Developers suffered two losses during recent special elections. Voters in the fast-growing Riverside County city of Murrieta recalled the mayor and nearly threw out a second councilman. Meanwhile, the San Luis Obispo electorate rejected a 650,000-square-foot power center and the finance deal supporting the project. At the May 3 election in Murrieta, three pro-growth members of the City Council faced recall. Voters ousted Mayor Jack van Haaster from office by a 51-49 ratio. Councilman Kelly Seyarto narrowly survived the recall with 50.7% of the vote, while Councilman Doug McAllister easily staved off the recall by winning nearly 55% support. Citizens formed a group called Rescue Murrieta in the parking lot following a City Council meeting in June 2004, group spokesman Edward Faunce said. That night, the City Council approved a large day-care center proposed by van Haaster's daughter and rezoned land from large-lot residential to commercial to accommodate a proposed shopping across the street from a brand new shopping center. Those projects were on streets that were already gridlocked at certain times of the day, Faunce said. Rescue Murrieta targeted van Haaster, Seyarto and McAllister for recall because they often formed a 3-2 pro-growth bloc. Van Haaster received additional criticism for meeting privately with four Planning Commission members regarding his daughter's application for the 400-child day-care center. That project got cut in half, and van Haaster later apologized for intervening, but the political damage had apparently been done. "They didn't follow the general plan," Nancy Knight, a recall proponent and replacement candidate for McAllister's seat, said of the recall targets. "Multi-family housing is one of the big issues. They have really burdened our city with a lot of these high-density, multi-family housing projects." Development interests bankrolled the campaign to keep the embattled officials, pouring more than half a million dollars into the campaign. Two branches of the Building Industry Association, Lennar Homes, Barratt American and at least four other development interests wrote five-figure checks to support the incumbents during the city's most expensive election ever. Van Haaster was replaced by retired Air Force Colonel Rick Gibbs, who easily topped 20-year-old Casey Evans in balloting to replace the mayor. Rescue Murrieta endorsed Gibbs, but he is not a member of the organization. Still, the change on the City Council was apparent within minutes of Gibbs assuming office, when the council voted 4-1 to appoint Councilman Warnie Enochs as mayor. Frequently on the short end of 3-2 votes, Enochs has been on the council for 10 years but was never before selected mayor. During the same period, Van Haaster served six years as mayor and Seyarto, who voted against Enochs' appointment, two years. Murrieta has experienced nonstop growth since it incorporated in 1991. In May, the Department of Finance reported that Murrieta has grown 92% in the last five years to a population of 85,100. “The need to bring the infrastructure up to catch up with the rooftops is overwhelming,” said Rescue Murrieta's Faunce. “Our streets are not up to par. Our schools are overcrowded. It's almost an impossible job.” Infrastructure was also an issue in the April 26 San Luis Obispo special election, specifically how to pay for an overpass across Highway 101 to a proposed power center. Under a development agreement between the City of San Luis Obispo and developers of the Dalidio Ranch Marketplace, the developers would have fronted most of the funding for the overpass. They would have been repaid up to $22 million through a sales tax “rebate.” The city also would have contributed development impact fees to the overpass. Detractors said the development agreement was key in solidifying opposition to the project, which the City Council approved last year. In the referendum, voters rejected a general plan amendment (Measure A) 51.4% to 48.6%, and they defeated the rezoning (Measure B) 52.3% to 47.7%. The vote against the development agreement (Measure C) was a slightly more convincing 52.9% to 47.1%. “If this was just a bunch of liberal left, environmental activists, we couldn't have done it,” said Ben Romo, a campaign consultant for a group called Save San Luis Obispo. “The residents of San Luis Obispo recognized that this was a deal that was going to cost the city money. … We had a number of supporters who have never opposed a development in their lives.” An alliance of slow-growth advocates and downtown merchants emerged during the campaign. The groups, who have not always been friendly in the past, feared that that the power center would harm downtown, which is already facing a difficult seismic retrofit project. “Some people who often don't agree on things were agreeing on this,” said Jan Marx, a member of Save San Luis Obispo, land use attorney and former council member. “We want to be a town with a vigorous downtown and a greenbelt.” The referendum vote does not necessarily mean the project is dead. Because the city never completed annexation of the 131-acre site, property owner Ernie Dalidio and developer Bill Bird have filed an application with San Luis Obispo County. They pursued a project with the county previously but did not get far because the Board of Supervisors said the development belonged in the city limits. As approved by the city, Dalidio Ranch Marketplace would have had 650,000 square feet of retail space, including a Lowe's Home Improvement Center, Target, Whole Foods, Old Navy, and a hotel. There also would have been 60 housing units. Bird told San Luis Obispo of that the project proposed for the unincorporated area would be “similar.” Contacts: Ed Faunce, Rescue Murrieta, (951) 296-0288. Nancy Knight, Murrieta City Council candidate, (951) 677-2459. Jan Marx, Save San Luis Obispo, (805) 541-2716. Ben Romo, Save San Luis Obispo campaign consultant, (805) 570-5187. Dalidio Ranch Marketplace: www.dalidioranchmarketplace.com .

Legislation that would permit certain redevelopment agencies to extend the life of redevelopment project areas has stalled for the year. Four Assembly bills hit a roadblock in the Assembly Housing and Community Development Committee when Chairman Gene Mullin (D-South San Francisco) decided that a broader discussion of redevelopment time extensions was necessary. Also stalling in the Capitol was a bill that would permit the Port of Los Angeles to tap redevelopment tools. Meanwhile, a bill that would alter the definition of “blight” to allow tax-increment financing of transit-oriented developments remains alive but faces an uncertain future this year. Under the last major round of redevelopment reform (AB 1290 from 1993), redevelopment projects must expire by January 1, 2009, or after 40 years, whichever is later. In 2001, lawmakers approved SB 211, which permits 10-year project extensions within tight constraints (see , July 2001). However, only one redevelopment agency (Sacramento) has been able to take advantage of SB 211. It appears that SB 211's requirements are too strict, said California Redevelopment Association (CRA) Executive Director John Shirey. Some agencies are highly leveraged and cannot afford SB 211's mandate that an additional 10% of tax increment be spent on low- and moderate-income housing, he said. Some agencies are reluctant to accept the emphasis on low-, very low- and extremely low-income housing that is required by SB 211 and a follow-up measure, SB 701 from 2002. Some agencies cannot pass SB 211's stringent blight test, even though projects are incomplete, Shirey said. The CRA did not take a position on any of this year's time extension bills and, in fact, was caught off guard by the legislation, Shirey said. He endorsed Mullin's call for a “holistic approach” to the issue. One of the agencies sponsoring legislation this year is the San Jose Redevelopment Agency, which backs AB 1472 (Coto). That bill is intended to provide a 10-year extension to a project area in north San Jose's “Golden Triangle” that is scheduled to terminate in 2033. The extension is important now because the city usually issues 30-year debt to finance infrastructure. The bill would permit an extension based, in part, on either physical or economic blight. “We have been particularly hard hit here with job losses and vacant buildings, but we have a difficult time with the physical blight ,” said Harry Mavrogenes, executive director of the San Jose Redevelopment Agency. Additionally, SB 211's requirement that tax increment get spent on affordable housing within the project area is a problem for San Jose, which pools its tax increment, he said. The agency has plans for 32,000 housing units and 26 million square feet of industrial and office development on about 600 acres. Such development would need at least $500 million worth of infrastructure, yet the San Jose Redevelopment Agency, the state's largest redevelopment agency, has seen tax increment revenue decline by 25% in recent years to $148 million annually. Mavrogenes defended the development as “smart growth” because it would be in an existing urban area with a light rail line. If the development does not occur in North San Jose, the growth - especially the housing - will probably move to the edge of the region, leading to further traffic congestion, he contended. Although the San Jose bill stalled, Mavrogenes endorsed Mullin's decision to take a broad look. “I think it's obvious from the collection of these bills that SB 211, which is the mechanism available to these agencies, has some problems,” Mavrogenes said. The San Jose bill will apparently get no hearing in the Legislature this year. Neither will AB 517 (Hancock), which would give the Berkeley Redevelopment Agency an extension solely for low- and moderate-income housing projects; AB 921 (Daucher), which proposed 25-year extensions during which a redevelopment agency would keep only half of the tax increment; and AB 1167 (Chu), which would provide a 10-year extension to the El Monte Community Redevelopment Agency for transit-oriented development projects. A broader transit-oriented development bill appears to still have a chance at passage this year. Senate Bill 521 by Senate Transportation and Housing Committee Chairman Tom Torlakson (D-Antioch) would amend the statutory definition of blight to include the lack of high-density development within a transit village development district. The measure would permit redevelopment efforts within approximately one-quarter mile of a rail transit station. The area would not have to be “predominately urbanized,” as required by current redevelopment law. However, the project would have to get approval from the California Infrastructure and Economic Development Bank. The bill also would permit development by-right within transit village development districts adopted after January 1, 2006, meaning that a city or county could not require environmental review or discretionary permits if a project complies with a plan. Backers of SB 521, including BART and the California Chapter of the American Planning Association, contend the legislation would encourage growth that makes better use of infrastructure. Indeed, a Senate Local Government Committee bill analysis says, “ he substantial public investment in rail transit does not pay off if local officials fail to promote private development around rail transit stations.” Still, plenty of opposition exists. No Republican on the Senate Local Government Committee voted for SB 521. Los Angeles and Santa Clara counties oppose the bill because they fear the loss of revenue and worry about watering down the definition of blight. Even the CRA opposes SB 521. “While CRA supports the building of more housing closer to transit facilities,” Shirey wrote to CRA members, “we are opposing SB 521 unless amended to address our concerns about a redefinition of blight that will be hard to defend and state approval of redevelopment projects.” While the debate over the Torlakson bill is likely to continue this year, consideration of a bill that would let the City of Los Angeles establish a redevelopment project area at the port has ended. The bill, AB 1330 by Assemblywoman Betty Karnette (D-Long Beach) met stiff resistance in the Assembly Local Government Committee, where only one of seven members voted for the legislation. In addition to Los Angeles County, which would lose an estimated $25 million to $50 million in annual revenue, bill opponents included the San Pedro and Peninsula Homeowners' Coalition, a citizen group that has been a port watchdog for years. The redevelopment project, which would be governed by the mayor-appointed Board of Harbor Commissioners, would help fund a 400-acre, eight-mile-long retail, office and residential development along the waterfront. “It's bad enough that the port wants to do this giant commercial project on the waterfront,” said Homeowners' Coalition President Noel Park. “But we think it's inappropriate for a public agency with a cash flow of $600 million a year to tap into the tax increment for this.” The Assembly Local Government Committee agreed. A committee bill analysis stated, “ he conditions that exist in and around the harbor do not fit the state criteria for declaring blight and establishing a redevelopment area; the port is not an economic burden to the area, but a multi-billion dollar revenue-generating industry.” The bill appeared to be a way for the port to get past the State Lands Commission, which has jurisdiction over tidelands. The Commission strongly opposes the proposed waterfront development. Neither a Karnette aide nor a port spokeswoman was willing to talk about AB 1330. One final redevelopment bill that appears headed for approval is AB 1390 (Jones), which has already passed the Assembly. It would extend to 10 years the statute of limitations for enforcing the requirement that 20% of tax increment be setaside and spent for low- and moderate-income housing. The bill is a response to a 2003 court decision that the Escondido redevelopment agency did not have to reimburse the housing fund for underpayments that occurred more than three years prior to a lawsuit seeking enforcement. The appellate court in , 110 Cal.App.4th 1288 (see , September 2003), cited the three-year statute of limitations. Contacts: John Shirey, California Redevelopment Association, (916) 448-8760. Harry Mavrogenes, San Jose Redevelopment Agency, (408) 794-1000. Noel Park, San Pedro and Peninsula Homeowners' Coalition, (310) 832-5720. Assembly Housing and Community Development Committee, (916) 319-2085.

The First District Court of Appeal has blocked a developer's request to collect from its courtroom opponents the cost of preparing the administrative record in a California Environmental Quality Act lawsuit. The court held that the developer, Hayward 1900, Inc., was not eligible for the money because the City of Hayward had improperly delegated preparation of the administrative record to the developer. In 2002, the Hayward Area Planning Association, the Hayward Hills Property Owners Association and Greenbelt Alliance filed a lawsuit against the City of Hayward and the Hayward Unified School District over the environmental review for a controversial, long-discussed subdivision in the hills of the East Bay city. Hayward 1900 was the real party in interest. The project opponents later dismissed their claims against the school district. In June 2003, Alameda County Superior Court Judge Bonnie Lewman Sabraw ruled against the project opponents and awarded costs to the city and Hayward 1900. Hayward 1900 then sought $50,421, all but $228 of which was for preparation of the administrative record. The project opponents - who had never agreed to have the developer prepare the record - asked the court to reject the developer's bill because preparation of the record was the city's responsibility, because various costs included in the $50,000 bill were unreasonable, and because the bill included costs of preparing the school district record, which the district had waived. The trial court found some of the costs to be excessive, so the developer reduced its bill to $20,359. But the project opponents asked the appellate court to bar any cost recovery for the developer's preparation of the administrative record. A unanimous three-judge panel of the First District did just that. The decision centered on interpretation of one portion of CEQA, Public Resources Code § 21167.6. “Section 21167.6 authorizes only three ways to prepare a CEQA record, none of which were followed in this case,” Justice Linda Gemello wrote for the court. “The three alternatives are (1) that the public agency prepare and certify the record; (2) that the petitioner prepare the record, subject to certification by the public agency; or (3) that the parties agree to alternative method of preparing the record, subject to certification by the public agency. The city's delegation of the task to the real party in interest without obtaining the consent of plaintiffs was inconsistent with this statutory scheme.” Hayward 1900 argued that the statute did not bar its cost recovery, and the court conceded that the statute is ambiguous. Still, the intent of the statute is to minimize the cost of record preparation, and none of the usual restraints on cost preparation were in place here because of the city's unilateral delegation of record preparation to the developer, the court determined. The plaintiffs could not control costs because they were given no choice on the arrangement with the developer, the city itself did not submit a bill that it was forced to justify in public, and the city did not attempt to control the developer's costs, Gemello noted. “Although courts have allowed public agencies to collect the labor costs of outside assistance when they prepare the record under § 21167.6, subdivision (b)(1), no court has condoned the unilateral delegation of the task to a party with an interest in the litigation,” Gemello wrote. Thus, the court ruled, the developer's cost recovery must be denied. The Case: , No. A104903, 05 C.D.O.S. 2993, 2005 DJDAR 4033. Filed April 5, 2005. The Lawyers: For Hayward Area Planning Association: Jewell Hargleroad, McInerney & Dillon, (510) 465-7100. For Hayward 1900, Inc.: Philip Aktins-Pattenson, Sheppard, Mullin, Richter & Hampton, (415) 434-9100.

When a development project straddles the coastal zone boundary, the Coastal Commission may not use its jurisdiction over the portion of the project within the coastal zone to influence development outside of the zone, the state Supreme Court has ruled. In a case from Los Angeles's West Side, the court rejected the Sierra Club's argument that the Commission should have exerted authority over portions of a project located outside the coastal zone, but which could impact the coastal zone. The ruling was the second loss at the state's high court for opponents of Catellus Residential Group's West Bluff project, on a hill overlooking the Ballona Wetlands. Last December, the state Supreme Court ruled that affordable housing mandates for projects within the coastal zone did not apply because none of West Bluff's proposed houses or other private facilities were located within the coastal zone ( Coalition of Concerned Communities, Inc. v. City of Los Angeles , (2004) 34 Cal.4th 733; see CP&DR Legal Digest , January 2005). The project, for which construction began in 2003, is on 45 acres, 12 of which lie within the coastal zone. As approved by the City of Los Angeles, all 114 houses would be on the 33 acres outside the coastal zone. Still, the project needed a coastal development permit because Catellus proposed building a road from the Pacific Coast Highway through the coastal zone to provide access to 85 of the new houses. In addition to the street, the developer planned to build some storm drainage facilities and other infrastructure in the coastal zone. The Coastal Commission approved a permit for the coastal zone development in 2000. Environmentalists sued the Coastal Commission, arguing that the state panel should have denied the permit because the coastal zone construction would enable out-of-zone development that could impact resources within the coastal zone. Environmentalists lost at the Superior Court level and in the First District Court of Appeal. The California Supreme Court then took up the case, and, in a mid-May decision, ruled unanimously against environmentalists. At the high court, the Sierra Club presented a number of arguments, but the most important one was that the Coastal Act required the Commission to consider the impacts in the coastal zone of the houses. The Sierra Club contended that the housing development would be visually incompatible with the scenic area and could harm Ballona Wetlands, an environmentally sensitive habitat area (ESHA). The Commission countered that it did consider those impacts - to the extent they were related to development within the coastal zone. But, the Commission said, the Sierra Club wanted the Commission to use its jurisdiction over the proposed road to gain jurisdiction over the entire project, which would violate the Coastal Act. The state's high court accepted the Commission's argument. The court pointed out that the Commission conditioned its permit on bluff-face stabilization work, drainage improvements, bluff-face re-vegetation and the retirement of development rights on 15 parcels between the wetlands and the proposed houses. " he record makes clear that the Commission did in fact consider the ways in which the proposed development outside the coastal zone would produce impacts within the coastal zone, and the ways in which the proposed development inside the coastal zone, as further conditioned by the Commission to implement the Coastal Act's standards, would address those impacts," Justice Ming Chin wrote for the court. "The Commission's actions in this regard were proper under the Coastal Act." What the Commission correctly refused to do, Chin continued, was condition a permit for coastal zone based on changes to the portion of the project located outside the coastal zone. The Commission rebuffed environmentalists' request to tie the coastal development permit to fewer houses, more open space and a greater setback between houses and the edge of the bluff. In siding with the Commission, the court pointed to a 1978 amendment to the Coastal Act. The Legislature approved the amendment to Public Resources Code § 30604, subdivision (d) after the state attorney general issued an opinion that said the Coastal Commission may "deny permits on the basis that the portion of development outside the coastal zone would have adverse environmental impacts inside the coastal zone." The Legislature specifically refuted that opinion. " egarding developments straddling the coastal zone boundary, the Legislature intended to divide permit authority between the Commission and all other local public entities having jurisdiction over portions of the development outside the coastal zone," Chin wrote. The Sierra Club further argued that a portion of the Coastal Act - Public Resources Code § 30200, subdivision (a), which says that all public agencies considering activities outside the coastal zone must consider direct impacts on coastal zone resources - applied here. The Sierra Club said that the Coastal Commission was approving activities in the coastal zone that would support development outside the zone that could harm coastal resources in violation of § 30200 subdivision (a). However, the court found that this provision does not apply to the Coastal Commission. Even if it did, the Commission could not use it to overrule other public agencies, the court ruled. The Sierra Club also argued that the Commission's action was inconsistent with the California Environmental Quality Act and that it conflicted with the Commission's duties under the federal Coastal Zone Management Act. The high court rejected both arguments. The Case: Sierra Club v. Coastal Commission , No. S116081, 2005 DJDAR 5757. Filed May 19, 2005. The Lawyers: For Sierra Club: Frank Angel, (310) 314-6533. For the Coastal Commission: Hayley Peterson, deputy attorney general, (619) 654-2540. For Catellus: Robert Crockett, Latham & Watkins, (213) 485-1234.

Most government budget crises get bailed out by increasing tax revenue, and the current situation in California appears to be no exception. With tax receipts on the rise throughout California, Gov. Arnold Schwarzenegger was able to throw several billion dollars into the kitty as part of the “May revise” - the annual revision of the governor's budget proposal to the Legislature. The surprise is that he threw the money at transportation instead of education. Though faced with daily television attack ads from the state teachers' union, Schwarzenegger gave education only about $100 million. Meanwhile, he has earmarked about $1.3 billion to fund Proposition 42 - the 2002 ballot initiative that sets aside sales tax on gasoline for transportation projects but which has been suspended by the Legislature every year since. Another $2.5 billion will go toward reducing the budget deficit. The governor's plan has highlighted the increasing tension between local governments and educators, who increasingly must lobby in Sacramento for pieces of the same pie. But Schwarzenegger may also have painted himself into a corner on transportation, because he now must decide which Davis-era, Democrat-driven transportation projects he wants to fund under Proposition 42. The governor also appears to be picking a fight with the Legislature over how the money is spent, because he is tying the transportation funding to a package of three bills that Republicans like and Democrats don't. The truth of the matter is, even if he gets what we wants, he's still surrounded by Democrats and must, to a certain extent, move on a Democratic agenda. It's no secret that the state's transportation construction accounts are almost broke. Most State Transportation Improvement Plan (STIP) projects have been postponed for at least two years, and STIP funding - usually well in excess of $1 billion a year - dropped to less than $300 million in 2004-05. Virtually no funds are currently flowing into design and construction of highway projects by Caltrans. Schwarzenegger rationalized the idea of putting funds into transportation construction rather than operating funds for education by arguing that the revenue boost is a one-time bump of several billion dollars caused by a recent tax amnesty. In so doing, he is attempting to differentiate himself from Gov. Gray Davis, who got the state into a bind by using rapidly increasing revenues in the years of the Internet bubble to fund increases in state operating programs that benefited his labor union supporters. Schwarzenegger's strategy has been supported by nonpartisan Legislative Analyst Elizabeth Hill, though her staff contended that the tax amnesty portion of the revenue increase was a minor portion of the overall rise. But Schwarzenegger has run into stiff partisan opposition in the Legislature itself. “This governor just doesn't get it,” said Assembly Speaker Fabian Nunez, a Democrat and former labor union official. But that is not the end of it. Schwarzenegger has tied funding Proposition 42 to passage of his “GoCalifornia” proposal - a package of three bills designed to speed up the highway construction process mostly through privatization. The three bills are: o AB 850 (Canciamilla), which would permit private companies to build more toll roads. o AB 1266 (Niello), which would permit Caltrans to start building a project when the first phase is designed, rather than waiting for the entire project to be designed. o SB 705 (Runner), which would permit Caltrans to let design-build contracts for transportation projects. The last two bills are meant to address the Caltrans project delivery problem - the fact that transportation projects get stuck in a bottleneck inside the agency at the design and environmental review stage. But the Runner bill in particular is likely to face opposition, as it would take some projects out of the hands of unionized engineers at Caltrans. Contracting out design work has been a major issue between Caltrans and the union for several years, especially as the project delivery problem has gotten worse. Even if the Legislature approves Schwarzenegger's budget and the GoCalifornia bills - both of which are big ifs - the governor still faces the tough political question of which projects to fund under the Transportation Congestion Relief Program (TCRP). By funding Proposition 42, Schwarzenegger does not get full discretion over how to spend the money. The measure requires that about half of the money go to fund at least some of the 141 projects contained in the TCRP, with the remainder split between the STIP, local road improvements, and public transit. The problem for Schwarzenegger is that the TCRP list of 141 projects is a Democratic list devised by the Davis administration in 2000. The Davis list - jokingly called the “G-TIP” at the time - favored urban Democratic areas at the expense of suburban and rural Republican areas, and tended to provide about 30% of the funding required for very large projects - enough to drive the STIP funds in their direction (see , July 2000, August 2003). This list was memorialized with the passage of Proposition 42 in 2002; however, no allocations have been made since that time because Proposition 42 has been suspended each year in the name of a “budget emergency.” One of the first things Schwarzenegger tried to do after ousting Davis in 2003 was to jettison the TCRP, but he failed. Now he is faced with having to pick and choose from among Davis's pet projects. Business, Transportation, and Housing Secretary Sunne McPeak has been coy about which TCRP projects would get funded, saying only that it is up to the California Transportation Commission. But the CTC is made up of gubernatorial appointees, most of whom come from the construction and development industry. In its most recent report to the Legislature, the CTC identified about 40 TCRP projects ready for construction, totaling about $1 billion in TCRP funding. The two biggest projects are the Wilshire Boulevard busway in Los Angeles and a set of high-occupancy vehicle lanes in the “Orange Crush,” where the 5, 55 and 22 freeways meet in Orange County. All of the other large projects are rail or bus projects, including grade separations for Alameda Corridor East; a light-rail project in North San Diego County; and significant passenger rail improvements in Los Angeles County. Few highway projects - and few Northern California projects - are on the list. It is entirely possible, of course, that Schwarzenegger will not get what he wants on transportation. The Democratic Legislature, backed by the teachers union, might shift the money to education. Or the Democrats may stand in the way of the GoCalifornia bills, forcing Schwarzenegger to act on his threat not to restore Proposition 42. But even if everything goes his way, the Republican governor and his transportation commissioners will still be stuck funding a list of urban Democratic projects. So in this case, maybe Gray Davis will have the last laugh after all.

The California Supreme Court has accepted two more land use cases, one of which is a California Environmental Quality Act (CEQA) case that has generated quite a bit of discussion. The second one is an inverse condemnation case involving street landscaping that blocks a view of billboards. The CEQA case was filed, ironically, by potential developers. Muzzy Ranch Company, which owns 5,000 acres of farmland, sued the Solano County Airport Land Use Commission after the panel adopted a land use compatibility plan for territory surrounding Travis Air Force Base in 2002. The compatibility plan froze development on hundreds of thousands of acres over 35 miles at the level permitted by the existing general plan and zoning regulations. The airport commission determined that the plan was exempt from CEQA review. Muzzy Ranch argued that adoption of the plan would cause indirect environmental impacts by re-directing housing development that would have occurred around Travis to other locations in the region. A trial court judge rejected the argument, but the First District Court of Appeal accepted it (see , March 2005). The appellate court ruled that adoption of the plan was a “project” within the meaning of CEQA and required environmental review. Thus, one of the questions for the state Supreme Court is whether adoption of an airport compatibility plan that recommends maintaining a county's existing general plan and zoning is a project under CEQA. Furthermore, the appellate court specifically rejected the airport commission's contention that it could not study housing displacement because the commission would have to speculate about other agencies' future land use decisions. The court ruled that adoption of the plan was a “conclusive step” that “will foreseeably lead to some displacement of future development.” That part of the ruling has spurred discussion among CEQA practitioners over how far - in both time and distance - an environmental review must reach. The case is , No. S131484. The second case involves a billboard company that sought compensation for damages after the City of Los Angeles planted trees along Century Boulevard that blocked the visibility of six billboards near Los Angeles International Airport. The billboard owner contended that the landscaping amounted to inverse condemnation. However, the Second District Court of Appeal ruled that loss of visibility, without the loss of access to the billboards, was not enough to sustain the billboard owner's claim (see , May 2005). The Second District also ruled that the billboard company owed the city $83,000 in expert witness fees, even though the city accumulated the expense before a settlement offer was made. The billboard company said the awarding of fees violated the Code of Civil Procedure. The case is , No. S132619.

Two water transfers from irrigation districts to the City of Tracy did not require a combined environmental impact report, the Third District Court of Appeal has ruled. The court found that the separate negative declarations adopted by the irrigation districts provided adequate review under the California Environmental Quality Act (CEQA). The court rejected the Sierra Club's arguments that the entities involved had improperly segmented one project, that cumulative and growth-inducing impacts had not been adequate addressed, and that the effects of delivery cutbacks were ignored. In writing for the court, Justice George Nicholson issued this warning: “The Sierra Club's failure to raise any facts to suggest cumulative or growth-inducing impacts exposes a possible intent to use CEQA simply to create delay. We caution CEQA plaintiffs 'that rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic or recreational development and advancement.' ( , (1990) 52 Cal.3d 553, 576)” In 1993, Tracy adopted a new general plan, under which the city's population could roughly quadruple to 130,000 people over 20 years. The general plan's environmental impact report calculated that the city would need 39,000 acre-feet of water per year to serve all of the growth permitted by the general plan. The city at the time had only 16,000 acre-feet of water - 10,000 acre-feet from the federal Central Valley Project (CVP), and 6,000 acre-feet of groundwater. The EIR said the city was exploring possible water transfers and directed the city to secure additional water sources. In 2001, the city signed separate agreements with The West Side Irrigation District and the Banta-Carbona Irrigation District. The contract with West Side assigned 2,500 acre-feet of water rights from the Central Valley Project to the city, and gave the city an exclusive option to obtain another 2,500 acre-feet of West Side's CVP water. The agreement with Banta-Carbona assigned rights to 5,000 acre-feet of CVP water to the city. In September 2002, the districts adopted negative declarations for the transfer of annual water rights. The Sierra Club sued the districts and the city for allegedly violating CEQA. San Joaquin County Superior Court Judge Bob McNatt ruled against the environmental group, a ruling that the Third District upheld on appeal. The Sierra Club contended that the two water transfers amounted to one project under CEQA, and that the city - not the irrigation districts - should have prepared one EIR. The Sierra Club pointed out that the water transfers rely on nearly identical initial studies, both require city and Bureau of Reclamation approval, and both seek to convert 5,000 acre-feet of CVP water from agricultural to urban uses. The appellate court was not convinced. It found that the assignments of water rights were separate and that the water districts could serve as lead agencies for the environmental reviews. The assignments were approved by different agencies, may be implemented independently, are not contingent on one another, involve separate water rights and different amounts, and were negotiated separately, the court noted. “Moreover,” Justice Nicholson wrote, “both initial studies acknowledge the other proposed assignment and analyze the cumulative impacts of both assignments.” Regarding those cumulative impacts, the Sierra Club contended that the negative declarations were deficient. The documents reported that the water transfers would not have incremental effects because the transfers would have no impact on area hydrology or growth beyond what had already been studied in the general plan EIR. The Sierra Club listed development projects that should have been considered in the environmental review, but that list did not satisfy the court. “Merely listing, as the Sierra Club does, other projects occurring in the area that may cause significant cumulative impacts is not evidence that the assignments will have impacts or that their impacts are cumulatively considerable,” Nicholson wrote. As for growth-inducing impacts, the court noted that the new water would be provided only to areas covered by the general plan, and that the negative declarations incorporated the general plan EIR's discussion of growth-inducing impacts. That approach was sufficient, the court ruled. As for cutbacks in CVP water deliveries during droughts, Nicholson wrote, “ he entire environmental analysis consists of analyzing the impacts that would occur under the very situation of which the Sierra Club complains.” The Case: , No. C044989, 05 C.D.O.S. 3390, 2005 DJDAR 4507. Filed March 22, 2005. Ordered published April 20, 2005. The Lawyers: For Sierra Club: Donald Mooney, (530) 758-2377. For the irrigation districts: Jeanne Zolezzi, Herum, Crabtree, Brown, (209) 472-7700. For the City of Tracy: Martha Lennihan, (916) 321-4460.

A new opinion issued by the state attorney general's office regarding housing elements appears to allow cities and counties to skirt their mandated fair-share housing numbers if the local government lacks the resources sufficient to provide the units. However, a number of people involved in the housing element process have downplayed the importance of the opinion. The Department of Housing and Community Development (HCD) called it merely a restating of existing law that does not affect the requirement that local governments plan for their fare share of housing at all income levels. The opinion by Deputy Attorney General Gregory Gonot came in response to a request from San Luis Obispo County, where controversy over the last round of the regional housing needs assessment was particularly sharp. The county, cities and the San Luis Obispo Council of Governments (SLOCOG) were at odds with HCD over the number of housing units for which the state officials said the county and cities must plan, in part because the state-mandated figures clashed with local growth management policies (see , July 2002). In the end, the county was willing to incorporate thousands more units of moderate and upper-end housing units into the county housing element, thus relieving the burden on the seven cities. Growth management policies, however, were not part of the question that the attorney general chose to answer. After convincing SLOCOG to reduce four housing law inquiries down to a single question, the attorney general addressed only financial resources. Gonot concluded: “A community may establish its maximum number of housing units by income category that can be constructed, rehabilitated, and conserved over the next five-year period below the number of housing units that would meet the community's goal of achieving its share of the regional housing needs established pursuant to the planning and zoning law if the community finds that its available resources in the aggregate, including but not limited to federal and state funds for its housing programs, its own local funds, tax or density credits, and other affordable housing programs, are insufficient to meet those needs.” In a process that chafes local officials across the state, HCD determines how many housing units - and at what income level - a regional should plan for over a five-year period. Councils of government then divide those numbers of among member cities and counties, which are supposed to incorporate their assigned numbers into updated housing elements. This is all known as the regional housing needs assessment (RHNA) process. Government Code § 66583 authorizes a city or county to determine a “quantified objective” that sets the maximum number of housing units by income category that can be provided over five years, according to Gonot. This maximum number “need to be identical to the total housing needs” that come out of the RHNA process if the local government lacks the resources to satisfy the need, Gonot writes. “ he legal issue to be resolved is whether federal and state housing funds constitute part of a community's 'resources' for purposes of setting the community's quantified objectives,” the opinion states. “We believe that such funds constitute some of the resources of a community.” The opinion continues, “We note, however, that if a lack of federal and state funds is found by a community to be one of the circumstances causing the community to set its quantified objectives below the number representing its total housing needs, the validity of such determination may be challenged in court by any interested party pursuant to the terms of Government Code § 65587. Moreover, it would not be appropriate to look solely at the unavailability of federal and state housing funds without determining whether other resources were available to meet the community's share of the regional housing needs.” In San Luis Obispo County, the opinion states “basically what we had assumed,” said Peter Brown, a planner for SLOCOG. Brown said SLOCOG raised the question for the AG because of concerns that the RHNA process created unfunded mandates on local governments that are unable to accommodate all of the new housing assigned by the state. The AG's opinion appears to say that there is no unfunded mandate because local governments must take into account federal, state and local resources. Still, the opinion does recognize that there are limits to what local governments can do to provide housing, said Bill Higgins, of the League of California Cities' Institute for Local Government. Funding for affordable housing is “a huge limitation,” he said. But if a city that is updating its housing element cites funding limitations, it had better be prepared to defend itself to both HCD and a court, he added. Janet Huston, an HCD spokeswoman, called the opinion a “reiteration of current law.” “The law is clear that communities have to plan for these targets, but you can't force communities to construct those units,” Huston said. “There's really nothing new in this regard in the opinion.” The opinion does spell out what resources a city or county must consider, which is helpful, she said. Mike Rawson, an attorney for the California Affordable Housing Law Project, said that the opinion did not break new ground. “Before the question was asked, I think everybody agreed on the answer: Your quantified objective in the housing element does not have to be equivalent to your housing need,” Rawson said. The requirement to plan for a fair share of housing units is a separate question, he said. Rawson agreed with HCD officials that the opinion is helpful in specifying that a city or county must count all resources available - federal, state and local. The attorney general's opinion is No. 03-104. It was published May 18, 2005 at 2005 DJDAR 5766. Contacts: Peter Brown, San Luis Obispo Council of Governments, (805) 781-4219. Janet Huston, Department of Housing and Community Development, (916) 324-4477. Mike Rawson, California Affordable Housing Law Project, (510) 891-9794, ext. 145. Bill Higgins, League of California Cities, Institute for Local Government, (916) 658-8250.

If an oil company wants to build a service station in California, it typically needs a permit from the local air pollution control agency, which has the authority to consider whether vapors released during fueling might harm neighbors. If the station is a big one and has been proposed for a vacant lot next to a day-care center, the oil company might never get that permit. But if a developer proposes building a day-care center next to a service station, no air-quality permit is required. Local land use authorities, such as the city council or planning commission, would provide the only review, and they may or may not consider the health implications of toxic air emissions when deciding whether the site is appropriate for children. The same goes for many other projects - medical clinics, housing tracts, schools, retirement homes, playgrounds - with the potential to place vulnerable populations near existing uses that may jeopardize their health. In an effort to integrate public health into the review process, the California Air Resources Board (ARB) has adopted a set of guidelines local agencies can use to prevent land use conflicts of this sort. The board approved the document, titled “Air Quality and Land Use Handbook: A Community Health Perspective,” on April 28. Although it promises to address an issue of growing concern to health advocates, the handbook also promotes a policy shift that could complicate efforts by California communities to redevelop their aging urban fabric using “smart growth” principles. If widely employed, the policies and procedures outlined in the handbook also would involve local air quality officials more deeply in the project review process. While welcomed by environmental justice advocates, who argue that communities have long dumped undesirable projects on poor and minority neighborhoods, the prospect of an additional hurdle is likely to dismay developers, who are already critical of the slow pace, complexity and cost of regulatory compliance in California. The risk of developing acute illness from direct exposure to substances known to be toxic or carcinogenic is well established. It is only recently, however, that researchers have begun identifying proximity to traffic-clogged freeways, or to ports and distribution centers frequented by diesel trucks, as risk factors for a variety of health problems, including asthma and heart attacks. Many of these stem from exposure to the fine soot particles in diesel exhaust. “Recent air pollution studies have shown an association between respiratory and other non-cancer health effects and proximity to high traffic roadways. Other studies have shown that diesel exhaust and other cancer-causing chemicals emitted from cars and trucks are responsible for much of the overall cancer risk from airborne toxics in California,” the ARB handbook warns. As a remedy, the ARB handbook recommends that local general plans, zoning laws and conditional use permit requirements be revised to prevent new “sensitive land uses” - characterized as any residence, schools and other facilities for children, and any medical facility - from being approved in the following areas: o Within 500 feet of a freeway, urban roads with 100,000 vehicles a day, or rural roads with 50,000 vehicles a day. o Within 1,000 feet of a distribution center that accommodates more than 100 trucks per day. o Within 1,000 feet of a major service and maintenance rail yard. o Immediately downwind of ports and petroleum refineries. o Within 1,000 feet of a chrome plater. o Within 300 feet of any dry cleaning operation that uses perchloroethylene. o Within 300 feet of a large gas station, defined as one that dispenses 3.6 million gallons or more per year, or within 50 feet of a typical gas station. “Our intent is to highlight potential health impacts associated with living, playing and going to school near high air pollution sources so land use decision makers can consider these issues throughout the land use planning process,” ARB Acting Chair Barbara Riordan said in announcing the handbook's adoption. The ARB handbook is one of several efforts under way in California to bring air-quality considerations into the planning process. Legislation pending in Sacramento, SB 44 by Sen. Christine Kehoe (D-San Diego), would require local governments to add air quality elements to their general plans. And on May 6, the South Coast Air Quality Management District board approved a “Guidance Document for Addressing Air Quality Issues in General Plans and Local Planning,” which suggests ways local governments in the Los Angeles region can implement regulations similar to those outlined in the ARB handbook. There is a clear public health interest in keeping schools, day-care centers, medical clinics and other "sensitive uses” away from industrial plants, heavily traveled freeways and other pollution sources. The handbook acknowledges, however, that a rigorous application of that principle would require buffer zones and other constraints that might hamper urban infill projects, transit-oriented development and other hallmarks of the smart growth movement. “Avoiding incompatible land uses can be a challenge in the context of mixed-use industrial and residential zoning,” the documents says. “For a variety of reasons, government agencies and housing advocates have encouraged the proximity of affordable housing to employment centers, shopping areas, and transportation corridors, partially as a means to reduce vehicle trips and their associated emissions.” To developers and builders, the policy recommendations appear to transfer responsibility for reducing the adverse health effects of air pollution from the polluter to innocent bystanders - namely, the building industry. Tim Piasky, director of environmental affairs for the Building Industry Association of Southern California, argued that the ARB should require diesel users to clean up their emissions rather than advise landowners to surrender property for buffer zones. Requiring such buffers without compensating landowners, he suggested, could amount to an unconstitutional taking of property. Additional restrictions also would drive up the cost of housing, he warned. Environmental justice advocates, however, are cheered by the prospect that health considerations might begin to play a stronger role in local land use decisions. “We're not asking for sprawl” said Joseph Lyou, executive director of the California Environmental Rights Alliance. “We just want to make sure the growth in urban areas is done in an informed manner, and one that acknowledges the public health impacts of these land use decisions.” Contacts: Air Resource Board's “Air Quality and Land Use Handbook: A Community Health Perspective”: www.arb.ca.gov/ch/landuse.htm . Building Industry Association of Southern California, (909) 396-9993. California Environmental Rights Alliance, (310) 536-8237.

West Sacramento appears to be a city whose time has come. For many years before and after its incorporation in 1987, West Sacramento has been a manufacturing and logistic industry hub. While the Sacramento region has grown in recent decades, that growth has gone mostly east and south of Sacramento to suburbs such as Roseville, Folsom and Elk Grove. Meanwhile, West Sacramento - right across the Sacramento River from the capital city - bided its time. Now, developers have “discovered” the Yolo County city of 40,000 people. Developers are building thousands of suburban-style houses in the southern half of town. In the northern part of town (a ship channel cuts the city in half), the city is seeing private market interest in redevelopment plans that could transform parking lots and a rough industrial area into an urban mixed-use district. Also on the way: Extension of a riverfront promenade for 3 1/2 miles, and redevelopment of West Capital Avenue into a walkable, heavily landscaped boulevard. “West Sacramento had this rough and tumble, wild West image in the region,” said longtime Community Development Director Steve Patek. “The regional developers just were not willing to take a chance here.” But when new houses started selling quickly in the southern half of town about five years ago, developers started looking for opportunities in West Sacramento, Patek said. And when a 57-unit, new urbanist-oriented housing project across the I Street bridge from Sacramento sold out quickly last year, more developers took note. During the 1930s, '40s and '50s, thousands of modest homes were built in West Sacramento. From the 1950s through the 1980s, industrial development, including warehouses, predominated. The Port of Sacramento opened in West Sacramento during the 1960s. West Sacramento leaders, however, saw more potential for their town - potential that was not being realized. So they led a successful incorporation effort. Within three years of incorporation, however, the real estate market crashed just about everywhere in California, including in the Sacramento region. The real estate slowdown provided West Sacramento with a chance to plan. Over a period of years, the city adopted the Southport Framework Plan, which calls for 14,000 housing units and 4 million square feet of commercial and industrial space on the 7,100 acres in the southern half of town (see , March 2000). In 1997, the city completed a second bridge across the shipping channel connecting the two parts of town. The city also adopted the Triangle and Washington specific plans for riverfront redevelopment, an action plan for West Capital Avenue redevelopment, and more recently completed a waterfront plan in cooperation with the City of Sacramento. In 1999, the city landed a stadium for the AAA-affiliate of the Oakland A's (see , March 1999). When Raley Field opened just across the river from Old Town Sacramento, many people thought that West Sacramento riverfront redevelopment was on its way - especially because the stadium was near the iconic Ziggurat office building constructed for The Money Store during the 1990s. But redevelopment continued to wait. The Money Store, a “sub-prime” lender, went under several years ago, and the 11-story Ziggurat has not been fully occupied since. In the Triangle Area just south of Raley Field, a railroad spur serving a cement plant created both a “physical and psychological barrier” to plans for new development, said West Sacramento Redevelopment Manager Les Bowman. But there is reason to believe the city's long-held plans to make something of its waterfront are moving forward. The city has committed to moving the cement plant to a location near the port, which could cost the city's redevelopment agency as much as $15 million, Patek said. But the move will allow destruction of the rail spur. If all goes smoothly, private development in the area could start in about 2 1/2 years, according to Bowman. The specific plan for the 180-acre Triangle area calls for up to 5,000 dwelling units, 7 million square feet of offices and retail space, and a riverfront park with an amphitheater. The largest landowner, Fulcrum Capital Properties, which has ties to the Rumsey Band of Wintun Indians, is the largest landowner in the specific plan area and has submitted an application for 1,750 dwelling units and 1.1 million square feet of office space on 50 acres. In the Washington specific plan area just north of the stadium, Panattoni Development and Signature Properties have proposed a 27-acre, mixed-use project of 750 dwellings, 845,000 square feet of offices, some commercial and retail uses, and a hotel and conference center. The Signature portion of the project - 550 condominiums and local-serving retail space on 7.4 acres - is remarkable for its density. There is nothing quite like it in the region, said John Bayless, a Signature vice president. The location is the attraction: Right across Tower Bridge from Sacramento. “We're just looking at the extension of the Capital Mall. West Sacramento has the opportunity to extend that parkway feel across the river,” Bayless said. “The risk is that you're going in where there is nothing. The benefit is that those who come along at the same time or after use will bring new product.” Bowman believes the project makes sense. “It's the right place for those densities, and it's the right time for those densities,” he said. “It's literally a stone's throw to downtown. I can't think of a better place to put those densities from a 'smart growth' perspective.” The connection to downtown Sacramento provided by the two-lane Tower Bridge is critical to riverfront development - so critical, in fact, that the two cities have cobbled together $9 million to fund the construction of 10-foot-wide walkways on the historic bridge. Construction could start next year, Bowman said. Pedestrians and redevelopment efforts will also benefit from the planned River Walk Park extension. Ultimately, the city hopes to have a 3.5-mile linear park along the river. The city is now seeking designs. Tower Bridge links Sacramento's Capital Mall with West Sacramento's West Capital Avenue, where the city plans to invest $18 million over five years. The plan is to narrow the former Highway 40, which is up to eight lanes wide, to four lanes, build wide sidewalks, plant extensive landscaping and leave room for a light rail line in the median. City officials hope the conversion will spur private investors to build high-density housing along West Capital, which is lined with underused stores and low-rent motels. “It's a classic planning and redevelopment problem that communities all over the country have had, which is what do you do when the highway bypasses your primary street,” Bowman said. The city's plans have attracted an application from a developer who wants to build 200 townhouses along West Capital. What's going on the ground right now in West Sacramento, though, is suburban-style development. Since 2000, the city has issued permits for 4,000 units in the Southport area, according to Patek. On the city's north end, Grupe is developing a high-end, 1,100-unit house and multi-family project on a former golf course. And there is an application for another 2,000 units in an area proposed for annexation south of Southport. West Sacramento is also getting its first power center on an 80-acre site adjacent to Interstate 80. Ikea will be an anchor. Patek expects the 900,000-square-foot center to be full in less than three years. Contacts: Steve Patek, West Sacramento Community Development Department, (916) 617-4620. Les Bowman, West Sacramento Redevelopment Agency, (916) 617-4535. John Bayless, Signature Properties, (916) 789-2400. Sacramento Riverfront Master Plan: www.cityofsacramento.org/riverfrontmasterplan .

A City of San Francisco decision to deny an application for a cell phone antenna has been upheld in part by the Ninth U.S. Circuit Court of Appeals. The court, though, found that questions remained as to whether the city improperly discriminated against the antenna applicant and whether the denial prohibited the provision of wireless services. The Ninth Circuit sent the case back to the District Court for further proceedings. The permitting of cell phone antennas has vexed planners since Congress passed the Telecommunications Act of 1996. Exactly how far local governments may go in regulating wireless communication antennas has been the subject of extensive litigation. With it latest ruling, the Ninth Circuit attempted to make some rules clearer. In early 2002, MetroPCS applied for a conditional use permit to install a six-panel antenna on an existing light pole on the roof of a Geary Boulevard parking garage in the Richmond District. The Planning Commission approved the permit, but a resident appealed to the Board of Supervisors. Eighty local property owners and hundreds of other San Francisco residents signed petitions supporting the appeal. They argued that the antenna was not necessary for MetroPCS or the community, that the antenna would create a visual blight, and that the antenna would produce harmful radio frequency emissions. In June 2002, the Board of Supervisors unanimously overturned the Planning Commission's decision. MetroPCS then filed a suit in federal court. The company argued that the board's decision violated the Telecommunications Act because it was not “in writing,” was not supported by substantial evidence, was unreasonably discriminatory among wireless service providers, prohibited the provision of wireless service and was improperly based on radio frequency emissions concerns. District Court Judge Phyllis Hamilton issued summary judgment for the city regarding all claims except one. Hamilton found that material questions of fact remained as to whether the board's decision “had the effect of prohibiting the provision of personal wireless services.” Both sides appealed, and a three-judge panel of the Ninth Circuit largely upheld the lower court. The Ninth Circuit first dealt with the question of whether the board's decision was in writing. The Circuit Courts are divided on exactly what the Telecommunications Act means by “in writing.” Some circuits demand detailed written explanations similar to a court ruling, while the Fourth Circuit is satisfied with the word “denied” stamped on an application. The Ninth Circuit panel chose to follow the standard set in , 244 F3d 51 (First Circuit, 2001). The standard requires local governments to “'issue a written denial separate from the written record' which 'contains a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons,'” according to the Ninth Circuit. Under this standard, the San Francisco board's five-page written decision - which summarized the facts, recounted the proceedings, articulated the board's reasoning and explained the evidentiary basis for the decision - stood up. The next issue for the court was whether substantial evidence existed to support the permit denial. On this issue, the court divided 2-1. The majority held that the court “may not overturn the board's decision on 'substantial evidence' grounds if that decision is authorized by applicable local regulations and supported by a reasonable amount of evidence (i.e., more than a 'scintilla' but not necessarily a preponderance).” The board based its decision in part on the necessity of the antenna. Local zoning regulations authorize the community necessity decision, and, according to the court majority, “the record does clearly establish that the Richmond District is amply served by at least five other major wireless service providers.” Thus, the majority ruled that substantial evidence existed for the board to conclude the proposed antenna was not necessary. Dissenting on this one point, Judge Susan Graber said the board's determination of necessity conflicted with the Telecommunications Act's provisions barring unreasonable discrimination among service providers. “ he board's 'necessity' finding cannot support its denial of MetroPCS's request even if substantial evidence supports that finding,” Graber wrote. The court reunited on the company's discrimination claim. Here, the appellate panel overturned the lower court. The Telecommunications Act contemplates some discrimination. To prove unreasonable discrimination, a provider “must show that they have been treated differently from other providers whose facilities are 'similarly situated' in terms of the 'structure, place or cumulative impact' as the facilities in question,” the court ruled, citing , 196 F.3d 469, 480 (Third Circuit 1999). The Ninth Circuit held that the record was unclear on whether the city treated MetroPCS's proposed antenna differently. SprintPCS has a wireless facility on Geary Boulevard only two blocks away, and Cingular Wireless has a rooftop antenna in the same neighborhood and “there appears to have been no detailed inquiry into the similarity of the existing facilities to the proposed MetroPCS facility,” Seventh Circuit Judge Richard Cudahy, sitting by assignment, wrote for the court. Thus, the Ninth Circuit sent the question of discrimination back to the lower court. As for MetroPCS's prohibition claim, the question boiled down to the definition of “significant gap” in service. The Second and Third Circuits have ruled that a significant gap exists only if no provider offers coverage, while the First Circuit defines “significant gap” as one in which the provider in question has a hole in its network. The Ninth Circuit chose the First Circuit's rule. “ significant gap in service, and thus an effective prohibition of service, exists wherever a provider is prevented from filling a significant gap in service coverage,” Cudahy wrote. Whether that was case for MetroPCS in the Richmond District was unclear, so the District Court rightly declined to grant summary judgment to either side, the Ninth Circuit ruled. Finally, the Ninth Circuit rejected MetroPCS's argument that the Federal Communications Commission's licensing authority preempted a city decision regarding “necessity,” and dismissed the claim that the board relied on radio frequency emissions as a basis for its decision - which the Telecommunications Act specifically prohibits. The board's written decision did not mention radio frequency emissions. The Case: , No. 03-16759, 05 C.D.O.S. 1988, 2005 DJDAR 2835. Filed March 7, 2005. The Lawyers; For MetroPCS: Martin Fineman, Davis, Wright, Tremaine, (415) 276-6500. For San Francisco: William Sanders, deputy city attorney, (415) 554-6771.

The meetings of two Malibu City Council members whom the council had charged with reviewing and negotiating over a land use plan prepared by the Coastal Commission were not subject to the state's open meeting law, an appellate court panel has ruled. A citizens group argued that then-Mayor Joan House and Councilman Jeff Jennings were functioning as a committee that should have been covered by the Brown Act, which regulates local government meetings. But the court ruled that House and Jennings composed a “limited term ad hoc committee” that was not required to meet in public. Adoption of a Local Coastal Plan (LCP) - a plan that regulates development in the coastal zone - has been a controversial issue in Malibu since the city incorporated in 1991. The city never adopted an LCP, so the state Legislature directed the Coastal Commission to prepare a plan for the city. The city has fought the Coastal Commission every step of the way. In September 2001, the Coastal Commission issued a draft of the land use plan (LUP), one element of the coastal plan. Thereafter, House and Jennings conducted private meetings with various individuals and staff members to “go over the city's response” to the draft plan, according to the court. In December 2001, House and Jennings recommended that the City Council not accept the Coastal Commission's plan. The council directed House and Jennings to continue negotiating with the Coastal Commission. Some people had asked that House and Jennings open their meetings to everyone, but city officials insisted that public meetings were not required. A group called Taxpayers for Livable Communities sued, arguing that the meetings violated the Brown Act (Government Code § 54950). Los Angeles Superior Court Judge Ronald Sohigian ruled for the city, finding that House and Jennings were not a “legislative body” to which the Brown Act would apply. Taxpayers for Livable Communities appealed. A three-judge panel of the Second District Court of Appeal, Division Eight, upheld the lower court. Taxpayers for Livable Communities argued that House and Jennings were a standing committee for land use and planning. Standing committees of a legislative body are subject to the Brown Act. Jennings and House were the only two members of the Land Use and Planning Committee, but the trial court and the appellate panel ruled that the City Council had reserved for itself jurisdiction over the city's response to the Coastal Commission. “ ust because the Land Use and Planning Committee tried to develop Malibu's Local Coastal Program does not mean the City Council gave the Land Use and Planning Committee jurisdiction over the city's response to LUP for Malibu,” the appellate court ruled. Taxpayers for Livable Communities also argued that House and Jennings were an “other body” within the meaning of the Brown Act because they had decision-making authority. The appellate court, however, pointed to the Attorney General's “2002 Handbook on the Brown Act.” “ he Handbook,” wrote the court, “offered as an example of an exempt advisory committee 'two city council members named to a committee for the purpose of producing a report in six months on downtown traffic congestion.' The Handbook explains that the Brown Act does not apply to the traffic committee because it is a 'limited term ad hoc committee' charged with accomplishing a specific task in a short period of time. Change the subject matter from traffic congestion to the Coastal Commission's Land Use Plan, and Jennings and House are indistinguishable from the Handbook's hypothetical council members.” Taxpayers for Livable Communities argued that the evidence regarding the responsibilities of House and Jennings could be interpreted differently, but the Second District ruled that the trial court properly resolved any conflicts in favor of the city. The Case: , No. B168630. 05 C.D.O.S. 1366. 2005 DJDAR 1855. Filed February 15, 2005. The Lawyers: For Taxpayers: Corin Kahn, (818) 907-8986, For the city: Christi Hogin, Jenkins & Hogin, (310) 643-8448.