Ralph: "That's Rickie Newton up to bat for the Hurley-Burleys, and… he swings and misses! Strike one. " Jim: "Rickie spent his sophomore year in college at UC Riverside, where he compiled a .207 batting average." Ralph: "Ground ball down the first base line! Newton makes a beeline to first base, but the first baseman, Loren Winkle, number 32, is way ahead of him." Jim: "As you know, Ralph, the Hurley-Burleys are confident that they can take control of Baja Altarumba's new baseball stadium." Ralph: "That's Howie Flamm, number 51, putting on the batter's helmet. But going back to the baseball stadium: Why would the City of Alta Bajarumba let the local baseball club take control of the city-owned stadium, Jim? There's a lot of public money in that stadium. And coming back to the game, it's a foul ball for Flamm! When you talk to this young man, by the way, he will tell you that he is absolutely, 100% certain he's going back to the majors next year." Jim: "Well, it takes an extra heaping of self-confidence to win at either sports or real estate. I almost said hootz-pah, like my personal friend Rabbi Jack Sherman over at Temple Gush Emet likes to say." Jim: "It's a long drive to right field, but George Plumm, right fielder for the Speedballs, snags the pill. But getting back to the Hurley-Burleys and their stadium, Ralph, what makes a minor-league baseball team so confident it can take on the management of a big piece of city-owned real estate?" Ralph: "Jim, I think the Hurleys feel strongly encouraged by the example set by the Lake Elsinore Storm, which has just talked the local City Council into a pretty strong deal. Here's Joey Castro, number 27, loosening up before he steps into the batter's cage." Jim: "Why did Lake Elsinore decide to lease the stadium to the ball team, Ralphie-boy? Sounds a tad out of the ordinary." Ralph: "Well, the city is spending a total of $2.8 million to maintain the stadium, and that's a hell of a lot of money for a city of 38,000 people to shell out, especially one that has an annual budget of only $43 million. According to the local sports pages, the city has been losing $500,000 a year on the ballpark. Lake Elsinore needs to stop the bleeding as fast as possible." ( ) "And he's out, and the Speedballs are back in the dugout." Jim: "So, what do you think of that there deal between the Storm, and Lake El-Storm-Some-More?" Ralph: "Well, I'm not an expert in the economics of running stadiums, Jim, but take a look at some of these numbers: The Storm gets to lease the stadium for 10 years, but apparently does not need to pay rent for the privilege. And knowing the ball club may not have the wherewithal, as my divorce lawyer likes to say, to maintain the stadium from Day One, the city will continue to pay $400,000 over a period of four years to help keep things running. Plus, the city will continue to pay $300,000 every year in maintenance costs for the full 10-year period. Did I mention that Lake Elsinore already pays $2 million a year in debt service on the bonds that the city floated in 1994 to build the 6,000-seat stadium?" Jim: "Whoa! Back up there, Ralphie-boy! What do all those numbers mean?" Ralph: "Yes, well, I guess it's an improvement for the city. In the first four years the city will be paying, on average, $2.4 million a year, which is better than the $2.8 million it's paying now, but nothing to crow about. In the last six years of the lease agreement, the city will be paying $2.3 million. So I figure the city will save at least $4.6 million in 10 years. That's worth something." Jim ( ): "Well, if Lake Elsinore is losing so much money on the stadium, then why doesn't the city find some private operator to run the park for them? At the top of the eighth inning, it's 8-7, Speedballs." Ralph, "Well, that's the rub, Jimbo. One operator signed a 15-year agreement with the city, just to walk away from it. The city attempted to sell the stadium two years ago, but that fell through. So when it comes to finding someone to take that stadium off its hands, you could say that Lake Elsinore has got a mule kicking in its stall." Jim: "Well, isn't a deal between the Storm and Lake Elsinore good news? Everybody's happy at last. As for that ballgame, here's Pedro Newman, who appears to be coming out of a little bit of a batting slump … and he takes strike one." Ralph: "Yes, they've staunched the bleeding, but the City of Lake Elsinore doesn't have much to show at the end of day. The team gets to keep all the money from concessions, even the money from naming rights. The city has little ability to recover what little upside may be in the offing. For the stadium to actually make money, the Storm will need to book some concerts or meetings into the stadium. Is that something a minor league ball club knows how to do?" Jim: "At the bottom of the ninth, the Hurley-Burleys are looking challenged, down 10 to 7. Maybe it's just not their day. Hope this doesn't hurt their stadium deal!" Ralph "You know what they say, Jimbo: It's only a game."

Senate Bill 303 by San Diego Democrat Denise Ducheny may well be the most controversial land use bill of the year. The bill is the building industry's vehicle for decreasing local government regulation. Not surprisingly, local governments are solidly in opposition. The bill sailed through the Senate Transportation and Housing Committee on a 10-0 vote in late March, but mostly because lawmakers tasked the Committee on Environmental Quality with the heavy lifting. And oh did things get heavy during an two-hour Environmental Quality hearing on April 23. Although Chairman Joe Simitian (D-Palo Alto) maintained professional decorum, the tension was thick at times. Simitian made clear to Ducheny that the bill will not pass out of his committee without substantial amendments — a vow that did not please Ducheny. The bill's primary target is the regional fair-share housing allocation process and local planning. But here's an interesting twist that should have planning consultants smiling: The bill would require every element of a local general plan to be updated every 10 years. If that were the law today, the vast majority of cities and counties would be out of compliance. Check out the latest analysis of SB 303 here: SB 303 Bill Analysis

January 2007 - Solimar in conjunction with Los Angeles County releases infill study on the proposed Exposition light rail line in South Los Angeles: Exposition Line Infill Development Potential Analysis. To view the PDF, please visit http://www.solimar.org/pdfs/Expo_Final_3-30.pdf

From any perspective, it was a remarkable decision. The Shasta County Board of Supervisors voted 3-2 in late March to reject an auto mall proposed on some of the best farmland in the county. Loss of prime farmland is widely recognized as a serious issue in California. But when it comes time for a local government to make hard decisions, farmland almost always loses. The reasons are usually the same: The site can't be farmed profitably anymore. It's only a small percentage of total farmland. It's the only practical location for this project. We need the economic development and tax base. Shasta Regional Auto Park developer Jim Maxwell made all of those arguments. The location in question is 107 acres at an Interstate 5 interchange in an area between the cities of Redding and Anderson known as Churn Creek Bottom. That's bottom as in bottomland, between the Sacramento River and Churn Creek. Back in the 1980s, the county general plan designated this very fertile territory for 5-acre parcels. Five-acre ranchettes are usually a death sentence for ag. But the Bottom hasn't been completed subdivided, and farming is possible in such an area if the county is committed to holding back urban development and to farmers' rights. Specialty crops, organic farms, truck farms, small livestock operations and ag-tourism businesses are all possible on small plots — and right up against the city. These practices work in Sonoma County, the San Mateo County coast and elsewhere. Of course, cities and counties consider auto malls to be heaven-sent because of the enormous sales tax revenues that acres of new cars produce. The county sheriff, the deputies union, the county employees union, and local business boosters all urged approval of the project. But three members of the five-member Board of Supervisors said no. They said quality of life for Churn Creek Bottom residents and general plan integrity were more important than $2 million in annual sales tax revenue. I'm not passing judgment on the proposed auto mall. It is what it is (or was). And I'm not suggesting that the Board of Supervisors in ultra-conservative Shasta County has contracted smart growth fever. But on this one day, in this one place, Class One farmland defeated urban sprawl. That's remarkable. - Paul Shigley

The Association of Bay Area Governments has adopted a methodology for distributing fair-share housing units that directs housing growth to existing urban areas, especially those with jobs and transit, and downplays the trend of extensive development on the Bay Area's fringe. The methodology was adopted in January by the Association of Bay Area Governments (ABAG) executive board in preparation for the next round of the regional housing needs allocation (RNHA) process. Past rounds of the RHNA have used more trend-based methodologies that assign large numbers of housing units to fast-growing communities and those with big pieces of undeveloped land. That approach, however, conflicts with the "Smart Growth Strategy/Regional Livability Footprint Project" that ABAG completed in 2002. The regional policies in the smart growth strategy encourage infill development, efficient land use that capitalizes on transit, a better jobs-housing balance and protection of agricultural areas. The new RHNA methodology pulls housing away from greenfields on the urban fringe, "and directs that housing need toward our cities and our transit infrastructure," explained Ken Kirkey, ABAG planning director. The methodology results in the assignment of substantially more housing units to the region's biggest cities and some older suburbs with transit and employment centers. San Jose, San Francisco and Oakland would be responsible for about 38% of the region's new housing units, up from about 23% in the last round. Cities such as Berkeley, Petaluma, Walnut Creek and Palo Alto would see their fair-share numbers increase dramatically from the last RHNA. Meanwhile, some bedroom communities on the fringe, such as Gilroy, Antioch, Vacaville and American Canyon, would see their fair-share numbers decrease significantly. In fact, more than half of the cities would see their allocations decline. "It makes sense," said Gwen Regalia, Walnut Creek mayor pro tem and a member of ABAG's housing methodology committee, "to have more housing near a BART station than to have four units per acre in Brentwood, and then have all of those people drive over Ygnacio Valley Road." The fair-share housing allocation process works like this: On a rotating, five-year basis— but often at longer intervals — the state Department of Finance and the Department of Housing and Community Development estimate how many new units California will need to house its population. The units are classified into four affordability levels — very low-income (affordable to people making up to 50% of a county's median income), low-income (50% to 80% of median), moderate-income (80% to 120% of median) and above moderate (more than 120% of median). State officials then assign housing units to regions of the state. Councils of government divide up the regional share among their member cities and counties. The numbers provide the basis for city and county general plan housing elements. By law, cities and counties are supposed to designate property and adopt policies that permit the locality to provide for its fair share of housing units at each of the four income levels. ABAG last completed a RHNA process in 2000, followed by housing element updates in 2001, for the 2000-2007 time period. Originally, ABAG was to complete a new RHNA in 2006, with local governments completing housing element updates this year. However, state officials postponed things for two years, partly because of financial concerns. Now, ABAG is scheduled to complete its final allocations in June 2008, with housing element updates due on June 30, 2009. ABAG took a collaborative approach to designing its methodology for distributing units this time. A 34-member housing methodology committee spent months creating and gathering input on the methodology. Ultimately staff recommended slightly less reliance on transit as a weighted factor than the committee recommended, and the ABAG Executive Board approved the staff recommendation in January (see sidebar). The Southern California Association of Governments has adopted similar "smart growth" principles for its RHNA, although details of SCAG's methodology are different than those adopted by ABAG (see CP&DR Insight , August 2006 ). Underlying ABAG's methodology is the "Projections" document that ABAG adopted five years ago. Rather than forecasting growth based on trends, Projections provides a policy-based look at the future. And that policy is heavy on infill and transit-oriented development. Regalia, a former ABAG president, has some quibbles about the methodology but endorsed the overall approach. "I agree that more development should go to communities that have transportation. That includes my city, and not everybody is going to be happy about it," she said. Such an approach reflects not only good planning, but demographic change, she said. Older people are happy to give up suburban homes and the accompanying upkeep for a condominium. Young professionals want to live in a downtown environment where amenities and transit are within walking distance, she said. Michael Moore, City of Petaluma planning director, said he was not exactly sure why Petaluma, which was allocated about 1,100 units in the last RHNA, would see its assignment nearly double. But he suspects a major factor is the 400-acre Central Petaluma specific plan, which permits up to 60 units per acre. "Our view is the methodology is as sound as it could be under the circumstances," Moore said. "Part of the crapshoot in this is that you do the methodology before you get the housing numbers." Kirkey said that ABAG officials recognized that increased allocations place a burden on a community. Thus, ABAG is trying to provide incentives for jurisdictions that are assigned large housing shares. For example, ABAG is trying to align the RHNA with the Metropolitan Transportation Commission's regional transportation plan update so that cities with large housing burdens receive substantial transportation funding. In addition, because the largest cities also have big shares of the region's existing very low- and low-income housing units, the methodology attempts to spread the affordable housing burden more regionally. The methodology contains a "175% factor." The difference between a jurisdiction's percentage of a certain type of units and the regional average is multiplied by 175%, and the jurisdiction's RHNA share is assigned accordingly. For example, 36% of existing units in Oakland are very low-income. The regional proportion of very low-income units is 23%. So the difference is –13. That figure is then multiplied by 175%, for an adjustment factor of about –23. Thus, 13% of Oakland's assigned units will be very low-income units, based on the existing 36% minus the adjustment factor of 23. "This is a pretty significant departure from the past," said Kirkey, who noted that previous allocations assigned income percentages equally for every jurisdiction. "If larger jurisdictions such as Oakland are being expected to take on such large shares of the overall housing need, they should not be burdened with having to accept so much of the low-income housing." While the new methodology has gained majority support from the ABAG Executive Board, detractors exist. A coalition of housing and social justice advocacy groups argues that the methodology is a step backward because it will result in about two-thirds of Bay Area cities getting smaller fair-share allocations. "They are calling it smart growth, but in reality it is a very narrow interpretation of smart growth that is construed around fixed-rail and ferry buildings," said Paul Peninger, policy director for the Non-Profit Housing Association of Northern California (NPH). The methodology does not account for corridors with good bus service, which were identified previously as candidates for high-intensity growth. A letter signed by NPH Executive Director Diane Spaulding and endorsed by nine other organizations states: "Essentially, placing such a disproportionate share of the allocation in a few jurisdictions effectively produces a net loss in total regional capacity. Whether intentional or not, the … methodology amounts to a way of reducing the total regional housing needs allocation by directing a disproportionate share to communities that under any methodology would already be doing the most to plan for and develop housing." Peninger said the groups recommend an approach based solely on household and employment growth projections, which, he noted, already incorporate transit-oriented development and smart growth policies. Indeed, some cities have made a similar argument — that the methodology amounts to a doubling up of smart growth criteria because it starts from smart growth projections and adds smart growth weighted factors. These cities argue that there is only so much they can do to plan for infill and transit-oriented development, and the market for such housing is only so large. "While planners may agree, from a sustainability point of view, that ‘it is better to go up than out,' it is the market that largely decides what gets built and when," Berkeley Planning and Development Director Dan Marks wrote to ABAG shortly before the Executive Board voted. "There is little evidence that the market can and will build the housing that would be expected under the draft ABAG allocations." " ther cities will be required to plan and accommodate far less housing than in the previous RHNA cycle," wrote Marks, whose city's allocation would more than double under the new methodology. "If the housing is not being planned in areas where it is comparatively easy to build, and the market does not accommodate housing at a sufficient rate in existing built-up cities, no matter how laudable the goal, the net result is insufficient regional housing production relative to need." At the same time, other people are cheering the methodology, including environmentalists and supervisors in counties with city-centered growth policies. The methodology dramatically reduces the number of units assigned to unincorporated portions of Sonoma, Solano, Napa and Santa Clara counties, and cuts the overall numbers assigned to Sonoma, Solano and Napa counties and their cities. Linda Wheaton, HCD assistant deputy director, said state officials did not provide input on ABAG's new methodology, but they will review it as part of the regional allocation process. ABAG's schedule calls for state officials to determine the nine-county region's housing need in March. ABAG will then release draft allocations to cities and counties by the end of June, starting a one-year process of finalizing the allocations. Contacts: Ken Kirkey, Association of Bay Area Governments, (510) 464-7955. Gwen Regalia, Walnut Creek vice mayor, (925) 943-5812. Michael Moore, City of Petaluma, (707) 778-4301. Paul Peninger, Non-Profit Housing Association of Northern California, (415) 989-8160. Linda Wheaton, Department of Housing and Community Development, (916) 327-2642. ABAG RHNA website: www.abag.ca.gov/planning/housingneeds/ ABAG's Weighted Factors The Association of Bay Area Government's regional housing needs allocation (RHNA) assigns each city and county a share of the housing need. Each share is based on a methodology that is a mathematical equation consisting of weighted factors. These factors are based on state RHNA law and objectives, local land use policies and regional policies. The weighted factors are: • Housing growth — 45%. This factor is based on local land use policies and plans; demographic trends such as migration, and birth and death rates; economic trends such as housing prices and transportation costs; and regional growth policies. Much of this comes from ABAG's "Projections" report, which assumes there will be increased housing growth in existing urban areas, near transit stations and along major public transportation corridors. • Existing employment — 22.5%. This factor derives from regional and local job data; and regional and local economic trends, such as the attractiveness of commercial and industrial locations, labor costs, housing prices and travel costs. • Employment growth — 22.5%. This factor is based on local land use policies and plans; economic trends such as national and regional industrial forecasts; and regional policies. • Household growth near transit, and job growth near transit — 5% apiece. These two factors are based on potential development within half a mile of existing rail stations and ferry terminals. San Mateo County Tries Own Approach For the first time, one county in the Association of Bay Area Governments region will make its own fair-share housing allocations. Under this "subregional process," ABAG will provide a regional housing needs allocation to San Mateo County as a whole. The San Mateo City/County Association of Governments (C/CAG) will then divide up the units among the county and the 20 cities. ABAG will review the draft allocations, but C/CAG will submit its numbers directly to the Department of Housing and Community Development, according to Gillian Adams, a regional planner for ABAG. The methodology that C/CAG will use is still under development, said Duane Bay, San Mateo County housing director and an organizer of the subregional process. Bay anticipates that the final numbers may not be a whole lot different than what ABAG would have assigned to the cities and county. "It's local control, that's what it comes down to," Bay said. "It really is all about the process and taking responsibility. It's not really about the numbers." Bay explained things this way: The population of San Mateo County is about 700,000, which falls between the population of San Francisco and the population of Oakland. And under ABAG's recently approved methodology, San Mateo County as a whole would get a housing allocation that falls between the number assigned to San Francisco and the figure given to Oakland. But San Francisco or Oakland, as one jurisdiction, can decide where and how to accommodate its housing allocation. San Mateo County has 21 jurisdictions, but would also like to decide where and how to accommodate housing within the county as a whole. The subregional process permits cities and the county to "trade" allocations, which was a significant factor in getting C/CAG members to agree to the process. Bay envisions one city accepting a portion of the housing units assigned to another city in exchange for resources such as water or money. Whether the process actually results in development of more units — the ultimate measuring stick — is unknown, Bay conceded. At the very least, though, it should get planners and elected officials to take a more regional view and consider their neighbors' resources and constraints, he said. The last RHNA assigned San Mateo County and its cities a total of 16,300 units, but developers have produced only about half of those units, partly because of the area's slow-growth politics. The ABAG methodology would boost the county's total allocation by about 10%. Paul Peninger, policy director for the Non-Profit Housing Association of Northern California, said it is too early to reach any conclusions about San Mateo County's subregional process. But if it gets people thinking about their role in meeting the regional need, it could be a success, he said.

The last two decades have witnessed a rapid increase in state and local government activities intended to influence future physical development within their jurisdiction. But nowhere has this growth management movement been as widespread as in California. Beginning in the early '70s, a rising number of city and county jurisdictions began to adopt policies and regulations to guide the rate, amount, type, location, quality and timing of development. In southern California, the late '80s saw a surge of growth management activity, jumping from a low annual average of 4 measures per year between 1975 and 1985, to an average of 26 measures between 1985 and 1990 for the 116 cities in the sample studied here. These attempts to limit or shape growth were often undertaken under the banner of environmental protection and preservation of community character. Today, the popularity of Smart Growth initiatives reflects the ambivalent public opinion towards unregulated growth and its consequences on traffic congestion, pollution, loss of open space, destruction of historic buildings and fiscal stress. While on the one hand many communities welcome growth as a source of income, jobs, and improvements, on the other hand they reject development if they believe it will require additional expenditure, alter the lifestyle and appearance of their cities and towns, and threaten the environment (Kee and Molotch, 1995).

Author: Rick Pruetz Published: March 2003 Publisher: Arje Press As property rights and takings have become more important in land-use planning, the popularity of transferable development rights -- or TDRs -- has grown dramatically. Now, in an update of his classic book Saved By Development, Rick Pruetz, AICP -- America's leading TDR practitioner -- provides a comprehensive overview of TDRs, as well as the down-and-dirty basics that any jurisdiction considering implementing a TDR system must know. Beyond Takings and Givings offers a progress report on most of the 112 TDR programs profiled in Pruetz's 1997 book -- plus case studies of some 30 additional programs! In addition, Beyond Takings and Givings provides a step-by-step guide to creating a TDR program and addresses the most commonly asked questions on this topic, including · What is a TDR system? · How did the TDR concept evolve? · What can TDRs accomplish? · What are TDR's advantages and disadvantages? · How do you make a TDR system work? · How does a TDR compare to other implementation tools?

In issuing its second California Environmental Quality Act ruling in seven months, the conservative-leaning California Supreme Court is emerging as one of CEQA’s staunchest defenders. The latest decision — the rejection of an environmental impact report’s water analysis for a large Sacramento-area housing project — is the court’s first foray into such water studies, and the court appears to have set a high standard. There are no overt liberals among the seven state Supreme Court justices these days. Justice Carlos Moreno is the only high court jurist appointed by a Democratic governor, and he began his career on the bench as a Deukmejian appointee to the Los Angeles Municipal Court. Yet, said CEQA attorney James Moose, even among conservative judges, “the environmental values are just so accepted in this society.” In a ruling that Moose and many others say is the state Supreme Court’s most important CEQA decision in almost 20 years, the court stopped short of saying that a development project must have a guaranteed water source. However, the court made clear that anything less than a guarantee must be fully disclosed, and the alternatives scrutinized. “If the uncertainties inherent in long-term land use and water planning make it impossible to confidently identify the future water sources, an EIR may satisfy CEQA if it acknowledges the degree of uncertainty involved, discusses the reasonably foreseeable alternatives — including alternative water sources and the option of curtailing the development if sufficient water is not available for later phases — and discloses the significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact,” Justice Kathryn Werdegar wrote for the court’s six-judge majority. (For more details on the ruling in , please see , Page 7). Michael Zischke, an attorney who filed an amicus brief supporting the city on behalf of the California State Association of Counties, said that the court is insisting on the “reasonable likelihood of water.” That is a workable standard for developers and local governments, he said. Whether this standard is new is open to interpretation. Moose, who represented developer Angelo Tsakopoulos in the litigation, said the court handed down a “stringent new set of rules.” “I don’t think there are too many EIRs out there that would pass this test,” Moose said. Attorney Stephan Volker, who represented project opponents, agreed with Moose that the decision is “far-reaching.” But Volker said the state Supreme Court mostly combined appellate court case law with recent statutory changes. “This is the first time a court has put it all together in a comprehensive way,” Volker said. Terry Rivasplata, a senior environmental planner for Jones & Stokes in Sacramento, portrayed the decision as new policy. “It raises the bar. It makes sure people are looking forward to the long-term impact,” he said. Randy Kanouse, a lobbyist for the East Bay Municipal Utility District (MUD) and chief proponent of water planning legislation on which the court based part of its ruling, said the court correctly interpreted the statutes. The court is requiring the rigorous analysis required by the legislation, which merely sought to better connect land planning and water planning, he said. “They didn’t stop the project. To those who claim you’ve got to have all of your water rights and all of the water in a constructed reservoir, that’s wrong,” Kanouse said. Both the law and the court require only that project proponents make progress toward getting real water to serve new development, he said. “My critics in the building community used to try to demonize the legislation as more than what it is.” In fact, California Building Industry Association (CBIA) General Counsel Nick Cammarota characterized the ruling as “a fairly decent decision.” The court upheld the analysis of the project’s short-term water supply, and the court made clear that written verification of water agreements, public works project approvals and financing — and not necessarily readily available water — are adequate at the time of project approval, he said. The court’s decision “does clarify what the rules are for the discussion of water supply in an EIR,” Cammarota said. “They said you didn’t absolutely have to have certainty with respect to your water supply.” 20,000 Units The project that started the litigation decided by the court is the Sunrise-Douglas community plan, plus the Sunridge specific plan for about half of the community plan area. The community plan calls for roughly 20,000 housing units and 500 acres of retail and office development on 6,000 acres south of Highway 50, just east of the former Mather Air Force Base. Sacramento County approved the plans in 2002. Since then, Rancho Cordova incorporated as a city and has taken over plan implementation — as well as the legal defense. Opponents have many gripes about the project but centered their objection on water supplies and the potential impacts of heavy groundwater pumping. Despite the litigation, about 1,800 houses have been built. Issued in early February, the decision in is the state Supreme Court’s second recent California Environmental Quality Act ruling. In July 2006, the court ruled that California State University must mitigate off-site traffic and fire safety impacts from expansion of the CSU Monterey Bay campus (see , September 2006). Several participants and commentators, though, see as the high court’s most important CEQA ruling since , (1988) 47 Cal.3d 376, and , (1990) 52 Cal.3d 553. In , the court held that an EIR must address reasonably foreseeable activities that result from a project, that a project may not be segmented into smaller parts during environmental review, and that an EIR must discuss project alternatives. In , the court held that the number of alternatives discussed is subject to the “real of reason,” but that alternative sites may have to be considered even for private developments. Since those landmark decisions, the state Supreme Court has heard few CEQA cases and has dealt primarily with finer points and process. Prior to last year’s decision in , 39 Cal.4th 341, the state’s high court had issued only two CEQA rulings in a decade. In , (2001) 25 Cal.4th 165, the court ruled that a city-sponsored ballot measure is subject to environmental review. And in , (1997) 16 Cal.4th 105, the court ruled that removing a species from the state’s endangered species list is not exempt from environmental review. The case, however, deals with substantive issues for an environmental study. And the issues involved have proven to be tricky, as trial and appellate courts have disapproved a number of EIRs because of inadequate analysis of water. “This court,” said attorney Moose, “is pretty firm on CEQA compliance. I contrast it with the rulings coming off the court back in the early ’90s, when it was a Deukmejian court.” Two other CEQA cases are pending before the state Supreme Court. In , No. S131484, the issue is whether an environmental review should have been completed before the commission adopted a compatibility plan that froze land use designations surrounding Travis Air Force Base. The second case, , No. S138975, concerns the EIR for the Cal-Fed Bay Delta project, which an appellate court found inadequate, partly because the EIR did not contain a “no growth” alternative. How To Pass The Test The EIR produced for the Sunrise-Douglas community plan and Sunridge specific plan was detailed and rigorous, Moose said. “There was nothing more we could have done when we wrote the EIR seven years ago,” he protested. “How could anyone have known?” Environmentalists, though, said the state Supreme Court decision is mostly a clarification of the rules. “It confirms that the appellate court cases have been correct,” said attorney Susan Brandt-Hawley, who submitted an amicus brief in support of the project opponents. “Courts understand water supply and the dangers of planning without it.” What the court said, according to winning attorney Volker, is that an EIR must apprise decision-makers and the public of possible water shortfalls and the potential environmental impacts of those shortfalls before a long-term development project is approved. Volker said the court is insisting on five things: • An inventory of existing approved and planned demands on water during buildout of a land use plan, such as a general plan. • An inventory of groundwater and surface water supplies expected to become available during the same timeframe. • An evaluation of whether the supplies will be sufficient. • If there is a discrepancy, an assessment of impacts resulting from not having water for all anticipated demands. • If there is adequate water, an evaluation of impacts of supplying the water. All of this likely falls under the heading of cumulative impacts, which have long vexed planners. In a dissenting opinion, Justice Marvin Baxter said that the court is demanding that a new analysis of long-term water supplies and impacts accompany every major development proposal. But the majority opinion said that an EIR for a project could tier off of studies of long-term water plans, such as an urban water management plan. The court’s decision appears to raise the profile of urban water management plans, which most municipal water providers must prepare for 20-year periods and update every five years. “I think where the rubber meets the road is in the urban water management plan,” said Volker, an Oakland-based environmental attorney. The urban water management plan is where supply and demand estimates need to correlate. If the plan shows that there is not enough water to supply expected growth, then building should be halted until new supplies are identified, he said. East Bay MUD’s Kanouse said the decision bolsters the need for good urban water management plans. If a thorough water plan is in place, there is no reason to prepare an analysis from scratch when a large subdivision is proposed, he said. “I’ve always thought the urban water management plan was very important,” added the CBIA’s Cammarota. “It’s the foundational document” and is the proper place for a discussion of water supply. The court’s decision may force water districts to take such plans more seriously, said Rivasplata. Some urban water management plans are “smoke and mirrors,” in that they mostly talk about searching for potential water sources and possible water delivery projects, he said. If developers rely on tenuous water plans, they may be inviting litigation, he said. Still, Moose pointed to the opinion itself, which suggests that a developer may be required to provide water impact mitigation. How could the developer ensure mitigation occurs, he asked, if the water is coming from the State Water Project or the federal Central Valley Project? Show Me The Water The court also addressed recent legislation that ties together water planning and land use planning. Senate Bill 901 from 1995 and SB 610 (both Costa) from 2001 amended the Water Code to require cities and counties to obtain supply assessments from water suppliers prior to approving large-scale development plans. Senate Bill 221 (Kuehl) from 2001 amended the Government Code to require that a subdivision of more than 500 units have “written verification” of a 20-year water supply before a city or county may approve a subdivision map. Citing a brief from the Association of California Water Agencies, the court said the legislation, taken together, demands “that ‘water supplies must be identified with more specificity at each step as land use planning and water supply planning move forward from general phases to specific phases.’ The plans and estimates that Water Code § 10910 mandates for future water supplies at the time of approval subject to CEQA must, under Government Code § 66473.7, be replaced by firm assurances at the subdivision map approval stage.” One issue not directly addressed by the state Supreme Court — but of great interest to anyone involved in CEQA litigation — concerns the court’s “standard of review.” The state high court invited briefing from interested parties on the issue but ended up making no specific pronouncement. However, in its decision, the court utilized the “substantial evidence” test, and determined that there was a lack of substantial evidence behind Sacramento County’s conclusion that adequate surface water diversions are likely to supply the project’s long-term needs. Brandt-Hawley, whose amicus brief focused on the standard of review, praised the court’s application of the substantial evidence test. She said a lead agency’s findings and conclusions must be supported by substantial evidence, while courts may apply a more deferential standard to an agency’s procedures and analysis. What puzzled some people, including Moose, Zischke and Cammarota, is that the project EIR appeared to contain substantial evidence that there was a reasonable likelihood water would be available for the long-term. The court did determine there was substantial evidence behind the county’s findings regarding short-term water supply. What practitioners need to do, said Zischke, is come up with an analysis that closely matches the approved short-term supply study. As for the project itself, the sides will return to Sacramento County Superior Court to fight over the next steps. Since the project was approved, Rancho Cordova has completed a general plan and accompanying EIR, which provide a great deal of water analysis, Moose said. The long-term water supplies are essentially in hand, he said, in that the Sacramento River diversion project has been approved without legal challenge. The only thing left is actual construction, which is expected to take about three years. Plus, Moose said, additional planning documents regarding the Cosumnes River indicate that groundwater pumping will have no adverse impact on that river and protected fish. The question is whether the city will have to approve a new EIR for the housing project that combines all of these things, he said. But Volker instead sees “a train wreck scenario.” “They have already violated the law by proceeding with development in the face of an unlawful approval,” Volker said. “I think it means that the project approvals will be set aside and that the City of Rancho Cordova will have to prepare supplemental EIRs for the Sunrise-Douglas community plan and the Sunridge specific plan.” Moreover, Volker is not persuaded that the recent Cosumnes River studies are adequate. The river is already dry during the late summer and early fall — the most critical times for migrating salmon, he said. The matter is likely to land in the Superior Court’s hands within the next several weeks. Contacts: James Moose, Remy, Thomas, Moose & Manley, (916) 443-2745. Stephan Volker, attorney for Vineyard Area Citizens for Responsible Growth, (530) 496-0600. Susan Brandt-Hawley, attorney for Stanislaus Natural Heritage Project, (707) 938-3908. Michael Zischke, Cox, Castle & Nicholson, (415) 262-5109. Randy Kanouse, East Bay Municipal Utility District, (916) 443-6948. Nick Cammarota, California Building Industry Association, (916) 443-7933. Terry Rivasplata, Jones & Stokes, (916) 737-3000.

A Superior Court decision prohibiting Apple Computer CEO Steve Jobs from demolishing an historic mansion in Woodside has been upheld by an appellate court. The court rejected the Town of Woodside’s conclusion that repairing or adding onto the house were economically infeasible project alternatives to demolition and replacement. The alternatives would cost an estimated $4.9 million to $10 million. However, there was no context for those expenses because no information was provided about Jobs’ ultimate project — construction of a new 6,000-square-foot residence. “As noted by the trial court, the feasibility of the alternatives must be evaluated within the context of the proposed project,” Justice Stuart Pollak wrote for the First District Court of Appeal. “‘The fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible,’” Pollak continued, citing , (1988) 197 Cal.App.3d 1167, 1181. “‘What is required is evidence that the costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project.’” The structure at issue is known as the Jackling House, a 17,250-square-foot, 14-bedroom mansion built during the Roaring ’20s by copper baron Daniel Jackling. George Washington Smith, a leading architect in the Spanish colonial revival style, designed the house, which contains many unique copper fixtures. Jobs purchased the house in 1984 and lived in it for 10 years. He then rented it out for several years. It has sat vacant since 2000. Seven years ago, Jobs applied to the Town of Woodside for a demolition permit because he hoped to replace the mansion with a new house on the six-acre lot. An environmental impact report listed five alternatives: no project, historic rehabilitation, historic rehabilitation with a new addition, on-site relocation and rehabilitation, or off-site relocation and rehabilitation. Town staff members recommended denial of the application, but the Planning Commission approved it. A group of preservationists called Uphold Our Heritage appealed to the Town Council, which also approved the project. The council found that none of the alternatives was feasible, and the council adopted a statement of overriding considerations because of the project’s unmitigated impacts to an historic resource. Uphold Our Heritage sued, and San Mateo County Superior Court Judge Marie Weiner ordered Woodside to set aside its approval of the demolition permit and the statement of overriding considerations. Woodside and Jobs then appealed. The preservationists did not challenge the adequacy of the EIR. Rather, they argued that substantial evidence did not support the town’s finding that the alternatives to demolition were infeasible. The council had determined that all alternatives except for the no-project option were economically infeasible. The council cited the expense of each, estimated at $4.9 million to $9 million or more according to the EIR, and at $5 million to $10 million by Jobs. The council also cited statements by Councilman Dave Tanner, a contractor who inspected the house. He said the cost of restoration would be “incredible.” Judge Weiner found this evidence to be insufficient because there was no comparison of the costs with the expense of the proposed new residence. Woodside and Jobs argued on appeal that, because the project involves a single-family residence, extensive cost information was not required to support the finding of infeasibility. The court agreed that the issue was subjective, but “some context is nonetheless necessary.” Jobs did not submit cost estimates for the proposed replacement home, and the record contained no evidence about the average cost of building a 6,000-square-foot house in Woodside, the court noted. “Without some information concerning the cost of constructing a new residence on the property, it is not possible to determine whether the cost of renovating the existing historic structure is reasonable or feasible. Indeed, so far as the present record reflects, it may be less expensive to renovate and preserve the existing structure than to build a new 6,000-square-foot residence suitable for the area,” Justice Pollak wrote. “If the cost of renovation exceeds the cost of new construction, it is the magnitude of the difference that will determine the feasibility of this alternative.” The court made clear that Jobs’ personal wealth was not a factor in the ruling. The question, Pollak wrote, is “whether the marginal costs of the alternative as compared to the cost of the proposed project are so great that a reasonably prudent property owner would not proceed with rehabilitation.” The court also rejected the argument that the alternatives were legally infeasible because the town cannot compel Jobs to restore the Jackling House or sell the property. “ here is no legal restraint on the town’s ability to approve the rehabilitation of Jackling House, or to deny permission to demolish the structure,” Pollak wrote. “The fact that Jobs does not wish to proceed with the rehabilitation does not make that alternative legally infeasible.” Finally, the court concluded, because the record did not support the finding of infeasibility, the town’s statement of overriding considerations was “necessarily invalid.” The Case: , No. A113376, 07 C.D.O.S. 1442, 2007 DJDAR 1818. Filed January 10, 2007. Ordered published February 7, 2007. The Lawyers: For Uphold Our Heritage: Douglas Carstens, Chatten-Brown & Carstens, (310) 314-8040. For Woodside: Jean Savaree, Aaronson, Dickerson, Cohn & Lanzone, (650) 593-3117. For Steve Jobs: Howard Ellman, Ellman, Burke, Hoffman & Johnson, (415) 777-2727.

A new joint powers authority has acquired 66 acres of coastal wetlands at the mouth of the San Gabriel River in Long Beach and Seal Beach, and may acquire at least 100 more acres in the near future. The Los Cerritos wetlands may provide the scene for the last major coastal wetlands restoration project in Southern California. The project has a very long way to go, as its size, scope and expense has yet to be defined. Only last summer did a joint powers authority composed of the cities of Long Beach and Seal Beach, the state Coastal Conservancy, and the Rivers and Mountains Conservancy acquire the first 66-acre piece. More than 300 additional acres of wetlands and potential wetlands still remain, all of it in private ownership. "The only reason it hasn't been developed is because it has been an oil field," said Sam Schuchat, executive director of the Coastal Conservancy. Now, the property is both contaminated and wetlands— a set of circumstances that makes development nearly impossible. Scientists and environmentalists have documented the fact that Southern California has lost at least 95% of its coastal wetlands to urban development. Two of the highest-profile environmental battles of the last 30 years have involved preservation of coastal wetlands — at Playa Vista in Los Angeles and at Bolsa Chica in Huntington Beach (see CP&DR Local Watch , October 2003; Environment Watch , January 2002). Only in recent years have public agencies acquired the wetlands at issue, and full restoration is still many years away. The other significant Southern California coastal wetlands are at Ormand Beach in Oxnard, a few sites in San Diego County and at Los Cerritos, according to Schuchat. "It feels to me like we are at the end game for coastal wetlands acquisitions in Southern California," Schuchat said. Thus far, Los Cerritos has not become a high-profile environmental cause, probably due to the lack of the development pressure that raised the stakes in Playa Vista and Bolsa Chica. This may be changing at Los Cerritos, though, because a controversial big-box development is proposed adjacent to the wetlands. In October 2006, Long Beach approved a 155,000-square-foot commercial center to be anchored by a Home Depot on 16 acres located across a channel from the wetlands. City officials said the project would have no impact on the wetlands, but the project, which lies in the coastal zone, has since been appealed to the Coastal Commission. Project opponents argue that runoff from the big-box center and its 750-space parking lot would harm the wetlands. Coastal Commission staff members have raised the issue and, in a staff report last November, noted that wetlands have not been fully delineated. Opponents argue that the big-box site itself is part of the Los Cerritos marsh. In its appeal to the Coastal Commission, the University Park Estates Neighborhood Association contended that the entire area needs a master plan before the city contemplates new development. "The desire to maximize the acquisition and restoration of the Los Cerritos wetlands and to minimize deleterious impacts through minimally invasive use of adjacent areas remains the overwhelming popular desire of the adjacent stakeholders," the appeal states. Developer Thomas Dean acquired the property from AES Corporation, which has an electricity generating plant nearby. AES no longer needed the 16-acre site, which had served as a tank farm. Schuchat said there is no interest in acquiring the proposed big-box site for the wetlands project. "We don't have any reason to believe that development will impact what we want to do," he said. Long Beach Councilman Gary DeLong, chairman of the Los Cerritos Wetlands Authority, also dismissed concerns about the big-box development's impact. DeLong, who voted for the Home Depot project, said the project is consistent with the city's local coastal program, and he insisted there is very little threat to the wetlands posed by any new development. The city's focus is on redeveloping existing areas, not on growing into sensitive wetlands, he said. The Coastal Commission will likely decide on the appeal later this year. The wetlands restoration project is not dependent on the Coastal Commission's decision. Originally, the marsh covered about 1,500 acres. Roughly 400 acres remains either undeveloped or in a reclaimable brownfield state. "All of the area was wetlands historically. The San Gabriel River had a delta there," Schuchat explained. "It's got these remnant wetlands, and, because they are on either side of the San Gabriel River, they are imminently restorable." Because the wetlands lie on both sides of the river — the boundary between Long Beach and Seal Beach, and the line between Los Angeles and Orange counties — no one entity has been willing to tackle the restoration project. One year ago, the two cities and two conservancies formed the joint powers authority. The authority's goals are to provide flood protection and habitat restoration, and to improve water supply and quality. The wetlands authority is negotiating to acquire an additional 100 acres. The Bixby Ranch Company owns another 180 acres in Los Cerritos. The original acquisition of 66 acres was enabled by the Trust for Public Land, which purchased the marshland from the longtime owners. The authority then acquired the property for $10 million. The Coastal Conservancy provided $7 million, while Signal Hill Petroleum provided $3 million. Signal Hill will continue to extract oil from the site, but agreed to consolidate roads and well sites. Additional acquisitions could be funded with Proposition 84 bond money and possibly by the Port of Long Beach as environmental mitigation. Those same potential resources might also help pay for restoration work. Exactly what the wetlands authority will do with the site is undecided. Some conceptual planning has been done, and authority members are starting to work on more detailed plans. At this point, a complete study of habitat values has yet to be completed. Schuchat said a lengthy planning process with plenty of public input is in order. But, he warned, there can be a clash between habitat and public access. Indeed, DeLong emphasized that there must be more in the wetlands project than simply a lack of urban development. "As we do the restoration," he asked rhetorically, "how do we turn it into a community-serving asset — and not just something you can look at out your car window as you drive by?" Contacts: Sam Schuchat, Coastal Conservancy, (510) 286-1015. Councilman Gary DeLong, Long Beach, (562) 570-6300. Coastal Commission appeals and staff report: http://documents.coastal.ca.gov/reports/2006/11/Th14b-11-2006.pdf Los Cerritos Wetlands Authority: www.rmc.ca.gov/wetlands/about/about.html

In issuing its second California Environmental Quality Act ruling in seven months, the conservative-leaning California Supreme Court is emerging as one of CEQA's staunchest defenders. The latest decision — the rejection of an environmental impact report's water analysis for a large Sacramento-area housing project — is the court's first foray into such water studies, and the court appears to have set a high standard. There are no overt liberals among the seven state Supreme Court justices these days. Justice Carlos Moreno is the only high court jurist appointed by a Democratic governor, and he began his career on the bench as a Deukmejian appointee to the Los Angeles Municipal Court. Yet, said CEQA attorney James Moose, even among conservative judges, "the environmental values are just so accepted in this society." In a ruling that Moose and many others say is the state Supreme Court's most important CEQA decision in almost 20 years, the court stopped short of saying that a development project must have a guaranteed water source. However, the court made clear that anything less than a guarantee must be fully disclosed, and the alternatives scrutinized. "If the uncertainties inherent in long-term land use and water planning make it impossible to confidently identify the future water sources, an EIR may satisfy CEQA if it acknowledges the degree of uncertainty involved, discusses the reasonably foreseeable alternatives — including alternative water sources and the option of curtailing the development if sufficient water is not available for later phases — and discloses the significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact," Justice Kathryn Werdegar wrote for the court's six-judge majority. (For more details on the ruling in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova , please see CP&DR Legal Digest story ). Michael Zischke, an attorney who filed an amicus brief supporting the city on behalf of the California State Association of Counties, said that the court is insisting on the "reasonable likelihood of water." That is a workable standard for developers and local governments, he said. Whether this standard is new is open to interpretation. Moose, who represented developer Angelo Tsakopoulos in the litigation, said the court handed down a "stringent new set of rules." "I don't think there are too many EIRs out there that would pass this test," Moose said. Attorney Stephan Volker, who represented project opponents, agreed with Moose that the decision is "far-reaching." But Volker said the state Supreme Court mostly combined appellate court case law with recent statutory changes. "This is the first time a court has put it all together in a comprehensive way," Volker said. Terry Rivasplata, a senior environmental planner for Jones & Stokes in Sacramento, portrayed the decision as new policy. "It raises the bar. It makes sure people are looking forward to the long-term impact," he said. Randy Kanouse, a lobbyist for the East Bay Municipal Utility District (MUD) and chief proponent of water planning legislation on which the court based part of its ruling, said the court correctly interpreted the statutes. The court is requiring the rigorous analysis required by the legislation, which merely sought to better connect land planning and water planning, he said. "They didn't stop the project. To those who claim you've got to have all of your water rights and all of the water in a constructed reservoir, that's wrong," Kanouse said. Both the law and the court require only that project proponents make progress toward getting real water to serve new development, he said. "My critics in the building community used to try to demonize the legislation as more than what it is." In fact, California Building Industry Association (CBIA) General Counsel Nick Cammarota characterized the ruling as "a fairly decent decision." The court upheld the analysis of the project's short-term water supply, and the court made clear that written verification of water agreements, public works project approvals and financing — and not necessarily readily available water — are adequate at the time of project approval, he said. The court's decision "does clarify what the rules are for the discussion of water supply in an EIR," Cammarota said. "They said you didn't absolutely have to have certainty with respect to your water supply." 20,000 Units The project that started the litigation decided by the court is the Sunrise-Douglas community plan, plus the Sunridge specific plan for about half of the community plan area. The community plan calls for roughly 20,000 housing units and 500 acres of retail and office development on 6,000 acres south of Highway 50, just east of the former Mather Air Force Base. Sacramento County approved the plans in 2002. Since then, Rancho Cordova incorporated as a city and has taken over plan implementation — as well as the legal defense. Opponents have many gripes about the project but centered their objection on water supplies and the potential impacts of heavy groundwater pumping. Despite the litigation, about 1,800 houses have been built. Issued in early February, the decision in Vineyard Area Citizens is the state Supreme Court's second recent California Environmental Quality Act ruling. In July 2006, the court ruled that California State University must mitigate off-site traffic and fire safety impacts from expansion of the CSU Monterey Bay campus (see CP&DR Legal Digest , September 2006 ). Several participants and commentators, though, see Vineyard Area Citizens as the high court's most important CEQA ruling since Laurel Heights Improvement Ass'n v. Regents of Univ. of Cal. , (1988) 47 Cal.3d 376, and Citizens of Goleta Valley v. Board of Supervisors , (1990) 52 Cal.3d 553. In Laurel Heights , the court held that an EIR must address reasonably foreseeable activities that result from a project, that a project may not be segmented into smaller parts during environmental review, and that an EIR must discuss project alternatives. In Goleta Valley , the court held that the number of alternatives discussed is subject to the "real of reason," but that alternative sites may have to be considered even for private developments. Since those landmark decisions, the state Supreme Court has heard few CEQA cases and has dealt primarily with finer points and process. Prior to last year's decision in City of Marina v. Board of Trustees , 39 Cal.4th 341, the state's high court had issued only two CEQA rulings in a decade. In Friends of Sierra Madre v. City of Sierra Madre , (2001) 25 Cal.4th 165, the court ruled that a city-sponsored ballot measure is subject to environmental review. And in Mountain Lion Foundation v. Fish & Game Comm'n , (1997) 16 Cal.4th 105, the court ruled that removing a species from the state's endangered species list is not exempt from environmental review. The Vineyard Area Citizens case, however, deals with substantive issues for an environmental study. And the issues involved have proven to be tricky, as trial and appellate courts have disapproved a number of EIRs because of inadequate analysis of water. "This court," said attorney Moose, "is pretty firm on CEQA compliance. I contrast it with the rulings coming off the court back in the early '90s, when it was a Deukmejian court." Two other CEQA cases are pending before the state Supreme Court. In Muzzy Ranch v. Solano County Airport Land Use Commission , No. S131484, the issue is whether an environmental review should have been completed before the commission adopted a compatibility plan that froze land use designations surrounding Travis Air Force Base. The second case, In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings , No. S138975, concerns the EIR for the Cal-Fed Bay Delta project, which an appellate court found inadequate, partly because the EIR did not contain a "no growth" alternative. How To Pass The Test The EIR produced for the Sunrise-Douglas community plan and Sunridge specific plan was detailed and rigorous, Moose said. "There was nothing more we could have done when we wrote the EIR seven years ago," he protested. "How could anyone have known?" Environmentalists, though, said the state Supreme Court decision is mostly a clarification of the rules. "It confirms that the appellate court cases have been correct," said attorney Susan Brandt-Hawley, who submitted an amicus brief in support of the project opponents. "Courts understand water supply and the dangers of planning without it." What the court said, according to winning attorney Volker, is that an EIR must apprise decision-makers and the public of possible water shortfalls and the potential environmental impacts of those shortfalls before a long-term development project is approved. Volker said the court is insisting on five things: • An inventory of existing approved and planned demands on water during buildout of a land use plan, such as a general plan. • An inventory of groundwater and surface water supplies expected to become available during the same timeframe. • An evaluation of whether the supplies will be sufficient. • If there is a discrepancy, an assessment of impacts resulting from not having water for all anticipated demands. • If there is adequate water, an evaluation of impacts of supplying the water. All of this likely falls under the heading of cumulative impacts, which have long vexed planners. In a dissenting opinion, Justice Marvin Baxter said that the court is demanding that a new analysis of long-term water supplies and impacts accompany every major development proposal. But the majority opinion said that an EIR for a project could tier off of studies of long-term water plans, such as an urban water management plan. The court's decision appears to raise the profile of urban water management plans, which most municipal water providers must prepare for 20-year periods and update every five years. "I think where the rubber meets the road is in the urban water management plan," said Volker, an Oakland-based environmental attorney. The urban water management plan is where supply and demand estimates need to correlate. If the plan shows that there is not enough water to supply expected growth, then building should be halted until new supplies are identified, he said. East Bay MUD's Kanouse said the decision bolsters the need for good urban water management plans. If a thorough water plan is in place, there is no reason to prepare an analysis from scratch when a large subdivision is proposed, he said. "I've always thought the urban water management plan was very important," added the CBIA's Cammarota. "It's the foundational document" and is the proper place for a discussion of water supply. The court's decision may force water districts to take such plans more seriously, said Rivasplata. Some urban water management plans are "smoke and mirrors," in that they mostly talk about searching for potential water sources and possible water delivery projects, he said. If developers rely on tenuous water plans, they may be inviting litigation, he said. Still, Moose pointed to the opinion itself, which suggests that a developer may be required to provide water impact mitigation. How could the developer ensure mitigation occurs, he asked, if the water is coming from the State Water Project or the federal Central Valley Project? Show Me The Water The court also addressed recent legislation that ties together water planning and land use planning. Senate Bill 901 from 1995 and SB 610 (both Costa) from 2001 amended the Water Code to require cities and counties to obtain supply assessments from water suppliers prior to approving large-scale development plans. Senate Bill 221 (Kuehl) from 2001 amended the Government Code to require that a subdivision of more than 500 units have "written verification" of a 20-year water supply before a city or county may approve a subdivision map. Citing a brief from the Association of California Water Agencies, the court said the legislation, taken together, demands "that ‘water supplies must be identified with more specificity at each step as land use planning and water supply planning move forward from general phases to specific phases.' The plans and estimates that Water Code § 10910 mandates for future water supplies at the time of any approval subject to CEQA must, under Government Code § 66473.7, be replaced by firm assurances at the subdivision map approval stage." One issue not directly addressed by the state Supreme Court — but of great interest to anyone involved in CEQA litigation — concerns the court's "standard of review." The state high court invited briefing from interested parties on the issue but ended up making no specific pronouncement. However, in its decision, the court utilized the "substantial evidence" test, and determined that there was a lack of substantial evidence behind Sacramento County's conclusion that adequate surface water diversions are likely to supply the project's long-term needs. Brandt-Hawley, whose amicus brief focused on the standard of review, praised the court's application of the substantial evidence test. She said a lead agency's findings and conclusions must be supported by substantial evidence, while courts may apply a more deferential standard to an agency's procedures and analysis. What puzzled some people, including Moose, Zischke and Cammarota, is that the project EIR appeared to contain substantial evidence that there was a reasonable likelihood water would be available for the long-term. The court did determine there was substantial evidence behind the county's findings regarding short-term water supply. What practitioners need to do, said Zischke, is come up with an analysis that closely matches the approved short-term supply study. As for the project itself, the sides will return to Sacramento County Superior Court to fight over the next steps. Since the project was approved, Rancho Cordova has completed a general plan and accompanying EIR, which provide a great deal of water analysis, Moose said. The long-term water supplies are essentially in hand, he said, in that the Sacramento River diversion project has been approved without legal challenge. The only thing left is actual construction, which is expected to take about three years. Plus, Moose said, additional planning documents regarding the Cosumnes River indicate that groundwater pumping will have no adverse impact on that river and protected fish. The question is whether the city will have to approve a new EIR for the housing project that combines all of these things, he said. But Volker instead sees "a train wreck scenario." "They have already violated the law by proceeding with development in the face of an unlawful approval," Volker said. "I think it means that the project approvals will be set aside and that the City of Rancho Cordova will have to prepare supplemental EIRs for the Sunrise-Douglas community plan and the Sunridge specific plan." Moreover, Volker is not persuaded that the recent Cosumnes River studies are adequate. The river is already dry during the late summer and early fall — the most critical times for migrating salmon, he said. The matter is likely to land in the Superior Court's hands within the next several weeks. Contacts: James Moose, Remy, Thomas, Moose & Manley, (916) 443-2745. Stephan Volker, attorney for Vineyard Area Citizens for Responsible Growth, (530) 496-0600. Susan Brandt-Hawley, attorney for Stanislaus Natural Heritage Project, (707) 938-3908. Michael Zischke, Cox, Castle & Nicholson, (415) 262-5109. Randy Kanouse, East Bay Municipal Utility District, (916) 443-6948. Nick Cammarota, California Building Industry Association, (916) 443-7933. Terry Rivasplata, Jones & Stokes, (916) 737-3000.

An appellate court has ruled that a property owner that sold its property to a third party after the Temple City Redevelopment Agency had commenced eminent domain proceedings is entitled to litigation expenses. A trial court judge had refused the request of Bayside Drive Limited Partnership for $43,000 in litigation expenses incurred while defending the city's condemnation lawsuit. The trial court said the property owner was not eligible for reimbursement because the eminent domain proceeding was dismissed due to Bayside's voluntary sale of the property to someone else. But a three-judge panel of the Second District Court of Appeal, Division One, ruled otherwise. The court cited Code of Civil Procedure § 1268.610, subdivision (a)(1), which states in part: " he court shall award the defendant his or her litigation expenses whenever … the proceeding is wholly or partly dismissed for any reason." "We find nothing ambiguous about the statute and conclude it must be given its plain meaning," Justice Miriam Vogel wrote for the court The Temple City Redevelopment Agency in late 2004 filed two eminent domain complaints to acquire property — one against Bayside and one against Pi Yun Hou Wang. The agency deposited $1.25 million as the probable amount of compensation for Bayside's property. While an October 2005 trial date was pending, Bayside sold its property to Wang for $2 million. The agency then dismissed both eminent domain actions because Bayside was no longer a property owner, and because Wang agreed to develop the property according to the city's redevelopment plan. Bayside then requested $43,000 in litigation expenses, including $35,000 for attorney fees. Bruce Mitchell, a temporary judge of the Los Angeles County Superior Court, initially disallowed $20,000 of the request. After additional briefing, Mitchell awarded Bayside $592 in "ordinary costs" but refused the remaining $22,500, which he said would be a windfall for the property owner. Bayside then turned to the appellate court for the $22,500. The Second District panel said the law supports Bayside's request. It does not matter why the eminent domain lawsuit was dropped, the court said in its short opinion, which repeatedly cites the phrase "for any reason" contained in the statute. " he purpose of the statute is plain — to compensate a defendant who has been put to the task of defending a condemnation action when, for whatever reason, the action is dismissed. That the defendant might fortuitously be able to extricate itself from an expensive condemnation action by selling the property to a willing buyer may or may not mean the defendant has thereby recouped the litigation expenses incurred up to the time of sale," Vogel wrote. The court rejected the city's argument, and the trail court's finding, that this reading of the law permits potential abuses. " e do not see a market developing for the purchase of properties in the midst of pending condemnation proceedings simply to permit the seller to recoup a portion of the fees and costs incurred in defending the property up to the time of the sale — and we therefore refuse to adopt the agency's ‘don't open the floodgates' argument where there is no chance of a flood," Vogel wrote. The court further ruled that Bayside is eligible for fees and costs — including attorney fees — incurred during the appeal. The Second District sent the case back to the Superior Court for a determination of reasonable appellate litigation expenses and a determination on whether any of the requested $22,500 should not be paid by the redevelopment agency. The Case: Temple City Redevelopment Agency v. Bayside Drive Limited Partnership , Nos. B198736, B189737, 07 C.D.O.S. 970, 2007 DJDAR 1207. Filed January 25, 2007. The Lawyers; For Temple City: Dean Dennis, Hill, Farrar & Burrill, (213) 620-0460. For Bayside: Christopher Sutton, (626) 683-2500.