The forests of the Sierra Nevada have long been a landscape of controversy, a battleground for conflict over logging, wildlife protection, water diversion, and the accelerating encroachment of vacation homes and subdivisions into flammable scenery. Gubernatorial politicking may soon move into the woods as well, as forest policy could provide an issue that Democratic challengers to the state's Republican governor use to draw a contrast between themselves and the incumbent. During the recall campaign that swept him into the state's highest office, California Gov. Arnold Schwarzenegger issued a package of promises - "Arnold's Agenda to Bring California Back" - that included a strong environmental component. Among the planks that most cheered green groups was a pledge to uphold and defend a landmark forest management plan called the Sierra Nevada Framework against critics' efforts to derail it. The framework established new rules for managing 11 national forests encompassing 11.5 million acres of the Sierra Nevada (see CP&DR Environment Watch , April 2004, March 2001). The framework would have established a protected network of "old forest areas" to maintain suitable habitat for old-growth-dependent species. The plan put large trees off limits to logging. An estimated 191 million board feet of timber would have been available for harvest during each of the first five years, a one-third reduction from logging levels during most of the 1990s. The purpose of the framework was to avoid a repeat of the court-ordered logging shutdown that affected Oregon and Washington during the late 1980s and early 1990s, the result of protections imposed through litigation for endangered wildlife dependent on old-growth forests, such as the spotted owl. The process of developing the Sierra plan involved local community groups, the timber industry, scientists, environmentalists, recreation groups, economists, and state and federal agencies. It cost $20 million, involved nearly 200 public meetings and attracted the participation of 47,000 people. It was finalized in January 2001 just three days before President Clinton left office. The U.S. Forest Service (USFS) initially indicated support for the plan. "I believe our new management direction will protect and improve habitat for species, and avoid the need for listings as threatened or endangered," Pacific Southwest Regional Forester Brad Powell said when he issued the final decision adopting the framework. "This will also reduce flammable materials in these areas to the point that prescribed fire can be used safely." Before the year was out, however, the new regional forester, Jack Blackwell, announced his agency would undertake an extensive "review" of the document after receiving more than 200 appeals. The veiled meaning of Blackwell's announcement was not lost on environmentalists or those seeking their support. During the 2003 recall campaign, Schwarzenegger called the plan "a model of forest ecosystem protection," and pledged that if elected governor, he would "direct all relevant state agencies to comply fully with the framework and call on the federal government to honor its pledge to abide by the policies set forth in this unprecedented compact." The federal government clearly felt unbound by the pledge. In January 2004, only two months after Schwarzenegger became governor, the revised framework landed on his desk with a thud. Critics said it was less a revision than a wholesale rewriting of the plan. The new plan more than doubles the amount of logging, eliminates the protected "old forest areas" and allows larger trees to be cut. "Our district rangers who have worked hard to implement the (2001) framework have told me that it's difficult or impossible to meet its good goals," Blackwell said in issuing the new plan. "For instance, the framework's reliance on prescribed burning to reduce fuels is not working out due to limitations imposed by weather or local residents' objections to smoke." Cutting more and larger trees was necessary, Blackwell said, to "help offset the cost of removing the less valuable smaller trees and brush that are unnaturally dense due to decades of fire suppression." In response, Governor Schwarzenegger veered off the path blazed by Candidate Schwarzenegger. The pro-framework pledge quietly disappeared from his campaign website. And he submitted no formal response to the Sierra plan revision, even though 9,000 members of the public filed appeals with USFS objecting to the new version. On March 21, Agriculture Undersecretary Mark Rey (a former timber industry lobbyist) affirmed the revised plan. Attorney General Bill Lockyer, who had vowed to sue the Bush administration if it overturned the 2001 framework, made good on his word. In a complaint filed February 1, he accused the Forest Service of acting "arbitrarily and capriciously in jettisoning the 2001 framework," and contended that the agency had thereby violated both the Administrative Procedure Act and the National Environmental Policy Act. In producing the new policy as a replacement for the 2001 plan, Lockyer argues, the USFS provided no reasoned analysis justifying the change. It also failed, he contends, to conduct a thorough environmental review of the new policy as required by NEPA, and did not examine alternatives to the policy it adopted. Lockyer's lawsuit echoes many of the criticisms directed at the Forest Service by environmental organizations and community groups that participated in creation of the earlier framework. "The Framework was a balanced approach to forest management that reduced the wildfire threat to communities while protecting forests, wildlife and water quality," said Craig Thomas of the Sierra Nevada Forest Protection Campaign. "This decision revokes a sound plan and ignores the advice of scientists commissioned to review it." Continuing his campaign to intercede where the Schwarzenegger team has been noncommittal, Lockyer also filed a lawsuit March 3 challenging a USFS management plan for Giant Sequoia National Monument that would allow commercial logging of up to 7.5 million board feet annually. It is not only federal forests that provide an opportunity for Schwarzenegger's critics to focus potentially unflattering attention on the sincerity of the governor's commitment to environmental principles. Earlier this year, the governor - who has appointed former timber-industry representatives to high-level positions in the state's resource management agencies - was asked to intervene in a dispute between Pacific Lumber Company and the North Coast Regional Water Quality Control Board over logging on company land in Humboldt County (see CP&DR Environment Watch , March 2005). Lockyer, a Democrat, is a probable candidate for governor in 2006. Before he can take on Schwarzenegger (assuming the governor seeks re-election) Lockyer will face off against state Treasurer Phil Angelides, who announced his candidacy on March 15. It is unlikely that forest policy alone will put any candidate on the endangered list, but it does allow potential challengers to chip away at the governor's image.

The Third District Court of Appeal has published its decision in a case involving the environmental impact report for the 6,000-acre Sunrise Douglas community plan in the City of Rancho Cordova. In a rather harsh opinion, the Third District ruled against the Environmental Council of Sacramento and Vineyard Area Citizens for Responsible Growth. The court found that the project opponents failed to state the facts fairly and did not address the evidence in the record (see CP&DR Legal Digest , March 2005 ). The case is Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova , No. C044653, 05 C.D.O.S. 2170, 2005 DJDAR 2979. It was filed on February 8, 2005, and ordered published on March 10, 2005.

The City of Escondido erred when it approved a lower-than-requested mobile home rent increase, but the city's action did not constitute a taking of private property, the Fourth District Court of Appeal has ruled. The court determined that the city did not have evidence to support the $31 rent increase. But rather than find that a taking occurred, the court simply directed the city to conduct a new hearing on the mobile home park owner's rent increase request. Escondido voters approved mobile home rent control in 1988. The ordinance and its application have been litigated virtually nonstop ever since. The H.N. & Frances C. Berger Foundation brought the case at hand. Berger owns a 155-unit, senior mobile home park. In February 2002, Berger applied for a $90 increase, equal to 25% of the average rent. The City Council, acting as the Mobilehome Rent Review Board, approved an increase of $31. Berger sued, seeking damages based on inverse condemnation and a violation of due process. San Diego County Superior Court Judge Lisa Guy-Schall ruled for the city. On appeal, a unanimous three-judge panel of the Fourth District, Division One, reversed part of Guy-Schall's decision. Escondido's rent control ordinance lists a number of factors for the Rent Review Board to consider in granting increases, but the ordinance does not specify a method or formula. For Berger's request, the city's expert on the question of a fair return on investment was Kenneth Baar, author of . He recommended an increase of $26.50 to cover higher operating costs, two capital improvements and an application fee. He recommended an additional $11.94 increase based on an indexing of the increase in the consumer price index (CPI) - for a total rent rise of $38.44. The board accepted Baar's recommendation, but it also considered two other figures, $31.67 and $25. The $31.67 was based strictly on 60% of the increase in the CPI. The $25 figure was based on a study of comparable mobile home spaces, excluding non-rent-controlled spaces. The board averaged the three figures and rounded down to $31. The Fourth District ruled that the “averaging method was faulty because there was no showing that two of the figures the board relied on were within the range of reasonable rents under the fair return criterion.” The $25 figure was based on the single factor of comparable rents, but only for rent-controlled spaces. The city could not make that distinction because, under the ordinance, “the mobile home park must be comparable, not the manner in which rents are set,” the court ruled. As for the $31.67 figure, there was no evidence to support that a straight 60% of the CPI increase amounted to a fair rate of return, the court ruled. In fact, Baar stated that a fair rate of return had to consider increased operating expenses and capital improvements. The court, however, rejected Berger's argument that rents must rise by 100% of the CPI. Berger's operating expenses increased at less than the CPI, the court noted. “Moreover, as Dr. Baar explained in his report, the use of indexing ratios may satisfy the fair return criterion because park owners typically derive a return on their investment not only from income the park produces, but also from an increase in the property's value,” Presiding Justice Judith McConnell wrote for the court. As for the inverse condemnation and due process contentions, the court ruled that Berger had not properly briefed the issues. Additionally, the court held, “when the remedy of future rent adjustments is available as a matter of due process, as here, there can be no taking or other civil rights violation.” The court directed the city to give Berger a new hearing. The Case: , No. D043829, 05 C.D.O.S. 1686, 2005 DJDAR 2257. Filed January 26, 2005. Ordered published February 24, 2005. The Lawyers: For Berger: Ronald St. John, Barton, Klugman & Oetting, (213) 621-4000. For the city: Donald Lincoln, Endeman, Lincoln, Turek & Heater, (619) 544-0123

In a March referendum election, El Dorado County voters upheld a revised county general plan and rejected a growth-control measure that would have tied growth to Highway 50 improvements. The election was another step toward a new general plan, as the county has been without a legal general plan for six years. In other March election activity, voters in Palm Springs sent a decidedly mixed message by rejecting an initiative to prohibit most development in the hills above town while also rejecting a golf course resort planned in those same hills. In Beverly Hills, voters upheld a city decision to approve and subsidize an upscale resort project. In an advisory measure, Redondo Beach voters said they would like to see a 65-acre park replace a waterfront power plant. El Dorado County has been trying to get a new general plan for nearly a generation. The county started an update process in 1989. A consultant completed a draft plan in 1992, and staff members prepared a second draft in 1994, only to have a new, pro-growth Board of Supervisors alter the plan again before adopting it in 1996. A collection of 18 homeowner and environmental groups and government agencies sued the county, arguing that the environmental impact report for the plan was inadequate. In 1999, a Sacramento County judge agreed with the general plan opponents in finding numerous problems with the EIR (see , March 1999, March 1996). The ruling ended the county's ability to approve discretionary projects, and required the county to get court ratification of any new general plan. One year ago, El Dorado County voters overwhelmingly rejected an initiative that was similar to the 1996 plan. Still, county officials used the 1996 plan as the base for a general plan that the Board of Supervisors adopted in July 2004. Opponents, who argued the plan permits too much growth in the mostly rural county, quickly qualified a referendum for the ballot. The latest version of the plan continued to divide the Board of Supervisors, but the board majority, as well as U.S. Rep. John Doolittle (R-Rocklin) and Assemblyman Tim Leslie (R-Tahoe City) urged voters to keep the plan. In the March election, 50.9% of voters backed Measure B to keep the plan. The next step is for the county to get clearance from the court to implement the plan. However, the county can expect a courtroom fight from opponents. Attorney Stephan Volker, who represents the opponents, said the EIR for the general plan ignores impacts to high Sierra lakes that would serve as water sources, oak woodlands and wildlife habitat. By a wider margin (60.5% to 39.5%), El Dorado County voters rejected Measure D, an initiative that would have prohibited new subdivisions until Highway 50 between Cameron Park and the Sacramento County line is widened to eight lanes. Most of that stretch of freeway is four lanes. Voters in the City of Palm Springs also faced one referendum and one initiative. In the desert city, the referendum concerned the Palm Hills project, a resort of more than 100 houses and time-share units, a hotel and a golf course in the foothills of the Santa Rosa Mountains at the southeastern edge of town. The City Council approved the project last year, but 55.6% of the electorate voted no on Measure C, overturning the council's decision. The mountains above Palm Springs have remained almost entirely undeveloped, and the Sierra Club-backed Measure B sought to keep the hillsides that way. The measure would have established 40-acre minimum lot sizes for a 55-square-mile preservation zone along the city's southern and western borders. Besides the Palm Hills projects, two smaller housing developers are planned in the hills. Although 54.8% of voters rejected the hillside preservation initiative, environmentalists vowed to keep fighting in the courtroom and at the ballot box. In Beverly Hills, voters backed a new hotel on North Beverly and North Canyon drives, in the Golden Triangle. In approving the Measure A referendum 53.5% to 46.5%, voters backed the Beverly Hills Garden Specific Plan, which the City Council approved last year. The project calls for a 214-room Montage hotel topped by 25 condominiums. The upscale hotel would feature a spa, banquet facilities, a restaurant, ground floor retail shops, and a roof-top swimming pool and grill. Under an agreement with developer Athens Group, the city agreed to invest $33 million in an underground parking garage, a 33,000-square-foot public garden and a three-story civic building. Athens Group, Montage and the owners of the existing Peninsula Beverly Hills hotel, who opposed the project, spent more than $3 million on the election, equal to about $350 per vote. Project opponents said the deal was bad for the city, in part because officials were not counting in the subsidy the $14 million worth of the public land involved in the project. They also complained because the Montage would be eight stories in an area currently limited to 45-foot-tall buildings and would bring additional traffic. Backers countered that the city-owned land would remain in public hands so it did not amount to a subsidy. They said the project would generate $5 million to $6 million annually in bed, sales and property taxes. They also said the project would replace empty and earthquake-damaged buildings. The Redondo Beach advisory election concerned waterfront land owned primarily by AES, which operates a power plant on the site. Although the land does not appear to be available, voters were asked to choose between a 65-acre park, and a seaside development of 350 housing units, a hotel, some commercial space and a 16-acre park. About 55% of voters picked the big park.

Los Angeles County supervisors approved a revised environmental impact report for a 2,500-unit project in the Santa Clarita Valley, a project that two years ago lacked proof of adequate water. The revised EIR does not identify new sources of water. Rather, the document provides additional analysis of the reliability of the State Water Project (SWP) and more information from the Castaic Lake Water Agency regarding local supplies, demand and future needs. The 2003 Court of Appeal decision in Santa Clarita Organization for Planning the Environment v. County of Los Angeles , 106 Cal.App. 4th 715 (see CP&DR Legal Digest , April 2003) was memorable for the second sentence of the ruling: "The dream of water entitlements from the incomplete State Water Project (SWP) is no substitute for the reality of actual water the SWP can deliver." The court was particularly critical of the county for not addressing the SWP's ability to deliver water, and the likelihood of new local supplies being developed. While the revised EIR satisfied the Board of Supervisors, environmentalists were not persuaded and vowed to continue fighting. Supervisor Zev Yaroslavsky also was not convinced, and he cast the lone vote against the environmental study because of ongoing concerns over "paper water." The revised EIR must satisfy the court before the project may advance. The developer, Newhall Land and Farming, is confident this version of the EIR will pass muster. "It was not an issue of water supply. It was an issue of analysis," Newhall spokeswoman Marlee Lauffer said. Two environmental organizations have reached an agreement with developers at Northstar Resort that will end the environmentalists' opposition to a proposed 1,450-unit condominium and townhouse development at the high Sierra resort in eastern Placer County. Developer East West Partners Tahoe reached the agreement with Sierra Watch and Mountain Area Preservation Foundation. In exchange for the environmental groups' support for the Highlands project, East West and property owner Trimont Land Company agreed to prepare a Habitat Conservation Plan for the entire 8,000-acre resort, the majority of which is undeveloped. Also, a real estate transfer fee of 0.50% will be placed on all sales at Northstar, with the money going to the Truckee Donner Land Trust. The fee is expected to generate $30 million over 25 years for land purchases in the Martis Valley, which is experiencing a great deal of growth pressure. Also, East West agreed to leave untouched 233 acres along Highway 267, which links Truckee with Lake Tahoe's north shore. The agreement was announced in March, only two weeks after Placer County approved the project. The agreement, however, may not end existing Northstar property owners' objection to development. Last year, an appellate court ruled for the property owners, who had contested the county's environmental review of an earlier phase of the Highlands project. ( Association for Sensible Development at Northstar Inc. v. Placer County , 122 Cal.App. 4th 1289; see CP&DR Legal Digest , November 2004.) Also clouding the picture is a tentative ruling issued in February by Placer County Superior Court Judge James Garbolino. In the tentative ruling, the judge found that the environmental review was inadequate for the Martis Valley Community Plan that Placer County adopted in 2003 (see CP&DR Local Watch, March 2002). The community plan covers the Northstar property, but the Highlands project apparently would have been permitted under the 1975 version of the plan. A former local government lobbyist in San Joaquin County was convicted on 17 counts of attempted extortion, conspiracy, mail fraud and witness tampering in a corruption case involving the proposed development of a power plant at the Port of Stockton. A federal jury in March convicted Monte McFall, who prosecutors said had shaken down companies that were seeking permission to build the power plant. McFall, who has been a player in San Joaquin County politics for years, told the companies that he could use his influence to halt the project if they did not pay him cash (see CP&DR In Brief , February 2005). Former San Joaquin County Sheriff Baxter Dunn, former county Supervisor Lynn Bedford, his former aide J. Tyler Reves and former state Office of Criminal Justice Planning Director N. Allen Sawyer had already pleaded guilty in the corruption case. All five men now await sentencing, although McFall faces many more years in prison than his associates. Yolo County has sued the City of Woodland over the city's approval of a 55-acre retail power center and auto mall along Interstate 5. The county contends that the city failed to mitigate the loss of farmland and impacts on nearby agricultural operations, and did not adequately address impacts to water supply, wastewater treatment facilities and a proposed freeway ramp. "This last-resort action is seemingly what it will take to provide for the appropriate mitigation," county Board of Supervisors Chairwoman Helen Thomson said. City officials, who approved the project and an environmental impact report in February, rejected the county's contentions and said the county should stay out of city business. San Diego has approved two hotels with a combined 350 rooms at the site of the former Naval Training Center on Point Loma. The hotels, which still need approval from the Coastal Commission, would be one of the first new uses at the former 361-acre boot camp, which closed eight years ago. Plans also call for 350 housing units, office buildings, schools, a cultural center, another hotel and a 46-acre park (see CP&DR Base Reuse, September 1996). Base reuse has been controversial in part because of the height of the proposed buildings. A city ballot measure approved in 1972 restricts buildings in the coastal zone to 30 feet, except downtown. However, an appellate court in 2003 ruled that Proposition D did not apply to the former base because of the Federal Base Closure Act and the state Government Code. ( Save Our NTC, Inc. v. City of San Diego , 105 Cal.App. 4th, 285; see CP&DR Legal Digest , February 2003). The hotels approved in March would be 59 feet and 57 feet tall. Fresno County supervisors have decided to put some new subdivisions on hold while officials review the county's subdivision policy. The move came in early March, when the Board of Supervisors considered an appeal of a 23-lot, 59-acre subdivision in a rural area a few miles east of Clovis. Supervisors voted 4-0 to uphold the Planning Commission's denial of a zoning change and subdivision map. However, supervisors conceded that the project met most of the county's guidelines, prompting the supervisors to question those guidelines. Fresno County has a great deal of "rural sprawl," which in the past has prompted concerns about infrastructure, loss of farmland and air pollution.

Long one of the fastest growing commuter suburbs in the San Joaquin Valley, the City of Tracy is about to see a dramatic reduction in development. Because of a growth-limiting initiative approved by voters in 2000, and the city's implementation of that initiative, housing development in Tracy is likely to drop by 80% to 90%, and might not return to a higher level for nearly a decade. It's a stunning turn for the growth-friendly city just over Altamont Pass from the Bay Area. And it's a turn that worries the development and business communities. “It could have been addressed a little bit more rationally,” Tracy Chamber of Commerce Chief Executive Officer Mike Schmidt said. “Sometimes I think we're our own worst enemy. The City of Tracy didn't listen when the citizens were screaming about the pace of growth.” That pace has been rapid for the western San Joaquin County city. In 25 years, Tracy's population has quadrupled to nearly 80,000. For years, growth was essentially unchallenged. But the growth wars started during the mid-1990s. Twice voters rejected growth-control ballot measures before approving Measure A in November 2000. The initiative was complex, but the major thrust was to place a 600-per-year cap on both “residential growth allocations” and new housing building permits. At the time, the city was permitting the construction of more than twice that many housing units, nearly all of which were suburban-style, single-family homes for people commuting to the Bay Area. With Measure A in place, the battle then moved to implementation. Siding with developers, city officials insisted that Measure A had no impact on vested projects. So the city continued to issue large numbers of both residential growth allocations - which allow a developer or landowner to apply for a building permit - and actual building permits. However, the city is counting residential growth allocations and building permits for vested projects in a 10-year average, which Measure A permits so long as the average does not top 600 per year. The vested projects are nearing build-out. Still, after awarding residential growth allocations in excess of 1,200 per year for four years - and building permits in excess of 1,200 for five years - the city was faced with making a drastic reduction to reach an average of 600. This year, the city made available only 100 residential growth allocations (RGAs), which the city's Growth Management Review Board awarded in March. The board also gave seven RGAs to projects that vested before Measure A's adoption, and 10 RGAs to an affordable housing project, for a total of 117. Developers sought a total of 270 RGAs. Until this year, the city awarded RGAs based on a project's entitlement status, explained Senior Planner Vicki Lombardo. In January, however, the city amended its growth management ordinance to change the RGA criteria. “We have this competitive process that we didn't use to have before,” Lombardo said. Entitlement status remains a factor. But the city also ranks projects based on location - infill projects, especially in the downtown, are favored - affordability, housing type - multi-family wins over single-family - and project design. The method is comparable to methods used in the approximately 50 other cities in the state that have similar residential caps. Nevertheless, developers who have been working in Tracy do not like the city's new system. The Building Industry Association (BIA) of the Delta has been lobbying the city to modify its growth management ordinance, and has been urging the state Department of Housing and Community Development to reject the city's draft housing element because of the new limitations. “To go from 1,000 units down to 100 units, what you are going to see is an economic meltdown for the city,” contended John Beckman, government affairs director for the BIA of the Delta. “Even building at 1,000 units a year, the demand is outpacing the supply.” The builders' organization insists that Measure A did not apply to vested projects; therefore, the city should not count RGAs awarded to those projects in meeting the average of 600 RGAs and building permits. “If you remove that one component, it's a moderately acceptable ordinance,” said Beckman, who insisted the group is trying to compromise. “We're the building industry and we're saying it's OK to place a cap of 600 units from now on in the City of Tracy.” However, Mark Connolly, a Tracy attorney who wrote Measure A, said developers have only themselves to blame. "The city and developers chose to build 1,200 homes per year," Connolly said. "The developers sued to do it, and the city sided with the developers. Measure A has acted exactly as intended. Had the city chosen -- which it had the legal right to do -- to slow down to 600 homes per year beginning in 2000, then we would be building 600 per year. Since the city and developers got gluttonous and built 1,200 per year, we are now going to slow down to 250 per year to let us deal with our lack of schools, parks, open space, jobs and excessive traffic. " The BIA argues that limiting development to, essentially, 100 infill units per year means Tracy will not be able to meet its fair share of the regional housing need. So far, the state has not approved Tracy's draft housing element, which must explain how the city is going to meet its fair share. City officials, however, point out that Measure A allows up to 150 additional RGAs annually for projects that are fully affordable - 12.5% affordable to very low- and low-income residents, and 87.5% affordable to moderate-income people. If the city receives additional applications for affordable development, the city has the authority to move the projects forward, Lombardo said. Of the 270 RGAs that developers sought this year, nearly all applications were for market-rate, single-family houses. That probably is not surprising considering that the median price for a house in Tracy is nearly $550,000, roughly double the median price when voters approved Measure A. However, developers that specialize in affordable housing are starting to shop around for land in Tracy, said Ellen Gripp, manager of the city's Community Development Agency. One problem, though, is that most available properties are too large, she said. “There is substantially more interest, and I'm seeing myriad developers,” said Gripp. Still, traditional, market-rate developers have followed through with few affordable housing applications to date, she said. The Chamber's Schmidt worries about a local economic downturn striking Tracy during the next year or two. Schmidt, a former banker, figures that construction of a new housing unit generates $200,000 for the local economy. Using a conservative multiplier of three, construction of 1,000 units means $600 million for the local economy. Thus, a 90% reduction in housing construction could equate to a hit of half a billion dollars for the local economy. Schmidt, however, puts some of the blame on city officials. For years, he said, they refused to listen when residents complained about the pace and type of growth in Tracy. Instead of putting modest limits on growth and encouraging development of multi-family units and “step-up” units that locals could afford, the city allowed rapid development of large homes aimed expressly at Bay Area commuters, Schmidt said. “We haven't built any affordable housing. We haven't built any senior housing,” said Schmidt. “We haven't built any housing for our internal workforce.” The city hoped that by providing housing for Bay Area workers, the city could encourage Bay Area businesses to relocate to Tracy. Thus far, however, Tracy has drawn little besides retail stores and warehouses (see , November 2001). Tracy's loss might be a gain for nearby jurisdictions. San Joaquin County and northern Stanislaus County remain the primary relief valve for Bay Area growth pressure, even though the commute on Interstate 580 over Altamont Pass has become one of the region's worst. And Tracy's neighbors are not only growth-friendly, but they have actually approved large-scale projects that have only begun development. For example, the 16,000-unit Mountain House project in unincorporated San Joaquin County is less than 10% built. The City of Lathrop has approved nearly 20,000 housing units since early 2003. Assuming its current policy remains in place, Tracy may not return to 600 RGAs a year until 2013, Lombardo said. Some people hope to raise the number by 2011, but because building permits lag RGAs, and because Measure A places a cap on both, 2013 is more likely, she said. Contacts: Victoria Lombardo, City of Tracy Planning Division, (209) 831-4620. Ellen Gripp, City of Tracy Community Development Agency, (209) 831-4630. John Beckman, Building Industry Association of the Delta, (209) 235-7831. Mike Schmidt, Tracy Chamber of Commerce, (209) 835-2131.

The City of Los Angeles's general plan framework has survived a second lawsuit filed by neighborhood activists, who won an earlier round against the city. In the latest round of litigation, the Second District Court of Appeal rejected arguments that the city had violated the California Environmental Quality Act (CEQA) and had adopted an internally inconsistent general plan. The court found that many of the issues raised by neighborhood groups had been - or should have been - settled during the earlier litigation, so the court refused to consider them. The fight over the Los Angeles general plan is now a decade old. In early 1995, the city published a proposed general plan framework and draft environmental impact report. The general plan framework was intended to guide amendments to the three dozen community plans that compose the city's general plan. The framework addressed land use, housing, circulation and other aspects of the general plan. The city also produced a Transportation Improvement Mitigation Plan (TIMP), as the framework required. The transportation plan called for $12 billion worth of improvements over 20 years. In December 1996, the city adopted a revised framework and certified an environmental impact report, both of which relied heavily on the transportation plan. The politically powerful Federation of Hillside and Canyon Associations sued, and eventually the Second District ruled that the city had made findings regarding traffic mitigation that were not supported because the city admitted it could not fund the transportation plan. ( , 83 Cal.App. 4th 1252; see , November 2000). One year after the appellate court's decision, the city readopted the general plan framework, as well as new CEQA findings and, because not all impacts could be fully mitigated, a revised statement of overriding considerations. By this time, the city had determined that it could fund its share of the TIMP. The city also found that funding from county, state and federal sources was likely but not guaranteed. Because there was no guarantee, the CEQA finding stated that transportation mitigation measures were infeasible. The federation and a group called Coalition Against the Pipeline sued again. Among other things, they argued that the lack of certainty regarding transportation infrastructure rendered the land use and circulation elements inconsistent and “noncorrelative.” The opponents also contended that the city should have revised and recirculated the EIR, that the city's findings on air quality, water resources, wastewater, solid waste, open space and utilities were faulty, and that the 1990 census data used by the city was outdated. Los Angeles County Superior Court Judge David Yaffe ruled for the city. The neighborhood groups appealed, but the same three-judge panel of the Second District, Division Three, that decided the 2000 case upheld Judge Yaffe. In making their argument regarding general plan inconsistency, the neighborhood groups pointed to , (1985) 166 Cal.App. 3d 90. In that case, the court found an inconsistency because the county's land use element allowed for unlimited growth while the circulation element made no provisions for improvements to state highways, or for limiting growth if highway improvements were inadequate. Based on that ruling, the Los Angeles neighborhood groups contended that the city either had to limit population growth or provide measures to manage traffic if the TIMP were not fully funded. The court disagreed. “Contrary to petitioners' argument, the internal consistency and correlation requirements do not require a city or county to limit population growth or provide traffic mitigation measures to ensure that its transportation infrastructure can accommodate future population growth,” Justice Walter Croskey wrote for the court. “The Planning and Zoning Law (Government Code § 65000 et seq.) does not require a city or county to avoid adverse impacts on transportation. Rather, the city has broad discretion to weigh and balance competing interests in formulating development policies, and a court cannot review the wisdom of those decisions under the guise of reviewing a general plan's internal consistency and correlation.” Additionally, the court noted, the city's finding that the TIMP is infeasible “is not a definitive statement that the funds will not be available.” Besides, the finding is not part of the general plan. As for EIR revisions, the neighborhood groups argued that the transportation impact findings amounted to an amendment to the general plan framework, which should have been subject to a new environmental review. But the court ruled that the city did not amend the framework and concluded “that the city's finding that the mitigation measures are infeasible does not result in either new significant environmental effects or a substantial increase in the severity of environmental effects identified in the EIR and does not otherwise trigger the need for a subsequent EIR or a supplement to the EIR.” The court further ruled that the statement of overriding considerations was proper and that impacts to wastewater, solid waste, open space and utilities could not be challenged because they should have been contested during the first round of litigation. Impacts to water resources were unsuccessfully contested during the earlier lawsuit, the court pointed out. “We rejected petitioners' challenge to the EIR in the prior appeal and stated that the city need not revise the EIR unless it substantially changed the project, which it did not do,” Croskey wrote. The Case: , No. B166819, 05 C.D.O.S. 1438, 2005 DJDAR 1925. Filed November 10, 2004. Ordered published by the California Supreme Court on February 16, 2005. The Lawyers: For the federation: Lawrence Teeter, (213) 387-4512. For the city: Susan Pfann, assistant city attorney, (213) 485-6393.

WASHINGTON _ The Supreme Court has spared municipalities from the threat of paying attorneys fees awards for improperly blocking construction of cellphone towers. The unanimous ruling blocked Mark Abrams, a solo telecommunications entrepreneur, from using a broad federal civil rights statute to seek damages and attorneys fees from the City of Rancho Palos Verdes for denying Abrams a permit to construct a second cellphone tower on his property. Instead, the court ruled in the March 22 decision, Abrams could sue only under the Telecommunications Act of 1996, a law generally aimed at reducing regulatory barriers to new communications technologies, including wireless services. That law allows private suits for improper denials of permits for wireless facilities, but sets a short, 30-day deadline for bringing such suits and does not authorize attorneys fees awards. Writing for the court, Justice Antonin Scalia said the specific provisions of the 1996 act “precluded” suit under the broad federal civil rights, 42 U.S.C. § 1983. That act gives individuals a right to sue local governments for “deprivation” of any federal constitutional or statutory right and permits a court to award compensatory damages and attorneys fees. Scalia said that enforcement of the telecommunications law through § 1983 “would distort the scheme of expedited judicial review and limited remedies” established by the Telecommunications Act. He also said that attorneys fees awards in suits brought by “large commercial interests” such as wireless companies could have “a particularly severe impact” on local governments. A Washington lawyer who filed an amicus brief for the League of California Cities, the California State Association of Counties and others called the decision “a great relief.” “Had the case come out the other way, it would have been very expensive for municipal governments every time they guessed wrong with respect to a cellphone tower,” attorney Roy Englert said. “And because it would have been so potentially expensive to deny a permit, it would have tilted the playing field toward granting the permit in cases where they shouldn't be granted.” Abrams, who lives in a low-density residential neighborhood near the peak of the Rancho Palos Verdes peninsula, got into trouble with the city and his neighbors when he sought permission in 1998 to construct a second cellphone tower on his property. He had built a 52-foot-tall tower under a permit granted in 1989 and over the years added several smaller tripod antennas. The city's zoning ordinance allowed noncommercial uses only, but Abrams was also providing two-way radio and signal enhancement services on a commercial basis. After discovery of the apparent violation, the city in July 1999 conducted a public hearing, where several neighbors voiced strong opposition. The city denied the permit. A year later, Abrams filed suit in U.S. District Court in Los Angeles, citing both the 1996 communications law and the broader civil rights statute. Judge Stephen Wilson ruled the city had no basis for blocking the second tower. He called the decision “an act of spite by the community” and issued an injunction ordering the city to grant Abrams a construction permit. Wilson held, however, that the communications law provided the “exclusive” remedy for violations and barred Abrams' request for damages or attorneys fees under the civil rights statute. On appeal, the Ninth Circuit disagreed and sent the case back to the trial court to calculate damages (see , March 2004). Backed by an array of municipal government groups, Rancho Palos Verdes appealed to the Supreme Court. In his opinion, Scalia noted that lower courts were divided on the issue of whether compensatory damages were available under the Telecommunications Act. He left the issue unresolved. Seven justices joined his opinion. In a separate concurrence, Justice John Paul Stevens agreed that the remedies under the communications act were “fundamentally incompatible” with § 1983, but disagreed slightly with Scalia's method of reaching that decision. Englert called the differences in the two opinions “entirely academic.” Rancho Palos Verdes City Attorney Carol Lynch said the decision was good news for all municipalities. Lynch, of Richards, Watson and Gershon in Los Angeles, said she read the decision as eliminating Abrams' opportunity for seeking damages under both the civil rights law and the telecommunications statute, which specifically reserved state land use authority. “We think it is incredibly important because there are many applications being filed in cities and counties throughout the country by a variety of telecommunications providers, usually for cellphone towers,” Lynch said. Faced with the threat of having to pay damages, jurisdictions have simply approved some applications rather than deal with the merits, she said. Press reports, however, have quoted Abrams as saying that he would pursue damages under the Telecommunications Act. The Case: , No. 03-1601, 2005 DJDAR 3348. Filed March 22, 2005. The attorneys: For the city: Jeffrey A. Lamken, (202) 639-7700. For Abrams: Seth P. Waxman, (202) 663-6000. Los Angeles Daily Journal, .

The scenes we see when strolling around the periphery of River Park, a master-planned development in Oxnard, tell us a lot about the history of Ventura County. To the west is the Santa Clara River, a rare unchannelized waterway, representing nature and pre-history, at least for the purposes of our tour. To the northeast we find farmland, still the enduring symbol of Ventura County despite urban development's rapid engulfment of ag land on either side of the Ventura Freeway. To the south, beyond the Ventura Freeway, is a scattering of small homes - from the air they look like seeds tossed in a furrow - that make up one of the city's oldest and most settled Latino neighborhoods. To the north are blocks of warehouses and other industrial buildings on irregularly shaped lots, typifying the strip development found where land is cheap and plentiful, even though Oxnard has long since ceased to be cheap for industrial developers. In the center of this casual, rural-turning-suburban landscape we encounter the future: The highly formal, highly dense, master-planned community of RiverPark. This development, at least in the plan, is so different from its surroundings that it seems like a foreign object - like a mechanized space rover sent by the Elders of Alpha Centauri to surveil this Steinbeckian town ahead of an invasion. I am probably overplaying the incongruity of RiverPark for effect. The project, owned by Shea Homes, has only started construction and is likely to be built in many phases over 15 or so years. By the time RiverPark is complete, the surroundings probably will look very different than they do today. Incongruous or not, however, there can be little doubt that River Park represents the future of Ventura County, given the rapid rate of development along the freeway and the expected population growth in the six county region of greater Los Angeles. In trying to make sense of this big piece of planning, we need to ask two questions. First, how do all the different pieces - housing, office buildings, retail, parking and open space - work together within the site plan? And, second, how well will RiverPark fit into the Oxnard of the future? This is an ambitious project of 700 acres, containing 2,800 homes and nearly 2.5 million square feet of commercial space, including a regional mall of approximately 1 million square feet. The former gravel pits will become water-purification detention basins, in which local runoff collects and percolates through layers of gravel and sand before entering the storm drain. Internally, RiverPark is a fine piece of planning, perhaps all the more admirable for solving some difficult problems, such as the proximity of residential areas to the highly trafficked commercial zone. Part of that solution is to provide the neighborhood a separate, supermarket-anchored retail center immediately north of the mall so that locals can shop without entering the maelstrom of vehicular circulation around the mall. (The Los Angeles office of RTKL designed the master plan for the commercial area of RiverPark.) The residential portion is divided into three “neighborhoods” (we can be thankful, for once, that the developer did not call them villages) that vary in density from seven units per acre up to 80 units per acre. Each of the neighborhoods has its own park and neighborhood-serving retail, usually within a quarter-mile walk of most housing units. The densest housing products are town homes and stacked flats to the south, with the larger and more traditionally suburban housing in the north. The trade-off for this density is a generous amount of open space, which covers nearly 40% of the site. Open-space planning is the most successful part of RiverPark, which has a fully connected greenway system. All the parks are interconnected. Better still, the detention basins are surrounded by landscaping and walkways, so bicyclists and runners can go long distances without meeting cars. New Urbanist architect Peter Calthorpe has observed that most suburban housing developments are straight jacketed by major arterials in all directions. The effect is to confine children on bicycles to small areas no greater than six square blocks, on average. The open-space planning for River Park has effectively solved that problem. But how well will RiverPark fit in with its neighbors? The question remains open. Richard Thompson, the urban planner for A.C. Martin Partners, which led the consultant team for the preparation of the overall master plan, said that he tried to avoid the inward-looking character of the master-planned community. “We tried to make the plan as porous to the outside community as possible,” in some places aligning with existing streets, he said. This desire to fit in with the existing street pattern is an enlightened one that places regional well-being ahead of the short-sightedness of some developers, who would set their projects apart from the rest of the world to achieve “exclusivity.” Unfortunately, RiverPark is already largely isolated from the surrounding community by external factors. The river separates the project from the west, while the freeway walls it off to the south. Developers cannot convert the neighboring farmland without the approval of Oxnard voters. The residential neighborhood to the east is prized by its inhabitants and unlikely to undergo any major change. These combined factors give RiverPark a very limited ability to create an urban pattern that other developments can build on. On the positive side, the city is promoting continuity with a new specific plan for the Wagon Wheel area immediately south of the 101. That plan is to connect Wagon Wheel with RiverPark via three north-south roads, including one that will “fly over” the freeway. That is a meaningful, if limited, gesture to prevent Ventura County from becoming a post-suburban chaos of laissez-faire, developer-driven planning. Here's hoping the city will stick to its better instincts and resist any future attempts by developers to carve up Oxnard into a set of uncontiguous neighborhoods. Turning Oxnard into a set of unconnected master-planned neighborhoods would be bad news for invaders from Alpha Centauri, as well as human beings who seek to live in Oxnard.

State prison officials are moving forward with plans to build a new death row at San Quentin, but elected officials and business interests in Marin County are urging the state to reconsider. Although the state Department of Corrections is scheduled to certify a final environmental impact report for the project this month, Marin County is still seeking a reprieve from the governor's office. A collection of interests in Marin County opposes the project because they believe the project would commit the state to continuing operations at the 153-year-old prison for a long time. The Marin County faction would like to see the prison closed eventually and the site reused for a multi-modal transit hub, housing and parks. "It is a very old facility. It is extremely expensive to operate," said Assemblyman Joe Nation (D-San Rafael). "I think it is a mistake to commit the state to operating that facility for another 100 years, which is what the death row project would do." There is little dispute that San Quentin occupies prime real estate: 432 acres on a point that juts into San Francisco Bay, just south of the Richmond-San Rafael Bridge. The prison has a capacity of about 6,200 inmates and has housed all condemned inmates since 1934. There are nearly 650 inmates who have been sentenced to death at San Quentin, and the number continues to rise by several dozen every year. The state has executed 10 people since the death penalty was reinstated in 1976. There is also little dispute that the state needs a new death row. The existing facility was designed for fewer than 300 condemned inmates, meaning that death row inmates are held in facilities that house a variety of inmates at San Quentin. State prison officials and even prisoner advocates say the current situation is not secure for prisoners, guards or the outside community. In 2003, the Legislature approved $220 million for a death row that could accommodate up to 1,400 male inmates at San Quentin. The 618,0000-square-foot facility on the western-most 40 acres of the prison property would replace a minimum security holding area and support buildings. Last fall, the Department of Corrections released a draft EIR that identified a number of impacts, most of which could be mitigated. One of the primary unmitigated effects would be visual. During the last few months, Corrections has been writing responses to comments and preparing the final EIR, which is scheduled for public release April 11, agency spokeswoman Terry Thornton said. Secretary Rod Hickman likely will certify the final EIR by the end of this month, she said. That would be the last decision in the process, meaning the agency could then seek bids for construction, she said. The Marin County coalition, however, is trying to slow that process. Assemblyman Nation and county Supervisor Steve Kinsey hope to meet with the governor, or at least members of the governor's cabinet, before Hickman approves the environmental document. Kinsey has a counter-proposal for the administration: Temporarily relocate death row to a nearly completed new prison in Delano, but continue carrying out executions at San Quentin. This approach would buy time to re-evaluate San Quentin's future. And if executions continued at San Quentin, politics would be diminished because neither Delano nor any other community outside Marin County would have to deal with the stigma that accompanies the death penalty, he contended. The state is making a "100-year decision," Kinsey said. "At some point, the 150-year-old portion of the property will become better serving as a park and historic site, although that could be years or decades in the future," he said. Kinsey and Nation point to a March 2004 report issued by State Auditor Elaine Howle. The auditor concluded that Corrections officials had not adequately considered alternative locations for a new death row, and that the agency had not considered all relevant cost factors, including higher personnel costs that come with operating a prison in Marin County. But Howle also reported that relocating the prison from San Quentin could cost $337 million more than the state would receive from selling the property - a conclusion that bolstered Corrections. Howle recommended the agency conduct additional analysis. Project detractors contend that their main concern is financial. "We think that it is a very bad economic decision for the region and for the state," Elissa Giambastiani, executive director of the San Rafael Chamber of Commerce, said of the proposed death row project. "They are attempting to build the prison in the most expensive area of the state." Marin County has some of the most expensive housing in the Bay Area, and, in fact, more of San Quentin's employees live in Sacramento County than anywhere else. Because of the economics, San Quentin employees get a $7,000-a-year-stipend, yet the state still struggles to keep the staff full. Besides ongoing operating expenses, construction costs in Marin are extraordinary, Giambastiani said. Nation said that if the state were to close the prison, it could get about $750 million for a 270-acre chunk of the site. With the real estate having such value, some San Quentin neighbors are worried that the prison's closure would assist mostly developers - and that large-scale housing development would exacerbate traffic congestion. Giambastiani said growth fears are unfounded. It is politically impossible to approve a large housing subdivision in slow-growth Marin County, she contended. Additionally, businesses and government entities want the site for a transportation terminal. San Quentin offers a natural deep-water port, which could replace a ferry terminal in nearby Larkspur that requires expensive annual dredging. Also, a proposed Marin-Sonoma rail line would terminate at San Quentin. Both Highway 101 and I-580 are nearby. A transportation hub would have regional benefits, said Nation, who noted that a bridge toll increase approved by Bay Area voters one year ago identified San Quentin as a ferry terminal location. Kinsey said local officials are considering a re-use plan that would involve a large transit station, roughly 1,000 to 1,500 fairly dense housing units (30% of which would be affordable) around the station, and a limited about of commercial and retail development. The shoreline would be open to the public, he said. "We are looking at a transit village, "Giambastiani said. "We are not looking at covering it with million-dollar houses." Still, a new use of the San Quentin property would require a change in state law. As it now stands, the Penal Code requires the state to house condemned inmates at San Quentin. Contacts: Assemblyman Joe Nation, (916) 319-2006. Steve Kinsey, Marin County supervisor, (415) 499-3091. Elissa Giambastiani, San Rafael Chamber of Commerce, (415) 454-4163. Department of Corrections project website: www.corr.ca.gov/FacilitiesManagement/CICP/default.asp State Auditor's report: www.bsa.ca.gov/bsa/summaries/2003-130.html

I've just read the Places article about Santa Monica in the February CP&DR . Morris Newman wrote, "Seeking to maximize its public investment, the city wants to build one or two 12-story residential buildings along the avenue." The city has made no such decision, nor is it seeking a financial return on its investment. The city used redevelopment dollars to purchase the RAND site. Under state law, at least 20% of the value of the project must be dedicated for affordable housing. (The city voluntarily increased this minimum to 30% when it purchased the land.) Accordingly, a residential village has been proposed in the draft Civic Center specific plan. The city has not given final approval to the specific plan. The draft plan (conceptually approved so environmental analysis could occur) proposes a general height limit for the housing village of 56 feet, with the exception of one slender tower up to 120 feet. If this additional height is included in the final plan, and if the tower is built, (both "ifs"), that tower would be adjacent to an existing 1960s-era hotel of approximately the same height. There is no attempt to maximize financial return to the city from this housing village, nor from any other component of the Civic Center. Much of the housing - very likely, the vast majority of it - will be affordable housing. The question has been how much subsidy the city will have to provide, not how much money the city will make. We are currently exploring options for the mix of affordable and market rate housing to see if we can move the project towards one that will minimize required public subsidies. We will be issuing (or have issued) a request for proposals (RFP) for the housing village to a selected list of potential development teams. In approving the RFP, the City Council specifically determined that responses should be evaluated on a number of values, including "minimiz(ing) height when possible or demonstrating clear advantages for taller buildings, if proposed." - Ken Genser, Santa Monica City Council member

The news reports about Measure 37 come blasting out of Oregon almost every day now. Faced with 75 land use claims totaling more than $100 million, Clackamas County in suburban Portland decided to settle the easy ones first - permitting small landowners to subdivide their property into a few additional lots. The City of Eugene is considering an ordinance that would require some development to be torn down after a property changes hands. Crook County, in sparsely populated eastern Oregon, decided to charge Measure 37 claimants the same fee as other development applicants - and then sued itself in hopes of clarifying the claims process. Multnomah County sought to get around Measure 37 by declaring that "a further division of real property is not a land use.” The county then permitted the measure's 92-year-old “poster child” to divide her 19-acre property into eight lots. In the Columbia River Gorge, there is a dispute over whether Measure 37 applies to restrictions imposed by a regional agency created by federal legislation. Six months after the nation's most far-reaching property rights measure received 61% of the statewide vote, the consensus throughout Oregon seems to be clear: Measure 37 sent a message to the government, but it has unleashed a flurry of confused activity unparalleled since the passage of Proposition 13 in California almost 30 years ago. The Oregon law requires government agencies to permit longtime property owners to subdivide their property or else receive full compensation, but it leaves the administrative details to the local governments, most of which do not like Measure 37 and wish it had not passed. At the same time, Measure 37's passage has emboldened property rights activists elsewhere to introduce similar bills. So far, no one in California seems to be mounting an initiative campaign. But in February, state Sen. Bill Morrow (R-Oceanside) introduced SB 725, which is similar to Measure 37. The bill is sitting in the Senate Judiciary Committee and is unlikely to go anywhere in the Democratic-controlled Legislature. Like Proposition 13, Measure 37 was borne of populist resentment against big government, and its basic idea is simple: When the government passes a regulation that reduces the value of someone's property, the government should pay compensation - or else allow the landowners to develop their property as they would have been permitted to do under the old rules. The measure was opposed by most influential political figures and organizations, including many business groups. The opponents outspent the proponents. And, of course, the measure was on the ballot in Oregon, which has had the toughest state planning law in the country for more than 30 years. Even with all that, Measure 37 got 61% of the vote last November. Since then, local governments - especially counties, where subdivision has been held in check by the state land use law - have received hundreds of claims from property owners whose plans for subdivision have long been stymied. This huge pent-up demand resulted in large part from the state's land-use law, which essentially prevents residential subdivision of farm and forest lands if they are located outside an area's urban growth boundary. This provision is the very essence of the Oregon land-use law, intended to protect working landscapes from sprawling subdivision and to drive urban development inside the growth boundaries. Many of the claims are garden-variety requests for a few hundred thousand dollars and involve a dispute over subdividing one parcel into a few more. Other claims have been whoppers. In Bend, a hay-farming family asked for $37 million or the right to build 227 houses on 1,100 acres of land. In Hood River, a pear-farming family has asked for $57 million or the right to build 842 homes. Some local governments have talked tough. In Multnomah County, where Portland is located, the county attorney concluded that restricting subdivision of land is not restricting land use and therefore is not covered by Measure 37. “A of land is the employment of land for a particular purpose (e.g. residential, commercial, farm, forest),” wrote Assistant County Attorney Sandy Duffy. “The Oregon Court of Appeals has recognized that platted but undeveloped land is not regarded as a 'use' in zoning law. ( ). It follows that the process of subdividing land would not be a 'use' of land either.” But Duffy's opinion, issued on March 14, did not prevent the Multnomah County Board of Commissioners from permitting 92-year-old Dorothy English to subdivide her property only three days later. Prohibited by law from developing the family farm, English had been the spokeswoman for the Measure 37 campaign. And early reports suggest that, despite lots of tough talk, most local governments are taking this same path of least resistance: Permit the subdivision rather than fight the claim or pay the money. This is not surprising considering that Measure 37 did not create any new source of funds for government agencies to pay the claims. But the manner in which development may be permitted is cause for concern. Taking its cue from , 505 U.S. 1003 (1992), Measure 37 states that if the government imposes a land-use regulation that reduces the market value of any property, the property owner has the right to develop under the old land use regulation or else receive compensation. (Again following cue, Measure 37 exempts public nuisances, hence leading jurisdictions such as Eugene to consider such development a nuisance.) But there are a couple of other wrinkles in Measure 37. One is the fact that families are grandfathered into the law. If a property has been in the same family for 100 years, all regulations adopted since 1905 do not apply. In relevant terms, this means that families who have owned property for 30-plus years can get out from under the state's land use law. The second is that the law provides no requirement for public hearings or public review prior to granting the development approval. Local governments are adopting such procedures, but, in some cases, landowners will probably receive permission to subdivide with less public review than would have been the case decades ago. To property rights activists, Measure 37 is the latest and most dramatic in a growing string of victories. Similar, though less stringent, laws have been passed in states like Texas, but there has been little pent-up demand for claims there. Yet the Measure 37 victory in Oregon may represent a double-edged sword. It holds the potential to be so disruptive that it could backfire. Various legislative changes to the initiative are in the works, and the backlash could lead to a bill or court ruling that punctures the fabric of the measure, especially if counties continue to give in to subdivision. That may mean that getting such a measure passed in California will be harder - unless voters decide they do not care about creating another post-initiative administrative nightmare.