The state Supreme Court has depublished a Sixth District Court of Appeal opinion in a case involving the water analysis for a 28-lot subdivision in northern Monterey County. The Sixth District ruled that the county need not prepare an environmental impact report for the development because a mitigated negative declaration contained "overwhelming, uncontradicted evidence that the project has an ample water supply." The court rejected the contention that an email from a county environmental health specialist and testimony from a well drilling company owner provided the basis for a fair argument that the subdivision may have a significant impact on water supply (see CP&DR Legal Digest , May 2007). The state high court declined to hear an appeal of the Sixth District's decision, but the depublication order means the opinion may not be cited as precedent. The case is LandWatch Monterey County v. County of Monterey , No. H028659.

The California Supreme Court has recently accepted for review three land use cases, including the court's fifth California Environmental Quality Act (CEQA) case since 2003. The CEQA case concerns the definition of a project, a subject that has become increasingly sticky. The Second District Court of Appeal ruled that the City of West Hollywood should have completed an environmental impact report before entering into a conditional agreement with a nonprofit housing developer. The project involves the restoration of a Colonial revival mansion and the construction of a new apartment building on the same property, all to provide about 28 affordable apartments for senior citizens. The city argued unsuccessfully that it did not have to conduct environmental review at the contract stage because the agreement was contingent upon completion of environmental review later (see CP&DR Legal Digest , April 2007). The Second District's decision appeared to conflict with a recent decision from the Third District, which ruled the McCloud Community Services District's conditional agreement with Nestlé for construction of a water bottling plant was not yet a project under CEQA (see CP&DR Legal Digest , March 2007). The specific question in the case for the state Supreme Court is this: Does the agreement between the city and the developer that describes the proposal in detail — but which expressly withholds any commitment to a definite course of action and is conditioned upon CEQA compliance — constitute "approval" of a "project" necessitating environmental review? The case is Save Tara v. City of West Hollywood , No. S151402. The second case accepted for review is a familiar one to the state high court. It involves Santa Cruz County's regulation of second dwelling units. Three years ago, the state Supreme Court reinstated property owner Steven Travis's lawsuit challenging second unit permit conditions imposed by the county that restricted unit occupancy to low-income households, senior citizens or family members, and imposed sliding-scale rent controls. The conditions were based on the county's second unit ordinance. The Sixth District Court of Appeal ruled that it was too late for the property owner to challenge the regulations, but the state Supreme Court in Travis v. County of Santa Cruz , 33 Cal.4th 757 (2004) ruled that the property owner could bring an "as applied" challenge to the restrictions (see CP&DR Legal Digest , September 2004). The case then returned to Santa Cruz County Superior Court, where Travis again argued that the conditions were unconstitutional and violated various state laws, including the Unruh Civil Rights Act and the Costa-Hawkins Rental Housing Act, which limits local rent control regulations. The trial court ruled against Travis, and he appealed again. In an unpublished decision, the Sixth District rejected all of the claims except one. The court ruled that the ordinance's preference for senior citizens is age discrimination in violation of state law. The case now heads back to the state Supreme Court for a final decision on the merits. The case is Travis v. County of Santa Cruz , No. S150695. The third case accepted for review is a Proposition 218 case from the Town of Tiburon, in which the First District Court of Appeal ruled that a property owners' lawsuit challenging a special assessment to pay for undergrounding utilities was filed too late. The court rejected property owners' contention that they should be able to challenge the assessment under Proposition 218, which requires an election for special assessments (see CP&DR Legal Digest , April 2007). The case is Bonander v. Town of Tiburon , No. S151370.

The Coastal Commission had the authority to order removal of a private, three-hole golf course that violated development permit conditions, even though the course was in place for 18 years before the Commission took action, the Sixth District Court of Appeal has ruled. The unanimous three-judge appellate panel overturned a trial court judge who ruled that the Coastal Commission's years of inactivity in enforcing the permit conditions barred the Commission from ordering the golf course's removal. The Sixth District instead said that the property owner's real quarrel is with the previous property owner and a title company, neither of which revealed that an open space easement requiring native vegetation on the site of the golf course had been recorded. In 1983, the owners of a 1.67-acre parcel on 17-Mile Drive in the Asilomar Dunes area of Pebble Beach applied to the Commission for a development permit to demolish an existing house and build a larger one. The Commission approved the permit with a condition that required 86% of the property be subject to an open space easement. In addition, the Commission required the property owners to prepare a landscape and maintenance plan for removing ice plant and other exotic plants, and for revegetating the lot with native species. The property owners, Bert and Bonnie Bonanno, recorded the easement and submitted the plan. But they later changed the landscape plan without notifying the Commission and instead built a three-hole pitch-and-putt golf course adjacent to the new house in 1985. In 2000, Robert and Maureen Feduniak purchased the property for $13 million. The Bonannos did not disclose the easement or permit restrictions, and Old Republic Title Company did not find them. So it was a surprise in 2002 when the Del Monte Forest Foundation informed the Feduniaks that the golf course did not comply with the open space easement. The foundation notified the Coastal Commission, and in December 2002 the Commission asked the Feduniaks to submit a removal and restoration plan. When they declined the request, the Commission issued a cease-and-desist order demanding revegetation of the entire area around the house with native species. The Feduniaks then sued the Commission. Monterey County Superior Court Judge Michael Fields ruled that the Commission was prohibited — estopped, in legal terms — from enforcing the cease-and-desist order against the Feduniaks. Essentially, Judge Fields ruled that the Commission should have known of the violation and taken action earlier. Because the Commission had done nothing, the Feduniaks relied on the Commission's inactivity to buy the property, Fields reasoned. However, the Sixth District determined that Fields, who said the Commission should have known about the golf course violation because of its prominent location, got it wrong. Although commissioners and staff members may have seen the golf course, it is "unrealistic" for them to be aware at all times of a property's permit history, Presiding Justice Conrad Rushing wrote for the appellate panel. The Commission took action as soon as it learned of the permit discrepancy, he noted. " e have found no authority suggesting that the Commission has a statutory duty to inspect all properties for compliance with conditions after a permit has been issued, let alone a duty to do so on an ongoing basis for as long as the permit is applicable," Rushing wrote. "Likewise, we have found no authority indicating that the Commission owes a duty of care to future property buyers to regularly monitor property for easement violations so as to prevent them from buying property that is in violation of application restrictions." Estoppel in this case also required the Feduniaks to have bought the property in reliance on the Commission's inaction. But there was no evidence the Commission knowingly assented to the golf course, and there was no interaction between the Commission and the Feduniaks prior to the property purchase, the court determined. Moreover, the court noted, estoppel is enforced against public agencies only in situations in which a "strong rule of policy adopted for the public's benefit" would not be nullified, and in which the injustice to the other party would outweigh the public interest. These conditions were not present here, the court found. "Estopping the Commission does not punish the Commission. It would, however, injure the public, which has a strong interest in a scenic, natural coastline with native vegetation, because it would indefinitely postpone the restoration of the site to that state, a restoration that has already been delayed for over 20 years," Rushing wrote. The property owners have asked the state Supreme Court to review the Sixth District's decision. The Case: Feduniak v. California Coastal Commission , No. H028931, 07 C.D.O.S. 3248, 2007 DJDAR 4067. Filed March 27, 2007. The Lawyers: For the Commission: Christiana Tiedemann, attorney general's office, (510) 622-2100. For Feduniak: Michael Masuda, Noland, Hamerly, Etienne & Hoss, (831) 424-1414.

The environmental impact report for an aggregate mine expansion in Merced County has been invalidated by an appellate court because the document's description of the project was "curtailed and shifting," water and traffic impacts were understated, baseline assumptions were not identified and mitigation measures were deferred. Much of the EIR's inadequacy stemmed from confusion over whether the project would increase annual mine production levels. The EIR was unclear on actual production, stating that the previous four years had seen an average production of 240,000 tons of aggregate per year, and that the project would provide for an additional 30 years of mining at 260,000 tons annually. However, the conditional use permit that was the subject of the EIR would allow production of up to 550,000 tons of aggregate annually. "By giving such conflicting signals to decision-makers and the public about the nature and scope of the activity being proposed, the project description was fundamentally inadequate and misleading," the Fifth District Court of Appeal ruled. In 2000, Jaxon Enterprises applied for a modification to a 1993 conditional use permit (CUP) for an aggregate mine and processing operation outside of Le Grand, roughly 15 miles east of Merced. The original 90-acre mining site was expected to remain productive for only five more years, and the proposed expansion of up to 304 total acres would provide for an additional 30 years of activity. The Merced County Planning Commission approved the project and certified the EIR in November 2004. The following month, the Board of Supervisors rejected project opponents' appeal. The San Joaquin Raptor Rescue Center, a group called Protect Our Water, and the Le Grand Community Association sued the county, alleging numerous California Environmental Quality Act (CEQA) and general plan discrepancies. Merced County Superior Court Judge Ronald Hansen rejected all of the opponents' contentions. A unanimous three-judge panel of the Fifth District, however, overturned the lower court. On appeal, the project opponents argued that the project description was unstable and misleading. The court agreed. Much of the EIR's analysis was based on a production level of 260,000 tons per year, even though the permit was for a maximum of 550,000 tons annually. "These curtailed and inadequate characterizations of the project were enough to mislead the public and thwart the EIR process," Justice Stephen Kane wrote for the court. Using this same reasoning, the court upheld some of opponents' objections to the EIR's analysis of groundwater, surface water and traffic impacts because the analysis did not consider the 550,000-ton maximum production level. As for the baseline for measuring project impacts, the county apparently used a production level of 240,000 tons. The court ruled that evidence supported use of that baseline figure — but that the EIR never explained it. " xisting conditions are not defined or quantified," Kane wrote. "And although the four-year production average of 240,000 was apparently used in the impact section of the EIR, nowhere is that fact plainly stated. Such an omission clearly falls short of the requirement of a good faith effort at full disclosure. The decision-makers and general public should not be forced to sift through obscure minutiae or appendices in order to ferret out the fundamental baseline assumptions that are being used for purposes of the environmental analysis." The court also found that the EIR improperly deferred mitigation of potential impacts to vernal pool and burrowing owl habitats. The EIR called for follow-up surveys and subsequent management plans that would have to be approved by state and federal agencies. The county argued that the EIR followed provisions in the CEQA Guidelines regarding subsequent management plans that are based on performance standards in an EIR. But the court found that the EIR contained no performance standards or criteria for future management plans. "The success or failure of mitigation efforts in regard to impacts on such vernal pool species may largely depend upon management plans that have not yet been formulated, and have not been subject to analysis and review within the EIR," the court ruled. "The fact that the future management plans would be prepared only after consultation with wildlife agencies does not cure these basic errors under CEQA, since no adequate criteria or standards are set forth." In an unpublished portion of the opinion, the court ruled that the EIR's analysis of project alternatives was adequate, and that the project did not conflict with the county general plan. But the court did find that some responses to comments on the draft EIR were inadequate. The Case: San Joaquin Raptor Rescue Center v. County of Merced , No. F050232, 2007 DJDAR 4721. Filed April 10, 2007. Modified April 11, 2007 at 2007 DJDAR 4865. The Lawyers: For San Joaquin Raptor Rescue Center: Donald Mooney, (530) 758-2377. For the county: James Fincher, county counsel , (209) 385-7564. For Jaxon Enterprises: Thomas Terpstra, Herum, Crabtree, Brown, (209) 472-7700.

I simply adore being in Cannes, with its splendid, high-end hotels, its outdoor cafes, the elegantly turned-out couples strolling on the boulevard, the nearly naked young people frolicking at the water's edge, unembarrassed by their perfectly toned bodies and golden skin….What's that? I am mistaken? We're not on the Riviera? Oh, naughty carissima , you are trying to fool me with a cruel joke! This couldn't possibly be… Huntington Beach ? Everybody knows that Huntington Beach is (or was until a few years ago) a lower middle-class beachfront town popular with bikers and bladers. The city is known for having the best waves in Southern California, as well as a group of local surfriders notoriously unfriendly to outsiders. ("Whoops! Sorry that board hit you in the head, dude! Maybe you should try someplace safer!") This is the kind of scene the Beach Boys were fantasizing about when they sang "Little Deuce Coupe" and "Surfin' Safari." But Huntington Beach as a high-end resort? That's the traditional niche of fancy places further south, like Dana Point or Laguna Beach. The scarcity of coastal land, however, coupled with the expectations of "private equity" investors, appears to dictate otherwise. Just look at Pacific City, a 31-acre residential and resort community currently proposed in Huntington Beach. Located immediately east of the Pacific Coast Highway, the development envisions 191,000 square feet of retail space, of which 30,000 square feet will be office space and another 48,900 square feet earmarked for restaurants. A 17.2-acre "residential village" will contain 424 luxury condominiums, together with 92 "hotel branded residences." (These are condos rented out as hotel rooms when the owner is away, with the hotel and owner sharing revenues.) Separately, a boutique hotel would offer 196 rooms, with possibly another 16 units as "fractional residences," which are time-share properties. A statement from the developer, Makar Properties of Newport Beach, promises a project with a hip, beach-front vibe: "Set to feature luxurious and hip retail brands, dining and entertainment; a boutique hotel; upscale residential housing and prime office space, Pacific City will embrace the historical Huntington Beach ‘energy' while providing patrons with cutting-edge amenities and services they haven't seen before," says the official statement. "Destined to be the liveliest spot in Huntington Beach," the press release continues, "Pacific City will also include a wide variety of hip restaurants and bars, several of which will feature live music and outdoor terraces. Options for dining and libations will range from a Chinese bistro and Italian pizzeria to a Mexican cantina and martini bar." The renderings, which are probably conceptual and not final designs, promise the kind of anonymous Mediterranean stucco-and-tile that symbolizes good times in the lexicon of Southern California commercial real estate. The official press releases from Makar Properties make no mention of low- and moderate-income housing units, which comes as no surprise. A spokesperson for the developer said the company has agreed to pay the city a housing fee in lieu of building affordable units in the waterfront project. Neither the developer nor the architect would release a site plan to CP&DR . The city has approved the master plan of Pacific City, while Phase One of the project is still in the entitlement stage, so the developer may be wary of publishing anything not yet approved by the city. A Makar spokesperson said that housing prices were not yet public. My guess would be perhaps $600 to $800 per square foot, or something approaching the upper-middle limit of market rate. I predict the project will be successful, even if it may not meet the needs of the typical homebuyer in Huntington Beach. In the first quarter of 2007, only one in four households in Orange County could afford a median-priced home of nearly $600,000, while only 37% of the same population could afford a condo, according to the California Association of Realtors. One can't quarrel with the fact that ocean-front housing costs the most; the water is the point of sale, and if the beach is a public amenity, beach-front land is not. Yet it may be worth pointing out that the current rage for high-end homebuilding reveals the limitations of a purely lender-driven approach to housing. I suspect the development of Pacific City is sparked less by local market demand than the requirements of private-equity investors, of which there is an extraordinary glut in the real estate market. Capital seeks the largest return, and that means real estate is developed to the "highest and best" use. Here is where the theory of market efficiency may break down, however. The greatest market return is in luxury condos. This type of development product is a sign of the high expectations of investors for assets to produce double-digit returns, and to produce them quickly, ideally in the three- to five-year span. Ironically, this glut of capital and the resulting binge of high-end residential construction is occurring at a time when the majority middle-class families are having a very difficult time finding housing they can afford. From what I can tell, Pacific City looks well planned and well designed, at least by real estate industry standards. But do we actually need more high-end resorts in Southern California? Is the future condition of the California coast to be some version of the French Riviera or something equally expensive? Given today's land economics, especially for scarce oceanfront sites, it seems unlikely that developers can afford to build anything that does not aim for buyers in the top 15% bracket. That said, there seems to be a gap between what the market needs, i.e. homes that working people can afford, and what is provided by projects like Pacific City, which is built for the narrowest and most exclusive stratum. In particular, I would like to know how many local residents of Huntington Beach will be able to buy homes in this luxury development. At this point, though, I think I would rather imagine a beautiful creature purring to me, as she lies on her tummy in the sand. "Stop talking, darling," I can hear her say. "You are just working yourself up over nothing. Now, be an angel and rub some Ban de Soleil on my back."

Land use politics in Monterey County reached a new level of chaos in early June, when voters cast ballots on four land use measures but apparently resolved nothing. Voters provided conflicting direction on a general plan update adopted by the county, rejected a slow-growth general plan initiative, and overturned county approval of an 1,100-unit housing development. The only certainty to emerge from the special election was the dismissal of Measure A, the general plan initiative written by the group LandWatch Monterey County and strongly opposed by developers, landowners and the Monterey County Farm Bureau. But the vote on the county's general plan update, known as GPU-4, was confusing. Voters said "no" to Measure B, which asked if the plan should be invalidated. Yet voters also said "no" to Measure C, a referendum that asked if the plan should be upheld. County Counsel Charles McKee initially advised the Board of Supervisors that the Measure B vote prevailed because it was an affirmative vote — a double-negative really — for the plan and made the referendum irrelevant. That position infuriated slow-growth advocates, causing McKee and supervisors to take a step back. "There's a very good argument that Measure B was successful and the general plan was not repealed," McKee said. "However, the Measure A proponents argue — and I think they can honestly argue this — that the constitutional power prevails." In other words, the state constitution provides voters with the power of referendum, which trumps the Board of Supervisors' legislative act of placing Measure B on the ballot. "Both plans were denied," said LandWatch Executive Director Chris Fitz. "It would be an act of bad faith to try to shove their plan through after it was denied, and we would sue them." Lawsuits and ballot measures have become the primary method of settling land use disputes in Monterey County, although the litigation and voting seem to beget only more litigation and voting. The general plan update is simply an example of the county's planning paralysis. In 1999, officials began work on an update to the heavily amended 1982 general plan, a relatively brief document that relies on area plans for details. A team of staff members and consultants headed by then-County Administrator Sally Reed proposed a plan with sharp growth restrictions. The plan angered developers, landowners and farmers, and the Board of Supervisors rejected it. The board then appointed a "refinement committee" composed of 25 interest group representatives, but the board disbanded the committee two years later for lack of progress. In early 2004, the county released GPU-3, a city-centered growth plan that the Planning Commission endorsed. The same interests that opposed the first draft protested again, and supervisors voted 3-2 to start over with McKee and county planners in charge. In 2006, the county released GPU-4, which the Board of Supervisors adopted 4-1 in January of this year. Endorsed by development interests, the Monterey County Farm Bureau and some affordable housing advocates, GPU-4 calls for growth in approximately 40 nodes in unincorporated areas around the county and permits subdivisions elsewhere. Supervisors also decided to put GPU-4 on the June ballot, but as a negative question: Should GPU-4 be invalidated? In the meantime, LandWatch drafted a general plan initiative largely based on GPU-3. The plan designated five growth areas and directed most other development to incorporated cities. Although supporters quickly gathered adequate petition signatures, a federal district court judge blocked the measure from the ballot because it had not been translated into Spanish. Ultimately, the Ninth U.S. Circuit Court of Appeals ruled in an unrelated Voting Rights Act case that recall and referendum petitions need not be translated into other languages (see CP&DR In Brief , February 2007, October 2006; CP&DR , May 2006). Monterey County supervisors decided to place the LandWatch initiative on the same ballot as their own measure concerning the general plan. And, because GPU-4 opponents did not trust the Board of Supervisors, they qualified a general plan referendum for the ballot, as well. After the June 5 election, the question for — and from — everyone was, "Now what?" "We are going to have to see if there is a process we can get in place to get everybody on the same page," said Supervisor Simon Salinas, a former Democratic state assemblyman. "The extremes need to be ignored." Salinas said that residents of his district — which stretches from the outskirts of the City of Salinas to the San Luis Obispo County line — need places to work and live. But people on the Monterey Peninsula want to exert control over inland growth, he complained. "We can't stop development. We can manage it and do the best we can," Salinas said. "None of us are advocating for paving the fertile Salinas Valley." He recommended using the 1982 plan as a starting point for drafting a new update. But Fitz and other slow-growth proponents contend that starting over is unnecessary. Both GPU-4 and the general plan initiative have a number of quantifiable metrics, such as the number of community growth areas and number of new housing units, and county leaders should simply find the middle ground, Fitz said. Yet opponents of the general plan initiative argue that because voters rejected Measure A, the county should ignore it entirely. In a guest column for the Monterey County Herald , Richard Smith, a wine grape grower and leading Measure A opponent, wrote that the Board of Supervisors should implement GPU-4 and then "invite public comment about how the general plan might be improved." About the only thing people seem to agree on is the need for the Board of Supervisors to make difficult decisions about process and policy. In the meantime, a lawsuit that LandWatch filed over the environmental impact report for GPU-4 remains pending in Monterey County Superior Court, as are numerous lawsuits over a variety of development projects. Contacts: Supervisor Simon Salinas, (831) 755-5033. Charles McKee, Monterey County Counsel, (831) 755-5045. Chris Fitz, LandWatch Monterey County, (831) 375-3752. General Plan Update website: http://www.co.monterey.ca.us/pbi/gpu/ Housing Proposal Remains in Limbo Monterey County's special election also marked the latest chapter in the 25-year saga of Rancho San Juan, a 2,500-acre area between Salinas and the unincorporated town of Prunedale. In a referendum, voters overturned the Board of Supervisors' approval of the 1,100-housing unit Butterfly Village project on about one-quarter of Rancho San Juan. The next chapter is likely to be written by a judge, as project proponents are pursuing two legal claims. The first claim is that the referendum was invalid because it undoes an action taken under court order; the second is a compensation claim for a taking of private property. When Monterey County last adopted a general plan in 1982, officials designated Rancho San Juan as an area for future development. Several years later, the Greater Salinas Area Plan named Rancho San Juan as an "area of development concentration." That plan was extremely contentious, so not until 1998 was a specific plan for Rancho San Juan released. The plan, funded in part by Butterfly Village developer HYH Corporation, essentially called for covering the area's strawberry fields and pastures with housing subdivisions. Opposition was fierce. When it began a general plan update in 1999, the county suspended the Rancho San Juan specific plan process. HYH Corporation sued and in 2001 a Superior Court ordered the county to complete the specific plan for which HYH had paid $500,000. In light of that court order, the county and HYH entered into a stipulated agreement. The county would complete the planning and environmental review processes, and HYH would drop its takings claim. In late 2004, the county did adopt a specific plan calling for about 4,000 housing units and extensive commercial development. The county also approved development of the first phase of the plan, Butterfly Village, a project that would include 30% affordable housing and a neighborhood shopping area. Environmental groups, the City of Salinas and Caltrans sued. Environmentalists also forced a referendum onto the ballot, and voters in November 2005 rejected the specific plan 3-to-1. However, the day before the 2005 election, the Board of Supervisors adopted a revised specific plan that covered only HYH's 671-acre project. Opponents pursued another referendum, and the revised plan lost by nearly 2-to-1 in June. Attorney Mark Blum, who represents HYH head Mo Nobari, pointed out that the county adopted the specific plan under court order. "The county has no legal authority to undo it, especially when it approved a map based on that plan," Blum argued. "The voters' power of referendum is entirely derivative of the elected body's power. They don't have any greater power than the Board of Supervisors." Blum also has revived the developer's takings claim in light of the latest turn of events. Noting that the county has designated Rancho San Juan for growth for 25 years and that Salinas and Caltrans have settled their lawsuit — yet entitlements remain in doubt — Blum said, "This is probably the best set of facts you could have for a takings case." But Julie Engell, who heads the Rancho San Juan Opposition Coalition, called Blum's takings arguments "nonsense." Nobari still owns the land and is able to farm it, so he never lost economic use of the property, she said. The county probably should have returned the money he paid for the specific plan, she said, but, "The people of Monterey County have spent a lot more than he ever has on a specific plan and environmental documents." "Nothing has ever been taken from Mr. Nobari except for his campaign contributions, which have gone for naught," Engell contended. "The people of Monterey County should not have to guarantee the profits on this specific development." A hearing on the validity of the latest referendum is scheduled for Monterey County Superior Court on July 27. Election Results Measure A (general plan initiative): No, 56.3% Measure B (reject the county's general plan update): No, 53.2% Measure C (keep the county's general plan update): No, 55.1% Measure D (uphold Butterfly Village approval): No, 63.7%

Californians are relatively thrifty when it comes to electricity consumption, using less on a per-capita basis than residents of any other state. The average Californian consumed 7,032 kilowatt-hours of power in 2005, according to the California Energy Commission. That's not much more than half the U.S. average of 12,347 kilowatt-hours. Still, population growth of nearly half a million people per year is driving an increase in overall electricity demand, prompting the state's utilities to search for new energy sources. In the past, the solution was relatively straightforward: Build a generating plant, most likely powered by natural gas to comply with the state's strict air-quality standards, and wire it to the grid. Carbon-based fuels, however, are decidedly out of favor in California in these days of heightened concern about global warming, and new laws are forcing providers to explore greener energy alternatives. But as utilities try to find and tap environmentally superior electricity sources, they are finding that even "green" power development often has a price tag environmentalists and their supporters are unwilling to pay — namely, the degradation of parks and natural areas. Under a law passed last year — SB107 by Sen. Joe Simitian (D-Palo Alto) and Senate President Pro Tem Don Perata (D-Oakland) — California must obtain 20% of its electricity from renewable energy sources by December 31, 2010. The law defines those sources as biomass, solar thermal, photovoltaic, wind, geothermal, fuel cells using renewable fuels, small hydroelectric generation of 30 megawatts or less, digester gas, municipal solid waste conversion, landfill gas, ocean wave, ocean thermal, or tidal current. Qualifying generating plants need not be located in the state. In fact, they don't even have to be located in this country, although the law stipulates that they must be connected to the grid serving the Western United States. The mandates set by SB107 are part of a broader push in California to address the greenhouse gas emissions that contribute to global climate change. The most far-reaching of those is AB32, also signed into law last year. The statute requires the California Air Resources Board to develop regulations and market mechanisms to reduce California's greenhouse gas emissions by 25% by 2020. Renewable electricity sources currently provide 11% of California's power. The Simitian-Perata bill requires the state nearly to double that over the next three years. This accelerated push for greener electricity has set off a small stampede as utilities scramble to locate potential generating sites and link them to the grid. Of the state's five major utilities, only Southern California Edison (SCE) — which derives 16% of its electricity from renewables — is anywhere close to meeting the SB107 mandate. Pacific Gas & Electric, serving Northern California, is next at 13%, followed closely by the Sacramento Municipal Utility District at 12%. At the back of the pack are San Diego Gas & Electric (SDG&E) at 8%, and the Los Angeles Department of Water and Power at 6%. So far, most of the utilities' efforts at providing green power have focused on transmission lines, long the Achilles heel of the statewide power grid and assuming even greater importance as renewables move to the forefront. Unlike the natural gas-fired generators that historically have provided the biggest share of California's electricity, power plants using many of the most promising renewable technologies cannot be sited just anywhere. Wind power, for example, can only be generated where there's lots of steady wind. Solar cells work best in the deserts and hot valleys of the interior. Small hydro plants require running water. Geothermal requires underground reservoirs of hot water or at least hot rocks. Utilities gambling on renewables must, in effect, go find the power — typically in relatively remote rural areas — and obtain regulatory permission to install transmission lines connecting the new generating sites to the state's major urban areas, where most customers live. Perhaps the most contentious "green" power proposal currently before regulators is the Sunrise Powerlink, a high-voltage transmission line proposed by SDG&E. Portrayed by its proponents as a way to tap "clean, renewable energy sources such as wind, solar and geothermal" in the Imperial Valley and eastern San Diego County, the 150-mile transmission line would allow SDG&E to import 1,000 megawatts of electricity, enough to serve about 650,000 homes. The preferred transmission corridor, however, would cut through several prized natural areas, including Anza-Borrego Desert State Park, a sprawling swath of arid canyons, mountains and valleys that are popular with recreational users and home to numerous protected species. Although SDG&E has proposed installing the new line along an existing utility corridor, the project would require replacing a series of 50-foot wooden power poles with steel towers up to three times as tall. Consequently, the proposal has drawn opposition from the Sierra Club, the Center for Biological Diversity and other environmental advocates struck by the incongruity of a "clean" energy project that would disrupt a relatively pristine landscape. A draft environmental study of the Sunrise Powerlink project is due for release in August. Regulators are also reviewing a project involving a new hydropower plant in San Diego County that would connect via a new transmission line to the systems of SDG&E and SCE. The project, a joint undertaking of the Nevada Hydro Company and the Elsinore Valley Municipal Water District, would involve construction of a 180-foot dam, creating a storage reservoir that would be filled with water pumped uphill from Lake Elsinore. The water behind the dam would be released during the day to generate electricity and then be pumped back up at night. Technically, the project doesn't fit the SB107 renewable guidelines because, at 500 megawatts, it's not a "small" hydro project. But it would still be a climate-friendly power source. Nevertheless, it has drawn fierce environmental opposition because the new reservoir would drown a canyon popular with hikers in the Cleveland National Forest. Another project receiving scrutiny is a Southern California Edison project that involves a transmission line needed to move electricity from a new wind farm in the Tehachapi Mountains to the utility's existing distribution system. The Public Utilities Commission recently approved the project. The wind project is being developed in the blustery passes and mountains of eastern Kern County by Mojave-based Oak Creek Energy Systems and Allco Finance Group of Australia. SCE signed a contract last year to buy 1,500 megawatts of electricity from the project, which the companies say will be the world's largest wind power generator. Contacts: David Hogan, Center for Biological Diversity, (619) 473-8217. SDG&E's Sunrise Powerlink project: www.sdge.com/sunrisepowerlink SCE's, Tehachapi project: http://www.sce.com/PowerandEnvironment/GoalsandImprovements/Tehachapi/

WASHINGTON _ Home builders are praising and environmentalists criticizing the Supreme Court's decision allowing states to administer water pollution permitting programs without complying with a key provision in the federal Endangered Species Act. Advocates and experts without a direct stake in the closely divided decision, however, are minimizing the likely impact across the nation or in California. "I view it as business as usual going forward," said F. William Brownell, a Washington, D.C., lawyer who handles environmental matters for power companies among other clients. "I don't think it's a surprise given the prior case law and the longstanding regulation," said John Echeverria, a law professor and director of the Georgetown Environmental Law and Policy Institute in Washington. "It largely confirms the status quo." The June 25 ruling in National Association of Home Builders v. Defenders of Wildlife settled a seeming conflict between two landmark environmental statutes: the Clean Water Act and the Endangered Species Act. The Clean Water Act specifies nine criteria for state governments to meet to administer the state's federally mandated water pollution control program (the National Pollutant Discharge Elimination System, or NPDES). The Endangered Species Act requires any federal agency, in order to ensure that it take no action likely to jeopardize the continued existence of an endangered or threatened species, to consult with one of two other agencies charged with enforcing the law. By a 5-4 vote, the court held in a case from Arizona that the Clean Water Act's mandatory criteria for state transfer trump the consultation requirement in the Endangered Species Act. "A transfer of . . . permitting authority does not trigger consultation and no-jeopardy requirements," Justice Samuel A. Alito Jr. wrote for the majority. Alito reasoned that the Endangered Species Act, passed in 1973, did not amount to an implied repeal of the provisions of the Clean Water Act, passed the previous year. He also cited a regulation jointly adopted by the Fish and Wildlife Service and the National Marine Fisheries Service during the 1980s stating that the consultation requirement applies only to "discretionary" federal actions. The court's other four conservatives joined Alito's opinion. The court's four liberals, led by Justice John Paul Stevens, dissented. The case originated when Defenders of Wildlife sought to block the Environmental Protection Agency (EPA) from transferring authority for the pollution control program to Arizona. The National Association of Home Builders intervened in the case. Two years ago, the Ninth U.S. Circuit Court of Appeals held that EPA could not transfer authority to the state without first consulting with the Fish and Wildlife Service about the potential impacts to protected species. The service's local office had objected to the transfer, but in Washington, EPA and the service agreed on allowing the state to take over the program. The home builders group said the ruling would help "preserve housing affordability by striking down efforts at unnecessary, duplicative regulation." "The Endangered Species Act does not trump all other important environmental considerations," said NAHB President Brian Catalde. "The Supreme Court has agreed, and we applaud their decision." But John Kostyack, director of wildlife conservation programs for the National Wildlife Federation, said the ruling "cuts holes . . . in the safety net for wildlife on the brink of extinction." He said the ruling "encourages this administration to disregard the Endangered Species Act's most important protections whenever it can claim that its hands are tied by another statute's requirements." The ruling clears the way for Arizona to take over pollution control permitting within the state, but Kostyack conceded that virtually all other states — including California — already have been given that responsibility. But he said the administration could use the ruling to counter efforts in pending cases to protect salmon from hydroelectric power projects on the Columbia River or to limit the issuance of federal flood insurance for development in critical habitat areas. A number of California water agencies joined in a friend of the court brief in the case, voicing concern that a ruling for the wildlife group could jeopardize water contracts with the federal Bureau of Reclamation. "We were very happy with the outcome," said Roderick Walston with Best, Best & Krieger in Walnut Creek, who filed the brief. "The court held that the Endangered Species Act does not by itself override other federal statutes that impose specific obligations on other federal agencies." Damien Schiff, a lawyer with the conservative public interest group Pacific Legal Foundation, voiced similar reaction. The decision "recognizes that the Endangered Species Act is not some super-statute — a statute of such significance that it would impliedly amend all other federal obligations to make endangered species protection take priority over all other statutes," Schiff said. Walston specifically voiced hope that the ruling would safeguard the complex allocation of the waters of the Colorado River, which are divvied up among seven states, including California. But Echeverria speculated that many Bureau of Reclamation water projects would be deemed "discretionary" and remain subject to the Endangered Species Act's consultation requirement. In the dissent, Justice Stevens argued that the Endangered Species Act "admits of no exception" to the consultation requirement. In any event, Stevens contended, the EPA actually has discretion in deciding whether to transfer permitting authority to Arizona. He said the ruling "places a great number of endangered species in jeopardy," including a pygmy owl and a pineapple cactus that the Fish and Wildlife Service had cited in its local biological opinion opposing the transfer, and the decision "turns its back" on the court's landmark endangered species ruling in Tennessee Valley Authority v. Hill , 437 U.S. 153 (1978). Kostyack said the ruling "doesn't provide a lot of guidance for what is discretion and what is not discretion in a lot of factual situations. It will lead to a lot of litigation." Apart from the legal holding itself, Echeverria said environmentalists might be most troubled by what he called "the atmospherics" of the decision. Tennessee Valley , the court's decision defending the snail darter from a proposed dam, "was full of soaring rhetoric about the importance and priority that Congress placed on endangered species conservation," Echeverria said. "The atmospherics of Defenders are very different." Kostyack agreed. "Some of the most powerful arguments made by the dissent, by conservationists, and by scientists were essentially blown off," he said. "There is a long history of harmonizing the Clean Water Act and the Endangered Species Act. There was no attempt by the administration to do that, and the majority simply made no effort to require them to." The case: National Association of Home Builders v. Defenders of Wildlife , No. 06-340, 07 C.D.O.S. 7275, 2007 DJDAR 9477, Decided June 25, 2007. Download the opinion at http://www.supremecourtus.gov/opinions/06slipopinion.html Kenneth Jost, former editor of the Los Angeles Daily Journal , is Supreme Court editor for Congressional Quarterly and CQ Press.

This is a story of two downtowns — one that has become a model core for a large suburb, and one where the walls that stalled progress have finally come down. This is also the story of the long-term consequences, sometimes unintended, of land use decisions. The downtowns are in the neighboring Silicon Valley cities of Mountain View and Sunnyvale. Through more than 30 years of planning, community involvement and public investment — and some good luck, according to Community Development Director Elaine Costello — downtown Mountain View has evolved into a thriving mixed-use district. A couple miles south, in downtown Sunnyvale, crews in May began demolishing Sunnyvale Town Center, an enclosed mall smack in the middle of what would be downtown. Developers bulldozed the mall to make way for a mixed-use redevelopment project that city officials hope will finally bring life to a district that has struggled for more than a decade. Were Mountain View's civic leaders prescient and Sunnyvale's ignorant? That would be a difficult argument to advance. They made their downtown choices during the 1970s, and Mountain View is clearly enjoying more success today. But way back when, it appeared that Sunnyvale was leading the way. The biggest difference turned out to be the construction of Sunnyvale Town Center, which opened in 1979. The mall thrived for a spell, but then it started dying a slow death and became the obstacle to downtown revitalization. Mountain View had obstacles to be sure, but they were not 36 acres of walled-off retail amidst a sea of asphalt. During the post-war era, when Silicon Valley was closely tied to the aerospace industry, Sunnyvale was the preferred suburb. Mountain View — known derogatively as "empty view" — was a place where young families bought their first house, recalled Bruce Liedstrand, who was Mountain View's city attorney and then city manager for most of the 1970s and '80s. Because Sunnyvale had about twice the population and more desirable demographics, it was no surprise that Sunnyvale, not Mountain View, would get the de rigeuer mall. That might have been Mountain View's first stroke of good luck. Walk down Mountain View's Castro Street, the main drag, at lunchtime today and you'll be overpowered with aromas from numerous ethnic restaurants. Downtown office workers fill tables that line the sidewalks. Three independent bookstores and various coffee houses do brisk business. Return eight or ten hours later, and you're apt to find an even livelier scene, as locals dine, drink, shop and hang out. It wasn't always this way. Mountain View commenced redevelopment during the 1960s for the central business district. The core, four-block area along Castro Street remained relatively healthy through the '60s and '70s while the redevelopment agency began making incremental improvements. During this period, the tallest building in town, a 12-story office tower built on speculation, went up near the southern end of the core area — and then sat empty for a decade. The vacant tower, which for a time was guarded by snarling dogs, was an embarrassment, but it also helped galvanize community interest in a real downtown, according to Liedstrand, who is now a design and development consultant. The city formed various committees and task forces for residents, property owners and merchants. They toured downtowns as far away as Santa Barbara to figure out what worked and what did not. Liedstrand hired Michael Freedman, now a noted urban designer but at the time fresh out of UC Berkeley, to help with planning and design. The city adopted a "precise plan" during the mid-1980s that was heavy on design and light on use restrictions. Moveable planters separate traffic from alfresco dining areas on Mountain View's thriving Castro Street. "We were regulating the physical form before there was ‘form-based code," Liedstrand said. Just as importantly, he said, the planning efforts forced locals to think big. The "we're only Mountain View" attitude began to fade. The next milestone was completion of a new city hall and performing arts center on Castro Street next to the historic core in 1991. There were complaints at the time about the $40 million cost, recalled Liedstrand, but those complaints diminished quickly because the facilities designed by William Turnbull Associates are a notch above average. A four-story rotunda, a new plaza, a refurbished park, and soon a refurbished library overlooking the park, became the scene of numerous community events and informal gatherings. However, "that's how it stayed for literally 10 years," said Costello, who arrived shortly after the civic center was completed. "We weren't getting any private development at all." That changed in a big way when international commercial developer Tishman Speyer announced it wanted to build offices downtown. The developer turned out to be "tremendously cooperative," Costello said. Tishman Speyer built a six-story structure that exceeded the city's height limit. But the developer provided all parking on-site in a four-level underground garage and leased the ground floor to restaurants with expansive outdoor seating areas. Tishman Speyer's building at 400 Castro Street opened just as the dot-com crash struck Silicon Valley. So while downtown Mountain View office demand was sated for the foreseeable future, residential developers came knocking. The downtown precise plan, last updated in 2004, permits 30 to 50 dwelling units per acre and encourages upper-floor residences on top of retail space. Since 2001, the city has approved several hundred apartments, condominiums and row houses, and more are on the way. Helping to encourage the residential development is the Centennial Plaza transit station at the north edge of downtown, where Caltrain, light rail to San Jose and a regional bus system converge. A new building on Castro Street in Mountain View features offices above restaurant and retail space. In all, the city's redevelopment arm has invested $116 million in downtown, which includes the construction of civic facilities and several parking garages. The investment is pretty much done, as the redevelopment project sunsets in 2009. The city has not used eminent domain, nor has it assembled parcels for developers. "We've got these small blocks, so we could do it incrementally," said Costello, citing another way Mountain View planners got lucky. "If you go with your old urbanism, with small blocks, you are able to go with the flow." "One of the values of a grid pattern, older-style downtown is that it allowed development to be incremental and done by a variety of people," she continued. "The community is not as vulnerable. For downtowns to be vital, they can't rely on one developer." New housing in downtown Mountain View. Sunnyvale, however, plans to do just that — rely on one developer. However, the city is already well aware of the pitfalls. From the late 1960s into the early 1980s, cities from Redding to Napa to Santa Monica to San Bernardino approved downtown shopping malls. At the time, the move was considered a smart way to "save" downtown and spur commerce. Most of the malls thrived for a while and then began long, slow slides as newer outlying malls and power centers with easier auto access gobbled up market share. At the same time, the inward-looking downtown malls were doing no favors for the areas that surrounded them. Often, the malls were simply in the way, as they closed off a traditional grid. To encourage Ernest Hahn's development of Sunnyvale Town Center 30 years ago, the city's redevelopment agency issued $39 million in bonds (which are still being paid off) to finance property acquisition, relocate business, demolish buildings, provide infrastructure and construct a parking deck. By the time American Mall Properties purchased Sunnyvale Town Center in 1998, the mall was struggling mightily, partly because of its location between the powerhouses Valley Fair Mall and Stanford Shopping Center. The new owner proposed a 200,000-square-foot, outdoor addition and a 20-screen cinema. The city approved the project and a land swap, but the project stalled. In the meantime, J.C. Penney, which was one of the mall's three anchors, and an apparently popular Chevy's restaurant both closed. With Silicon Valley's economy in the tank, the closures had a cascading effect. It was an opportune time to do some planning, said Steve Lynch, a senior planner for the city. In 2003, the city adopted a downtown specific plan update that called for reopening the grid. The city also designated the mall site a "master development area" and invited developer interest. In 2004, the city's redevelopment agency signed an agreement with Forum Development Group, which bought the mall from Lehman Brothers and assembled various parcels. Forum's plan for replacing the mall involved 1 million square feet of retail space (including existing Macy's and Target stores), about 275,000 square feet of offices and roughly 300 housing units. However, the Georgia-based developer made little on-the-ground progress. Under pressure from the city, Forum turned the project over to a partnership of RREEF and Sand Hill Property Management. The new developers modified the plans to include a grocery store and hotel, and in May started knocking down the mall. "They have demonstrated an eagerness to get the project going," said city spokesman John Pilger. City officials are thrilled to see progress, but the progress is not coming cheaply. The redevelopment agency has agreed to pay the developer at least $4.5 million of tax increment annually for 22 years. Partly in exchange for that consideration, the developer is responsible for the site's new streets, as well as a number of surrounding intersection improvements. In Sunnyvale, the Juniper Networks headquarters towers over a dilapidated "town and country" shopping center that may be redeveloped. Lynch said the hope is that the new mixed-use development will encourage similar projects nearby. Already, Sand Hill Properties has purchased a dilapidated "town and country" shopping center across from Macy's and is talking about developing 450 housing units above new retail space. Sunnyvale does have downtown building blocks. Murphy Avenue is a leafy "restaurant row" adjacent to a Caltrain station and provides the right flavor for downtown, Lynch said. Juniper Networks has its world headquarters in a 425,000-square-foot Tishman Speyer office complex only a few blocks away. Pilger estimated the first part of the mall site redevelopment could be complete by spring 2009. Murphy Avenue: Sunnyvale's restaurant row. Was the mall a mistake? Perhaps in hindsight, but Sunnyvale is not alone. Laura Cole-Rowe, a downtown consultant in the Bay Area and Central Valley, reeled off a list of cities that have been trying to rework central city malls. "Everybody now is going back to pedestrian friendliness. Everybody is doing the exact opposite of malls," Cole-Rowe said. "Now it's more about the experience of downtown." In Mountain View, that experience exists within easy walking distance of a bustling transit station and new housing. It's an experience that Sunnyvale is hoping to replicate in its own fashion. Contacts: Elaine Costello, Mountain View Community Development Department, (650) 903-6306. Bruce Liedstrand, Liedstrand Associates, (650) 428-1700. Steve Lynch, Sunnyvale Community Development Department, (408) 730-2723. Laura Cole-Rowe, community consultant, (707) 631-5029. Downtown Mountain View precise plan: http://www.ci.mtnview.ca.us/civica/filebank/blobdload.asp?BlobID=2768 Sunnyvale Downtown redevelopment website: http://sunnyvale.ca.gov/Departments/Community+Development/Downtown+Development/

Wouldn't you know it? Right when the real estate market slows down, the land use initiative business is picking up. And, as is often the case, the initiatives – rather than clarifying things – are making things more confusing. Although localized in nature, the confusion will continue all the way through the emerging real estate bust and on to the beginning of the next boom. Land use ballot initiatives have always been a "lagging indicator" of the construction economy. That is, ballot activity becomes most intense at the end of a real estate boom, when entitlement activity is still frenetic and construction activity is beginning to slow down. That's because voters are most fed up about development after a long boom – and are usually moved to action right when the bust begins. And when that happens, they often decide to take matters into their own hands. Sometimes this makes sense, but often it doesn't -- as, for example, Escondido voters discovered after approving an initiative requiring voter approval of most general plan designation changes. They wound up having to vote in the next election on eight minor changes – and turned them all down (see CP&DR Insight , October 2000) Ballot initiatives often make the most sense when they craft or reinforce big-picture policies or when they are used to pressure elected officials on a particular issue that's important to a lot of voters. Even then, however, citizen groups get so wrapped up in their initiative that they're often unresponsive to compromise. Three different local situations during recent months – in Monterey County, Redondo Beach, and Ventura County – illustrate both the confusion, the frustration, and the hope that land use ballot measures in California have come to represent. In Monterey County, no fewer than four measures were on the ballot in June – including three involving different versions of a new general plan. The voters were presented with two general plan choices – the board's plan and the environmentalists' plan. Furthermore, the board's plan was presented as a positive and as a negative in two different measures. In the end, all measures went down, which apparently means the county defaults to the previous general plan that dates back to the early 1980s. Back to square one. By voting no, residents of Monterey County suggest they may not have realized what was really going on. It's also possible the voters really want the Board of Supervisors to make some tough choices. You'll excuse the leaders of Monterey County if they are not sure what the heck their residents want. Meanwhile, in Redondo Beach, the latest push for an initiative seemed to hold the potential to force the city into a compromise. But now a compromise appears unlikely. Like many beach towns in the South Bay of Los Angeles, Redondo has a long history of ballot-box zoning. Most recently, voters in 2005 were asked to decide the fate of a 65-acre parcel around the long-established AEP power plant on the beach. Asked to choose between a development project, called the Heart of the City plan, and a park, Redondo voters understandably chose a park (see CP&DR Election News , April 2005; Local Watch , January 2002). With no way to pay for such a park, however, the city started talking about development plans again, and this led to a backlash. A citizen group called Building a Better Redondo emerged with a ballot initiative that would require most major changes in the general plan to go to the voters. In particular, the initiative targeted any general plan amendment that converted non-residential land to residential or mixed-use with a density of 8.8 units per acre or more. This was clearly targeted at the Heart of the City property, where residential development is required to make any project work financially. Earlier this spring, the initiative fell 355 signatures short of qualifying for a ballot. Since then, the citizen group and Mayor Mike Gin have been involved in a set of moves that are part minuet, part power politics. They met once and since then have been negotiating over when, whether, and how to meet again, and there has been more than a little finger-pointing. The citizen group has filed a new initiative and plans to start gathering signatures again; meanwhile, Gin has indicated he might support a 45-day moratorium on rezonings while they negotiate. Whatever the merits of the case on either side, the Redondo citizen group has played its hand deftly, and in a way that other citizen groups should take note of. The group has succeeded in putting a lot of pressure on the elected officials and gives every indication of moving forward with the initiative to keep the pressure on. Sometimes, the nuclear threat is far more powerful than actually dropping the bomb. Meanwhile, in Ventura County – in many ways "ground-zero" for land use initiatives over the last decade – both developers and institutional landowners continue to search for ways around the urban growth boundaries that voters established a few years ago. History was made in May when Santa Paula became the first city to approve an expansion of the growth boundary for a mostly residential project. Local news reporters immediately jumped on the idea that this could be a trend – other residential projects have been defeated in Santa Paula and elsewhere – but the truth is the Santa Paula situation was unusual. Santa Paula is a poor city, and the proposed development (which has been on the ballot before) would contain about 500 very expensive hillside homes that could dramatically change the city's financial situation and its reputation. Hillside property owners in both Ventura and Moorpark still have designs on development in areas that require a vote, but those communities are more affluent and have historically been less receptive to even high-end development outside the boundaries. And at least one church appears ready to use its religious status to try to end-run the vote requirement. The 4,000-member Cornerstone Community Church has plans for a $40 million complex that includes a Bible college and a 5,000-seat auditorium on 140 acres of land in unincorporated county territory just outside Simi Valley and near the Reagan Library. The church plans to argue that it is exempt from the vote requirement under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), which exempts churches from land use regulations that "substantially burden" the exercise of religion unless a compelling public purpose is at work. Two previous growth boundary elections in Ventura have involved religious organizations – one involving a Catholic convalescent home outside Ojai and the other an Assembly of God church in Ventura. In both cases, the religious organizations organized a campaign and won. But it's hard to say whether RLUIPA would override the vote requirement in this case. After all, in strictly legal terms, all that has happened in Ventura County is that the voters have exercised their right under the California Constitution to substitute themselves for their elected officials in considering legislation that would allow development on land designated for open space. Would the vote requirement alone create a substantial burden? Should a federal statute trump the state constitution? These three situations are all examples of different approaches we often see in the field of land use initiatives – the train wreck, the negotiation, and the end-run. In all likelihood, ballot activity will taper off during the next couple of years, as so often happens after a real estate slow down settles in. Perhaps the downturn will give elected officials, initiative drafters and their lawyers the opportunity to use these situations to make land use policies clearer rather than more complicated.

Brewpub regionalism? That's the phrase that came to mind Saturday night as I listened to John Hickenlooper, the mayor of Denver, talk about how he operates. Nerdy geologist turned cool brewpub owner turned positive-thinking mayor, Hickenlooper is rapidly becoming a political legend. I heard him speak, along with Seattle Mayor Greg Nickels, at a dinner in Santa Monica sponsored by the Brookings Institution Metropolitan Policy Program in conjunction with the U.S. Conference of Mayors conference. Among other things, Hickenlooper has improved the relationship between Denver and its suburban cities – traditionally a situation that could best be described as Iraq minus the militias and most of the checkpoints. The better relationship is one of the reasons the Denver area has approved a sales tax increase to build a 120-mile rail transit system. Hickenlooper's technique is best described as the "no mayor left behind" approach. He approached to the suburban mayors who historically hated Denver. He talked to them. He asked them if they could support joint initiatives if he let them take all the credit. He discussed with them why a regional rail transit system might help them even if they don't get transit stations because it would get other cars off the road. By the time the transit measure was on the ballot, he said, all the mayors "had a skin in the game." It's hard to imagine Antonio Villaraigosa having these kinds of conversations with the mayors of Pasadena, Huntington Park, and Anaheim. Hickenlooper said that the restaurant business is the best training for politicians. As a policy wonk who has spent a lot of time hanging around with restaurateur-politicians, I have to agree. Think about it. Restaurant owners have to be extroverts. They're in the business of making other people happy by giving them food and drink. They get instant feedback from their customers. And they are constantly tweaking everything – their menu, their service, their atmosphere – to make the experience of patronizing their restaurant better. They also know the value of alcohol in reaching consensus. Maybe it's time more metropolitan political leaders practiced brewpub regionalism. At least on the consumer side. - Bill Fulton

The California Supreme Court has ruled that an airport land use compatibility plan qualifies for a "common sense" exemption from the California Environmental Quality Act. Perhaps more importantly, the court opened the door for the first time to the idea that displacement of development — often an arguable consequence of a plan that favors one type of development over another — might be an issue that should be analyzed under CEQA. Because the Travis Air Force Base Land Use Compatibility Plan (TALUP) merely incorporated existing county and city general plan and zoning policies, it created no new impacts and therefore need not receive environmental scrutiny, the unanimous state high court ruled. However, the ruling was not exactly straightforward. First, the court found that the Solano County Airport Land Use Commission made a number of errors. The Commission incorrectly concluded the plan was not a "project" for CEQA purposes, the court found. Yet the Commission did file a notice of exemption, even though no such notice is required for non-projects. But the notice claiming a common sense exemption cited no evidence. Second, the common sense exemption was a subject that had not been debated in any detail at the trial court and appellate court levels. Neither side mentioned the common sense exemption in briefs for the state Supreme Court, although justices did ask several questions about it during oral arguments (see CP&DR Legal Digest , May 2007). In addition, the court applied the "substantial evidence test" for the exemption, even though the CEQA Guidelines and previous cases suggest that an exemption is not appropriate if an argument can be made that a project may have a significant effect on the environment. The case could turn out to be significant for a different reason, however. The court made clear that an agency must consider during environmental review the potential for a project to displace development to other locations. " othing inherent in the notion of displaced development places such development, when it can reasonably be anticipated, categorically outside the concern of CEQA," Justice Kathryn Werdegar wrote for the court. That statement marks the first time that a court has recognized that the unintended consequence of displacing development is a potential CEQA impact, said Richard Jacobs, the attorney for property owners who lost the case. Deputy County Counsel James Laughlin said the court's stance on displaced development presents difficulties. Any zoning, whether it be agricultural, industrial, or residential, potentially displaces some other form of development, said Laughlin, who argued the case for the airport panel. "It's a good result for the Commission but it's an interesting opinion," Laughlin said. "We always argued it was not a project. The court went off on a tangent," Laughlin added in reference to the common sense exception. Development around Travis Air Force Base in Fairfield has long been controversial. Although some adjacent areas are heavily developed, much of the territory around the base is pastureland or open space. Some locals fear that additional urban encroachment would force Travis, the county's largest employer, to close (see CP&DR Elections , December 2003; Local Watch , September 2003). Still, housing pressures are substantial. In 2002, the Airport Land Use Commission adopted the Travis plan. Under the State Aeronautics Act, city and county general plans must conform with airport land use compatibility plans unless the city or county can make specific findings that the discrepancies are consistent with the act. The TALUP sets forth compatibility factors for six geographic zones. At issue here was "zone C," which covers locations exposed to an average of at least 60 decibels of noise over a 24-hour period (known as the 60 db CNEL standard) or to rare concentrations of low-level flights. Zone C covers more than 600 square miles of unincorporated Solano County and four cities. The airport plan called for freezing existing general plan and zoning designations for zone C, the majority of which is unincorporated land designated for agriculture. Muzzy Ranch Company, which owns about 5,000 acres inside and outside of zone C, sued because the Commission performed no environmental review of the plan and, according to the landowner, used the wrong noise standard. Solano County Superior Court Judge Donald Fretz ruled for the Commission, but the First District Court of Appeal overturned the decision because the plan could force needed housing development to move elsewhere, and "housing displacement is a physical change that may require discussion in an EIR." The state Supreme Court agreed with the appellate panel to a point but ultimately reversed the decision. The Commission argued that the plan is not a project because the TALUP merely advises jurisdictions and the Commission had no duty to consider displaced development because such displacement was too speculative. The court rejected both arguments. An airport land use plan is more than nonbinding advice, the court noted. The TALUP states that it shall be the basis for local general plan, zoning and land use policies, and state law binds the cities and counties to comply with the plan or at least the aeronautics act. "As Muzzy Ranch observes, under these statutes an airport land use compatibility plan can operate like a multi-jurisdictional general plan to trump the land use planning authority that affected jurisdictions might otherwise exercise," Werdegar wrote. On the issue of displaced development, the court cited Fullerton Joint Union High School Dist. v. State Bd. of Education , (1982) 32 Cal.3d 779, in which the court rejected the argument that dividing a school district could not be a project simply because other decisions would have to be made before environmental effects were realized. "Depending on the circumstances, a government agency may reasonably anticipate that its placing a ban on development in one area of a jurisdiction may have the consequence, notwithstanding existing zoning or land use planning, of displacing development to other areas of the jurisdiction," Werdegar wrote, later stating "geographically distant environmental impacts" must also be considered. As for the common sense exemption, the Commission cited no evidence in support. No matter, the court ruled. "Determining whether a project qualifies for the common sense exemption need not necessarily be preceded by detailed or extensive fact-finding. Substantial evidence appropriate to the CEQA stage in issue is all that is required." Jacobs, the landowner's attorney, said he felt as if he "lost the war but won all the battles" in that the court found that the Commission made numerous errors, but they did not matter in the end. Arthur Coons, an attorney at Miller, Starr & Regalia in Walnut Creek who did not participate in the case, agreed that the court's reasoning was "odd." But the decision is important, he said, because the court "recognized displaced development as cognizable under CEQA" and made clear that impacts are not limited by jurisdictional boundaries. Those are important factors when a city or county is considering downzoning, urban growth boundaries or other development limitations, Coons said. Ellen Garber, of Shute, Mihaly & Weinberger and also not a participant in the litigation, said that although the court raised the issue of "displacement of things that don't exist," the court broke no new ground. Displacement of development "is not squarely raised in this case," Garber said. "They talk about it, but they don't decide it." Future courts will need to provide a more plain reading of the issue, she said. Jacobs said he would now press forward in appellate court with Muzzy Ranch's arguments regarding the proper noise contour for the TALUP; however, Laughlin noted the state Supreme Court did not remand the case for more proceedings. "I think the implication is this is the end of the line," Laughlin said of the decision. The Case: Muzzy Ranch Co. v. Solano County Airport Land Use Commission , No. S131484, 07 C.D.O.S. 7166, 2007 DJDAR 9275. Filed June 21, 2007. The Lawyers: For Muzzy Ranch: Richard C. Jacobs, Howard, Rice, Nemerovski, Canady, Falk & Rabin, (415) 434-1600. For the Commission: James W. Laughlin, Solano County counsel's office, (707) 784-6140.