A federal court has ruled that San Diego's adult business zoning ordinance violated the First Amendment because the city did not prove that there are enough sites available for adult businesses. The Ninth U.S. Circuit Court of Appeals ruled that the city's 1,000-foot buffer requirements are constitutional and that the city can treat adult businesses differently from other commercial operations. The city lost the case because it did not show that it provided "reasonable alternative avenues of communication." The controversy started in 1997, when George Isbell Jr. purchased a building with the intention of providing adult entertainment. San Diego's zoning requires 1,000-foot buffers between adult businesses and residential zones, churches, schools, public parks and other adult businesses. Isbell's building was 900 feet from a residential zone. He applied for a variance, arguing that the freeway separating his property from homes would dissipate any secondary effects. The city denied the variance, so Isbell, claiming that the city's ordinance violated the First Amendment and that the city's standards for variances violated the equal protection clause. Southern California District Court Judge Irma Gonzalez ruled for the city. The Ninth Circuit overturned a key portion of Gonzalez's decision. A zoning ordinance that requires separation of adult businesses was upheld by the U.S. Supreme Court in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) and has been upheld recently by the Ninth Circuit (see CP&DR Legal Digest, August 2000). The U.S. Supreme Court has further ruled that dispersal ordinances intended to control secondary effects of adult establishments, such as prostitution, are constitutional so long as they are "designed to serve a substantial government interest and allow for reasonable alternative avenues of communication." City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). In court, the city presented a list of 110 parcels totaling 92 acres where adult businesses could be located. Isbell argued that many of the sites were not economically suited to his business, so there were only three locations actually available. The court disagreed with both sides. The commercial feasibility of a site is not a factor, the court ruled, striking down Isbell's contention. The issue is whether a site is part of the actual real estate market for commercial enterprises in general. More importantly, the court ruled that the city's list of sites ignored the requirement for a 1,000-foot separation between adult businesses. "There is no question that, when this separation is taken into account, far fewer than 110 adult businesses could operate at the City-identified sites," Judge William Canby wrote. Because of the city's oversight, the court assumed that the city has 45 sites - the number of existing adult businesses in San Diego. Because there are 45 existing businesses and demand for at least one more - Isbell's application - the city does not have adequate sites for adult businesses, the court held. The city should have conducted a comprehensive analysis of the theoretically available acreage, the number of sites in relation to the city's population, community needs and the incidence of adult businesses in comparable towns, the court ruled. The court did not go so far as to strike down the 1,000-foot rule. The ordinance serves a substantial government interest - so long as adequate sites remain available, the court ruled. And the court ruled that the city's rejection of Isbell's variance application did not violate his equal protection rights. The Ninth Circuit returned the case to the district court for further proceedings. The Case: George Isbell Jr. v. City of San Diego, No. 99-55591, 01 C.D.O.S. 6436, 2001 DJDAR 7923. Filed July 31, 2001. The Lawyers: For Isbell, John Barriage, (858) 874-7692. For the city: Carra Lassman, deputy city attorney, (619) 533-5800.

The state Department of Conservation has sued the City of Elk Grove for approving a 295-acre commercial development on farmland at the edge of town. The year-old city approved the 3 million-square-foot Lent Ranch Marketplace project in late June. One month later, three environmental groups, including the Environmental Council of Sacramento, filed a lawsuit claiming that the city did not mitigate the loss of farmland and failed to address the safety of building a massive retail project near two large propone storage tanks. The Sacramento Bee reported that Westfield Corporation, an Australian shopping center developer that owns the Downtown Plaza in Sacramento, bankrolled the lawsuit. The state filed a lawsuit based on similar concerns in early August. State officials called the project "leapfrog development" that would encourage further urbanization of area farmland. Gov. Davis has signed a bill that limits the use of Marks Roos bonds. The bill, AB 457 (Canciamilla), requires that the local government entity with land use jurisdiction over a project must be part of any Marks Roos bond issue. The bill effectively outlaws the creation of "roving" joint powers authorities. Lawmakers have tried to block roving JPAs for several years, but developers took to creating mutual water companies for their projects. These water companies then joined with cities or other public agencies—often hundreds of miles away—to issue Marks Roos bonds to fund project infrastructure. However, as some developments failed, bonds have gone into default. In 1999, Davis vetoed AB 1511 (Flores) that would have barred mutual water companies from participating in roving JPAs. The Presidio Trust released a draft implementation plan and associated environmental impact statement for the 1,450-acre San Francisco park in late July. The plan focuses new development in the former Army base's northeast corner, near the Palace of Fine Arts and recently restored Crissy Field. The plan limits total structural space to 5.6 million square feet. The Presidio now has about 6 million square feet of structures; some of those buildings will be razed and others remodeled (see CP&DR Local Watch, March 2001). Environmentalists, civic leaders and neighborhood representatives quickly criticized the plan as one that would generate too many visitors and employees, harming the natural resources and congesting streets. Some people also said the plan lacked adequate detail. Less than a month after the plan's release, the Presidio Trust signed an agreement with moviemaker George Lukas's Lucasfilm Ltd. to allow the company to develop a 23-acre office and movie production campus at the site of an abandoned hospital and annex. About 2,500 workers are forecast at the 900,000 square-foot-Lucasfilm campus, which Presidio Trust officials see as the park's financial backbone. The Presidio Trust Implementation Plan and the draft EIS are available at http://www.presidiotrust.gov/ptip . A person may not serve simultaneously on a school board and a city planning commission if boundaries for the school district and the city overlap, according to a state attorney general's opinion. National City Prosecuting Attorney George Eiser III said he raised the question when a local school board member applied for a planning commission appointment. Deputy Attorney General Gregory Gonot said that public offices are incompatible if there is a "clash of duties or loyalties." Such would be the case here. "What the school district considers to be in the best interests of the public with respect to its land use decisions may differ from that of the planning commission in its determination of whether the decisions are consistent with the city's general plan," Gonot wrote. Opinion No. 01-307 is available at http://caag.state.ca.us/opinions/published/01jul.htm . Fresno County and the cities of Fresno and Clovis in August approved a conceptual agreement that redirects urban growth in metropolitan Fresno. The pact provides the two cities with about 18,000 acres for urban expansion during the next two decades, with growth occurring in the cities' southeast ends before northward expansion could resume. For decades, both cities have marched north toward Madera County. The agreement ends several years of bickering and threatened litigation. Under the pact, both cities will share sales tax revenue from new growth areas with the county. The agreement appears to allow Clovis to pursue its 1993 general plan, which focuses growth in two urban centers in the southeast as the town of 68,000 doubles in population during the next 20 years. The agreement also roughly matches Fresno's proposed general plan, which emphasizes infill development, downtown redevelopment and higher densities as the city grows to nearly 800,000 people by 2025. (See CP&DR Local Watch, September 2000). Two water contracting coalitions and several individual water agencies have filed a lawsuit over East Bay Municipal Utility District's plan to divert water from the Sacramento River just south of Sacramento. East Bay MUD, the City of Sacramento and Sacramento County worked out the agreement less than a year ago after fighting for three decades over East Bay MUD's plan to take water from the American River. U.S. Sen. Dianne Feinstein and many environmentalists hailed the agreement. It would allow East Bay MUD to take up to 133,000-acre-feet of water from the Sacramento River during dry years, leaving the American River untouched. But in their lawsuit, other water agencies that rely on the Sacramento River and the Bay Delta argue that the diversion could decrease the amount of water available for farms and cities outside East Bay MUD, and could raise the salinity level of Delta water. The suit claims East Bay MUD and the U.S. Bureau of Reclamation did not prepare an adequate environmental impact report. Representatives of East Bay MUD said the suit was premature because a supplemental EIR is in the works. The suit was filed by the 32-agency San Luis and Delta Mendota Water Authority, the 27-member State Water Contractors, the Contra Costa Water District, Santa Clara Valley Water District, Kern County Water Agency and Westlands Water District. The Bay Area Discovery Museum has indefinitely postponed the groundbreaking of its planned expansion because of a lawsuit filed by the City of Sausalito. Although no injunction is in place, museum leaders said they did not want to move forward during litigation. The 10-year-old museum is located at Fort Baker, on the edge of San Francisco Bay just north of the Golden Gate Bridge. The expansion calls for 12,500 square feet of classrooms and a theater, plus a 2 1/2-acre outdoor exhibit about the Bay's environment. The city contends that the project amounts to unnecessary commercialization of Fort Baker, whose historic sites should be restored. The Sacramento Local Agency Formation Commission has determined that incorporation of Rancho Cordova is "marginally feasible." The study suggests the proposed city along Highway 50 east of Sacramento would have to impose additional taxes. The Rancho Cordova Incorporation Committee said the study confirmed that the community could make it on its own and discounted the need for higher taxes. County officials said the study did not account for the full impacts on the area if Rancho Cordova were to become Sacramento County's seventh city. Incorporation backers hope to place the issue before voters in March. Voters in Moreno Valley rejected a proposed $20 annual parcel tax to fund construction of a new library. Only 9.5% of registered voters in the Riverside County town of 142,000 people participated in the July 31 special election, according to the City Clerk's office. Thus, only 2,541 votes (55.6% of those cast) were enough to defeat the assessment. A San Francisco ballot measure that bars landlords from passing along the cost of capital improvements to tenants has been invalidated by San Francisco Superior Court Judge James Robertson Jr. The judge said that Proposition H, approved by voters in November 2000, violated landlords' rights to a fair return on their investments. The City of Sacramento, Union Pacific Railroad and the owners of the Sacramento Kings will jointly fund a $150,000 feasibility study of a basketball arena and entertainment center on an old rail yard next to downtown. The Kings currently play in Arco Arena, which was built 15 years ago in part to spur development in North Natomas, several miles north of downtown.

Much of the history of architecture consists of architects making copies of notable buildings, and planners making copies of town plans, all while altering the originals to fit the situation at hand. Thus, Roman temples become Midwestern banks, the Palladian villas of Vicenza, Italy, become the Colonial buildings of the Eastern Seaboard, and a French monastery designed by Le Corbusier becomes the Sunkist building in the San Fernando Valley. It goes without saying, perhaps, that the copy is not always an improvement on the original. A particularly striking example of architectural transformation — and one in which something is definitely gained — is Sailhouse, a 90-unit residential infill project in Corona del Mar, an upscale neighborhood in the Orange County city of Newport Beach. The developer is John Laing Homes. The acknowledged basis of this design is the well-known Rosemary Beach, a residential community in the Florida panhandle designed by Andres Duany and Elizabeth Plater-Zyberk. Far from a literal copy of Rosemary Beach, architect Mark Scheurer of Scheurer Arhcitects actually borrowed only the basic arrangement of the block: the fronts of the homes face a pedestrians-only walkway, while the houses back onto a service alley for parking, deliveries and trash collection (although the architects are quick to point out that they designed the alleys to be usable open space, as well). The architects also borrowed the St. Augustine style of housing found at Rosemary Beach, which consists of updated versions of the historic, 17th century stucco houses built by Spanish settlers, which were later taken over and enlarged with wooden second stories by English settlers. What is notable, however, is what the designers did not borrow from Duany and Plater-Zyberk. They did not borrow, fortunately, the convoluted street plan of Rosemary Beach, which was designed to keep through-traffic out of quiet residential streets, many of which end in archetypally suburban cul-de-sacs. (There is little that is traditional in this plan formulated by the self-proclaimed inventors of Traditional Neighborhood Design, but let it pass.) Unlike Rosemary Beach, which is "leapfrog" development, the Corona del Mar project is essentially urban infill, in which the short streets in the northern (upper) portion of the plan line up with the existing pattern of surrounding residential streets. The short streets consist of small-lot, single-family homes, while the larger units on the curving, east-west street are triplexes designed to look like single-family dwellings. Sailhouse, therefore, gets better marks in both urban design and sustainability than Rosemary Beach. Beyond those elements in the Floridian project that Sailhouse did not include, the project introduces its own new ideas, which actually make it quite different from the Duany original: Unlike Rosemary Beach, where the housing stands at street level, the houses at Sailhouse sit atop eight-foot "podiums." The decision to elevate the housing partly reflected both the land economics of this small-lot site plan, and partly the developer's desire to preserve the views of homeowners on a sloping site. In essence, the developer and the architect have created a two-level way of life, with housing (and much of domestic life) on elevated pedestrian "paseos" while cars and garages trash at street level, eight feet lower than the paseos. In this transformation, the pedestrian paseo, which was already a pleasant pubic space, becomes something like a linear courtyard, where children can move freely without fear of wandering into traffic. As in Rosemary Beach, each of the single-family streets ends in a cul-de-sac. The difference at Sailhouse, however, is that the cul-de-sac is designed as a small courtyard or outdoor room. (Each of these courtyards, block after block, has a unique design.) It is easy to imagine block parties, with a barbecue in one yard and an inflatable swimming pool in another. With their front yards and living rooms facing the paseo, people can expand the square-footage of the party simply by opening their front gate, which makes the front yard temporarily into a public space. Or they can maintain privacy by keeping the front yard gate closed. Sailhouse is not gated, and visitors can climb a set of stairs to enter the elevated blocks freely, which is desirable. (If the same scheme were to be built in a more urban area, conceivably a key-card system or some other type of security arrangement could protect the housing, even if such a scheme would involve a loss of sociability.) The alleys are also cul-de-sacs. Because they are narrow and blocked at the end turning around a vehicle is difficult, unless you can head the car into an open garage first. This is a smart security measure, but it probably complicates deliveries and trash collection; those vehicles are obliged to back out the full length of the block. My concerns about Sailhouse primarily regard the elevation of the housing. The question here, and I do not think it is entirely academic, is whether this is the best possible urbanism. A narrow, didactic type of theorist might hold that removing housing, and, hence, some pedestrian activity from the street, subtracts from the vitality of the street. I wonder if the streets might not feel a little lonely when residents lack the ability to glance over a fence to see somebody watering their lawn, scolding their husband or carrying papers to the trash. For better or for worse, however, if we try to alter the scheme, we lose its advantages. We could lower the elevated courtyard until it was only a few feet above the sidewalk, and hence more "transparent" to passers-by, but then the parking would have to be undergrounded, and the street-level front facades of the housing would become a row of ugly tunnels leading into subterranean darkness. And, although the paseos encourage walking, I wonder how pedestrian-friendly the streets will be. Maybe the presence of shopping one block away from Sailhouse will encourage people to walk and bicycle on the public streets. Those questions aside, Sailhouse is an example of a designer choosing a good model and actually improving it. The project is the most recent example of the reinvention of courtyard housing in the name of density. As an urban housing type, the elevated paseo is an example worthy of further study and experimentation.

The Port of Oakland is scheduled to begin work late this month on a $260 million dredging project that will expand the port's capabilities and cement the facility's position as the cargo shipping center for Northern California. The project is only one of many the port district is pursuing that could eventually bring more than 10,000 industrial, retail, service and white-collar jobs to Oakland. A new intermodal terminal is set to open this fall, providing much improved rail access to ships. The port district is also scheduled this month to select a developer for 60 acres of waterfront along the Oakland Estuary. Two heavyweight developers submitted proposals for mixed-use projects along the water. Additional commercial development of the Port District's Jack London Square is also in the planning stages. The projects are part of the transformation of Oakland's waterfront. While San Francisco's waterfront is a mix of industry, offices, tourist-oriented retail offerings and public parks, Oakland's waterfront is dominated by industry. The Port of Oakland handles about 98% of goods shipped into and out of the Bay Area. But the port district also owns about 600 acres east of the port itself that many people believe could be key to the city's economic future. Two years ago, the port district adopted an Estuary Plan for its holdings along the estuary that separates Oakland and Alameda. The area now contains offices, restaurants and shops at Jack London Square, numerous industrial users, and a mix of artists lofts, warehouses and other businesses. The plan reinforces Jack London Square's orientation as a regional attraction and community gathering place, and it protects many industrial uses. But it also calls for extensive mixed-use development and a string of parks connected by bikeways � all of which is intended to connect the waterfront and downtown Oakland, which are separated by the I-880 Freeway. The port's Board of Directors took a step toward implementing the Estuary Plan in April when it voted to work with a private partnership (composed of Cargill and local developers Ellis Partners and James Falaschi) on further development of Jack London Square. The port and the private developers continue to negotiate but are close to reaching an agreement, said Steve Hanson, the port's project manager for Jack London Square. The project will replace surface parking lots, a failing mall that has already been demolished, and vacant lots with 300,000 square feet of offices, 90,000 square feet of retail shops and a 250-room hotel. Although Jack London Square gets a reported 6 million visitors a year, the knock is that it has no real connection to the water. The Jack London Square Phase II project aims to change that. "We intend to create a project that will enhance public access to the waterfront, pedestrian uses, alternative transit and expand neighborhood, city and regional-serving retail," said Hal Ellis, one of the partners in the $200 million development. "It will enhance Jack London Square," added the port's Hanson. "We don't think Jack London Square has the density that it really needs. There's just not enough retail synergy." Farther east lies 60 acres where the Estuary Plan envisions extensive mixed-use development along the Embarcadero. Two teams have submitted proposals for the "Oak-to-Ninth District," and the port's Board of Directors could select a developer as early as this month. Shorenstein Co. and Interland Corp. submitted one proposal to the port district, while a partnership of Signature Properties and Reynolds & Brown submitted a competing plan. The four companies are among the Bay Area's biggest developers, demonstrating the site's potential. The Signature/Reynolds & Brown proposal calls for low- and mid-rise development. It emphasizes condominium development and a large retail complex similar to Seattle's Pike Place Market. The Shorenstein/Interland plan contains a tower of up to 24 stories. There would be extensive office space, public plazas and links to the Lake Merritt district next to downtown. "We feel we can create a famous destination address," said Richard Reisman, an Interland vice president. Shorenstein/Interland propose realigning the Embarcadero so that it matches the rest of the Oakland street grid and does not feel like an isolated loop, Reisman said. That helps tie the project to the rest of town, he said. "So many cities have brought themselves up by their bootstraps by revitalization of their waterfront, and then extending that revitalization further into town," Reisman said. Oakland waterfront activist Sandra Threlfall said the port district appears to be on the right track. She said the ideal development along the waterfront would phase from industrial at one end, to commercial, to mixed-use, to residential, to nonprofit facilities, to parks. Threlfall, who chairs the Waterfront Coalition, a collection of environmental and civic groups, said she had no confidence the port district would do the right thing for the community when she became active seven years ago. "I am very confident in the port today, and I believe they have come an incredible distance in seven years," Threlfall said. Threlfall said developers should build a waterfront that serves locals first. A thriving waterfront district that matches the community will naturally draw tourists, she argued. And she cautioned against glitzy buildings. "Let's not try to compete with San Francisco. We are our own place," Threlfall said. How exactly the port district's development plans jibe with the City of Oakland's view of the waterfront is uncertain. Mayor Jerry Brown has spoken about increasing public access to the waterfront. The port has allowed the city to extend its land use jurisdiction to the waterfront, so projects on port property will need city approval. There is a potential for conflict over tax revenue from some port district properties that lie within a city redevelopment zone. (City officials did not return telephone calls.) Of course, the port's shipping facilities remain its economic centerpiece. In July, the port district signed an agreement with the Army Corps of Engineers that amounted to the final approval for the dredging project. The port now has 42-foot-deep channels, and the project will deepen those to 50 feet, allowing the port to accommodate the largest container ships and prevent the port from losing business to facilities in Canada and Mexico. The project will take about five years and also will require annual funding allocations from Congress, said port spokesman Harold Jones. The port and the federal government are sharing equally the $260 million project. Port officials estimate the project will lead to the creation of 8,000 direct and indirect jobs, a 50% increase over current job levels. Maybe as important as the channel deepening is the intermodal terminal that is nearing completion on the former Oakland Army Base. The project provides direct rail access to shipping terminals, making handling more efficient and expanding capacities, Jones said. The rail line runs 11 miles to a large rail yard in Richmond. Contacts: Steve Hanson, Port of Oakland, (510) 627-1218. Sandra Threlfall, Waterfront Coalition, (510) 339-9233. Richard Reisman, Interland Corp., (650) 574-9200. Port of Oakland website: www.portofoakland.com

A project proponent can eliminate previously adopted mitigation measures so long as the proponent provides a reason for the change that is supported by substantial evidence, the First District Court of Appeal has ruled. But the court also decided that the lack of mitigation measures created a conflict with the general plan, so the court invalidated the project. The ruling appears to be the first that specifically addresses when and how a project proponent can drop mitigation measures that had been identified in an earlier environmental impact report and included as conditions of approval. In the case at hand, the Napa County Board of Supervisors adopted an updated specific plan and a "final subsequent EIR" (FSEIR) for 2,945 acres surrounding the Napa Airport in October 1998. The updated plan did not include a number of traffic mitigation measures contained in the original specific plan that supervisors adopted in 1986 because the county later found them to be infeasible. "The claim that once a mitigation measure is adopted it never can be deleted is inconsistent with the legislative recognition of the need to modify land-use plans as circumstances change," Justice William Stein wrote for the court. "It also is true that mistakes can be made and need to be rectified, and that the vision of a region's citizens or its governing body may evolve over time." The county's attorney, Arthur Coon, of Miller Starr and Regalia, said that the California Environmental Quality Act does not hold the county to old, infeasible mitigation measures. "With changing times and changing circumstances, may not be feasible," he said. The court's ruling, Coon said, "is the clearest statement of what we thought the law always was." But J. William Yeates, an attorney for project opponents, said that the court appears to have opened a loophole in CEQA. "They addressed an issue that had never really been addressed before, and that is what happens when a project applicant just walks away from approved mitigation measures?" Yeates said. This case suggests that if the applicant can prove that mitigations are infeasible, "he would be off the hook. Yet he never would have gotten the project built without approval of the mitigation measures. That could be the future rub of this decision," Yeates said. Despite its loss on the CEQA question, the project opponents did win the case. The court ruled that the updated specific plan's lack of mitigations for traffic and housing, and the FSEIR's inadequate discussion of water and sewer treatment made the updated specific plan incompatible with the general plan. Coon has requested a rehearing, arguing that the court made a number of factual errors. In 1986, the Napa County Board of Supervisors adopted a specific plan and EIR for the Airport Industrial Area. The plan called for about 1,900 acres of industrial development around the Napa Airport, which lies between the City of Napa and the community of American Canyon (which has since incorporated). In 1994, the county began updating the specific plan. Because of intense interest and complex issues, the county prepared a draft subsequent EIR, a supplement to the draft subsequent EIR and an addendum to the draft subsequent EIR. The board adopted the updated specific plan and new EIR in October 1998. As in 1986, the county had to make overriding findings because there were environmental impacts--including traffic congestion--that could not be fully offset. Two groups - Napa Citizens for Honest Government and North Bay Citizens for Responsible Transportation - and the City of American Canyon filed a lawsuit alleging that the new EIR was inadequate in several ways, and that the specific plan conflicted the county general plan's circulation and housing elements, creating an internal inconsistency that invalidated the general plan. Napa County Superior Court Judge Richard Bennett agreed that the EIR was inadequate and he invalidated the specific plan, but he ruled that the challenge to the general plan was time barred. A unanimous three judge panel of the First District Court of Appeal, Division One, upheld the ruling but differed with some of Judge Bennett's conclusions. With regard to traffic, the appellate panel ruled that the county had justified its elimination of traffic mitigation measures approved in 1986. The FSEIR said that improvements to Highways 12 and 29 were too expensive, they would require extensive right-of-way acquisition and they would produce visual impacts. The FSEIR contained only one mitigation measure for traffic - preparation of a traffic study and a review of potential funding sources and legislative remedies. The court ruled that this was enough to satisfy CEQA. However, the lack of specific traffic remedies conflicted with the county's own general plan, the court held. "If the Updated Specific Plan will frustrate the General Plan's goals and policies, it is inconsistent with the County's General Plan unless it also includes definite affirmative commitments to mitigate the adverse effect or effects," Justice Stein wrote. "The County cannot state a policy of reducing traffic congestion, recognize that an increase in traffic will cause unacceptable congestion and at the same time approve a project that will increase traffic congestion without taking affirmative steps to handle that increase." The court addressed housing in a similar fashion. It ruled that the FSEIR and an associated market analysis presented an adequate discussion of housing issues. The documents concluded that buildout of the Airport Industrial Area would generate the need for 5,457 housing units and suggested that many of the homes would be built in American Canyon or Napa. But, even though the specific plan area is entirely commercial and industrial, the county needed to make a commitment to provide housing to satisfy its general plan, the court held. " cannot state goals of providing adequate housing to meet the needs of persons living in the area, and at the same time approve a project that will increase the need for housing without taking affirmative steps to handle that increase," Stein wrote. The county argued - and maintains in its request for a rehearing - that the general plan policies in question were advisory, not mandates, and that the lack of specifics that concerned the appellate panel did not set the updated specific plan in conflict with the general plan. Yeates, attorney for the project opponents, said that it may have actually been better for his clients to win on the issue of general plan consistency because now the only way the county can stick with the updated specific plan would be to amend the general plan. And eliminating policies regarding improvements to congested Highways 12 and 29 would not be politically popular, he said. As for water and sewer services, the court ruled that the EIR was too speculative. The EIR assumed that American Canyon would supply water to the project, even though American Canyon is pursuing an agreement with the City of Vallejo to prevent a forecasted water deficit in American Canyon by 2015. The EIR further says that Napa Sanitary District's Soscol Treatment Plant will serve the development, assuming that capacity will become available when American Canyon - which already uses the Soscol plant - will arrange other treatment services. "We conclude that the FSEIR need not identify and analyze all possible resources that might service the Project should the anticipated resources fail to materialize. Because of the uncertainty surrounding the anticipated sources for water and wastewater treatment, however, the FSEIR also cannot simply label the possibility that they will not materialize as 'speculative' and decline to address it," Stein wrote. Coon said that the court got this wrong. American Canyon has a signed contract with Vallejo to receive more water, and American Canyon has committed to build its own sewer plant, he said. The court also overlooked the county's mitigation measure that prevents development if facilities are not available, he added. The court also ruled that the new EIR did not adequately address the project's impacts on endangered steelhead trout in two streams. Finally, the court ruled that opponents' challenge of the general plan's validity was too late. Besides, the court ruled, "if the Updated Specific Plan is inconsistent with the General Plan, the Updated Specific Plan is invalid; but the General Plan is unaffected." The Case: Napa Citizens for Honest Government v. Napa County Board of Supervisors, No. A089095, 01 C.D.O.S. 6732, 2001 DJDAR 8157. Filed August 3, 2001. The Lawyers: For Napa Citizens: J. William Yeates, (916) 860-2000. For the county: Arthur F. Coon, Miller, Starr and Regalia, (925) 935-9400.

Buffeted by competition from lower priced imports, snarled in a tangle of environmental regulations, besieged by sprawling cities and suburbs, America's small family farmers can be forgiven for feeling like members of an endangered species. In Yolo County, farmers may soon have more in common with imperiled plants and wildlife than just their dwindling numbers. In an intriguing twist on implementation of the Endangered Species Act (ESA), a habitat conservation plan (HCP) that has been in the works for more than eight years may soon preserve thousands of acres of development-threatened farmland at the same time it tosses a life ring to dozens of rare species. It will, in fact, link farmers and protected creatures — often regarded as natural adversaries — in a symbiotic endeavor to maintain both the economic vitality of agriculture and the ecological viability of wildlife populations. The plan is not without drawbacks and potential critics. In some respects, it resembles the HCP developed for the Natomas Basin, in adjoining Sacramento County. A federal judge rejected the Natomas HCP in August 2000 for providing insufficient mechanisms to preserve wildlife habitat threatened by urban development. But there are crucial differences, too, which make the evolving Yolo County HCP worth examination by land-use regulators, environmental activists and farmland conservation advocates elsewhere in California's rapidly urbanizing agricultural regions. Habitat Conservation Plans are voluntary agreements negotiated between the federal government and private landowners or states. They allow private parties to obtain "incidental take" permits under the ESA, authorizing them to unintentionally harm or kill listed species during the course of otherwise lawful activity. In return, landowners agree to take steps to protect those species. In theory, an HCP incorporates measures that actually improve a species' chances for survival — allowing destruction of a small amount of habitat in one place, for example, while requiring preservation of an even greater amount elsewhere — while also enabling farmers to continue farming, loggers to continue logging, and builders to continue building. The Yolo County HCP, the most recent draft of which was released in January, is ambitious. It is intended to reconcile all projected urban growth over the next 20 years in the county's four cities (Davis, Woodland, West Sacramento and Winters) and its four unincorporated communities (Esparto, Dunnigan, Knights Landing and Clarksburg) with existing or potential state and federal protections for 26 species of plants, birds, reptiles, amphibians, insects and crustaceans. The HCP encompasses 403,052 acres — 70 percent of the county. City and county general plans project 11,672 acres of mostly agricultural land within this HCP area will be converted to urban uses during the next two decades. The HCP traces its roots to 1993, when the four cities and the county signed a memorandum of understanding (MOU), pledging to develop a regional plan that would allow projected urban growth to proceed within the cities while preserving wildlife habitat in the unincorporated rural landscape. The intent was to avoid the sort of project-by-project ESA mitigation that so often causes long delays in permitting without achieving meaningful protections for rare plants and wildlife whose habitat needs cannot be adequately assured on a piecemeal basis. The first "final" draft of the countywide HCP was released in 1996, and came under sharp criticism from environmental groups and biologists over its scientific underpinnings. They argued that the plan failed to describe adequately the population status and habitat needs of many of the creatures it purported to protect. They also said the plan lacked a mechanism for assuring that its generic mitigation technique — simply requiring that one acre of land be conserved for every acre developed — would accomplish anything. The HCP was revised, and then revised again to reflect new case law and new U.S. Fish and Wildlife Service regulations for HCPs. If the latest "preliminary" draft is adopted by all the government jurisdictions in Yolo County, and approved by USFWS and the California Department of Fish and Game, the permitting agencies in the cities and county will be granted an incidental take permit under the state and federal ESAs. These permits will authorize damage to the covered species and their habitats during urban development, and will also serve as mitigation for impacts to biological resources identified under the California Environmental Quality Act. In general, the Yolo County HCP is much like the hundreds of other HCPs negotiated throughout the nation in the past decade. These plans are vulnerable to criticism on scientific grounds and greeted with suspicion by environmental activists who view the plans as political devices intended to grease the skids for builders rather than genuine blueprints for wildlife preservation. What is most interesting here, however, is the difference between Yolo County's plan and nearly all other HCPs. Strictly speaking, there is very little pristine wildlife habitat left in Yolo County — mostly remnant grassland, scattered vernal pools, wetlands, and riparian woodland narrowly confined to stream and river corridors. The county is intensively farmed, and 82 percent of the undeveloped land addressed by the HCP is planted in crops. Many of the creatures the HCP is intended to protect live or forage in orchards, vineyards, tomato fields, agricultural drainage ditches and other agricultural features, and it is this farmland that the HCP talks about when it refers to habitat preservation. In other words, to save such creatures as the Swainson's hawk, giant garter snake and valley longhorn elderberry beetle, the Yolo County HCP has as its primary strategy the preservation of cropland where those animals feed, burrow, nest and roost. The plan is a biological rescue effort built around a farmland conservation program. It specifies a mitigation fee keyed to the estimated cost of purchasing conservation easements for farmland, and proposes a periodic review of the economic vitality of farms participating in that program. The January draft of the Yolo County HCP resides in limbo; this latest revision was conducted hurriedly, according to John Hopkins, who represents the Davis-based Institute for Ecological Health on the HCP steering committee. The current version has not been reviewed formally by that committee, and the process, he said, is on hold while local agencies prepare to revise the plan yet again to qualify for participation in the state's Natural Communities Conservation Program (California's version of the HCP program). Still, the notion that cropland might effectively be saved from the builder's bulldozers by wedding the fate of farmers to that of rare wildlife offers food for thought as urban pressures continue to build throughout California's agricultural heartland. Many farmers have long thought of themselves as an endangered species. In Yolo County, they are being treated like one. Contacts: John Hopkins, IEH: (530) 756-6455. Yolo County Planning Department: (530) 666-8775. Yolo County Draft HCP website: http://www.co.yolo.ca.us/HCP/hcp.htm

The City of Los Angeles' slum abatement program is categorically exempt from the California Environmental Quality Act, the Second District Court of Appeal has ruled. The ruling is only the latest loss in apartment owners' running battle against the city's broad code enforcement effort. In January, the state Supreme Court ruled that the city's $12-per-unit annual fee on landlords was not subject to the voter-approval requirements of Proposition 218 because it was a tax on business (see CP&DR Legal Digest, February 2001). Apartment owners also lost CEQA suits over the city's temporary slum abatement program at the trial court level and in an unpublished appellate court case. The city implemented a systematic code enforcement program with the goal of inspecting all 750,000 rental units in Los Angeles every three years. The city adopted an interim program in 1998 and made the program permanent in 1999. The Apartment Association of Greater Los Angeles filed suit over the permanent program, claiming that the city improperly exempted the project from environmental review. The association presented two urban planning experts who said the program would lead to widespread closure and abandonment of affordable hosing, and that it could affect the environment by encouraging the transportation, use and disturbance of hazardous materials, such as pesticides and asbestos. Los Angeles Superior Court Judge David Yaffe ruled for the city. On appeal, the Second District, Division Seven, upheld Yaffe's decision but for different reasons. Yaffe held that the landlords could not base their challenge on their experts' testimony. Because the interim code enforcement program and the permanent program were the same, the experts should have testified when the City Council considered the temporary plan, and it was now too late to introduce their testimony now, Yaffe ruled. The appellate court, however, ruled that the two programs are not the same. "The very fact one was temporary and the other is permanent is enough to distinguish them," Justice Earl Johnson Jr. wrote for the unanimous three-judge panel. Plus, the permanent program adds provisions regarding rent withholding, sets inspection fees and includes penalties. But the court gave little credence to what the landlords' experts had to say. One predicted that many building owners cited for code violations would not be able to afford repairs and instead would abandon their properties or remove them from the market. That testimony directly conflicted with the city's study of what happened while the city inspected 99,000 units under the interim program. The city found that it issued abatement orders to owners of 269 properties out of the 7,200 it inspected - about 4%. One hundred of those cited came into compliance during the time of the study. Only 33 tenants were displaced from their rental units. Furthermore, the court noted, not one member of the association - which claims thousands of members - submitted a declaration that the interim enforcement program forced him to abandon a property or imposed a financial hardship. The landlords' other expert talked about the potential construction activity at tens of thousands of housing units, and the potential disturbance of asbestos and lead paint at older buildings - all of which may occur because of the code enforcement program. The court ruled this testimony was too speculative for CEQA purposes. "We do not believe an expert's opinion which says nothing more than 'it is reasonable to assume' that something 'potentially ... may occur' constitutes substantial evidence necessary to invoke an exception to a categorical exemption," Johnson wrote. "'Substantial evidence' is defined in the CEQA guidelines to include 'expert opinion supported by facts.' It does not include 'argument, speculation, unsubstantiated opinion or narrative.'" The code enforcement program did fall within guidelines for categorical exemption, the court ruled. The city's CEQA guidelines exempt projects that consist of rehabilitation of deteriorated structures and facilities to meet current standards of public health, safety and environmental protection. Because the city's program qualified for exemption, it was up to the landlords to prove that an exemption was not warranted. The landlords did not meet the burden of proof, the court held. The Case: Apartment Association of Greater Los Angeles v. City of Los Angeles, No. B144335, 01 C.D.O.S. 6240, 2001 DJDAR 7617. Filed July 23, 2001. The Lawyers: For the association: Lawrence Straw Jr. and Paul Gough, Straw and Gough, (310) 826-7766. For the city, Susan Pfann and Jack Brown, assistant city attorneys, (213) 485-5416.

Faced with big growth pressures, the small coastal community of Half Moon Bay is engaged in high political drama while dealing with a knotty set of planning problems. The city has approved several controversial developments, but it is also considering a way to limit development on thousands of old, substandard lots. Half Moon Bay also continues to struggle with how to operate under growth control initiatives and is receiving pressure from the Coastal Commission to update its Local Coastal Plan (LCP). Growth battles are not new in Half Moon Bay, a city of 11,800 that stretches for six miles along Highway 1 in San Mateo County. Traffic has been the central issue since at least the 1960s. On a map, Half Moon Bay looks like an easy commute from the job centers of Silicon Valley and San Francisco. However, only two mountainous two-lane highways (and some even slower county roads) connect Half Moon Bay with larger cities. The commute has worsened over the years, and weekend traffic can be even heavier, especially in the town itself. "It's an area that has a limited ability to support continued growth," said Chris Kern, supervisor of the Coastal Commission's North Central Coast District. "Highways 1 and 92 are already operating above their capacities. You hear horror stories about people taking two hours to get through Half Moon Bay on a sunny Saturday." Besides the traffic controversy, protection of sensitive coastal habitat continues to arise as an issue for environmentalists and the Coastal Commission. The entire city lies within the Coastal Zone, so Half Moon Bay's LCP and its general plan are practically the same, said Community Development Director Kenneth Curtis. The Coastal Commission certified the land use plan of the LCP in 1985 and approved substantial amendments 10 years later. The city has been in the process of updating its LCP and the general plan for some time, with an eye toward greater protection of coastal resources, Curtis said. Four developments approved by the city have generated much of the recent controversy: a large hotel, a 200-acre mixed-use project, and two subdivisions. The hotel is a six-story, 261-room Ritz-Carlton on 14 oceanfront acres at the south end of town. A hotel was originally approved for the site 30 years ago, but construction stalled. After plans were updated, construction began anew in 1999 and the Ritz opened early this year. Locals say the Ritz is a bad fit for the beach town, which has some modest neighborhoods. San Francisco Chronicle urban design writer John King agreed in a column this spring. "All of the wood shingles in the world can't hide the awkwardness of a 260,000-square-foot structure imposing itself on a bluff that you approach by driving past mobile homes and an RV park," King wrote. While the Ritz might have few local boosters, the proposed Wavecrest Village nearby does have backers, including people normally on the slow-growth side of the aisle. Originally approved in 1995 as 750 homes, a golf course, an RV park and an oceanfront hotel, Wavecrest was shot down by voters in 1995. After the referendum defeat, project backers went to work with two councilmembers to craft a compromise. In 1999, the City Council unanimously approved a revised project that called for 271 homes to be phased in over a decade, a 17-acre office and retail component, a Boys and Girls Club, a site for a new middle school, and sports fields. In all, about half of the 207-acre site would be set aside for open space or public facilities. Mayor Deborah Ruddock, who co-wrote a 1999 slow-growth initiative, said she backed the revised project because of amenities the city would gain, including extension of the coastal trail along a 1,500-foot setback from the bluffs. Still, disgruntled investors appealed Wavecrest to the Coastal Commission, where it has languished for more than two years. During the latest hearing in June, the commission refused to approve the project. Commissioners complained that wetlands were not fully delineated and information on raptor habitat was lacking. City Planning Commission Chairman Mike Ferreira, who is running for the City Council this fall, said the Coastal Commission was correct to demand more information. He also questioned the city's willingness to cut a deal for the project. "There are no replaceable coastal resources. You lose them, they are gone — wetlands, a raptor habitat area … there is no turning back from that loss," Ferreira argued. "If we kept that in mind more, we would probably negotiate differently." Two other substantial projects are tangled in litigation. The 114-acre Pacific Ridge subdivision received formal Coastal Commission approval in August. However, the Commission reduced the project by 25 lots to 120 and conditioned approval on retirement of development rights on an equal number of substandard lots elsewhere in town. The decision generated a lawsuit from developer Albert Fong. Also at issue is the 84-lot Beechwood subdivision. The city initially rejected the development because of impacts to wetlands, but a Superior Court judge ordered the city to approve the project. The city did so early this year, but the Coastal Commission took up Beechwood on appeal and decided to conduct a fresh review, raising questions about the court order. Twice, Half Moon Bay voters have approved growth control initiatives. Measure A in 1991 imposed a 3% cap after a rapid growth spurt began in 1988. Measure D, from 1999, which Ruddock helped draft, imposed a 1% growth cap — about 40 homes a year — with exceptions for downtown. Some voters were angered earlier this year when the City Council voted 3-2 to exempt roughly 500 parcels in already approved projects — including Wavecrest Village — from Measure D's cap. Noting that Measure A's implementation was similar, Ruddock said she supported the exemption based on legal advice. She also hinted that the exemption may not mean a great deal. "All of these particular projects have problems of one type or another, either expiration of a map or all these incredible traffic impacts," said Ruddock, who works as a project manager for the state Coastal Conservancy. The city also continues to wrestle with a huge number of substandard lots, most approved 80 to 100 years ago. Community Developer Director Curtis estimated that 5,000 lots exist in 12 old subdivisions, mostly between Highway 1 and the beach. City officials are considering a transfer of development rights program, which the Coastal Commission is encouraging. The Coastal Commission recently approved the city's "proportionality ordinance," which limits building size on small lots. Also impacting the city is development in the unincorporated "Mid-Coast" north of Half Moon Bay. Ruddock said the San Mateo County LCP for the area allows about 125 new homes a year. The city, however, gets most of the traffic and provides parks for the area without reimbursement, she complained. Contacts: Deborah Ruddock, Half Moon Bay mayor, (650) 726-8720. Mike Ferreira, Planning Commission chairman, (650) 726-3500. Kenneth Curtis, community development director, (650) 726-8250. Chris Kern, Coastal Commission North Central Coast District supervisor, (415) 904-5260.

The federal government is falling far short of meeting its goal of "no net loss" of wetlands, according to a new study by the National Academies of Sciences' National Research Council. While the loss of wetlands in the contiguous 48 states decreased by 77% from 1986 to 1997, about 58,000 acres of wetlands are being plowed up or paved over every year, according to the report. The scientists found that many mitigation projects are not implemented after development is approved, that some new wetlands are not maintained as promised, and that some projects do not adequately replicate a natural system. The scientists urged better data collection and greater enforcement by the U.S. Army Corps of Engineers, which regulates most wetlands development. "A broader geographic area needs to be considered when deciding which wetlands to restore and where to place new wetlands so they continue to serve the ecological needs of the entire watershed and have a higher chance of long-term survival," said committee chairman Joy Zedler, the Aldo Leopold Chair of Restoration Ecology at University of Wisconsin, Madison. The report is available at the National Academies' website, www.nationalacademies.org/webextra/wetlands Before going on summer recess, the Legislature passed a bill that requires the City of Tustin to give a 100-acre parcel of the former Tustin Marine Corps base to the Santa Ana Unified School District and the Rancho Santiago Community College District. The state Senate approved AB 212 (Correa) 21-13 on a party-line vote. Assembly Democrats passed the bill in April. As of late July, Gov. Davis had not indicated his position. Tustin and the school districts, which serve Santa Ana, have fought over base reuse for five years. Tustin has extensive redevelopment plans for the 1,600-acre base and wants the 100-acre site for a commercial project. Tustin offered the districts 39 acres and $20 million. The overcrowded school districts rejected the offer because the 39 acres appear to be heavily contaminated. Tustin contends AB 212 illegally preempts federal law and usurps the city's constitutionally protected police powers. The Correa bill is a companion to SB 874 (Dunn), which would prohibit Tustin's redevelopment agency from issuing debt based on the school districts' share of property tax increment unless the redevelopment agency and the districts sign an agreement. Both houses of the Legislature approved SB 874, but they did not reconcile differences before the summer recess started in July. The Temecula city clerk's decision to block a development referendum from the ballot was upheld by Riverside County Superior Court Judge Sharon Waters. In March, opponents of the 2,000-home Wolf Creek subdivision filed about 4,800 signatures on a rezoning referendum petition, twice as many has they needed to qualify a ballot measure. However, City Clerk Susan W. Jones said the petition backers failed to show signers the entire Wolf Creek development plan, so she refused to certify the referendum. After a three-day trial in July, Judge Waters ruled that referendum supporters should have made all Wolf Creek planning documents available to petition-signers. The Fannie Mae Foundation has identified a new type of suburb that has become commonplace in California. In a report released in late June, Fannie Mae defined a "boomburb" as an area with more than 100,000 residents that has maintained double-digit population growth in recent decades and is not the largest city in its metropolitan area. Fannie Mae found 53 boomburbs nationwide, including 25 in California. Some of the largest in the state are Anaheim, Santa Ana, Riverside, Fremont and Chula Vista. The report painted a contrasting portrait: "Because of their exceptionally fast growth rates, Boomburbs face extreme degrees of development-related problems, such as traffic congestion, strained public services, and sprawl. However, because of their large size and their potential to cooperate with other large municipalities, Boomburbs may prove well-positioned to participate in comprehensive regional solutions to these problems." The report, "Boomburgs: The Emergence of Large, Fast-Growing Suburban Cities in the U.S.," is available at the Fannie Mae website, www.fanniemaefoundation.org/census_notes_6.shtml Playa Vista — a 1,087-acre, mixed-use infill development on Los Angeles's west side — received two major boosts recently. In June, the City Council approved $135 million in Mello-Roos bonds to fund roads, utilities and parks. The council also approved $33 million in Multi-Family Housing Revenue Bonds to fund construction of affordable apartments. Although Playa Vista has been controversial for years because of its location at the Ballona wetlands, the votes came without City Council dissent. In July, influential developer Rob Maguire revealed that he had purchased 60 acres from the principal owner, Playa Capitol Corporation, and that he had hired renowned Santa Monica architect Frank Gehry to design at least four buildings. Gehry told the Los Angeles Times that his design for the commercial structures was inspired by the simple hangar where Howard Hughes built the Spruce Goose airplane shortly after World War II. Hughes formerly owned the Playa Vista site, where the hangar still stands. The California Public Utilities Commission has ruled that the Napa Valley Wine Train does not function as a public utility and therefore is subject to local land use regulations. The ruling, issued in June, is a significant victory for the City of St. Helena, which has fought for years to block a proposed Wine Train depot. The Wine Train carries tourists on a slow, 18-mile ride from Napa to St. Helena but has permission to stop at only one place along the route — a winery in the community of Rutherford. The Wine Train has long argued that it is a railroad and is subject only to the PUC. The Legislature even passed a measure that appeared place the Wine Train under the sole jurisdiction of the PUC. St. Helena and many Napa Valley winemakers and grape growers have fought the Wine Train continuously, saying it does not provide meaningful alternative transportation, blocks roads and driveways, and gives the valley a carnival atmosphere. San Bernardino County Supervisor Jerry Eaves has pleaded no contest to seven misdemeanor counts of failing to report political gifts and voting on issues that aided his benefactors. Under a settlement with the Attorney General's office, which took over the case from the county District Attorney's office, Eaves will pay a $20,000 fine and he cannot re-election in 2004. A former Assemblyman, Eaves failed to disclose that he received three fishing trips to a Canadian resort from an attorney with the firm of Miller & Schroeder. Eaves later voted for $160 million in bonds underwritten by Miller & Schroeder. The funds were used for, among other things, redevelopment of Norton Air Force Base in San Bernardino. Voters in the San Gabriel Valley city of Duarte rejected a special tax to purchase foothill open space during a June 26 special election. Measure A would have raised about $3.9 million over 30 years to help purchase 726 acres. The special tax would have cost homeowners about $48 annually. Measure A required a two-thirds vote but received only 40.1% approval. The year-old City of Elk Grove approved a 295-acre shopping mall in late June. Sacramento County had rejected the proposed Lent Ranch Marketplace before the city incorporated, partly because the project is proposed next to the county's urban services boundary. Elk Grove officials said the city needs the shopping opportunities and revenue that the 3-million-square-foot development will bring. The El Dorado County Local Agency Formation Commission has extended the deadline for the El Dorado Hills incorporation effort until December of 2002. However, the commission and incorporation proponents, who submitted petitions three years ago, disagree over the cost of financial and environmental studies. On the border of El Dorado and Sacramento counties, El Dorado Hills is a growing commuter town.

So, who's on top — the planners or the developers? You would think the U.S. Supreme Court would know. This court, after all, was able to decide who the president should be. But after almost a quarter century of hearing land-use "takings" cases, the Supreme Court has provided no clear answer as to who rules at the planning counter. In late June, the Supreme Court issued a split ruling — apparently in favor of property owners — in Palazzolo v. Rhode Island, No. 99-2047. At the same time, the court decided to accept a new land-use case for next year from Lake Tahoe. (For legal details on both cases, see Legal Digest.) Most of the time, the property owners have won at the U.S. Supreme Court. The breakthroughs began in 1987, when the court issued the landmark First English takings ruling and the Nollan exactions ruling, both from Southern California, in the same month. Victories by property owners are not surprising considering the fact that since the mid-80s the court has been dominated by conservative justices appointed by Republican presidents. But there have been very few slam-dunk victories that led to dramatic change. Almost all of the cases have been decided by a 5-4 vote and – as was the case with Palazzolo – sometimes one of the five majority justices has written a concurring opinion undercutting some of the majority's main points. Like so many other rulings before it, Palazzolo was a model of muddiness. The lack of clarity raises the question of what it all means — not in the realm of property rights lawyers and government attorneys, but in the real world of planners and developers. Unquestionably, the balance of power at the planning counter has shifted in the last 20 years, and almost without exception it has shifted in the developers' favor. Especially in California — where most of the takings cases originated — city attorneys and county counsels have become very cautious when developers complain about takings. The lawyers' concerns are probably leading to a cautious attitude on the part of the planners themselves. But the balance of power over the planning counter and the balance of power in the courtroom are two different things. Because the threat of a takings lawsuit — or a city attorney's fear of one — is only the first step in a three-step process. Step two is the actual filing of a lawsuit. And step three is the actual winning of a lawsuit by the property owner. Step one, the threat, is pretty common, and that is where the balance of power has shifted. Developers who threaten takings lawsuits are viewed seriously by government agencies and especially by government lawyers, who then advise their land-use planners to be cautious. Not surprisingly, however, step two – the actual filing of the lawsuit – is uncommon. And step three – winning the lawsuit – is almost unheard of. You can count the successful takings lawsuits on the fingers of one hand – or maybe two. It is almost impossible to actually prove that a taking has occurred, not least because the U.S. Supreme Court and other judges have failed to lay down a firm and consistent standard regarding what constitutes a taking. They have consistently stated that "it depends" – that is, it must be determined on a case-by-case basis. But what it depends on isn't always clear. Indeed, in the Palazzolo case the justices got lost in this very thicket by attempting to decide which of three different takings standards (previously laid out in three different Supreme Court rulings) should apply in this situation. And even when they're victorious, developers typically do not strip government agencies clean with their victories. Indeed, in the most famous takings victory — the Del Monte Dunes case, where the landowners' victory was upheld in by the Supreme Court in 1999 (see CP&DR Legal Digest, June 1999, July 1999) — the landowner got peanuts. More precisely, the landowner got $1.45 million. That may seem like a lot to you or me, but it probably does not seem like much to a development company that submitted five different development plans for a 37-acre beachfront parcel, all of which were rejected, and then spent more than a decade litigating the case. It's also not much compared with the City of Monterey's annual budget of $70 million. Heck, the lawyers' fees in a case like that are probably more than $1.45 million. But the power struggle over the planning counter is not really about whether a taking can be proven or how much money the government will pay if a taking is proven. The battle is about the cost and hassle of defending a lawsuit and the fear that you will be the one government agency that will be stuck with a doozy of a bill in the end. Which is why the Tahoe case that the Supreme Court will hear next year is so important for the future of planning practice. In a lot of ways, Lake Tahoe is the most atypical situation of land-use regulation. Land use in Tahoe is governed by a special regional agency, the Tahoe Regional Planning Agency, which covers parts of two states and was created by an act of Congress. The land-use regulations there have been extremely restrictive for more than 20 years, and regulators have been locked in mortal combat with angry property owners and aggressive lawyers for almost all of that time. Over the years, property owners have sued TRPA on all kinds of takings allegations, dealing mostly with the agency's limited allocation of single-family construction permits and the transferable development rights program, which emerged partly as a response to landowner concerns. However, the issue that the Supreme Court will hear is a surprisingly narrow one – and one of great interest to planning agencies everywhere: does a building moratorium constitute a taking of property? The history of takings allegations in Tahoe is so complicated that the Ninth U.S. Circuit Court of Appeals ruling in question (Tahoe Sierra Preservation Council Inc. v. Tahoe Regional Planning Agency, See CP&DR Legal Digest, July 2000) actually deals separately with what the judges called "Period I," "Period II," "Period III," and "Period IV." But apparently the Supreme Court will hear the relatively clean question of whether the building moratorium imposed by TRPA in 1981 constituted a taking because the moratorium lasted for three years. California specifically permits temporary moratoria so long as the period of time involved is "reasonable" and the public policy reasons for imposing a temporary building ban are compelling. And according to land-use law guru Dan Curtin, the California courts have set a high threshold to elevate a delay in the development process (including a moratorium) to the status of a taking. For example, in Landgate v. California Coastal Commission, 17 Ca.4th 1006 (1998) (see CP&DR Legal Digest. June, 1998), the California Supreme Court ruled that a two-year delay in the issuance of building permits by the Coastal Commission was a "normal delay" in the development process. The question of what is a normal delay and what is a taking has been an important one ever since the First English case was issued 14 years ago because in that case Chief Justice William Rehnquist invented the idea of a "temporary taking." Cutting through a knotty and persistent problem in takings law, Rehnquist said that if a regulation creates a taking of property and then is changed, a taking still could occur for the period of time during which the regulation was in place – if it was an unreasonably long period of time. Normal planning delays, he said, do not count. That is what gave the California Supreme Court the opportunity to conclude that two years was a normal planning delay in the Landgate case. Now, the U.S. Supreme Court will have the chance to decide once and for all what a normal planning delay is. In particular, they'll have the chance to decide whether a three-year building moratorium constitutes a normal planning delay or a taking. A clean ruling here will help determine the balance of power across the planning counter in the years to come. Of course, there is no guarantee that the Supreme Court will make a clean ruling in the Tahoe case. Clean rulings have been rare in land use to begin with, and the Tahoe ruling could get extremely muddled. For example, even though the TRPA moratorium ended in 1984, it was followed almost immediately by another three-year moratorium imposed by a federal judge — a fact that landowner lawyers have attempted to introduce into the Tahoe litigation as an additional factor in the "takings" question. So even though we will have a new Supreme Court ruling within the next 12 months, the psychology at the planning counter may well be just as confused a year from now as it is today.

Regulations that require most new development to contain and treat stormwater runoff continue to advance at Regional Water Quality Control Boards for California's coastal urban areas. The regulations, however, have received mixed reviews from environmentalists and condemnation from the building industry. In January 2000, the Los Angeles Regional Water Quality Control Board became the first in the state to set quantifiable standards for treating stormwater runoff from most new developments (see CP&DR Environment Watch, March 2000). About 30 inland cities and the Building Industry Association of Southern California challenged the Standard Urban Storm Water Mitigation Plans (SUSWPs). But in October 2000, the State Water Resources Control Board defended the SUSWPs by adopting a "precedential decision." The regulations require developers to install filtering devices or create vegetated swales to slow runoff and to capture sediment and contaminants. Regulators said the standards would add only 1% to 2% to project costs; builders said the mandates could cost more and could require substantial redesign of projects. Cities questioned who would maintain stormwater facilities. The nine regional boards were watching how the state board would handle the appeal, said state board spokesman Robert Miller. When the state board defended numeric targets for stormwater control, regional boards were in position to adopt similar regulatory approaches. "The general movement is toward the numeric target and the SUSWPs," Miller said. "Anything that flows across a paved area, or that flows across construction sites, will eventually find its way to creek and rivers and oceans. … We've got pathogens in the beach water all up and down the state, and we have got to get a handle on them." The nine regional boards have not approached the issue consistently, said Peter Hsiao, an attorney with Morrison & Foerster in Los Angeles, a firm that often represents development interests. In agricultural areas, it is very difficult to get a handle on runoff, he said. But in urban areas, controlling runoff from parking lots and construction sites is "viewed as low-hanging fruit" by many regulators and environmentalists, Hsiao said. "The issue in big urban areas like Los Angeles is really critical because the majority of contaminants are not coming from point-sources, they are coming from stormwater runoff," Hsiao said. Congressional revisions to the Clean Water Act approved in 1987 placed a strong focus on cleaning up "non-point source" pollution, including urban runoff. ("Point sources" are things such as sewer plants and factory discharges.) Despite the revisions and growing concern among environmentalists regarding the effects of polluted and swift-moving stormwater runoff, most state regulatory bodies moved cautiously. But attention to the problem has grown in recent years — especially because the state now requires local public health officials to post warning notices when water bodies show signs of dangerous pollution. Last year, many popular beaches in Orange County were closed for extended periods, greatly angering coastal merchants. Lawmakers have also directed money toward studies and pollution prevention efforts, Miller said. Under the SUSMP adopted by the Los Angeles regional board for Los Angeles County — and later extended to Ventura County — new developments must be designed to collect or filter runoff from the first 0.75 inches of rain in a 24-hour period. The regulations apply to commercial projects of more than 100,000 square feet, parking lots of at least 5,000 square feet, most gas stations, auto repair shops and restaurants, residential subdivisions with at least 10 units, and hillside homes. Developers usually can comply by building grassy swales, detention ponds or infiltration basins. The Los Angeles board is now considering revisions to the SUSWP, but no one anticipates a significant easing of requirements on developers. In February of this year, the San Diego Regional Water Quality Control Board adopted regulations similar — but not identical — to the Los Angeles board's. The San Diego board requires developments to treat the first 0.6 inches of a storm. Residential developments of at least 10 units, commercial projects of at least 100,000 square feet, and parking lots of at least 50,000 square feet are covered. The San Diego board approved the regulations over the objection of many cities and the building industry. The San Diego BIA, like its cousins elsewhere in the state, argued that the rules would have a negligible benefit because they do not address pollution from existing development, and that implementation would be costly. Now, similar arguments are being sounded at the Santa Ana and San Francisco Bay regional boards, which are considering their own stormwater runoff regulations. Earlier this year, the Bay Area regional board adopted new stormwater regulations addressing everything except new development. The regional board continues to work on those rules, which would apply first to Santa Clara County. Alameda, Contra Costa and other counties in the region would then follow, said regional board spokesman Will Behrns. The San Francisco Bay board had scheduled adoption of regulations for Santa Clara County this month, but delayed a vote until October, at least partly because cities say the regulations would be too expensive to enforce. Environmental organizations are not on board, either. The group WaterKeepers has urged the San Francisco Bay regional board to speed the pace of rule-making and to tighten its proposed regulations. WaterKeepers' Jonathan Kaplan called the proposed San Francisco Bay regional regulations regarding new development weaker than those adopted by the Los Angeles and San Diego boards. Kaplan said the San Francisco Bay region's proposed definition of redevelopment that would be affected is unclear. He also complained that while the San Diego regional board tailored pollution control rules to the actual quality of water running off a new development site, the San Francisco Bay regional board would allow any "best management practice" for any pollutant. Additionally, the San Diego regulations flatly say that new development shall maintain or reduce peak flows to prevent erosion. San Francisco Bay officials have proposed rules that take into account the waterway that receives the flows — an approach called a "hydromodification management plan." This makes sense "because many creeks in the County have been so hardened by previous flood control work that significant changes due to upstream projects will have little or no impact on sediment erosion," a staff report says. Officials at the state Environmental Protection Agency appear satisfied to let the individual regional boards wrestle with the issues. The State Water Quality Control Board has adopted general guidelines but has no plans to impose strict statewide requirements, spokesman Miller said. Both environmentalists and developers seem satisfied with that decision. Contacts: Peter Hsiao, Morrison & Foerster, (213) 892-5731. Jonathan Kaplan, WaterKeepers, (415) 561-2299. San Francisco Bay Regional Water Quality Control Board website: www.swrcb.ca.gov/rwqcb2/ State Water Resources Control Board stormwater website: www.swrcb.ca.gov/stormwtr/index.html

A Clinton-era Interior Department policy that delayed endangered species petitions filed by the public has been thrown out by the Ninth U.S. Circuit Court of Appeals. The unanimous three-judge panel agreed with environmentalists who said the policy improperly stalled consideration of plants and animals that could qualify for protected status. Specifically, the court ruled that the Fish and Wildlife Service's "Petition Management Guidance" (PMG) manual, adopted in 1996, conflicted with statutory provisions of the Endangered Species Act (ESA) and with congressional intent by allowing the agency to put citizen requests into limbo for an undetermined period. In June 1998, the Tucson-based Center for Biological Diversity filed two petitions with the Fish and Wildlife Service requesting that the Interior secretary extend ESA protection to the Chiricahua leopard frog and the Gila chub (a small fish). The Fish and Wildlife Service responded with a letter that said both species were already candidates for listing, so the secretary, under the PMG manual, would take no action. The Interior secretary had listed the chub as a candidate species in 1982, and the frog as a candidate in 1991 — but there had been no final determination on whether protection was or was not warranted. In August 1999, the Center filed a lawsuit seeking to force the Interior secretary to issue findings that the species either did or did not qualify for protected status. Arizona District Court Judge John Roll issued summary judgement for the Interior Department, finding that the PMG manual satisfied ESA's requirements. (Two months after that decision, the Interior Department proposed to list the frog as "threatened," so that portion of the lawsuit became moot.) The Ninth Circuit overruled the district court. The Endangered Species Act prescribes two methods of adding or removing species from the protected list: petition by interested people, or an initiative by the secretary. Under the petition route, the secretary has 90 days to decide if the petition presents "substantial scientific or commercial information" that protection or removal may be warranted, and one year to decide whether or not the petition should be granted. If the secretary takes the initiative and places a species on a candidate list, the ESA prescribes no deadlines. Under the PMG manual, the agency considered any petition regarding a species already listed as a candidate to be superfluous. The agency reasoned that the secretary could ignore those petitions — without explanation — under the ESA's "warranted but precluded" exception. In the lawsuit, the Center argued that this policy compromised the ESA. The Interior Department argued that the ESA was unclear about how to handle petitions for species already under consideration, so the agency could do what it wanted. The Ninth Circuit sided with the environmentalists. "The statute is not ambiguous, but instead is exquisitely clear, concerning what the Secretary must do when she receives a petition requesting action on a species, " Judge Marsha Berzon wrote for the court. The Act gives the secretary 12 months to decide after receiving a petition, and the "warranted but precluded" exception does not necessarily apply, the court held. That exception applies only when the Interior Department is actively working on other listings, and that activity actually precludes her from reviewing the petition. Citing the congressional record, Berzon wrote, "Congress emphasized that providing for the ‘warranted but precluded' designation was not designed to justify ‘foot-dragging efforts of a delinquent agency.'" Furthermore, under the "warranted but precluded" provision in the ESA, the secretary still must determine within 90 days whether a petition has merit. If it has merit, she must determine within one year whether action is warranted, not warranted or warranted but precluded. And the secretary must publish appropriate findings for whatever she decides. If she rules the request is warranted but precluded, the one-year cycle repeats and she again must publish findings, the court ruled. "The statutory deadlines thus assure that species tagged for protection are not forgotten in an administrative quagmire, but instead are periodically monitored and reconsidered for listing," Berzon wrote. "The case of both the frog, which the Secretary identified as a candidate in 1991 — nine years before she published a proposed rule to list the species as threatened — and the chub, which has been a candidate for nearly two decades without ever being the subject of formal findings, demonstrates that potentially qualified species may sit on a candidate list for extraordinarily long periods before becoming the subject of protective rules. It was precisely in these situations that Congress intended the petitioning process to ‘interrupt the department's priority system by requiring immediate review.'" The Case: Center for Biological Diversity v. Norton, No. 00-16020, 01 C.D.O.S. 5086, 2001 DJDAR 6271. Filed June 20, 2001. The Lawyers: For the Center: Matt Kenna, Kenna & Hickcox, (970) 385-6941. For Norton: Mark Haag, Department of Justice, (202) 514-2000.