panel of the Ninth U.S. District Court of Appeals has upheld an Indian tribe's right to regulate timber harvesting on privately owned land within an Indian reservation. The ruling was a reversal of a ruling issued last year by a three-judge panel of the Ninth Circuit, and an affirmation of the district court's original decision (see CP&DR Legal Digest, November 2000). The case involved a small timber harvest in the Hoopa Valley Indian Reservation in Humboldt County. The Hoopa Valley Tribal Council determined that Roberta Bugenig, a non-Indian who owns fee title property within the reservation, could not harvest trees on her land, which is near a ceremonial site. Bugenig sued in federal court, arguing that the Tribal Council did not have jurisdiction over her property. U.S. District Court Judge Claudia Wilken ruled for the tribe. On appeal, a three-judge panel of the Ninth Circuit reversed Wilken, holding that Congress did not give specific authority to the Hoopa Valley Tribe. But in an 8-3 ruling, a full panel of Ninth Circuit judges reversed the decision again. In the latest ruling, the court held that the congressionally approved Hoopa-Yurok Settlement Act of 1988 gave the Hoopa Valley Tribe's constitution the full force of law. The tribe's constitution makes clear that the Tribe has jurisdiction over all lands within the confines of its reservation established in 1876, the court also held. Bugenig's land falls within those confines. The case is Roberta Bugenig v. Hoopa Valley Tribe, No. 99-15654, 01 C.D.O.S. 7999 and was filed on September 11, 2001.