Two environmental groups that sued the City of Rancho Cucamonga and developers to gain ownership of 86 acres of habitat mitigation land have failed to persuade an appellate court to reverse a devastating lower court ruling. A unanimous three-judge panel of the Fourth District Court of Appeal rejected the argument put forth by The Habitat Trust for Wildlife and Spirit of the Sage Council that the city, developers and San Bernardino County had collaborated to deny the environmental groups' right to own the property. In so doing, the court said that there was nothing improper about the city's method of deciding who could own mitigation land; that the environmental groups had no constitutional right to the land; and that the developers had not breached a contract it had with the groups. The judges also upheld an award of $954,000 in attorney fees and legal costs to the developers. Spirit of the Sage has sued Rancho Cucamonga developers and the city numerous times to mitigate the loss of wildlife habitat because of real estate development. The litigation resulted in the formation of a 308-acre wildlife preserve in Etiwanda Canyon. Developers Henderson Creek Properties and SPS Development Services sought approval for a 123-house, 65-acre subdivision. The Rancho Cucamonga City Council approved the project in June 2004. Among the mitigations was a requirement that the developers donate at least 54 acres of off-site land to a "qualified conservation entity" for permanent open space and habitat preservation. To head off litigation by Spirit of the Sage and Habitat Trust, the developers signed an agreement to turn over 86 acres adjacent to the preserve in Etiwanda Canyon to Habitat Trust. They also agreed to provide a $430,000 endowment to fund property management and $125,000 to cover administrative and attorney costs. The developers then asked the city to designate Habitat Trust as a qualified conservation entity. But in early 2005, the city balked because the environmental organization did not put together a habitat management plan, lacked adequate financial and personal resources, did not provide audited financial records and was not accountable to the public. The city reached this conclusion after San Bernardino County Supervisor Paul Biane urged the city to ensure a county agency gained the mitigation lands. Biane and other county officials say habitat lands should be managed for public recreation in addition to wildlife needs, an approach opposed by the environmental groups. After the city's decision, the developers turned over the land and money to a county service area. The groups then sued the city, the county, Henderson, SPS, and Granite Homes, which had assumed Henderson's interest in the project. The groups sued the developers for breach of contract and breach of the covenant of good faith and fair dealing. The groups argued the city denied them due process and adopted standards for establishing a qualified conservation entity that conflicted with state and federal law. Meanwhile, Henderson and SPS filed a cross-complaint against Spirit of the Sage and Habitat Trust to rescind the 2004 contract, based upon failure of consideration, mutual mistake and duress. San Bernardino Superior Court judges granted summary judgment to the city, the county and the developers on every issue. The court also awarded $667,000 in attorney fees to Henderson and SPS, and $287,000 in attorney fees and costs to Granite. The environmental groups appealed, but the Fourth District, Division Two, rejected every argument. On the issue of due process, the court ruled the groups had failed to show why they were entitled to due process, as no constitutional right was implicated in the matter. Even if due process rights applied, the groups were aware of the city's proceedings and were given the opportunity to address the City Council, the court concluded. Regarding the choosing of a qualified conservation entity, the court found the city's criteria acceptable and not in conflict with any state or federal laws. On the breach of contract issues, the court ruled that the environmental groups had not proven their case. Essentially, the 2004 agreement fell apart when the city refused to name Habitat Trust a qualified conservation entity, contrary to the contract's assumptions. The purpose of the contract was the satisfaction of a mitigation condition. When the city made its decision regarding Habitat Trust, the developers rightly turned over the land and money to the county to comply with the condition, the court found. Because it upheld the lower court's summary judgment rulings, the Fourth District also upheld the award of attorney fees and costs. Earlier this year, the Superior Court ordered an auction of Habitat Trust's 308-acre preserve to help pay off the award. In April, Henderson Creek and SPS won the auction, acquiring the property for $255,000. They intend to use the site, which is covered by a conservation easement, as a mitigation bank. The Case: Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga , No. E042229, 2009 DJDAR 10813. Filed July 21, 2009. The Lawyers: For Habitat Trust: Craig Sherman, (619) 702-7892. For the city: Mitchell Abbott, Richards, Watson & Gershon, (213) 626-8484. For SPS Development Services and Henderson Creek Properties, Alan Kessel, Manatt, Phelps & Phillips, (714) 371-2500. For Granite Homes: Daniel Friedlander, Jackson, DeMarco, Tidus and Peckenpaugh, (805) 230-0023. For San Bernardino County: Mitchell Norton, county counsel's office, (909) 387-5455.

The California Supreme Court has taken up another Proposition 218 case. This one involves voter secrecy in fee elections. Earlier this year, the First District Court of Appeal annulled a fee election held in 2007. Marin County Flood Control and Water Conservation District had asked voters to approve a storm drainage fee to pay for flood-protection improvements in Ross Valley. Affected property owners received ballots in the mail, and each voter was required to sign a ballot printed with the name, address and proposed fee of the voter. The fee proposal passed 3,208 to 3,143. One property owner sued to throw out the election because the district did not conduct the vote using secret ballots. A trial court judge disagreed, but the appellate panel overturned the lower court. While conceding that Proposition 218 was ambiguous on secret elections, the First District concluded that "voters who adopted Proposition 218 intended voting to be secret in these fee elections." With the support of other special districts and local government agencies, the Marin district appealed to the state Supreme Court. It contended that Proposition 218 – the "Right to Votes on Taxes Act" passed in 1996 – does not require voter secrecy, and that the appellate court ruling runs counter to 12 years of practice in fee elections. The case presents two questions for the court: • Does the state constitution's secret voting requirement apply to special elections governed by Proposition 218 (article XIII, section D of the constitution)? • If so, was the secrecy requirement violated by the Marin County district, whose procedures were designed to ensure secrecy but which failed to provide each voter with assurance that his vote would be held in confidence? Earlier this year, the state high court issued a procedural ruling – Bonander v. Town of Tiburon (see CP&DR Legal Digest , July 1, 2009 ) – that appears to make it easier to wage a Proposition 218 challenge to some fees. And last year, the court ruled that a Santa Clara County open-space assessment violated Proposition 218 because the fee provided only general, rather than parcel-specific, benefits. That case, Silicon Valley Taxpayers Assn., Inc. v. Santa Clara County Open Space Authority , (2008) 44 Cal.4th 431 (see CP&DR Legal Digest , August 2008 ), provided a template for the First District's review of the Marin County situation. The latest case is Greene v. Marin County Flood Control District , No. S172199.

Two members of the board overseeing the Orange County Great Park who sued the public agency over access to executive recruitment information should have their attorney fees paid, the Fourth District Court of Appeal has ruled. Steven Choi and Christina Shea serve on the board of directors of the Orange County Great Park Corporation and the Irvine City Council. After being denied access to resumes and related materials of candidates seeking the job of chief executive officer, they sued the corporation. When the corporation settled the suit by agreeing to provide them access, Choi and Shea sought $44,000 in attorney fees. A trial court judge refused to grant them, but the Fourth District, in ordering fees to be paid, found there was "not a whit of evidence" the corporation would have made the documents available without the suit. When completed, the Great Park will comprise 1,350 acres of the former El Toro Marine Corps Air Station in Irvine. While elaborate plans have been drawn up, only a 27-acre "demonstration park" has been finished, in part because housing development that would help fund the park has stalled. The Great Park was conceived to be a county or regional facility when voters approved it as Measure W in 2002, but the City of Irvine has since taken control of the estimated $1.6 billion project. The Great Park corporation board of directors is composed of Irvine's entire five-member City Council and four other people appointed by board. After going through three different CEOs in its first three years, the board hired the Mills Group in 2007 to conduct a nationwide search for a fourth. The board formed a search committee composed of four directors, and Irvine's city manager and deputy city manager. Mills narrowed the field to 12 candidates out of 150 applicants. The search committee interviewed five finalists before recommending Kurt Haunfelner, president of the Chicago Museum of Science and Industry. Before the full board voted to offer the position to Haunfelner, Shea asked to see the resumes of the finalists. She was refused. After Haunfelner declined the offer, the committee recommended Rod Cooper, the park's operations manager and an Irvine employee, but he withdrew from consideration before the board could vote. Soon thereafter, the Los Angeles Times revealed that Haunfelner was a friend of board Chairman and Irvine Councilman Larry Agran, who had once employed Haunfelner's brother as an aide. The Times also reported that the previous CEO, Marty Bryant, was convicted in 1989 of embezzling public funds from the City of San Juan Capistrano. Choi and Shea asked to see all the resumes and materials received by the Mills Group but Agran and the corporation repeatedly refused to release them. In January 2008, Choi and Shea sued to see the materials. Two months later, the corporation agreed to provide Choi and Shea with complete copies of all materials related to the job search during a closed session. Choi and Shea then sought to recoup their attorney fees under Code of Civil Procedure § 1021.5 (the private attorney general doctrine) and Corporations Code § 6337. Orange County Superior Court Judge Derek Hunt rejected the request on the grounds that there was no court judgment and that the suit produced no public benefit, as required under the private attorney general doctrine. In overturning Hunt, the unanimous three-judge appellate panel considered the attorney fee request only under § 1021.5. That statute and case law do not require a judgment but a "broad, pragmatic view" of the matter's outcome, the court determined. In this case, the settlement brought about a complete reversal, as the corporation had "unequivocally refused to provide documents prior to the litigation," wrote Justice William Rylaarsdam. On the question of public benefit, the Fourth District said: "Given the checkered history of the CEO search and the ongoing public criticism of the ‘revolving door of Great Park executives,' the method used for selection of the CEO should be beyond reproach. Plaintiffs' request for documents to determine how the search had been conducted to date was an act to maintain the integrity of the process itself, a significant benefit to the public." "This is especially important given that out of 150 resumes collected … the selection committee's first choice had political ties to Agran and the second choice was another City of Irvine employee," Rylaarsdam wrote for the court. "This does not give the appearance of fairness or impartiality." The court directed the trial court to determine the amount of attorney fees owed to Choi and Shea, who could also seek fees for the appeal. One year ago, the board appointed Michael Ellzey, who had been deputy CEO for six months, to the Great Park Corporation's executive position. The Case: Choi v. Orange County Great Park Corp. , No. G040823, 2009 DJDAR 9790. Filed June 30, 2009. The Lawyers: For Choi: Benjamin Pugh, Enterprise Counsel Group, (949) 833-8550. For the corporation: Robert Thornton, Nossaman, (949) 833-7800.

Many people decry the use of eminent domain by redevelopment agencies in California. I don't deny that there have been flagrant abuses of eminent domain authority over the years, but I also understand why well-meaning redevelopment officials grow frustrated with private property owners and resort to forced takings. I spent a day in Suisun City last month reporting for the latest Local Watch story . Suisun City is unquestionably one of California's redevelopment success stories. A sparkling waterfront district has replaced one of the Bay Area's scariest slums. Still, when I visited last month, I was struck by the number of empty lots and vacant or obviously underused buildings on Main Street – even right across the street from the very pleasant waterfront promenade. In the window of one boarded-up, single-story building was a faded, hand-scrawled sign on a piece of corrugated cardboard inviting offers of "$750,000 and up" for the real estate. Yes, three-quarters of a million. When I spoke with current Mayor Pete Sanchez and former five-term Mayor Jim Spering (now a Solano County supervisor), they expressed frustration with the situation. Both of them said the city had failed to get the Main Street property owners interested since the city shifted redevelopment into high gear during the late 1980s. "That whole west side of Main Street is just as blighted as it used to be," an exasperated Spering said. The situation is hardly unique, and it exemplifies why redevelopment agencies end up exercising their eminent domain authority. The scenario usually goes about like this: In a run-down part of town, the city starts a redevelopment program. It does some infrastructure work and improves the streetscape. It acquires a few neglected properties from willing sellers and then either fixes up the property or turns it over to a developer for a project. Over a period of time, things start shaping up. Some people recognize the neighborhood is changing and begin investing in their property or business. This one of the primary goals of redevelopment – to generate private investment in a stagnant market. Other people, however, see the redevelopment activity as their big chance to cash in. They put their dilapidated property on the market for an astronomical price, sometimes after shutting down a business or evicting a tenant. Naturally, no one bites. The property owner tries to interest the redevelopment agency, but even if the agency wants the property, it may not legally pay more than fair market value, which could be a small fraction of the asking price. So nothing happens. The property sits there vacant or with some grungy second-hand store that pays enough rent to cover the property owner's minimal taxes. The property owner figures he'll wait it out. The other scenario involves an owner who is motivated not by money, but by ideology. It's his property and he can do whatever he wants with it – paint the building florescent green, let the tenant erect obnoxious signs, rent to a biker gang or simply board up the windows and use the building for storage. The city can just go to hell. A walk down Main Street shows that Suisun City has experience with both scenarios – 20 years after the city got serious about redevelopment, and more than 10 years after redevelopment was declared a success. This is precisely why redevelopment agencies take properties. Recalcitrant property owners hinder not only the fancy plans of elected officials and bureaucrats, they hold back the entire community. – Paul Shigley

Preparing CEQA documents can be a complex process that requires compliance with numerous legal requirements, guidelines and emerging issues like climate change. UCLA Extension offers a one day course which aims to clear the confusion, and convey approaches for preparing, reviewing and understanding environmental documentation for CEQA projects. Anyone who deals with CEQA documentation can gain valuable knowledge from this seminar which also delves into Negative Declarations and EIR's. John E. Bridges, Principal of EDAW and Thomas E. Smith Jr, Founder and Principal of BonTerra Consulting will navigate you through this one day seminar on July 24th. The seminar runs from 9:00am to 4:30pm and will be held at the Figueroa Courtyard in downtown Los Angeles. The fee is $350; please use registration number V2245. For more information, or to enroll, please call (310) 825-9971 or go to www.uclaextension.edu/publicpolicy

A courtroom is not the location to settle disputes over regional fair-share housing allocations. So ruled the Fourth District Court of Appeal on June 30 in a closely watched case involving the City of Irvine. As a result of the ruling, the city apparently is stuck with having to plan for development of 35,000 additional housing units � equal to about half of its existing inventory � over the next five years. The appellate court's decision bolsters the authority of the Southern California Association of Governments and other councils of government (COGs) that allocate fair-share housing numbers to cities and counties. The decision raises questions about local governments' planning authority. If the Fourth District rejects Irvine's request for reconsideration, the city will almost certainly appeal to the state Supreme Court. "We simply don't agree with the court's analysis and conclusions," said Rutan & Tucker's Philip Kohn, who represents Irvine in the litigation. The appellate court's decision amounts to an "erosion of local control," he said. If the ruling stands, Irvine will be responsible for accommodating about 43% of Orange County's projected housing needs during the 2006-2014 planning period, a mandate that Irvine leaders say is unfair and infeasible. "We try to balance housing and job opportunities," Irvine Mayor Sukhee Kang told the Orange County Register . "Looking at the overall housing vision for the county, we feel that what is required out of Irvine is inequitable." John Edney, an El Centro city councilman and SCAG president, backed the court's decision but acknowledged the difficulty Irvine faces as a result of it. "SCAG will continue to work with all of its member agencies on the Regional Housing Needs Assessment in a collaborative and transparent manner, and in compliance with the law," Edney promised. Kenneth Moy, general counsel for the Association of Bay Area Governments, which supported SCAG in the Irvine lawsuit, said the case was correctly decided. If the court had gone the other way, it would have thrown a monkey wrench into the whole Regional Housing Needs Assessment (RHNA) process, he said. "On balance," Moy said of the ruling, "it preserves the integrity of the process for all the participants in the RHNA process. I don't think it affects how ABAG will conduct future RHNA allocations." Two years ago, the cities of Palmdale and La Mirada filed similar suits against SCAG over the fair-share housing allocations. But, like with Irvine's, the suits were dismissed because trial courts said they have no jurisdiction to hear the disputes. Although more than 20 other cities signed onto amicus briefs in support of the lawsuits, the League of California Cities has remained officially neutral. The Regional Housing Needs Assessment process is laid out in Government Code � 65584, et seq. The law requires the state Department of Housing and Community Development (HCD) to consult with a region's COG to establish the region's existing and projected housing needs. The COG then works with its cities and counties on a methodology for allocating the housing needs among them. After the COG prepares a draft RHNA allocation based on the methodology, cities and counties may appeal to the COG's appeals board. Because a successful appeal typically requires the COG to re-allocate units to other jurisdictions, few cities or counties get far with their appeals. Once appeals are exhausted, the COG adopts a final allocation plan, which is subject to review and approval by HCD. Cities and counties then must update their housing elements to reflect the RHNA allocations for very low-, low-, moderate- and above-moderate income housing units. Housing elements typically analyze housing needs, identify land where housing may be developed, and list policies and programs to promote affordable unit development. Final authority for certifying housing elements rests with HCD. In 2004, lawmakers approved SB 2158 (Lowenthal), which revised the RHNA process to give cities and counties greater say in allocations. The revision also spread the affordable housing burden more evenly, promoted infill development and tightened the relationship between housing and jobs. The penalties for not having a certified housing element used to be minimal. However state lawmakers in recent years have tied eligibility for certain pots of money to housing element certification. Last year's SB 375 further modified the housing element law by establishing new planning horizons, requiring more up front zoning for housing up front and giving advocates greater authority to sue over housing plans. For the planning period from 2006 through June 30, 2014, SCAG utilized an allocation methodology that considered availability of land suitable for urban development, underutilized parcels and opportunities for infill and increased densities. The methodology also aimed to allocate very low- and low-income units more equitably across the region. In early 2007, SCAG used this methodology to allocate Irvine 35,300 housing units, about 60% of which were to be in the very low-, low- and moderate-income categories. Among the factors in the allocation were Irvine's huge job base � the city was home to about 190,000 jobs in 2007, or nearly three jobs for every one housing unit � the city's annexation of 3,000 acres and its jurisdiction over 4,000 acres of the decommissioned El Toro Marine Corps base. Irvine protested, saying most the annexed land was protected by a habitat plan, and the majority of the El Toro site was designated for the Orange County Great Park or environmental mitigation by the Navy. In its plea to SCAG's RHNA appeals board, Irvine agreed to accept an allocation of 8,800 units. The appeal failed, and Irvine was subsequently given an additional 300 units. Irvine then sued SCAG, arguing the association was violating the state RHNA law (see CP&DR , September 2007 ). No court, however, has ever considered Irvine's argument. Orange County Superior Court Judge William Monroe dismissed the lawsuit, finding he had no jurisdiction under state law to hear the case. On appeal, Irvine argued that Monroe's interpretation of the RHNA law was absurd because it would mean SCAG serves as the "final judge, jury and appellate tribunal" for any alleged violation of the law. Denied judicial review, cities have no remedy available, Irvine agued. However, a unanimous three-judge panel of the Fourth District agreed with Monroe that the RHNA process is "immune from judicial intervention." The court disagreed, finding that no single entity has complete control of the RHNA scheme. The opinion by Justice William Rylaarsdam outlined all of the consultation and cooperative aspects required to be part of the process, as well as HCD's oversight role. The court also pointed to 2004 legislative amendments that repealed judicial review of COG housing allocations. "Given the RHNA statutes' nature, their allowance for public input, and their lengthy and existing administrative procedure, it is clear the Legislature intended to eliminate resort to traditional judicial remedies to challenge a local government's regional housing needs allocation so as to avoid the disruption of local planning that would result from interference through the litigation process," Rylaarsdam wrote. Two other portions of the opinion appear noteworthy. In one, the court hinted that Irvine could plan for fewer units than called for in the RHNA allocation. The court cited Government Code � 65883, subdivision (b)(2), which says that if identified housing needs exceed a jurisdiction's resources, a housing element's "quantified objectives need not be identical to the total housing needs." The court also cited a 2005 attorney general's opinion that interpreted the same law to mean a community may establish a maximum number of housing units below its RHNA allocation if it has insufficient resources to meet the RHNA needs (88 Ops.Cal.Atty.Gen. 84; see CP&DR Legal Digest, June 2005). Kohn, the city's attorney, said the court appeared to be offering solace to Irvine. But he pointed out that housing element certification is up to HCD, not the city. In another part of the opinion, the court stated, "The RHNA allocation process must be completed in advance of the revision of a municipality's general plan housing element." It is this procedural aspect the court desires to shield� because if it were disturbed, a reallocation of RHNA numbers could be required. " llowing this judicial action to proceed would require the joining of all affected local jurisdictions in the lawsuit, thereby precluding each affected municipality's completion of its housing element revision," Rylaarsdam wrote. In practice, however, HCD permits cities and counties to submit housing element updates before RHNA allocations are complete, as long as the city or county is willing to amend the element after the allocation is final. "Perhaps this will be the next RHNA issue to be resolved by litigation," Abbott & Kindermann attorney Katherine Hart wrote in an analysis of the decision. Kohn said the court could fashion a remedy to Irvine's situation that does not implicate other jurisdictions' planning. The Case: City of Irvine v. Southern California Association of Governments , No. G040513, 2009 DJDAR 9783. Filed June 30, 2009. The Lawyers: For Irvine: Philip Kohn, Rutan & Tucker, (714) 641-3415. For SCAG: Joanna Africa, Southern California Association of Governments, (213) 236-1928.

Ten years ago, Suisun City was one of the nation's great redevelopment success stories. Plagued by violent, drug-dealing gangs, it literally bulldozed their strongholds to make room for a fancy civic center. The city reclaimed its neglected waterfront and approved the construction of hundreds of homes in a traditional neighborhood development. Suisun City, located adjacent to the Solano County seat of Fairfield, became a case study for planners, new urbanists and journalists, earning state and national awards for its turnaround. Despite the troubled economy, redevelopment continues, with a new motel under construction and a 40,000-square-foot mixed-use building nearly complete. As recently as last winter, Peter Katz, founding director of the Congress for the New Urbanism, named Suisun City the third "most enlightened" suburb in the country. But all the success and awards have not lessened a feeling that Suisun City's redevelopment still has a long ways to go. Vacant lots and empty or underused buildings occupy a considerable stretch of Main Street in old town, including several blocks across from the waterfront. A hoped-for transit-oriented development near an Amtrak commuter train station has never materialized. Solano County Supervisor Jim Spering, who was Suisun City mayor for 20 years, says it is time for the city to re-evaluate the downtown specific plan and to pursue development more aggressively. Camran Nojoomi, who served as redevelopment agency executive director and for two years as city manager during the 1990s, agreed. "We used to control and run the development business of the city," recalled Nojoomi, a businessman who is developing a small mixed-use project in town. "Now they are more passive. We didn't just wait for things to happen." Suisun City Mayor Pete Sanchez, who replaced Spering in 2007 after eight years on the City Council, concedes that downtown redevelopment is not complete. He is quick to say that the area needs more residents and more attractions for locals and visitors. But Sanchez said that Suisun City residents are not demanding more aggressive redevelopment. He doubts there is significant interest among the general public for updating the downtown plan. "We are dealing with a bedroom community of 27,000 people. Everybody is just so busy commuting to work and coming home to their family," Sanchez said. It was 1988 when Suisun City hit bottom. That year the San Francisco Chronicle conducted a quality-of-life survey that compiled statistics on crime, median income, public facilities and such for all 98 municipalities in the nine-county Bay Area. Suisun City ranked dead last. In his first of five terms as mayor, Spering responded by spearheading development of a downtown specific plan to replace one that had gathered dust since 1982. With the help of San Francisco's Roma Design Group, the city soon had a new plan, and with Nojoomi running a merged redevelopment, planning and housing agency, the city was soon acting as the lead developer. One of the city's first actions was cleaning out the Crescent neighborhood, a 470-unit condominium complex near the waterfront that was a gang haven. The city condemned the properties, relocated about 2,000 residents and approved the 300-unit Victorian Harbor project – a traditional neighborhood development of single-family homes with front porches, narrow streets and extensive trees – on the site. With the gangs gone, some of the former Crescent residents returned to entry-level housing in Victorian Harbor, which remains desirable today. The city also built a nautical-themed civic center on the waterfront just down from the former Crescent neighborhood as a statement that the public was reclaiming the territory. Suisun City funded the iconic project with redevelopment revenue, which would be illegal today. A south-facing view, with the civic center at left and old town to the right of the long marina. A very narrow arm of Suisun Bay reaches into the downtown, as it has since the city's founding in 1848. For many years, the waterfront was a polluted, industrial area inaccessible to the public. The specific plan envisioned a public promenade around the waterfront, parks and al fresco dining – which is pretty much what the city got, along with a new 150-slip marina. It is a busy place on weekends and during the many community events on the calendar. Jason Garben, the town's economic development director, said Suisun City has been successful because city leaders have stuck with the 200-acre specific plan for the waterfront and old town area for 20 years. The plan is flexible in achieving its overall vision, as key properties are zoned to permit a mix of commercial, office, industrial and residential uses. The area contains a number of two-story structures with retail outlets or restaurants below residences, as well as live-work units for professionals. There is also a collection of new craftsman-style bungalows that face onto a greenway across the street from city hall. During the housing boom earlier this decade, developers pressured the city to rezone properties for strictly residential development, according to Garben. It resisted, and in some ways the boom bypassed Suisun City. Most of the town's suburban housing tracts were built during the 1970s and 1980s. The city did approve a Wal-Mart Supercenter in the eastern part of town, which spurred a recall effort and lawsuit, neither of which were successful. The residential housing tracts are disconnected from the downtown waterfront area, which the city hopes to fix. Toward that end, the city recently completed a bikeway that runs through town, over Highway 12 and into downtown. Garben points to a vacant 30 acres tucked between downtown and residential areas – and within walking distance of the station where the Capital Corridor train stops 32 times a day. He foresees the property providing a crucial link to and entry into downtown. "That could be a real opportunity. You could do some high-density, transit-oriented development," Garben said. However, such a project was difficult to put together even when times were good. Nojoomi said the site offers a "tremendous opportunity" for high-rise residential development, and he urged the city to plan now to ensure piecemeal development does not swallow the golden egg. "I really think the area could use a lot more residential with commercial. We need to get more people in old town and capitalize on the lifestyle," Nojoomi said. "We could increase the use of the train on a daily basis with a resident population." Suisun's civic center as seen from the marina. Spering suggests replacing some of the warehouses and industrial buildings near the train station with a town square or plaza. The city needs to do something to take better advantage of the station and to generate more traffic for downtown businesses, he said. Like others, he is frustrated by the blocks of vacant and underused properties lining Main Street within a couple blocks of the train station. "If there is one failure in that whole project, it's that we didn't engage the private sector. That whole west side of Main Street is just as blighted as it used to be," Spering said. "The private sector's absence is just glaring." Mayor Sanchez agrees. The Main Street property owners "have not responded for 20 years. They are property owners who have long been out of touch with the city," he said. However, he noted, the redevelopment agency does have eminent domain authority, and "as soon as the economy picks up, I wouldn't hesitate to use that authority. … It's just a matter of rounding up the right parcels and working on a good plan." A 102-room motel (right) rises next to a new office building on the Suisun City waterfront. Meantime, the city celebrates its successes in a down economy. The 102-room Hampton Inn & Suites – the city's first new motel in 50 years – is scheduled to open in September. The 40,000-square-foot Harbor Square development centered on a large courtyard is closing in on opening day and will feature a live music lounge, a bar and grill, an art gallery and offices. Contacts: Suisun City Mayor Pete Sanchez, (707) 421-7356. Solano County Supervisor Jim Spering, (707) 784-6136. Jason Garben, Suisun City Office of Economic Development, (707) 421-7309. Camran Nojoomi, Ashria LLC, (707) 425-9858. Suisun City general plan and downtown specific plan: www.suisun.com/CommunityDev/Documents/CommDev_Docs.html

San Diego County has been a national leader in habitat conservation planning, setting aside areas where rare and endangered species can thrive in the midst of ongoing development. Now, 12 years after a plan for the southern, inland part of the county was adopted, a second habitat plan has been released, this time for the inland North County. The North County Multiple Species Conservation Plan (MSCP) covers an area that is east of the cities of Oceanside, Encinitas, San Marcos, Vista, and Escondido and which runs north to the Riverside County line. The MSCP's boundaries encompass 295,000 acres, of which 100,000 acres are proposed to be off limits to development. The North County MSCP is intended to protect 63 rare or endangered species, including the California gnatcatcher, Stephens' kangaroo rat, San Diego fairy shrimp, Quino checkerspot butterfly and coast barrel cactus. The area contains chaparral, coastal sage and some forests. The 12-year-old South County MSCP has been considered a success for providing habitat. It was supposed to preserve 98,000 acres over a 50-year period, and already 78,000 acres have been set aside thanks to local, state and federal funding, as well as developers' contributions. But a different landscape in the North County means there is no guarantee of similar success. For starters, much of the undeveloped land in the North County is farmland used for growing avocados, flowers and blueberries. Costs of acquiring easements and fee title are expected to be higher than in the undeveloped South County lands, said Jim Whalen, co-chair of the Alliance for Habitat Conservation, a developer-funded group. Whalen also serves on a stakeholders' advisory group that has worked on the North County plan for seven years. A key part of the new MSCP is inclusion of several creeks and rivers, which provide wildlife corridors. Most of those waterways are owned by farmers who grow crops on fertile land next to the waterway, Whalen explained. Besides farmland, two large chunks of undeveloped land are within the MSCP's boundaries: Camp Pendleton Marine Corps base and Rancho Guejito, 22,000 acres of ranch land east of Escondido (see CP&DR Local Watch , April 2007 ). Like the South County plan, the North County MSCP is intended to ease the development process by eliminating case-by-case species evaluations, according to Tom Oberbauer, who oversees MSCPs for the county's Planning and Land Use Department. "We are also attempting to avoid the pitfalls of a few issues in the South County plan," Oberbauer said. "Specifically, the South County plan had what are referred to as Biological Resource Core Areas, a concept in which property is examined to determine if it meets high value habitat qualities and should be treated as such regardless of whether or not is it located within a pre-approved mitigation area. This has confused the mitigation concept. In the North County plan, we are avoiding the use of the Biological Resource Core Area and instead are focusing on the pre-approved mitigation areas." The North County MSCP does not appear to have caused much alarm. Escondido Community Development Director Jonathan Brindle, for example, said his city has no conflicts with the plan, which touches the city limits. In 2007, Rancho Guejito's owners asked the city to consider annexation of the property, but Brindle indicated nothing ever happened and the city received no plans to develop the ranch. While the new MSCP is debated for unincorporated county land, a proposed habitat protection plan impacting the adjacent cities of northern San Diego County has slowly been taking shape. The seven cities' Multiple Habitat Conservation Program, which is to conserve 19,000 acres for 80 species, was adopted by SANDAG in 2003, but so far has been approved by only one of the cities involved – Carlsbad – according to Dan Silver, executive director of the Endangered Habitats League, an environmental group. Brindle said the major hurdle to approval of the SANDAG plan is finding a way to finance needed studies that will examine ongoing issues such as the condition of the covered species and of the vegetation. The costs of San Diego County's MSCPs are unclear. Oberbauer said acquisition of the mitigation lands is funded by developers, along with money from state and federal sources. The county kicks in several million dollars a year as well. Additional money comes from a half-cent sales tax (called TransNet) approved by county voters in 2004 for transportation projects and associated mitigation. Government leaders have discussed putting an additional sales tax increase on the county ballot. The "Quality of Life" measure would raise more money for environmental projects, including North County MSCP land acquisition. But in light of the recession, local officials say the measure may not get to voters. "The public has to want this," said Whalen, noting that TransNet barely passed in 2004 despite the building industry's heavy financial backing. Today, he said, builders do not have the money to finance a campaign. Environmental groups such as the Endangered Habitats League support the proposed North County MSCP. "San Diego County has been a leader in habitat planning statewide," said Silver, whose group sits on an advisory board for the North County MSCP. "This is the first plan that I know of that is including agricultural land as part of the habitat preserve for connectivity or buffers." But Silver said his group still wants specific language in the MSCP to protect core areas, such as Rancho Guejito. He said a main concern is preserve fragmentation if areas like Rancho Guejito are developed. One question remains unanswered as the county moves forward on the MSCP for the North County: Do MSCPs save rare and endangered species? "We don't know yet," Silver said. "Management and monitoring is less a priority early on than acquisition is. We aren't going to know if these plans will work for 100 years." A first draft of the North County MSCP was released in February. Another draft and the environmental impact report/environmental impact statement for the program is scheduled to be released in October. The package could be brought to the county's Board of Supervisors for approval in late 2010. A third county MSCP – for the more rural East County region – should be completed in 2011, Oberbauer said. Major fires that impacted San Diego County twice since 2003 have slowed completion of the MSCPs, as the county's planning department focused resources on helping people rebuild, he explained. Contacts: Dan Silver, Endangered Habitats League, (213) 804-2750. Tom Oberbauer, San Diego County Planning and Land Use Department, (858) 694-3701. Jim Whalen, Alliance for Habitat Conservation, (619) 683-5544. John Brindle, City of Escondido, (760) 839-4671. Multiple Species Conservation Program: http://www.sdcounty.ca.gov/dplu/mscp/index.html .

The state attorney general's office has joined a lawsuit filed by affordable housing advocates over the City of Pleasanton's growth management ordinance. First approved by voters in 1986 and modified in 1998, Pleasanton's growth management program caps annual housing development at 750 units and imposes an ultimate cap of 29,000 units. In 2006, Oakland-based Urban Habitat sued Pleasanton, contending that the growth management ordinance violated a variety of state laws, including the housing element statute that requires cities and counties to plan for their fair share of regional housing needs. Last year, an appellate court cleared the way for the lawsuit to move forward (see CP&DR Legal Digest , September 2008 ). Attorney General Jerry Brown said he joined the suit because Pleasanton's proposed general plan update would create a huge imbalance between the availability of employment and housing. Specifically, the plan would increase the number of jobs the city hosts by 45,000 – to about 100,000 – while maintaining its 29,000-unit housing cap, which would force workers to commute into Pleasanton. Brown contends that the city, if it adopts the revised plan, would violate the housing element law. "It's time for Pleasanton to balance its housing and its jobs and take full advantage of its underutilized land and proximity to BART," Brown said. Earlier this year, Brown's office expressed its concerns that Pleasanton's updated plan would increase long-distance commuting and, therefore, greenhouse gas emissions. The case is Urban Habitat Program v. City of Pleasanton , Alameda County Superior Court Case No. RG 06 293831. The state may not use its gasoline sales tax revenue , designated by voters for public transit purposes, to balance its general fund budget, the Third District Court of Appeal has ruled. Over the past two years, the state has eliminated virtually all support for local transit operations by diverting about $1 billion from a public transportation "spillover account" funded by the sales tax on gasoline to the general fund. The state contended it was using the money to retire transit-related debt and to provide transportation for developmentally disabled people and students in small school districts. But the court said those uses of the money violated Proposition 42, which passed in 2002, and Proposition 1A, which voters approved in 2006. While the court did not require the state to refund the diverted monies, it prevented future transfers. The case is Shaw v. The People ex rel. John Chiang , No. C058479, 2009 DJDAR 9815, and was filed on June 30, 2009. The Inglewood City Council in early July approved a specific plan and environmental impact report for redevelopment of Hollywood Park horse track. The plan calls for development of about 3,000 housing units, a lakefront park and a retail and entertainment district on the 238-acre site (see CP&DR Local Watch , June 2009 ). The city is likely to consider project entitlements for developer Wilson Meany Sullivan over the next 18 months. In the meantime, horse racing will continue. Scientists at the U.S. Geological Survey (USGS) have developed a new tool they say will help water managers and public agencies better gauge and preserve Central Valley groundwater. The Central Valley Hydrologic Model is the product of scientists examining 8,500 drillers' logs dating to the early 20th century and reviewing 41 years of ground and surface water data. Among the findings: • Overall groundwater levels are decreasing in the southern San Joaquin Valley. Although the potential for large-scale, artificial groundwater recharge is good, land subsidence of up to 29 feet has been documented, reducing groundwater storage space. • Groundwater levels in the northern San Joaquin Valley and the Sacramento Valley are stable. • The third consecutive year of below-average precipitation is increasing pressure on groundwater supplies, as landowners drill more and deeper wells. "The Central Valley Hydrologic Model could be used to evaluate regional issues such as the exportation of water from the Sacramento Valley to Southern California, or the upcoming restoration of salmon habitat in the San Joaquin River," said Claudia Faunt, a USGS hydrologist who helped develop the model. A full report and the model is available at the USGS website .

A state appellate court has issued a ruling in an eminent domain case that could have expensive ramifications for government agencies. The court ruled that a business owner isn't required to have a written lease in order to seek compensation for lost goodwill resulting from a government taking of property. The decision reverses a 1999 ruling that held a business shall not receive compensation for lost goodwill unless the business has an "enforceable property interest." The decision means that the owners of a recycling business located on property taken by the Los Angeles Unified School District as a site for a new school may seek compensation for lost goodwill, even though the owners occupied the property under a month-to-month tenancy with no written lease. There is no constitutional right to compensation for loss of goodwill – essentially, economic losses caused by forced relocation – resulting from a government taking. However, Code of Civil Procedure § 1263.510 authorizes such compensation if certain conditions are met. Ten years ago, the Fourth District Court of Appeal established a bright line for goodwill claims. In San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc. , (1999) 73 Cal.App.4th 517, 533, the court ruled that, "Where the business owner has no enforceable property interest, a claim for compensation for goodwill cannot stand." In other words, month-to-month tenants could not qualify for goodwill compensation because they are always subject to losing their location (see CP&DR Legal Digest , September 1999 ). Los Angeles County Superior Court Judge Joanne O'Donnell relied on the Handlery decision in rejecting a claim from the owners Mid Town Recycling, Elisa and Juan Pulgarin. The couple's business operated on a site owned by A&D Investment Corporation that the school district acquired via eminent domain. The Pulgarins sought compensation for loss of business goodwill, but O'Donnell ruled that they did not qualify under the Handlery rule. On appeal, a unanimous three-judge panel of the Second District Court of Appeal, Division Four, said that while it agreed with the outcome in Handlery because of the specific facts in that case, the Second District disagreed with the Handlery court's interpretation of § 1263.510. "The statute contains no requirement that the real property interest be taken from the business owner in order for the business owner to be entitled to compensation, just that the taking cause a loss to the owner of a business conducted on the property which was taken," Presiding Justice Norman Epstein wrote for the court. "What is required is that the business owner prove that the loss is caused by the taking of the property. A business which is required to move because of the taking of the property on which it operates has suffered a loss from the taking," Epstein wrote. "This is true whether the tenancy is for a fixed term, or is a periodic tenancy as in this case." The value of goodwill, the court continued, depends in part of the duration of the tenancy and "the quality and mutual satisfaction in the landlord and tenant relationship." The ruling set legal analysts abuzz. Rick Rayl, an eminent domain and valuation specialist at Nossaman, wrote in a widely circulated "E-Alert" that while the Handlery rule was "somewhat arbitrary," it was also simple and predictable. "Whether one applauds or decries the Pulgarin opinion," Rayl concluded, "one thing is clear: This battle goes to the business owners and against the government." In another publicly distributed analysis, attorneys at Kronick, Moskovitz, Tiedemann & Girard wrote that the ruling "highlights the potential costs a public entity may incur in a condemnation action and the potential damages available to a business owner." Compensation for lost goodwill "could significantly increase the acquisition costs." The Case: Los Angeles Unified School District v. Pulgarin , No. B206892, 2009 DJDAR 9179. Filed June 23, 2009. The Lawyers: For the school district: Cynthia C. Miller, Oliver, Sandifer & Murphy, (213) 621-2000. For Pulgarin: Karen A. Larson, Century Law Group, (310) 642-6900.

How did mass transportation in urban areas wind up getting shafted by the federal stimulus bill? According to an analysis published in Thursday's New York Times , urban transit systems are set to receive far less of the $26.6 billion than are rural areas. This is hard to justify, given that population, jobs and education are concentrated in urban areas. (You can do your Homer Simpson imitation at this point.) Mecklenburg County is the most populous area of North Carolina � it is home to Charlotte � but will receive only $7.8 million of $423 million in stimulus transportation money allocated for projects in the state thus far, according to the Times story. Seattle found itself "shut out" of stimulus money for roads, bridges and highways when the State of Washington cut up the stimulus pie. California cities seem to fare better than cities in some other states. The federal government has allocated $3 billion in transportation money to the state, of which about $1.53 billion has been committed to 512 projects, all of which involve pavement. According to my personal tally, less than a third of those projects are unambiguously urban (without getting into a tendentious argument about what is urban and what is not along the California coast; our megapolitan sprawl has blurred those distinctions.) In actual spending, however, at least two-thirds of the money goes to cities; a handful of costly projects, such as adding a lane to the 405 freeway and drilling a fourth Caldecott tunnel on Highway 24, skews the numbers. How is it possible that cities are getting screwed? In a word, local politics. The Times piece quotes Robert Puente, a senior fellow at the Brookings Institution, who cites a "peanut-butter approach" among many states, which prefer to spread dollars thinly and evenly among counties despite disparities in population. According to Puente, the peanut-butter approach is typical of the way many states divvy up federal dollars among their constituent counties. (I'll pause while you smack your head again.) I was already having difficulty digesting the high level of investment the stimulus has given to high-speed rail projects over creating or expanding commuter rail in major urban areas. I support high-speed rail, to which America is a latecomer. Mass transit, however, is the central issue in urban economies, after jobs and housing. Scanting transportation money for cities is discouraging news for both urban growth and urban design. In Southern California, the expansion of commuter rail is a do-or-die issue, especially for gridlocked cities in Los Angeles, Orange and San Diego counties. Southern California is becoming an unattractive job environment because of high housing costs and long commute times . I believe that a working mass transit system that is attractive to middle-class commuters could stabilize deteriorating neighborhoods and old suburbs, which have lost value, in part, because of their distance from employment centers. The expansion of commuter rail is arguably the single most powerful force in the shaping California cities since the federal highway programs of the 1950s and '60s. Most major cities in the state now offer density bonuses, waivers of certain zoning requirements and economic assistance to transit-oriented development. This means that the path of commuter rail will determine the location of new development, much as the freeway system and its off ramps determined the location of development during the past 50 years. Let's shift the discussion slightly to the issues of urban growth and economic revitalization of aging urban areas. The Santa Monica architect Johannes Van Tilburg � he's a friend and we taught a university extension course together years ago � has talked about the need to bring near-uniform density to hundreds of miles of city streets in Los Angeles County. His target is the network of major thoroughfares that crisscrosses L.A. County; those streets, viewed together, could be called a "supergrid." Much of this supergrid is ugly and economically underperforming. Van Tilburg, a principal of Van Tilburg Soderbergh Bavard, calls this proposed densification "boulevard urbanism." In a recent conversation, VanTilburg said rail transit would bring economic health to aging neighborhoods by encouraging new investment. � Call me simplistic, but I believe the federal stimulus would be better spent on developing mixed-use projects near rail stations in East L.A. than fixing potholes in Podunk. But, then, I may underestimate the hunger of rural lawmakers for a taste of peanut butter. � Morris Newman �

Many times I have attended a conference or workshop on land use and public policy that included an expert the organizers brought in from another country. While the expert could be from London, The Netherlands, China, Buenos Aires or Capetown, my private reaction was always the same: What could this "outsider" possibly tell me that's relative to California?   I suppose that attitude makes me sound like your typical arrogant American. "Hey, Mr. International Expert, we've got this thing wired. You should be learning from us – not vise-versa."   But inevitably, and usually within the first few minutes of the foreign guest's presentation, I was furiously scribbling notes and asking where I could get the PowerPoint slides.   Turns out that we Californians – and we Americans – don't have all the answers. It's always good to be reminded of this.   That brings me to a new blog by Jeff Loux , who heads the Land Use and Natural Resources program at UC Davis Extension. Jeff and a group of students are spending a month in Europe "exploring how cities, neighborhoods and projects can be planned, designed, built and experienced in a more sustainable manner." (Sounds like tough duty, doesn't it?)   Jeff promised to post regular blog entries during the trip, and his first two entries, from Stockholm, went up this week. Stockholm's planning strategy, we learn, is to build the city inward by focusing compact development on large infill and brownfield sites.   In other words, Jeff and his students are not in the Sacramento Valley anymore. And I'll bet they are learning a whole bunch of valuable lessons because of it. – Paul Shigley