Call it the Year of the Election. Every time you turn around during 2008, Californians are going to be voting on something. February. June. November. And, on the local level, probably some dates in between. Property rights advocates will try to make it the year of eminent domain. Environmentalists will try to make it the year of climate change. On the local level, various citizen groups will try to make it the year they assert themselves – as in Stanislaus County, where a February initiative would subject agricultural zone changes to a public vote. Cast against the backdrop of a contentious presidential election, a real estate slump, and possibly a recession, it's hard to discern what the impact on the California planning and development scene will be when the dust clears. But it is entirely possible that, electorally, we'll see two Californias this year – the liberal one, which will emerge in February and November, and the libertarian one, which will become evident in June. That's because, at the state level, there will be not two elections but three – the presidential primary in February, the regular primary in June, and the presidential election in November. The February and November elections are likely to attract high voter turnout. Both parties will probably still be duking it out for the presidential nomination in February – that was the whole point of moving the primary up – and the general presidential election always draws a huge turnout. That's good news for the liberals, especially the environmentalists, who want to focus on climate change as a major issue in the presidential campaign. But don't overlook the regular June primary. Without the presidential headliners, it will almost certainly feature a much lower turnout. And that's good news for the anti-government types at the Howard Jarvis Taxpayers Association, who are trying to get their eminent domain initiative – call it "Son of Proposition 90" – on the ballot at that time (see CP&DR Redevelopment Watch , September 2007). Little more than a year ago, California voters barely rejected Proposition 90, a wide-ranging initiative that would have reined in eminent domain, and would have redefined the idea of a "taking of property" to include a lot of garden-variety land use regulation (see CP&DR Insight , December 2006). The initiative got 47.5% of the vote even though the proponents didn't really run a campaign. Proposition 90 came so close that everybody recognized an initiative restricting eminent domain was there for the taking, emboldening the taxpayer groups and scaring the local governments. The Jarvis group and the local government associations danced together for a while this year, trying to write a measure they could agree on. Eventually, however, the Jarvis people went their own way. But they did so with an initiative that is, in many ways, much less sweeping than Proposition 90. The proposed measure clamps down on eminent domain for economic development purposes, as Proposition 90 did, but it doesn't extend its reach to land use regulation in the same way. The measure does, however, effectively place a ban on rent control – a provision that has already drawn financial support from landlords but which will likely generate political heat from big-city activists and mobile home residents. The Jarvis group also got the California Farm Bureau Federation on board by advertising the idea that the initiative minimizes the risk of eminent domain being used on family farms to be used for natural resource protection, even though that virtually never happens. Local government organizations are gathering signatures for a more modest measure that would prohibit the use of eminent domain to obtain owner-occupied houses for economic development purposes. The locals are also arguing that the Jarvis initiative would threaten virtually all future water projects because of the way eminent domain would be restricted. But the key to this election may not be the ballot measures themselves. The key may be the timing of the election. The Jarvis initiative would obviously do much better during the June low-turnout election, when conservative voters are likely to have more sway. The local government alternative would probably do better in November, when there will be a higher and presumably more liberal turnout, In 2004, 57% of eligible voters turned out in November, compared with only 30% for the March primary. The June turnout this year will likely be comparable to the March turnout last time. Meanwhile, environmentalists are likely to keep pounding away at climate change in the presidential election – which could affect the way the state implements AB 32, the greenhouse-gas emissions reduction law. An environmentalist-backed implementation bill affecting land use – SB 375 (Steinberg) – almost passed the Legislature last August. If climate change maintains a high profile because of the presidential election, then the Legislature may be forced politically to adopt an aggressive implementation bill. With the entire Assembly and half the Senate up for grabs on the presidential ballot, Democrats in particular may have to tow the environmentalist line. Meanwhile, the local ballots will be a mixed bag for land use as always. The biggest issue on any local ballot in February will be a SOAR-type initiative in Stanislaus County, along with a countermeasure placed on the ballot by the Board of Supervisors. Measure E, as the citizen initiative is known, mimics the famous SOAR initiative in Ventura County by requiring voter approval for any rezoning of land in the unincorporated area from agriculture or open space to residential. The county alternative will create a general plan review committee to review and shore up agricultural land policies among other things. SOAR-type initiatives have not traveled well in the past. Though vastly popular in Ventura County (the county measure and most of its city counterparts received 65-70% of the vote when they were on the ballot), they have been defeated in similar counties such as Sonoma and San Luis Obispo (see CP&DR Insight , December 2000). Stanislaus is more politically conservative than any of these other counties – though, like Ventura, it has a long history of restraining urban development in order to preserve farmland. A high February turnout might help the initiative. Meanwhile, liberal Napa County will likely vote on two significant land use initiatives in June, including one that will extend Measure J, the 1990 measure that paved the way for SOAR in the first place. Like the SOAR measures and Stanislaus County's proposed Measure E, Measure J requires a countywide vote to rezone agricultural property in the unincorporated area for urban uses. It was the 1995 California Supreme Court ruling in De Vita v. County of Napa , which upheld Measure J, that opened the door to the SOAR initiatives in Ventura County and elsewhere. Measure J currently sunsets in 2020, but the June initiative would extend it for 50 years. So there you have it: prohibitions on eminent domain and aggressive regulation on land use, all in the same year. It is an entirely plausible outcome in the Year of Election.

The Ninth U.S. Circuit Court of Appeals has issued two takings decisions from outside California favorable to property owners. Actually, the decision most likely to have an impact in California was specifically not a takings decision, but a due process ruling. In a case from Sun Valley, Idaho, the court — relying on the U.S. Supreme Court's ruling in the Lingle case from two years ago — ruled that a developer could pursue a due process claim stemming from property regulation. The decision reverses "well-settled law in this circuit does not allow substantive due process claims pursuant to the Fourteenth Amendment when the interest at stake is real property." The Sun Valley decision followed an unrelated decision from Las Vegas, Nevada, in which the Ninth Circuit upheld a lower court determination that zoning around an airport constituted a compensable taking of property owners' airspace. The Sun Valley case concerned a claim filed by Crown Point Development, which is developing a 39-unit subdivision called Crown Ranch. The developer built 26 units in the first four phases. When Crown Point sought to complete the project with the final 13 townhouses, it met resistance from the homeowners association, and the City Council denied an application. Crown Point sued in Idaho state court, and a district court ruled the council's decision was arbitrary and capricious. The Idaho Supreme Court reversed the decision but remanded the case for further proceedings because the findings of fact were insufficient ( Crown Point Dev., Inc. v. City of Sun Valley , 156 P.3d 573 (Idaho 2007)). Crown Point also filed a federal action based on civil rights law, arguing that its substantive due process rights had been violated. The federal district court rejected the claim because of Armendariz v. Penman , 75 F.3d 1311 (9th Circuit 1996), in which the court ruled that the Fifth Amendment's takings clause preempts due process claims from property owners. However, the U.S. Supreme Court's decision in Lingle v. Chevron U.S.A., Inc. , 544 U.S. 528 (2005) (see CP&DR , July 2005), "pulls the rug out from under our rationale for totally precluding substantive due process claims based on arbitrary or unreasonable conduct," Judge Pamela Ann Rymer wrote for the Ninth Circuit panel. This is because Lingle rejected the " Agins test," which held that a regulation that does not "substantially advance legitimate state interests" is a taking. Instead, the Lingle court ruled that a claim based on the substantially advances test is actually a due process — not a Fifth Amendment takings — claim. "We now explicitly hold that the Fifth Amendment does not invariably preclude a claim that land use action lacks any substantial relation to the public health, safety, or general welfare," Rymer wrote. "Therefore, we must reverse, as the district court dismissed Crown Point's claim solely on the authority of Armendariz , which held to the contrary." The Ninth Circuit did not rule on the merits; it merely sent Crown Point's lawsuit back to the District Court for a decision. The Ninth Circuit ruling appears to open a new avenue for landowners to challenge land use regulation. The Las Vegas case has a more colorful history but may not mean as much for California as the Sun Valley decision does. There are numerous aspects to the Las Vegas case and commentators have not agreed on which is most important. Essentially, the Ninth Circuit upheld a lower court ruling in favor of some owners of property near McCarran International Airport. They argued that two Clark County ordinances adopted in 1990 constituted takings. The lower court ruled that Ordinance 1221 imposing a building height limit was a taking, but Ordinance 1198 imposing an overlay zone that prohibited anything except a parking lot or landscaping on 1.25 acres was not a taking. The court awarded the landowners $10.1 million in damages, fees and interest, plus $600,000 in attorney's fees. The procedural gymnastics: The Ninth Circuit rejected the county's argument that the federal court had no jurisdiction because the lower court — a federal bankruptcy court, actually — accepted the case even though a state court judge had indicated he was going to dismiss identical claims filed in state court. (Typically, a property owner cannot pursue a taking claim in federal court after having it rejected in state court.) In addition, the Ninth Circuit found that the federal court claims were "ripe" for a decision because the landowners had filed litigation in state court. The state court lawsuit was essentially part of the state's administrative process for seeking compensation, the Ninth Circuit determined. The fact that a federal bankruptcy court judge heard the case — and later signed the final decision as a district court judge after receiving a new appointment — also was not a problem for the Ninth Circuit. For the planners: The Ninth Circuit said it was bound to abide by the Nevada Supreme Court's decision in McCarran International Airport v. Sisolak , 137 P3d 1110 (Nevada 2006). In Sisolak , the court ruled that Clark County Ordinance 1221 limiting the height of buildings near the airport was a per se taking of privately owned airspace. The Nevada Supreme Court awarded the property owner $16 million — even though the county had approved an application for a 600-room hotel-casino on Sisolak's property. The Sisolak ruling stunned planners and airport authorities because the court said that the landowner had a right to airspace up to 500 feet above the surface. Essentially, the Nevada Supreme Court ruled that federally defined navigable airspace was subject to private ownership, and that a zoning ordinance impinging on use of this airspace was a taking under state and federal law. In the case at hand, Ninth Circuit Judge Milan Smith Jr. wrote, "We respectfully disagree with our colleagues on the Nevada Supreme Court concerning their interpretation of federal takings jurisprudence. No Fifth Amendment taking of the landowners' property occurred under the standards set forth in Penn Central Transportation Co. v. New York City , 438 U.S. 104 (1978)." However, in Sisolak the Nevada Supreme Court said claims in that state are not subject to Penn Central , which provides strict standards for pressing a takings claim. The Sisolak court said the Nevada Constitution limits the exercise of takings more than the federal constitution does — even though the takings clauses in the two documents are nearly identical. The Ninth Circuit said that, because the landowners in the case at hand had filed claims based on the Nevada Constitution, it was bound by Sisolak and therefore must uphold the lower federal court ruling. "We hold that federal airport regulations do not preempt Sisolak's application to the Nevada Constitution's takings clause with respect to Ordinance 1221," Judge Smith wrote. The court sent the case back to district court for a final decision on interest owed by the county. The decision probably means little in California, where state courts have long applied the Penn Central standard for takings claims. Still, the decision demonstrates one Ninth Circuit panel's willingness to abide by a state court decision that planners had hoped would be an outlier. First Case: Crown Point Development, Inc. v. City of San Valley , No. 06-35189, 07 C.D.O.S. 12732, 2007 DJDAR 16452. Filed November 1, 2007. The Lawyers: For Crown Point: J. David Breemer, Pacific Legal Foundation, (916) 419-7111. For the city: James J. Davis, (208) 336-3244. Second Case: Vacation Village, Inc. v. Clark County, Nevada , No. 05-16173, 07 C.D.O.S. 8614, 2007 DJDAR 11170. Filed July 23, 2007. The Lawyers: For Vacation Village: Paul Ray, John Peter Lee, (702) 382-4044. For the county: Kirk Lenhard, Jones Vargas, (702) 734-2220.

The state Supreme Court and the Third District Court of Appeal appear to be feuding over a California Environmental Quality Act (CEQA) case concerning the water analysis for a 20,000-housing unit project in Rancho Cordova. In 2005, the Third District upheld the environmental impact report for the Sunrise Douglas community plan, which was initially adopted by Sacramento County but is now being implemented by the newly incorporated City of Rancho Cordova. Earlier this year the state Supreme Court overturned the Third District and rejected the EIR because it did not adequately describe long-term water sources and the impacts of using those sources (see CP&DR , March 2007). The state Supreme Court returned the case to the Third District for further proceedings. As expected, the appellate court sent the case back to Sacramento County Superior Court for review of updated environmental documents. At the same time, though, the Third District took the unusual step of issuing a lengthy opinion that closely mirrored its 2005 decision, which sharply criticized and rejected project opponents' arguments and legal strategies. In July, the Third District decided to publish the begrudging opinion in what appeared to be a direct jab at the state Supreme Court. The Third District undertook detailed analysis of a number of issues, including project alternatives, which opponents argued had been improperly rejected. Justice Fred Morrison wrote for the Third District: "Because the record contains evidence supporting the county's findings that each alternative discussed on appeal was infeasible, their claims lack merit on this record. However, the further environmental review ordered by the California Supreme Court may require reconsideration of these or other proposed mitigation measures." Project opponents asked the state Supreme Court to depublish the opinion, which would mean it cannot be cited as precedent. In a 5-1 vote, with Chief Justice Ronald George absent and Justice Marvin Baxter dissenting, the court ordered the Third District's opinion depublished. The case is Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova , Nos. S155607 and C044653. The Second District Court of Appeal has upheld an award of attorney's fees to a Los Angeles homeowner who successfully challenged the environmental review of a 21-lot subdivision in Los Angeles's Sunland district. Two years ago, the appellate court ruled that the city should prepare an environmental impact report because homeowner Maria Mejia presented a fair argument that the Shadow Hills project may have a significant impact on wildlife and traffic (see CP&DR Legal Digest , August 2005). After that ruling was issued, Los Angeles County Superior Court Judge David Yaffe awarded Mejia $50,000 in attorney's fees, with half to be paid by the city and half by developer California Home Development. The city did not appeal the fee award, but California Home did. The developer argued that Mejia was not eligible because her personal interest was her primary reason for bringing the lawsuit, the city was solely at fault, and the award impinged on its First Amendment right to petition the government. The Second District rejected all three arguments. Noting that Mejia had spent her retirement savings and refinanced her home to fund the lawsuit, the appellate panel said that it could not overturn the lower court's ruling that Mejia's financial burden of enforcing CEQA outweighed her personal interest. The court said that an award of fees "does not require a finding of fault or misconduct by the opposing party." Finally, the court ruled that the statute permitting Mejia to recover fees, Code of Civil Procedure § 1021.5, "is unrelated to the suppression of valid petitioning activity." The Case: Mejia v. City of Los Angeles , No. B189444, 07 C.D.O.S. 12357, 2007 DJDAR 15909. Filed October 17, 2007. The Lawyers: For Mejia: John Murdoch, (310) 450-1859. For California Home Development: Douglas Brown, (310) 277-7747.

Nearing the 20th anniversary of its incorporation, the high desert city of Hesperia is simultaneously confronting its past and future. The city continues to install infrastructure that was never provided in the first place and is working on a plan to create what would be the first real downtown in a city of 86,000 people. At the same time, Hesperia is considering plans from two developers that would open up a whole new part of town for growth and potentially increase the city's population by two-thirds. Hesperia completed a new city hall and branch library in 2006, and it intends to build an adjacent park in the first half of 2008 — all as something of an anchor in a new downtown area. Officials also hope to complete a comprehensive general plan update and two specific plans for the Main Street and Interstate-15 corridors during 2008. Investment in streets, sidewalks and water and sewer lines is ongoing. That's the catch-up part. Meanwhile, developers are pressing forward with plans for projects in a mostly undeveloped area in the south end of town known as Summit Valley. Proposed are the 16,000-unit, 10,000-acre Rancho Las Flores project, and the 4,200-unit, 1,500-acre Majestic Hills project. Both are planned to have retail and recreation components as well as various public facilities. City officials see the projects as an opportunity for new, more up-to-date style development in a city that has half-acre lots spread far and wide. A specific plan adopted for Rancho Las Flores in 1990 is being reworked with a fresh approach in mind. "There are a lot of different things we would look at today that we didn't look at in 1990 as far as walkability and mixed-use," said Dave Reno, principal planner for the city. When Hesperia incorporated in 1988, it started at a disadvantage. Although 46,000 people lived in the desert community a few miles northeast of Cajon Pass, the place had few paved roads, limited water and sewer service, and minimal civic buildings other than schools. Moreover, a landowner during the 1950s had subdivided a huge tract into primarily half-acre parcels. Hesperia was very much a desert city, where people kept chickens in the front yard and kids rode dirt bikes down the street. While much of that desert feel remains in the original core area, Hesperia has also become a bedroom for commuters to the Inland Empire and the Los Angeles Basin, which is the primary reason the population has grown by 40,000 since incorporation. Much of the new housing lies in large, walled-off, suburban-style tracts that bear no resemblance to the old Hesperia of modest homes and dirt yards. The growth is reflective of the Victor Valley as a whole, where population has increased by about one-third — to more than 400,000 — since 2000 (see CP&DR Local Watch , August 2005). Over the years, the city has undertaken major sewer and water projects funded by ratepayers and developers, explained Tom Harp, deputy director of development services and community development. However, streets remained a problem. So about eight years ago, the City Council decided to start spending general fund money on a street paving program. After a few years, tax increment from a large redevelopment project area started making a big difference, as the majority of the 75-square-mile city is in one of two redevelopment project areas and annual tax increment is approaching $20 million. In addition, the city started enforcing more aggressive development impact fees. Although work continues, the push has resulted in many miles of paved streets and even some sidewalks. In addition to more street paving, the city is working on two large storm drain projects, a new overpass above the railroad tracks that split the town, and a variety of infrastructure needs in a large, lightly developed industrial area. Besides funding infrastructure, the redevelopment agency has also done some land assembly, as all of the half-acre lots remain "a very big challenge for us," Harp said. In addition, the City Council decided to upgrade public buildings, and in 2006 Hesperia opened an architecturally striking 58,000-square-foot city hall and an adjacent 20,000-square-foot branch library. A park and either a community center or movie theater (negotiations with a developer are ongoing) are planned across the street. All of this lies one block off Main Street, and the idea is to turn Eighth Street into a pedestrian-friendly connector lined with shops between Main and the civic facilities. It's a small area, Reno conceded, but "It's a way of creating a sense of place." Not so small are proposals for the south end of town in Summit Valley, where Hesperia's future may lie. The biggest project is Rancho Las Flores, a 10,000-acre swath of desert that the current owner assembled partly through Bureau of Land Management land swaps. In 1990, the city approved the Rancho Las Flores specific plan, which called for development of 16,000 mostly low-density housing units in eight villages. "Then we ran into a series of delays," recalled developer Donald Hutchings, chairman of the Dana Point-based Rancho Las Flores LLC. "The first was the listing of the arroyo toad as an endangered species. The second was the water adjudication suit for the entire Mojave River Valley filed by the City of Barstow." In fact, the toad was one of three species in the area, along with the Bell's least vireo and the willow flycatcher, listed as endangered in the early 1990s that have required a fair amount of study and planning adjustments. The toad is present on a portion of Rancho Las Flores, but Hutchings said he has a biological opinion that clears the way for development. The water lawsuit ultimately led to a stipulated settlement among a variety of water rights holders and even a state Supreme Court ruling that was favorable to the Hesperia Water Agency ( City of Barstow v. Mojave Water Agency , (2000) 23 Cal.4th 1224; see CP&DR Legal Digest , September 2000). By the time the endangered species and water issues were resolved, however, the specific plan and its environmental impact report were outdated, acknowledge both city planners and the developer. The updated plan, which Hutchings said he will present to the city in early 2008, still contains eight villages. But changes to the land use plan will make for more walkable development. Each village will be self-contained, and one will include a town center with extensive retail space, restaurants and recreation facilities, according to Hutchings, who likens Rancho Las Flores to successful Orange County master planned projects such as Rancho Santa Margarita and Ladera. The revised plan will provide for everything from two-acre equestrian lots to neo-traditional housing to apartments and senior citizen housing, Hutchings explained. "We will have every single variety of housing product that is available in the market today," he said. "That's really the key to have a successful master planned community. You're appealing to the full range of the market." In a concession to the city, Hutchings has agreed to start development on the north end of the project site, adjacent to currently developed areas, and work south. He had originally planned the opposite. "We'll basically put in all of the core infrastructure. We'll bring all of the utilities down from the north, where they are existing," Hutchings said. The developer then intends to sell "blue top lots" containing about 60 to 80 parcels to builders for actual housing construction. Next to Rancho Las Flores lies 1,500 acres controlled by SunCal, which is proposing 4,200 housing units on a little more than half of the site, plus 25 acres of commercial uses and 11 acres of industrial development. Like Rancho Las Flores, SunCal's Majestic Hills would have an extensive open space and trail system that allows pedestrians and cyclists to get around easily. Unlike the Rancho Las Flores site, SunCal's property does not lie within the city limits, so annexation is required. The city's Harp said he is encouraging the two developers to work together on infrastructure, although it is not clear that is happening yet. Opposition to the Summit Valley projects has been fairly low-key so far. In a different part of town known as Oak Hills, residents of large-lot homes have unsuccessfully fought nearby suburban-style development. Summit Valley is largely undeveloped, so neighborhood opposition may be minimal. However, traffic could become an issue, as access to the area is limited. The Sierra Club and the Center for Biological Diversity (CBD) are expected to present objections. "It's absolutely toad habitat," said Lisa Belenky, a CBD attorney. "It's occupied and it's some of the best habitat in San Bernardino County." In addition to the species issue, the projects raise questions about sprawl and greenhouse gas emissions because most of the new residents would likely commute long distances, she said. Water may also become an issue, as Hesperia's growth depends on importing water from the oversubscribed State Water Project to recharge a groundwater basin that is in an overdraft situation. Of course, the housing market has crashed in the Victor Valley, as elsewhere. Thus, even if Hesperia were to approve development in Summit Valley, it could be several years before construction begins. Contacts: Tom Harp and Dave Reno, City of Hesperia Development Services/Community Development Department, (760) 947-1220. Donald Hutchings, Rancho Las Flores, (949) 248-2300. Lisa Belenky, Center for Biological Diversity, (415) 436-9682. Majestic Hills website: http://www.suncal.com/community/?id=40

Development of a home improvement store and realignment of an adjacent road in Sonora constituted one project, and the combined activities should have been subject to a single environmental analysis, the Fifth District Court of Appeal has ruled. The fact that the road realignment appeared in the Sonora general plan 20 years before the Lowe's Home Improvement Warehouse was proposed and had been included in a local traffic impact fee program did not matter, the court determined. Instead, the court cited the close relationship between the proposed Lowe's and the road project, which was a condition of approval for Lowe's. "Lowe's objective is to open and operate a home improvement center in Sonora. The commencement of business operations at the site is conditioned upon the completion of the realignment of Old Wards Ferry Road. As a result, the road realignment is a step that Lowe's must take to achieve its objective. In this regard, we note that Lowe's has cited no case or other authority for the proposition that a condition or mitigation measure is not part of the project to which it is attached," Justice Betty Dawson wrote for the unanimous three-judge panel. In June 2005, the Sonora Planning Commission approved an 111,000-square-foot Lowe's building and 28,000-square-foot garden center, as well as a mitigated negative declaration for the development. One of the mitigation measures called for realignment and signalization of the intersection of Old Wards Ferry, Sanguinetti and Greenley roads, and relocation of the Sierra Railroad crossing of Old Wards Ferry. A group called Tuolumne Citizens for Responsible Development appealed to the City Council, which denied the appeal the following month. The citizens group then sued, alleging the city violated the California Environmental Quality Act (CEQA) in numerous ways. Tuolumne County Superior Court Judge James Boscoe ruled for the city and Lowe's. On appeal, the Fifth District overturned the lower court. Much of the Fifth District decision was not published, so it cannot be cited as legal precedent. The published portion, though, addressed the issue of whether the Lowe's store and the road realignment were the same project for CEQA purposes. The citizens group emphasized CEQA Guidelines § 15378, which speaks to the "whole of an action." On the other side, Lowe's argued the store and road work were not the same project because Lowe's did not seek approval for a road project, the road realignment was not necessitated by the home improvement store, and the store and road project were not "integral" because they could be implemented independently. Siding with the citizens group, the court pointed to Plan for Arcadia, Inc. v. City Council of Arcadia, (1974) 42 Cal.App.3d 712. In that case, the court ruled that development of a shopping center along with street work on Baldwin Avenue to the south were one project under CEQA because the road widening was a condition of approval and the developer would pay for it. But the Plan for Arcadia court ruled that Baldwin Avenue road widening to the north was not part of the project because it was a long-planned municipal capital improvement. "The realignment of Old Wards Ferry Road is similar to the widening of the southern portion of Baldwin Avenue in two important ways," Justice Dawson wrote. "First, the approval of the home improvement center project is conditioned upon completion of the road realignment. Second, Lowe's has committed to funding and completing the road realignment. These two similarities are more significant than the similarity between the realignment of Old Wards Ferry Road and the widening of the northern portion of Baldwin Avenue — the long-existing plan for the work." The court determined it was inconsequential that Lowe's did not apply for approval of the road realignment. The court also found the fact that the road project had been in local plans due to cumulative growth impacts did not supersede the fact that the road work and Lowe's store are directly connected. "We reject the position that a CEQA project excludes an activity that actually will be undertaken if the need for that activity was not fully attributable to the project as originally proposed," Dawson wrote. Finally, the court found that Lowe's defined the term "integral" too narrowly. "Theoretical independence is not a good reason for segmenting the environmental analysis of the two matters," the court ruled. " f the two matters are analyzed in sequence (which was the situation here) and the combined or interactive environmental effects are not fully recognized until the review of the second matter, the opportunity to implement effective mitigation measures as part of the first matter may be lost." Besides, Dawson wrote, any theoretical independence ended when the road realignment was made a condition of approval. In the unpublished portion of the decision, the Fifth District ruled that the city should have submitted the proposed mitigated negative declaration to the State Clearinghouse, notified the Public Utilities Commission and Department of Fish and Game, and provided for a 30-day public review period. The court rejected the citizen group's arguments about urban decay, traffic, erosion and other potential impacts. The court ordered the city to set aside approval of the Lowe's store and to "complete an environmental evaluation of the entire CEQA project." The Case: Tuolumne Citizens for Responsible Growth, Inc. v. City of Sonora, No. F051508, 07 C.D.O.S. 11881, 2007 DJDAR 15335. Filed October 2, 2007. Modified October 31, 2007, at 2007 DJDAR 16439. The Lawyers: For Tuolumne Citizens: William Yeates, Kenyon Yeates, (916) 609-5000. For California Gold Development Corporation: Philip Atkins-Pattenson, Sheppard, Mullin, Richter & Hampton, (415) 434-9100.

Q: Your name for the record? A: A Sincere Friend of Fresno. Q: What's your line of work? A: I write about cities that get screwed over by developers. Q: That's interesting. Let's cut to the important part. Do you think Donald Trump, president and chairman of The Trump Organization of New York, is trying to screw over California's sixth-largest city? A: Not necessarily. As one city resident testified before the Fresno City Council on November 19 in favor of Trump's intended acquisition of the 480-acre Running Horse golf course development, Trump is not in Fresno because he cares about poverty in the west side of the city. He may not even like raisins all that much. Trump wants Running Horse because he sees the potential of the course, which could become his seventh golf property in California. (He is also building courses in the Caribbean and in Scotland.) Q: How do you know Trump doesn't like raisins? A: I sent him a panettone once that was returned unopened. By the time the package came back, the cake was totally stale. You couldn't even toast it. Q What do you think of The Donald himself? A: That he's smarter than he looks, that he uses his boorishness and charm alternately to disarm people and that he's a pretty canny guy. Q: Would you ask him to decorate your home? A: Maybe, if I lived in a brothel. (Sniggers to himself.) Q: Why is Trump asking the city to get involved in his purchase of Running Horse? A: Well, Trump had been negotiating with the current developer of the project since last March, until negotiations broke down in July. Q: Why did negotiations fall apart? A: It's not clear. Trump, in a conveniently leaked letter, claimed that the owners were not willing to "make a deal." The owners' lawyer said at the time there were unresolved issues about the owner paying a fee for the use of Trump's name, which I don't understand, unless the owner wanted to retain ownership and hire Trump to operate the property. Q: What was the real reason? A: Trump and his people probably lost confidence in the ability of the current developers to assemble the entire property from some hold-out property owners. One party in particular owns 20 acres in the middle of the place and has been asking nearly $6 million for a parcel with an assessed value of about $900,000. Q: How can people demand such an outrageous mark-up on the value of land? A: Dunno. Maybe because the fellow who wants to buy it is named Trump? Q: How did Trump's strategy change at that time? A: He realized that the city had some powerful tools in its belly bag, including powers of eminent domain, that even jillionaire developers from New York can't buy. Q: What utterly inappropriate and exploitative terms did Trump attempt to impose on the county seat of Fresno? A: He wanted the city to buy the entire property on his behalf, all 30-odd parcels, and would accept nothing less than a complete conveyance, thank you very much. Q: What were the somewhat more reasonable terms the city talked Trump into? A: Trump would acquire the 90% of the parcels that presented few problems, while the city would take on the tire-biters, including the infamous 20-acre holder-outer. Trump also agreed to provide a $10 million letter of credit to cover any possible loss by the city. Q: What is the city's likely investment in the deal? A: Something between $3 million and $7 million, according to City Manager Andrew Souza. Q: So Trump is asking the city, in effect, "Let's you and him fight?" A: More like, "Let's you and him make a date to meet in eminent domain court." Q: The purpose of which… A: …Is to save The Donald a few mil, assuming that the city can acquire the parcel, and later sell it to him for something close to the assessed value of the land rather than some wildly inflated price. After all, a developer should not have to put up with some guy trying to speculate on real estate, should he? Q: Please outline the various ridiculous and outlandish claims on behalf of the project made by that otherwise admirable man, His Honor Alan Autry, mayor of Fresno. A: During the November 19 council meeting, Autry described the deal as possibly the most important the council would ever vote on. He also claimed that a single PGA tournament could bring $40 million to the city, and the course might attract as many 25 tournaments, implicitly generating up to $1 billion! Q: Wow, that's quite a load. Please outline the concatenation (i.e. series of causal connections) that His Honor made between golf course development and early childhood education. A: "Poverty is reduced, and when poverty is reduced, crime is reduced, and when crime is reduced, hope increases." That's really what he said — about a golf course. Listen to the tape. He even took a second run at it: With the decrease in crime, west Fresno will experience a "lower drop-out rate daddy has a job and can be there to mentor the child. It's not a far stretch." Q: Yeah, we left "far stretch" behind a long time ago. So do you think that a Trump-owned golf course will be a "positive revenue generator," as the econ-dev folks like to say? A: Oh, sure. Q: And what economic benefits do you see for west Fresno from this successful golf course? A: The property surrounding the course may appreciate slightly in value. We may see some slightly higher end retail along the road leading to Running Horse. But relief from poverty is a crock. Golf courses do not employ many people, maybe a couple of dozen. Plus, the golf course is not a redevelopment project, so the revenues from the project will not necessarily be funneled back to the neighborhood. The benefactors are Trump and the city treasurer, not the poor schmuck in West Frez. Q: Lord, how did you become so cynical? A: By writing about deals like this.

Environmental groups and land trusts have completed four major land acquisitions in four different parts of the state. To varying degrees, the acquisitions were intended to prevent development and preserve or enhance natural resources. In southern Sonoma County, the Sonoma County Land Trust acquired 1,657 acres from a wine-growing family. North of Lake Tahoe, the Trust for Public Land and Truckee Donner Land Trust acquired the 1,462-acre Waddle Ranch in the Martis Valley. Near Lassen Volcanic National Park, The Nature Conservancy (TNC) bought a 1,440-acre complex of fields known as Child's Meadow. The Nature Conservancy also bought a 1,350-acre chunk of the Ramona Grasslands on the edge of San Diego County's backcountry. The land purchases are unrelated except that they all were completed in October or November. All except for the Child's Meadow deal involved a combination of public and private funding. Sonoma County The Sonoma County Land Trust has focused on acquiring properties on the north end of San Pablo Bay for years and now has extensive holdings along the bay's waterfront and marshes. The latest purchase involved land owned by the Roche family, who owns the nearby Carneros Estate Winery. The rolling, oak-studded property is adjacent to Tolay Lake Regional Park, which is being developed by the Sonoma County Regional Parks Department. The $13 million purchase was funded with $5 million from the Gordon and Betty Moore Foundation, and smaller contributions from the Coastal Conservancy, the Wildlife Conservation Board and the Sonoma County Agricultural Preservation and Open Space District. "It's a beautiful piece of property," said Maureen Middlebrook, community affairs officer for the open space district. "It was meant for development. But it connects to a number of other properties that have been conserved." The Roche family had purchased the property intending to plant vineyards. That never happened, their winery went bankrupt, and now the Land Trust has taken possession. The plan is to provide the land to the regional parks agency so that it may be added to the 1,700-acre Tolay Lake park property, which conservation groups acquired only two years ago. Importantly, the Roche property provides connections from the low-lying hills to the bay front. Between the Land Trust, the parks department, the San Pablo Bay National Wildlife Refuge and state properties, about 20,000 acres are preserved at the north end of the bay. More information: http://www.sonomalandtrust.org / Waddle Ranch In 2003, Placer County approved the Martis Valley community plan (see CP&DR Local Watch , March 2002). Although the plan actually scaled back allowable development in the valley between Lake Tahoe and Truckee, environmentalists were outraged at the potential for 6,000 additional housing units. Led by the group Sierra Watch, environmentalists sued over the plan's environmental impact report and won. Afterward, environmentalists, the county and developers reached a settlement that permits some development, sets aside more land for conservation and imposes a conservation fee on new development. Owned by the Pritzker family of Hyatt Hotels fame, Waddle Ranch had been designated in the community plan for 1,000 housing units. The Pritzkers had sought approval for 600 housing units, a hotel and a golf course. Instead, the Trust for Public Land announced in November that it had completed purchase of the property for $23.5 million. Development impact fees will cover $10 million of the cost (the county advanced $5.6 million in October), with other funding coming from the Wildlife Conservation Board, Truckee Tahoe Airport District, developer East-West Partners, foundations and donors. The ranch is key, say environmentalists, because it is next to a national recreation area and a federal wildlife refuge. A longtime cattle ranch, the property already has a well-established network of trails. The Truckee Donner Land Trust, which was instrumental in the deal, intends to expand on the trail system before the property is turned over to the airport district. More information: http://www.tdlandtrust.org/inthenews.html Child's Meadow Development pressure in eastern Tehama County is light compared with that in the Tahoe region. Still, the owners of a cattle ranch commonly called Child's Meadow, roughly 10 miles south of Lassen, had made it known they were talking to a developer about a golf course resort. Instead, The Nature Conservancy used its own funds to acquire the property for an undisclosed amount. "These mountain meadows are under a lot of development pressure," said Jake Jacobson, TNC's Lassen foothills project director. "There is a limited number of mountain meadows. They are almost analogous to waterfront property." Child's Meadow provides seasonal habitat for the largest migratory deer herd in California, as well as for migratory birds, Jacobson said. TNC is still working out a management plan for the property, but it does intend to permit summertime cattle grazing. The organization likely will restore a stream that runs through the meadow and feeds Dry Creek, an important fishery, Jacobson said. More information: http://www.nature.org/wherewework/northamerica/states/california/press/childs101007.html Ramona Grasslands In Southern California, TNC announced its latest purchase in the 8,000 acre-Ramona Grasslands, the last large grassland remaining in San Diego County. The $11 million purchase was funded with $5.5 million in federal endangered species conservation fund grants, $2.5 million from the state Resources Agency, $2 million from the Wildlife Conservation Board, and $1 million in private donations. The acquisition means TNC now controls about 40% of the Ramona Grasslands, which is nearly surrounded by housing subdivisions. The latest acquisition from the Gildred family includes grassy fields, chaparral, coastal sage scrub and woodlands that contain rare Englemann oaks. Four protected species live in the grasslands — the Stephens' kangaroo rat, the California gnatcatcher, the arroyo toad and the San Diego fairy shrimp — as do 13 species of raptors. Again, TNC intends to permit some measure of cattle grazing on the property. "We're finding that carefully designed grazing programs can be a very effective conservation tool," said Chris Basilevac, a senior project director for TNC. "Compared to other methods, it's low-cost and reduces the use of herbicides. More information: http://www.nature.org/wherewework/northamerica/states/california//features/ramona.html

The state Department of Water Resource (DWR) has received harsh criticism from State Auditor Elaine Howle for the department's administration of a flood protection corridor program. The auditor found that DWR lacked objective criteria for scoring applicants when it awarded $28 million in bond funds to five projects in 2001, and did not require mandated information from applicants when it awarded $29.1 million in 2003. The money for those grants, plus a remaining $3 million, comes from Proposition 13 approved by voters in 2000. Last year, voters added $330 million for similar flood protection projects via Propositions 1E and 84. Howle recommended DWR improve its selection and monitoring processes before spending the money. The auditor specifically questioned DWR's decision to award $17.6 million to The Nature Conservancy in 2001 for acquisition of 9,200-acre Staten Island, in the San Joaquin County portion of the Bay Delta. "Water Resources has yet to implement a worthwhile flood protection project on the property," the auditor reported. "Although Water Resources contends that Staten Island has already achieved significant flood protection benefits from the standpoint of preventing future development in an area prone to flooding, its contention is questionable considering the current legal restrictions prohibiting such development." The Nature Conservancy received a similar grant from the Cal-Fed Bay Delta project to complete the Staten Island acquisition. At the time, other environmental groups questioned the project because it provides for no public access to what remains private farmland. The auditor also questioned DWR's monitoring of a $4.75 million grant to the City of Santee in San Diego County. The department has received only two progress reports and has not contacted the city since Mach 2004, even though Santee never provided a requested audit. Much of the questioned activity occurred under the Davis administration and then-DWR Director Tom Hannigan. Current DWR Director Lester Snow told the Sacramento Bee the department would provide a ranking system for future project applications. But Snow also defended the Staten Island purchase, and DWR questioned a number of Howle's conclusions. The report, including DWR's response, is available on the state auditor's website at http://www.bsa.ca.gov/pdfs/reports/2007-108.pdf .

Solimar Research Group Launches New Web Site "Virtual Library" Contains 45 Research Reports Solimar Research Group, a land-use policy firm based in Southern California, has just launched a revamped web site ( www.solimar.org ) providing much more information about the firms' products and services – as well as a "virtual library" containing 45 research reports the firm has produced since 1999. "The new web site is not only more attractive, but it really gives people the information they need about Solimar and about the land use issues we deal with," said William Fulton, Solimar's president and CEO. The web site was designed by Urban Insight of Los Angeles. The web site also contains blogs from staff members at Solimar and its sister publication, California Planning & Development Report , as well as news reports on Solimar's work throughout California and the West. Recently news articles include Solimar's views on land-use planning and fire hazards in Southern California – reported by national columnist Neal Peirce – and transferable development rights programs in Santa Barbara County, California, and Gallatin County, Montana. The virtual library is a comprehensive library of almost all research reports Solimar has worked on since it was founded. The first report was a summary of growth management policies throughout Southern California in the 1990s, which was originally issued by Claremont Graduate University Research Insitute; the most recent is a guidebook for developing mixed-use districts for the Torrance/Redondo Beach area of Los Angeles, issued by the South Bay Cities Council of Governments. Solimar's mission is to provide solid research and policy analysis on land-use and related issues so that government land-use policymakers can make informed decisions. The firm's main product lines include: • Infill Development Policies and Site Identification • Growth Management and Smart Growth Policy Implementation • Transferable Development Rights Feasibility Analyses

Housing ManagerCity of Santa Monica, CA The City of Santa Monica is seeking a Housing Manager to oversee the City's development, financing and preservation of affordable housing and housing assistance programs.  Santa Monica is known for its diverse residential neighborhoods, numerous recreational and art venues, vibrant commercial districts, exciting mix of retail and high-profile corporations and a strong commitment to housing opportunity.  Serving a population of 86,000 in Los Angeles County, it is one of nation's most desirable urban coastal communities. Reporting to the Director of Housing and Economic Development, the Housing Manager oversees a division supported by 23 staff.  The ideal candidate will be an exceptional leader of people and programs and exhibit a genuine and compassionate connection to the stakeholders he/she serves.  A demonstrated ability to think and act creatively is a prerequisite for success in this role.  A Bachelor's degree is required. Total annual guaranteed compensation up to $135,810, plus potential performance bonus of up to 10% of base.  Signing bonus of 10% of base will be awarded to the candidate selected. Competitive benefits package also provided.  Visit our website for detailed brochure and to apply online:  www.tbcrecruiting.com .  The closing date for this recruitment is Friday, December 28, 2007 . Teri Black-Brann  •  tel 310.377.2612 Carolyn Seeley  •  tel 714.974.2284 Teri Black & Company www.tbcrecruiting.com

The downtown in the East Bay city of Hayward has many features that any redevelopment agency would envy — an Amtrak station, a Bay Area Rapid Transit station, historic buildings, and a modern grocery store with additional shops. Soon to come are a 12-screen movie theatre and more retail shops. But what may be helping the downtown even more is years of work to create additional housing in and around downtown, within walking distance of BART and its connections to jobs in Alameda, Contra Costa and San Francisco counties. During the past decade, the downtown's collection of vacant and underutilized lots has morphed into infill, transit-oriented developments of town homes and condominiums. More than 800 units have been built, and they may soon be followed by another 800 similar residences in the Burbank Cannery area, only one-half mile away. The city has provided financing for little of the new construction. Instead, it has focused on buying parcels that developers can build on, and then selling that land at below market rates, according to Maret Bartlett, the city's redevelopment director. City Councilman Bill Ward estimates that 4,500 new residents have moved downtown in recent years. Ward says the city can accommodate even more residential growth in its redevelopment area. He pointed to several old industrial areas that can be zoned for housing, all within walking distance of the Hayward BART station. But Ward, who also is a planning consultant and real estate agent, said the city will have to see how a housing slowdown throughout Northern California affects future demand for housing. The city does benefit, however, from a location equidistant to both the San Francisco and San Jose job markets, and from low land costs relative to other cities in the Bay Area. Hayward, which has a population of about 150,000, grew rapidly after World War II as a largely blue-collar suburb of apartments and single-family homes. Today, many of its older homes are rundown. But the new downtown development has provided a number of midsized dwellings for young families, empty nesters and those who want the convenience of commuting on public transportation. At one point, the downtown was home to many retail stores, and redevelopment focused on retail, said Ward, who has been on the council for 24 years. But 12 years ago the council shifted focus to housing. "Most of our retail uses moved out, "said Ward. "We had to respond to the market for Hayward." Stuart Cohen, executive director of the nonprofit Transportation and Land Use Coalition, said Hayward is "building in the right direction" with its downtown housing projects. But many of the projects are only two stories tall, and Cohen wondered why the city has not aimed higher. With such close proximity to mass transit, the location is good for higher-density development, he said. "They're doing it in the 1990s style of TOD ," Cohen said. "We would want more. The more people you can get by transit, the more vibrant the neighborhoods can become." Councilwoman Barbara Halliday, who was on the Planning Commission when many downtown housing units won approval, defended the two-story designs as "in scale with the surrounding buildings." With the exception of one 11-story building, downtown Hayward is composed of low buildings, she noted. Both Cohen and Halliday noted that Hayward is planning mid-rise housing near a BART station in the south end of town. However, the proposed taller buildings have stirred controversy among residents. The Burbank Cannery area provides an opportunity to expand downtown's reach and population. Developer Citation Homes Central first began looking at the Burbank Cannery several years ago, recalled Charles McTeag, vice president of land acquisition and development for the Santa Clara-based company. At the time, McTeag said, company officials realized "this is a really well-located city in terms of its access to transportation and jobs." And Hayward officials, he said, were motivated to revitalize the area. Bartlett said the city knew that developers would covet the approximately 70 acres in the Burbank Cannery area once the old Hunts Wesson cannery went out of business. The site lies west of downtown, with the BART station in between the old cannery and downtown. The cannery area was not been part of Hayward's original redevelopment district in 1975, but was added in 1998. Bartlett said city leaders recognized the cannery area's potential for high-density residences near public transit, and decided to plan for that instead of for single-family homes, which are more common in the suburban Alameda County terrain. In addition to housing at the old cannery site, an overcrowded elementary school in the area is being replaced with a new two-story structure for 900 students, along with renovations and improvements to the adjacent 14-acre Cannery Park. In addition, walking trails and parkland are being added to the area, in part to encourage pedestrian use. To provide affordable housing, a 60-unit senior citizens apartment complex is under construction nearby as well. The commercial core of Hayward's downtown, which has also undergone redevelopment, is now waiting for a few more sparks to create a vibrant district where shoppers and evening revelers feel welcome. Like many struggling redevelopment districts, Hayward needs more pieces to fit together before that happens. And it isn't as if Hayward hasn't tried: historic commercial buildings, many of which sit on the Hayward earthquake fault, have been retrofitted in recent years. A downtown supermarket moved from an outmoded building to a 60,000-square-foot building on the east end of downtown in 2002. Albertsons shares that shopping center with a number of other retail tenants. A new city hall opened downtown in 1998. A few blocks away, the new Cinema Place is scheduled to open in fall 2008 with a dozen movie screens and eight to ten restaurants. The city has added several new parking lots to the area, too. "We're hoping Cinema Place provides additional stimulus to retail and restaurants," said Bartlett. Although downtown's sidewalks and lighting have been upgraded, city officials have heard frequent complaints that downtown panhandlers, empty buildings, trash and low-level crimes keep visitors and shoppers away. The Hayward City Council is expected to vote in early December on spending several hundred thousand dollars on new efforts to clean up downtown, Bartlett said. It's not a problem unique to Hayward. "A lot of downtowns have issues like this," Bartlett said. Contacts: City Councilman Bill Ward, (510) 583-4357. Maret Bartlett, Hayward Redevelopment Agency, (510) 583-4260. Charles McTeag, Citation Homes Central, (408) 985-6071. Stuart Cohen, Transportation and Land Use Coalition, (510) 740-3150.

Developers are beginning to go green because it makes economic sense. But they're probably not going green enough to satisfy Jerry Brown. That was the impression I got last week at the annual Emerging Trends in Real Estate conference put on by the Urban Land Institute, San Diego-Tijuana Council. Dusting aside the typical numbers-and-market-glimpses approach, ULI devoted the meeting to the theme of "sustainability" and even brought in sustainability guru-ess Hunter Lovins to give a speech. The most remarkable aspect of the day was the matter-of-factness with which all the developers who spoke accepted that green building standards are inevitable. "It's no more than a 2% increase in cost for silver LEED certification," said Matt Lituchy, managing director of the Jay Paul Co. "It's 4-6% for gold and more for platinum. But half of that is getting the certification from the Green Building Council." Jonathan Bradhurst, senior vice president for United States development for Westfield Corp., the shopping mall owner, said his company would be retrofitting University Town Center in San Diego – not far from the hotel where the ULI conference was held – to be as green as possible. "Five-six years ago you couldn't find contractors who would do it," said "Now it's inevitable. As a simple business decision, it makes sense to build as efficiently as you can." The bottom line? Green building will be the norm in three to five years, and it won't cost anything more than regular building. But there's a difference between building a green building and creating a greener community with fewer greenhouse gas emissions – and that's something that developers are apparently still adjusting to. While the developers practically high-fived each other over green building, a deathly silence fell over the meeting room when Deputy Attorney General Sandra Goldberg spoke about greenhouse gas emissions. She insisted that not all projects would require an analysis under the California Environmental Quality Act to assess the impact of greenhouse gas emissions. But in responding to various questions, she used the same phrase over and over again: "feasible mitigation measures". "A lot of people are asking whether you have to incorporate GHG for a project that is already doing an environmental impact report," Goldberg said. "For me there is no discussion. The EIR should consider climate change impacts and feasible mitigation measures." The pretty clear implication being: whatever the attorney general's office decides is feasible has to be included as a mitigation measure. Otherwise … well, they are lawyers over there. They'll probably sue.