Finally heeding a message of alarm that experts have been sounding for a decade, California voters in November authorized an unprecedented investment in the fragile network of levees that protects homes, farms and critical infrastructure in the Central Valley from catastrophic flooding. Between Proposition 1E, which authorized $4.1 billion for levee improvement, and Proposition 84, a water bond that included $800 million for flood-control projects, the levee system stands to get a $5 billion upgrade. The investment comes not a moment too soon. Flood experts have long warned that California faces a potential disaster in the Central Valley, where 1,600 miles of levees protect about 400,000 people living in and around Sacramento, while another 1,100 miles of levees protect farmland, homes and critical infrastructure in the Sacramento-San Joaquin Delta. Those experts have had trouble getting anyone to listen. But when the levees protecting New Orleans failed catastrophically in the wake of Hurricane Katrina in 2005, flooding 85% of the city and killing more than 1,000 people, the devastation finally focused public attention on the substandard condition of California’s flood system. The result: 64% of voters approved the levee improvement bond. But apparently not everyone received the same message. Four days before the November election, an environmental group filed an appeal with the Delta Protection Commission to halt a large development planned in the Delta flood zone. Yolo County approved the project, proposed by Clarksburg Investment Partners LLC and 44 Willow Point LLC, on October 24, allowing construction of 162 homes on the old Delta Sugar mill property in Clarksburg, a small town on the bank of the Sacramento River. The plan also designates 25 acres for commercial use and 30 acres for industry. “To put that many families directly in the floodplain is just indefensible,” said Kate Pool, a spokeswoman for the Natural Resources Defense Council, which filed the appeal. “Have we learned nothing about planning in lowlands since the disaster of Katrina?” The Delta Protection Commission scheduled a January 25 hearing on the appeal, and told Yolo County to halt the project in the interim. Like New Orleans, much of the Sacramento-San Joaquin Delta is below sea level and sinking. And like New Orleans, the bowl on the inland edge of San Francisco Bay is rimmed by a network of protective levees buffeted by storms and tides. There’s no big city in the Delta, but the levees there protect something critical to much of the state’s urban population: two huge pumping plants, one operated by the state and the other by the federal government. Located at the south end of the Delta, those pumping plants send water south in aqueducts to irrigate nearly 4 million acres of cropland in the San Joaquin Valley and to meet the residential and industrial needs of two-thirds of California’s population. While the vulnerability of the Delta pumps has statewide significance, cities in the Central Valley outside the Delta are vulnerable to local flooding and rely on an aging system of protective devices that experts warn is inadequate. Judged by the level of protection provided by levees and dams, Sacramento faces the highest risk of flooding of any major American city, according to the Sacramento Area Flood Control Agency. The Clarksburg development would be squarely in the valley’s danger zone, protected by flood-control levees. At issue in the NRDC appeal, which was filed on behalf of the group by Earthjustice attorneys, is whether the project site lies within the “primary zone of the Delta,” as defined by the Delta Protection Act. That legislation was adopted in 1992, designating primary and secondary zones in the Delta, establishing the Delta Protection Commission and requiring development of a land use and resource management plan for the primary zone (see , June 2004). That zone encompasses about 500,000 acres in the heart of the Delta. Because the primary zone is vulnerable to flooding and includes productive farmland and wildlife habitat, urban development is prohibited unless the proponents can demonstrate that their projects will not result in loss of wetlands or riparian habitat, won’t degrade water quality, won’t interfere with migratory birds or public access, won’t harm agricultural operations, and “will not expose the public to increased flood hazards.” The Delta secondary zone, consisting of about 238,000 acres, encompasses the remainder of the legally defined Delta region and has less stringent controls. All local agencies whose jurisdictions overlap the Delta were required to amend their planning documents so they are consistent with the Delta Protection Act. Those include the counties of Yolo, Contra Costa, Sacramento, San Joaquin and Solano, as well as at least nine cities. Clarksburg is one of several unincorporated communities in the Delta, and the sugar mill development falls under Yolo County jurisdiction. The Delta commission arbitrates disputes over whether the actions of local agencies conflict with the Delta plan. The mill was constructed in 1934 to process sugar beets and ceased operation in 1993. The current owners have transformed part of the brick mill complex into winemaking and tasting facilities, plus offices, shops and other commercial ventures. Lawyers for Yolo County and the developer have argued that, although the site is technically within the Delta primary zone as shown on official state maps, the Delta Protection Act exempted previously developed areas from its restrictions on urban expansion. In its appeal, the NRDC says the exemption was intended to apply only to property within city limits, and that the urban footprint of unincorporated Clarksburg does not count. The larger issue at stake, according to the NRDC, is that the project would result in additional residents moving into a floodplain protected only by a century-old earthen levee that even the county acknowledges is likely to fail. Along with the 105-acre development, the project would include construction of a wastewater-treatment facility that also would be at risk of flooding. The sugar mill project is only the second appeal the Delta Protection Commission has ever been asked to consider, which is somewhat remarkable given the pace of floodplain development in the Sacramento region over the past decade. Much of the growth, however, has taken place outside the Delta proper. “While development in the primary zone has been moderate and consistent with the provisions of the management plan, activities in the secondary zone, have continued to increase at a significant rate,” the commission noted in its 2005 annual report. “Thus, the potential for development activities in the secondary zone to impact the primary zone continues to be of increasing concern.” Documents related to the sugar mill project and the appeal, including filings by NRDC, Yolo County and the developers, are at www.delta.ca.gov/Default.asp .

A ruling from the State of Washington by the Ninth U.S. Circuit Court of Appeals suggests that local governments in California may want to review their sign ordinances. The court struck down the City of Redmond’s ordinance banning portable and offsite signs because the ordinance had content-based exceptions. Those exceptions rendered the ordinance invalid because they showed that the regulation was more extensive than necessary to promote the stated public interests of safety and aesthetics, according to the Ninth Circuit. Beginning in late 2002, Dennis Ballen, the owner of Blazing Bagels, had an employee stand on a sidewalk while wearing a sign that said, “Fresh Bagels — Now Open.” The city notified Ballen in June 2003 that the sign violated the city’s portable and off-site sign ordinance, and the city ordered Ballen to cease and desist. Instead, Ballen sued under federal civil rights law, 42 U.S.C. § 1983, and he won a ruling by Western District of Washington Judge Marsha Pechman. He also received $165,000 in attorney fees and costs. The city appealed, and the Ninth Circuit upheld the ruling and the monetary award. The Ninth Circuit noted that commercial speech enjoys limited First Amendment protection. The U.S. Supreme Court established a four-prong test for determining the validity of restrictions on commercial speech in , 447 U.S. 557 (1980). A regulation’s validity depends on (1) whether the speech concerns a lawful activity and is not misleading, (2) whether the asserted government interest is substantial, (3) whether the regulation directly advances that interest, and (4) whether the regulation is not more extensive than necessary. Both sides conceded the first two prongs had been satisfied. The Ninth Circuit, though, determined that the ordinance failed to satisfy the fourth prong. The city’s ordinance exempted 10 categories: banners on the Redmond Way railroad overpass, construction signs, celebration displays, banners in the city center neighborhood, major land use action notices, political signs, real estate signs, temporary window signs, kiosk placards, and signs related to temporary and secondary uses of schools, churches and community buildings. “Different signs are treated differently based entirely on a sign’s content,” Judge Richard Tallman wrote for the Ninth Circuit. “The city has failed to show how the exempted signs reduce vehicular and pedestrian safety or besmirch community aesthetics any less than the prohibited signs.” Tallman continued: “While some of the ordinance’s content-based exceptions are reasonable — political signs are subject to strict scrutiny, construction signs promote traffic and pedestrian safety, banner displays may enhance community aesthetics — others compromise the city’s interests. More specifically, ubiquitous real estate signs, which can turn an inviting sidewalk into an obstacle course challenging even the most dextrous hurdler, are an even greater threat to vehicular and pedestrian safety and community aesthetics than the presence of a single employee holding an innocuous sign that read: ‘Fresh Bagels — Now Open.’” The city could impose time, place and manner restrictions on all signs, or it could restrict signs with live people holding them, according to the Ninth Circuit. But Redmond’s ordinance “is not a reasonable fit between the restriction and the goal.” As for the monetary award, the Ninth Circuit ruled that Ballen was entitled to the money under 42 U.S.C. § 1988 and that the lower court did not abuse its discretion in determining the amount. The Case: , Nos. 04-35606, 04-35758, 06 C.D.O.S. 8740, 2006 DJDAR 14065. Filed September 15, 2006. The Lawyers: For Ballen: Steven Simpson, Institute for Justice, (703) 682-9320. For the city: J. Zachary Lell, Ogden, Murphy, Wallace, (206) 447-7000.

The First District Court of Appeal has thrown out the City of American Canyon’s approval of a Wal-Mart supercenter because the city did not comply with the California Environmental Quality Act and violated its own zoning ordinance. Without conducting additional environmental review, the city permitted the Wal-Mart project as a minor change to an earlier approved mixed-use project. However, the court found that the city incorrectly described the size of the Wal-Mart project in what the court suggests was a deliberate attempt not to trigger environmental review and the zoning ordinance requirement for a “major modification application.” In 2003, Lake Street Ventures (later succeeded by Napa Junction I, LLC) proposed a 40-acre project on Highway 29 in American Canyon, a 15-year-old city between Napa and Vallejo. The project consisted of a hotel, about 200 apartments, a 3-acre park, and retail space. Phase one would consist of the hotel, housing and approximately 32,000 square feet of retail space. Phase two would add about 165,000 square feet of retail. In December of 2003, the City Council adopted a mitigated negative declaration for the project, and approved zoning ordinance and map amendments, a general plan amendment and a tentative subdivision map. Seven months later, Wal-Mart applied for a design permit and sign program. The company proposed building a supercenter of 173,000 square feet, plus a 12,000-square-foot outdoor garden center and 7,600-square-foot seasonal sales area in the parking lot. Various groups quickly formed to fight Wal-Mart, but the Planning Commission approved the design permit and sign program without further environmental review. However, the Commission limited hours of operation to 6 a.m. to midnight. Wal-Mart wanted a 24-hour store, so it appealed to the City Council. Project opponents also appealed, and the City Council gave Wal-Mart what it wanted. The groups American Canyon Community United for Responsible Growth and Citizens Against Poor Planning sued, alleging the city violated CEQA and the local zoning ordinance. The lawsuits were combined, and a Napa County Superior Court judge ruled for the city. The case then went on appeal to the First District, Division Five. Wal-Mart opponents argued that the supercenter was a new project that should have triggered a fresh environmental review. The First District rejected that argument, instead ruling that Public Resources Code § 21166 and CEQA Guidelines § 15162 apply because the supercenter was a change to an already approved project. The court found that the Wal-Mart plan was substantially larger than the originally approved project — despite city staff reports that the Wal-Mart would actually be smaller than the original project. The city had excluded 38,000 square feet of stockroom, employee use area and seasonal sales space and said the Wal-Mart project amounted to only 154,000 square feet. In court, the city and Wal-Mart argued that the 154,000 square feet figure was consistent with the definition of “gross leasable area” in the general plan. Based on this square footage, the city determined the Wal-Mart store was not a substantial change from the original project and would need no supplemental environmental review. But the court found that there was no reason to redefine the project this way, and that it did not meet the general plan definition anyway, because the general plan speaks to “total gross floor area designed for tenants’ occupancy and exclusive use.” “By making adjustments in the square footage of the supercenter proposal and then comparing that adjusted square footage to the unadjusted square footage of retail space in the original project, the city makes an inapt comparison,” Justice Linda Gamello wrote for the court. “The city cites no evidence and makes no argument to justify using different methods of calculating the square footage of the supercenter and the other retail spaces. Absent such a foundation, the city’s comparison is distorted and cannot support the conclusion that the square footage of the project’s retail component did not materially change.” The city did prepare a brief, revised traffic study — based on 154,000 square feet — that concluded the daily peak hour trips generated by Wal-Mart would be 1,207, compared with 1,273 estimated in the original project’s mitigated negative declaration. Again, the court rejected the city’s description of the project size. “Nothing in the record explains the city’s use of 154,074 for the square footage of the supercenter in the revised trip generation analysis. The analysis itself is a one-page document consisting of two tables and footnotes, none of which explains how the relevant square footage of the supercenter was determined,” Justice Gamello wrote. “The staff report to the City Council makes the naked assertion that 154,074 square feet was used because the storeroom and employee space ‘will not generate vehicle trips.’” The city’s low calculation “fatally undermines its conclusion that the supercenter proposal would have no significant effects on traffic requiring supplemental environmental review.” The court also accepted the opponents’ argument that the city failed to consider the Wal-Mart project’s potential to cause urban decay outside the city limits. The city and Wal-Mart countered with a city manager’s cost/benefit analysis that was limited to the city. “Other evidence in the record strongly suggested the supercenter might have substantial extraterritorial effects,” Gamello wrote. “Appellant’s expert predicted that the supercenter would cause both a Wal-Mart discount store and a Food-4-Less grocery store in Vallejo to close. Because those stores are co-anchors of a shopping center, the expert opined that their closure would likely lead to urban decay.” The court further advised the city that, when it reconsiders the project, it should take into account the impacts of reasonable foreseeable development, as the supercenter proposal reserved two other areas in phase two for future development. As for the zoning violation, the court cited the city zoning ordinance, which requires a major modification application for an increase of more than 5% in a project’s square footage. Again rejecting the city’s description of a 154,000-square-foot project, the court determined the Wal-Mart project was an increase of at least 6.5%. The court directed the city to comply with CEQA and its own zoning code, and asked the Superior Court to consider halting construction or retail activity until the city complies with CEQA. In fact, construction has stopped on the nearly completed supercenter. The Case: , No. A112088, 06 C.D.O.S. 11552. Filed November 13, 2006. Ordered published December 19, 2006. The Lawyers: For ACCURG: Steven Herum, Herum, Crabtree & Brown, (209) 472-7700. For the city: William Ross, (650) 843-8080. For Citizens Against Poor Planning: Timothy M. Taylor, Somach, Simmons & Dunn, (916) 446-7979. For Wal-Mart: Judy Davidoff, Steefel, Levitt & Weiss, (415) 788-0900.

In the beginning there was the general plan. This is an overstatement of Dan Curtin’s world view, but not by much. The dean of California land use lawyers, who died a few weeks ago at age 73, was an almost priestly man of faith who believed in God, the rule of law, and the process of land use planning. Over the past 25 years, other land use lawyers in California had busy practices and a few even had more appellate cases under their belt. But no one else had Curtin’s gravity – his deep respect for the law, his firm grasp of the overall land use planning process, his unassailable sense of authority. Much of his outsized reputation came from his authorship of , the flagship title at Solano Press Books. (Note: Solano Press also publishes , written by yours truly and Paul Shigley, editor of this publication.) But ultimately, Curtin’s legacy is not really the book, or the endless conferences and lectures he enjoyed providing, or the two generations of land use lawyers he so lovingly mentored. In legal terms, his real legacy is the general plan. When Curtin began his career in municipal law during the 1960s, the general plan was a thin, semi-optional advisory document that some cities took seriously and others didn’t. By the time Dan died, it was – as he so often said – the “constitution for the future development of a community.” This transformation occurred in large part because Dan himself made it happen – and especially because Dan won the most important case of his career. It was a case that Dan spent his whole career preparing to litigate, and no novelist could have crafted a better story. Although Curtin was courtly in an old-school lawyerly way, he did not come from a silk-stocking background. He was San Francisco Irish Catholic through and through. Curtin grew up in the Sunset District to Irish immigrant parents during the 1940s. As a boy he went to seminary. His sister became a nun and one of his best friends from seminary – a longtime priest – officiated at his funeral in Walnut Creek. True to form, he went to both college and law school at the University of San Francisco, a respected Catholic institution. Curtin served in the Army during the late ’50s but quickly moved into government law. He worked on the legislative staff in Sacramento for two years – this was during the speakership of Ralph M. Brown, for whom the Brown Act is named – and then went into local government. In Richmond, he was the assistant city attorney for four years. In 1965, he became city attorney of Walnut Creek at age 32. He held the job for 17 years – essentially, from the end of Pat Brown’s administration to the end of Jerry Brown’s administration. This turned out to be perfect timing for a smart, young municipal lawyer interested in land use. California was in the midst of a vast postwar suburban growth boom that was sweeping into outer suburbs. During the ’60s, Walnut Creek grew from 9,000 to 39,000 people and in the 1970s expanded again to 54,000 people. Curtin’s tenure as city attorney straddled the growth management case, the passage of the California Environmental Quality Act and the major general plan law revisions of 1971, the CEQA case, the case that created the state’s “late vesting” rule, the passage of the development agreement law, the first major revision of redevelopment law, and three California Supreme Court rulings in the late ’70s that opened the floodgates for ballot-box zoning. To put it bluntly: When Dan Curtin became Walnut Creek’s city attorney in 1965, there was really no such thing as a land use lawyer. When he left in 1982, there were hundreds of them – and Dan was their guru. He became the guru for two reasons. The first was his unflagging willingness to lecture on the latest developments in land use law to practically anybody who would listen – a sideline that eventually led to the publication of his book. The second was his deep and heartwarming desire to mentor young land use lawyers and planners, which influenced two generations of practitioners throughout California. Curtin began doing land use law updates in various venues in 1973 – just when land use law was emerging as a complicated specialty – and soon became the hit of the UC Extension circuit, giving updates and lectures all over the state constantly. Eventually, he turned his standard binder into , now in its 27th edition. At the podium he often seemed professorial, but in retrospect a better description might be priestly. Curtin’s Irish Catholic background gave him great reverence for authority and he conveyed that reverence in a straightforward and unvarnished way. When discussing an appellate court ruling, he rarely identified the individual court that issued the decision or the individual justice who wrote it. He simply stated: “The court said …” To Dan, it didn’t really matter which court or which justice – even if it was somebody who used to work for him. The court’s imprimatur was enough for him. He was only delivering the message from on high. And the core of the message was primacy of the general plan. The most significant legal revision occurred in 1971, when the state created the consistency requirement – meaning the general plan must be internally consistent and that other planning documents, such as the zoning ordinance, must be consistent with the plan As Dan pointed out on page 8 of his book – quoting several appellate cases – this change transformed the general plan from “an interesting study” to “the basic land use charter that embodies fundamental land use decisions and governs the direction of future land use in a city’s jurisdiction.” For someone steeped so deeply in Roman Catholic doctrine, the clarity of this act seemed both appealing and reassuring. So Dan saw it as his mission to spread the word about the general plan. In 1982, shortly after publishing for the first time, Dan left the City of Walnut Creek and went into private practice with his friend Sanford Skaggs, an eminent domain lawyer who had been on the City Council in Walnut Creek during the ’70s. Van Voorhis & Skaggs soon became one of the leading land use firms in the state – so attractive that during the rash of law firm mergers in the 1980s, it was bought out by the great San Francisco firm of McCutchen, Doyle, Brown & Enersen, now known as Bingham McCutchen. The hurly-burly of daily legal practice required Curtin’s shop to take all kinds of cases. Inevitably, he often represented developers in private practice, which sometimes left him open to criticism, especially from citizen groups and environmentalists who believed he had sold out. But because of his reputation, he could – on significant cases – pick his spots. It’s true that most of his important appellate work involved representing developers. But each case was framed around defending a fundamental principle of the general plan. In this way he always managed to stay above the fray. This was true in all of his major cases – especially the most important one. After Curtin left the city attorney’s office, Walnut Creek fell into a divisive battle over growth typical of suburban cities in the 1980s. During this period, the city was experiencing second-generation growth – the arrival of BART and I-680, the construction of large office buildings, and so forth. This political fight culminated in 1985 with the passage of Measure H, a citizen-backed initiative that imposed a development moratorium if traffic standards were not met. The crusty Dean Lesher, owner of the and a major landowner in Walnut Creek, decided to challenge the initiative in court and asked Skaggs, Curtin, and their associate Maria Rivera (now an appellate court judge) to represent him. The line of attack was, inevitably, the general plan, which Skaggs and Curtin had been largely responsible for writing in the ’70s. The development restrictions of Measure H seemed to conflict with the general plan, which called for strengthening Walnut Creek’s position as a regional commercial center. To Dan, this was a violation of the 11th Commandment: Thou shalt not be inconsistent with the general plan. Even worse, it wasn’t clear what Measure H was. Was it a general plan amendment? A zoning ordinance? Nowhere in the initiative was this spelled out – which surely offended Curtin’s finely developed sense of order and authority. So, in the case, Curtin and his associates had to make several important and seemingly difficult arguments. First, Measure H was a zoning ordinance. Second, it was inconsistent with the General Plan. Third, and perhaps most difficult, was the argument that state general plan law trumped the initiative process – a tough trick under the California constitution, which is extremely deferential to citizen initiatives. Curtin won in Contra Costa County Superior Court, but he lost at the First District Court of Appeal, which ruled that Measure H was a general plan amendment. He turned it around at the California Supreme Court, where Justice David Eagleson concluded in a New Year’s Eve ruling that because of its “self-executing” nature, Measure H was a zoning ordinance and therefore inconsistent with the general plan. Only the ornery Justice Stanley Mosk dissented. ( , 52 Cal.3d 531 (1990)). “The tail does not wag the dog,” Eagleson wrote – quoting Curtin himself. Not every lawyer could have looked graceful and measured in the process of challenging a citizen initiative in his own city by invoking a general plan he had helped write on behalf of a curmudgeon that a lot of people in town didn’t like. But Dan maintained almost everybody’s respect in the process. The case also cemented the primacy of his beloved general plan. As Dan wrote in his , according to , “any subordinate land use action, such as a zoning ordinance, tentative map, or development agreement, that is not consistent with a city’s current and legally adequate general plan is ‘invalid at the time it is passed.’” Even, as Dan took pains to point out, if the action was passed by initiative. I can’t think of a single book that contains such a compelling story of being outcast, then redeemed in a way that changed the world so profoundly. Dan, being a devout Roman Catholic, could probably think of at least one. It wasn’t obvious at the time, but the era was a watershed time in California land use law. Not only did the Supreme Court affirm the significance of the general plan in that case, but in a second case issued on the same day the Court reined in the use of CEQA to block projects ( , 52 Cal. 3d 553). In , the Supreme Court also went out of its way to reaffirm the primacy of the general plan. New Year’s Eve 1990 was the first and only time that the California Supreme Court stated unequivocally that the general plan is superior to all other land use documents. It was Dan’s day. After these two cases, typical craziness went on in the world of California land use – rampant initiatives and lawsuits, use, misuse and abuse of both the general plan law and CEQA. But the craziness was tempered by an overarching respect for the general plan as a community’s constitution. And that shift – along with his mentoring of hundreds of lawyers and planners who share this respect – may be Dan’s real legacy. In the beginning, maybe there the general plan. But in the end, there the general plan – thanks mostly to Dan Curtin.

Only two months after voters rejected Proposition 90, new proposals to alter eminent domain law are already arising. Anti-tax activists, environmentalists, local government organizations and state lawmakers are all working on eminent domain proposals, and it is likely that voters will see at least one ballot measure on the subject during the 2008 primary. It is also possible that voters will decide on another regulatory takings initiative. It appears all but certain that redevelopment agencies will lose at least some measure of eminent domain authority, as even the California Redevelopment Association is talking about sponsoring its own “reform” legislation. There are two main reasons the campaign that started with Proposition 90 barely paused after the November 7 election. First, Proposition 90 — which would have prohibited the use of eminent domain for economic purposes and would have required payment to property owners affected by regulations — lost by only 52.4% to 47.6%, even though proponents ran virtually no campaign. And, second, the narrow margin appears to have emboldened property rights proponents and raised concern among local government leaders, redevelopment advocates, planners and environmentalists who fought the measure. The Howard Jarvis Taxpayers Association made the first post-Proposition 90 move when the group filed the “California Property Owners Protection Act” with the attorney general’s office only two weeks after the election. Like Proposition 90, the proposed initiative combines eminent domain reform with provisions regarding regulatory takings, although the measure does not appear to go as far as Proposition 90. On the first day of the legislative session, state Sen. Tom McClintock (R-Thousand Oaks) and Assemblywoman Mimi Walters (R-Laguna Niguel) introduced constitutional amendments that would prohibit the use of eminent domain for economic development purposes. Meanwhile, local government organizations and environmental groups are actively pursuing eminent domain reform via either legislation or a ballot measure. These groups want to frame the issue themselves, defuse some of the other side’s political momentum, and separate the issues of eminent domain and regulatory takings. “After living through the campaign and seeing how the issues were put on the table … it certainly has given me and my board of directors pause,” said Chris McKenzie, executive director of the League of California Cities. “The whole experience demonstrated to us over and over again that the public has a concern about eminent domain.” Local government officials and attorneys have repeatedly argued that the Supreme Court’s June 2005 ruling in — which inflamed the public — had no impact on California’s eminent domain practices. Still, even the biggest defenders of eminent domain now concede that the rules must change. “It is the position of the California Redevelopment Association that we need to prohibit the use of eminent domain for single-family homes when the ultimate use is redevelopment, and not a public project like a new school,” said association Executive Director John Shirey. “We still think we need to do some eminent domain reform. As to what form that’s going to take, I don’t know yet.” McKenzie, Shirey and other leaders of the anti-Proposition 90 effort are hoping to keep the campaign coalition together. That coalition included business, agriculture and real estate interests who oftentimes are at odds with government regulators, as well as environmental groups. Gov. Schwarzenegger also opposed Proposition 90, although he was not part of the campaign. Environmental groups appear to be staying on board, but it is unclear where everyone else, including the administration, will stand. Tom Adams, board president of the California League of Conservation Voters, said environmentalists are advocating eminent domain reform because the public is demanding changes, and because property rights advocates are using public frustration over eminent domain to advance restrictions on land use regulations. “The failure to do eminent domain reform gave some property rights extremists cover,” Adams said. Proposition 90 opponents convinced voters that the initiative was about more than eminent domain, but it was a difficult case to make, he said. “It was hard to talk to the general public and get them to see through the eminent domain cloak.” “If there was a straightforward takings measure on the ballot, I would have a high degree of confidence that it would be defeated,” Adams said. The proposed Howard Jarvis Taxpayers Association (HJTA) initiative does combine the issues of eminent domain and regulatory takings, but that could change. “We continue to refine another version,” said Jon Coupal, HJTA president. “It is very likely that we will file another version. We are communicating with other property rights interests.” The organization endorsed Proposition 90 but did not actively campaign for the measure, which was spearheaded by New York real estate investor and libertarian crusader Howard Rich. Coupal said that an initiative drafted by Californians which reflects the state’s environmental and political concerns might fare better than Proposition 90, and that means addressing regulatory takings in a measured way. The proposed initiative that HJTA filed in November, for instance, would not make routine general plan amendments or rezonings subject to a property owner’s takings claims, as Proposition 90 would have, Coupal said. The Jarvis organization’s primary focus is on protecting single-family homes, Coupal said. “We don’t want private homes taken and handed over to private developers,” he emphasized. That concern could be eliminated with amendments to eminent domain law, and Coupal said his organization has not ruled out “working with the municipal interests” on legislation. “We’re keeping our options open.” State Sen. McClintock and Assemblywoman Walters, however, have shown little interest in working with local government, and they were quick to introduce legislation. Both McClintock’s SCA 1 and Walters’s ACA 2 would prohibit the use of eminent domain for economic development purposes, and would alter the condemnation process in favor of property owners. “The taking of private property for ‘public use’ should be reserved for explicitly public needs, not to increase local tax collections,” Walters said in a written statement. During an early December conference at the Cato Institute in Washington, D.C., a conservative think tank, Richard Mercereau, policy director for the Assembly Republican Caucus, said the fight regarding eminent domain and property rights is far from over. He called Proposition 90 a “moon shot” that barely failed despite the overwhelming campaign against the initiative, suggesting that Californians are ready for regulatory reform. Republicans’ dissatisfaction stems from what the Democratic-controlled Legislature did (or did not) do in response to . While McClintock and other Republicans charged that local governments were abusing eminent domain and must be restrained, Democrats were circumspect. Lawmakers last year did pass the most significant changes in redevelopment law since 1992, including provisions that require redevelopment agencies to adopt updated blight findings when they extend eminent domain authority (see , October 2006). But Republicans and property rights advocacy groups said the changes do not go far enough, and whether they can be won over by the anti-Proposition 90 coalition’s proposals is uncertain. Proponents of Proposition 90 vowed right after the election that they would return in 2008. So far, no written proposal has emerged, but the CRA’s Shirey and others take the threat seriously. Thus, the possibility that local government organizations may pursue their own ballot measure or legislation. Shirey declined to call any such proposal “pre-emptive,” but politically it may work that way. “We’re working on it very, very hard,” McKenzie said. “It is a priority issue for us.” Contacts: Tom Adams, League of Conservation Voters, (650) 348-0870. Jon Coupal, Howard Jarvis Taxpayers Association, (916) 444-9950. Chris McKenzie, League of California Cities, (916) 658-8200. John Shirey, California Redevelopment Association, (916) 448-8760.

Two ballot measures approved by Santa Cruz voters in November appear to have further strained the already difficult relationship between the city and the University of California. One ballot measure requires the extension of water or sewer services to new areas — such as UC Santa Cruz’s North Campus — to be put to a vote. The second measure prohibits the city from providing services to the university unless UC fully implements measures to mitigate environmental impacts of expansion. Both measures passed by greater than 3-to-1 ratios. The university filed a lawsuit in August in hopes of blocking the measures from the ballot, but the election went forward. The university will apparently resume its litigation now that voters have approved the measures. “The Santa Cruz community is understandably concerned about issues related to UCSC growth,” Acting Chancellor George Blumenthal said after the election. “Unfortunately, these ballot measures will only serve to inhibit the ability of the city and the university to work together.” Other recently filed lawsuits may also inhibit a working relationship. In October, the city and Santa Cruz County sued the university over the environmental impact report for the UCSC long range development plan that the UC Board of Regents approved in September. There was also a lawsuit filed earlier this year by the group Coalition for Limiting University Expansion (CLUE) that alleges runoff from two campus construction sites violated the Clean Water Act. The city has joined CLUE in that litigation. Santa Cruz is a company town in which the university is by far the largest presence and employer. More UC Santa Cruz graduates stay in town than at any other UC campus. And it’s not uncommon for the City Council or other city panels to contain UC employees. Yet the relationship between local government and the state-run university may be more strained in Santa Cruz than anywhere else in California. Longtime Santa Cruz residents point to the early-1960s deal that brought UC to the coastal city. At that time, UC envisioned a small campus for a few thousand undergraduates amongst the redwoods on the edge of town. Since then, UC Santa Cruz has evolved into a significant research university with 15,000 students. The long range development plan envisions more growth, as the entire UC system tries to keep pace with rising enrollment demands. The 15-year plan, which is similar to a general plan, would accommodate 4,500 additional students — plus related faculty and staff — with the development of 3.2 million square feet of additional building space, including the first major projects on the lightly developed North Campus. In approving the plan, the Board of Regents accepted Blumenthal’s recommendation to scale down expansion by 1,500 students and 800,000 square feet of building space. Blumenthal urged the last-minute reductions because of “concerns of the Santa Cruz City Council and other members of the community.” But it was not enough to satisfy locals. The city’s lawsuit over the EIR cites a number of alleged deficiencies. The EIR acknowledges that implementation of the long-range plan would result in significant unavoidable impacts to air quality, cultural resources, hydrology and water quality, noise, housing, traffic and utilities. For residents, the biggest issues are traffic and parking in a part of town that is already jammed. “Unlike other campuses, UCSC is isolated from dining and shopping areas, and from freeway access. Only a few residential streets serve it,” CLUE pointed out in a review of the long-range plan. “Students lack adequate campus parking now. UCSC growth will produce Westside gridlock.” The ballot measures — authored by county Supervisor Mardi Wormhoudt and placed before the electorate by the City Council — were a response to this situation. After the election, Wormhoudt told the , “People and institutions work best together when there is a balance of power, and the passage of Measures I and J helps to even the playing field for the city and the university.” The university, however, argues that the ballot measures are illegal for a number of reasons. First off, the university contends the city violated the California Environmental Quality Act (CEQA) by not preparing an EIR on the ballot measures. Although citizen initiatives are exempt from CEQA review, the state Supreme Court in , (2001) 25 Cal. 4th 165, ruled that council-generated ballot measures are not exempt (see , May 2001) Santa Cruz did adopt a negative declaration for the two ballot measures, but UC argues that it is inadequate because it does not address foreseeable impacts related to increased groundwater pumping and increased development on portions of the campus within the city limits and, therefore, within the city’s water and sewer service area. The university further argues that the ballot measures break 1960s contracts in which the city agreed to provide water and sewer services for the entire campus. The university contends those agreements also bar one of the ballot measure’s requirements that the city and university undergo a Local Agency Formation Commission (LAFCO) process — and receive voter approval — for the extension of water and sewer to the North Campus, a part of the 2,000-acre campus that lies outside the city limits. Santa Cruz County LAFCO Executive Officer Patrick McCormick said he has had conversations with UC and the city, but no applications have been filed. He said his reading of the ballot measure was that it “didn’t substantially change the law. It was a statement of intent.” There are hints that UC, the city, the county and CLUE may enter into far-reaching negotiations to avoid protracted courtroom fights. But, at this point, those talks are difficult to envision. In a July letter to the city, University Counsel Kelly Drumm vowed: “With or without the initiatives, university enrollment at the Santa Cruz campus will continue to grow to accommodate the State of California’s demand for higher education. … If the city denies water service to the North Campus, the university will find alternative means of accommodating the increased enrollment.” Two months after receiving that letter, the City Council voted to spend an extra $100,000 on legal battles with UC. Now that voters have overwhelmingly stated their opposition to further UCSC growth, it may be even harder for the city to back down. Contacts: UC Santa Cruz long range development plan: http://lrdp.ucsc.edu/ Coalition for Limiting University Expansion: www.santacruzclue.org Patrick McCormick, Santa Cruz County LAFCO, (831) 454-2055.

A taxpayer lawsuit challenging the City of Seaside’s discounted sale of 105 acres of the closed Fort Ord military base to housing developers appears headed for trial. The Sixth District Court of Appeal ruled that the lawsuit contesting the city’s deal with a joint venture of KB Home and Bakewell Homes was not filed too late. A Monterey County Superior Court had ruled that the lawsuit was a validation suit that was filed after the 60-day deadline. But the Sixth District ruled that the validation statutes, which typically affect indebtedness, taxes and government organization, do not apply. The lawsuit challenges the city’s 2002 sale of property that has since been developed into the 380-unit Seaside Highlands subdivision. In a double-escrow transaction, the city acquired the property from the federal government in July 2002 for $5.1 million. K&B Bakewell provided money for the city-federal deal. The city then immediately transferred the property to K&B Bakewell for $5.95 million. Development began in early 2003 on the subdivision of market-rate homes ranging from 1,700 to 3,600 square feet. In May 2003, Seaside resident Benjamin Kaatz filed a lawsuit and even managed to get construction shut down for a week. As amended, the suit contends that the city’s sale of property for what Kaatz contended was 5% of its market value was invalid because it was a gift of public property, was not permitted under terms of the city’s deal with the developers, and was not properly noticed. The Superior Court lifted the injunction quickly and, without ruling on the merits, dismissed the lawsuit in March 2004 because it was filed too late. On appeal, the Sixth District, which also did not consider the merits, overturned the lower court, clearing the way for a trial. The city and K&B Bakewell have asked the state Supreme Court to review the Sixth District’s decision. Local government groups and the California Building Industry Association have said that allowing lawsuits over the government’s sale of large tracts of land long after the sale has been completed could chill interest in such transactions. The question for the Sixth District was whether the validation statutes in Code of Civil Procedure §§ 860-870 apply. The validation statutes require legal action be filed within 60 days. The idea is that prompt resolution of any legal questions is necessary to provide for government certainty. The city and the developers argued that the validations statutes apply in this case because the contract between the city and the developers embodies an “important policy decision affecting the public at large,” because the lack of a prompt validation procedure would impair the city’s ability to operate, and because the land disposition agreement (LDA) between the city and the developers concerned the city’s financial transaction with a third party. The court rejected the arguments. Government Code § 53511 — originally approved in 1963 and amended to § 53511 subdivision (a) in 2004 — specifically references the validation statutes adopted in 1961 and further references “bonds, warrants, contracts, obligations or evidences of indebtedness,” according to the court. The city’s deal with K&B Bakewell does not relate to bonds or warrants, the court noted, and does not speak to a loan of funds. Therefore, the question is whether the LDA is a “contract” within the meaning of Government Code § 53511 and the validation statutes. Relying heavily on the state Supreme Court’s decision in , (1970) 2 Cal.3d 335, the Sixth District said the LDA is not such a contract. In the , the state Supreme Court adopted a narrow definition of the term “contract.” “Rather than authorizing proceedings to validate any public agency contract — or even any contract constituting a financial obligation of a public agency — the ‘contracts’ under Government Code § 53511 are only those that are in the nature of, or directly relate to, a public agency’s bonds, warrants or other evidences of indebtedness,” the Sixth District ruled. “ he execution of the LDA and the city’s subsequent conveyance of the property to K&B Bakewell pursuant to that agreement were not matters embraced by the validation statutes and Government Code § 53511,” the court concluded. Therefore, Kaatz’s lawsuit is not subject to the validation statute’s 60-day deadline. The Case: , No. H027562, 06 C.D.O.S. 8953, 2006 DJDAR 12793. Filed September 21, 2006. The Lawyers: For Kaatz, Jay Renneisen, (925) 280-8900. For the city: Lee Rosenthal, Goldfarb & Lipman, (510) 836-6336. For K&B Bakewell: Julie Woods, Horvitz & Levy, (818) 995-0800.

Voters who decided local land use ballot measures in November showed slow-growth tendencies. They also displayed more than a little unpredictability, suggesting that nothing in local land use politics is certain, or at least certain forever. For example, voters in two Bay Area counties rejected “anti-sprawl” ballot measures aimed at protecting the region’s cherished hills and farmland. Voters in the perennially slow-growth City of Davis approved a 136,000-square-foot big-box store. Growth-control advocates in Newport Beach had their three-election winning streak snapped when voters rejected new restrictions. In a rare instance of county voters approving a specific project, the San Luis Obispo County electorate overwhelmingly backed a controversial retail and housing project that City of San Luis Obispo voters rejected 18 months earlier. Voters in the usually conservative San Joaquin Valley approved sales taxes for transportation, while liberal Marin County rejected a sales tax for commuter rail and a 70-mile-long bike path. Overall, voters chose the slow-growth side in 26 of 42 classifiable local ballot measures. During the 2004 general election, the pro-growth side won 16 of 31 elections. Two years earlier, growth advocates won 19 of 32 ballot measures. Without question, the biggest surprises in November were in the Bay Area, where the “Land Conservation Initiative” narrowly failed in Santa Clara County, and an extension of Solano County’s voter-approved “Orderly Growth Initiative” received only 47% of the vote. Proponents of the measures focused their message on saving rural areas and protecting agriculture. However, in both counties, farmers complained that they had not been consulted by proponents, and the farmers actively campaigned against the ballot measures. The Solano County measure would have extended existing policies by 30 years until 2036. Those policies prohibit most development on land zoned for agriculture, watershed or open space, which adds up to most of the unincorporated area. Opponents of Measure J focused on farmers’ needs when campaigning in Dixon and Rio Vista, and on economic development when talking to voters in Vallejo and Benicia, campaign manager Amber Johnson said. The No on J campaign did not accept money from housing developers nor the endorsement of any elected official, according to Johnson. “We made a concerted effort to stay away from development money. Not that we didn’t have their support, but we knew that would be the nail in our coffin,” Johnson said. Third-generation Suisun Valley farmer Derrick Lum said Measure J proponents did not approach growers until the measure was already on the ballot. “They should have come to the table and asked us what we think about it,” he said. Lum, who grows pears, beans and wheat, said he needs options to continue in the farming business. Orderly Growth Initiative policies prohibit processing plants on agriculture land, as well as “ag tourism,” which has helped growers in places such as Apple Hill in El Dorado County, Half Moon Bay and the Napa Valley, he said. “I have to change my ag practice. It’s not the same as we’ve been doing for the last 30 years,” said Lum, who cited inexpensive imported food as a major competitor. In Santa Clara County, 51% of voters said no to a measure intended to prevent development on about 400,000 acres of rural areas and hills. As in Solano County, opponents of the Santa Clara County initiative focused on farmers’ and landowners’ complaints that they had been left out of the initiative drafting process. “A lot of the people looking at it realized there were a lot of disparate views,” said Beverley Bryant, executive director of the Southern Division of the Home Builders Association of Northern California, an initiative opponent. “It was not as straightforward as it was presented to be.” Indeed, the initiative went on for nearly 20 pages, and descriptions of what exactly it would do varied. But the idea was to lock in — and in some instances tighten — existing regulations barring development in most unincorporated areas. Proponents, including Greenbelt Alliance and the Sierra Club, argued that existing policies may be changed at any time with three votes by the Board of Supervisors — an argument that played well during Ventura County’s Save Open Space and Agricultural Resources campaigns of the late 1990s. Opponents, meanwhile, said Measure A could harm housing affordability in Santa Clara County, where affordability is already at a premium. However, Bryant and other opponents were hard-pressed to say how the measure would drive up housing costs when the initiative would have prohibited only single-family homes on large parcels. “There were some conflicting messages, some inaccurate information that went out and that may have affected the outcomes in Santa Clara and Solano counties,” Greenbelt spokeswoman Elizabeth Stampe told the . Whether voters countywide accepted the housing affordability argument or not, voters in the Santa Clara County city of Cupertino clearly did not. In two referendums, they overwhelmingly rejected two housing proposals. The city approved both projects earlier this year. One rezoned a portion of Vallco Fashion Park to permit 134 condominiums atop new retail space. The second project involved the rezoning of a 26-acre former Hewlett Packard office site to allow 300 condominiums and 80 apartments for low-income senior citizens. Project opponents used yard signs referring to “Condotino” and said the developments would crowd the city’s desirable schools. Cupertino Community Development Director Steve Piasecki said he was unsure what is next for the polarized city. “It’s an interesting conundrum for the community. We’re stuck in the vice,” Piasecki said. “The state declares a crisis on housing, and the community says no.” There is a perception that Cupertino is being overrun by condominiums when, in fact, the city of 54,000 people will see only about 1,000 new units over six years, Piasecki said. And while the community is unwilling to accept even those units, the regional fair-share housing process is likely to boost Cupertino’s future allocation, said Piasecki, who serves on an Association of Bay Area Governments’ committee working on the allocations. “Multi-family residential on those two sites and just about anywhere in town is probably going to be on hiatus,” he said. “Why would (a developer) want to put up half a million or a million dollars for an entitlement process?” In the college town of Davis, the vote on rezoning to permit a 136,000-square-foot Target store was not seen as a referendum on the city’s big-box regulations, which prohibit retail stores of more than 40,000 square feet. Rather, the election appears to be mostly about having a Target in town, rather than six miles away in Woodland. In the end, 51.5% of voters backed the proposed store. The outcome would likely have been different if the proposed big box were a Wal-Mart. In San Luis Obispo County, voters approved an initiative placed on the ballot by property owner Ernie Dalidio, who has been trying to develop his 130 acres near the Madonna Inn since the late 1980s. The city finally approved his plan for a 650,000-square-foot power center, a hotel and 60 housing units, but voters overturned the approval last year. Dalidio, whose property the city has never annexed, modified his plans a bit to include 200,000 square feet of office space, 530,000 square feet of retail and a permanent farmers market, in addition to the housing. He then took the plans directly to county voters, who approved the project nearly 2-to-1. “A lot of people voted for it because they wanted some additional shopping,” said Michael Boswell, an associate professor of city and regional planning at Cal Poly San Luis Obispo who campaigned against the project. “I imagine other developers would take a good hard look at whether this (initiative) process is the way to go.” What happens next with the Dalidio Ranch project, though, is unclear. The project needs an on-site wastewater treatment plant, which is proposed for a floodplain; thus, a Regional Water Quality Control Board permit is necessary. Furthermore, the project needs a freeway interchange. However, the initiative locks in the developer’s contribution to the interchange at $4 million plus 13 acres of land worth about $4 million. Yet the interchange is estimated to cost in the neighborhood of $50 million and would be unnecessary if not for the Dalidio Ranch development. Election results in Newport Beach suggest that growth-control proponents may have overreached. Newport Beach voters soundly rejected the “Greenlight II” initiative, which would have required voters to decide on any project that would “significantly increase traffic, density or intensity above the as-built condition of a neighborhood.” The measure was a follow-up to the Greenlight initiative, which requires a vote on certain projects exceeding general plan provisions. Since voters approved Greenlight in 2000, they have rejected an office tower in 2001 and a hotel in 2004. But some original Greenlight supporters said the latest initiative was a no-growth measure that would force nearly any project to the ballot. Instead, voters approved a city-sponsored general plan amendment that permits increased housing development in exchange for fewer new offices. A total of 12 local sales tax measures for transportation were on the ballot in November. Voters approved sales tax measures in Orange County, as well as in the San Joaquin Valley counties of Fresno, Madera, San Joaquin and Tulare. Sales tax plans lost in Amador, Kern, Merced, Santa Barbara and Stanislaus counties, and in the City of Grass Valley. A two-county sales tax for a commuter rail and bike path project in Marin and Sonoma counties also failed, although Sonoma County voters did back the measure. Voters in Nevada City approved a half-cent tax measure solely for the repair of roads. The Orange County extension of an existing half-cent tax was probably the most widely watched measure because it took three tries for Orange County voters to muster majority support for the original tax. The extension required a two-thirds vote, and this time a unified front of nearly every public official backed the measure. In Marin County, environmental groups divided over a proposed quarter-cent sales tax to fund a commuter rail service from Cloverdale in Sonoma County to Larkspur in Marin County, where commuters could pick up a ferry to San Francisco. Opponents said the system would serve mostly Sonoma County residents and its estimated daily ridership of about 5,000 people would provide little relief for Highway 101 congestion.

A state appellate court panel has chastised the California Department of Forestry and Fire Protection (CDF) for ignoring the California Environmental Quality Act during reviews of timber harvest plans. In a case involving a small timber harvest plan (THP) in Sonoma County, the First District Court of Appeal said that CDF’s regulatory program under the Forest Practice Act is exempt only from certain sections of the California Environmental Quality Act (CEQA), and that CDF was improperly attempting to extend the exemption. “ lthough the argument CDF presents to us in this case is novel, it is premised on a legal theory which has been soundly rejected,” the court ruled. “The appellate courts of this state have repeatedly advised CDF that CEQA applies to the timber harvesting industry and that the process CDF uses to evaluate and approve THPs must comport with all provisions of CEQA, except for chapters 3 and 4 and § 21167. Indeed, this court has so held on more than one occasion. Our Supreme Court has also expressly agreed with this position.” The court cited the 1994 state Supreme Court decision in , 7 Cal.4th 1215. “Nevertheless, CDF has continued to resist complying with CEQA by advancing increasingly contorted interpretations of settled law,” the court continued. “We urge CDF to heed the law as consistently interpreted by the courts of this state, and to commit its time and resources toward the more productive end of conforming its ‘process’ to comply with CEQA.” The extraordinarily direct opinion was written by Justice Paul Haerle, an appointee of Gov. Wilson and former aide to Gov. Reagan who is considered one of the First District’s most conservative members. Joining the opinion was Division Two Presiding Justice Anthony Kline, a Jerry Brown appointee who is seen as one of the appellate bench’s most liberal members, and Justice James Richman, a Schwarzenegger appointee. The Department of Forestry has asked the state Supreme Court to accept the case, and the California Forestry Association has asked the high court to depublish the First District’s opinion so that it may not be cited as precedent. The case involves a timber harvest plan for 13 acres near Occidental. In March 2002, CDF approved an amended THP submitted by property owner Harmony Forest & Land Company. The plan permitted Harmony to harvest two-thirds of the redwood trees on the property, but required that the largest trees remain untouched. A local group called Joy Road Area Forest and Watershed Association sued and won a restraining order preventing the timber harvest. Sonoma County Superior Court Judge Lawrence Antolini then ruled that CDF had violated CEQA in three ways, but he upheld the agency’s protection efforts for the threatened northern spotted owl. Both sides appealed. The issues for the First District concerned public notification requirements, assessment of impacts and the treatment of owls. CDF argued that it could not comply with CEQA’s requirement that the public be notified and given time to comment on project changes because a THP is a “dynamic document” that cannot be treated like a “static” draft environmental impact report. In this case, CDF modified or replaced 37 pages of the 167 THP over a period of months. Besides, CDF argued, the Forest Practices Act takes precedence over CEQA. The court disagreed. “ f the THP is routinely altered by CDF during the review period, then the THP that CDF ultimately approves is essentially a than that which the property owner submitted,” Justice Haerle wrote. “The notice and recirculation provisions of CEQA ensure that the public has notice and an opportunity to comment on the plan that CDF intends to approve.” As for impacts, the court found that substantial evidence supported CDF’s conclusion that the project’s impact on fog drip (the process in which trees capture fog moisture, which drips to the ground) was not significant was supported by substantial evidence. However, the court ruled the agency’s cumulative impact analysis regarding fog drip was “woefully inadequate” because it lacked “facts, statistics, reports or studies.” The court also held that CDF could not ignore the potential impact of residential development on the 13 acres as speculative. The property is split into three parcels, a lot-line adjustment application has been filed, and the property owner has stated a desire to build a house on two parcels, the court noted. Finally, the court overturned the lower court’s ruling regarding spotted owls. The appellate panel found that the U.S. Fish and Wildlife Service had approved the timber harvest only if it were completed by February 1, 2002. But CDF approved the THP in March 2002. CDF regulations require Fish and Wildlife Service approval before CDF approves a THP. Hence, CDF violated its own regulations, the court determined. The Case: , No. A105421, 06 C.D.O.S. 8259, 2006 DJDAR 11706. Filed August 20, 2006. Modified September 22, at 2006 DJDAR 12936. The Lawyers: For the association: Edwin Wilson, Sayre & Wilson, (707) 433-4871. For CDF: Tiffany Yee, attorney general’s office, (415) 703-5500.

Alameda County • Voters approved a $5 million bond to expand the fire station and add “sustainable building features” to the civic center complex. The bonds will cost property owners about $19 per $100,000 of assessed valuation for about 25 years. Measure C: Yes, 76.4% (2/3 vote required) • To accommodate the proposed development of five sports fields on 16 acres, the electorate approved amendments to a voter-approved waterfront specific plan to make public or commercial recreation facilities by-right uses. Measure F: Yes, 79.9% • A measure to increase the permissible number of conversions of apartments to condominiums from 100 to 500 annually, and reduce affordable housing requirements for conversions, was rejected. Measure I: No, 73.8% (pro growth—no) • Voters also said no to an initiative that would have kept in place the city’s rigorous system of historic preservation. The city has proposed reforming the regulations, and the initiative was a response. Mayor Tom Bates argued the regulations are abused to halt development. Backers said the regulations are necessary to protect neighborhood integrity. Measure J: No, 57.3% (slow growth—no) • An initiative to rezone land near Coyote Hills Regional Park to agriculture was soundly defeated. The initiative was an attempt to block a proposed 800-unit housing development on the Patterson Ranch. Measure K: No, 65.9% (slow growth—no) • A $30 million bond to purchase 24 acres for parkland in Castro Valley and make other park improvements failed. The bond would have cost property owners about $16 per $100,000 of valuation. Measure Q: No, 37.3% (2/3 vote required) (slow growth—no) • A $148 million library bond would have converted the recently closed Henry J. Kaiser Convention Center into a library and built new branch libraries. Measure N: No, 36.2% (2/3 vote required) • Voters backed the “grand park” design approved by the City Council for the 300-acre Bernal property. The plan calls for open space, sports fields, a community center and cultural facilities, and indoor and outdoor theaters. Measure P: Yes, 82.1% Amador County • A half-cent sales tax for transportation improvements and road maintenance failed to receive even majority support. Measure K: No, 51.5% (2/3 vote required) Contra Costa County • A countywide urban growth boundary that is similar to existing limits won easy approval. Measure L: Yes, 63.9% (slow growth—yes) • A $59.1 million bond that would have paid for road, storm drain and water main improvements failed. Measure Q: No, 35.8% (2/3 vote required) Fresno County • The renewal of a half-cent sales tax for transportation for 20 years won approval. The county’s existing half-cent tax was approved by only a majority of voters in 1986 and was scheduled to expire in 2007. Measure C: Yes, 77.7% (2/3 vote required) Kern County • A half-cent sales tax for 20 years that would have raised about $1 billion for transportation projects failed to receive super-majority support. Measure I: No, 43.6% (2/3 vote required) Los Angeles County • Two initiatives backed by the Westfield Santa Anita mall — and aimed at developer Rick Caruso’s plan for a lifestyle center at Santa Anita race track, adjacent to the Westfield mall — won very narrow approval. One measure bans most billboards on the race track property; the second prohibits charging for parking in large commercial centers. Measure N (billboards): Yes, 50.3% (slow growth—yes) Measure P (free parking): Yes, 51.1% (slow growth—yes) • A $12.5 million bond to pay for the purchase of the 183-acre Johnson’s Pasture in the hills adjacent to the city’s existing wilderness park won approval. The property owner wants to sell the pastureland, and developers had expressed interest. The bonds will cost property owners about $33 per $100,000 of assessed value for 30 years. Measure S: Yes, 70.5% (slow growth—yes) • A proposed special tax of $89 per house and $65 per multi-family unit to fund construction and operation of a new 24,500-square-foot library failed badly. About 70% of the tax would have paid for bonds to finance construction. Measure L: No, 71.0% (2/3 vote required) • A $1 billion housing bond failed to receive two-thirds approval. The bond would have provided $750 million for grants and loans to developers of affordable housing and $250 million for home-purchase assistance. The bond would have cost property owners $14.66 for every $100,000 of assessed value for 20 years. Measure H: No, 37.7% (2/3 vote required) (pro growth—no) • Voters convincingly said they do not want to renovate the city-owned Rose Bowl so that it may be leased to a professional football team. Measure A: No, 72.1% • A parcel tax of $84 per single-family house (with varying levels for multi-family and commercial properties) to improve urban runoff management and implement measures to prevent ocean pollution passed by a handful of votes. Measure V: Yes, 66.71% (2/3 vote required) • Voters rejected a proposed general plan amendment that would have permitted development of a Lowe’s store on 22 acres now zoned for offices. Measure Z: No, 55.8% (pro growth—no) Madera County • Voters approved a half-cent sales tax for transportation. The tax follows an earlier measure that expired in October 2005, and is expected to raise $213 million over 20 years. Measure T: Yes, 72.7% (2/3 vote required) Marin County • A quarter-cent sales tax to build and operate a 70-mile commuter rail line and construct an adjacent bike path from Cloverdale in northern Sonoma County to Larkspur in southern Marin County failed. The defeat in Marin County was enough to kill the tax, even though slightly more than two-thirds of Sonoma County voters supported it. Measure R: No, 42.6% (2/3 vote required) Merced County • A half-cent sales tax for 30 years to fund transportation projects lost for the second time this year. It would have raised an estimated $466 million, with about 95% going for roads and highways. Measure G: No, 39.1% (2/3 vote required) Napa County • Voters approved creation of the Napa County Regional Park and Open Space District. No new funding is included. Measure I: Yes, 54.3% Nevada County • A half-cent sales tax would have funded construction of four transportation projects, including a long-sought Highway 49 interchange to serve a hospital. Measure T: No, 42.5% (2/3 vote required) Orange County • Voters approved the extension of a half-cent sales tax that will raise nearly $12 billion over 30 years for transportation projects. The tax was scheduled to expire in 2011. Measure M: Yes, 69.6% (2/3 vote required) • Voters approved a City Council-backed charter amendment that prohibits the city, its redevelopment agency and its housing authority from using eminent domain to acquire private property for the purpose of conveying the property to another private entity. Measure P: Yes, 80.4% • A city-sponsored charter amendment that would prohibit gambling facilities won approval. Measure Q: Yes, 75.5% • Voters approved a city-sponsored ballot measure prohibiting the use of eminent domain to acquire property for the purpose of transferring the property to another private property “for the conduct of for-profit commercial activity.” Measure S: Yes, 84.7% • Voters approved the city’s plan to build a 47,000-square-foot senior center on five acres in Central Park. Measure T: Yes, 51.2% • Voters rejected the Greenlight II initiative that would have required voters to decide on any proposed development that would “significantly increase traffic, density or intensity above the as-built condition of a neighborhood.” The initiative was a follow-up to a 2000 measure (Greenlight I) that requires votes on certain projects exceeding general plan provisions. Measure X: No, 63.3% (slow growth—no) • Meanwhile, voters approved a city-backed general plan update that was on the ballot as the result of Greenlight I. The update permits about 1,100 more residential units than the 1988 general plan but reduces non-residential development by about 450,000 square feet. Measure V: Yes, 53.7% (pro growth—yes) • A city-sponsored charter amendment prohibiting the use of eminent domain for the sole purpose of transferring property from one person to another for economic development won approval. Measure W: Yes, 76.6% Riverside County • A landowner-backed initiative would have rezoned 344 acres now designated for large-lot residential development to permit smaller lots and some commercial development. Measure M: No, 58.0% (pro growth—no) • Voters backed a measure placed on the ballot by the City Council clarifying a 1994 ballot measure that limits most new structures to a maximum of “20 feet or one story.” The clarification states that the maximum is both one story and 20 feet, with a few exceptions for larger lots and commercial development. Measure N: Yes, 80.8% (slow growth—yes) Sacramento County • A quarter-cent sales tax increase for 15 years would have funded development of a downtown Sacramento basketball arena and other public facilities. Because tax proceeds were not specifically earmarked in the ballot measure, only a majority vote was required. However, Sacramento Kings owners provided no support for the measure. Measure R: No, 80.4% (pro growth—no) San Benito County • Voters rejected an initiative that would have rezoned 1,300 acres of ag land to “mixed-use residential community” to accommodate the proposed Del Webb Sun City Hollister project. The initiative would also have exempted the project from the city’s annual limit of 244 new sewer connections after a sewer moratorium is lifted. Measure S: No, 57% (pro growth—no) San Bernardino County • A county-crafted measure that prohibits the county from using eminent domain to acquire property for the purpose of transferring it to another private entity won. Measure O: Yes, 68.5% • Voters backed a citizen initiative that intends to limit development in the “South Hills” to about 800 units. The initiative also establishes a 7,200-square-foot minimum lot size for the entire city, imposes new building height maximums and requires that developers mitigate traffic impacts. Measure V: Yes, 52.8% (slow growth—yes) • At the same time, voters rejected a City Council-backed alternative that would have limited development in the South Hills to 1,185 houses, prevented the city from selling the 1,050 acres it owns in the South Hills, and required a subsequent vote to change the restrictions. Measure U: No, 52.9% (pro growth—no) San Diego County • In an advisory election, voters said they do not favor development of a commercial airport on a portion of Miramar Marine Corps Air Station. The San Diego Regional Airport Authority recommended the site over other locations despite the military’s opposition. Proposition A: No, 61.9% • Voters approved a measure that makes members of Boulevard Sponsor Group, a land use advisory panel for the Boulevard area in southeastern San Diego County, directly elected. The Board of Supervisors has appointed the members previously. Proposition V: Yes, 74.0% • Voters narrowly favored one ballot measure over another regarding the “strawberry fields” just east of Interstate 5. Voters barely rejected a citizens initiative (Proposition E) that would have designated 380 acres as “coastal agricultural,” blocking potential residential and commercial development. They approved a City Council alternative (Proposition D) that designates 208 acres as regional open space with agricultural uses permitted, but which does not block development on 45 acres already zoned for visitor-related commercial development. Proposition D: Yes, 50.4% (pro growth—yes) Proposition E: No, 50.2% (slow growth—no) • In an Article 34 election, voters authorized development or acquisition of up to 1,600 units of low-income rental housing. Proposition F: Yes, 55.8% (pro growth—yes) • An initiative that increases the minimum parcel size in some single-family residential zones from 3,500 square feet to 5,250 square feet won by only nine votes out of 6,705 cast. The measure, which says it is retroactive to January 18, 2006, is an attempt to halt the practice of tearing down one house and replacing it with two. The city contends the initiative is illegal for a number of reasons, and litigation is pending. Proposition J: Yes, 50.1% (slow growth—yes) • A bond of $596 million to fund hospital and healthcare facilities in Oceanside, Carlsbad and Vista failed. It would have cost property owners $23 per $100,000 of valuation. A similar measure failed by a narrower margin in June. Proposition T: No, 35.2% (2/3 vote required) • A half-cent sales tax for 30 years will pay for a new civic center, fire stations, sports fields and upgrades to the city-owned amphitheater. Because the measure did not specifically earmark revenues, only a majority approval was required. Proposition L: Yes, 54.0% • A measure backed by Supervisor Gerardo Sandoval requires chain stores (formula businesses with at least 11 locations) to receive a special use permit before opening in a neighborhood commercial district. The city already restricts chains in a few parts of town. Proposition G: Yes, 58.0% (slow growth—yes) San Joaquin County • Despite a campaign against the measure by two county supervisors, voters approved a 30-year renewal of an existing half-cent sales tax for transportation. The existing tax expires in 2011. Measure K: Yes, 77.9% (2/3 vote required) • Voters rejected a half-cent sales tax to fund construction of a fire station, an aquatics center, and an indoor sports center, and to fund the addition of paramedic services. Measure G: No, 56.2% (2/3 vote required) • After losing a City of San Luis Obispo referendum election last year (see , June 2005), property owner Ernie Dalidio found countywide support for his plan to develop a 530,000-square-foot shopping center, 150-room hotel, 60 residential units and 200,000 square feet of office space on 131 acres just south of town. Measure J: Yes, 64.6% (pro growth—yes) • The electorate backed a measure requiring voter approval before the district extends water service outside the 2006 district boundaries. Measure P: Yes, 78.5% (slow growth—yes) San Mateo County • A one-eighth-cent sales tax for 25 years to fund open space acquisition, and parks improvement and maintenance by the county, cities and special districts failed. Measure A: No, 44.7% (2/3 vote required) (slow growth—no) • The City Council asked voters to decide on a proposal to annex Guadalupe Valley Quarry, close the mine and replace it with 173 units of housing. Measure B: No, 73.2% (pro growth—no) • A $44 million bond to improve “under capacity flood control infrastructure” and retrofit city buildings for seismic safety and disabled access failed. Measure H: No, 35.9% (2/3 vote required) • An advisory measure asked whether the city should construct 17 acres of sports fields at the 160-acre Bayfront Park. Measure J: No, 61.3% • Voters rejected a measure to permit development of about 355 housing units and a 350-room hotel at the former Rockaway Quarry. Voters have rejected previous development proposals for the site. Measure L: No, 51.5% (pro growth—no) Santa Barbara County • A measure to double an existing quarter-cent sales tax for transportation, and extend the tax for 30 years, failed. The measure would have generated an estimated $1.575 billion. Among other things, the tax would have funded a new commuter rail service between Goleta and Ventura. Measure D: No, 45.8% (2/3 vote required) Santa Clara County • Voters narrowly rejected the Land Conservation Initiative. It would have increased minimum parcel sizes on designated rangeland and steep hillsides to 160 acres, and set a minimum parcel size of 40 acres on other agricultural lands and hillsides. The initiative, which affected about 400,000 acres, also sought to impose other building restrictions to protect stream corridors, wildlife and forests. Measure A: No, 50.7% (slow growth—no) • In separate referendums, voters rejected rezoning for two condominium projects — a 134-unit development proposed for 5.2 acres at Vallco Fashion Park (Measure D), and a 380-unit, 26-acre proposal for surplus Hewlett Packard land (Measure E). The city approved the projects in March (see , May 2006). Measure D: No, 65.2% (slow growth—yes) Measure E: No, 63.6% (slow growth—yes) • Voters approved a proposal to amend the general plan and development control system to allow up to 100 additional residential units in the downtown core, and speed up development of downtown projects that conform with a downtown plan. Measure F: Yes, 52.2% (pro growth—yes) Santa Cruz County • Voters overwhelmingly backed a “sustainable growth” initiative (Measure I) prohibiting the city from providing services for UC, Santa Cruz, growth unless the university fully mitigates all impacts. A related measure (Measure J) requires voter approval for the city to extend sewer and water services beyond current city boundaries, including to the UC campus. Measure I (mitigation of UC impacts): Yes, 76.1% (slow growth—yes) Measure J (extension of services): Yes, 79.9% (slow growth—yes) Shasta County • An initiative to rezone an area of town now zoned for three housing units per acre to permit only one house per 2 acres failed. The initiative was an attempt to block a plan from developer Jaxon Baker to build 170 units on 120 acres, a project the city approved after the initiative qualified for the ballot. Measure C: No, 52.6% (slow growth—no) Solano County • Voters said they do not want to extend the Orderly Growth Initiative, which they first approved in 1984. The policy prohibits most development on land zoned for agriculture, watershed or open space, which is most of the unincorporated county. Measure J: No, 52.7% (slow growth—no) Sonoma County • An extension of an existing quarter-cent sales tax to fund acquisitions by the county’s Agricultural Preservation and Open Space District won approval. Measure F: Yes, 75.0% (2/3 vote required) (slow growth—yes) • A quarter-cent sales tax to build and operate a 70-mile commuter rail line through Sonoma and Marin counties won in Sonoma County. However, the tax failed in Marin County, killing the plan. Measure R: Yes, 69.3% (2/3 vote required) • Voters backed a City Council advisory measure asking whether the city should “take all lawful steps to oppose” a casino proposed by the Dry Creek Rancheria Band of Pomo Indians on 277 acres of farmland outside the city. Measure H: yes, 78.7% (slow growth—yes) Stanislaus County • A half-cent sales tax for transportation for 30 years failed. Nearly all of the measure’s $1 billion would have gone for highways and roads. Measure K: No, 42.1% (2/3 vote required) • In an Article 34 election, voters authorized developers and public agencies to acquire or develop 50 units of housing for low- and moderate-income households. Measure T: Yes, 52.5% (pro growth—yes) Tulare County • The county’s first half-cent sales tax for transportation barely won approval. The tax will generate about $650 million over 30 years. Measure R: Yes, 67.2% (2/3 vote required) • Voters authorized the district, originally formed to operate the Veterans Memorial Building, to own and operate parks. Voters also backed an annual parcel tax of $8.50. The measures are intended to save Springville Park, which a public utilities district says it can no longer afford to maintain. Measure X (authorization): Yes, 85.4% Measure Y (tax): Yes, 70.5% (2/3 vote required) Ventura County • In an Article 34 election, voters refused to authorize the city’s Housing Authority to develop or acquire up to 150 units for persons of low- and very low-income. Measure K: No, 51.6% (pro growth—no) • Voters approved an initiative that requires voter approval for residential or commercial development projects on at least 81 acres. The city attempted to keep the initiative off the ballot, but the Second District Court of Appeal ordered the city to conduct an election. Measure L: Yes, 61.7% (slow growth—yes) Yolo County • Voters approved an amendment to city big-box regulations to permit construction of a 136,000-square-foot Target store. Measure K: Yes, 51.5% (pro growth—yes)

If you asked the average person to name a city that has professional sports, big-name entertainment, acres of waterfront park and dozens of historic buildings, not many people would say Stockton. But, in spite of its reputation as a crime-ridden, working-class place, downtown Stockton has all of the above — and more is on the way. A small hotel and conference center are under construction in a project that includes the first condominiums to take advantage of the "new" waterfront. Plus, local developer The Grupe Company is planning to build another 150 condominiums on city-owned land adjacent to a planned marina. Yet even downtown Stockton's biggest supporters call it a work in progress. While the city and other public agencies have spent several hundred million dollars on downtown development, facility rehabilitation and infrastructure, major private investment is lacking. There is a new 16-screen movie theater, and a restaurant is planned in the historic Hotel Stockton. But, in general, no one is rushing to build things downtown. " ome members of the public still perceive downtown as a place that is unsafe," a recently revised downtown plan candidly admits. "Many local residents are disconnected from downtown, and many downtown workers leave the area at the end of the workday." Downtown in the San Joaquin County seat has had a longer comeback road than just about any other downtown in California. The decline of its manufacturing industry, the Depression and World War II left the city with one of the biggest skid rows on the West Coast. "It was the same story you had in a lot of places. It was just more extreme here," Redevelopment Director Steve Pinkerton said. But during the mid-1990s, elected officials and city staff members started taking a more holistic approach by creating a new waterfront plan and a business improvement district to raise revenue for improvements and promotion. The first big success was the creation of Weber Point Event Center, a 10-acre park along the waterfront provided by the Stockton Channel. (Stockton lies at the eastern edge of the Delta.) Opened in 1999, Weber Point has an amphitheater, a popular play fountain, vast green space, a seasonal ice skating rink and places for boaters to tie up for the day. Although there was local opposition to the city spending $8 million on Weber Point — including $1 million for the fountain — few people today will dispute that the park is the jewel of downtown. The Asparagus Festival brings a huge crowd to Stockton's waterfront. Next up was creation of DiCarli Plaza, a brownfield project that brought the waterfront one block farther into downtown — right across the street from the Hotel Stockton (see CP&DR Economic Development , July 2001). Relying mostly on $3.5 million in federal funding, the city converted an abandoned gas station and fenced-off parking lot into an attractive full-block plaza dominated by the water. In 2004, the city reopened the renovated Fox Theater, a 1930s Art Deco building now called the Bob Hope Theater. Jerry Seinfeld performed on opening night at the theater, which downtown advocates believe can anchor a new cultural district. Next up were more ambitious projects: a minor league ballpark for the Stockton Ports, an 11,000-seat sports arena, and a convention center hotel — all located on a former shipyard across a narrow inlet from Weber Point. The 5,000-seat ballpark opened for the Class A Oakland A's affiliate in spring of 2005, and the arena opened six months later. The Stockton Thunder minor league hockey team and the California Cougars soccer club play in the arena. The city invested $130 million in general fund money, utility revenues and redevelopment resources in the two facilities. Adjacent to the arena, construction is under way on the Sheraton Stockton Hotel at Regent Place, a 180-room hotel with a 10,000-square-foot convention center. Topping the hotel will be 42 condominiums. The project is a bit of a disappointment because of its small size. But it does mark a private investment in downtown. The other significant private investment was construction of a 16-screen cinema, which opened three years ago. At this point, downtown badly needs "a huge influx of private capital," said Tom Bowe, a principal in WMB Architects and a member of the Downtown Stockton Alliance executive board. That capital will probably have to come from out of the area because Stockton's old-timers have been unwilling to invest in downtown, said Bowe, a Stockton native. Still, the market may be shifting. The Stockton Channel, with the Hotel Stockton in the background at left. "It seems to be primarily the acquisition of existing buildings so far. But there is some interest in residential along the waterfront," Bowe said. "We're working on some office buildings." Downtown's many older buildings are both assets and obstacles, as evidenced by controversy over the city's code enforcement crackdown on the SRO hotels. The city began a new enforcement effort on about 30 hotels and other dilapidated residential buildings in 2001. The city shut down nine properties, including some with bat infestations and other health hazards. California Rural Legal Assistance sued, and in late 2004, the Ninth U.S. Circuit Court of Appeals halted the crackdown because the city was not providing required relocation assistance and replacement housing (see CP&DR Legal Digest , January 2005). Ultimately, the city provided the assistance and replacement units in a variety of locations. More than half of the hotels are still operating but have been cleaned up. About 500 units were shut down, said Pinkerton, who makes no apologies for the city's effort. The city's deal with Regal for the 16-screen downtown theater is also an issue because it prevents cinemas with more than six screens from opening elsewhere in town. Legislation outlawing such "restraint of trade" deals has been discussed in Sacramento, partly because of Stockton's agreement with Regal. Again, Pinkerton offers no apologies for a deal that provided downtown's most popular attraction. Refurbishment of the Hotel Stockton, a National Register of Historic Places asset, has gone slowly. The vaguely Middle-Eastern-appearing hotel, once the liveliest place in town, was empty for more than a decade starting in 1991. The city's deal with one developer soured, and litigation over what the developer claims was a breach of contract has reached the state Supreme Court (see CP&DR Legal Digest , December 2005). In the meantime, the city is putting $9 million into Hotel Stockton restoration. The city created 156 apartments for senior citizens on the upper floors of the Hotel Stockton, and those have been filled since 2005. Further plans call for retail and a restaurant operated by Sacramento's Gary Paragary on the ground floor. What downtown may need most, though, is market-rate housing. A downtown plan calls for 3,000 to 3,500 new market-rate and affordable units, said Mike Niblock, the city's deputy community development director. The first project may be Grupe's plan for about 150 condominiums on 8 acres across the water from the ballpark. "The project is really in its infancy stage," said Grupe's Jeremy White, who noted the developer has not filed an application with the city yet. "It's something new for us. We're very optimistic. We think Stockton's ready for it." And it might be. But Stockton-based Grupe made its name as a builder of suburban housing tracts, and a proposed new general plan appears to encourage a great deal of such development on the periphery. In fact, the updated general plan envisions a doubling of the city's population of 280,000 largely by opening up new development areas. Such a plan would appear to give little incentive for private investment in downtown. Pinkerton, though, thinks downtown appeals to a certain demographic. "We don't have a neo-traditional neighborhood. We have a real neighborhood. I think you're going to see a lot of market rate homes," he said. There would appear to be demand for such housing, as upwards of 20,000 city, county, state and federal employees work in downtown offices and courthouses. Additional downtown projects in the planning stages include a new marina, a downtown transit station, a transit-oriented development adjacent to a rail line with service to the Bay Area, and a full-fledged California State University campus where CSU Stanislaus now has a branch. Contacts: Steve Pinkerton, Stockton Department of Housing and Redevelopment, (209) 937-8538. Tom Bowe, WMB Architects and Downtown Stockton Alliance, (209) 944-9110. Jeremy White, The Grupe Company, (209) 473-6000. Downtown Stockton Strategic Action Plan: www.ci.stockton.ca.us/ActionTeams/DAT/DAT.cfm

In one of the first published opinions upholding an environmental impact report’s water analysis, the Third District Court of Appeal has overturned a lower court’s ruling favoring opponents of a gravel mine proposed in Placer County. The Third District ruled that the water analysis was adequate and that Placer County did not have to revise the EIR after the project applicant altered the project and its phasing. On the later point, the court ruled there was substantial evidence to support the county’s decision that the project changes created no new environmental impacts. The decision appears to clear the way for a mining project originally proposed 12 years ago. Attorney Susan Brandt-Hawley, who represented a citizens group fighting the project, said she was surprised by the decision but declined to discuss it in detail. Attorney John Taylor, who represented mining company Teichert, said the court upheld the water analysis because the court noted the project “amounted to the status quo” for water usage. “It makes little difference whether it’s used for agriculture or for mining and reclamation,” Taylor said. In December 1994, Teichert submitted an application for a sand, gravel and granite mine on 945 acres of an 1,878-acre site, about four miles north of Lincoln. After concerns were raised about traffic and the site’s proximity to residents, Teichert acquired an additional 1,577 acres and revised the project. It proposed mining 1,000 acres of a 3,455-acre site in nine phases over 85 years. Much of the site has been a cattle ranch. The county released a draft EIR in 1999 that included a “mitigated design alternative” that limited mining to 40 years and 785 acres. In November 2001, Teichert accepted the mitigated design alternative but changed the phasing so that the company would avoid land covered by the Williamson Act until the Williamson Act contracts (which prevent development) expire. The county released the final EIR in January 2002. Four days later, Teichert submitted a revised project application to reflect the mitigated design alternative, new phasing and a relocated processing plant. In November 2002, the Planning Commission certified the FEIR and approved the project, which was called the “revised mitigated design alternative.” The Board of Supervisors upheld the decision in early 2003. A group called Western Placer Citizens for an Agricultural and Rural Environment (WPCARE) sued, alleging a number of violations of the California Environmental Quality Act (CEQA). Retired Mendocino County Superior Court Judge James Luther, sitting by assignment in Placer County, ruled that the county violated CEQA by not describing the revised project and new phasing in the EIR, and by inadequately analyzing the availability of a long-term water supply. On appeal by Teichert and the county, the Third District overturned the lower court. The Third District first addressed the question of new information in the EIR. “The trial court determined the EIR had to be revised to include the changes made to the project before the county determined whether the changes were significant enough to require recirculation,” Justice George Nicholson wrote for the unanimous appellate panel. “The authority the court cited to support its holdings does not expressly do so. The parties have directed us to no provision in CEQA or the Guidelines, and we have found none, that requires all changes made to a project after the final EIR is released but prior to certification to be included in the EIR.” According to the court, the question is whether substantial evidence supports the county’s decision that the new information was not significant enough to require revision and recirculation of the EIR. The court concluded that such evidence did exist, as the county had determined the last round of project modifications were environmentally superior to the mitigated design alternative. On the issue of water, the trial court found that the analysis was inadequate because there was not substantial evidence that Teichert had a dependable annual water supply to implement the reclamation plan, which calls for continued agricultural uses and creation of two lakes on 345 acres. But the Third District said that Judge Luther made a factual error. The appellate court said Teichert has a right to 2,437 acre-feet of water from Nevada Irrigation District, may purchase surplus water from the district, has rights to a creek that flows through its property, and has the right to groundwater beneath its property. “Teichert asserts, and WPCARE concedes, that to be sufficient, an EIR need not identify a guaranteed source of water. We agree,” Nicholson wrote. “No water supplier can guarantee an adequate supply of water in all circumstances. If an EIR were required to identify a guaranteed source of water, then no EIR would ever be sufficient. The EIR identifies existing, available and sufficient sources of water for the project and in that respect is sufficient.” The court contrasted the situation to that in other cases where courts have rejected water analyses. In , (1996) 48 Cal.App4th 182, the court rejected an EIR because the proposed project needed a new source of water that had not been identified (see , September 1996). In , (2003) 106 Cal.App.4th 715, the court rejected an EIR that relied on water from the oversubscribed State Water Project (see , April 2003). In , (2003) 108 Cal.App.4th 859, the court threw out an EIR that failed to analyze the impacts of separate projects that called for different uses of the same water (see , July 2003). The Teichert project, on the other hand, does not need a new water supply, has identified and available water sources, and does not rely on water supplies that may be changed, the court determined. Although the facts of the case may limit the decision’s scope as a precedent, the opinion could support an argument in a case where planned urban development would require the same amount of water as previous agricultural uses on the same site, attorney Taylor said. The Case: , No. C049364, 06 C.D.O.S. 10396, 2006 DJDAR 14839. Filed November 9, 2006. The Lawyers: For WPCARE: Susan Brandt-Hawley, (707) 938-3908. For the county: Valerie Flood, county counsel’s office, (530) 889-4044. For Teichert, Inc.: John M. Taylor, Taylor & Wiley, (916) 929-5545.