San Marcos is suffering from a syndrome. (We're talking metaphors here, gentlemen; no need to call the process server.) The name of the ailment that afflicts this attractive, upscale suburb north of San Diego could be called Nowhere in Particular Syndrome. The symptoms include the lack of a center, coupled with a sense that one could be nearly anywhere in America—anywhere, in fact, that suffers from the same anonymity. The treatment, still experimental, is to graft a city center onto this bedroom community, much as one would transplant some genetically healthy tissue onto a diseased organ. If the cure takes, the city will not only gain a center, but the healthy DNA of this transplant might spread beneficially to other parts of the organism. This "transplant" is the San Marcos Creek specific plan. In late July, the San Marcos City Council unanimously endorsed the plan, which calls for high-density commercial and residential development, together with new parks and open space, as well as some flood control measures. In addition to 90 acres of parks and open habitat space, the specific plan will allow 1.2 million square feet of retail space, nearly 600,000 square feet of office space and up to 2,300 housing units. The 217 acres of the specific plan area encompass the creek's 100-year floodplain, and the idea of locating a new downtown in such a place sounds odd. Yet the creek bed and its surrounding floodplain lie in the center of town, bounded by four major roads, including State Highway 78. The creek is also a dividing line between the older, commercial part of the city on the north, with its familiar configuration of shopping centers floating in a lake of asphalt, and the newer, spaghetti-street residential neighborhoods to the south. In other words, the stream that has served as a natural division between the older and newer parts of town can now function as the place that connects the two. The San Marcos Creek project would squeeze a new downtown between the commercial part of town (top) and residential neighborhoods (bottom). The design of the specific plan area logically locates the commercial and high-density residential uses along San Marcos Boulevard, the northern boundary of the project area. The shapeless parking lots suddenly transition into smaller, pedestrian-oriented blocks that measure roughly 400 feet by 310 feet north of Main Street, and 400 feet by 280 feet south of Main. Those dimensions are a little larger than the blocks in downtown San Francisco, but it is still a walkable scale. To make the blocks even more accessible to pedestrians, the blocks are "to be further broken down through the provision of private paseos and alleys," according to urban designer Michael Olin of WRT/Solomon of San Francisco, the firm responsible for the master plan. The parks and riparian habitat lie mostly south of the creek, bordering the existing residential neighborhoods, and the softer lines of the open space element of the specific plan are as carefully designed as the formal blocks to the north. During the public hearing process, the designers had shown a PowerPoint presentation of all the things that the San Marcos Creek specific plan was not supposed to be, including "a developer's wildest dream." That statement was not intended to say that the specific plan would be hostile or inimical to developers; the real meaning is that the plan would not be shaped entirely by commercial concerns, but instead by respect for the natural environment and the health of the waterway. The design decisions made by WRT/Solomon for the relationship between the open space and the areas to be developed demonstrate the designers' respect for both commercial viability and the life of the creek. To appreciate this design, take into consideration an idea that an architect recently shared with me. To create the most usable open spaces, whether they are courtyards or parks, the open spaces should be designed first. After the footprints of the open spaces are determined, then design buildings around the open space. This simple principle, so commonsensical, is actually the opposite way we design most of our parks and habitats, which are leftovers that developers don't want, such as hilly areas or wetlands. Taking a close look at the southern edge of the developed area in the San Marcos plan, we see that a newly designed street, Creekside Drive, mimics the meander of the waterway, maintaining a near-uniform depth of open space on either side of the creek, whichever way the waterway happens to turn. Notice, also, how the blocks of development yield to the path of the water and the surrounding riparian environment, as if the creek had eroded the streets. This primacy given to open space, and the way that commercial development yields to the requirements of a healthy creek, demonstrates the good faith of the specific plan, and proves that it is not guided by the rapacity of developers. My hope is that the rhythm of walkable blocks will someday spread north into the formless retail district and spread the DNA of walkable streets farther into San Marcos. Flood control takes the form of new levies on both the north and south of the creek, particularly near a mobile home park, which currently is vulnerable in the event of a flood. A new culvert beneath Highway 78 would drain the area if the creek rises. High densities and a mix of uses would provide the San Diego suburb with a real downtown. According to local news reports, the only San Marcos residents who spoke out against this plan are people who are concerned about high-density development, which is fair. They were also concerned that the new downtown San Marcos might become a regional attraction, which seems less of a real issue, because there are plenty of other places for the residents of San Diego County to shop. Downtown San Marcos will probably remain mostly a local attraction. As one of millions of Californians who live near lifeless, channelized waterways that could have been wonderful places, given a different history, I eat my metaphorical heart in envy for the good fortune of San Marcos. But envy is a different disease altogether.

With the politicking already under way, another confusing campaign over eminent domain restrictions is likely to confront voters next year. A coalition headed by the Howard Jarvis Taxpayers Association and the California Farm Bureau Federation is gathering signatures on an initiative that would prohibit the use of eminent domain for economic development. The measure would also prohibit rent control. And, according to initiative opponents, because of subterfuge or error, the measure would prohibit the use of eminent domain for public water projects. The rent control provision and the argument about the impact on water projects could overshadow the issue of redevelopment agencies' use of eminent domain during the 2008 campaign. At the same time, a coalition that includes the League of California Cities, the California Redevelopment Association (CRA) and the League of Conservation Voters is circulating a rival initiative that would bar the taking of owner-occupied, single-family residences for economic development and provide new safeguards for small business owners. The initiative is similar to ACA 8, which the same organizations are sponsoring. However, because it is a constitutional amendment, ACA 8 needs two-thirds approval in the statehouse before heading to the ballot. Thus far, the measure has no Republican support. In 2006, California voters rejected Proposition 90, one of several "sons of Kelo " ballot measures around the country (see CP&DR , December 2006 , August 2006 ). Proposition 90 would have prohibited the use of eminent domain for economic development. But it also contained far-reaching language that would have required government compensation for regulation that reduced a property's value. Opponents seized on these takings provisions, which became far more important than the eminent domain limitations during the campaign. This time, rent control may replace takings as the tangential — yet dominant —issue. John Shirey, CRA executive director, noted that apartment owners and mobile home park owners are providing most of the money for the Jarvis group's signature-gathering effort. Those property owners have fought local rent control ordinances vigorously for decades. Initiative proponents say rent control is a natural fit for the initiative because property rights protections are meaningless if the government can still regulate sales or lease prices. In late August, the League and CRA trumpeted a legal opinion that said the Jarvis initiative would prohibit the use of eminent domain for water projects. The opinion was written for the organizations by Richard Martland, a former assistant state attorney general now with Sacramento's Nielsen, Merksamer, Parrinello, Mueller & Naylor. Martland pointed to initiative language that would prohibit the transfer of property rights to a public agency for the "consumption of natural resources." " f the ultimate purpose is to provide water for domestic use, such as drinking water, irrigation, commercial or industrial purposes, the use of eminent domain to acquire the land necessary to construct any feature of the project would be prohibited," Martland wrote. The opinion generated headlines in Sacramento and some worried comments by a few Republicans. But Jon Coupal, president of the Jarvis association, said the opinion was simply a political ploy. "On the merits of the legal argument, we're very comfortable and we wouldn't change a thing about our initiative," said Coupal, who laughed at the idea that the Farm Bureau would do anything to halt water projects. "The notion that the dozen or so water attorneys at the Farm Bureau Federation would miss this is silly." Coupal said his initiative would provide "iron-clad protection for all property owners," which he said is a contrast with the more limited protections of ACA 8 and the local government-sponsored initiative. The lack of protection for the owners of rental properties and churches was clearly at issue during an Assembly Local Government Committee hearing on August 22, when ACA 8 failed to get a vote from either Republican committee member — a sign that any GOP support is very unlikely. "Do what's fair," Assemblyman Guy Houston (R-San Ramon) urged ACA 8 author Hector De La Torre (D-South Gate). "The rental property is real, real important." ---------------News Update--------------- On August 30, De La Torre amended his bill to prohibit the use of eminent domain for the taking of a church or house of worship for transfer of the property to another private party. --------------------------------------------- If ACA 8 supporters cannot round up all Democratic lawmakers plus two Senate Republicans and six Assembly Republicans, local government organizations must go the initiative route, which Shirey called "plan B." At this point, it appears both initiatives could appear on the June 2008 ballot. The Local Impact The Arcadia Redevelopment Agency is painfully aware of what happens when a local government loses eminent domain authority. In Arcadia's case, it may mean the loss of the city's last automobile dealership and one of the largest sales tax generators, at nearly $1 million annually. After the U.S. Supreme Court handed down its Kelo decision upholding the use of eminent domain for economic development purposes, Arcadia officials commenced the condemnation process to acquire three parcels so that the adjacent Rusnak Mercedes-Benz dealership could expand. The timing, noted Assistant City Manager Don Penman, could not have been worse. One property owner, Manny Romero, the owner of the popular Rod's Grill, made clear that he had no intention of selling. As the Kelo backlash grew, Romero became something of a celebrity — a small business owner willing to stand up to both city hall and Mercedes-Benz. Romero became active in the Proposition 90 campaign and also helped qualify an initiative in Arcadia. Measure A would have prohibited automobile sales on the block where the city was attempting to help Rusnak expand. The City Council countered with its own ballot measure, Measure B, which preserved land use authority but eliminated the redevelopment agency's ability to use eminent domain for the purpose of taking private property for private use. During a special election in May, voters by three-to-one ratios rejected Romero's zoning limitation and approved the council's concession of eminent domain authority. The redevelopment agency has acquired one of the parcels and is in escrow to purchase the second, according to Penman. However, Romero will not sell and his mid-block parcel is essential. In July, Rusnak announced it would look out for a new location out of town. Penman conceded that Arcadia is a conservative community. Still, he said, "It's tough to make things happen when you don't have the leverage." Contacts: John Shirey, California Redevelopment Association, (916) 448-8760. Jon Coupal, Howard Jarvis Taxpayers Association, (916) 444-9950. Don Penman, City of Arcadia, (626) 574-5414.

Stanislaus County supervisors and developers have beaten farmland preservation advocates to the punch. Supervisors adopted a developer-written growth plan for the unincorporated community of Salida six months before voters are scheduled to decide on a slow growth/farmland protection initiative that actually was written first. In response to the "Stamp Out Sprawl" (SOS) initiative, scheduled for the February 2008 ballot, developers drafted the "Salida Now" initiative and appeared to qualify it for the November 2007 ballot. However, the Board of Supervisors in August voted 3-2 simply to adopt the initiative. Supporters say the plan is very similar to a community plan update that has been in the works for years, provides infrastructure funding for industrial and commercial development, and moves Salida toward financial self-sufficiency. Detractors say the quick drafting and adoption of the Salida Now initiative was a brazen political move that could backfire. "It's such an obvious, in-your-face flaunting of power," said Denny Jackman an (SOS) organizer and former Modesto councilman. County Supervisor Jeff Grover conceded that the SOS initiative created a "feeling of real urgency." By adopting the Salida initiative, supervisors simply speeded up what had already been a long process. The Salida Now plan "is exactly what we've been working on and exactly what we've been planning in Salida," Grover said. With a population of about 14,000, Salida is by far the largest town in unincorporated Stanislaus County. Salida's location along Highway 99 at the far northern end of the county puts it within long-distance commuting range of the Bay Area. County officials, however, have long wanted to see Salida grow as an employment center (see CP&DR Local Watch , May 2000). That has not happened and county officials say Salida is an approximately $3 million-a-year drain on the county. Since 2000, advocates of farmland protection in Stanislaus County have been trying to get something on the ballot that resembles Ventura County's SOAR initiatives (see CP&DR Insight , May 2002; CP&DR , December 1998 ). Previous efforts failed, but in June 2006, farmland advocates presented the county with signed petitions on the SOS initiative. If approved, it would require voters to decide on the rezoning of unincorporated agricultural land. Supporters wanted to place the initiative on the November 2006 ballot. However, county supervisors ordered an analysis as allowed under the Election Code. By the time the analysis was completed two months later, the deadline for getting an initiative on the ballot had passed. Therefore, supervisors scheduled the SOS initiative for the next general election — February 2008. The move bought Salida growth proponents time. Within months, the Salida Now initiative was on the streets, and in June supporters submitted an extraordinary number of signed petitions — enough to force a special election. The $400,000 signature-gathering campaign was financed almost entirely by developers, primarily Pacific Union Homes, Bates Properties and The Stringer Co., all of which have substantial interests in Salida. (An interesting twist in the initiative calls for development fees to reimburse the cost of preparing the initiative.) Again, supervisors ordered an analysis. But when that analysis was presented to the board in August, supervisors somewhat unexpectedly adopted the initiative, a decision permitted by state law. The decision studded some people. In an editorial under the headline "Maybe The Developers Really Do Run The County," the Modesto Bee opined: "In a single vote, three supervisors amended the county general plan, adopted the Salida Community Plan as firm for the next 25 years, and OK'd a development agreement with developers. And the three supervisors did all of this without giving the public any time to comprehend it all and to comment." From a political standpoint, Jackman said, the supervisors' actions have been great for SOS supporters. First, supervisors delayed an election on the grass-roots SOS initiative, then they adopted the developer-funded Salida initiative with virtually no warning. SOS supporters could not have asked for better campaign material, Jackman said. But Supervisor Grover, who represents Salida, makes no apologies. State demographers predict Stanislaus County will add 350,000 people and need at least 100,000 new jobs by 2030, Grover pointed out. "We need areas to provide jobs all over the county," Grover said. The SOS initiative would "block everything in the unincorporated areas." The lack of infrastructure in Salida is often cited as one reason for the lack of economic development. According to an analysis by county staff members of the initiative, "The proponents envision … the residential component subsidizing the initial infrastructure of the industrial and commercial areas and in later years the industrial/commercial area generating adequate revenue to maintain the infrastructure of both the residential and industrial/commercial area." Grover said the initiative is very similar to a community plan update — in process for years — that was presented to supervisors in April. Adopting the plan simply keeps the decision-making in the hands of elected officials, he said. In the Turlock-based Farmland Working Group's most recent newsletter, President Jeani Ferrari expressed doubt. "The supervisors' action gives the project to the developers, with no right to say ‘no' to the project as a whole, no matter what the environmental impact report and financial feasibility studies show," Ferrari wrote. The initiative covers 3,383 acres, of which about 60% is designated for industrial, business park or commercial uses. Proponents say as many as 27,000 jobs could be created there. In addition, the plan permits up to 5,000 housing units in varying densities and sets aside 100 acres for a riverfront park. The initiative contains no entitlements, said Stanislaus County Planning and Community Development Director Ron Freitas. The next step is for developers to prepare "development plans" that would be similar to specific plans. While the initiative did not undergo California Environmental Quality Act review, all development plans are subject to CEQA, Freitas said. "We're stepping back and saying, ‘It's your development plan, you prepare it.' We will still retain the EIR consultant," Freitas said. Loss of farmland is a significant issue. About 3,000 acres in the plan area are in agricultural production, and most of the territory is prime farmland. The initiative calls for housing developers to offset loss of farmland by buying acre-for-acre preservation easements on similar farmland elsewhere in the county. However, the mitigation requirement does not apply to non-residential development. The initiative also calls for developers to contribute $150,000 to a Salida incorporation feasibility study. Contacts: Stanislaus County Supervisor Jeff Grover, (209) 525-6560. Ron Freitas, Stanislaus County Planning and Community Development Department, (209) 525-6330. Farmland Working Group, (209) 247-2503.

The Coastal Commission's denial of an application for after-the-fact approval of a caretaker's mobile home, a storage shed and other facilities at the site of an antenna farm in the Santa Monica Mountains has been upheld by an appellate court. However, the court ruled that the commission could not prevent the property owner from erecting gates and "to trespassing" signs. The commission refused to approve the gates and signs across a road because hikers, equestrians and others use the road and there are "potential prescriptive rights." But the court found the prescriptive rights to be "speculative" and concluded, " he commission is not vested with the authority to adjudicate the existence of prescriptive rights for public use of privately owned property." The property at issue is a 23-acre parcel on the top of Castro Peak within Santa Monica Mountains National Recreation Area. There are towers and communications antennas of 150 to 300 feet in height on the property. SoCal Communications leased the property for the antenna farm until 2002, when LT-WR, LLC, acquired the property. That year, LT-WR submitted to the Coastal Commission an application for after-the-fact approval of a caretaker's mobile home, a storage trailer, and two metal gates with "no trespassing" signs where Newton Canyon Motorway reached the property line. The company also sought approval for a new septic system, a well and new roads, plus permission to relocate the mobile home, the storage shed and an unpermitted horse stable, and permission to remove other unpermitted structures. After commission staff members said the application was incomplete, LT-WR revised and re-submitted materials on May 2, 2003. The commission did not respond because the file had not been reassigned after the previous staff member handling the case departed on leave. LT-WR contended the Permit Streamlining Act deemed the application complete as of June 1. The company then filed notice on November 30 that it would consider the application "deemed approved" if the commission did not act within 60 days. Instead, the commission heard the application in January 2004 and unanimously rejected it. LT-WR then sued, asking the court to overturn the commission. The property owner argued it had a vested right to maintain the caretaker's residence, and also submitted takings, due process and equal protection claims. Los Angeles County Superior Court Judge Dzintra Janavs ruled that the commission could not prohibit the gates and signs because they are not "development" under the Coastal Act. Otherwise, Judge Janavs ruled for the commission. Both sides appealed, and a unanimous three-judge panel of the Second District Court of Appeal, Division Three, upheld the lower court. At first, the court published only the portion of its opinion addressing the commission's appeal regarding the gates and signs. Since then, the court has published the entire opinion, which methodically addresses and dismisses each of LT-WR's arguments. Among LT-WR's failed arguments were these: The trial court should have reviewed the matter independently, rather than applying the more deferential "substantial evidence" standard; the company need not follow the commission's process for establishing vested rights; the commission lacked authority to designate part of the site an "environmentally sensitive habitat area; the commission's rejection violated an approved 1986 land use plan for the site; there was inadequate evidence the project would have adverse visual impacts; there were no feasible design alternatives; and the commission did not let the company pursue design alternatives. Perhaps most interestingly, the court rejected the argument that the commission lost its jurisdiction because it did not set a hearing on the application within 49 days. A provision in the Coastal Act (Public Resources Code § 30621, subdivision (a), states, "A hearing on any coastal development permit application or any appeal shall be set no later than 49 days after the date on which the application or appeal is filed with the commission." Because the commission failed to notify LT-WR that its May 2, 2003, application was incomplete, the application was deemed complete as of June 1, 2003. However, the commission did not conduct a hearing until January of the following year — long past the 49-day deadline. Because of the late hearing, LT-WR argued, the commission lost its authority to reject the application. The court ruled that even though the statute contains the word "shall," the law is "directory" rather than mandatory. "A construction of the 49-day rule which permits the commission to retain jurisdiction, and thereby render a decision, is manifestly more practical than one which cuts off the jurisdiction of the commission and strips the commission of its authority to deny a permit application. For these reasons, we agree with the trial court that the 49-day period is not jurisdictional," Presiding Justice Joan Klein wrote. The Second District suggested LT-WR could have filed a suit seeking to force a quicker hearing. As for the gates and signs, the appellate panel rejected the trial court's determination that they are not "development." Instead, the Second District ruled the gates and signs are development the commission cannot prevent. "Inherent in one's ownership of real property is the right to exclude uninvited visitors," Justice Klein wrote. "The commission's decision would deny LT-WR that right. In precluding LT-WR from barring the public from traversing its property on the theory that ‘potential exists to establish prescriptive rights for public use of this road,' the commission in effect decreed the existence of such prescriptive rights." However, the commission has no such authority, the court ruled. The Case: LT-WR, LLC v. California Coastal Commission , No. B187666, 2007 DJDAR 7655. Filed May 25, 2007. Ordered published in its entirety June 21, 2007 at 2007 DJDAR 9325. The Lawyers: For LT-WR: Fred Gaines, Gaines & Stacey, (818) 933-0200. For the commission: Rosana Miramontes, attorney general's office, (213) 897-2000.

The City of Dinuba's redevelopment agency is entitled to tax increment that Tulare County erroneously distributed to itself and nine other local government entities, according to a unanimous state Supreme Court ruling. Tulare County conceded that it made the mistake and agreed to remedy it prospectively. But the county argued the Tort Claims Act (Government Code § 810 et seq.) protected the county from having to correct the problem retroactively. Upholding a Fifth District Court of Appeal decision, the state Supreme Court rejected the county's position. " he immunity provisions of the Act are only concerned with shielding public entities from having to pay money damages for torts," Justice Carlos Moreno wrote in a relatively short opinion. "Plaintiffs do not seek damages; they seek only to compel defendants to perform their express statutory duty. While compliance with the duty may result in the payment of money, that is distinct from seeking damages. "For example," Moreno continued, "had plaintiffs sought compensatory damages for a downgraded bond rating or increased interest rates as a result of defendants failure to disburse the funds to which plaintiffs were entitled, such damages would likely be precluded. But plaintiffs do not seek such damages." A 2002 audit conducted for the Dinuba Redevelopment Agency reported that the Tulare County auditor-controller had miscoded some parcels and that the agency had not received tax increment for those parcels for the 2002-03 fiscal year and the previous four fiscal years. Instead, the county disbursed the increment to itself, a county library fund, and a variety of school and special districts. When the county refused to pay the increment to the redevelopment agency retroactively, Dinuba sued, seeking underpaid increment from 1997-98 through 2003-04. A Tulare County Superior Court judge ruled for the county, but on appeal the Fifth District determined Dinuba was "entitled to the tax increment revenue by statute." The case, closely watched by other cities and redevelopment agencies, then went to the state Supreme Court. The county specifically argued that one section of the Tort Claims Act, § 860.2, barred the county from having to pay back misallocated revenue. The court, however, said that § 860.2 concerns government liability for an injury, which a different section of the act defines as "death, injury to a person, damages to or loss of property, or any other injury that a person may suffer to his person, reputation, character, feelings or estate, of such nature that it would be actionable if inflicted by a private person." The county's failure to correctly distribute property tax revenue is not an "injury" within this narrow definition, the court ruled; therefore, the Tort Claims Act does not protect the county from the city's claims. The Case: City of Dinuba v. County of Tulare , No S143326, 07 C.D.O.S. 8545. Filed July 19, 2007. The Lawyers: For Dinuba: Steven Mayers, Meyers, Nave, Riback, Silver & Wilson, (510) 655-6086. For the county: Thomas Winfield III, Brown, Winfield & Canzoneri, (213) 687-2100.

An eminent domain action's impact on the future development of the remaining private property — which needs rezoning for development — may be considered by a jury that is determining the fair market value of the taking, the state Supreme Court has ruled. In a unanimous opinion, the state high court mostly upheld a Fourth District Court of Appeal ruling that overturned a trial court judge who prohibited a jury from considering an eminent domain action on potential future development. In addition, the state Supreme Court held that a jury may consider the diminution in the market value of the remaining property as a result of the eminent domain. The decision marks the latest twist in battle between the owner of the historic Arrowhead Springs resort and the Metropolitan Water District of Southern California (the Met), and in long-held plans for extensive development of the Arrowhead site. Ten years ago, the Met filed an eminent domain action to acquire land and easements for a pipeline across the Arrowhead property in San Bernardino. The pipeline, which has since been completed, carries water from Devils Canyon to the new Diamond Valley Lake in western Riverside County. The Met sought to acquire 10.4 acres, plus 18.7 acres of permanent easement, 27.4 acres of temporary construction easement for seven years, and two permanent tunnel easements. Meanwhile, the owner of the 1,800-acre property, Campus Crusade for Christ, has been working with American Development to refurbish the historic resort, build an additional hotel and golf course, and develop up to 1,350 homes and 1 million square feet of office and commercial space. The City of San Bernardino adopted a specific plan for the project but had to revise the plan when a judge in 2006 found the environmental impact report inadequate. The Met initially set just compensation at $392,000. Campus Crusade argued that the project would harm the property's historic value — the Met removed a great deal of mature vegetation at the resort's entryway — and development potential because the pipeline was going under the most developable land. The Met increased its offer to $3.5 million, but Campus Crusade demanded $12.5 million. San Bernardino County Superior Court Judge John Wade ruled that a jury could not consider many factors presented by Campus Crusade, which ended up waiving its right to a jury trial because of Wade's rulings. In June 2003, Wade fixed the just compensation owed by the Met at $479,000. The Fourth District found that Wade made several mistakes and ordered a new trial. The California Supreme Court then took up the Met's appeal of the Fourth District decision. The development plan would require rezoning because most of the site was zoned for 40-acre minimum parcel sizes when the Met commenced its action. The Met argued that the landowner had to prove a reasonable probability of rezoning existed. The state Supreme Court, however, said a two-step process is involved. First, the property owner must produce evidence. Then, it is up to the "trier of fact" to determine whether such evidence is adequate to support a reasonable probability of rezoning, and what the effect on valuation would be, the court explained. " hen presented with a proffer that there is a highest and best use that is not permitted by the property's current zoning, the trial court should examine whether the proffer supplies sufficient evidence to permit the jury to find that there was a reasonable probability of rezoning to permit that use in the near future. The jury should then be instructed that it may consider the change in use, provided that it first finds a reasonable probability the property could be rezoned in the near future," Justice Marvin Baxter wrote for the court. The other major issue for the court was "severance damage" — the impact on market value of the property not condemned by the Met. Campus Crusade argued that the negative aesthetic impacts on landscaping and the pipeline's limit on development potential, as well as the possibility of the pipeline rupturing (the pipeline crosses the San Andreas Fault here), should all be factors in the valuation. The court agreed those could be factors. "As long as the effect of these factors on market value is not conjectural, speculative or remote, it is for the jury to decide the extent to which they may affect the value of the property," Baxter wrote. Campus Crusade also sought compensation for the seven-year construction period, which the property owner argued impacted financing and marketing. The court held that Campus Crusade may be entitled to compensation during a new trial but "has not identified any specific loss attributable to the delay in construction." The state Supreme Court sent the case back to the Fourth District for further proceedings. The Case: Metropolitan Water District of Southern California v. Campus Crusade for Christ, Inc., No. S141148, 07 C.D.O.S. 8627, 2007 DJDAR 11124. Filed July 23, 2007. The Lawyers: For the Met: Kenneth Bley, Cox, Castle & Nicholson, (310) 284-2231. For Campus Crusade: Scott Heil, Redwine & Sherill, (909) 684-2520.

A lawsuit contending that a Eureka Redevelopment Agency deal for a waterfront development violated conflict of interest laws has been thrown out. The First District Court of Appeal upheld a trial court judge, who ruled the lawsuit was filed after the statute of limitations had expired. The First District said that the lawsuit should have been filed within one year of the agency's approval of the contract in question. The contract was signed in December 2001. Not until September 2005 was the lawsuit filed. The contract is a disposition and development agreement between the city's redevelopment agency and developer Dolores Vellutini. The agreement grants Vellutini the right to acquire and develop property along the Old Town Eureka waterfront. Vellutini's Eureka Pier proposal calls for restaurants, retail shops, condominiums and recreational facilities. However, the Eureka Pier project and another waterfront development stalled because of the lawsuit. The lawsuit, originally filed by the Humboldt Taxpayers League, argued that the agreement is illegal because Vellutini was a member of the agency's redevelopment advisory board from 1994 until shortly before the lawsuit was filed. The group contended the deal violates Government Code § 1090's prohibitions against public official self-dealing. Although Vellutini and developer Glenn Goldan, who signed a similar agreement for the second waterfront project, were members of the advisory board, they recused themselves from discussions relating to their project. But the redevelopment agency's defense against the lawsuit was simply that the taxpayers group had filed too late. The Humboldt County Superior Court agreed with the agency and did not rule on the merits. The First District opinion contains a lengthy discussion about which of three potential statutes of limitations apply. Plaintiff Sue Brandenburg, a local political activist who has taken over the litigation for the taxpayers group, argued that a four-year "catch-all" statute of limitations in Code of Civil Procedure § 343 applies. Instead, the First District determined that the one-year time limit in § 340, subdivision (a) applies because that statute concerns "an action upon a … forfeiture." Here, the plaintiff was asking that the developer forfeit her right to enforce the disposition and development agreement, the court determined. The court rejected the argument that a forfeiture is not involved because the agreement was simply "executory" and no money or property had changed hands. "The distinction is unavailing," the court ruled, "because, as used in § 340, subdivision (a), a ‘forfeiture' is not limited to the divesture of money or property without compensation. It also includes the ‘loss of a right , privilege , or property because of a crime, breach of obligation, or neglect of duty.'" The court cited Marin Healthcare Dist. v. Sutter Health , (2002) 103 Cal.App. 4th, 861. In August, Brandenburg told the Eureka Times-Standard that she would ask the state Supreme Court to accept the case because she still wants a ruling on the merits. The Case: Brandenburg v. Eureka Redevelopment Agency , No. A114366, 07 C.D.O.S. 7923. Filed July 2, 2007. The Lawyers: For Brandenburg: Neil Shapiro, (831) 372-3700. For the agency: Juliet Cox, Goldfarb & Lipman, (510) 836-6336. For Dolores Vellutini: Philip Aktins-Pattenson, Mullin, Richter & Hampton, (415) 434-9100.

A common method of converting rent-controlled apartments into for-sale condominiums in San Francisco has been upheld in a lawsuit filed by apartment tenants who alleged an unlawful business practice. The First District Court of Appeal ruled that the tenants had no right to bring the lawsuit. The situation with a six-unit apartment building on Francisco Street is a familiar one. The landlord sold the building to four limited liability companies (LLCs) and one married couple. Prior to the close of escrow, the purchasers executed a tenancy in common (TIC) agreement, which gave each buyer an undivided percentage interest in the property. The TIC agreement also provided each owner with the exclusive right to occupy one unit. Because there were five buyers and six units, the agreement provides for one of the LLCs to occupy two units. The married couple sought to live in their purchased unit, while the LLCs intended to remodel their units and then sell them. In April 2004, the new owners invoked the Ellis Act, which permits the owners of rental residential properties to go out of the rental business. The tenants were served with eviction notices. Apparently, a partner in one of the LLCs had informal talks with two of the tenants about buying back their units, but nothing came of the discussions. Two months later, the tenants sued. They argued that the new owners committed an unlawful business practice because they had violated the Subdivided Lands Act (Business and Professions Code § 11000 et seq.). Under that law — which is unrelated to the Subdivision Map Act in the Government Code — a property owner must notify the state real estate commissioner of an intention to sell subdivided interests and obtain a "public report" before creating the interests and offering them for sale. The Francisco Street tenants argued that the property owners failed to follow this procedure, amounting to an unlawful business act under the state's Unfair Competition Law. San Francisco Superior Court Judge Charlene Mitchell ruled for the tenants and issued an injunction prohibiting the new owners from selling their interests in the building — and from evicting the tenants under the Ellis Act — until the owners complied with the Subdivided Lands Act. However, a unanimous three-judge panel of the First District, Division Three, overturned the lower court. The issue for the First District was not whether the property owners violated the Subdivided Lands Act. Rather, the issue was whether the tenants had standing to file the lawsuit under the Unfair Competition Law. When they approved Proposition 64 three years ago, voters limited who has standing under the law. A person has standing only if he has suffered injury and lost money or property as a result of the unfair competition. The alleged unfair competition in this case was a violation of the Subdivided Lands Act. But, as Presiding Justice William McGuiness noted, "The Subdivided Lands Act is not intended to protect tenants but instead exists to protect purchasers of units in subdivisions from fraud, misrepresentation, or deceit." "The tenants are not among the class of persons the Subdivided Lands Act was intended to protect, and they have suffered no harm as a result of any violation of its provisions," McGuiness wrote. The tenants' threatened loss was due to their eviction under the Ellis Act, and there was no evidence the owners violated that act the court found. "In short, there must be a causal connection between the harm suffered and the unlawful business activity," McGuiness wrote. "That causal connection is broken when a complaining party would suffer the same harm whether or not a defendant complied with the law." The First District noted that the tenants would still face eviction if the property owners complied with the trial court's injunction and met the conditions of the Subdivided Lands Act. Allowing tenants to block Ellis Act evictions based on violations of unrelated laws "frustrates the purpose of the act, which is to permit landlords the right to go out of the rental business," the court concluded. The tenants have asked the state Supreme Court to review the case. The Case: Daro v. Superior Court , No. A111947, 07 C.D.O.S. 6563, 2007 DJDAR 8448. Filed June 6, 2007. The Lawyers: For the property owners: Andrew Zacks, Zacks, Utrecht & Leadbetter, (415) 956-8100. For the tenants: Stephen Collier, Tenderloin Housing Clinic, (415) 771-9850.

New housing units provide financial benefits for local and state government, according to a new study prepared for the California Homebuilding Foundation. To determine that houses are money-makers for government, however, the study assumes that economic growth will correspond to housing development. Thus, much of the windfall comes from additional retail sales and job growth that the study assumes will accompany new housing. The study by former state Finance Director Tim Gage and former Legislative Analyst's Office staff member Matthew Newman, now both with Blue Sky Consulting Group, concluded that the average city nets $3,017 in one-time benefits from a new median-price home, while the average county nets $1,706 and the state government $15,858. New median-priced homes provide ongoing, annual net revenue gains of $771 to the average city, $190 to the average county and $3,498 to the state, according to the study, "The Housing Bottom Line." The study contradicts what has been the conventional wisdom that housing is a money loser for the government. Newman said that the study is the first to "examine the overall fiscal effects of housing" at the state, county and city level. "Most of the available work examining the fiscal impact of housing in California has been done by consultants hired by local jurisdictions to set the level of a ‘fiscal impact fee,'" Gage and Newman wrote in the study. "A major difference between these studies and the analysis done for this report is that, while the other studies look at the impact of a specific proposed development project, we are considering the fiscal impact of housing in general terms, focusing on the impact of the ‘next house' to be built." Michael Coleman, fiscal policy advisor to the League of California Cities, called the conclusion an overstatement. "The implication is that if you build homes, that causes job growth, not just construction- and housing development-related job growth. I think that goes too far," he said. "This study essentially assumes that 100% of the taxable sales related to a new house are going to occur in the community where that house is built. But that happens in only a very few communities." Moreover, the study implies that a new house will always be a new house and "because the impacts are positive in the earliest first few years, they are positive for the life of that house," Coleman pointed out. However, the numbers change over time and can turn negative as assessed values stagnate and service costs rise. Still, Coleman said the study supports his recent analyses that show new, higher-end homes generate more revenue than the cost to provide service to the houses. Fred Silva, a longtime state-local fiscal policy analyst now with the New California Network, called the study correct "from a statewide perspective." But, he warned, "It's very tricky to draw statewide conclusions on a per-capita basis and apply them locally. Oakland is going to look different than Napa, which is going to look different than Vacaville." Silva, who provided Gage and Newman with a little early guidance, said the study is one of the first to note the importance of Proposition 1A from 2004. That measure changed vehicle license fee (VLF) allocations away from a per-capita basis. Instead, VLF allocations are now tied to assessed valuations, Silva explained. This is very important for growing cities, he said. The study is available at www.mychf.org .

Last week's blog about Joel Kotkin and his article in the L.A. Times decrying the supposed "Manhattanization" of Los Angeles stirred up quite a bit of debate. Here's Part 2 of the Bill Fulton blog on Kotkin. Background: The biggest fuss last week came on Curbed L.A . , the website that loves to hate Kotkin, where both Kotkin-bashers and Kotkin-lovers had a field day. A toned-down version of the Kotkin blog – which doesn't mention him by name but suggests that L.A. is Pasadena-izing rather than Manhattan-izing – was published in the L.A. Times yesterday (8/26). Now, on to Part 2. Joel Kotkin is one of the most widely read and widely quoted commentators on cities and urban planning in the United States today. But I have to admit that when I pick up the paper or click to a new web page, I often wonder which Kotkin I'm going to encounter. There's the thoughtful, measured author of The City: A Global Histo r y and co-author of many provocative but nevertheless carefully researched studies about demographic and economic trends. Then there's the bomb-throwing op-ed writer and speechifier who carelessly throws around facts and ideas in the service of his latest contrarian argument. I suppose it's the price of celebrity in America today – even for mini-celebrities of the Kotkin type – that you have to call attention to yourself with flashing billboards however you can in order to get people to take a look at your more serious ideas. But in the popular media (if you can call such venues as the Los Angeles Times and the Wall Street Journal the "popular" media these days), Kotkin creates an extremely exaggerated version of what he believes -- and gets surprisingly careless with the facts along the way. Let's start with the serious stuff. His recent book, The City: A Global History , is actually a pretty good read. Lewis Mumford the guy is not, as he more or less admits in the text, but it's worth reading for a couple of different reasons. The first is that it's very short – only 160 pages – and for that reason it's kind of a Cliff Notes version of the history of cities. Much of the book consists of bite-sized descriptions of various cities at various points in history, and in contrast to the typical Kotkin attitude on the op-ed pages, it's written in a pretty straightforward fashion. In fact, there's a certain uncharacteristic humility about the entire book; Kotkin readily admits that tackling the whole history of cities, especially in 160 pages, is an overwhelming task. Kotkin also deserves a lot of credit in this book for giving considerable attention – and insight – to Asian cities, which snootier American urbanists tend to overlook. (Kotkin has always been good on Asia, dating back to his business journalism days during the 1980s, when he was among the first to document the strong economic links between Asia and L.A.) The City is also worth reading because – at the beginning and the end of the book, when he's not giving us a Cook's tour of world cities – we get the most thoughtful and most fully fleshed-out version of the Kotkin Philosophy on Cities. The essence of his argument is that cities are shaped by the need to create three different types of space – sacred space, safe space, and space for commerce. He makes the argument that the forces of religion, security, and commerce are intertwined and no city has been successful in the long run without paying attention to all three. There's a lot more religion in Kotkin that he lets on in the typical op-ed piece (for many years he was a columnist for The Jewish Journal in Los Angeles), and the increasing secularization of Western cities clearly disturbs him. Though he's not always obvious about this in the op-eds, his sharp attacks on Richard Florida's "creative class" theory of economic development are clearly rooted in this concern over the loss of religion as a significant urban force in both the U.S. and Europe. I don't agree with his entire argument, but it's a serious one and he lays it out pretty well. (I'll deal with his views on economic development and especially his contrarian approach to Florida's work in the final blog next week.) Similarly, when he is paired on a research project with a rigorous statistical analyst – a demographer like Bill Frey of Brookings or an economic analyst like Ross DuVol of the Milken Institute – Kotkin writes pretty responsibly based on real data. His recent Brookings paper with Frey, The Third California is a good example. It argues that the inland areas of California, especially in the Inland Empire and the Central Valley, represent a completely different part of California than coastal Southern California and the Bay Area, and must deal with problems differently. Knowing that this fine body of work exists makes it all the more frustrating when you read a Kotkin op-ed or hear a Kotkin speech. The outlines of his ideas are still there, but only in the most cartoonish form. And for somebody who once wrote a book called The New Geography , he's surprisingly sloppy with his geographical facts. Especially in speeches, but also in more popular writing, he tends to throw around place-names like a hip-hop artist – playing off cities' stereotyped reputation for shock value, rather than grounding the references in actual fact. In the Planetizen article where he laid out his definition of "The New Suburbanism," he distanced himself from smart growth and instead claimed his ideas were rooted in "market-oriented developments" dating from the '60s and '70s that have accomplished many of the same goals, especially diversity of both land uses and ethnicities. He specifically calls out Reston and Columbia, both in metropolitan Washington; Irvine in Orange County; and The Woodlands in Houston. What Kotkin fails to mention is that both Reston and Columbia were the products of dreamy developers (Jim Rouse in the latter case) who got their lenders in so deep with front-end infrastructure investment that both projects went belly-up at least once. Their current market success would not have been possible without these early, economically unrealistic plans, which created both infrastructure and amenities that later became part of the marketing. And while The Woodlands is now a successful and affluent suburb in one of the most market-oriented metropolitan areas in the nation, in fact it began as a federally subsidized "new community" during the early 1970s. Of the four, only Irvine – which began with an enormous land base on which the owners had no debt – has been a market success from beginning to end. Not only did Kotkin get his facts wrong, but he also overlooked the biggest impediment to better suburban planning – the combined cost of carrying the land and building the front-end infrastructure – which has been the subject of debate in planning for close to a century. In the same Planetizen article, he  refuted New Urbanism by noting that the fastest job growth has taken place not in central cities but in suburban areas around older cities "or in the famously sprawled out multipolar cities of the West and the Sunbelt, including Boise, Ft. Myers, Las Vegas, and Reno." No one would dispute that Fort Myers (on the Gulf Coast of Florida) is sprawling. So to a lesser extent is Boise, which, like Portland and Sacramento, is the rare Western city sitting in an expansive agricultural valley. But Reno is boxed in by federal land and is growing more and more densely. And Las Vegas, also boxed in by federal land, is without question the most densely concentrated and mononuclear city in the entire Sunbelt. In fact, it is just about the only metro area in the nation whose overall density is going up. The Strip is the densest job center in the West and Las Vegas's transit system is one of the fastest growing in the nation. Far from sprawling, Las Vegas is the only city in America that really is – dare I say it? – Manhattanizing. This kind of carelessness shows up in speeches as well. Speaking engagements are where pundits make their real money, and so there's a lot of pressure to be provocative. Furthermore, most speeches are still not recorded or put on the Internet, so there's a natural tendency to play fast and loose with the facts to make a provocative point. It's unlikely that anyone will call you on it. But Kotkin is especially prone to this kind of carelessness. I once saw him say, in a speech in Los Angeles, that business owners are afraid of diversity, which is why they "move to Saskatchewan instead of doing business in Irvine." Afterward, his introducer – a mild-mannered man of Chinese extraction – said, in a stage whisper with the microphone on, "That's very interesting, Joel, I'm going to have to discuss that with my family the next time I'm back in Swift Current, where I grew up." I don't think I ever saw a cleaner touché in front of a planning audience, especially since the Chinese-Canadian fellow had organized the conference, had asked Joel to participate, and would be writing Joel's check. The frustrating thing here is that Kotkin knows better. He knows full well that Las Vegas is Manhattanizing, not sprawling. He knows The Woodlands was federally subsidized at the beginning. And he knows that, all other things being equal, many – if not most – businesses would rather do business in Irvine than in Saskatoon. All too often, however, such facts become inconvenient truths that Kotkin chooses to ignore. Throughout his career he has prided himself on debunking other people's myths about cities. Yet in his pop writing, he doesn't do it by invoking the truth. He does it by invoking his myths about cities instead. Second of three blogs

Concluding that Fontana has dodged its affordable housing obligations since 1987, the Fourth District Court of Appeal has blocked the Fontana Redevelopment Agency from issuing $40 million in tax allocation bonds because the agency has exceeded its debt limit. The court also declined to "validate" a settlement between Fontana and the state Department of Housing and Community Development concerning a $67 million shortfall in affordable housing funds. The ruling issued in late July is complicated, as is situation behind the decision. The bottom line according to housing advocates is that Fontana must return $53 million to one project area's affordable housing fund and halt the diversion of housing funds to a developer. Fontana officials, however, say the ruling will have little affect on their redevelopment practices, and an HCD attorney said the settlement agreement remains in place. The ruling is the latest phase in ongoing scrutiny of Fontana's redevelopment practices. In November 2001, the Department of Housing and Community Development (HCD) released an audit that said the Fontana Redevelopment Agency (RDA) had underfunded low- and moderate-income housing efforts, failed to account for and produce required low/mod housing, provided inaccurate information, and spent housing money on ineligible neighborhood beautification projects. The basis for much of HCD's concern is an owner participation agreement (OPA) between the city and developer Ten-Ninety of Corona. Under the agreement originally signed in 1982 and amended in 1984, 1987 and 1992, the city turns over all tax increment revenue from the Jurupa Hills redevelopment project area to Ten-Ninety, which provided capital financing for infrastructure for its own 8,000-unit Southridge housing development. The agreement makes no provision for withholding 20% of tax increment for low/mod housing. The audit said Fontana must cease transferring the required 20% set-aside to Ten-Ninety. In a 25-page response, the city said it was too late for HCD to challenge provisions of the OPA because it and several bond issues had been validated in court. "There is simply no legal basis to now set aside those agreements and the lawful expectations of the parties to them," said the response from City Manager Kenneth Hunt. Nevertheless, city officials initiated settlement talks with HCD, and in November 2002 the city and HCD adopted an agreement in which the city pledged $6.1 million to the redevelopment agency's housing fund (although none for the Jurupa Hills project area) in exchange for HCD not pursuing the audit issues any further. A few months later, Fontana filed an action in court seeking to validate the agreement and a $40 million bond issue for the Jurupa Hills project area. The idea behind such validation actions is to prevent questions of legality in the future. Housing advocates at the Western Center on Law and Poverty, and the California Housing Law Project objected, but San Bernardino County Superior Court Judge John Wade ruled for the city. However, a three-judge panel of the Fourth District, Division Two, ruled that the settlement agreement is not subject to validation under the general validation statute (Code of Civil Procedure § 860) or under Government Code § 53511, subdivision (a), which permits validation actions for certain financial contracts. "Therefore, we cannot decide the validity of the settlement agreement because it was not subject to a validation proceeding," Justice Barton Gaut wrote for the court. "We express no opinion about whether defendants may challenge the settlement agreement in an alternative proceeding." Lynn Martinez, a Western Center attorney, said advocates were considering options but would likely challenge the settlement in a new lawsuit. The proposed bond issue was eligible for validation proceedings, but the Fourth District blocked it because the project area has exceeded its debt limit. All parties appear to agree that the project area debt limit is $135 million. The city said the project area currently has debt of $174 million, while the housing advocates and the court seized on the city's statement of indebtedness, which says the city ultimately will owe Ten-Ninety $1.3 billion in principal and interest that accrues at 15.5% annually. The city argued that, under the OPA, debt beyond $135 million is permissible as "reserve debt." The court, however, said there is no distinction between non-reserve and reserve debt. "Quite clearly, both kinds of debts are repayable from tax increment and will finally be paid, if at all, with tax allocation bonds. Both kinds of debt qualify as secured indebtedness subject to limitation," Justice Gaut wrote. "Calling the same kind of debts by different names should not allow Fontana RDA improperly to circumvent the statutory limitations of the Jurupa Hills redevelopment plan." Simply because the previously validated OPA allows additional debt does not mean the debt can be approved now. "The courts cannot validate ongoing illegality," Gaut wrote, in a none-too-subtle swipe at the trial court judge. Gaut's conclusion was equally blunt: "What the record inescapably demonstrates is Fontana RDA's lack of compliance with the required 20% contribution for affordable housing since 1987. Instead, all tax increment revenues appear to be diverted to Ten-Ninety to pay off almost a billion dollars in interest. Any previous findings made in 1981 that payment toward the infrastructure benefited affordable housing were made under the law and circumstances existing at the time, not in 2003 when the new tax allocation bonds were proposed. "The present and future benefits to affordable housing appear to be nonexistent. Although defendants may not be able to challenge earlier actions by Fontana RDA, they should be able to curtail this most recent effort to evade the statutory obligation to provide and promote affordable housing," Gaut wrote. The decision pleased both liberals and conservatives. Martinez said the court properly held Fontana to its affordable housing obligations. "We will be doing everything possible to get this $53 million paid to the low/mod fund instead of to Ten-Ninety, and to get the housing built," Martinez said. Chapman School of Law Dean John Eastman, who filed an amicus brief in the case for the conservative Claremont Institute Center for Constitutional Jurisprudence, said the court caught Fontana in "a giant shell game" that is ripe for corruption. He questioned why Fontana would still be paying 15.5% interest on bond debt, an interest rate that has not been common since the 1980s. "Whenever you see something that out of whack, something is going on," Eastman said. The city, however, appears less than chastened. Fontana Management Services Director Lisa Strong — who made clear the Ten-Ninety deal predated the current city administration — said the agreement with HCD requiring payment of only $6.1 million to the housing fund remains in place, as does the OPA with Ten-Ninety. "We are contractually obligated to pay all of the tax increment to the developer. If we were to set aside the 20%, the developer would sue us," Strong said. Nor does the city need to set aside the money, she said, because the units developed by Ten-Ninety "were low/mod housing," she said. "We didn't say we wouldn't do the low/mod housing. We think the obligation has been met." According to the state controller's office, the Jurupa Hills project area generated $13.8 million in tax increment during the 2005-06 fiscal year. Strong said the city has paid about $125 million to Ten-Ninety over the years. She contended that the 15.5% interest rate on the Ten-Ninety financing does not matter because the OPA requires the city to turn over all tax increment, and both the city and the developer know the debt will not be paid in full when the project area expires in 2032. Proceeds from the proposed bond issue would have gone to Ten-Ninety as an advance payment. Dennis Beddard, HCD's chief counsel, said that although the 2001 audit uncovered "glaring" disparities, there was little the department could do because of past validation actions. The settlement was a way of ensuring Fontana's low/mod housing fund was repaid in part and assumes Fontana will follow the rules in the future, he said. "The department views this as a success story," Beddard said. Promulgated under a different administration, the settlement between HCD and Fontana is the only one of its type, according to Beddard. "I'm hoping," said the Western Center's Martinez, "that it's a one-time deal and they will never do it again. We really think it's necessary for HCD to have the audit authority. But we didn't want to start the precedent of them settling based on the results of the audit." What HCD should have done, said Martinez, is refer the matter to the attorney general's office for enforcement. The Case: Fontana Redevelopment Agency v. Torres , No. E038366, 2007 DJDAR 11464. Filed July 26, 2007. The Lawyers: For Fontana: Victor Wolfe, Best, Best & Krieger, (909) 686-1450. For Torres: Lynn Martinez, Western Center on Law and Poverty, (707) 373-4572. For Ten-Ninety, Ltd.: Joseph Coomes Jr., McDonough, Holland & Allen, (916) 444-3900.

San Bernardino County has agreed to deal with greenhouse gas reduction in its general plan as part of a settlement agreement in a high-profile lawsuit filed by the state attorney general's office. The settlement requires the county to: • Adopt a general plan policy within 30 months that outlines ways to reduce greenhouse gas emissions attributable to discretionary land use decisions. • Prepare a greenhouse gas reduction plan that includes an inventory of greenhouse gas emission levels as of 1990, present day and as projected through 2020, as well as reduction targets and mitigation measures. The settlement requires the attorney general to: • Help the county recoup the estimated $500,000 needed to comply with the agreement. • Provide the county with early comment and consultation to avoid future greenhouse gas lawsuits. • Assist with defense of any legal challenges to the county's greenhouse gas reduction plan. Attorney General Jerry Brown called the settlement a "landmark agreement" and "a model that I encourage other cities and counties to adopt." San Bernardino County officials said they were pleased to keep the general plan in place as adopted while the county works on the greenhouse gas measures. The litigation was the first of its kind filed by the state over a general plan's impact on global warming (see CP&DR , July 2007). A lawsuit filed by environmentalists over the plan remains pending. The attorney general lists as feasible mitigation measures: • High-density development that reduces vehicle trips, • Impact fees on development to fund public transit • Construction of regional transit centers • Designated parking spaces for carpools and overall parking limits. • Convenient electric vehicle charging stations The complete agreement as well as spin from either side is available on the attorney general's website and the county's website .