A San Diego merchant who has become one of the state's leading fighters against eminent domain has not only lost his appeal of a trial court decision upholding the taking of his shop, but he has also lost a $9 million award of compensation and attorneys' fees. The Fourth District Court of Appeal ruled that Ahmad Mesdaq could no longer challenge the taking itself because he had withdrawn money that the San Diego Redevelopment Agency deposited into an account to compensate him. The unanimous three-judge appellate panel also determined that San Diego County Superior Court Judge John Meyer made numerous mistakes during the valuation phases of the litigation. The Fourth District sent the case back to the lower court for a new trial on how much the redevelopment agency owes Mesdaq. In mid-October, Mesdaq asked the state Supreme Court to review the case. In the meantime, a settlement that Mesdaq reached earlier this year with the developer who has since acquired the site of his former cigar shop appears to be in doubt. The story is one that, not surprisingly, has served as the basis for a documentary film. In 1983, Mesdaq received political asylum in the United States after the Soviets destroyed his home in Afghanistan. He attended college in San Diego and later owned several restaurants in the city's rebounding Gaslamp Quarter. In 2001, he acquired a building at Fifth Avenue and J Street for $1.3 million, and then went about overhauling the structure. In 2003, he opened Gran Havana, a cigar lounge and coffee shop that soon counted Gov. Arnold Schwarzenegger as one of its customers. But the city's downtown redevelopment arm (Centre City Development Corp.) and developer GRH, LLC, had other ideas for the prime location close to the San Diego Padres new baseball stadium and the convention center. GRH acquired 35,000 square feet of land but still needed Mesdaq's 5,000-square-foot parcel to make room for a proposed 12-story, high-end hotel. GRH made offers to Mesdaq, but he declined them. So, in April 2004, the San Diego Redevelopment Agency filed a complaint in eminent domain to acquire Mesdaq's property. The agency sought a "quick take," so it also deposited $3.1 million as probable compensation and asked for immediate possession. Mesdaq held on for a while but ultimately closed Gran Havana in 2005, and the redevelopment agency took possession of the property. Three separate trials were conducted: a bench trial to determine whether the taking was for a public use, a second bench trial regarding Mesdaq's request for pre-condemnation damages, and a jury trial to determine just compensation. Judge Meyer ruled that the taking was legitimate, but that a cleanup order the redevelopment agency had issued was unreasonable and the jury could consider granting damages for it. Later, a jury awarded Mesdaq $7.8 million — $4.2 million as fair market value for the property, $3.4 million for lost goodwill, $96,000 for lost furniture and equipment, and $78,000 for pre-condemnation damages. Meyer also awarded Mesdaq $1.2 million in attorneys' fees and costs. Both sides appealed. Mesdaq challenged the trial court ruling that the agency had the legal authority to take his property, while the agency challenged the awards. The Fourth District did not reach the merits of Mesdaq's appeal. The court noted that in August 2005, seven months after the court ruled the redevelopment agency could take the property, Mesdaq's lender, First National Bank, filed an application to withdraw nearly $1.2 million from the $3.1 million the agency had put on deposit. Mesdaq did not object and First National removed the funds to pay off the merchant's outstanding mortgage plus interest. The withdrawal of funds ended Mesdaq's ability to challenge the taking under Code of Civil Procedure § 1255.260, according to the Fourth District. The court cited the state Supreme Court's recent decision in Mt. San Jacinto Community College Dist. v. Superior Court , (2007) 40 Cal.4th 648, 666: "‘An owner cannot have it both ways. It is reasonable to require the owner to choose one or the other: either to deny the condemner's right to take the property and litigate, or to take the deposit.'" Mesdaq argued that he could continue to challenge the taking because he did not receive the funds, the bank did. But the court found no legal distinction. "The money withdrawn was used to satisfy Mesdaq's indebtedness ," Justice Joan Irion wrote for the court. "Further, the payment of Mesdaq's indebtedness with the deposit funds was accomplished with Mesdaq's explicit consent." On the redevelopment agency's appeal, the Fourth District reversed the lower court on the setting of the date of valuation, the determination of lost goodwill, legal fees and pre-condemnation damages. Again, the court leaned heavily on Mt. San Jacinto , which upheld the constitutionality of the state's "quick-take" procedure (see CP&DR Legal Digest , Aril 2007). In a standard eminent domain proceeding, the property may be valued either at the time the proceeding commences or at the start of the trial. But in a quick-take, "the land is to be valued as of the date of the deposit of estimated value which permits an order for early possession," Irion explained, citing Code of Civil Procedure § 1263.110. Judge Meyer implicitly found the $3.1 million deposit was adequate, but immediately prior to trial determined that the date of the trial would be the date of valuation. He reasoned that just compensation required the jury to consider the Gaslamp Quarter's rising property values. That was an error, the Fourth District ruled. Irion again cited Mt. San Jacinto : "‘In a quick-take proceeding, the constitutional requirement that an owner receive "just compensation" does not support a court's decision to disregard the statutory mandate because, under the constitution itself, "just compensation" is made available to the owner at the time of the deposit.'" Because Meyer insisted on the wrong date of valuation, the jury's award of $4.2 million must be set aside, the court ruled. To determine compensation for lost goodwill, Meyer permitted the jury to consider testimony from Mesdaq's expert regarding potential revenues from a restaurant on the site. However, Mesdaq did not have a restaurant or a liquor license. " he goodwill statute does not contemplate compensation for hypothetical or potential as opposed to actual goodwill lost," the court ruled in throwing out the jury's award of $3.4 million. Because the decision on attorneys' fees was based on awards that the court overturned, the trial judge ruling's on fees also was set aside. As to pre-condemnation damages, Meyer had ruled the agency's issuance of a "Polanco notice," two months before it filed the eminent domain action was unreasonable and Mesdaq was eligible for damages. A Polanco notice informs a property owner in a redevelopment project area that the agency suspects the property is emitting hazardous substances, and the notice gives the owner 60 days to respond with a remedial action plan. The trial court determined the agency issued this notice as a negotiating tactic to lower the value of the property and, therefore, Mesdaq was eligible for pre-condemnation damages. But the Fourth District said that a property owner is eligible for pre-condemnation damages only if the government's unreasonable action actually reduces the property value. "Here," Irion wrote, "there is no evidence that the agency's unsuccessful use of the notice as a negotiation tool diminished the fair market value of Mesdaq's property." What happens next with Mesdaq — and the site — is unclear. Although the redevelopment agency cleared the site two years ago and sold it to GRH, it remains a parking lot. The developer's original deadline to commence construction on the planned 334-room hotel was the first of this year. GRH reportedly offered, and Mesdaq accepted, $7.8 million to end all litigation earlier this year. However, the redevelopment agency has not approved the settlement, which may be further threatened by Mesdaq's appeal to the state Supreme Court. Mesdaq has continued to fight against the use of eminent domain for economic development purposes. He has appeared at numerous legislative hearings and is likely to be a player in the 2008 campaigns regarding eminent domain reform. The Case: Redevelopment Agency of the City of San Diego v. Mesdaq , No. D047927, 07 C.D.O.S. 10582. Filed August 31, 2007. The Lawyers: For San Diego: Bruce Beach, Best, Best & Krieger, (619) 525-1300. For Mesdaq: Vincent Bartolotta Jr., Thorsnes, Bartolotta & McGuire, (619) 236-9363.

The Ninth U.S. Circuit Court of Appeals has dismissed a mobile home park owner's attempt to invalidate San Luis Obispo County's mobile home rent control ordinance. The court ruled that Manufactured Home Communities' facial challenge of the ordinance was filed too late, the company's arguments over how the county applied the ordinance were not ready for judicial review, and the company's due process and equal protection claims were without merit. The court also declined to review the county's administrative process for considering the property owners' rent increase, because a state court has upheld the process. Manufactured Home Communities (MHC) has fought mobile home rent control ordinances in a number of cities. Now known as Equity Lifestyle Properties, the Chicago-based company owns more than 300 mobile home parks and recreational vehicle resorts in 30 states. It acquired Sea Oaks Manufactured Home Community in Los Osos in 1997 — 13 years after county voters approved a mobile home rent control initiative. The initiative capped annual rent increases at 60% of CPI and established the county Mobilehome Rent Review Board. In March 2002, MHC notified tenants in 9 of the 126 spaces that their rents would increase by an average of 185%. MHC said that the tenants had signed a standard-form 12-month rental agreement, and any lease or contract other than month-to-month was exempt from the rent control ordinance. The rent review board conducted three hearings and ultimately concluded that the agreements were month-to-month contracts no different than previous contracts that prior and current park managers had considered subject to the ordinance. On appeal, the Board of Supervisors upheld the rent review board's decision. In January 2003, MHC sued the county in federal court, arguing that its property had been taken without compensation and that the county had violated its constitutional rights to due process and equal protection. In a two-sentence order, District Court Judge Terry Hatter dismissed all of MHC's claims. MHC filed a similar suit in state court, and a San Luis Obispo County Superior Court judge also ruled against the company. An appeal of that decision is pending. The Ninth Circuit opinion written by Judge Diarmuid O'Scannlain methodically makes its way through MHC's claims. The property owner's takings claims took two forms: a facial challenge of the ordinance itself, and an "as applied" challenge. The court declined to consider the facial challenge because it was filed after the statute of limitations ended. MHC, which acquired Sea Oaks 13 years after the rent control ordinance was approved, argued Palazzolo v. Rhode Island , 533 U.S. 606 (see CP&DR Legal Digest , August 2001), eliminated the statute of limitations for facial challenges. The unanimous three-judge Ninth Circuit panel disagreed. "We read Palazzolo to require equitable tolling to protect subsequent landowners who do not receive notice of a regulatory taking or who lack standing to object to such taking prior to expiration of the limitations period," O'Scannlain wrote. "For such subsequent landowners, the limitations period must begin at the time of their acquisition of property, not at the time the original taking occurred. Thus, under Palazzolo , MHC had one year to file its facial takings claim after it acquired the property in 1997. Because MHC filed its claim in 2003, it exceeded the statute of limitations by five years." On the as-applied challenge, the court determined MHC's claim was not ripe for judicial review. To pursue such a claim, a landowner must attempt to obtain compensation through the state's procedure. In California, a landlord may seek a " Kavanau adjustment," under which future rents increase to compensate for previous confiscatory rents (see CP&DR Legal Digest , February 2004). MHC never sought a Kavanau adjustment. "Unless a complainant has sought relief through a Kavanau adjustment, he cannot file a federal complaint objecting to an uncompensated taking by the state," O'Scannlain wrote. The court dismissed MHC's arguments about why the Kavanau process would be futile and could not provide adequate compensation. MHC argued that its due process rights were violated because the county's application of the rent control ordinance violated substantive due process. MHC contended the ordinance transferred the value of MHC's property to a select group of tenants, and this transfer of value is not a legitimate state purpose. This argument was a nonstarter with the Ninth Circuit. "The Supreme Court and this court have upheld rent control laws as rationally related to a legitimate public purpose ," O'Scannlain wrote. MHC also got nowhere with its argument that the rent control ordinance unlawfully discriminated against mobile home park owners, thereby violating their right to equal protection. The court ruled the county could legitimately single out mobile home park owners because of the shortage of spaces and the impracticality of moving a mobile home. As for the county's administrative process, the court declined to consider the matter because the Superior Court had already issued a decision. The Case: Equity Lifestyle Properties, Inc. v. County of San Luis Obispo , No. 05-55406, 07 C.D.O.S. 11119. Filed September 17, 2007. The Lawyers; For Equity Lifestyle Properties (MHC): David J. Bradford, Jenner & Block, (312) 923-2975. For the county: Henry Heater, Endeman, Lincoln, Turek & Heater, (619) 544-0123.

In the face of never-ending demand for housing and concerns about eroding the job base, some cities are imposing regulations to protect their industrial lands. The three largest cities in the Bay Area have all taken steps to prevent their industrial lands from getting consumed by uses that do not generate jobs. But the issue of industrial land preservation is not confined to the Bay Area. "It seems to be a big topic all around the state," observed Jack Kyser, chief economist for the Los Angeles County Economic Development Corporation (LAEDC). Public officials in Los Angeles, Orange and San Diego counties have all wrestled with the issue, although none has achieved great success, Kyser said. Los Angeles city planners, for example, put forth some policy recommendations "but they ran into a buzz saw of opposition from residential developers." The cooling of the housing market, however, appears to have given planners and elected officials a chance to discuss the issue of conversion in a less charged atmosphere. "When the housing boom was going on there was a great deal of pressure to use that industrial land for housing," said Oakland City Councilwoman Nancy Nadel. But the market downturn "has taken a little bit of whip out of the chariot." What makes the subject challenging in many cities and counties is the fact that not all industrial land is equal, and neither are all conversions. A further complication is that many people incorrectly assume industrial property is unnecessary in today's economy, said Kyser. For the most part, smokestack industry is gone. But that does not mean there is no need for industrial property. Kyser said Southern California's industrial properties are filled by technology manufacturing and research companies, light industrial companies that perform very specialized manufacturing, logistics companies, printing and communications businesses, and various parts of the television, movie and entertainment industries. Those are the sort of businesses that Oakland would like to see. Much of Oakland's industrial land lies on the west side, near the waterfront. During the recent housing boom, developers took a run at relatively inexpensive industrial land in West Oakland. Among the proposals (which appears to have stalled) was a project with three 30-story towers featuring industrial uses on the bottom floors, with residential condominiums above. Although some people have been happy to see fresh investment in a rough part of town, others worried about loss of jobs and gentrification. "The whole concept of smart growth is to have a jobs-housing balance, not to have all housing," said Nadel, who represents West Oakland. Several years ago, the city adopted the West Oakland plan as part of a new general plan, which for the first time specifically segregated heavy industry from residential uses, Nadel explained. But implementation of the West Oakland plan was not a priority then-Mayor Jerry Brown, who actively promoted industrial land conversions. Under Mayor Ron Dellums, the city is proceeding with adopting zoning consistent with the West Oakland plan, said Nadel, who is trying to push along the process. "The idea of housing above industry is just as ludicrous as having condos next to industry," she said. San Jose is the most recent big city to take action. In late October, the City Council unanimously approved a "framework for preservation of employment lands." San Jose officials have long complained that the city provides the housing for Silicon Valley without getting its fair share of the tech sector's economic benefits. Still, the city has routinely approved the use of employment lands for housing development. From 1990 through 2000, the city approved conversion of about 68 acres a year, and from 2001 through 2006, the city backed conversion of about 120 acres annually, according to the planning department. The City Council in 2004 approved a framework for evaluating proposed conversions. Since then, the council has approved every major conversion proposal except one. At the behest of Mayor Chuck Reed, who took office in January, planners drafted a new framework. It "focuses on strategies for preserving employment lands instead of identifying criteria or sub-areas where conversion can be facilitated," according to a staff report for the October 23 City Council meeting. "Production is increasing again as part of the new industrial economy focuses on clean technology, and the city needs to maintain an adequate inventory of light and heavy industrial lands to accommodate these demands." In general, economic development proponents back the new framework, while housing advocates are leery. "We're all trying to figure out what the implications of it are," said Shiloh Ballard, director of housing and community development for the Silicon Valley Leadership Group, a business organization and frequent housing proponent. If the framework ends up blocking housing development near transit stations, for example, it could be a problem, she said. "Mainly, we look at it through the lens of compatibility," Ballard said "If you're going to put a use next to an existing business that could threaten the existing business, you need to take a careful look at that. It doesn't mean our organization is against conversion. But we want to make sure those new residents don't become NIMBYs that complain about the existing business." This was exactly the issue in nearby Milpitas, where the City Council in October approved Fairfield Residential's plan for 659 apartments and townhouses on 20 acres of vacant industrial land within the Milpitas Technology Center. Business representatives and the city planning staff decried the land use conflicts and lost economic development potential. But the council majority backed the project as smart growth, saying it would put housing within walking distance of jobs, retail shops and transit. Greenbelt Alliance endorsed the project as responsible infill. In San Francisco, the city essentially halted residential development on 2,200 acres in a mostly industrial area south of Market Street where conversions were going strong. City planners recently released an Eastern Neighborhoods plan that proposes prohibiting new housing in areas designated for production, distribution and repair, and charging residential developers up to $4 for each square foot of industrial space converted to residential use. None of these issues are new to the City of Berkeley, which has struggled with them for two decades, said Daniel Marks, the city's community development director. A number of years ago, the city adopted a plan for industrial-oriented West Berkeley to preserve industrial properties and jobs. The plan does this with "pretty Draconian" zoning that makes shifting uses away from industry very difficult, Marks said. The pressure in West Berkeley is not necessarily from housing, but from commercial uses. "Still, the marketplace will have its way. There is a lot of vacancy down there now," said Marks, who noted that Peerless Lighting and Flint Ink have left town in recent years. Several "green" businesses have moved into the area, as have a large number of arts and crafts uses. All of that is popular in Berkeley, Marks noted. Now the city is revising the West Berkeley plan both to provide for a bit more flexibility, and to address the fact that zoning has constrained land values in the area. For example, the city might permit a new use if a landowner were to dedicate some permanent space for artists. "How do you capture some of that windfall from a change in zoning for public purposes?" Marks asked rhetorically. "That's what transfers of development rights and planned developments are all about." The long-term trend is difficult to predict. While numerous infill developers continue to pursue entitlements, the LAEDC's Kyser questions the overall demand, especially in Southern California cities that got swept up in condo-mania. "What we have seen is a lot of residential developers rushing in to convert these industrial places to lofts or condos," Kyser said. "But I think these people got caught in the sucker trap. When it came to the actual market, they had problems. The next couple of years are going to be just as interesting for these folks as it is for everyone in the housing industry." Contacts: Oakland Councilwoman Nancy Nadel, (510) 238-7003. Jack Kyser, Los Angeles County Economic Development Corporation, (213) 236-4820. Daniel Marks, City of Berkeley, (510) 981-7400. Shiloh Ballard, Silicon Valley Leadership Group, (408) 501-7859. City of San Jose "Framework": http://www.sanjoseca.gov/clerk/Agenda/102307/102307_04.05.pdf

Spurred by a land use plan intended to remove Pacific Lumber Company from bankruptcy, the Humboldt County Board of Supervisors is moving toward adopting policies that would limit residential development on land zoned for timber production. In early October, the Board of Supervisors adopted a 45-day moratorium on residential construction on lands designated timber production zone (TPZ). Two weeks later, the board directed the county Planning Commission to consider drafting an ordinance that would require a conditional use permit for a house on TPZ land. The board also directed the Planning Commission to consider, during the general plan update process, establishing separate TPZ categories for industrial and non-industrial timberlands. The board's actions have sparked a political firestorm in a county where land use compromises are elusive. Owners of TPZ land say the county is taking away a property right they have enjoyed for years and harming the very timber industry the county says it wants to protect. Environmentalists and slow-growth advocates, however, say the county is taking proper steps to ensure the heavily forested hillsides do not get carved up into large-lot housing developments. At the center of the controversy is Pacific Lumber Company (Palco). In 1986, Texas junk bond financier Charles Hurwitz's holding company, Maxxam Inc., acquired Palco, a pillar of the Humboldt County business community known for its responsible forestry practices. Under Maxxam, Palco rapidly increased timber harvesting and, in 1998, essentially forced the State of California to buy the 7,500-acre Headwaters Forest of old growth redwoods for $480 million. The Headwaters deal also placed much of Palco's 220,000 acres into a habitat conservation plan. The company has chafed at the HCP restrictions ever since and early this year declared bankruptcy, blaming the environmental regulations. In early October, Palco presented to a federal bankruptcy court in Corpus Christi, Texas, a plan for getting out of debt: It would sell 21,800 acres of TPZ lands east of Fortuna as 160-acre "kingdoms" for a high-end residential development called Redwood Ranch. Pacific Lumber said it could get $5 million apiece for the parcels. Palco's plan also calls for selling 6,600 acres of old growth forest to conservation groups or public entities for $400 million. The company's creditors have questioned the plan, especially the property values put forth by Palco. On October 23, U.S. Bankruptcy Court Judge Richard Schmidt ordered the company and its creditors to submit to mediation and return within 30 days. Only days after the Palco bankruptcy plan became public, the Board of Supervisors voted 4-1 for an urgency ordinance imposing the 45-day moratorium, which could be extended for a total of two years. Supervisors, who have been in conflicts with Palco almost continuously since the Maxxam takeover, said they had to take action to preserve the status quo and let the bankruptcy court know how dicey the Redwood Ranch plan is. The move infuriated Palco. "There is no urgency or emergency, for no project, plan or proposal to erect or construct any building or to process any building permit for TPZ zoned lands exists by or on behalf of Palco, and no such plan or project will be undertaken for many years after Palco's emergence from Chapter 11 reorganization, currently projected for 2008," wrote Frank Bacik, the company's vice president and general counsel. Because the county has permitted construction of one house on a TPZ parcel by right, other owners of TPZ land joined the opposition. "It's taking a very basic property right, which is the right to build a house on your property," said Steve Horner, general manager of Barnum Timber, which owns about 36,000 mostly TPZ acres. The market for Douglas Fir is poor, Horner explained. So, like other timber companies, Barnum sells off parcels for development to cover costs until timber harvesting is profitable again. But if the county prevents the construction of a house on those parcels, Horner said, "We're beginning to wonder whether anybody would pay anything to own these parcels." Horner and other landowners argue that the county is using the Pacific Lumber bankruptcy plan to shut down development. "They are using that bogeyman to restrict all the development on these rural lands," said Horner, who would like to negotiate a compromise. "We all have the same goal. No one says they want to cut down the forest and pave over the hillsides." Humboldt County Supervisor Jill Geist said housing construction on timberlands has been a matter of concern since the county started updating its general plan seven years ago. "All the action did was place a spotlight in this chasm we already knew existed," Geist said. Sharon Duggan, co-author of Guide to Forest Practice Act and Related Laws and an attorney who has battled Palco, defended the Board of Supervisors. "If they are allowed to do a conversion of 21,000 acres, it will open the floodgates," said Duggan, who represents a creditors committee in the bankruptcy proceeding. "We have the conversion train moving north from Sonoma County to Mendocino County to Humboldt County. This is a way for them to try to make some money." The TPZ works for timberlands the way the Williamson Act does for farmland. In exchange for managing the timber resource, property owners in the TPZ receive property tax breaks. And, because they pay a yield tax only when they actually harvest trees, landowners who never log their land can keep taxes artificially low apparently forever. This tax policy is extremely beneficial to people who want to build a house in the woods, but it does not necessarily preserve the resource, said Bill Sise, a professor of forest management at Humboldt State University. Sise is skeptical of Palco's bankruptcy plan and of landowners protesting the emerging county policy. "There are a bunch of realtors who think they are going to make a whole lot of money by selling houses on 160-acre ‘kingdoms,'" Sise said. "Nobody is stupid enough to pay $5 million for 160 acres of second-growth timber with a road going through it that's going to carry logging trucks forever." Instead of adopting new land use regulations, Sise recommends the county change its tax policy. If Pacific Lumber says its land is worth $60,000 an acre, and if second growth timber is worth about half that amount, then the county should levy an ad valorem tax on the difference. That approach would change the business plans of many companies, Sise said. Geist conceded the current tax policy is a "failure." That is why she has recommended breaking the TPZ parcels into industrial and non-industrial categories. The latter would most likely contain smaller parcels with a house, and would not receive the same tax benefits as a lot that contains only production timber. Humboldt County Community Development Director Kirk Girard noted that under state TPZ law, timber is supposed to be the primary use, while a residential use must remain secondary. If residential becomes the primary use, there could be tax implications, he said. "I think we're begging this question for other counties," Girard said. For now, the county appears headed toward new land use regulation. In the meantime, it could learn the fate of Palco's Redwood Ranch plan in bankruptcy court by the end of November. Contacts: Humboldt County Supervisor Jill Geist, (707) 476-2395. Steve Horner, general manager Barnum Timber, (707) 442-1761. Sharon Duggan, attorney for Pacific Lumber creditors, (510) 271-0825. Bill Sise, Humboldt State University Department of Forestry and Watershed Management, (707) 826-3925. Bankruptcy case: In re: Scotia Development LLC , No. 07-20027.

In Manteca — which has been in the news recently because of a huge number of foreclosures and an auction by one major homebuilder — developers will now have two additional years to complete their projects. The Manteca City Council voted 3-2 to give builders five years to complete their projects and pay negotiated development agreement fees. According to one homebuilding industry representative, foreclosures and slow sales have resulted in more than 1,000 empty houses in the city of 65,000 people. Builders said the time extension on permits and fee deadlines will ensure that builders do not add to the inventory glut. Another climate change suit has been filed by the Center for Biological Diversity (CBD). The environmental organization sued the City of Perris in Riverside County Superior Court, arguing that an environmental impact report for a 520,000-square-foot commercial project anchored by a Wal-Mart supercenter did not address the project's impact on global warming. Although Attorney General Jerry Brown has settled two California Environmental Quality Act lawsuits over global warming impacts, the CBD has vowed to press forward in the courtroom. The group is also suing over the San Bernardino County general plan and a housing development in Banning. Lassen County has approved what would be by-far the largest development in the county's history. The Dyer Mountain project is envisioned to contain up to 4,000 housing units, a ski resort, 600,000 square-feet of commercial space and three golf courses on 7,000 acres in the far northern Sierra Nevada Mountains, near the small town of Westwood. County voters cleared the way for the project in 2000 when they approved a general plan amendment and rezoning of the land. The Sierra Club and other environmental organizations have sued to halt the project. The California Partnership for the San Joaquin Valley has released the first of what it says will be regular annual reports on the state of the valley. The report makes clear that the valley faces a number of economic, education, transportation and public health challenges, but it steers clear of both dire predictions and bold policy pronouncements. Instead, the report discusses the activities of the partnership — which was created by the governor in 2005 (see CP&DR , February 2006) — and the ongoing activities of 10 working groups. Released during a partnership summit in Visalia, the report can be found at http://www.sjvpartnership.org/

Growth management has been a nearly untouchable topic in the state capital since the 1980s. Only a handful of lawmakers and administration officials have been willing to discuss growth management, and then only indirectly. But in late October, the Assembly Select Committee on Growth Management convened the first of what could be many hearings during the coming months and in various locations regarding California's growth challenges. Managing California's growth "is the most important issue we face," said Assemblyman Mark DeSaulnier (D-Concord), the committee's chairman. The former Contra Costa County supervisor said that the discussion within the Capitol building about growth needs to change, and he contended the state government is not set up in a way to deal with growth comprehensively. The discussion during the inaugural three-hour hearing would have sounded familiar to most planners. Elizabeth Deakin, executive director of the University of California Transportation Center, told the committee that the state's population could grow to 90 million by 2100. If that were to occur under present land use policies, she explained, the Bay Area and Sacramento regions would merge, and there would be unbroken stretches of urban development from that region down the Central Valley and the coast to the Mexico border. Deakin said there should be more choices for where people live and how they travel, and greater emphasis on farmland preservation. Rusty Selix, executive director of the California Association of Councils of Government, and Trish Kelly from the California Center for Regional Partnerships talked about regional blueprints that a number of COGs have adopted and how those blueprint processes have addressed statewide growth issues. These presentations drew a counter from Assemblyman Roger Niello (R-Fair Oaks), a member of the committee. He said farmland preservation is overrated because technology and economic efficiency permit farmers to grow more on less land. And Niello defended greenfield development as a good way to create new job centers close to housing. He said policymakers should not "mindlessly pursue that we've got to develop the urban core." Lobbyists from the California Building Industry Association, the League of California Cities and the Sierra Club then proceeded to agree on almost nothing during the hearing's final hour.

The State of California needs a better system for determining how much it pays for resource conservation lands, the Legislative Analyst's Office concluded in a lengthy report issued in October. Although the Legislative Analyst's Office (LAO) does not say directly that the state has overpaid when it bought forests, wetlands, beaches, habitat and open space, the implication is easy to draw. "Over the years, the state has spent billions of dollars in public funds to acquire land for resource conservation and currently substantial amounts of new bond funds are available for the same purpose," the LAO report says. "However, the state lacks a process to facilitate good quality appraisals to support the purchase price of these acquisitions." "Without a sound process in place to guide the appraisal function for these acquisitions, the state may be paying too much for the resources properties that it is acquiring," the LAO concluded. The report was undertaken as part of the LAO's day-to-day oversight function, and was not prepared at the request of any particular lawmaker or because of any particular acquisition, said Mark Newton, director of the office's resources and environmental protection program. Nor was the report intended to slam the state for past transactions. "The bottom line look is at getting a process in place," Newton explained. "We didn't go back and look at various individual transactions and conclude the state paid too much." Instead, Newton said, "We had some very major acquisitions that we were looking at, and very limited information." Indeed, thanks largely to voter-approved bonds, the state has made numerous large acquisitions during the last 10 years: • $480 million for the 7,500-acre Headwaters Forest, a stand of old-growth redwood trees in Humboldt County in 1998. • $140 million for the Ballona wetlands at the Playa Vista development site in Los Angeles in 2003. • $135 million for Ahmanson Ranch in eastern Ventura County, where a 3,000-unit housing project had been approved, in 2003. • $92 million in cash and about $140 million in tax credits for 1,500 acres, plus a conservation easement on 80,000 acres, at the Hearst Ranch on the San Luis Obispo County coast in 2004. • $65 million for the Bolsa Chica wetlands in Orange County in 2002. What the LAO report only hints at is the political atmosphere in which every one of those deals was negotiated and consummated. In every case, the political pressure was so intense to prevent development and conserve the land that the administration — Republican or Democratic — had few real options besides doing the deal. The LAO found that different agencies have different processes for appraising the value of resource land, and some agencies are more methodical than others. The Department of General Services and the State Public Works Board have the most comprehensive processes for getting, reviewing and approving appraisals. However, the Wildlife Conservation Board, the Department of Fish and Game, the Department of Water Resources and the State Reclamation Board are among the Resources Agencies that are exempt from that process. The LAO identified three primary concerns with the current appraisal process: There are no comprehensive standards; the appraisal and acquisition processes are too closely linked, impeding the appraisal's objectivity; there is a lack of public information, which inhibits accountability by the public and Legislature. Appraising resources properties is particularly tricky, the LAO noted, because there often are few "comparables" and determining development potential can be difficult. When the agency that has an interest in acquiring the resources land is in charge of the appraisal process, things get even trickier. The LAO report used the Cargill salt ponds acquisition in San Francisco Bay as a case study (see CP&DR Environment Watch , July 2002). In 2003, state and federal agencies concluded a deal in which the state agreed to pay $72 million and private groups another $28 million for the 16,500 acres. But because the purchase relied on an appraisal of $243 million, Cargill also claimed a $143 million charitable contribution as a federal tax deduction. Since then, both state and federal authorities have questioned the deal. It has come to light that the deal was based on a 28-month-old appraisal conducted by two private appraisers at the request of the U.S. Fish and Wildlife Service; that the appraisal contained enormous assumptions about the development potential of a very problematic site; and the appraisal made equally questionable assumptions about the mitigation value of the wetlands, and assumed things about Cargill's salt-making rights that were untrue. Nor did the appraisal disclose that it was based on a variety of hypothetical conditions. The LAO makes four basic recommendations: • The Legislature should require the development of a specific set of appraisal standards for resource conservation acquisitions. • Agencies should revise their existing administrative structures for getting and reviewing appraisals. • Agencies should make available to the public — before completing transactions — appraisal reviews, not appraisals themselves, regardless of the agency or transaction amount. • The state should ensure that tax benefits for landowners who sell for less than appraised value are not excessive. Sandy Cooney, a spokesman for the Resources Agency, defended the agency's practices but said officials would review the LAO report and its recommendations. Jim Evans, spokesman for state Sen. Darrell Steinberg (D-Sacramento), who chairs the Natural Resources and Water Committee, called the LAO report "completely fair." "We need to care about it because there are millions of dollars of acquisition funds available from the bonds that were passed last year," he said. Evans said he was unsure if legislation would be necessary to follow up on the LAO's recommendations, because lawmakers might be able to exercise additional oversight through the budget process. Contacts: Mark Newton, Legislative Analyst's Office, (916) 319-8323. Jim Evans, Office of Sen. Darrell Steinberg, (916) 651-4006. LAO report, "Improving the Appraisal Function in Resources Land Acquisitions," http://www.lao.ca.gov/2007/res_appraisals/res_appraisals_101807.aspx

PLANNING ASSOCIATE/PLANNING ASSISTANT : City of West Covina, CA - (Salary: $4,063 – $5,293/monthly salary). Bachelor's degree in urban planning, architecture, landscape architecture, public administration, or related fields. Planning Associate requires two (2) years of responsible professional experience in the field of urban planning, preferably with a state, county, or municipal agency. A graduate degree in urban planning or public administration desirable. Planning Assistant requires one (1) year of responsible experience in the field of urban planning, preferably with a state, county, or municipal agency. A graduate degree in urban planning or public administration desirable. Submission of a City application and resume are required. APPLY BY: November 19, 2007. APPLY AT: City of West Covina's Human Resources Department, 1444 W. Garvey Ave., West Covina, CA 91790 (626) 939-8450 or visit our website at www.westcovina.org

Jessica Daniels Joins Solimar Jessica Daniels has joined Solimar Research Group ( www.solimar.org ) as a Research Associate and Project Manager. Ms. Daniels recently received her Masters of Regional Planning from Cornell University. She originally joined Solimar as the 2007 Solimar Fellow, working on a wide variety of projects involving demographics, housing, land conservation, and smart growth policy. A native of the Atlanta area, she holds a B.A. in Economics from the University of Montana and previously worked for the Livable Communities Coalition in Atlanta. Founded in 2000, Solimar is one of the nation's leading land-use research and policy consulting firms. Recent projects include: • Travel behavior analysis and infill development policy strategies for the South Bay Cities Council of Governments (Torrance/Redondo Beach, California) • Creation of GIS-based tools to identify infill development potential for the City of Los Angeles. • Transferable development rights policy analyses in Santa Barbara County, California; the City of South Lake Tahoe, California; and Gallatin County, Montana. • Economic development strategies for the cities of Fillmore, California, and Lawndale, California, under a contract from the Southern California Association of Governments • Creation of a new method of modeling the impacts of infrastructure projects for the Keston Institute for Infrastructure at the University of Southern California.

Southern California is in flames again – it's gotten to the point where I can't even remember which fire the soot on my car is coming from – and makes me wonder once again why we've given up on land use planning as a way to reduce fire risk in such a fire-prone region. As I write this, the current conflagration has cost more than 1,000 homes and forced the evacuation of more than a half-million people. Will Californians come out of this catastrophic event thinking that we need to use land use planning to avoid fire-prone areas? I doubt it, no matter how much devastation we see on television, because over the past few years we've moved in the opposite direction on fires. We're not trying to avoid hazardous areas. We're trying to fireproof ourselves instead. The turning point came during the devastating fires in 2003 , when some subdivisions – notably Stevenson Ranch near Santa Clarita – made it through the fires with little damage because of buffers and other mitigation measures. As our columnist Stephen Svete noted shortly afterward , most of the post-mortems focused on building codes, not planning. Blue-ribbon commissions emphasized the importance of building codes and San Diego finally got around to banning wood roofs. As for as planning, most everybody was fatalistic . "A moratorium," San Bernardino County Supervisor Patti Aguiar told the Riverside Press-Enterprise , "probably made sense a long time ago, if you didn't want anybody up there. But now, everybody's already up there. It's pretty darn late." If there's one, um, blazing bright spot in all this, it's Riverside County. Thanks partly to new state fire hazard maps, Riverside is taking fire risk seriously – and considering the possibility of creating a fire hazard zone similar to the 100-year floodplain that would not permit development. So not everybody has given up. And that's a good thing. Because surely if there's one thing that land use planning is well-suited for, it's mapping out hazards and helping to avoid them. California has, as they say, a "fire-driven ecology". To me, that means soot on my car is OK. But subdivisions in the forest don't make much sense. - Bill Fulton

Hollywood has finally made it official: Los Angeles is undeniably an urban place – one that's beginning to look and feel more and more like Manhattan. It's one thing when we urban planners say it and point to loft conversions in Downtown L.A. But when NBC-Universal confirms it, you know it's true. A couple of weeks ago, NBC-Universal announced that the NBC studios and West Coast news operation is going to move – from old suburb to new urb. The old location was a gated 34-acre soundstage farm at Alameda and Olive in Burbank, which opened in 1962 – the same year as Dodger Stadium, right at the height of the suburban era.   And the new location? Part of a large new mixed-use project on property adjacent to the University City Red Line station, where NBC will rig up a street-level studio for news shows similar to the one at 30 Rockefeller Center in Midtown Manhattan. That way, the bustling L.A. commuters headed for the Red Line can serve as urban eye candy in the background during various NBC news and talk shows. In making the announcement, NBC-Universal officials said the old complex of buildings was outmoded and "it was becoming increasingly difficult to keep building new technology on top of an old backbone." (Check out the L.A. Times story .) The new building will be technologically modern and "green" as well, they say. But in terms of citybuilding, the return to a more urban setting – or the creation of a new one – may be the more important point. Like most radio network facilities in L.A., NBC was originally located in Hollywood – in an iconic building right along the street at Sunset and Vine that opened in 1938. With the coming of television, however, NBC moved out of Hollywood's urban core and into a studio-like atmosphere adjacent to Warner Brothers in Burbank. (The Hollywood building was demolished in the 1960s and replaced with another iconic building – a Home Savings bank that's now a Washington Mutual branch.) That's why "Beautiful Downtown Burbank" was such a good joke. The phrase originated in the late'60s, as part of Gary Owens' announcer lead-in on "Rowan & Martin's Laugh-In," which was taped there. But it became world-famous when it was repeated by Johnny Carson after "The Tonight Show" moved from Manhattan to Burbank in 1972. Could there be a bigger contrast in all of urban America than Rockefeller Center and a bunch of soundstages located off the freeway in a second-tier town near a cemetery? In fact, it was the legacy – or the stigma – of Beautiful Downtown Burbank that led NBC to start programming live from New York again in the ‘70s and ‘80s, first with "Saturday Night Live" (an urban, hip version of Laugh-In) and "Late Night With David Letterman" (an urban, hip version of "The Tonight Show".) But it looks like L.A. will have the last -- urban, hip – laugh. The Lankershim property, which Universal sold to the Metropolitan Transportation Authority, is being developed by Thomas Properties. The current plan is for a 1.5-million-square-foot project that includes offices, the media production facility, retail shops, restaurants, and parking for both visitors to "Metro Universal," as it is called, and Red Line riders. In other words, Manhattan in Cahuenga Pass. What's next? An urban, hip version of Magic Mountain – with roller-coasters descending into the Red Line tunnel? By the way, the real Beautiful Downtown Burbank seems to be doing fine – as I discovered, somewhat to my consternation, on Friday night. To get from NBC to the real downtown, you drive a couple of miles up Olive (northwesterly) to San Fernando Road, right by the Verdugo offramp on I-5. Anchored by Burbank Town Center, the old downtown – like so many others in L.A. – has been transformed into a hopping center of restaurants, movies, and other entertainment. At 8 o'clock Friday night, I drove in, through, and out of no less than five different city parking lots and parking garages before I finally found a rooftop space. So Johnny Carson shouldn't be worried. - Bill Fulton

California is an urban state, but it also has about a million small cities. All right, maybe not a million. Actually, there are 377 incorporated cities in California with fewer than 75,000 people. We have already reviewed the best and worst downtowns in California's big and mid-sized cities. Now we cast our gaze to the downtowns of the state's small cities. Some of these cities have classic Main Street downtowns with mom-and-pop businesses and a lunch counter where all the good ol' boys and girls gather every day. Other cities have reinvented their downtowns with a new urbanist bent in recent years. Some cities have big plans, but not much else. We could use your help. We've already heard from readers promoting downtowns in San Luis Obispo, Walnut Creek, Davis and Burlingame. All worthy suggestions. But what are your favorites — and why? What isolated cities have a functioning, self-contained downtown? What mountain community has a downtown that works for residents and tourists? Who has done the best job of redeveloping a blighted core area or creating a new downtown where none previously existed. I guarantee that reader input has an impact, as it certainly influenced our recent rankings of mid-sized city downtowns. Feel free to post comments at the bottom of this blog, email us directly or simply pick up the phone. We're planning to release our list in November. - Paul Shigley