A state appellate court has overturned a trial court judge’s decision to impose a mobile home park rent increase in the City of Carson. Rather than impose the rate hike, Los Angeles County Superior Court Judge Dzintra Janavs should have sent the matter back to the city’s Mobilehome Park Rental Review Board, the Second District Court of Appeal ruled. The decision, however, does not rule out the possibility of a major rent increase for tenants in the Carson Gardens mobile home park. Like many cities, Carson regulates the amount that park owners may charge mobile home residents for the rental of a park space. The controversy at hand stems from an application filed in October 2000 by Carson Gardens LLC for a rent increase of $105.50 per month per space. Carson Gardens LLC had purchased the mobile home park three years earlier for $1.5 million on a line of credit. The landlord proposed the park’s first rent increase since 1993 — which would have amounted to 44% to 51% per space — based on a “gross profits maintenance analysis.” Essentially, the landlord argued that under the city’s rent control guidelines, it should earn the same profit as the previous owner, even though the previous owner had no mortgage and, thus, far lower expenses. The city’s Rental Review Board refused the request and, in August 2001, instead granted a 9.68% rent increase based on half of the increase in the consumer price index since 1993. The board reasoned that Carson Gardens LLC could not expect to earn the same profit as the prior owner, and that only the increase in the CPI since the new landlord acquired the park should apply. The park owner sued, and, in April 2003, Judge Janavs directed the board to set aside the 9.68% increase and conduct a new hearing. She specifically ordered the board to “apply the gross profits maintenance analysis discussed in the guidelines … or another reasonable analysis or methodology that gives due consideration to the park’s actual reasonable operating expenses, including actual reasonable expenses incurred in acquiring the park.” The city did not appeal the judge’s ruling. It conducted a new hearing at which the board considered a “maintenance of net operating income” methodology, which excluded debt service. The board settled on a monthly rent increase of $36.44 based largely on inflation. The board found that passing through to tenants the amount of mortgage interest would be unreasonable and would create a windfall for the current park owner. Carson Gardens LLC returned to court seeking enforcement of the April 2003 order. Judge Janavs determined that the city did not comply with the earlier order and, in December 2004, ordered a rent increase of $113.36 retroactive to August 1, 2001. Janavs conceded that the $113 hike might be excessive, but she said she could not determine a fair return for the park owner because the city had not used the methodology she ordered. This time, the city appealed. The city argued that it complied with the first order by applying the maintenance of net operating income methodology. The appellate court promptly rejected the argument, noting that the rent board chose that approach specifically because it deleted debt service costs from the process. However, the Second District accepted the city’s argument that Judge Janavs exceeded her authority. In issuing the December 2004 order, the judge herself conceded she could not determine a fair return based on the evidence before her. “Under these circumstances,” Justice Paul Boland wrote for the unanimous three-judge appellate panel, “we think the court was obliged to remand the case once again, so that the board can exercise its discretion on the question of whether passing through the entire amount of debt service costs was necessary to provide a fair return.” The park owner argued that sending the case back to the rent review board was unnecessary because the board could apply only the gross profits maintenance analysis without deviation. The court disagreed. “While the board cannot take new evidence on remand, nothing in the city’s ordinance requires the board to apply any particular formula or methodology without deviation,” Boland wrote. The court noted that Judge Janavs’s decision amounted to punishment of the mobile home park tenants for the board’s failure to comply with a court order. The Second District threw out the $113 rent increase and sent the matter back to the city’s rent review board for a decision consistent with Judge Janavs’s original order. The Case: , No. B180308, 06 C.D.O.S. 482. Filed January 17, 2006. The Lawyers: For Carson Gardens LLC: Robert Coldren, Hart, King & Coldren (714) 432-8700. For the city: William Wynder, Aleshire & Wynder, (949) 223-1170.

Some people hissed in January when landscape architect Ken Smith won the competition to design the future Orange County Great Park. The 1,347-acre portion of the former Marine Corps Air Station El Toro in south Orange County was a covetable plum if ever there was one. In the world of landscape design, the selection of Smith was an event on the scale of an upset at the Olympic Games. Smith is best known for small parks in New York, particularly a tony rooftop garden in the newly renovated Museum of Modern Art in Manhattan. For the Orange County job, Smith assembled a team of designers, including Mexican architect Enrique Norten, Los Angeles-based landscape designer Mia Lehrer & Associates and artist Mimi Smith. How, then, did this small-time interloper win the El Toro competition over such titans of turf as Laurie Olin, likely the busiest and best-known landscape architect in the country, and Hargreaves Associates, which designed the fine, three-mile-long Guadalupe River Park in San Jose? Even the normally good-natured Christopher Hawthorne, architecture critic of the Los Angeles Times , was snarking about the owlish New Yorker. "Is Ken Smith capable of executing a project of this expense, complexity and sheer size?" he asked, sounding unconvinced. The "more vexing question," Hawthorne went on to write, "frankly, is whether Smith's final scheme will be up to the task strictly from a design point of view." Well, that is the critical question on this and any other design. Still, I think Smith's scheme, as it stands, is an inspired beginning. True, the current plan offers a limited amount of information, and we will not really know how successful it will be until it is built. That said, I think the Great Park has a better-than-even chance of becoming a memorable set of trails, views, habitats and, above all, experiences. One thing that inspires confidence in Smith's park scheme is simplicity. While the site is "flat, featureless and uncomfortable," as the architect told reporters last month, it does have some streams and remnants of wetlands. Out of these vestigial elements, Smith has fashioned essentially three organizing events: a "great canyon" along the east, a wetlands area along the west, and a central area that finds use of the old runways, including a through-road and an aviation museum. The canyon accomplishes the most difficult and important task of all, which is to provide a unifying element that ties the park together. A linear trail along a continuous landscape feature is a simple idea. The exciting part is the way that Smith has enriched this simple idea: Like a natural canyon, the artificial canyon is constantly changing in width, depth and profile. The canyon is a way of relieving the tarmac-like flatness of the former El Toro. Significantly, Smith's drawings show different cross-sections of the canyon at different points. The canyon is a condition in constant change, offering a variety of experiences along the way. The canyon terminates at the south in what the designers call a "lake feature." The wetlands is a little hard to decipher from the map. Wetlands are fragile environments, so I assume that Smith and his team will create wooden boardwalks that stand clear of the spongy soil, or some other way that allows people to go swamp crawling without destroying habitat. I wonder if this proposal excites Orange County residents; if not, it should. I have seen three wetlands parks — one in McGrath State Beach in Ventura County, another in Sherman Oaks at Sepulveda Dam and a third at a natural history museum in Aspen, Colorado — all of which are successful. Much of the interest of a wetlands comes from the life it attracts—the ducks, frogs, pelicans and other fauna that seem to appear from nowhere. The proposed wetlands in the Great Park will be large enough to make visitors feel immersed in the experience. And it could provide habitat of real value to migratory waterfowl, who have been left with very little in Southern California, Bolsa Chica and Playa Vista notwithstanding. The proposal has its share of "programmed" spaces, such as the aviation museum and an amphitheater. It is currently a popular doctrine that parks need programming to attract loads of people, and some park designers, especially in urban settings, can get pretty manic with programming. Here the programming seems kept to a tolerable level—enough to sell the project to people who believe that programming is civic minded and makes the park more attractive to "constituencies." Happily, there are no "exploration" forests or "discovery" gardens to make our children go goggle-eyed. When completed, the Great Park will conclude years of controversy regarding the reuse of the former military base. When the last marine left El Toro in 1999, the official reuse plan called for development of a large, civilian airport. However, leaders of nearby cities, especially Irvine, resisted the proposed airport, and led two successful ballot measures to block the project. Since then, Irvine has taken control of El Toro, designating roughly half of the 4,700-acre site for wildlife habitat, parks and civic uses, including the Great Park. Lennar, a homebuilder, paid $650 million for 3,718 acres, donating about 1,500 acres to the city, including the park land, as a precondition of development. Park construction is scheduled to start this spring, although the park as envisioned may take a while to arrive. Like many other military bases, El Toro sits uneasily on ground steeped in carcinogens and other hazardous materials. The Pentagon plans to spend at least $300 million to clean up the toxic stew. Park development is expected to cost $400 million. Of course, details are everything, and the park must be well-designed at human scale, as well as at the 30,000-foot viewpoint of this site plan. But at least the park has a strong scheme to start with. A strong scheme by itself will not make a great park, but it's far easier to make a great park with a strong scheme than without one. As for the charge of Smith's inexperience, it may be meaningful, or may just be a canard. Mia Lehrer, a consultant on the project, observed that Frederick Olmstead won the job of designing New York's Central Park fairly early in his career, when he had few projects to his name. "The last I heard," she said dryly, "people were still enjoying that park pretty well."

The state Supreme Court has been extraordinarily active in the field of land use during recent weeks. The court has accepted for review an important case involving the environmental impact report for the Cal-Fed Bay-Delta Project. The court also took a case involving redevelopment in the City of Stockton. In addition, the court ordered two recent appellate court land use decisions to be decertified, and the high court dismissed because of new state legislation a State Lands Commission case that was under review. The Cal-Fed case accepted for review is , No. S138975. The case concerns the EIR for the gigantic Cal-Fed project, a 12-year-old state and federal effort to improve the ecological health of the Sacramento-San Joaquin River Delta and provide a more assured urban water supply. Last year, the Third District Court of Appeal ruled that the EIR was inadequate because it failed to identify what water would be used to carry out the program, did not consider a project alternative that included reduced exports of Delta water to Southern California, and failed to provide details of an “environmental water account” (see , November 2005). The decision was a victory for an odd-bedfellows collection of environmentalists and Central Valley farmers. On the opposite end of the decision were other Central Valley farmers and irrigation districts, and urban water providers, including the Metropolitan Water District of Southern California. The decision provoked a great deal of discussion amongst water and California Environmental Quality Act experts, some of whom said that if the massive Cal-Fed EIR was inadequate, then no EIR was safe. One specific concern with the Third District’s decision was the ruling that the EIR’s discussion of project alternatives was inadequate because none of the alternatives contemplated reduced export of water to Southern California. The court said that the EIR did not have to assume that continued population growth in Southern California was a given. That reasoning stunned many observers. An analysis of the Third District decision by Los Angeles law firm Weston, Benshoof, Rochefort, Rubalcava & MacCuish noted, “There are state and local laws that compel cities, counties and local agencies to plan for and accommodate the state’s growing population. Despite these clear legal mandates to meet the needs of a growing population, the court’s requirement to analyze the ‘feasible’ alternative of a purposeful plan to not meet those needs in order to encourage ‘no growth,’ appears to disregard both law and policy. Indeed, compounding this problem, the court’s holding that water agencies should analyze whether such future growth should be accommodated at all seems to utterly confuse the proper role of water and land use agencies.” That argument apparently gained traction at the state Supreme Court, which voted 6-0 (Justice Ming Chin recused himself) to accept the case for review. Opening briefs are due this month. The state’s high court now has two water/EIR cases under review. The other is , No. S132972. In that case, the Third District upheld an EIR’s handling of the water supply for the 22,500-housing unit Sunrise Douglas community plan area (see , April 2005, March 2005). The high court’s decision to review effectively depublished the Third District’s opinion. That means there is not a single published decision upholding an environmental impact report’s water supply analysis, Margaret Moore Sohagi, of Fox & Sohagi, recently noted. In an advisory, Morrison & Foerster said that the Cal-Fed and cases “should be particularly important to all stakeholders in the CEQA process, as it has been many years since the California Supreme Court has considered a CEQA case involving the substantive requirements for environmental impact reports. Also, while there have been a number of Court of Appeal decisions on the application of CEQA to water issues, the Supreme Court has not yet ruled on these important issues.” The other land use case recently accepted by the state Supreme Court, , No. S139237, actually has to do with contract law and the Government Claims Act. The litigation involves a contract that the city signed with a developer, Civic Partners Stockton, LLC, for two downtown redevelopment projects. The city eventually cut Civic Partners out of the redevelopment projects, prompting a breach of contract suit by the developer. The Third District ruled that Civic Partners could not pursue the lawsuit because the developer did not present the city with a claim for damages before filing suit (see , December 2005). The question for the state Supreme Court is whether such a claim is a mandatory prerequisite to litigation. The state Supreme Court declined to review two other land use cases, but the court did decertify the appellate court opinions, meaning they have no value as precedent. In late January, the state Supreme Court decertified the Second District Court of Appeal’s decision in , No. S139913. In that case, the Second District Court of Appeal ruled that the owners of Santa Anita Park horse track did not wait too long to file a lawsuit seeking to correct a property title error (see , January 2006). Shopping mall owner Westfield, which gained title to the 2.3-acre parcel in question by error, is fighting the horse track owners over a development project on the site. In February, the state Supreme Court decertified the Third District’s opinion in , No. S139741. In that case, the court ruled that a Caltrans’ EIR of a proposed Highway 50 interchange to serve a planned Indian casino was inadequate (see , January 2006). The court ruled that Caltrans’ handling of air quality impacts was unacceptable because the agency determined the project would not have a cumulative impact on air quality, but the agency did not reveal what the specific, project-related impacts would be. The decision appeared to throw into doubt Caltrans’ standard approach for studying transportation projects’ air quality impacts. Caltrans officials expressed satisfaction that, although they lost the case, the Third District’s ruling will not set a precedent. The Third District also rejected the EIR on the grounds that Caltrans did not consider a smaller Indian casino as a project alternative. Revisions to the EIR are already in the works. Finally, the state Supreme Court dismissed and remanded to the Third District the case of , No. S134300. In that case, the court blocked a land exchange between the State Lands Commission and the City of Long Beach. The court ruled that the exchange violated the state law permitting a swap of land covered by the tidelands public trust doctrine (see , July 2005). The land in question is three acres that had been tidelands when it was transferred from the state to Long Beach in 1911. The city filled the land during the 1950s. More recently, the site was developed into Pike at Rainbow Harbor, which includes a movie theater, arcade and retail shops. Project opponents argued that public trust tidelands cannot be developed, so the State Lands Commission removed the three acres from the public trust and, in exchange, accepted 10 acres of city-owned land along the Los Angeles River into the public trust. Although such exchanges are fairly routine, the Third District held that the Long Beach swap was not explicitly allowed under state law. The state Supreme Court accepted the case for review. After that, the state Legislature passed SB 365, which rewrote Public Resources Code § 6307 to permit such exchanges. Once the SB 365 changes became effective, the state Supreme Court dropped the case and directed the Third District to reconsider in light of the new law.

A proposed hotel that is consistent with a redevelopment plan, which itself has been the subject of a program environmental impact report, does not require a new environmental study, the Fourth District Court of Appeal has ruled. In a decision regarding a hotel proposed for downtown San Diego, the unanimous three-judge appellate panel ruled that the “fair argument” standard did not apply to a redevelopment agency’s determination that a project’s potential impacts were adequately analyzed by an earlier program EIR. Rather, the “substantial evidence” test applied, and the city provided such evidence, the court held. The decision appears to provide a boost to San Diego’s ongoing downtown revitalization efforts — specifically, the Horton Plaza redevelopment project. In 2002, a group that included Westfield America, Inc., and Horton Land LLC proposed development of a 30-story, 460-room Intercontinental Hotel. The hotel was proposed above a parking garage for Horton Plaza, an open-air mall near the new downtown baseball stadium. The city prepared a “final environmental secondary study” that concluded the hotel project would have significant environmental impacts, including traffic congestion and air pollution. However, the city determined that those impacts had already been analyzed in a “master” EIR adopted in 1992 for downtown redevelopment, and in a 1999 subsequent EIR that covered the baseball stadium and ancillary projects. In November 2002, the city approved the hotel project without additional environmental review. A group called Citizens for Responsible Equitable Environmental Development (CREED) sued the city, its redevelopment agency and the Centre City Development Corporation, a city-controlled entity that carries out downtown redevelopment projects. CREED argued that the city violated the California Environmental Quality Act (CEQA) by approving the hotel without a project-specific EIR. San Diego County Superior Court Judge Linda Quinn ruled for the city. CREED appealed but lost again. The project opponents argued that, under Public Resources Code § 21090 (a section of CEQA), every project undertaken as part of a redevelopment plan must undergo project-level environmental review. The Fourth District, though, read § 21090 differently and ruled that the statute prohibits an agency from requiring project-level environmental review if a project EIR has already been prepared. San Diego’s 1992 EIR, although called a “master” EIR, was actually a program EIR — not a project EIR — and “§ 21090 does not require an agency to prepare an EIR for a project whose environmental impacts have been sufficiently analyzed in a prior program EIR or master EIR,” the court ruled. CREED contended that a fair argument could be made that the project would have substantial environmental impacts. “However,” Justice Cynthia Aaron wrote for the court, “the fair argument standard does not apply to judicial review of any agency’s determination that a project is within the scope of a previously completed EIR. Once an agency has prepared an EIR, its decision not to prepare a supplemental or subsequent EIR for a later project is reviewed under the deferential substantial evidence standard.” Justice Aaron cited , (2003) 114 Cal.App.4th 689 (see , February 2004), in which the court ruled that the more deferential substantial evidence test in these instances “is a reflection of the fact that in-depth review has already occurred.” The project opponents argued that the hotel project was not proposed until after the earlier EIRs were completed. The opponents pointed to a ruling in , (2002) 103 Cal.App.4th 268 (see , December 2002), in which the court ruled that the city could not rely on an earlier program EIR when approving a port expansion project because the program EIR did not address the project’s environmental concerns. The Fourth District, however, ruled that the San Diego case was different because San Diego performed an initial study that concluded the 1992 and 1999 EIRs had adequately examined all of the hotel project’s potentially significant impacts. “To hold that a project specific EIR must be prepared for all activities proposed after the certification of the program EIR, even where the subsequent activity is ‘within the scope of the project described in the program EIR,’ would be directly contrary to one of the essential purposes of program EIRs, i.e., to streamline environmental review of projects within the scope of a previously completed program EIR,” Aaron wrote, citing CEQA Guidelines § 15168, subdivision (c)(5). In fact, the court noted, the earlier EIRs addressed the hotel’s potential impacts, and the redevelopment plan designated the area in question for commercial and office development, with an emphasis on hotels. The Case: Filed November 30, 2005. The Lawyers: For CREED: Cory Briggs, (909) 949-7115. For the city: Heidi Wierman, city attorney’s office, (619) 533-5800. For Horton Land LLC, Jenny Goodman, Sullivan, Wertz, McDade & Wallace, (619) 233-1888

Fontana has broken ground on a large new library that, city officials and library boosters say, could become a building block of downtown revitalization. At 93,000 square feet, the Fontana Library and Resource/Technology Center will be more than four times the size of any existing facility in the San Bernardino County-run library system. Project planners envision the library as a lively place with extensive educational, employment training and cultural offerings. The Fontana library will be a destination, said Patricia Laudisio, a former San Bernardino County library facilities manager who is coordinating the county’s role in the Fontana facility’s development. The library site is adjacent to an outdoor amphitheater and a 1937 art deco movie theater that the city’s redevelopment agency is refurbishing for use as a dinner theater. “What the city is really creating is a civic center for cultural events,” Laudisio said. Fontana is hardly known as a center of culture and literature. The hometown of author Mike Davis, Fontana is better known as the home of Kaiser’s huge — but now closed — steel mills. During the 1990s, part of the old Kaiser plant was redeveloped as California Speedway, which attracts tens of thousands of auto racing fans several times a year. Until recently, Fontana’s downtown was a forgotten land. Route 66, which traversed the core of numerous Southern California cities, bypassed downtown Fontana. Later, Interstate 10 drew the focus even further from downtown while the city became a major player in the shipping and warehousing industry. Recent city councils, however, have decided to reverse the trend and bring downtown back to life. The library is a key part of the downtown redevelopment strategy. City and county officials began planning for a new library during the late 1990s. The existing library was built in 1964, when Fontana’s population was about 20,000. Today, the city has eight times as many residents and continues to grow by 6,000 to 8,000 people annually. “The library that we have is just absolutely inadequate to meet the needs of the community,” said Ray Bragg, the city’s redevelopment and special projects director. The city submitted applications for $20 million in funding from the 2000 state library bond but was turned down twice. In 2004, the city reduced its request, and the state approved a $14.9 million grant, which will provide one-third of the Fontana project’s funding. The city has committed $13 million in redevelopment funds and $2 million in development impact fees to the $45 million project. The final $15.1 million is supposed to come from private contributions, including money from a lawsuit settlement. The city will build, own and maintain the facility, while the county will operate it. Because the state twice rejected the city’s application, officials had a great deal of time to consider the community’s needs, Bragg said. By the time the state awarded funding, the city and county knew what resources and services a new library should offer. Plus, architectural drawings were 90% complete, Bragg noted. “We really paid attention to what the community expected to see,” Laudisio said. “One of their major requests was more computers. We will have about 205 public use computers.” About 25 of those computers will be Spanish language. The library also will have ports for laptop computers and wireless Internet service. The new facility will have a 330-seat auditorium for library events and city functions. Additionally, the library will have a family learning center that features a computer center, literacy programs, a career center and resources for children doing homework. Another 2,000 square feet will be dedicated to children ages 5 and younger. The facility has been designed with many “inviting people spaces,” Laudisio noted. “The two things that really draw people into libraries are that the staff is friendly and cheerful, and that the facility is comfortable and warm,” she said. RNL Design of Los Angeles has based its plans on the mission style, but with modern updates. The main entrance will be via a plaza with a fountain and clock tower. At the other end of the building will be a large rotunda that overlooks Sierra Avenue, downtown Fontana’s main drag. Parking will be subterranean. The library is just south of city hall, adding to a civic center that demonstrates the city’s commitment to downtown, Bragg said. Besides the library, the city is developing a historic plaza. A bungalow from 1910 was moved onto the plaza and the building now serves as a historical society research library. The plaza also features a new memorial rose garden and a relocated stone chapel. Nearby is an old freight depot that is being renovated for use as a coffee bar and art studio. Besides putting money into the library and theater projects, the redevelopment agency also is implementing a façade improvement program along Sierra Avenue. The agency recently secured a façade easement for all buildings along one block. Later this year, the city plans to replace the existing mish-mash of building fronts with architecturally consistent facades, Bragg said. In coming years, the city plans to extend the façade program to at least three more blocks. “We’re trying to make a visual change in downtown, which, hopefully, means people will stop and shop,” Bragg said. It also should mean that people will invest in downtown businesses, he added. “Our ideas are not grandiose and out of scale. We know that Trader Joe’s is never going to come downtown. We know that PF Chang’s is not going to come downtown. We got over it,” Bragg said. Instead, the city would like to see locally owned, small businesses opening downtown. The aesthetic improvements and the new centers of activity are all part of the plan, he said. The city broke ground on the new library in November 2005. A grand opening is scheduled for early 2008. Contacts: Ray Bragg, City of Fontana, (909) 350-7697. Patricia Laudisio, San Bernardino County Library, (909) 350-6588. Project website: http://www.fontanalibrary.org

Proposed alterations to the inside of a private residence are not subject to California Environmental Quality Act review, even if the alterations would affect a historic structure, the First District Court of Appeal has ruled. “What an owner plans to do to the private interior of his or her home does not implicate a significant adverse effect on the environment, which is the predicate for requiring CEQA review by a municipality,” the court held. Under CEQA, the construction or remodeling of a single-family home is exempt from environmental review. However, the question posed in the case was not as black-and-white as might appear on first impression. The building in question is known as the Atkinson House, located in San Francisco’s Russian Hill neighborhood. The house was built in 1853, making it one of the oldest structures in San Francisco. In 1893, famed architect Willis Polk designed an interior remodeling of the Atkinson House that featured his trademark redwood woodwork. San Francisco designated the Atkinson House a “city landmark” in 1977, and the entire Russian Hill neighborhood has been on the National Register of Historic Places since 1988. One factor in the National Register’s listing decision was the Polk-designed redwood interiors in some Russian Hill homes. In 2001, Francis Martin III, who owns the Atkinson House, submitted plans to alter the building’s interior and exterior. The San Francisco Planning Department responded that the interior space contributed to the National Register listing, making the interior part of a historic resource. Thus, alteration would not be categorically exempt from CEQA, the Planning Department advised. The city declined to process the application for interior alterations until Martin submitted an “environmental evaluation application.” Instead, Martin submitted a lawsuit seeking a court declaration that CEQA did not apply to his proposed interior modifications. He also sought a pronouncement that San Francisco had no discretion under § 26 of the San Francisco Business and Tax Regulations Code to deny a permit that complied with local building codes and zoning ordinances. San Francisco Superior Court Judge Peter Busch provided Martin with no relief. When Martin appealed, the city argued that § 26 gave the Planning Department and an appeals board discretion in deciding whether to issue a building permit. Because it was a discretionary project, the city argued, it must review the project under CEQA, particularly considering the historical resources at stake. The First District, however, rejected the city’s arguments and overturned the lower court. “ t is noteworthy that one of the CEQA guidelines, known as the ‘common sense’ exemption, excludes activities ‘covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment,’” San Francisco Superior Court Judge John Munter, sitting on assignment to the First District, wrote for the court. “‘Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.’ This exemption applies even where a local agency has discretion to approve or deny a project.” The general principle is that the construction or modification of one single-family residence is not covered by CEQA, Munter wrote. “A local agency’s discretionary authority cannot negate this exemption.” What matters, he continued, is “whether a project will affect the environment of persons in general.” “That sine qua non of CEQA is missing here; no one not actually inside Martin’s house will have any percipient awareness that interior modifications have been made. A purely intellectual understanding that work by Willis Polk may no longer be within an unobservable part of another person’s private living quarters will not suffice to establish a significant effect on the environment. That what Martin proposes may strike some as cultural vandalism will not bring it within the ambit of CEQA unless there is a physical impact on the environment,” Munter wrote. “Destruction of an irreplaceable antiquity not being savored by the public does not qualify as a significant effect. … In fact, environmentally speaking, it is no change at all.” As to whether the city must issue Martin’s requested permit under § 26, the court declined to rule because the city has made no decision yet on the application. The Case: , No. A107768, 06 C.D.O.S. 45, 2006 DJDAR 120. Filed December 29, 2005. The Lawyers: For Martin: Jonathan Bass, Coblentz, Patch, Duffy & Bass, (415) 391-4800. For San Francisco: Sarah Owsowitz, city attorney’s office, (415) 554-4700.

One of the more startling bits of advice I have heard recently came from a financial planner on television who said: “Don’t marry anyone you wouldn’t want to divorce.” The advice, of course, is to marry only someone who is rational and has the ability to cut a deal, if and when the time comes to part. In urban planning, this advice could be translated as: “Don’t build anything you do not want to tear down.” That statement would perhaps shock developers and architects who believe they are building something of permanent value, just as much as the advice on divorce would shock starry-eyed kids in love. Even so, just as many marriages fail to last forever, real estate development is often a temporary condition — especially in the swirling vortex of cultural change and land-use speculation of present-day California cities. The concept of tearing down buildings has special application to shopping centers, which have the shortest useful life of any type of commercial real estate. Why? To start with, fashions generally change faster than buildings. Supermarkets replace the corner grocer, and the volume discounter replaces supermarkets. In other cases, “anchor” merchants may go out of fashion (remember Montgomery Ward?) and become living fossils long before the lease runs out. And, as in the case of Rancho Cordova, shifting land values can play a role in dooming shopping centers, particularly when the housing market is hot and the value of the underlying land starts to spiral. Cordova City Center, a residential and office complex in the recently incorporated City of Rancho Cordova in Sacramento County, is an example of a moribund shopping center being replaced by a medium-density apartment complex with 208 units. Built primarily during the 1960s and ’70s near the now-closed Mather Air Force Base and huge Aerojet aerospace complex, Rancho Cordova is an archetypal California suburb, with an underdeveloped urban form made up largely of tract housing and endless, ugly retail strips on major corridors. The site of the former retail center is an odd shape that does not lend itself easily to housing, at least the kind of row housing and stacked flats planned by the Lily Co., a Sacramento-based, family-owned apartment developer. On the positive side, the developer and the architects at Notestine Mogavero of Sacramento have 10 acres to work with. Even better, the development is located across the street from a Sacramento light rail station. The location triggers the benefits of the city’s transit-oriented development ordinance, including a waiver for about a third of the parking normally required. About 5% to 15% of future residents are expected to commute to work via transit, mostly to downtown Sacramento, the regional job center. The most refreshing part of the plan for Cordova City Center is the developer’s decision to build a low-rise neighborhood, rather than a monolithic apartment complex. The oddest part of the plan, at least at first glance, are the skewed angles of the individual housing blocks in relation to one other. The buildings look as if they had been laid out originally on a square grid that was subsequently shaken. (I can imagine an architecture student who has been up all night designing an apartment complex, tosses the cardboard model in the back seat and drives hurriedly to school just in time for the design jury, only to realize, when she has arrived, that she forgot to glue the buildings to the board.) In actuality, the askew arrangement is the resolution of a difficult formal problem, to wit: What is the best way to maximize the number of units on an oddly shaped site, while maintaining the rigid straightness of row housing? In a simple but inspired idea, the architects have made a big plus out of the trapezoidal green spaces between the blocks, which now become socially active little green spaces. In more conventional, less conscientious hands, the green spaces could have become hedges or something else equally idiotic. Architect David Mogavero says these little green spaces are a kind of homage to Tony Guzzardo, a landscape architect who planned many of the suburban divisions of the 1960s and ’70s in Northern California. Guzzardo made a point of integrating parks directly into neighborhoods, and, where possible, connecting the parks with green strips. It is the connectivity of those green strips that Mogavero seeks to emulate. In its layout, Cordova City Center reflects the city around it, particularly the heavy traffic on Folsom Boulevard, one of the city’s main commercial streets. The architects locate a commercial building directly on Folsom, which is both contextual and defensive, insofar as the long, horizontal building will screen much of the residential site from the busy arterial street. Apartment buildings lie immediately adjacent, while the streets that border the project area on either side lead to older residential neighborhoods. The city has yet to approve the project, and designers are still bickering with the fire department over on-site turning radii. But there is reason to believe that, beyond wanting to create some desirable density in suburban Rancho Cordova, city officials view Cordova City Center as the first piece of a future town center. “We are hoping to establish a precedent for the rest of the district,” said Mogavero. The project represents “the first time anyone is doing a suburban retrofit project in this city,” he added. For Mogavero, the town center idea offers an interesting artistic challenge of being true to the look of the existing community while introducing some unfamiliar elements. In his formulation, his design represents “three places,” the first being the traditional American street with separated sidewalks, retail on the street and human-scale street lighting. The second is the visual look of the 1970s, which is the “authentic” look for this young city. The third place, Mogavero said, is the future, represented by density, public life and transit. Unlike retail, housing probably has the longest life of any building type. That is one reason why housing can be considered the template for building cities. I don’t know how long Cordova City Center will last, and I don’t want to see it torn down. When it does eventually go the way of all buildings, however, this project will leave order, not awkwardness, in its wake. In the placelessness of suburbia, city building has started.

A locally written plan to preserve habitat for the endangered Sonoma County tiger salamander has been accepted by the U.S. Fish and Wildlife Service in lieu of designating critical habitat. The plan, termed the Santa Rosa Plain conservation strategy, aims to protect 3,400 to 4,200 acres of the salamander's most important remaining habitat — about 25% of the salamander's current range, or 3% to 4% of its historic range. Biologists and environmentalists question the voluntary nature of the conservation strategy and ask why more habitat cannot be preserved in light of the species' protected status. The state's other tiger salamander populations, notably in the Central Valley and Santa Barbara County, which are genetically distinct from those in the Sonoma County population and from each other, are also imperiled, having lost 75% to 99% of their historic ranges. The Santa Rosa Plain strategy "seeks to create a long-term program to mitigate potential adverse effects on listed species due to future development on the Santa Rosa Plain." The plan aims to protect the tiger salamander and four federally endangered plant species. The Fish and Wildlife Service first recognized the need for federal protection of the tiger salamander in 1994 but concluded the agency had neither the time nor the resources to address the matter. As a result of a lawsuit brought by the Environmental Defense Center and others, Fish and Wildlife in 2000 granted the Santa Barbara population segment endangered status. The resolution of a similar lawsuit filed by the Center for Biological Diversity in 2001 granted the Sonoma County population segment endangered status in 2003, and also led to the threatened listing of the Central California population in 2004 (see CP&DR Environment Watch , July 2004). But when Fish and Wildlife finally listed the Central California population segment, the Service also decided to disregard the genetic distinctions between the three segments. The agency also downgraded the status of the Santa Barbara and Sonoma County populations to match that of the Central California population. In August 2005, U.S. District Judge William Alsup vacated the agency's decision, calling it arbitrary and capricious. As a result of the court ruling, the listing status of the Santa Barbara and Sonoma County populations reverted to endangered. The Fish and Wildlife Service then designated 199,109 acres of critical habitat for the tiger salamander throughout the state, but none in Sonoma County. The agency's policy is to not designate critical habitat in areas where the agency finds that a local plan can adequately address the threats to an endangered species, said agency spokesman Al Donner. The agency is confident that the Santa Rosa Plain strategy will adequately achieve the agency's objectives, he said. Usually, the replacement for designated critical habitat comes in the form of locally driven habitat conservation plans (HCPs), which are becoming common throughout the state. The Santa Rosa Plain strategy is not an HCP. Rather, it is an admittedly novel process originally conceived by local developers and municipalities worried that the designation of critical habitat might hinder future development. The strategy was proposed as a way to protect the salamander's most critical habitat and streamline development. "The Service wanted us to start from scratch," said Charles Carson, of the Home Builders Association of Northern California, "And we've come up with a locally developed process that I think has worked out very well." Under the conservation strategy, two acres will be preserved within one of the region's eight proposed conservation areas for every acre of habitat developed within 1.3 miles of known breeding areas – a region that encompasses much of the plain. Five of the salamander conservation areas lie to the west and south of Santa Rosa, and three lie to the west and south/southeast of Cotati. All of the conservation areas lie adjacent to urban growth boundaries, with some portions inside the boundaries. For projects lying within potential salamander habitat, but more than 1.3 miles from known breeding grounds, a mitigation requirement of 0.2:1 will apply. The ratios were developed based on the expectation that the next ten years worth of growth will generate enough credits to achieve the overall conservation goals. The cost of the mitigation is intended to include financial endowments for ongoing land management. However, participation in the program is totally voluntary, an aspect that concerns environmentalists. They also say it is unclear that federal officials have a right to accept the strategy at all. Brendan Cummings, an attorney with the Center for Biological Diversity (CBD), pointed to a case in which his organization defeated an attempt by Fish and Wildlife to substitute local management plans for millions of acres of critical spotted owl habitat in Arizona and New Mexico. In that case ( Center for Biological Diversity v. Norton , 240 F. Supp. 2d, 1090 (2003)) a U.S. District Court judge ruled that other habitat protections are not an acceptable substitute for designating critical habitat. The CBD has also contested in federal court the use of HCPs in lieu of critical habitat to protect California's endangered arroyo toad. Cummings expects that case to be decided in the next couple of months. No suits have yet been filed opposing the Sonoma County plan, and nobody involved thinks that a locally driven process is a bad idea. There are concerns, however. "The strategy addresses the core habitat areas fairly well," said Kassie Siegel, another CBD attorney. "But we have serious concerns about how it will be implemented." The tiger salamander breeds solely in vernal pools, and adults can travel up to 1.3 miles between pools and their homes, which are usually abandoned boroughs in nearby oak woodlands and grasslands. "Adequate protection means protecting continuous stretches of habitat," said Dave Cook, a local water agency employee who wrote his masters thesis on tiger salamanders. "The best science available suggests that, as a rule of thumb, it takes 500 acres or more to ensure the necessary components of tiger salamander habitat." "There is no mechanism in the plan that ensures the preservation of viable preserves" said Cook, a sentiment echoed by Siegel. They are concerned that the resulting pattern of land conservation could resemble a checkerboard. To further protect the tiger salamander, CBD and other environmental groups have sued the California Fish and Game Commission to get the species listed under the California Endangered Species Act. A decision is expected by summer. Contacts: Charles Carson, Home Builders Association of Northern California, (925) 820-7626. Al Donner, U.S. Fish and Wildlife Service, (916) 414-6566. Dave Cook, salamander expert, (707) 591-9727. Kassie Siegel, Center for Biological Diversity, (760) 366-2232. Santa Rosa Plain Conservation Strategy website: www.fws.gov/sacramento/es/santa_rosa_conservation.html

All California governors try to turn into Pat Brown sooner or later, so it’s not surprising that Arnold Schwarzenegger has now done the same. What’s surprising is not that Schwarzenegger is using Pat Brown’s legacy, but that he’s using nearly the same suburban model as Pat Brown did almost a half-century ago. Schwarzenegger’s “Strategic Growth Plan” – his proposal to spend $222 billion on infrastructure construction during the next decade – is clearly meant to be the centerpiece of his political reinvention and the key to his re-election next fall. If he succeeds, Schwarzenegger’s plan will probably be the state’s roadmap for planning and development during the next 20 years, just as Pat Brown’s roadmap for highways, water projects, and higher education was used during the 1960s and ’70s. The stakes couldn’t be higher, because California has long since exceeded what might be called its “design capacity.” The Pat Brown building boom (which really had its roots in the administration of a Republican governor, Earl Warren) set the table for a mostly suburban state of 20 million people – essentially, the California of 1980. Twenty-six years later, California is an increasingly urban state of 37 million people, with a population of 45 million likely by around 2020. The state’s planning apparatus is gradually adapting itself to this new reality, but no new comprehensive vision has ever emerged from the state’s leadership on the scale of the Warren-Brown vision. And now Schwarzenegger has reached back to the Wonder Years to appropriate the Warren-Brown vision of a half-century ago: Freeways. Shiny new school campuses. Levees to protect new subdivisions. In fact, the only indication that it’s 2006, not 1960, is how Schwarzenegger plans to pay for everything. He proposes no tax increases. And while there are a few new fees (especially a fee on water hookups), his proposal mostly suggests rearranging revenues and bonding capacity that already exists. In this sense, Schwarzenegger has not really “gone Democrat.” Instead, he looks a lot like a moderate Republican, which is to say a lot like Pete Wilson. Schwarzenegger has always been close to Wilson, and there is irony in the fact that Wilson’s failed growth management strategy in 1993 was called the “Strategic Growth Plan,” exactly the same moniker Schwarzenegger has chosen for his infrastructure plan. There are three ways to look at Schwarzenegger’s plan: One is the revenue. The second is spending. And the third concerns vision. On the revenue side, Schwarzenegger couldn’t be more Republican. He has not proposed any new taxes, nor has he proposed much “new money” (as they call it in Sacramento). Instead, the $222 billion Strategic Growth Plan involves a lot of rearranging. It is built mostly from capital funds the state will get anyway, along with new bonds that voters would probably face at some point, and some bonding against existing revenue sources (meaning that other spending priorities will be pushed aside). Here’s how it breaks down: • Almost half ($100 billion) consists of revenue that the state and local governments will get anyway to build transportation, education, and flood control projects along with a few other things. This includes federal gas tax and Proposition 42 transportation funds, as well as state school bonds that have already passed and local school bonds that would have to pass in order for local districts to qualify for state matching funds. • About a third ($68 billion) is essentially a pre-emptive proposal on how to expend the state’s bonding capacity over the next decade. State bonds don’t require tax increases; they simply pre-allocate the general fund. And while $68 billion sounds like a lot, in fact the voters passed $35 billion in infrastructure bonds (plus the $15 billion economic recovery bond) from 2000 to 2004 alone. Voters would likely see between $40 billion and $50 billion in new bond proposals over the next decade even without Schwarzenegger’s plan. • The remainder ($53 billion) is advertised as “new funding,” but a lot of it is iffy. The governor includes $9 billion from the presumed passage of local transportation sales taxes and $14 billion in matching funds and mitigation money from the port and freight sector. He also includes $3 billion in GARVEE bonds (bonds against federal funds), and $14 billion in bonding against gas tax and weight fee funds, which is permissible under the state constitution. In each of these cases, the state is bonding against revenue streams that would flow anyway. Then there’s what Schwarzenegger would spend the money on. Here he straddles the middle somewhat more, though still with a rightward tilt. Schwarzenegger suggests throwing a huge amount of money into public education facilities, both K-12 and higher ed. But every governor of California paints himself as “the education governor,” and Schwarzenegger must sop the education constituencies after last year’s viscous campaign over the his pro-business, anti-union initiatives. Most of the rest of the money would be thrown at transportation and flood control – and most of the transportation money would be for highways, not transit or alternative transportation. As far as water and flood control goes, the persistent rumor in Sacramento is that “there’s a Peripheral Canal hidden in there somewhere.” And there’s no money for open space or housing – both of which have been the subject of successful bond campaigns during the last few years. The governor’s approach has alienated housing advocates, who have been living on Proposition 46 funds the last couple of years, as well as open space advocates, who have been planning their own 2006 bond act. All this sets the stage for an interesting legislative debate on Schwarzenegger’s plan over the next few months. On the one hand, you can see how a partisan shootout is shaping up, with the Democrats blocking the governor because he’s not paying attention to transit, affordable housing, and open space. The legislative battle could turn into a grand compromise, or it could degenerate into partisan bickering over the summer, once the Democratic nominee to oppose Schwarzenegger is selected. You can expect more partisan bickering if the nominee is Phil Angelides, who sells bonds as state treasurer, has the backing of the unions, and is a nationally recognized advocate of smart growth. Which brings us to the governor’s vision. At best, Schwarzenegger has recycled Pat Brown’s Wonder Years vision of California’s. That may help drive more funds into infrastructure construction – a worthy outcome in itself – but it’s questionable how much headway such a vision can make against the problems of a rapidly changing and intensely urban state in the 21st Century. More money for highways is fine, but in most urban areas it’s both geographically and politically impossible to expand the freeways. Vast amounts of money for new schools is great too, but there’s hardly anyplace to put them either, unless the governor is willing to lead the charge to rethink what school campuses look like, how they function, and how they interact with the communities around them. It is worth remembering that there is a law on the books that is supposed to guide the California state government’s actions, including infrastructure investment, in a visionary way. That’s AB 857 from 2002, which calls on the state to protect farmland and natural land, promote infill development, and encourage greenfield development to be compact in nature. It’s not a bad set of guiding principles for re-designing California in the future. Of course, it was passed by a Democratic legislature and signed by a Democratic governor, so we haven’t heard about it lately from the administration. But that doesn’t mean AB 857 can’t form the basis for a bipartisan vision of the future – or even a Republican vision for that matter. The of infrastructure investment hasn’t changed in the last half-century – it’s to help elevate people into the middle class. But who those people are has changed, and so have the conditions they are up against. It’s time for a 21st Century vision to go along with the $222 billion plan.

Civic leaders in the Orange County town of Stanton hope that the reuse of a failed commercial strip for medium-density housing and small shops will start a local trend. Developers of the Renaissance Plaza propose 175 townhouses, 25 live-work units and about 18,000 square feet of commercial space on approximately 12 acres. Although the first phase of the two-phase project is not scheduled to break ground until this spring, city officials believe Renaissance Plaza may quickly become a model for development elsewhere in Stanton. “Stanton has always struggled with its identity. It’s a place people pass through on their way to Disneyland or somewhere else,” said Wendy Grant of The Planning Center, which helped prepare a specific plan for the 14.9-acre site on Beach Boulevard. The plan is intended to help provide suburban Stanton with an identity, and to provide something of a downtown gathering site, which the community now lacks. Unlike many of its neighbors in northern Orange County, Stanton, a city of 40,000 people on only 3.2 square miles, has no downtown of any sort. In fact, while other cities in the area have been revitalizing old downtowns, building new ones and generally riding the real estate wave, Stanton has remained frozen in time. The real estate boom that began during the late 1990s largely passed over Stanton, conceded Steven Harris, the city’s community development director. Now, with many of northern Orange County’s “easy” infill sites spoken for, and with real estate prices continuing to rise, Stanton is getting a fresh look. Stanton’s predominant feature may be Beach Boulevard, a six-lane arterial that actually is a state highway. Every day, Beach Boulevard carries about 55,000 vehicles, many of them making their way quickly through Stanton. Commercial strips line most of the high-speed boulevard. Stanton Plaza is one of those strips, but the center and neighboring commercial strips have underperformed for years, Harris said. In hopes of revitalizing that stretch of Beach Boulevard, the city in 2002 adopted a specific plan that called for improving the aesthetics of existing commercial buildings and developing commercial infill. However, the multiple property owners could not agree on what to do, the city’s staff turned over and, as a result, nothing happened. When Harris came aboard in 2003, he urged a fresh look. That was fine with Brandywine Homes, an Irvine-based infill developer that said the site was prime for housing development, not new commercial projects. “I had my eye on that property for about seven years, and it took me about five years to tie it up,” said Brandywine President Brett Whitehead. “This is kind of our niche — the older parts of Orange County that people have overlooked.” Recognizing that the 2002 specific plan would not work, The Planning Center, the city and Brandywine went to work on a new plan. The city did what it could to gather public input, but Stanton’s residents are not engaged in land use planning. In early 2005, the city adopted a mixed-use specific plan that permits between 200 and 300 housing units and up to 35,000 square feet of commercial uses. The plan also contains extensive design criteria. Last fall, the California Chapter of the American Planning Association gave the new Stanton Plaza specific plan a small jurisdiction planning award. The specific plan envisions something of a small, self-contained district. The plan calls for new internal streets that serve residents of the new housing units while being friendly to pedestrians and bicyclists. There also will be a new link to an existing mobile home park, permitting those residents to walk to new shops in the specific plan area. Beach Boulevard will not be the focal point. “We wanted to create this little main street area off Beach Boulevard,” Harris explained. The specific plan is more ambitious that Brandywine’s initial idea, which was a three-acre residential project. But Whitehead said he is pleased with how the project has evolved. Brandywine has acquired 10.5 acres, and the city’s redevelopment authority is negotiating to get another 1.5 acres for Brandywine’s project. A second property owner hopes to pursue a mixed-use development on a 2.9-acre plot (known as Area D in the plan) just north of Renaissance Plaza. The city has approved tract maps for the 100 townhouses and six live-work units in the first phase of Renaissance Plaza. Under the specific plan, the city’s community development director has authority to provide site plan and design review approval so long as the project complies the specific plan. The idea behind that streamlined administrative process was to motivate developers to abide by the specific plan, Grant said. The city Planning Commission has been involved through study sessions, she added. Another streamlining measure concerns environmental review. The city certified an environmental impact report for the specific plan. As long as development proposals comply with the specific plan and cumulative traffic from the specific plan area remains at less than an average of 6,500 vehicle trips per day, the city plans to require no additional environmental review. The 6,500 average daily trips (ADT) figure was derived from the 70,000 square feet of commercial space that was on the specific plan site. That amount of commercial space would typically generate 6,500 ADT, Harris said. As long as the new development stays below that traffic threshold, there is no traffic or air quality impact, and no mandate to prepare a congestion management plan, he said. With its first phase entitlements in hand, Brandywine intends to complete building demolition this month. New housing units could be open by the end of the year, Whitehead said. Renaissance Plaza is Brandywine’s first mixed-use project (Whitehead calls it “multi-use”) but more could follow. People want to be in the center of activity, Whitehead said. “There’s a lack of new homes in the older parts Orange County, especially at an affordable price — if you call $400,000 to $500,000 affordable,” he added. Grant said Stanton Plaza could be a catalyst for more small-scale, mixed-use, reuse projects. “This has been that stepping-off point for the city,” she said. “It’s a major corridor, and it’s always been commercial. Now, the city is thinking about how best to use it. Strip centers are not an efficient use of land.” The city already is eyeing development of a 10-acre site farther north on Beach Boulevard that now has a kiddie fun park known as Hobby City. The park’s owners want out after 50 years in business, and the site would be ideal to replicate some of the mixed-use concepts in the Stanton Plaza specific plan, Harris said. “We’ve had a lot of people come in and talk about Beach Boulevard and high-density. And that’s what we want to see,” Harris said. Additionally, the city recently received a $200,000 grant from the Orange County Council of Governments to plan for a transit-oriented development around a potential transit station. When transit does come — there is no firm plan yet — the city will be ready, Harris said. Contacts: Steven Harris, City of Stanton, (714) 379-9222. Wendy Grant, The Planning Center, (714) 966-9220. Brett Whitehead, Brandywine Homes, (949) 296-2400.

Two reforms of state redevelopment law — both carried by Assemblyman Gene Mullin (D-South San Francisco) — advanced at the Capitol during January. The Assembly voted 72-0 for AB 782, which removes antiquated subdivisions as a basis for establishing a redevelopment project area. Also, two Assembly committees passed AB 773, which increases in smaller jurisdictions the time available to qualify a referendum of a redevelopment ordinance. Mullin is a former member of the South San Francisco City Council. The antiquated subdivision bill would eliminate redevelopment agencies’ ability to base project areas on the existence of lots of “irregular form and shape” and “inadequate size for proper usefulness.” Instead, under AB 782, an agency would have to make the usual findings that an area is blighted physically and economically, and is predominately urbanized. Attention has focused on the antiquated subdivision provision of redevelopment law ever since California City a few years ago expanded a redevelopment project area across 15,000 acres of empty desert because of parcel size and lack of infrastructure (see , May 2004). Legislation regarding referendums emerged from recent hearings regarding redevelopment and eminent domain (see , December 2005). Redevelopment opponents said that 30 days — the current time permitted — was not long enough to gather signatures to force an election on redevelopment ordinances. Jurisdictions larger than 500,000 people already provide 90 days to submit referendum petitions on redevelopment ordinances; AB 773 would make the 90-day rule uniform. The bill appears likely to pass the Assembly. While lawmakers approved the two measures by Democrat Mullin, a bill by Republican state Sen, Dennis Hollingsworth of Murrieta went nowhere. His SB 1099 would limit instances in which agricultural property may be taken by eminent domain. The bill failed in the Senate Judiciary Committee. Many more bills regarding redevelopment and eminent domain are alive in the Legislature. Loma Linda voters will make multiple growth decisions in June. The City Council in the small city near San Bernardino placed separate referendums regarding the University Village and Orchard Park projects on the June ballot. The projects, which are next to one another between Redlands Boulevard and Mission Road, would bring 2,400 housing units and 1 million square feet of commercial development to 300 acres (see , December 2005). Additionally, backers of an initiative that aims to limit development on hundreds of acres in the South Hills appear to have enough signatures to make on the June ballot. Monterey County voters again will decide on proposed development at Rancho San Juan, a stretch of unincorporated farmland and hillsides just north of Salinas. Opponents of the 1,147-unit Butterfly Village project qualified a referendum for the June ballot. Last November, county voters overwhelmingly rejected a specific plan allowing for 4,000 housing units and extensive commercial development on the 2,500-acre Rancho San Juan. Included in the specific plan was the Butterfly Village project. However, the day before the November election, the Board of Supervisors approved amendments providing only for Butterfly Village development. Those changes are the subject of the latest referendum. A revised study of water availability for the 2,300-unit West Creek project in unincorporated Santa Clarita has passed muster in Superior Court. Three years ago, an appellate court rejected an environmental impact report for Newhall Land and Farming’s project because the EIR’s water analysis relied too heavily on deliveries from the State Water Project (see , December 2005, April 2003). Los Angeles County adopted a revised EIR in 2005 and again approved West Creek. Project opponents sued a second time, but Santa Barbara County Superior Court Judge James Brown upheld the new environmental study. A different Santa Barbara County judge had upheld the first EIR, a decision overturned on appeal. Another appeal appears likely. The City of Stockton has settled a lawsuit filed by the Sierra Club over the city’s 5,600-acre sphere of influence expansion north and west of Stockton’s current boundaries. The city agreed to levy a fee of $3,250 for every acre of farmland that is developed in the new growth area. Fee revenue will fund conservation easements. The settlement approved by the Stockton City Council in January marks the third such settlement of Sierra Club litigation. Developers in Manteca, Tracy and Lathrop also will have to pay farmland preservation fees. In Stockton, the City Council further agreed to decide within six months on a citywide farmland preservation fee. Grupe Co. President Kevin Huber told the that the Sierra Club’s lawsuit was “litigation terrorism to exact money from developers.” Grupe plans to build 7,000 housing units on about 1,800 acres in Stockton’s new sphere of influence area. Marin County’s losing streak regarding the proposed rebuilding of death row at San Quentin continued in January, when a Marin County Superior Court judge rejected the county’s lawsuit challenging the EIR for the project. The county had argued that the state Department of Corrections had failed to consider alternative sites. Last year, the county lost a lawsuit that contended Corrections needed the Legislature’s approval to change the size of death row. Marin County officials would like to see the 432-acre, bay front site of the prison redeveloped for use as a transit hub, housing and parks.

The Ninth U.S. Circuit Court of Appeals has dealt another blow to housing developers who sued the City of Fresno, an individual city councilman and twelve citizens because the city refused to approve tax-exempt bonds for an apartment project. Not only did the Ninth Circuit upheld verdicts by a jury and District Court Judge Oliver Wanger, the appellate panels also awarded attorney fees for the trial and appeal to the citizens. Considering that the litigation originated in 1997, those fees could be considerable. The dispute centers on a 324-unit low-rent housing project called Wellington Place and proposed by Affordable Housing Development Corporation (AHDC) near Herndon and Polk avenues. AHDC made various arrangements to move forward on the project on the assumption that $30 million in tax-exempt bonds would provide the ultimate financing. However, the Tax Equity and Fiscal Responsibility Act, 26 U.S.C. § 147(f) (TEFRA), requires the local government to approve such “private activity bonds.” After an outpouring of opposition to the project from area residents, the Fresno City Council voted 5-2 in March 1997 to deny the bonds. The council cited the project’s potential impact on existing single-family homes and questioned the need for more rental units. AHDC then sued, claiming it suffered $9 million in damages. Essentially, AHDC contended that the city, then-Councilman Chris Mathys (who led the opposition) and the citizens violated fair housing and non-discrimination laws. Judge Wanger issued summary judgment for the citizens. A jury found in favor of Mathys but produced a mixed verdict for the city. Wanger later entered judgment for the city, finding that AHDC had failed to persuade the jury that discrimination caused AHDC any damages. The judge, however, declined to award attorney fees to the winning parties. All parties appealed. In its relatively short decision, the Ninth Circuit made clear that it had no patience for AHDC’s arguments. The court ruled that Mathys’s activities organizing the opposition were protected by legislative immunity and by the doctrine, which upholds free speech rights when petitioning the government. “Mathys made and distributed flyers encouraging his constituents to oppose the Wellington Place project. He urged the executive director of the Fresno Housing Authority to oppose it. He organized a neighborhood meeting in opposition,” Justice John Noonan wrote for the three-judge Ninth Circuit panel. “As the district court found, no evidence was presented that Mathys intimidated anyone or threatened violence to anyone. His activities amounted to petitioning the city council. The activities were protected by the right to petition the government for redress of grievances, and by a government official’s right to seek to affect governmental action.” The court dealt in some detail with AHDC’s argument that the decision was discriminatory because it disproportionately impacted minorities and families with children, in violation of the Fair Housing Act. But the court ruled that the statutory scheme did not impose automatic liability. “We hold only in this case of first impression under TEFRA that if an elected representative authority declines to approve TEFRA housing bonds for a legitimate non-discriminatory reason, the defense is good,” Noonan wrote. “A decision motivated by hostility to race, ethnicity or family size would have been illegal under California law. The jury found that the city’s decision was not so motivated.” The court then reached the issue of attorneys fees. Here, the court made its thoughts clear. Because AHDC alleged that the citizens violated California’s Bane Civil Right Act, the defendants could have been liable for treble damages, or $27 million. “A lawsuit seeking this sort of damages against each citizen casts a cloud over his or her credit,” Noonan wrote. “As AHDC could not have expected to recover these amounts from the citizens, the inference may be drawn that the claims against the citizens were advanced , to scare off anyone who would resist AHDC’s demands on local government. That inference is strengthened by the testimony of Michael Schulte of AHDC as to how the individual defendants were selected: ‘the number of times essentially that the person protested.’” The citizens were exercising their First Amendment rights, and those rights supercede the fair housing law, the court noted, pointing to , 227 F.3d 1214 (see , November 2000). In , the Ninth Circuit held Department of Housing and Urban Development officials liable for damages for chilling the free speech rights of three citizens who opposed a housing development for disabled and homeless people in Berkeley in 1992. “What was true as to the lawless actions of federal officials in 1992 is equally true of the attack launched by AHDC on the constitutional rights of the citizens of Fresno in 1997,” the court ruled. The Case: , No. 04-15625, 06 C.D.O.S. 283, 2006 DJDAR 455. Filed January 11, 2006. The Lawyers: For AHDC: William J. Davis, (213) 253-5939. For the city: Douglas Sloan, Dowling, Aaron & Keeler, (559) 432-4500. For Chris Mathys: Nancy Jenner, McCormack, Kabot, Jenner & Watson, (559) 734-6729. For 11 citizens: Howard Sagaser, Sagaser, Franson & Jones, (559) 233-4800.