The conventional wisdom is that Sonia Sotomayor's appointment to the U.S. Supreme Court doesn't make a whole lot of difference, because there's not much meaningful ideological distance between her and her predecessor, Justice David Souter. So, the party line goes, the court will still be stuck in the familiar 5-4 or 4-5 split, depending on how Justice Anthony Kennedy is feeling that day. But there's a debate brewing as to whether that's really the case in land use and property rights law. Souter's movement toward government power culminated in 2005 with his decision to side with the five-member majority in the controversial case of Kelo v. New London , 545 U.S. 469, (see CP&DR Economic Development , July 2005 ) which upheld a city's power to use eminent domain in a redevelopment situation to transfer property from one private owner to another. Would Sotomayor have done the same? You'd think so. But unlike Samuel Alito (see CP&DR Insight , December 2005 ), her federal judicial record – while lengthy – doesn't include a lot of takings cases. And, not surprisingly, her confirmation hearings did not provide much insight. Sen. Herb Kohl (D-Wisconsin) asked Sotomayor point-blank what she thought about Kelo. Her stand-pat answer – typical of Supreme Court nominees these days – was this: "Kelo is now a precedent of the court. I must follow it. I am bound by a Supreme Court decision as a Second Circuit judge. "As a Supreme Court judge, I must give it the deference that the doctrine of stare decisis, which suggests the question of the reach of Kelo has to be examined in the context of each situation, and the court did, in Kelo, note that there was a role for the courts to play in ensuring that takings by a state did, in fact, intend to serve the public — a public purpose and public use. "I understand the concern that many citizens have expressed about whether Kelo did or did not honor the importance of property rights, but the question in Kelo was a complicated one about what constituted public use. And there, the court held that a taking to develop an economically blighted area was appropriate." In other words, she mostly hid behind the Supreme Court's ruling as a precedent, saying almost nothing except she is bound to follow precedent and apply the precedent in a context-specific situation. To the extent that this testimony provides any insight at all – which is not much – it kind of suggests that she would have sided with New London. She provided this hint by acknowledging the whole public use question: Essentially, can forcing a property transfer from one private owner to another serve a public purpose? John Roberts and especially Samuel Alito would surely have hidden behind the precedent and the context-specific idea just as cleverly as Sotomayor – maybe more so – but they probably would not have characterized public use as a complicated concept. In suggesting that Sotomayor is a typical pro-government liberal on property rights issues, property rights advocates point mostly to a series of Second Circuit rulings, but in almost all of these cases Sotomayor was a member of the panel and not the opinion's author. The case most bothersome to the pro-property side is Didden v. Village of Port Chester , 173 Fed. Appx. 931 (2d Cir. 2006), a case which was not signed by an individual judge and not published in the federal reporter. The facts would be amusing if they weren't so frightening. A landowner in Port Chester – located in Westchester County, New York, near the Connecticut border – wanted to build a drug store inside a redevelopment zone. A local developer with influence in the redevelopment area demanded that the landowner either pay him $800,000 or give him a half-interest in the project, and he threatened that if the landowner did not agree, the village would condemn his property. The landowner refused and the village went forward with eminent domain proceedings. The Second District upheld a federal trial judge in throwing the case out. UCLA law professor Eugene Volokh, one of the best pro-property bloggers, acknowledged that the panel may have simply thought it was implementing Kelo, because the case clearly states that the federal judiciary should give great deference to local judgments in eminent domain cases. But writing for the majority in Kelo, Justice John Paul Stevens, the only former city attorney on the high court, concluded that "pretextual" condemnations – condemnations that claim to serve a public purpose but whose real purpose is to benefit a private party – aren't covered by the ruling. "It is difficult to imagine a more clearly pretextual taking than this one," Volokh wrote of the Didden case. Beyond that you have to go all the way back to her federal trial court days to find an opinion she wrote that seems relevant. In that case she also seems to favor the government. In In re St. Johnsbury Trucking Co. , 199 Bankr. 83 (S.D.N.Y. 1996) and 191 Bankr. 122 (S.D.N.Y. 1996), a trucking company claimed the federal trucking rates law represented a taking of property. Sotomayor appeared to agree that the economic value of the trucking company's property had been taken away but ruled in favor of the government based on the well-known three-pronged test in the Penn Central case. (My description was taken from another good property rights blog, www.inversecondemnation.com , written by Hawaii property rights lawyer Robert Thomas, who expressed appropriate outrage at the ruling.) However, there are a few points on the other side that suggest Sotomayor may be more moderate on property rights than these rulings suggest. Chief among these is Krimstock v. Kelley , a 2002 Second Circuit decision written by Sotomayor, in which the panel overturned the New York City Police Department's longstanding practice of holding vehicles seized from accused criminals indefinitely and not permitting the owners any legal recourse in attempting to reclaim the vehicle. This ruling got good press among anti-government types. But it is, of course, a different kind of case. The owners of the property in question are not developers, but, rather, accused criminals. So maybe Sotomayor really is an unquestionably liberal judge, even when she rules in favor of property owners and against the government.

A bill that extends the sunset date of tentative subdivision maps by two years has been signed by Gov. Schwarzenegger. As originally introduced, AB 333 (Fuentes) would have extended the life of subdivision maps by six years. That unprecedented, lengthy extension met resistance, so it was reduced to two years. The urgency legislation took effect on the governor's July 16 signing date. Last year, Schwarzenegger signed a bill extending the sunset date by one year. About 1,800 maps statewide are affected, according to the California Building Industry Association. The Los Angeles County Metropolitan Transportation Authority (MTA) has approved its first congestion pricing project. It will permit paying motorists to use carpool lanes on 14 miles of Interstate 10 and 11 miles of the 110 freeway. Rates would range from 25 cents per mile during light traffic to $1.40 per mile during rush hour, with the intent of keeping traffic flowing at least 45 mph in the carpool lanes at all times. The MTA intends to add a second toll lane in both directions of the same stretch of I-10, which is immediately west of the 605 freeway. The congestion pricing project, which received a $210 million federal grant, also involves construction of automated toll plazas and increased operation of clean fuel buses on the same stretches of highway. Construction is scheduled to be complete the end of 2010. A Desert Hot Springs site along Highway 62 that was planned to become a luxury golf resort, shopping mall and high-end housing is instead becoming protected habitat. The Coachella Valley Association of Governments (CVAG) has purchased 638 acres of the 1,766-acre Palmwood development site for $3.9 million and intends to buy more of the land as funding becomes available. The Palmwood project was one of the major sticking points in adoption of the Coachella Valley multiple species habitat conservation plan, which designated the site for protection. That caused the City of Desert Hot Springs to oppose the plan, which forced plan amendments and delayed adoption (see CP&DR Environment Watch , April 2006 ). Ultimately, the Palmwood development fell apart, and Desert Hot Springs joined the species planning effort. Mendocino County voters in November will decide on a proposed 800,000-square-foot shopping mall and housing development on a former industrial site just outside of Ukiah. Project proponent Developer's Diversified is taking its plan directly to voters because of frustration with county officials, who have been considering re-use of the 76-acre Masonite site for many years and who have been unable to reach agreement with Ukiah leaders on the project.

Orange County's Planning & Development Services department "is in critical condition," according to an internal county audit released in late July. The 117-page report by the county's Office of the Performance Audit Director detailed a planning department that has seen its workload and staffing level decline drastically this decade because of incorporations and decreased building activity. At the same time, the department adopted a new time-and-materials fee methodology and went through several permanent and interim directors. Seven years ago, county officials revealed the department was operating at a $500,000-a-month deficit, a situation that forced out both the planning director and the county administrator. The deficit arose after the county slashed fees to burn off $18.5 million in excess plan check and building inspection fee revenue. The county later shifted to a time-and-materials fee basis. The county auditor concluded, "Avoiding an operating deficit continues to be, by far, the top priority for the PDS (planning and development services) organization. In response to drastically declining revenues, PDS has made significant operations changes to achieve financial solvency, in many cases at the expense of customer service." Department Director Tim Neely retired earlier this year. New Director Bryan Speegle responded to the audit by agreeing with many of the findings.

California's farm and grazing lands decreased by 176,000 acres (275 square miles) from mid-2004 through mid-2006, according to the state Department of Conservation. Most of the agricultural land was lost to urban development (102,000 acres) and a little more than half of that urbanization occurred in only five counties – Riverside, Sacramento, San Bernardino, Kern and San Diego. Nearly all urbanization occurred in Southern California and the Central Valley. "Housing developments were the most frequent and largest category of newly urbanized land," according to the recently released California Farmland Conservation Report 2004-2006. "Most of the increase was associated with single-family homes located at the periphery of existing cities, and to a lesser degree condominium and apartment complexes. Individual subdivisions ranged up to 300 acres in size." The overall amount of farmland conversion increased by about 8,000 acres from the previous two-year period. A total of 81,000 acres of prime farmland were lost to urban development or other changes, such as idling, dry cropping, confined animal facilities and rural residential development, during the 2004-06 period. That's the greatest decrease in prime farmland since the state started the farmland mapping and monitoring program (FMMP) in 1984. In Stanislaus County, 81% of farmland lost to urban development during the 2004-06 period was prime farmland. "During the 11 biennial reporting cycles since FMMP was established, more than 1.2 million acres of agricultural land in California were converted to nonagricultural purposes. Nearly 79% of this land was urbanized," the report concluded. The report and detailed county-level information about farmland is available from the Department of Conservation website .

Gov. Schwarzenegger's last-minute decision to eliminate Williamson Act subventions is another example of how the state's spending decisions run counter to its greenhouse gas emissions-reduction goals. I know, the budget signed on Tuesday does not match many of the state's alleged policy goals. But I find the continual undercutting of the greenhouse gas (GHG) emissions policy to be particularly galling because the governor and other state leaders have been so quick to take credit for being climate change warriors. In case you haven't heard, the governor "blue penciled" all but $1,000 of Williamson Act subventions because he said the state needs the money for a reserve fund. The Williamson Act provides tax breaks to agricultural landowners who sign 10-year contracts (renewed annually) not to develop their property. The program reduces county property tax revenues by about $35 million to $38 million annually, but the state has always backfilled that money as a way of promoting the Williamson Act program. With about 17 million acres enrolled, the 44-year-old Williamson Act amounts to the state's biggest anti-sprawl program. Urban sprawl, of course, causes people to drive more and, therefore, produce more GHGs. Considering the AB 32 goal of reducing emissions to 1990 levels by 2020, and to 80% below 1990 levels by 2050, you'd think the state would do all it could to block sprawl. You know, things like provide incentives to rural landowners not to subdivide their pastures. State lawmakers were willing to fund subventions at 80%, or about $28 million, but the governor said he needs to hang onto the money for the next emergency. Will the Williamson Act survive? It's hard to predict, but it's easy to see that no level of government is more fiscally strapped than counties. Would it surprise anyone if counties started canceling Williamson Act contracts? The Williamson Act funding cut is hardly the only example of the state's counterproductive budget in the area of climate change. The spending plan also eliminates state support for transit operations , and it slashes $2 billion from redevelopment, which sure seems like something climate change warriors would want to support. (I should note that the budget does not include $100 million in royalties from new offshore oil drilling leases, as state lawmakers refused to approve the governor's drilling proposal .) Is anyone happy with this budget? It appears not. Even Republican lawmakers who got everything they wanted on potential tax increases concede the budget is no victory . - Paul Shigley

California's continuing budget woes, coupled with the nation's stubborn recession, could hinder the state's ability to meet its ambitious goal to reduce greenhouse gas emissions to 1990 levels by 2020. This is one of the chief concerns of the Regional Targets Advisory Committee (RTAC), which will recommend how the California Air Resources Board should allocate greenhouse gas (GHG) emissions-reduction targets among the state's metropolitan planning organizations (MPOs). While the 21-member committee has made no decisions, it appears headed toward setting reduction targets that do not significantly take into account economic factors. The committee also recognizes that the availability of funding will affect implementation. The allocation methodology devised by the RTAC will help guide the Air Resources Board when it establishes emissions-reduction goals for automobiles and light trucks in each of the state's 18 metropolitan regions, as called for in that portion of the AB 32 implementation plan dealing with land use and vehicle miles traveled. The climate change law, passed three years ago, ties directly to SB 375, which requires MPOs to adopt regional sustainable land use strategies to reduce greenhouse gas emissions. The committee has until the end of September to make its recommendations to the board. Increased use of public transit is widely seen by public officials as crucial for cutting automobile emissions. But during the RTAC's July 22 meeting, Gary Gallegos, a committee member and executive director of the San Diego Association of Governments, said that the 2009-2010 state budget eliminates state support for transit operations for the next five years. He warned that without the fiscal resources to build or expand public transit, California and its metropolitan regions will fall short of meeting their GHG reduction goals. "If we want to do this stuff, we've got to figure out how we're going to pay for it," Gallegos said. Carolyn Cavecche, mayor of the City of Orange and a member of the Orange County Transportation Authority, told the RTAC that her agency faces a loss of $314 million over the next five years because of state budget cuts and lower-than-expected sales tax revenues. Service levels will decrease dramatically, predicted Cavecche. She urged the RTAC to include recommendations for funding transit in its final report. "The transit operators are not going to exist next year as they do right now," Cavecche said. RTCA members were somewhat divided on how far they should push the transit funding issue. Jim Wunderman, who heads the business group Bay Area Council, said that AB 32 and SB 375 marked major points of agreement and achievement for California, but that the state's fiscal policy directly undercuts them. "I think calling the Legislature on the question is appropriate," Wunderman said. Chairman Mike McKeever, who heads the Sacramento Council of Governments, said the RTAC lacks the political clout to influence immediate state fiscal decisions. But he suggested that SB 375 author Sen. Darrell Steinberg (D-Sacramento), now the president pro-tem of the state Senate, be invited to a future RTAC meeting to discuss these concerns. The RTAC continues to wrestle with how much weight it should give economic factors in setting GHG reduction targets. Committee member Carol Whiteside, founder of the Modesto-based Great Valley Center, has repeatedly argued that lowering emission reduction targets for economic reasons would take the pressure off regions and local governments to comply with the law. They need to find and implement creative emissions solutions, she says, and not look for an escape route based on fiscal issues. Committee member and Ontario City Manager Greg Devereaux disagreed somewhat, saying that the committee's recommendations should strive to strike a balance between a locale's housing needs and economic growth and its emission-reduction targets. For example, Ontario is willing to take on a substantial portion of its region's job and housing development (see CP&DR Local Watch , July 1, 2009 ) but that means its GHG emissions will rise, he said. Any methodology recommended by the RTAC should try to accommodate such tensions, he argued, noting that the attorney general's office is already pressing the city to specify in its updated general plan how it plans to meet SB 375 emissions-reductions targets that have yet to be established. Coming up with a formula to allocate emission-reduction targets among the 18 metropolitan regions committee appears to be dividing the committee. Some members want to rely on performance standards based on regional greenhouse gas emissions modeling. Others are pushing for a "best management practices" system in which regions would have to earn a certain number of points for adopting practices such as zoning for compact development and congestion pricing on roads. Committee member Barry Wallerstein, executive officer of the South Coast Air Quality Management District, has little confidence in emissions models. He says the models are inconsistent from region to region and not widely understood by experts outside each region, in part because the models contain different assumptions. Creating a list of best management practices would not ensure precise GHG reductions, Wallerstein said. But he said it would force local governments to take actions -– such as zoning for high density; pushing mixed-use development that encourages walking; raising public parking rates; and putting a price on road use during times of congestion – that would start to reduce greenhouse gases. Committee member Stuart Cohen, who heads the advocacy group TransForm, said any checklist must take into account different place types, such as suburban versus inner-city. Raising density levels in the "wrong place," for example, could lead to an increase in vehicle miles traveled and thus more GHG emissions, he said. Committee member Jerry Walters, of consulting firm Fehr & Peers, concedes the models are not perfect, but he argues that the system should move toward use of models quickly. "The time is now to initiate an effort to get the models on better footing," he said. The RTAC, he added, is the ideal panel to evaluate models and current scientific literature. "We're missing that opportunity." McKeever said the committee will address the "very meaty issues" of methodology and other policies at the next meeting, scheduled for August 5 in Los Angeles. The committee also plans to meet in Sacramento on August 18 and on September 1 and 16. A meeting on deadline day – September 30 – is also possible, he said. Resources: RTAC website: http://www.arb.ca.gov/cc/sb375/rtac/rtac.htm . CP&DR 's SB 375 Resources Page .

Two environmental groups that sued the City of Rancho Cucamonga and developers to gain ownership of 86 acres of habitat mitigation land have failed to persuade an appellate court to reverse a devastating lower court ruling. A unanimous three-judge panel of the Fourth District Court of Appeal rejected the argument put forth by The Habitat Trust for Wildlife and Spirit of the Sage Council that the city, developers and San Bernardino County had collaborated to deny the environmental groups' right to own the property. In so doing, the court said that there was nothing improper about the city's method of deciding who could own mitigation land; that the environmental groups had no constitutional right to the land; and that the developers had not breached a contract it had with the groups. The judges also upheld an award of $954,000 in attorney fees and legal costs to the developers. Spirit of the Sage has sued Rancho Cucamonga developers and the city numerous times to mitigate the loss of wildlife habitat because of real estate development. The litigation resulted in the formation of a 308-acre wildlife preserve in Etiwanda Canyon. Developers Henderson Creek Properties and SPS Development Services sought approval for a 123-house, 65-acre subdivision. The Rancho Cucamonga City Council approved the project in June 2004. Among the mitigations was a requirement that the developers donate at least 54 acres of off-site land to a "qualified conservation entity" for permanent open space and habitat preservation. To head off litigation by Spirit of the Sage and Habitat Trust, the developers signed an agreement to turn over 86 acres adjacent to the preserve in Etiwanda Canyon to Habitat Trust. They also agreed to provide a $430,000 endowment to fund property management and $125,000 to cover administrative and attorney costs. The developers then asked the city to designate Habitat Trust as a qualified conservation entity. But in early 2005, the city balked because the environmental organization did not put together a habitat management plan, lacked adequate financial and personal resources, did not provide audited financial records and was not accountable to the public. The city reached this conclusion after San Bernardino County Supervisor Paul Biane urged the city to ensure a county agency gained the mitigation lands. Biane and other county officials say habitat lands should be managed for public recreation in addition to wildlife needs, an approach opposed by the environmental groups. After the city's decision, the developers turned over the land and money to a county service area. The groups then sued the city, the county, Henderson, SPS, and Granite Homes, which had assumed Henderson's interest in the project. The groups sued the developers for breach of contract and breach of the covenant of good faith and fair dealing. The groups argued the city denied them due process and adopted standards for establishing a qualified conservation entity that conflicted with state and federal law. Meanwhile, Henderson and SPS filed a cross-complaint against Spirit of the Sage and Habitat Trust to rescind the 2004 contract, based upon failure of consideration, mutual mistake and duress. San Bernardino Superior Court judges granted summary judgment to the city, the county and the developers on every issue. The court also awarded $667,000 in attorney fees to Henderson and SPS, and $287,000 in attorney fees and costs to Granite. The environmental groups appealed, but the Fourth District, Division Two, rejected every argument. On the issue of due process, the court ruled the groups had failed to show why they were entitled to due process, as no constitutional right was implicated in the matter. Even if due process rights applied, the groups were aware of the city's proceedings and were given the opportunity to address the City Council, the court concluded. Regarding the choosing of a qualified conservation entity, the court found the city's criteria acceptable and not in conflict with any state or federal laws. On the breach of contract issues, the court ruled that the environmental groups had not proven their case. Essentially, the 2004 agreement fell apart when the city refused to name Habitat Trust a qualified conservation entity, contrary to the contract's assumptions. The purpose of the contract was the satisfaction of a mitigation condition. When the city made its decision regarding Habitat Trust, the developers rightly turned over the land and money to the county to comply with the condition, the court found. Because it upheld the lower court's summary judgment rulings, the Fourth District also upheld the award of attorney fees and costs. Earlier this year, the Superior Court ordered an auction of Habitat Trust's 308-acre preserve to help pay off the award. In April, Henderson Creek and SPS won the auction, acquiring the property for $255,000. They intend to use the site, which is covered by a conservation easement, as a mitigation bank. The Case: Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga , No. E042229, 2009 DJDAR 10813. Filed July 21, 2009. The Lawyers: For Habitat Trust: Craig Sherman, (619) 702-7892. For the city: Mitchell Abbott, Richards, Watson & Gershon, (213) 626-8484. For SPS Development Services and Henderson Creek Properties, Alan Kessel, Manatt, Phelps & Phillips, (714) 371-2500. For Granite Homes: Daniel Friedlander, Jackson, DeMarco, Tidus and Peckenpaugh, (805) 230-0023. For San Bernardino County: Mitchell Norton, county counsel's office, (909) 387-5455.

The California Supreme Court has taken up another Proposition 218 case. This one involves voter secrecy in fee elections. Earlier this year, the First District Court of Appeal annulled a fee election held in 2007. Marin County Flood Control and Water Conservation District had asked voters to approve a storm drainage fee to pay for flood-protection improvements in Ross Valley. Affected property owners received ballots in the mail, and each voter was required to sign a ballot printed with the name, address and proposed fee of the voter. The fee proposal passed 3,208 to 3,143. One property owner sued to throw out the election because the district did not conduct the vote using secret ballots. A trial court judge disagreed, but the appellate panel overturned the lower court. While conceding that Proposition 218 was ambiguous on secret elections, the First District concluded that "voters who adopted Proposition 218 intended voting to be secret in these fee elections." With the support of other special districts and local government agencies, the Marin district appealed to the state Supreme Court. It contended that Proposition 218 – the "Right to Votes on Taxes Act" passed in 1996 – does not require voter secrecy, and that the appellate court ruling runs counter to 12 years of practice in fee elections. The case presents two questions for the court: • Does the state constitution's secret voting requirement apply to special elections governed by Proposition 218 (article XIII, section D of the constitution)? • If so, was the secrecy requirement violated by the Marin County district, whose procedures were designed to ensure secrecy but which failed to provide each voter with assurance that his vote would be held in confidence? Earlier this year, the state high court issued a procedural ruling – Bonander v. Town of Tiburon (see CP&DR Legal Digest , July 1, 2009 ) – that appears to make it easier to wage a Proposition 218 challenge to some fees. And last year, the court ruled that a Santa Clara County open-space assessment violated Proposition 218 because the fee provided only general, rather than parcel-specific, benefits. That case, Silicon Valley Taxpayers Assn., Inc. v. Santa Clara County Open Space Authority , (2008) 44 Cal.4th 431 (see CP&DR Legal Digest , August 2008 ), provided a template for the First District's review of the Marin County situation. The latest case is Greene v. Marin County Flood Control District , No. S172199.

Two members of the board overseeing the Orange County Great Park who sued the public agency over access to executive recruitment information should have their attorney fees paid, the Fourth District Court of Appeal has ruled. Steven Choi and Christina Shea serve on the board of directors of the Orange County Great Park Corporation and the Irvine City Council. After being denied access to resumes and related materials of candidates seeking the job of chief executive officer, they sued the corporation. When the corporation settled the suit by agreeing to provide them access, Choi and Shea sought $44,000 in attorney fees. A trial court judge refused to grant them, but the Fourth District, in ordering fees to be paid, found there was "not a whit of evidence" the corporation would have made the documents available without the suit. When completed, the Great Park will comprise 1,350 acres of the former El Toro Marine Corps Air Station in Irvine. While elaborate plans have been drawn up, only a 27-acre "demonstration park" has been finished, in part because housing development that would help fund the park has stalled. The Great Park was conceived to be a county or regional facility when voters approved it as Measure W in 2002, but the City of Irvine has since taken control of the estimated $1.6 billion project. The Great Park corporation board of directors is composed of Irvine's entire five-member City Council and four other people appointed by board. After going through three different CEOs in its first three years, the board hired the Mills Group in 2007 to conduct a nationwide search for a fourth. The board formed a search committee composed of four directors, and Irvine's city manager and deputy city manager. Mills narrowed the field to 12 candidates out of 150 applicants. The search committee interviewed five finalists before recommending Kurt Haunfelner, president of the Chicago Museum of Science and Industry. Before the full board voted to offer the position to Haunfelner, Shea asked to see the resumes of the finalists. She was refused. After Haunfelner declined the offer, the committee recommended Rod Cooper, the park's operations manager and an Irvine employee, but he withdrew from consideration before the board could vote. Soon thereafter, the Los Angeles Times revealed that Haunfelner was a friend of board Chairman and Irvine Councilman Larry Agran, who had once employed Haunfelner's brother as an aide. The Times also reported that the previous CEO, Marty Bryant, was convicted in 1989 of embezzling public funds from the City of San Juan Capistrano. Choi and Shea asked to see all the resumes and materials received by the Mills Group but Agran and the corporation repeatedly refused to release them. In January 2008, Choi and Shea sued to see the materials. Two months later, the corporation agreed to provide Choi and Shea with complete copies of all materials related to the job search during a closed session. Choi and Shea then sought to recoup their attorney fees under Code of Civil Procedure § 1021.5 (the private attorney general doctrine) and Corporations Code § 6337. Orange County Superior Court Judge Derek Hunt rejected the request on the grounds that there was no court judgment and that the suit produced no public benefit, as required under the private attorney general doctrine. In overturning Hunt, the unanimous three-judge appellate panel considered the attorney fee request only under § 1021.5. That statute and case law do not require a judgment but a "broad, pragmatic view" of the matter's outcome, the court determined. In this case, the settlement brought about a complete reversal, as the corporation had "unequivocally refused to provide documents prior to the litigation," wrote Justice William Rylaarsdam. On the question of public benefit, the Fourth District said: "Given the checkered history of the CEO search and the ongoing public criticism of the ‘revolving door of Great Park executives,' the method used for selection of the CEO should be beyond reproach. Plaintiffs' request for documents to determine how the search had been conducted to date was an act to maintain the integrity of the process itself, a significant benefit to the public." "This is especially important given that out of 150 resumes collected … the selection committee's first choice had political ties to Agran and the second choice was another City of Irvine employee," Rylaarsdam wrote for the court. "This does not give the appearance of fairness or impartiality." The court directed the trial court to determine the amount of attorney fees owed to Choi and Shea, who could also seek fees for the appeal. One year ago, the board appointed Michael Ellzey, who had been deputy CEO for six months, to the Great Park Corporation's executive position. The Case: Choi v. Orange County Great Park Corp. , No. G040823, 2009 DJDAR 9790. Filed June 30, 2009. The Lawyers: For Choi: Benjamin Pugh, Enterprise Counsel Group, (949) 833-8550. For the corporation: Robert Thornton, Nossaman, (949) 833-7800.

Many people decry the use of eminent domain by redevelopment agencies in California. I don't deny that there have been flagrant abuses of eminent domain authority over the years, but I also understand why well-meaning redevelopment officials grow frustrated with private property owners and resort to forced takings. I spent a day in Suisun City last month reporting for the latest Local Watch story . Suisun City is unquestionably one of California's redevelopment success stories. A sparkling waterfront district has replaced one of the Bay Area's scariest slums. Still, when I visited last month, I was struck by the number of empty lots and vacant or obviously underused buildings on Main Street – even right across the street from the very pleasant waterfront promenade. In the window of one boarded-up, single-story building was a faded, hand-scrawled sign on a piece of corrugated cardboard inviting offers of "$750,000 and up" for the real estate. Yes, three-quarters of a million. When I spoke with current Mayor Pete Sanchez and former five-term Mayor Jim Spering (now a Solano County supervisor), they expressed frustration with the situation. Both of them said the city had failed to get the Main Street property owners interested since the city shifted redevelopment into high gear during the late 1980s. "That whole west side of Main Street is just as blighted as it used to be," an exasperated Spering said. The situation is hardly unique, and it exemplifies why redevelopment agencies end up exercising their eminent domain authority. The scenario usually goes about like this: In a run-down part of town, the city starts a redevelopment program. It does some infrastructure work and improves the streetscape. It acquires a few neglected properties from willing sellers and then either fixes up the property or turns it over to a developer for a project. Over a period of time, things start shaping up. Some people recognize the neighborhood is changing and begin investing in their property or business. This one of the primary goals of redevelopment – to generate private investment in a stagnant market. Other people, however, see the redevelopment activity as their big chance to cash in. They put their dilapidated property on the market for an astronomical price, sometimes after shutting down a business or evicting a tenant. Naturally, no one bites. The property owner tries to interest the redevelopment agency, but even if the agency wants the property, it may not legally pay more than fair market value, which could be a small fraction of the asking price. So nothing happens. The property sits there vacant or with some grungy second-hand store that pays enough rent to cover the property owner's minimal taxes. The property owner figures he'll wait it out. The other scenario involves an owner who is motivated not by money, but by ideology. It's his property and he can do whatever he wants with it – paint the building florescent green, let the tenant erect obnoxious signs, rent to a biker gang or simply board up the windows and use the building for storage. The city can just go to hell. A walk down Main Street shows that Suisun City has experience with both scenarios – 20 years after the city got serious about redevelopment, and more than 10 years after redevelopment was declared a success. This is precisely why redevelopment agencies take properties. Recalcitrant property owners hinder not only the fancy plans of elected officials and bureaucrats, they hold back the entire community. – Paul Shigley

Preparing CEQA documents can be a complex process that requires compliance with numerous legal requirements, guidelines and emerging issues like climate change. UCLA Extension offers a one day course which aims to clear the confusion, and convey approaches for preparing, reviewing and understanding environmental documentation for CEQA projects. Anyone who deals with CEQA documentation can gain valuable knowledge from this seminar which also delves into Negative Declarations and EIR's. John E. Bridges, Principal of EDAW and Thomas E. Smith Jr, Founder and Principal of BonTerra Consulting will navigate you through this one day seminar on July 24th. The seminar runs from 9:00am to 4:30pm and will be held at the Figueroa Courtyard in downtown Los Angeles. The fee is $350; please use registration number V2245. For more information, or to enroll, please call (310) 825-9971 or go to www.uclaextension.edu/publicpolicy

A courtroom is not the location to settle disputes over regional fair-share housing allocations. So ruled the Fourth District Court of Appeal on June 30 in a closely watched case involving the City of Irvine. As a result of the ruling, the city apparently is stuck with having to plan for development of 35,000 additional housing units � equal to about half of its existing inventory � over the next five years. The appellate court's decision bolsters the authority of the Southern California Association of Governments and other councils of government (COGs) that allocate fair-share housing numbers to cities and counties. The decision raises questions about local governments' planning authority. If the Fourth District rejects Irvine's request for reconsideration, the city will almost certainly appeal to the state Supreme Court. "We simply don't agree with the court's analysis and conclusions," said Rutan & Tucker's Philip Kohn, who represents Irvine in the litigation. The appellate court's decision amounts to an "erosion of local control," he said. If the ruling stands, Irvine will be responsible for accommodating about 43% of Orange County's projected housing needs during the 2006-2014 planning period, a mandate that Irvine leaders say is unfair and infeasible. "We try to balance housing and job opportunities," Irvine Mayor Sukhee Kang told the Orange County Register . "Looking at the overall housing vision for the county, we feel that what is required out of Irvine is inequitable." John Edney, an El Centro city councilman and SCAG president, backed the court's decision but acknowledged the difficulty Irvine faces as a result of it. "SCAG will continue to work with all of its member agencies on the Regional Housing Needs Assessment in a collaborative and transparent manner, and in compliance with the law," Edney promised. Kenneth Moy, general counsel for the Association of Bay Area Governments, which supported SCAG in the Irvine lawsuit, said the case was correctly decided. If the court had gone the other way, it would have thrown a monkey wrench into the whole Regional Housing Needs Assessment (RHNA) process, he said. "On balance," Moy said of the ruling, "it preserves the integrity of the process for all the participants in the RHNA process. I don't think it affects how ABAG will conduct future RHNA allocations." Two years ago, the cities of Palmdale and La Mirada filed similar suits against SCAG over the fair-share housing allocations. But, like with Irvine's, the suits were dismissed because trial courts said they have no jurisdiction to hear the disputes. Although more than 20 other cities signed onto amicus briefs in support of the lawsuits, the League of California Cities has remained officially neutral. The Regional Housing Needs Assessment process is laid out in Government Code � 65584, et seq. The law requires the state Department of Housing and Community Development (HCD) to consult with a region's COG to establish the region's existing and projected housing needs. The COG then works with its cities and counties on a methodology for allocating the housing needs among them. After the COG prepares a draft RHNA allocation based on the methodology, cities and counties may appeal to the COG's appeals board. Because a successful appeal typically requires the COG to re-allocate units to other jurisdictions, few cities or counties get far with their appeals. Once appeals are exhausted, the COG adopts a final allocation plan, which is subject to review and approval by HCD. Cities and counties then must update their housing elements to reflect the RHNA allocations for very low-, low-, moderate- and above-moderate income housing units. Housing elements typically analyze housing needs, identify land where housing may be developed, and list policies and programs to promote affordable unit development. Final authority for certifying housing elements rests with HCD. In 2004, lawmakers approved SB 2158 (Lowenthal), which revised the RHNA process to give cities and counties greater say in allocations. The revision also spread the affordable housing burden more evenly, promoted infill development and tightened the relationship between housing and jobs. The penalties for not having a certified housing element used to be minimal. However state lawmakers in recent years have tied eligibility for certain pots of money to housing element certification. Last year's SB 375 further modified the housing element law by establishing new planning horizons, requiring more up front zoning for housing up front and giving advocates greater authority to sue over housing plans. For the planning period from 2006 through June 30, 2014, SCAG utilized an allocation methodology that considered availability of land suitable for urban development, underutilized parcels and opportunities for infill and increased densities. The methodology also aimed to allocate very low- and low-income units more equitably across the region. In early 2007, SCAG used this methodology to allocate Irvine 35,300 housing units, about 60% of which were to be in the very low-, low- and moderate-income categories. Among the factors in the allocation were Irvine's huge job base � the city was home to about 190,000 jobs in 2007, or nearly three jobs for every one housing unit � the city's annexation of 3,000 acres and its jurisdiction over 4,000 acres of the decommissioned El Toro Marine Corps base. Irvine protested, saying most the annexed land was protected by a habitat plan, and the majority of the El Toro site was designated for the Orange County Great Park or environmental mitigation by the Navy. In its plea to SCAG's RHNA appeals board, Irvine agreed to accept an allocation of 8,800 units. The appeal failed, and Irvine was subsequently given an additional 300 units. Irvine then sued SCAG, arguing the association was violating the state RHNA law (see CP&DR , September 2007 ). No court, however, has ever considered Irvine's argument. Orange County Superior Court Judge William Monroe dismissed the lawsuit, finding he had no jurisdiction under state law to hear the case. On appeal, Irvine argued that Monroe's interpretation of the RHNA law was absurd because it would mean SCAG serves as the "final judge, jury and appellate tribunal" for any alleged violation of the law. Denied judicial review, cities have no remedy available, Irvine agued. However, a unanimous three-judge panel of the Fourth District agreed with Monroe that the RHNA process is "immune from judicial intervention." The court disagreed, finding that no single entity has complete control of the RHNA scheme. The opinion by Justice William Rylaarsdam outlined all of the consultation and cooperative aspects required to be part of the process, as well as HCD's oversight role. The court also pointed to 2004 legislative amendments that repealed judicial review of COG housing allocations. "Given the RHNA statutes' nature, their allowance for public input, and their lengthy and existing administrative procedure, it is clear the Legislature intended to eliminate resort to traditional judicial remedies to challenge a local government's regional housing needs allocation so as to avoid the disruption of local planning that would result from interference through the litigation process," Rylaarsdam wrote. Two other portions of the opinion appear noteworthy. In one, the court hinted that Irvine could plan for fewer units than called for in the RHNA allocation. The court cited Government Code � 65883, subdivision (b)(2), which says that if identified housing needs exceed a jurisdiction's resources, a housing element's "quantified objectives need not be identical to the total housing needs." The court also cited a 2005 attorney general's opinion that interpreted the same law to mean a community may establish a maximum number of housing units below its RHNA allocation if it has insufficient resources to meet the RHNA needs (88 Ops.Cal.Atty.Gen. 84; see CP&DR Legal Digest, June 2005). Kohn, the city's attorney, said the court appeared to be offering solace to Irvine. But he pointed out that housing element certification is up to HCD, not the city. In another part of the opinion, the court stated, "The RHNA allocation process must be completed in advance of the revision of a municipality's general plan housing element." It is this procedural aspect the court desires to shield� because if it were disturbed, a reallocation of RHNA numbers could be required. " llowing this judicial action to proceed would require the joining of all affected local jurisdictions in the lawsuit, thereby precluding each affected municipality's completion of its housing element revision," Rylaarsdam wrote. In practice, however, HCD permits cities and counties to submit housing element updates before RHNA allocations are complete, as long as the city or county is willing to amend the element after the allocation is final. "Perhaps this will be the next RHNA issue to be resolved by litigation," Abbott & Kindermann attorney Katherine Hart wrote in an analysis of the decision. Kohn said the court could fashion a remedy to Irvine's situation that does not implicate other jurisdictions' planning. The Case: City of Irvine v. Southern California Association of Governments , No. G040513, 2009 DJDAR 9783. Filed June 30, 2009. The Lawyers: For Irvine: Philip Kohn, Rutan & Tucker, (714) 641-3415. For SCAG: Joanna Africa, Southern California Association of Governments, (213) 236-1928.