Can 12 million fish be wrong? Virtually no finned critters were to be found in the San Dieguito Lagoon as recently as 2007, when bulldozers began to push tons of earth to create berms along the banks of the coastal waterway. Seven months later, in January 2008, marine biologists were astonished to find millions of baby fish – far in excess of their expectations – squiggling in the newly irrigated lagoon in San Diego County. Birds also showed up. During a three-year period starting in 2006, when the first phase of the environmental restoration began, waterfowl species nearly doubled in number from 89 to 160. "Clearly, there was an unmet demand for habitat," said Kelly Sarber, a biology consultant who serves as spokesperson for the $90 million effort. On paper, the 150-acre San Dieguito wetlands restoration project, which is scheduled to reach completion this fall, seems fairly straightforward: Newly constructed river banks, or berms, along the lagoon and the San Dieguito River will channel ocean water into the wetlands. During severe floods, the new berms will prevent silt from overflowing the river banks and spoiling the habitat. Downstream from the lagoon, biologists have replanted the barren flats with native plants that now thrive on the edge of newly filled saltwater ponds. The lagoon  remains open to the ocean year-round, so the tidal action of the Pacific can recharge the water inland. Ms. Sarber singles out the work of Hany Elwany, the hydrologist who figured out the proper levels of tidal water needed to keep the wetlands alive, while controlling the flow.  Components of the $90 million project, adjacent to Del Mar Fairgrounds, are seen here. Coastal wetlands are also a suitable home for some famously endangered species, including the California least tern, the light footed clapper rail and the Belding savannah sparrow, and could stabilize the populations of the threatened birds over the long term. The same habitat, of course, is suitable for many other animals, including frogs, coyotes, raccoon, striped skunk, opossum, mice and rabbits, along with assorted reptiles and invertebrates that complete the bio-balance. Heading the project are two power companies – Southern California Edison and Sempra Energy, the corporate parent of San Diego Gas & Electric – who took on the restoration of the San Dieguito marshlands. The project fulfills the power companies'  obligation to mitigate the effects of hot water disgorged by the San Onofre nuclear power plant a few miles up the coast; water from the reactor kills many fish larvae. The power companies will maintain the wetlands until the year 2050, when responsibility for the marsh will go to a joint powers authority made up of surrounding cities. The speedy response of wildlife may have been particularly gratifying for the biologists, hydrologists and other experts who pursued the project for 16 years before obtaining the necessary entitlements from a host of public agencies, including the California Coastal Commission, the state Department of Fish and Game, the State Lands Commission, Caltrans, the cities of Del Mar and San Diego, the San Diego Regional Water Quality Control Board, the Army Corps of Engineers, the Coast Guard, U.S. Fish and Wildlife Service and the 22nd District Agricultural Association. I have no problem with placing stumbling blocks in the path of developers and overweening homeowners who want to muck up the coastline. But why should wetlands restoration projects travel the same tortuous route? The degradation of the San Dieguito wetlands followed a familiar story line: Early in the 20th century, the area was drained for farming. During the Second World War, the military built an air strip on the former coastal marsh. Later, in the 1950s, Interstate 5 installed a concrete wall down the center of the wetlands. The rapid growth of San Diego County, meanwhile, hemmed in the wetlands on all sides, endangering the wetlands themselves. Local support for wetlands restoration has been strong and organized, however. After 75 acres of wetlands were restored during the mid-1980s, local residents pushed for further restoration of 150 acres. The San Dieguito wetlands project becomes part of a 440-acre wetlands, providing the scale and "critical mass" that biologists say is necessary for a viable habitat. An artist's renderings of the project once it is completed.  As it says in the Talmud, one good deed begets another. In this case, the wetlands are a centerpiece of a larger ambition to create a greenbelt that stretches from the ocean to Volcan Mountain, 55 miles away. In 1989, the joint powers authority—made up of the city and county of San Diego, plus the cities of Del Mar, Escondido, Poway and Solana Beach—acquired 20,000 acres of land in the area. Another 20,000 acres are already under public ownership. Currently, about eight miles of the "coast to crest" trail exist, and proponents say they hope to complete the corridor within 10 years.  The San Dieguito project has not been free of political hiccups (see CP&DR Environment Watch , September 2003 ). Last August, the City of Del Mar briefly went into a tizzy when a draft land use proposal for the wetlands suggested designating the entire city and its popular beachfront as a protected area. City officials feared such designation would prevent Del Mar from replenishing the sand on its beachfront. The proposal did not move forward, and Del Mar's beaches actually benefit from the wetlands, because the sand that accumulates in the lagoon can be used to replenish the city's beaches. Kerfuffles aside, the San Dieguito wetlands restoration has some historical ironies: Our forefathers were eager to drain the marshes in the 19th and 20th centuries, and California has lost 95% of its coastal wetlands. Today, we spend heavily to recreate those same wetlands, which have become prized open space amenities. By itself, the growing fish population vouches for the success of restored wetlands in San Diego County. Fish don't talk, of course, but they don't lie, either.

After two decades of false starts, public and private planning efforts, litigation and ballot measures, development in South Sutter County appears ready to commence – just as soon as the economy rebounds. In mid-2009, the Sutter County Board of Supervisors approved a specific plan, a land use and development code, design guidelines and an environmental impact report for a new town project known as Sutter Pointe. The specific plan calls for 17,500 housing units and nearly 50 million square feet of industrial and commercial space on what is now mostly farmland. Remarkably, no lawsuit was filed nor ballot measure circulated following the board's approval of the project. Essentially, the plan permits the Sutter Pointe development consortium to build houses in exchange for providing infrastructure that will enable the industrial job development desired by Sutter County. "I think this plan helps ensure we have a viable project there, and, ultimately, a community where people can live and work," said County Supervisor James Gallagher, who represents the area. "We're talking about basically creating a new community in South Sutter County, which was more than a little controversial the first time." Located in the southern Sacramento Valley, Sutter County has long been an agricultural county. During the 1990s and especially the early part of the last decade, the county seat, Yuba City, became a bedroom for commuters to Sacramento, located approximately 40 miles to the south. Sutter County's unemployment rate is always high. Its unemployment rate for November 2009 was 19.4% – far above the state's 12.2% rate, according to the California Employment Development Department. Thus, county leaders have long sought to boost employment opportunities. In 1991, voters rejected competing growth initiatives for South Sutter County. That stalemate led to the Board of Supervisors approving a huge project called Sutter Bay, just  north of the Sacramento County line, the following year. Lead developer Ahmanson Development Company envisioned 80,000 residential units in a 36-square-mile new town. But Sutter Bay became a campaign lightening rod, and a Board of Supervisors with three new members rescinded the Sutter Bay development agreements in early 1993. Months later, voters rejected the project in a referendum election. Ahmanson and its partners sued the county, but the county ultimately prevailed. Meanwhile, the county updated its general plan and designated a 10,500-acre "industrial/commercial reserve" along Highway 99 near the Sacramento County line, and in 2002 the county approved a 3,500-acre specific plan for a portion of the reserve (see CP&DR Economic Development , November 2002 ). That plan died amid litigation filed by the Sierra Club and the Environmental Council of Sacramento, who successfully challenged the county's lack of an infrastructure financing strategy. In 2004, county voters approved Measure M, an advisory measure that drew a broad outline for development of 7,500 acres in South Sutter County. The ballot measure called for no more than 2,900 acres of residential development and at least 3,600 acres of commercial and industrial uses, as well as at least 1,000 acres of parks, open space and community facilities. Measure M provided the starting point for the specific plan that was then prepared by the Sutter Pointe group, which includes Lennar Communities, Angelo Tsakopolous's AKT Development, Axel Karlshoej and Al Montna. In fact, county officials asked the developers to take the lead in preparing a new specific plan, explained George Carpenter, the project manager. "Sutter Pointe is based on Measure M. The whole point of Measure M was to bring jobs to the county," said Carpenter, a former Sutter County planner. "The problem is that there has been no way to finance infrastructure." The Sutter Pointe plan attempts to balance residential growth and industrial development. Developers have long been interested in building houses in South Sutter County because of its close proximity to jobs in both the capital city and in Roseville. But for just as long, Sutter County leaders and voters have insisted they did not want to see development of a new bedroom community. They want jobs. Like Measure M, the specific plan speaks of residential maximums and industrial minimums. The plan permits residential development in phases as industrial and commercial development proceeds. The residential development will raise the revenue for the infrastructure, including an expensive sewer collection system that developers intend to tie in with a regional wastewater treatment plant in south Sacramento, as well as major improvements to highways and roads. Supervisor Gallagher said he is comfortable that the plan ensures industrial infrastructure will come online at the same time that housing is developed. The conceptual plan for the job-rich Sutter Pointe development. The specific plan itself is not overly specific. That was intentional, because county officials and developers want to be able to make adjustments as the area builds out over the next 20 to 30 years. Also, there was a fear that preparing a more detailed plan would drag out the process for too long. As it was, the more general document prepared by EDAW and developers, and approved last year by the county, took four years to complete. Future development will require tract map approvals and subsequent environmental reviews, Carpenter said. The site is in an area in which the Sacramento Area Flood Control Agency (SAFCA) is undertaking extensive levee upgrades to provide at least a 100-year level of protection. The Sutter Pointe development will provide impact fees to help pay for some of those improvements, according to Gallagher, who sits on the SAFCA board. The site also sits in an area that provides habitat for the Swainson's hawk, the giant garter snake and other endangered or threatened species. However, a habitat conservation plan is in place, and that plan largely provides the boundaries for Sutter Pointe development, according to Carpenter. Sacramento and the Natomas Basin Conservancy, which manages the habitat conservation plan, have expressed concern that Sutter Pointe development could inch right up to protected lands. Sacramento planners would like to see significant buffers between Sutter Pointe development and habitat lands, as well as between Sutter Pointe and the City of Sacramento's potential sphere of influence north of the existing North Natomas growth area, according to Scot Mende, Sacramento's new growth manager. The exact location of development, however, will not be known until Sutter County processes tract maps. In part because of the flood control needs, but mostly because of the slow economy, developers do not foresee much on-the-ground activity before 2013, said Carpenter. But they do anticipate market demand for housing as well as industrial uses once the economy rebounds, he said. The close proximity to Interstates 80 and 5, and to Sacramento International Airport, as well as the immediate access to Highway 99 should entice industry, he said. "We've got large sites available for big users. We've been told by the broker community that there are not very large lots available like this. We'll be competing with Stockton and Reno," Carpenter said. The residential plan is based on the village concept. A traditional village with a grid pattern centered around a great park and civic facilities will provide the most homes. "The whole idea behind Sutter Pointe is that it's going to be a new city. It ultimately will incorporate," Carpenter said. Although environmentalists in the past have complained that South Sutter development would amount to leapfrog growth, the Sutter Pointe plan actually exceeds the housing density and jobs-housing ratio envisioned for the area by the Sacramento Area Council of Government's regional blueprint. Sutter Pointe would also be located very close to new growth areas of Placer County and Roseville that are endorsed by the regional blueprint. Contacts: George Carpenter, Sutter Pointe project manager, (916) 355-1450. Sutter County Supervisor James Gallagher, (530) 822-7106. Scot Mende, City of Sacramento new growth manager, (916) 808-4756. Sutter Pointe specific plan: www.co.sutter.ca.us/doc/government/depts/cs/ps/cs_sutterpointe . Natomas Basin Conservancy: www.natomasbasin.org .

To the relief of many public agencies, the state Supreme Court has overturned an appellate court decision that could have increased the number of "projects" subject to the California Environmental Quality Act. In a 7-0 decision, the California Supreme Court ruled that Sacramento County was not required to complete an environmental review before denying a conditional use permit renewal for a private airport. Project denials are specifically exempted from the California Environmental Quality Act (CEQA), the court ruled. Attorneys on both sides of the case said the decision clarifies the law regarding when a public agency must complete a CEQA review. A collection of state agencies and the California State Association of Counties had asked the high court to overturn the appellate court's decision because of its potential to expand CEQA responsibilities, noted Krista Whitman, deputy Sacramento County counsel. In 2008, the Third District Court of Appeal ruled that the normal exemption for project denials did not apply here because the county's refusal to grant a requested use permit renewal would result in closure of the airport and "the potential for physical change in the environment" (see CP&DR Legal Digest , September 2008 ). "Accordingly, the county's action constitutes a CEQA ‘project,'" the appellate panel concluded. "The Court of Appeal erred," California Supreme Court Justice Carol Corrigan wrote, "because it misconstrued the nature of the project at issue. Declining to renew the conditional use permit was not a public project under CEQA, because the county did not ‘directly undertake' to close the airport. Instead, it decided not to reauthorize a private activity that required ‘the issuance of a permit.' The airport operation was the ‘project' in question, and projects rejected by a public agency are specifically exempted from CEQA's requirements." Although not pleased with the decision, airport attorney Lanny Winberry conceded the decision "is a clarification of the rule." "Our argument was that an approval of those things would merely preserve the status quo," Winberry said. "But the denial of those things would change the status quo, and that could have significant impacts." The Supreme Court, however, distinguished between private projects such as the airport at issue and facilities operated by a public agency. Twice in recent years, courts have ruled that closure of public facilities are "projects" under CEQA. Here, however, "closing the airport was not an ‘activity directly undertaken' by the county," wrote Corrigan, citing Public Resources Code § 21065, subdivision (a). The facts of the case are unusual. Sunset Skyranch began operating near Elk Grove in 1934, primarily as an airport for crop dusters. At the time, there were no applicable zoning regulations. In 1971, Sacramento County issued a two-year conditional use permit (CUP) for the airport, which at the time was merely a dirt landing strip and a handful of crop dusters. Airport owner Daniel Lang never renewed the CUP, but he did proceed to improve and expand the facility. By the late 1980s, Sunset Skyranch had two paved runways, about 20 hangers and 60 airplanes. There were roughly 30,000 annual takeoffs and landings at the facility. In 1989, Sacramento County denied Lang a business license because his CUP was long expired. When the county declined to issue a certificate of nonconforming use, Lang sued the county and lost. In 1997, Lang and Sunset Skyranch Pilots Association applied for a new CUP. The county approved a five-year CUP in October 1999. Days before that permit was set to expire, the county Planning Commission approved what it declared to be a final two-year renewal. Development consultant Taylor & Wiley appealed, and the Board of Supervisors voted 4-1 to deny the permit renewal because urban growth in Elk Grove (which incorporated in 2000) was encroaching on the airport. Lang and the pilots association sued the county. Their primary argument was that the county's action conflicted with the State Aeronautics Act, which, they said, required the county to permit continued operation of the facility despite urban growth conflicts. Both the trial court and the Court of Appeal rejected this argument. Lang and the pilots also argued the county violated CEQA by not completing an environmental review before denying the permit renewal. The County of Appeal accepted that contention, concluding the county's decision had implications for the airport property and pilots that the county had to study. The California Supreme Court in 2008 accepted the case but chose to review only the CEQA issues raised by the county, and not the State Aeronautics Act interpretation questioned by Sunset Skyranch and the pilots. For their CEQA arguments, the airport and pilots association relied heavily on two cases – San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. , (2006) 139 Cal.App.4th 1356, and Association for a Cleaner Environment v. Yosemite Community College Dist. , (2004) 116 Cal.App.4th 629. In the San Lorenzo Valley case, the court ruled that a plan to close two elementary schools was a project under CEQA, but was categorically exempt from environmental review (see CP&DR Legal Digest , July 2006 ) . In the other case, the court ruled that the community college district's decision to close a shooting range and transfer operations elsewhere was a project subject to CEQA review (see CP&DR Legal Digest , April 2004 ). The state Supreme Court, however, distinguished those cases from the one at hand. While the school district and community college district took actions to close a public facility, Sacramento County was not actively engaged in closing the private Sunset Skyranch. "Notably, if the airport had decided on its own to go out of business and allow the CUP to expire, there would have been no occasion for CEQA review by the county," Corrigan wrote. "It was the airport that sought a new approval for its operations, and the county's denial of that project application was statutorily exempt from CEQA review under § 21080, subdivision (b)(5)." The fact that the airport sought a CUP renewal, rather than a brand new CUP, was of no matter, Corrigan added. What the decision makes clear, said Taylor & Wiley attorney Kate Wheatley, is that a public agency may at any time exercise the CEQA exemption for a project the agency denies. Meanwhile, the 76-year-old airport's days appear numbered. County officials in the past have vowed to shut down the airport. The City of Elk Grove, whose city boundary currently is located across the street from the airport, has an application pending before the Sacramento County Local Agency Formation Commission to expand into the area. And Elk Grove appears to have no use for the airport, as the city and the county recently released a draft of an agreement that envisions extensive residential development in the area. The Case: Sunset Skyranch Pilots Association v. County of Sacramento , No. S165861, 2009 DJDAR 17959. Filed December 28, 2009. The Lawyers: For Sunset Skyranch: Lanny Winberry, (916) 386-4423. For the county Krista Whitman, county counsel's office, (916) 874-5544. For Taylor & Wiley: John Taylor, (916) 929-5545.

New California Environmental Quality Act Guidelines that urge public agencies to quantify and mitigate greenhouse gas emissions from projects whenever possible have gone into effect. Outgoing Natural Resources Secretary Michael Chrisman signed the guideline amendments on December 30. Although not everyone is happy with the changes, this guidelines amendment process appears to have gone more smoothly than recent ones. The Wilson administration spent seven years on guidelines amendments – only to have several components thrown out by a court. In its nearly five years, the Davis administration did not complete a substantive guidelines update. This time, though, state lawmakers gave the Office of Planning and Research and the Natural Resources Agency a little more than two years to complete the task. Senate Bill 97 from 2007 set a January 1, 2010, deadline for new California Environmental Quality Act (CEQA) Guidelines related to greenhouse gas (GHG) emissions analysis and mitigation  (see CP&DR Environment Watch , October 2007 ). "At bottom, what these changes do is ensure greenhouse gas emissions are included in environmental review documents," said Christopher Calfee, Natural Resources Agency special counsel. "That's a big deal. There has been a lot of inconsistency." What the amendments do not do, said Calfee, is create a unique scheme or approach for greenhouse gas emissions. The guidelines require an agency that is evaluating a CEQA project to gather the relevant information and analyze that information based on scientific and factual data. Hence, said Calfee, "The analysis you do for greenhouse gas emissions is the same as you do for most other impacts." The new guidelines also emphasize the use of tiering in CEQA documents. So, for example, a project-level analysis could rely heavily on a program-level environmental impact report prepared for a local climate action plan or GHG emissions reduction strategy. This tiering should help streamline environmental reviews, Calfee said. The new guidelines do not establish thresholds for determining whether a project's GHG emissions are significant. The new guidelines do not even prescribe exactly how an agency must quantify or mitigate emissions. Instead, the guidelines permit agencies to describe a project's emissions quantitatively or qualitatively. The guidelines say on-site mitigation is preferable, but not required, and must be subject to monitoring. The CEQA Guidelines have long recognized lead agency discretion, and the amendments related to GHG are no different, Calfee explained. The deference to lead agencies did not satisfy some environmental groups, which pressed for a more prescriptive approach. In a letter to the Natural Resources Agency, seven environmental groups, including the Center for Biological Diversity and Earthjustice, say the new guidelines provide a loophole by permitting agencies to describe emissions qualitatively. "Despite the importance of quantitative data on project emissions in understanding project impacts, the language of Guidelines § 15064.4(a) serves to bolster the misplaced argument that readily available quantitative data on project emissions need not be provided to the public," the letter states. That data, environmentalist say, may be necessary to make a fair argument that a project could have a substantial impact on the environment – the standard for requiring an environmental impact report. While environmental groups were not satisfied, many planners and environmental professionals said the Natural Resources Agency responded to their concerns. The CEQA Guidelines contain specific thresholds of significance for only a few subjects, and establishing them right now for GHG emissions would have been unnecessarily limiting, said Kent Norton, an Association of Environmental Professionals (AEP) board member. Thresholds of significance are typically left to local agencies, said Norton, who works for The Planning Center. "We were very satisfied with the way this came out," added Gene Talmadge, AEP president. "Was it perfect? No. It never is. But we think the Natural Resources Agency listened to us." The agency also listened to planners and alternative-transportation advocates, who convinced the agency to alter Appendix G checklist questions concerning transportation and traffic. Previously, the first two questions asked whether a project would impact street system capacity or result in a reduced level of service. Planners and advocates argued that such measurements forced agencies to favor automobiles, even though the state is trying to decrease emissions from automobiles. One revised checklist question now asks: "Would the project conflict with an applicable plan, ordinance or policy establishing measures of effectiveness for the performance of the circulation system, taking into account all modes of transportation including mass transit and non-motorized travel and relevant components of the circulation system, including but not limited to intersections, streets, highways and freeways, pedestrian and bicycle paths and mass transit?" The next question asks: "Would the project conflict with an applicable congestion management program, including but not limited to level of service standards and travel demand measures, or other standards established by the county congestion management agency for designated roads or highways?"   The idea, said Calfee, is to get agencies to "focus on the entire circulation system." Although some planners and advocates urged the Natural Resources Agency to disavow the level of service concept altogether, Calfee said the agency could not. "The Congestion Management Act and the Government Code require level of service to be included in congestion management programs," he explained. Officials did drop parking capacity from the checklist and expanded a question regarding a project's potential conflicts with public transit and bicycle or pedestrian facilities. Jennifer Klausner, executive director of the Los Angeles County Bicycle Coalition, endorsed the changes because the previous checklist "emphasized a purely car-centric point of view" that discouraged bicycle travel. Planners appeared divided on the parking question, which some arguing that a lack of parking could lead to motorists cruising for spaces, thus emitting more greenhouse gases. But UCLA urban planning professor Donald Shoup, author of the influential book The High Cost of Free Parking , rejected that argument. "Cruising is caused by the city's failure to charge the right prices for curb parking," he wrote. Shoup continued, "Rather than try to force up the parking supply and automobile trips, CEQA should focus on reducing automobile trips, or should at least not have a policy that will increase automobile trips." The revised guidelines additionally make clear that the Appendix F analysis of energy is now mandatory, not optional. However, officials declined to require analysis of a project's "lifecycle" energy usage because there is no agreement on how to define lifecycle, Calfee said. Contacts: Christopher Calfee, Natural Resources Agency, (916) 653-5656. Gene Talmadge, Association of Environmental Professionals, (805) 427-4123. Jennifer Klausner, Los Angeles County Bicycle Coalition, (213) 629-2142. Revised CEQA Guidelines: http://ceres.ca.gov/ceqa/guidelines .

Claims that Sacramento County violated the California Environmental Quality Act while approving a commercial development have been dismissed by the Third District Court of Appeal because the project opponent did not submit a written request for a hearing within 90 days of filing a lawsuit. The attorney for opponent Forster-Gill, Inc., argued that a telephone call to the court clerk within the 90-day period was adequate, but the appellate court disagreed, ruling that the law "plainly contemplates a written request that can be, and is, filed with the court." Although previous cases have addressed the 90-day deadline, the court said its decision marked the first time a published opinion made clear "that a ‘request for a hearing' required by subdivision (a) of § 21167.4 must be a writing filed with the court." In May 2008, Sacramento County approved "The Landing," an entertainment and retail project proposed by Syufy Enterprises, Sywest Development and others on property located in Del Paso Heights, just north of Interstate 80. Forster-Gill owns an adjacent industrial property and challenged The Landing developers' access and other aspects of the project. Forster-Gill filed a lawsuit on June 12, 2008, alleging the county violated the California Environmental Quality Act (CEQA) and the general plan. Forster-Gill also sought to resolve who owned an access road. Under CEQA, the county had until August 19 to complete the administrative record. The county needed more time, and attorneys for all parties in early September signed a stipulation giving the county until October 20. A second stipulation signed in October gave the county until November 7 for the administrative record. At a March 20, 2009, status conference, the Sacramento County Superior Court determined Forster-Gill's CEQA claims should be litigated first. Four days later, the county and the developers asked the court to dismiss the CEQA claims because Forster-Gill did not request a hearing within 90 days of filing its lawsuit in June 2008. Forster-Gill's attorney countered that he had called the court clerk on September 10 to reserve a January 9, 2009, hearing date, which the attorney and a county lawyer later agreed was premature because of troubles with the administrative record. The trial court declined to dismiss the CEQA claims. The county and the developers appealed and won a reversal. At issue was interpretation of Public Resources Code § 21167.4. Subdivision (a) gives a petitioner 90 days to file a request but does not specify the form of the request. Subdivisions (b) and (c), which were added during the 1990s, speak to filing a request and serving a notice of request upon all parties. "Subdivision (a) … cannot be read in isolation from the remainder of § 21167.4," Justice Ronald Robie wrote for the unanimous three-judge Third District panel. " ubdivisions (b) and (c) of § 21167.4 do … clarify that the request for a hearing required by the statute is to be a writing that can be filed with the court, not simply an oral request." Forster-Gill argued it would have been futile to serve notice of a hearing while the parties were negotiating over preparation of the administrative record. But the court ruled, " ll Forster-Gill had to do was ‘request a hearing' and serve notice of the request. The setting of the actual hearing date, and the briefing schedule to proceed the hearing, could have come later." Forster-Gill pointed to the two stipulations, the second of which stated the hearing date would be moved from January 9 to March 6. The court, however, said the stipulation did not supplant the statutory deadline. The court also rejected the argument that the county baited Forster-Gill into missing the deadline by signing the stipulations. The Third District did not consider anything other than the CEQA portion of Forster-Gill's lawsuit. The Case: County of Sacramento v. Superior Court , No. C062025, 2009 DJDAR 18022. Filed December 29, 2009. The Lawyers: For Sacramento County: Krista Whitman, county counsel's office, (916) 874-5544. For Forster-Gill: John Belsher, Belsher & Becker, (805) 542-9900.

A state appellate court has upheld the California Coastal Commission's denial of a development permit for a small mixed-use project in Morro Bay. The court rejected developer Dan Reddell's arguments that the commission violated his due process and equal protection rights, and that its decision was a regulatory taking of property. Instead, the Second District Court of Appeal ruled that substantial evidence supported the commission's finding that Reddell's project was inconsistent with Morro Bay's local coastal plan (LCP). In 2003, the City of Morro Bay approved Reddell's proposal for six Harbor Street parcels located on the bluff above the city's waterfront Embarcadero. The project involved a 22,700-square-foot buildings containing 5,100 square feet of visitor-serving commercial uses and six single-family residences with a combined total of 17,600 square feet. The commercial uses would be on the ground floor, while the residences would be on the second, third and fourth floors of the building. Because the project site is in a planned development overlay zone and would provide extraordinary public benefits – underground utilities, handicapped-accessible sidewalks, small plazas and a chance to master plan six lots – the city exempted the project from the underlying visitor-serving commercial district (C-VS) zoning standards. Local resident George Contento appealed the city's decision to the Coastal Commission. Contento argued the project violated the city's LCP and the Coastal Act because the project was inconsistent with the C-VS zoning, had inadequate parking, exceeded height restrictions and would block public views. A commission staff report identified similar issues. Reddell responded by agreeing to remove the fourth floor and increase some setbacks on upper floors. The staff said the revised project would still be inconsistent with the LCP, but nevertheless recommended project approval with additional conditions. At an April 2004 hearing, the Commission denied the project, finding it inconsistent with the LCP's policies regarding bluff development, visual resources, parking, visitor-serving priorities and community character. Reddell sued the Commission. San Luis Obispo County Superior Court Judge Barry LaBarbera rejected all of Reddell's contentions and upheld the Coastal Commission's decision. On appeal, a unanimous three-judge panel of the Second District, Division Six, agreed with LaBarbera. Two of the primary issues on appeal were whether the project would conflict with the underlying zoning's requirement that residential uses be secondary, and, alternatively, whether the project's public benefits qualified the project for an exemption from the zoning standards, which include a 30-foot height limit. The Coastal Commission and the trial court judge found the residential uses were not secondary in light of a residential to commercial floor space ratio of greater than three-to-one. Reddell had argued that commercial was the primary use because of its ground floor orientation and that the square footage for residential garages should not be included in the residential-to-commercial ratio. As for Reddell's first argument, the Second District cited the city's ordinance: "Whether the determination of primary and secondary uses is based on square footage or some other method, the project violates the letter and spirit of the C-VS zoning designation because it consists of six residential units, many more than the ‘single apartment unit or security quarters' permitted by the regulation, and these residential uses are not ‘commercial uses intended primarily to serve the needs of tourists and other visitors to the city.'" On Reddell's argument that the project qualified for an exemption, the court deferred to the Coastal Commission. Under the Coastal Act, the commission has "broad discretion to make a benefit/detriment analysis," and substantial evidence supported the commission's decision, the court ruled. The court was similarly deferential regarding the commission's findings on bluff-top development, visual resources, parking and community character. Reddell further argued the commission decided on the wrong project because the panel did not consider his proposed changes. However, the Second District ruled, "The record shows that the commission considered but was not persuaded by Reddell's revised plans." Finally, Reddell argued that his claim for damages based on a regulatory taking of property should stand despite the trial court's ruling. The Second District, though, said Reddell's takings claim was not ready for adjudication because the Coastal Commission has not identified what project it will permit on the site. "The commission has indicated its willingness to review a revised proposal," Justice Steven Perren wrote for the court "There is nothing in the record, and we may not presume, that the commission will fail to do so. Therefore, his claim for damages for a regulatory taking of property is not ripe." The Case: Reddell v. California Coastal Commission , No. B206428, 2009 DJDAR 18027. Filed December 1, 2009. Opinion modified and certified for publication, and rehearing denied December 29, 2009. The Lawyers: For Reddell: William Walter, Walter & Bornholdt, (805) 541-6601. For the commission: Rosana Miramontes, attorney general's office, (213) 897-2693.

24th Annual Land Use Law & Planning Conference Friday, January 29, 2010 8:30am - 5:00pm Millenium Biltmore Hotel Downtown Los Angeles 506 South Grand Avenue Los Angeles, CA 90071-2607 (310) 825-7885 UCLA Extension's annual Land Use Law and Planning Conference is the leading source of information on California land use legislation, case law, and the emerging issues that frame land use and development practices in the nation's most populous state. Its unique cross-disciplinary approach explores the full range of perspectives drawn from the land use planning, legal, development, and environmental communities—and demonstrates how these factors influence the day-to-day work of planners, developers, environmental regulators, and attorneys. Join our experts and audience members as they review the important issues of the past year and explore what is on the horizon. Now in its twenty-fourth year, this conference provides a big picture view of land use law and planning practice. Our guest speakers consistently provide succinct and provocative updates on core state and federal case law and legislation mixed with practice pointers on basic land use law and planning issues. This conference is essential for attorneys, planners, environmentalists, and developers who need to know how land use law and planning is changing and affecting their interests. Keynote Speaker: Edward Blakely , Honorary Professor of Urban Policy at the United States Study Center, University of Sydney, Australia Fee and Credit Information: $450 Reg# V3696 ($450 by 1/15; $500 thereafter) $150 Reg# V5515 (Students, faculty, non-profit and government organization discount – Space Limited/Phone Enrollment Only) Fee includes refreshments, lunch, and conference materials. 7 Hours of MCLE and CM (AICP) credit available. This activity has been approved for Minimum Continuing Legal Education (MCLE) credit by the State Bar of California and for continuing Professional Development Program (CM) credits by the American Institute of Certified Planners. For more information or to obtain a complete agenda which includes topics and speakers please visit www.uclaextension.edu/publicpolicy/landuse

Ask the people in Cincinnati about the wisdom of building publicly funded stadiums for major league sports teams. Earlier this month, I wrote about the eagerness to erect new football and baseball stadiums in California. I suggested that public investment in any of the stadiums might not be the best idea. Three days after I posted that blog, The New York Times published a story about Cincinnati's fiscal woes stemming from construction of adjacent football and baseball stadiums. In 1996, Hamilton County, Ohio, commissioners convinced voters to approve a half-cent sales tax to build and maintain two stadiums that would replace a 30-year-old facility that the Reds and Bengals shared. The county's studies said the stadium projects would ignite riverfront revitalization and, well, everyone would get rich. Shockingly, things haven't turned out that way. Stadium construction cost far more than estimated. Riverfront redevelopment remains in the starting gate. And actual sales tax revenue did not match the forecast, even before the recession hit. Now, the county is draining reserve funds and cutting services simply to cover the stadium debt payments. Meanwhile, the Bengals' agreement lets the football team stop paying rent next year. Cincinnati offers a valuable lesson for California cities and voters considering major league stadium and arena projects. We'll see if anyone is paying attention. – Paul Shigley

Many people in the planning and development community are saying good riddance to 2009. It was a year marked by extreme financial distress for government agencies and private industry. If 2008 was a year to "do more with less," then 2009 was a year to "do less with even less"--a year simply to hunker down and try to endure. Thus, it is no surprise that three of CP&DR 's top four planning and development stories of the year involve money--or, more precisely, the reaction to a severe lack of money. When there is no funding available, the planning priorities and projects seem to simply slip away. Will 2010 be any different? Almost every indicator and forecast says money will remain very tight, and we should expect a repeat of 2008 and 2009. On that less-than-encouraging note, we offer CP&DR 's Top 10 stories of 2009. 1. State budget disaster California's budget inevitably affects planning and development heavily, especially when the budget is getting whacked. No matter what protections local governments try to put into place, the state always finds ways to take local revenue. This year was no exception. The Legislature and Gov. Schwarzenegger settled on a "budget" for the 2008-09 fiscal year in February � more than seven months after the fiscal year began. That budget rested on spending and revenue measures placed before voters in May. Sending mixed messages � the budget cuts were too deep and taxes should be raised; the government has enough money and this isn't the time to raise any taxes � voters rejected the ballot measures. That sent lawmakers, the administration and the lobbying corps back to work. In late July, lawmakers approved a 2009-10 state budget that allegedly closed a $24 billion deficit. There are a number of reasons why this year's state budget impacts people in the business of planning and development: The budget shifts $2.05 billion in tax increment from local redevelopment agencies to schools and the state; subventions to counties that conserve farmland were eliminated; state funding for transit was axed, at least until a court intervened; and the Governor's Office of Planning and Research was placed on the chopping block. The budget's redevelopment tax revenue shift of $1.7 billion this fiscal year and another $350 million in 2010-11 is a larger version of a shift approved in 2008. The California Redevelopment Association (CRA) successfully sued to block implementation of the 2008 shift, and the organization filed a new lawsuit over the latest state maneuver. The redevelopment lobby's basic contention is that the state constitution protects redevelopment revenues. According to the CRA, the tax revenue shift would force many redevelopment agencies to halt new activities and devote all remaining revenues to debt retirement (see CP&DR , August 1, 2009 ). Some agencies might even have to go out of business entirely. The potential transfer, along with decreased revenues because of the real estate market collapse, has caused agencies to cut back. For example, San Jose's redevelopment agency, the state's largest, reduced its staff by about 25% this fall. The budget approved by lawmakers contained $27.8 million for subventions to counties that implement Williamson Act (California Land Conservation Act) contracts for farmland conservation. That amount was down from $35 million during recent years, and from a high of $39 million. The money is intended to backfill county coffers, as the Williamson Act provides substantial property tax breaks for landowners who agree not to develop their properties for 10 years. However, Gov. Schwarzenegger slashed all but $1,000 in subventions (see CP&DR , August 15, 2009 ). As a result, a number of large agricultural counties have revisited their participation in the land conservation program, and some counties have declined to enroll new properties in the program. In Yolo County, which has long enforced some of the strongest agricultural land protection policies in the state, the Board of Supervisors decided to put a farmland preservation tax on the 2010 ballot to replace the $1.1 million in subventions the county lost this fiscal year. Without additional funding, supervisors say, they will have to discontinue Yolo County's participation in the land conservation program. The budget deal also eliminated the State Transit Assistance program, which provided $230 million a year to local transit agencies for operating and capital assistance. The cut came at the same time the state is requiring regions and localities to reduce greenhouse gas emissions through AB 32 and SB 375. The California Transit Association sued over the cut and won, but it remains unclear when local agencies might receive their money from the state. In addition, a Superior Court in mid-December ruled the state must pay transit operators $1.2 billion the state had diverted during the 2007-08 budget cycle. The state has until April 2010 to show the court how it will replenish the State Transit Assistance fund. When budget negotiations resumed after the May election, Schwarzenegger called his own Office of Planning and Research (OPR) a "total waste." Soon thereafter, it appeared that most if not all of OPR's planning, environmental and California Environmental Quality Act functions would be parceled out to other entities, such as the Air Resources Board and the Department of Finance (see CP&DR Insight , September 1, 2009 ). But while it remains short-staffed, OPR is still alive and will apparently remain in business unless state lawmakers transfer its responsibilities to other entities. There were other impacts of the budget mess. Some state funding was slow to go out because the state could not issue debt for a while. "Furlough Fridays" mean most state offices are closed 15% of the time, which, among other things, has done no favors for the City of Sacramento's slow efforts to revive downtown. And there is little reason to think the pain will subside. With revenue coming in slower than expected and accounting gimmickry in the 2009-10 budget becoming evident, the state is already facing another deficit that the Legislative Analyst's Office pegs at $17 billion.  2. Figuring out SB 375 Senate Bill 375 is potentially so far-reaching that it dominated discussion at many California planning and local government conferences this year, even though the law has not taken effect yet at the local level. Passage of SB 375 was CP&DR 's top story of 2008. Here's what we said one year ago: "State Sen. Darrell Steinberg's bill has the potential to alter the planning system in dramatic fashion. Essentially, the bill uses the urge to limit driving as a way to mandate regional planning. Quite clearly, the goal is to encourage infill development, mixed uses and transit, and to discourage greenfield housing subdivisions." In 2009, planners began to grapple with just how dramatic the alteration may be. The legislation requires the Air Resources Board (ARB) to establish regional greenhouse gas emissions reductions targets related to land use by September 30, 2010. The state's 18 metropolitan planning organizations (MPOs) must then incorporate the targets into "sustainable communities strategies" that coordinate land use and regional transportation plans so as to reduce vehicle miles traveled (VMT). In 2009, an advisory committee completed a report to the ARB regarding methodology for setting targets. The Regional Targets Advisory Committee recommended that the board establish a list of best management practices, and use those practices in addition to modeling to determine regional targets (see CP&DR , October 1, 2009 ). Although the advisory committee in September urged swift action by the ARB, the board has not acted on the committee's recommendations. Meanwhile, two different approaches for local governments and MPOs emerged during 2009. Some agencies began designing bureaucratic approaches under which they could prove future compliance with SB 375 and mandates related to climate change. Other agencies took a more direct approach by preparing and starting to implement policies that most people agree will cut the all-important VMT (see CP&DR Insight , July 1, 2009).  The ARB's determination of regional emissions reductions targets � and the likely land use consequences of those targets � undoubtedly will be a very big story during 2010. 3. Petaluma lays off all its planners The Sonoma County city of Petaluma has a special place in planning history. In 1972, Petaluma became the first California city with voter-mandated growth control. In 2009, Petaluma earned a new distinction when the City Council disbanded the Community Development Department and laid off all of the planners (see CP&DR Local Watch , May 2009 ). Faced with severe budget problems, city officials in 2008 greatly reduced general fund support for Community Development and forced the department to survive primarily on its own fees. But with very little development generating fee revenue, the department had racked up a nearly $300,000 deficit by early April of this year. With no firm alternative to carry on planning functions, the city later that month shut down the department.  In July, the city hired Mountain View-based Metropolitan Planning Group to handle planning functions. In turn, the consultant hired three former City of Petaluma staff members to provide some continuity. 4. Housing construction reaches new low It was not even close. Builders constructed fewer new housing units in 2009 than any year since the end of World War II. When the year began, the Construction Industry Research Board forecast that builders would pull permits for 67,000 housing units in 2009 � just up from the previous low of 65,380 units in 2008, and down an amazing 74% from the recent peak of 212,960 units in 2004. But that prediction turned out to be wildly optimistic. By the end of October, builders had received permits for only 29,901 units and the construction board was projecting only 36,000 housing starts for the year. That would mark a 45% drop from the previous record low. Housing construction remained desperately slow despite a federal tax credit of $8,000 and a state tax credit of up to $10,000 for buyers of new homes. Builders said the state credit in particular increased buyer activity in new subdivisions, and the California Building Industry Association urged an extension of the tax credit program after it expired in July. State officials declined to renew the program, but the builders will lobby to revive the tax credit in 2010. 5. Football stadium wins CEQA exemption Shortly after the new year began, the City of Industry approved Majestic Realty's proposal for a 75,000-seat football stadium, 25,000-space parking lot and about 3 million square feet of entertainment, retail and office development on a 560-acre site near the intersection of the 60 and 57 freeways. That project replaced a 5 million-square-foot business park that Industry had approved for the same location in 2004 but which never broke ground. Neighbors were not happy about a stadium that would bring tens of thousands of cars to an area already choking on traffic and smog. The neighboring cities of Diamond Bar and Walnut as well as a Walnut-based citizens group sued over the new project's environmental impact report. Diamond Bar quickly settled in exchange for $20 million in traffic mitigation, a school athletic field, property for a hotel, and up to $1 million annually for a community fund.  When the City of Walnut and the group Citizens for Community Preservation declined to settle, Industry began lobbying the state Legislature for an unprecedented exemption from the California Environmental Quality Act (CEQA) and the state law requiring a project to be compatible with a city's general plan. The city also sought to nullify all legal challenges. After lining up support from labor unions, Industry found a surprisingly receptive audience from Democrats in the Capitol. Under intense pressure from state lawmakers and the governor's office, the Walnut City Council in late September dropped its lawsuit in exchange for $9 million in traffic mitigation, annual contributions of up to $500,000 for a community fund, and promises from Industry and Majestic regarding transit, noise and public safety. But when Citizens for Community Preservation refused to budge, lawmakers � acting in a special October session � approved AB 81 X3 (Hall). That legislation provided the exemptions requested by Industry and barred all previous and future legal challenges based on CEQA (see CP&DR Capitol Update , October 15, 2009 ). Schwarzenegger signed the bill on the project site amid much fanfare. Supporters called the project "one of the most significant job-creation projects in the nation." Opponents and CEQA defenders called AB 81 X3 "disastrous." 6. Water legislation passes Schwarzenegger and Steinberg, who took over as state senate president pro tem in 2009, have proven to be a strange-bedfellows duo willing to address difficult topics. One of those is water. The five-bill package approved during a special session in November and signed by Schwarzenegger might be the most significant water legislation since approval of the State Water Project in 1960. At least that's the conventional wisdom. But doubters persist, in large part because the legislative package included an $11.1 billion bond for various water and environmental projects that will appear on the November 2010 ballot. Considering the state's perilous budget situation, selling voters on more debt could be very difficult. Still, the legislation does establish a new Delta Stewardship Council that is charged with preparing a Delta plan by 2012 and determining the consistency of local plans and projects with the Delta plan. Lawmakers also created a new conservancy to manage Delta ecosystem restoration and established a "watermaster" to enforce state decisions regarding freshwater flows into the Delta (see CP&DR , November 15, 2009 ). The idea is to centralize Delta management so that it is more consistent and accountable. In addition, the five-bill package created the first statewide groundwater monitoring program, requires urban water consumption to decrease 20% by 2021, and repealed a loophole allowing unreported water diversions by Delta landowners. California's longstanding north-south division re-emerged during the water legislation debate, and the 2010 water bond campaign may magnify that division. 7. Cal Supremes get serious about Proposition 218 enforcement In 2008, the state Supreme Court struck down a Santa Clara County Open Space Authority assessment as a violation of Proposition 218 because the authority did not put the assessment to a vote. The court followed up this year with a somewhat technical ruling in Bonander v. Town of Tiburon , 46 Cal. 646 (2009) that cleared the way for Tiburon property owners to challenge an assessment for placing utility lines underground (see CP&DR Legal Digest , July 1, 2009 ). The property owners argue they have the right under Proposition 218 to decide on the assessment. Only two weeks after issuing the Tiburon decision, the state high court accepted another Proposition 218 case for review. The question in Greene v. Marin County Flood Control District , No. S172199, is whether Proposition 218 requires secret voting, and, if so, whether the flood control district violated the requirement during 2007 balloting on a proposed storm drainage fee. If the court decides the district's process was legally inadequate, it could make Proposition 218 compliance more difficult for local government. The court is likely to hear the case in 2010. 8. MTA approves $40 billion L.A. transit plan Freeways may define Los Angeles, but in October the Los Angeles Metropolitan Transportation Authority approved a long-range transportation plan that calls for $40 billion worth of public transit projects over the coming two decades (see CP&DR Insight , December 1, 2009 ). Among the projects included in the plan are light rail line extensions to Los Angeles's Westside (including the long-discussed "Subway to the Sea"), to Los Angeles International Airport and further into eastern Los Angeles County suburbs; a new regional connector to ease light rail trips through downtown Los Angeles, and four north-south bus rapid transit lines in the San Fernando Valley. For nearly two decades, transportation officials in Los Angeles have steered investment toward public transit. The result has been construction of more than 100 miles of light rail lines, creation of the most popular bus rapid transit route in the state in the San Fernando Valley, and establishment of the Metrolink heavy rail system that connects five counties. The MTA's new long-range plan takes the public transit emphasis at least one step further. 9. Air pollution fee on new development is upheld A first-of-its-kind air pollution fee on new development was upheld in October, when the Fifth District Court of Appeal rejected building and taxpayer group arguments over the San Joaquin Valley Unified Air Pollution Control District's "indirect source" fee program. More than three years ago, the district began assessing the smog mitigation fee on most residential, commercial, industrial, office and public projects. The fee averages about $475 per dwelling unit, and the district uses the money to fund air pollution offsets, such as diesel engine retrofits. Project proponents may reduce their fee by including "smart growth" provisions, such as higher densities and access to transit, and by incorporating energy efficiency and clean air measures. Builders, business advocates and taxpayer groups argued the fee violated the Mitigation Fee Act because the district did not demonstrate a nexus between the effects of development and the fee. However, the court ruled the fee is regulatory in nature, not a development fee, and, therefore, is not subject to the Mitigation Fee Act's nexus requirement (see CP&DR Legal Digest , October 15, 2009 ). The ruling is expected to ease the implementation of fees tied to greenhouse gas emissions. 10. State finalizes climate adaptation plan The Earth's changing climate is going to result in higher sea level, bigger floods, and more and larger wildfires � and public agencies that have land use authority or that provide infrastructure should plan accordingly. That was the message contained in the California Climate Change Adaptation Strategy that the Schwarzenegger administration completed in early December. Development interests said the plan overreaches, while environmentalists said it does not go far enough (see CP&DR Insight , November 1, 2009 ). What appears certain is the Schwarzenegger administration's commitment to the plan. The governor appointed a committee to make specific implementation recommendations based on the plan. The committee includes such heavy hitters as former Gov. Pete Wilson, former Assembly Speaker Robert Hertzberg, and former U.S. Environmental Protection Agency Administrator William Reilly. With a July 2010 deadline, the committee could make big news next year.

A state appellate court has thrown out an Inyo County general plan amendment that the county argued was nothing more than a clarification of a longstanding policy. A unanimous three-judge panel of the Fourth District Court of Appeal, Division Two, concluded that the amendment was more than a mere clarification and that the county should have completed an environmental impact report before approving the amendment. Inyo County adopted a new general plan in 2001. The plan contained a new definition of the term "net acreage": "The remainder of land left after land devoted to streets, roads, and utilities are deducted from the parcel." Later that year, county planners said the definition was confusing and would result in some properties being rendered too small for development. The concern was that land that was subject to utility easements should not be deducted from the net acreage total because the land would still be usable. Planners prepared a general plan amendment to redefine "net acreage," as well as a negative declaration stating that the amendment could not impact the environment. Residents of McLaren Ranch Estates outside of Bishop opposed the new definition because they said it could permit property owners to go forward with land divisions that would not be permitted under the 2001 definition. The area is zoned for half-acre minimum parcels, and three properties in question were barely larger than 1 gross acre.  County officials maintained they were only clarifying a policy that had been in effect since 1984 and that the new definition would have no impact on growth. The Board of Supervisors in early 2005 adopted the negative declaration and approved the general plan amendment. It defined "net acreage" as "the remainder of a parcel or piece of property after land dedicated or otherwise encumbered by an easement and/or right-of-way for a public street or road, including a county road, is deducted from the gross acreage or gross parcel size." A group called Inyo Citizens for Better Planning sued, arguing the county should have prepared an EIR for the general plan amendment (GPA) and for three parcel maps in McLaren Ranch Estates. Retired Los Angeles County Superior Court Judge Phillip Argento, sitting by assignment in Inyo County, rejected the citizens group's contentions. On appeal, the group argued it had passed the California Environmental Quality Act's fair argument test. Under this test, an agency must prepare an EIR if substantial evidence supports a fair argument that a project may have a significant effect on the environment. The appellate panel found that such evidence existed. The court cited: • A letter from the Bishop Creek Water Association saying the amendment could increase subdivisions in an area with low water flows during the dry season. • A letter from a property owner who testified groundwater levels were falling. • A resident's letter questioning whether wells and septic tanks could be sited on small parcels without impacting groundwater • National Park Service testimony regarding potential impacts to birds from decreased open space and degraded surface waters • A statement from then-Planning Director Chuck Thistlethwaite to the Board of Supervisors that the 2001 definition of net acreage "could have countywide implications and virtually place a moratorium on development in every area of the county." "Reasonable assumptions from these facts were (1) allowing greater residential density might have an adverse impact on water resources; (2) strained water resources might adversely affect plant life and bird life; and (3) subdivisions and residential building that would not be authorized under the 2001 general plan might be permitted under the GPA," Justice Douglas Miller wrote for the court. " he county should have prepared an EIR, rather than a negative declaration." The court pointed out that Thistlethwaite's statement ran counter to the county's legal argument that the county was simply clarifying a long-held policy that would not induce more development than was anticipated by the 2001 general plan. In addition, the court noted, a 2004 staff report to the Board of Supervisors provided options for defining net acreage, such as whether or not to count private driveway easements. Wrote Miller, " t does not appear from the record that the change in the definition of net acreage was merely a clarification of existing policies, because the definition was debated and different options were discussed." The court directed the county to set aside the general plan amendment. However, the court upheld three parcel maps approved by the county, concluding that the opponents did not prove the county had incorrectly figured the net acreage of the existing or new parcels. The Case: Inyo Citizens for Better Planning v. Inyo County Board of Supervisors , No. E046646, 2009 DJDAR 17417. Filed November 20, 2009. Ordered published December 14, 2009. The Lawyers: For Inyo Citizens: Charles Kroilikowski, Newmeyer & Dillion, (949) 854-7000. For the Board of Supervisors: Randy Keller, county counsel's office (760) 878-0229.

The environmental impact report for a water transfer from a Kern County irrigation district to an urban water supplier in the Santa Clarita Valley has been upheld by the Second District Court of Appeal. The unanimous three-judge panel overturned a trial court judge,who had struck down the EIR because it did not adequately address a State Water Project framework and ongoing environmental review. The Second District ruled that the EIR did address the State Water Project issues and said the water transfer is a separate matter anyway. The ruling is a victory for water providers and developers in Los Angeles County's Santa Clarita Valley, and a setback for environmentalists and slow-growth activists. The rapidly growing Santa Clarita Valley has been at the center of numerous legal and political battles over water plans and water supply assessments. A transfer of 41,000 acre-feet of State Water Project (SWP) water to the Castaic Lake Water Agency has been a major point of contention. In 1999, the agency signed a contract under which the Wheeler Ridge-Maricopa Water Storage District (which receives SWP deliveries via the Kern County Water Agency) would permanently transfer the rights to 41,000 acre-feet of SWP water to Castaic. That transfer was based on the "Monterey Agreement," a 1995 plan that modified how the State Water Project allocated water during dry years and which authorized the transfer of 130,000 acre-feet of water from agricultural use to urban suppliers. In 2000, an appellate court struck down the Monterey Agreement EIR because a Monterey County water agency – and not the Department of Water Resources (DWR) – served as the "lead agency" that certified the EIR ( Planning & Conservation League v. Department of Water Resources , (2000) 83 Cal.App.4th 892). The Second District followed up by invalidating the EIR for the Kern-Castaic water transfer because the environmental document tiered off the Monterey Agreement EIR. In Friends of the Santa Clara River v. Castaic Lake Water Agency , (2002) Cal.App.4th 1373, the court ruled that an EIR that tiers off a program EIR is not valid if the program EIR is no longer in place (see CP&DR Legal Digest , March 2002 ). Importantly, though, the court rejected Friends' request for an injunction halting the water transfer. Castaic has continued to have access to the SWP water since 1999. In late 2004, Castaic certified a second EIR and approved the water transfer again. The new EIR did not tier off any other document and analyzed the impacts of the transfer under three different scenarios: (1) a transfer based on 2003 amendments to the Monterey Agreement (known as Monterey Plus), (2) a transfer without Monterey Plus or a reallocation of water in dry years, (3) a transfer without Monterey Plus but with other SWP permanent cutbacks. The EIR also included five alternatives to the transfer. Although the EIR had to go back to Los Angeles County Superior Court because of the 2002 Friends ruling, Friends dismissed its action because the group lacked money to continue litigating. However, the Planning and Conservation League (PCL) and the California Water Impact Network (CWIN) filed a new suit over the second EIR. Superior Court Judge James Chalfant rejected most of PCL and CWIN's arguments. Still, he concluded the EIR was flawed because it did not adequately explain the relevance of the pending Monterey Agreement EIR to the scenarios in the Castaic EIR. Parties on both sides appealed, and the Second District ruled entirely for Castaic. The appellate panel overturned Chalfant on the issue of the scenarios for two reasons. First, the court ruled, PCL and CWIN never specifically objected to the discussion of the scenarios during the administrative process and, therefore, should not be able to raise the argument in court. Second, the court determined, " he 2004 EIR adequately explains why the three scenarios discussed in connection with the transfers are possible outcomes of DWR's pending Monterey Agreement EIR." " he 2004 EIR describes the relationship between the pre- and post-Monterey Agreement contractual requirements and the three water supply scenarios in considerable detail," Justice Nora Manella wrote for the appellate panel. "Although we agree with the trial court that the 2004 EIR's discussion could have been clearer,  ‘absolute perfection' is not required of an EIR." The primary contention of PCL and CWIN was that the Department of Water Resources should have prepared the EIR for the Kern-Castaic water transfer because the Monterey Agreement enabled the transfer. Castaic could serve as the lead agency only after a new Monterey Agreement EIR is complete, they argued. Both the trial court and the appellate court disagreed. " othing before us suggests that the Monterey Agreement, viewed as a CEQA project, included the Kern-Castaic transfer when the original Monterey Agreement was prepared and certified in 1995," Manella wrote. "As the Kern-Castaic transfer was no more than ‘a gleam in a planner's eye' at the time of the Monterey Agreement, the transfer fell outside the original Monterey Agreement EIR, and was properly considered in a separate EIR. "We also conclude that the decertification of the 1995 Monterey Agreement EIR and its aftermath have not brought the transfer within the compass of the new Monterey Agreement," Manella continued. The water transfer opponents pointed to the 2000 decision in Planning & Conservation League , in which the court ruled that DWR's statewide perspective made the agency the logical choice to complete the Monterey Agreement EIR. But the Monterey Agreement, the Second District noted, involves the entire State Water Project. "In contrast, Castaic's preeminent role regarding the water transfer renders it the logical choice for lead agency, in view of the transfer's confined scope" Manella wrote. The opponents further argued that the EIR represented the water transfer as fait accompli and that a "no project" alternative that involved both no Kern-Castaic transfer and the state's abandonment of the Monterey Agreement should have been studied. The court rejected both arguments and accepted Castaic's arguments that the water transfer could go forward with or without the Monterey Agreement, and that the transfer and the Monterey Agreement "constitute different projects under CEQA, and only the transfer is subject to Castaic's approval." The Case: Planning and Conservation League v. Castaic Lake Water Agency , No. B200673, 2009 DJDAR 17603. Filed December 17, 2009. The Lawyers: For PCL: Roger Moore, Rossmann & Moore, (415) 861-1401. For Castaic: William Hancock, Eisenberg & Hancock, (415) 984-0650. For Kern County Water Agency: Amelia Minaberrigarai, Kronick, Moskovitz, Tiedemann & Girard, (661) 634-1400. For Wheeler Ridge-Maricopa Water Storage District: Steven Torigiani, Young Wooldridge, (661) 327-9661. For the Department of Water Resources: Deborah Wordham, attorney general's office, (916) 323-3549.

The Governor's Office of Planning and Research released updates of two reference documents in December – the 2010 edition of "Planning, Zoning and Development Laws," and the 2010 version of the "Planners' Book of Lists." The 370-page collection of laws contains summaries of new planning, zoning and development laws, as well as summaries of pertinent attorney general's opinions from 2009. The introduction states, "OPR staff receives hundreds of requests for technical assistance each year from local planning agencies. In an effort to address some of these technical assistance requests, the ‘2010 Planning, Zoning, and Development Laws' is comprised not only of state planning and zoning laws, but also excerpts from related statutes." The "Book of Lists" contains all the usual contact information for local, regional, state and federal agencies, as well as general plan status reports. The document also provides the results from OPR's annual survey of planners, which this time concerned regional planning efforts, local transportation planning, climate change issues, energy and water conservation planning, and funding for planning. Both publications may be downloaded for free from the OPR website, www.opr.ca.gov .