Lawyers for organizations may feel both shudders and relief on reading a recent appellate decision protecting attorney-client privilege for the members of a La Jolla homeowners' association. Shudders, that a local court's discovery order would have required individual homeowners to recount group strategy meetings held by their HOA's lawyers. Relief, that the Fourth District Court of Appeal has blocked the order. The dispute arises from two construction defect lawsuits against developers and builders of a 140-unit common interest development. The homeowners' association has sued over alleged damage to common areas and about 30 individual homeowners are suing separately over alleged damage inside their individual units. The discovery dispute concerned whether the HOA's lawyers waived confidentiality when they held meetings for homeowners "to apprise them of the status and goals of the litigation," and in one case to get their vote approving the action. Defendants alleged the protective circle of attorney-client privilege was broken by the presence of individual homeowners who were not the lawyers' clients. A homeowners' association is a different entity from its individual members, not all of these homeowners had chosen to join the other lawsuit alleging damage inside of homes, and in any case that suit was brought by different lawyers. The appellate court held confidentiality rights were not waived at the meetings based on a review of Cal. Evidence Code §§ 912 and 952 and prior evidentiary rulings specific to homeowners' associations, including their duties to keep members informed. It noted attorney-client privilege can protect third parties to whom disclosure is "reasonably necessary for... the accomplishment of the purpose" of the consultation. While participants in the two lawsuits might have diverging interests in obtaining legal advice, the court found "the Association's attorney was attempting to communicate in the subject meetings with other stakeholders, the individual homeowners, in a manner that would advance their shared interests in securing advice on similar legal and factual issues." The case is Seahaus La Jolla Owners Association v. Superior Court , at http://www.courts.ca.gov/opinions/documents/D064567.PDF.

Ruling for the Coastal Commission against property owners represented by the Pacific Legal Foundation, California's Second Appellate District cited the doctrine of collateral estoppel to find that an easement condition on a coastal development permit, once final, cannot be contested in a second permit application. In Bowman v. California Coastal Commission , the court wrote that property owner Walton Emmick obtained construction permits and did some work to fix up a dilapidated house on coastal property, but died before San Luis Obispo County granted his application for a coastal development permit (CDP). After his death, the county granted the CDP to his successors, the trustees of a family trust. As a condition for the permit, the county imposed what the appellate court termed a "quasi-judicial determination that the lateral easement condition was valid for the proposed development because development would lead to an increased use of the property." The trustees let the decision become final without appealing it directly. The court said the trustees later applied for a second CDP, in part to replace the property's barn, but also for much of the work already authorized under the first CDP -- and, additionally, asking the county to drop the easement condition. The county did approve the second CDP application, and did agree to remove the easement, but "the Sierra Club, the Surfrider Foundation and two coastal commissioners appealed" to the Coastal Commission, which found the easement condition from the first permit to be binding. Both the trial court and the Second District sided with the Coastal Commission. To a claim by the trustees that they could "walk away" from the initial CDP and seek a new one, the court retorted that they "cannot walk away from collateral estoppel." It held that basic principles on the finality of judgments prevented reopening a settled determination with a new permit application. The court found appellants showed "nothing that would compel the Commission to modify the access easement condition." Contrary to appellants' claim, it said the Coastal Commission did not try to expand the easement beyond what the original CDP required. The court found the appellants' contention that they never accepted the easement condition did not prevent it from taking effect. It found that since the construction work was completed under the initial CDP, appellants accepted the benefits of the permit, hence were bound by its condition. The court said this was so even though the work had been completed under the decedent's local construction permits while his application for the first CDP was still pending. The court said the work done then was only legalized by later issuance of the CDP that carried the condition. In a seeming inconsistency, the opinion's initial procedural history says Emmick obeyed an order to stop construction but the concluding paragraphs say he "completed the improvements". In a December 2013 blog entry, an attorney for the trustees, Paul Beard II of the Pacific Legal Foundation, gave a somewhat different account. He wrote that the work Emmick did on the property was under local construction permits for repair work that is "categorically exempt" from CDP requirements, and that Emmick completed it while his CDP application for larger-scale work was still pending. Beard wrote that "no further work on the property has been done since the repairs were completed." He contended that "the family did not sign or in any way exercise" the first CDP. His account of the second CDP application says the Planning Department first "eliminated one-half of the public-access easement" and then, per the family's appeal, the Supervisors agreed to drop the easement entirely -- after which the environmentalists' appeal to the Coastal Commission followed. See http://bit.ly/1gl5D6k. A recent posting by the organization (via http://bit.ly/1kYZYlJ) says the decision is 'based on an utterly confused understanding of the facts, as alleged by the Commission.' The case is at http://www.courts.ca.gov/opinions/archive/B243015.PDF .

In a case that could reset the parameters of reality, the developer of a mixed-use development under construction in Hollywood has asked the state geological service to change the earthquake map of Los Angeles. In January the state Mining and Geology Board issued updated California Geological Survey maps with a surprise for Tinseltown developers. They showed an earthquake fault underlying the massive Blvd6200 project, which is currently under construction on Hollywood Boulevard. In a hearing of the same Mining and Geology Board last week, lawyer John M. Bowman, representing developer Clarett West, told officials the fault line "is not clearly detectable… and therefore is not sufficiently well-defined to be included on the map." Much rides on the determination of the actual fault line on the Geological Survey. In addition to the $200 million Blvd6200, which is a multi-building development, the same fault could conceivably imperil the multi-tower Millennium Hollywood project, planned for parking lots surrounding the famed Capitol Records building. A third project, a 535-unit apartment complex planned on nearby Argyle Avenue, could also be affected. To avoid damage from the fault as newly mapped, it has become crucially important to change the map. As is well known, the physical behavior of the earth and surrounding celestial bodies depends largely on the maps that people draw of them. This phenomenon, known as map-to-reality conversion, first became evident in the early 16th Century, when Copernicus drew a map of the solar system with the sun at the center, rather than the earth. This map caused the earth, which had been the center of the universe up until that time, to suddenly begin orbiting the sun. The upshot for the publishing industry was dramatic: Remainder houses were suddenly full of books like the Summa Theologica by St. Thomas Aquinas and the Divine Comedy by Dante Alighieri, both of which had been written under the previous cosmology and were now obsolete. This map-to-reality conversion is a special feature of a philosophy I invented as an undergraduate that I call "concrete idealism." In essence, it holds that the earth is real, but can take any form that I find convenient at the moment. Although the paper was poorly received at an academic conference, I do recall that a distinguished professor of philosophy, well known for his chronic depression, suddenly perked up and made loud whooping noises with his throat while slapping his thighs in an excited way. I don't recall his exact comments afterward, although he did mention that my work was "the best medicine." I do hope my theory can play a helpful role in rescuing an important real estate development, and, in so doing, finally convince my brother-in-law that I did not waste my time in college. As for the case at hand, geologists testifying on behalf of the developer have suggested the actual fault lies elsewhere in Hollywood, rather than directly beneath the soon-to-be-completed building. In defense of the developer and his geologists, I'd like to point out that nobody really knows exactly where the earthquake fault is located. That means the location of the fault is conjectural in the absence of established fact. Insofar as the location of the fault is a conjecture, that means reasonable minds can disagree on the subject. Thus it may be not unreasonable to locate the fault elsewhere than underneath this valuable real estate. Quod erat demonstrandum . Of course, there are legal matters of great moment here. If (heaven forbid) the project were to be built on a currently mapped fault and a seismic cataclysm were to ensue, the owners might be sued by any persons emerging from the rubble thereof based on said owners' alleged awareness that the project had been built on a fault. (Assuming, of course, that the project would not simply have vanished into the bowels of the earth, much like a little plastic hotel from a Monopoly game that has slipped through a storm drain, never to be seen again.) If the map were to be amended, however, the developers could distance themselves from the fault. "The official map showed the fault to be elsewhere," they could say in retrospect, with a shrug. "Who knew?"

HUD's in-house auditor has joined the chorus asking what now becomes of assets funded through California redevelopment agencies.  In a report naming specific assets in three cities, HUD's Office of Inspector General (OIG) voiced concern that successor agencies might lose track of which assets had partly federal antecedents, and hence might cut the federal strings attached to their use. It mentions "concerns that affordability covenants related to CPD-funded assets may be ignored during the transfer of control" and a possibility that federally funded assets could be folded into state government sales of assets it regards as its own. Many cities loaned HUD funds to their redevelopment agencies, which then used them to create or purchase real estate assets. HUD has been concerned as to what will happen to those assets now. The February 28 report said HUD's own Office of Community Planning and Development (CPD) needs to extract more documentation from local California grantees, and keep a formal list of CPD-funded assets, to safeguard some $99 million in CPD-administered funds that redevelopment agencies have distributed, including Community Development Block Grants, brownfields redevelopment assistance, Sec. 108 loan guarantees, and grants supporting Sec. 108 projects under the Economic Development Initiative. The report focused on a spot check of 20 large San Francisco, San Jose and Los Angeles assets. Among these, it said 15 of the grantee entities could not prove they had the required "binding and enforceable rights" to assets funded by the CPD programs. Assets mentioned included parts of San Francisco's Yerba Buena Center redevelopment project such as the Metreon shopping and entertainment complex; San Jose's 84 South First Street office building rehab; and, in Los Angeles, elements of the Marlton Square, Noho Commons, Slauson Central Shopping Center and Goodyear Tract projects. In a rebuttal that formed part of the report text, HUD Deputy Assistant Secretary Yolanda Chavez wrote that OIG's recommendations misunderstood HUD regulations, attributing too much oversight responsibility to HUD CPD and too little effectiveness to CPD's existing risk-based monitoring. Her response recounts HUD's efforts to track transfers of assets in a state-mandated unwinding process not of the agency's choosing. And it protests that some concerns about specific Los Angeles projects, including the Goodyear Tract, were already being addressed after previous audits. The report is at  http://www.hudoig.gov/reports-publications/audit-reports/cpd-did-not-monitor-grantees-cpd-funded-assets-transferred-former  .

March 13 was a bad day for big water in California. A state appellate court blocked preliminary studies for the Delta water tunnel on takings grounds, and the federal Ninth Circuit threw its weight against California's existing southbound hydraulics on behalf of the tiny Delta smelt. Studies for Delta tunnel project found to be takings in themselves. In the state case of Property Reserve, Inc. v. Superior Court (Dept of Water Resources) , California's Third District Court of Appeal ruled that the relatively simple precondemnation entry order process under Cal. Code of Civil Procedure 1245.010 et seq. was not sufficient to give the Department of Water Resources access to private properties to conduct environmental and geological studies in preparation for the Delta water tunnel project. Two members of the three-judge panel, George Nicholson and Andrea Lynn Hoch, ruled in their 44-page majority opinion that intrusions for the geological studies, which would include such activity as drilling test borings, and even for the less disruptive environmental studies, would themselves constitute takings. Accordingly, they wrote, the state would need to bring full-scale condemnation actions to get the access it sought. Their opinion was followed by an incredulous, equally lengthy dissent from Justice Cole Blease arguing the orders should have been sufficient. The case is at http://www.courts.ca.gov/opinions/documents/C067758.PDF. Daniel Kelly of Somach Simmons & Dunn, who was among the attorneys for property owners in one of the two consolidated cases, has a commentary at http://www.somachlaw.com/alerts.php?id=272. The Department of Water Resources issued a statement that it did not expect the decision to delay its tunnel project, known as the Bay Delta Conservation Plan, because it had already invoked the eminent domain process to seek geotechnical drilling rights. http://www.water.ca.gov/news/newsreleases/2014/031414.pdf 2008 opinion on Delta smelt upheld In a mighty opinion whose mere caption extends for 14 pages, the Ninth Circuit Court of Appeals upheld a 2008 Fish and Wildlife biological opinion restricting water pumping by the State Water Project and Central Valley Project to protect the endangered Delta smelt. The majority opinion, by Judge Jay Bybee, was joined in most part by Judge Johnnie Rawlinson and to a lesser extent by Judge Morris Arnold. Bybee, formerly of the Bush Administration's Justice Department, concluded the biological opinion was reached by reasonable enough methods that the court could not second-guess it regardless of its potentially massive consequences. Key issues were the extent to which salinity had crept up the delta and what flow levels would protect enough small fish from entrainment in the pumping plants. The case is San Luis & Delta-Mendota Water Authority v. Jewell , at http://cdn.ca9.uscourts.gov/datastore/opinions/2014/03/13/11-15871%20web%20revised.pdf. San Francisco Chronicle legal writer Bob Egelko has details at http://www.sfgate.com/science/article/Appeals-court-reinstates-plan-to-protect-delta-5315300.php. Water writer Bettina Boxall has the story for the LA Times at http://www.latimes.com/science/la-me-delta-smelt-20140314,0,2433870.story LA City Council sets out to regulate fracking The Los Angeles City Council on Feb. 28 ordered the city planning department to develop regulatory controls, and the City Attorney to draft text for a zoning ordinance, that would ban "well stimulation", including "hydraulic fracturing, gravel packing and acidizing". The LA Times report at http://www.latimes.com/science/la-me-0301-fracking-ban-20140301,0,6285538.story cited the Department of Conservation for a statement that LA has "1880 active and 2932 abandoned oil and gas wells" in the city. It said an analysis of air quality reports had found "fewer than a tenth of the Los Angeles County wells that have used acidizing, gravel packing or hydraulic fracturing are in Los Angeles' city limits." It didn't say what proportion of the 1880 active wells in the city limits are using such methods. The ongoing Council file on the measure is at http://cityclerk.lacity.org/lacityclerkconnect/index.cfm?fa=ccfi.viewrecord&cfnumber=13-1152-S1. Legislative Analyst Calls for Tighter Groundwater Regulation The Legislative Analyst's Office submitted an acerbic ten-page handout on groundwater management to Assembly committees in mid-March. It said current law fails to "acknowledge the physical connection between groundwater and surface waters," contamination problems need addressing, and oversight structures for groundwater are fragmented. It accordingly recommended groundwater be more thoroughly tracked and regulated, including through a permit system for use. It invited the Legislature to approve the Governor's proposal to transfer drinking water regulation from the Department of Public Health to the State Water Resources Board. It also asked that the Department of Water Resources be required to report on whether local applicants for Integrated Regional Water Management grants have met a precondition for such grants that requires them to conduct groundwater monitoring. For the handout see http://www.lao.ca.gov/handouts/resources/2014/Groundwater-Resources-03-11-14.pdf. The proposed transfer of drinking water regulation is discussed in detail at http://www.waterboards.ca.gov/drinkingwater/. Valley Public Radio enlarges on the LAO material with gloomy further thoughts at http://kvpr.org/post/new-report-california-groundwater-crisis-looming. LAO Wonders About Delta Tunnel Budget Risks A February LAO report on paying for the Delta water tunnel project, known as the Bay Delta Conservation Plan (BDCP), said $176 million was spent on planning activities for the project from 2006-7 until June 2013. It found the BDCP's cost estimates essentially fair, but questioned the assumptions about land costs and construction cost overruns. It suggested more flexible thinking about procurement might be in order. Further, it questioned more basically whether the twin tunnels carrying northern water under the Delta will bring water users greater benefits than the costs of their construction. The BDCP's total cost estimate for the project is $24.8 billion. The report asked if the state would be adequately protected from financial risk under the terms of new water supply contracts. It found another area of financial uncertainty in BDCP's reliance on future bond measures to pay for ecosystem restoration and the "potential for additional public liability if species do not recover." It suggested that the Legislature "designate other entities as a backstop" for environmental costs -- possibly the State Water Project or California Water Project -- and "adopt policies to control factors outside of the Delta that have a negative effect on species." The report is at http://www.lao.ca.gov/handouts/resources/2014/Financing-the-BDCP-02-12-14.pdf. Bill introduced to grant local power to restrict Ellis Act use Assemblymember Tom Ammiano, D-San Francisco, introduced a measure in February that would allow counties (including San Francisco) to suspend whole-building evictions under the Ellis Act until their local areas met regional goals for affordable housing supply. An additional, less-publicized provision would convert Ellis Act court proceedings from summary unlawful detainers to civil actions according more procedural protections on slower schedules. The measure would also limit public access to records of Ellis Act filings, making it difficult for background-check companies to collect such information. The measure is AB 2405, available at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB2405. The San Francisco Rent Board's most recent Annual Eviction Report, at http://www.sfrb.org/modules/showdocument.aspx?documentid=2700, says 216 units received Ellis Act eviction notices from March 2013 through February 2014. That figure is relatively small compared with the 1,977 overall eviction notices filed during the same period. However, landlords' ability to threaten a formal Ellis eviction can be a factor in moveout agreements that do not reach the courts. AB2405 appears against a background of concern about tenant displacement in San Francisco's overheated real estate market. Mayor Ed Lee was among local figures who endorsed efforts to restrain or discourage no-fault evictions last fall. http://articles.latimes.com/2013/nov/17/local/la-me-tenant-fight-20131118. Supervisor David Campos, currently competing with Board of Supervisors President David Chiu to succeed Ammiano in the Assembly, has proposed a local measure to increase relocation payments to tenants displaced by Ellis evictions. See http://www.sfexaminer.com/PoliticsBlog/archives/2014/03/14/david-campos-ellis-act-legislation-going-before-board-committee.

The Bay Area's regional planning agencies have settled a lawsuit with the Building Industry Association over Plan Bay Area – the regional sustainable communities strategy. In the settlement, the Association of Bay Area Governments and the Metropolitan Transportation Commission agreed to focus more on finding residential locations within the Bay Area to accommodate expected future growth, rather than assuming a certain amount of in-commuting from the Central Valley and Monterey County. Plan Bay Area was adopted by MTC and ABAG in July as the regional SCS required by SB 375.   The Building Industry Association Bay Area lawsuit  isn't surprising. The BIA claims that the Metropolitan Transportation Commission and the Association of Bay Area Governments didn't account for all the housing that would be needed in the Bay Area during the time horizon of the plan, which will function as the region's sustainable communities strategy under SB 375. Thus, the BIA claims, Plan Bay Area essentially calls for exporting tens of thousands of housing units, the impact of which the plan's environmental impact report did not examine.  The basis of the BIA's lawsuits was the conclusion by MTC and ABAG that it would be infeasible to plan for 770,000 additional units of housing – the amount BIA argues is necessary to meet demand during the time horizon of the plan. Instead, the plan calls for 660,000 additional units.  In the settlement, the MTC and ABAG agreed to: 1. A "Regional Housing Control Total" that assumes no increase in in-commuters over the baseline year and will not be based on historical building permit numbers. 2. "Robust" monitoring of regional development patterns , including tracking the number of permits issued inside "preferred development areas" versus outside those area. 3. A feasibility analysis prepared in consultation with stakeholders. 4. A more open process on the methodology. Plan Bay Area was also challenged in court by the free-market-oriented Pacific Legal Foundation, and a coalition of environmental groups.

Yesterday, Gov. Jerry Brown signed AB 471, a redevelopment cleanup bill that included some of Brown's ideas about using infrastructure financing districts as a future substitute for redevelopment. Specifically, AB 471 clarifies that an IFD can be created that overlaps with a former redevelopment project area, so long as the IFD debt is subordinate to the old redevelopment debt. CP&DR 's brief description of the bill as it was drafted by Speaker-elect Toni Atkins can be found here . The bill itself can be found here , and the last legislative analysis can be found here . For a more detailed discussion of Brown's IFD proposal, go here .

The tar pit–inspired scheme by Swiss architect Peter Zumthor to replace the eastern half of the Los Angeles County Museum of Art is a rare misstep by one of the world's most gifted architects. Surprisingly for a Pritzker-winning architect famed for his sensitivity to context and site, this ink blotch of a design shows little understanding of its park site, or, for that matter, the context of Wilshire Boulevard, Los Angeles as a whole, or museums as a building type. It should not be built. I find myself typing these words in a state of near disbelief. Zumthor ranks high on my short list of favorite living architects, which includes Japan's Tadao Ando and Portugal's Alvaro Siza. At their best, each of these designers has combined deep thinking, with quietness, modesty and understatement. Each has produced buildings that provide pleasure to their users while inserting themselves into the existing built environment without violence. Perhaps it's understandable that a visitor to L.A. would be impressed by the tar pits that adjoin the county art museum. Yet the tar pits have hardly gone without unnoticed: The Page Museum, which stands on a hill overlooking the tar pits, is devoted entirely to fossil findings from the pits, primarily large mammals and birds from the Pleistocene Era (40,000 to 11,000 years ago). Plus, the museum maintains several tar pits as working paleontological sites. And as every Angeleno knows, the pits even make a nod to passing motorists on Wilshire Boulevard, in the form of replica mammoths that mimic the death struggle of animals trapped in tar (although the motorized motion, alas, of the animals no longer operates). So perhaps the tar pits are adequately celebrated as they stand. More to the point, Zumthor's proposal razes much of what has constituted the museum campus since its start in 1965. Replacing this set of admittedly imperfect buildings is a single, two-story sea serpent that twists and turns and bifurcates, as if the footprint of the museum itself was a splotchy tar pit. This twisting-and-turning does not accomplish much in terms of providing variety in exhibition space, however:  Much of the building appears to consist of a long hallways, which supposedly could be programmed either as "walk through" galleries or divided into smaller gallery rooms. Unless I'm mistaken, I see little opportunity for large installations, for example, of the kind that have made the Tate Modern in London a popular destination. And as a low-lying building with a considerable setback, I'm not sure the Zumthor building would make much of an impression on either pedestrians or motorists on Wilshire Boulevard, on one of the most visible intersections in L.A. As urbanism, the Zumthor blob is big zero. Meanwhile, the great black blob appears to encroach, or nearly so, on the Japanese Pavilion, a free-standing structure which represents a rare public building by the late Bruce Goff (completed by Bart Prince.) In homage to traditional Japanese buildings, this eccentric building by a follower of Frank Lloyd Wright was conceived as a building within a garden. Goff's building needs air and greenery on all sides, but the blob hems in on the western edge of the pavilion, surrounding the smaller building with pincer-like wings to the north and south, as if to swallow the Goff building. The LACMA campus has undergone nearly as many facelifts as Joan Rivers, yet remains quirky and disunited. The Anderson Building, part of the original William Pereira design from the 1960s, is a poorly lit set of galleries that seems to scare visitors away from the museum's world-class ethnological holdings. A streetfront fountain that made a connection to Wilshire Boulevard was abandoned early on, and replaced by an outdoor sculpture garden, which weakened the visual connection of the museum to the important boulevard. An enlargement from the 1980s by Hardy Holzmann Pfeiffer added several buildings, which are serviceable, if undistinguished. The best parts of that scheme was the courtyard framed by new and old buildings on the campus. The large rectangular space is usually crowded with people – and crowds are the gold standard in campus design. Free jazz concerts on Friday nights are filled to overflowing. In a major city with a dearth of successful public spaces, the LACMA courtyard is an important asset. A further enlargement, this time by the world's most  prolific museum designer Renzo Piano, chose not to alter existing buildings, but rather to change the way that visitors enter the museum from a new parking lot, while adding several new buildings. One of the best parts of the Piano enlargement is a prominent artwork by Chris Burden, consisting of a forest of historical streetlamps happily located close to the boulevard. The sight of constant visitors mingling amid the nostalgic lamp posts at last anchors the museum successfully engages the boulevard for the first time in nearly 50 years. The Zumthor scheme, in contrast, lacks any courtyards or social space. That failing alone should be enough to disqualify the project. True, floor-to-ceiling glass windows on the perimeter of the museum could arguably make the exterior friendly for people on foot. But there is no formal gathering place, no high point, no sense of arrival like that provided by the existing courtyard. The lack of a vital public space seems an extraordinary flub by Zumthor, whose 2011 design for a pavilion in London's Hyde Park—a simple rectangular enclosure., with an open-air garden and surrounded by seating and sheltered by overhangs--was a model way to create a small social space within a larger public area. The best approach to LACMA may be "Burkean" -- that is, to tinker with the historical edifice rather than scraping it. Remember that LACMA sponsored an international design competition about 10 years ago, with big-name architects proposing various approaches to expansion. The winner at that time was a radical scheme by the iconoclastic Rem Koolhass, who proposed demolishing the campus and replacing it with a single giant box. The idea behind the scheme was intriguing: the Dutch architect had proposed arranging the museum's enormous (and largely unseen) ethnological collections in parallel rows, all coordinated along a giant timeline. Private museum patrons were hostile to the scheme, which was quietly shelved, while the museum went to the reliable Piano for an affordable addition that would meet the approval of big donors. The Zumthor proposal repeats several of the drawbacks of the Kollhaas proposal – a banal exterior, the destruction of the existing buildings, a lack of genuine social spaces and consolidation of the collection into a single building of monstrous size.  I don't know how Zumthor came up with such an inept design. I'm not sure why museum director James Govan should be so enthusiastic about the destructive scheme. All I'm sure of is that the Zumthor scheme should remain a blotch on the drawing board, -rather than a black hole on Wilshire Boulevard.

The California Second District Court of Appeal has sided with the Coastal Commission against organic farmers accused of damaging habitat on a ridge above Topanga Canyon. In a January 24 ruling, the Second District refused to block cease and desist and restoration orders issued by the Commission to property owners Stefan, Kathryn and Rahel Hagopian. The court's decision rested mainly on its finding that, despite a rule drafting process begun in 1982, the Coastal Commission has never approved a Local Coastal Plan for the Santa Monica Mountains area of Los Angeles County, nor had it provided interim permitting authority to the county.  Further, it held the Commission had no duty to delegate interim powers to the county under Public Resources Code Sec. 30600.5 where the county did not meet the statutory prerequisites. The court rejected the Hagopians' claim that Los Angeles County gave itself authority to approve permits for that area in a 1989 ordinance. Further, the court refused to order the County and Commission to agree on an LCP. It found the Commission did not have a duty to ensure the county adopted an approved local coastal program; the county "cannot be compelled" to adopt an LCP that the Commission will approve; and the county had no duty to seek interim permitting authority under Sec. 30600.5. At issue are three stunningly situated mountaintop parcels, owned by Stefan and Kathryn Hagopian and, in part, Rahel Hagopian. Stefan and Kathryn, an osteopath and doctor, are described in a 2010 Los Angeles Times article as operators of Skyline Organic Farms, an organic and biodynamic farm founded in 1991.  Whether or not the Hagopians farmed conscientiously, the Coastal Commission alleged that they cleared and developed land without coastal development permits in an environmentally sensitive area of live oak woodland and chaparral. It says in 2007 they sought a permit exemption to build a guest house and in response were invited to apply for a coastal development permit. They then created vineyards, several county-permitted structures, a pool, tennis court and solar array while continuing to argue they did not need Commission approval -- or not beyond permissions granted by a prior owner's 1987 homebuilding permit on one parcel. The Second District opinion quotes Commission members during a 2010 public hearing as accusing the Hagopians of "ongoing "massive commercial development" ... without Commission approval, resulting in "wholesale destruction" and "mountain top removal" reminiscent of "West Virginia coal mining." " The trial and appellate courts rejected the Hagopians' allegations of due process violations. They also rejected claims that the work on the property fell within an agricultural exemption, saying such claims were not raised at the 2010 Commission hearing. The 2010 Commission staff report is here .  But the extra layer of regulation that so frustrated the Hagopians may not continue much longer. Los Angeles County is moving toward qualifying to assume coastal permitting authority by at last securing Commission approval for a complete Santa Monica Mountains LCP. The Board of Supervisors will consider a draft LCP was scheduled to hear a draft LCP today. Dennis Slavin, chief deputy director with the L.A. County Department of Regional Planning, said staff had been working steadily for the last "two-plus years" to complete the current proposal, whose land use component was approved by the supervisors in 2007. He said the county had been working intensively with biologists to make protection choices for the most environmentally sensitive errors and with the Coastal Commission staff in Ventura to create a package the Commission could accept. Slavin said there was "no direct relationship" between the Hagopians' case and the LCP process. As for the court decision, he said, "That's pretty much how the county felt all along." The case is Stefan Hagopian, et al., v. State of California , Case No. B240688, available at http://www.courts.ca.gov/opinions/documents/B240688.PDF .

A square mile of Central Valley farmland moved closer to development with the defeat, on procedural grounds, of a CEQA and reorganization challenge to the annexation of 960 acres by the City of Ceres under its West Landing Specific Plan. California's Fifth Appellate District rejected an attempt by an unincorporated citizens' group, Protect Agricultural Land (PAL), to get arguments before the court that the annexation and related changes to Ceres' sphere of influence infringed CEQA and the Cortese-Knox-Hertzberg Local Government Reorganization Act. The initial defendant was the Stanislaus County Local Agency Formation Commission (Stanislaus LAFCO) as responsible agency for the annexation. Ceres was named as real party in interest. Both entities were respondents on appeal. The appeals panel did not address PAL's substantive objections to the annexation. Instead it upheld the Stanislaus County trial court finding that PAL's petition was formally incorrect under both CEQA and the Reorganization Act because it was filed and served as a petition for writ of mandate. Instead, the court found it should have been brought as a reverse validation action under § 56103 of the Cal. Government Code and, as such, should have met different captioning and notice requirements under Cal. Code of Civil Procedure §§ 860-863, including newspaper publication of a public notice. The trial court did not allow PAL to complete the missed requirements and did not find good cause for the group's failure to comply. Agreeing, the appellate decision threw out the case entirely.  While the decision turned on the reverse validation action requirements, it noted in passing that PAL failed to meet its 30-day deadline under CEQA to challenge the City of Ceres' certification of the EIR and the statement of overriding considerations that enabled it. The ruling moves the annexed area closer to major residential and business development. As of the 2011 EIR, properties in the 960-acre area included about 660 acres of farmland  of which about 187 acres were under Williamson Act conservation contracts; a small residential subdivision; a governmental complex with jail, social service offices and animal shelter; and the large plant buildings of G3 Enterprises, a bottling and winery services business created by members of the Gallo family.  The Council resolution said the West Landing Specific Plan Project called for development of "up to 3,635 residential units... up to 884,200 square feet of retail commercial; up to 383,910 square feet of office space; 802,100 square feet of light industrial and/or Research and development uses; 16 acres of schools; and 47 acres of parks," while the county and G3 facilities would  continue to expand.  Staff reports and the Ceres City Council approval resolution are here . You can find a map here .  http://goo.gl/maps/RG596. The land was previously unincorporated. Local addresses appear as "Modesto." The case is Protect Agricultural Land v. Stanislaus County LAFCO , opinion text here .  Rose M. Zoia was the attorney for PAL. Stanislaus LAFCO was represented by deputy county counsels William Dean Wright and Thomas Boze. Ceres had private counsel: Edward Grutzmacher of the firm of Meyers, Nave, and Michael L. Lyons. Details here .

Raw fish will not singlehandedly save urban California. But it can still help. Two years ago, Governor Jerry Brown, with an assist from the state Supreme Court, dealt a blow to urban revitalization with the dismantling of the state's redevelopment program. Redevelopment was flawed and needed reform. Even so, cities and civic-minded developers have been sorry to see it go. Of course, real estate development alone – with or without public assistance – is just one part of the equation. Once buildings are built, someone has to occupy them.  In the inner city, perhaps the archetypal commercial tenant is the restaurant. Granted, Appleby's, Popeye's, and Pizza Hut are unhealthy in more ways than one. If we want to stoke local economies, the independent, locally owned restaurant is a great place to start. Although redevelopment agencies were not always savvy about assisting local businesses, they were surely happy when they moved in. Even more happy were the people who got hired by mom and pop. In short, the state should be doing everything it can to promote and support independent restaurants. A new law—which, ostensibly, has nothing to do with urban development—does just the opposite. AB 1252 , sponsored by the Assembly, Committee on Health (chaired by Richard Pan, an MD and Democrat representing Sacramento) updates Section 113961 of the California Retail Food Code to require every cook and food-preparer statewide use gloves if they handle food that will not be cooked. So far, only a few chefs and restaurateurs have raised a serious outcry over the new requirement. Those that haven't cried out are probably still getting over their shock. Covering the construction of salads, sandwiches, artisanal cocktails, and, most importantly, sushi, AB 1251 puts restaurants in league with hospitals and crime scenes. The rule acknowledges a truism of living together -- people are messy -- but this is the first instance I know of when public policy has been dictated by fear of cooties. (I also wonder if it's a coincidence that many food-preparers are non-white immigrants.) As an aesthetic matter, sushi chefs widely insist that sushi – delicate and deliberately constructed – suffers from the use of gloves. The inevitable condom analogy has been made. It's not hard to imagine, though, that gloves hamper the assembly of just about any cold plate. Ludo Lefbvre – who is precisely the sort of chef-entrepreneur who has helped revitalize formerly moribund neighborhoods – told the LA Times  that he knows by feel how many grains of sea salt fit between his bare fingers. Precious as Lefebvre's claim may sound, I don't question his tactile skills. Great food is precise. As any calligrapher, violist, or tailor can tell you, there's no instrument more precise than is the human hand. This rule is designed to prevent contamination. Interestingly, not a single article I have read actually cites the incidence of contamination that stems from bare-handed food-handling. Needless to say, food preparers are already required to wash their hands assiduously. Medical professionals and culinary experts alike agree that proper hand-washing is more than sufficient to keep germs at bay. (When you're in the kitchen, what do  you  do?) Then again, the L.A. Times mentions studies that find, not surprisingly, that the use of gloves can compel food preparers to slack off on basic hygiene. These are the times when moral hazards are also health hazards. This is, in other words, a solution in search of a problem. Unless, of course, your problem is that you're not selling enough rubber gloves. I'm sure the rubber industry is keeping its head down about this, but it's not hard to imagine that they are popping champagne and blowing up the balloons over this one. One restaurant estimates that it will spend $4,000 annually to buy 500 gloves per week thanks to AB 1251. The majority of them will end up in landfills. Now multiply that by the state's estimated 61,000 restaurants. The California Restaurant Association (which ironically shares initials with the erstwhile California Redevelopment Association) supports this rule. The CRA's guide  to the rule ominously explains, "when food handlers have not washed their hands thoroughly before handling food, harmful germs may be on their hands." That's a big "when." Not to mention a big "may." How harmful are these germs? The CRA doesn't say. As if Cheetos, soda, and frozen pot pies are any less risky than are raw foods. Though he's an MD, Assembly Member Pan and all other doctors should be aware of a few of the non-medical causes of death in the United States. Columbia University's Mailman School of Medicine reports that of the 245,000 premature deaths attributable to adverse social conditions, 133,000 were due to individual-level poverty. Another 39,000 were due to "area-level poverty." The number of Americans who died from food-borne pathogens in 2010: 1,351. The CRA's position surprised me until I realized that the CRA represents restaurant chains. Their economies of scale will make them better equipped to absorb these costs. "Many other states have similar laws in effect, so the multi-state chains were prepared for the changes here in California," said CRA Communications Manager Angela Pappas in an e-mail to CP&DR . As far as I know, sushi restaurants have no such lobbying power. Big chains that send their profits god-knows-where yet again gain a relative advantage over the businesses that might be owned by your friends and neighbors. If only we had an indigenous rubber industry. Will restaurants disappear from inner-city California simply because of this law? Of course not. Will every budding entrepreneur be deterred? Doubtful. And yet, we all know that California is not always kind to small businesses. I hesitate to throw around the "nanny state" accusation, because many regulations are effective and necessary. This one, though, is a veritable Mary Poppins. It does the following:  has a seemingly unimpeachable mission; will be ineffective;  will imposes costs on those being regulated; will lower the quality of life for everyone everyone else; gives undo credence to invisible enemies.  And it will make it just that much harder to fill California's vacant lots. My advice: the legislature should repeal this law. People who are too squeamish to let strangers touch their food, can stay home and eat Hungry Man. They can leave normal people to enjoy our California rolls, and our California cities, in peace.

"If you're waiting for CEQA reform from the legislature, get a life! If you're going to reform CEQA, you have to do it at home." Those words came from veteran land use lawyer William Abbott at Friday's UCLA Land Use Law and Planning conference -- but they seemed to represent the general sentiment of the 300 land use practitioners gathered for the annual event in downtown Los Angeles. Although Senate leader Darrell Steinberg managed to get SB 743 passed last year, major reform of the California Environmental Quality Act proved elusive and the consensus is that Steinberg -- who will be termed out after this year -- doesn't have the stomach to keep trying. However, with five cases pending, the California Supreme Court could play a significant role in shaping CEQA in the coming year. "There was a time in the late '90s when the Supreme Court didn't seem interested in CEQA," veteran CEQA lawyer Jim Moose said at the UCLA conference. " They're quite interested now. Most of their case load is criminal. They get to choose and of the civil cases they take, CEQA is a surprisingly large percentage. They take seriously their role on CEQA." SB 743 declares parking and aesthetics to not be significant impacts in infill situations and also exempts projects approved within an adopted specific plan area under certain circumstances. Though it stops far short of the of sweeping CEQA reform under discussion a year ago, the bill does provide significant streamlining for infill projects. Not that the new law stopped the UCLA panelists from debating the very things that SB 743 seeks to clear up. CEQA panelists Moose and Susan Brandt-Hawley, for example, had a vigorous debate over the parking question -- which has vexed CEQA practitioners for decades. For example, in Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (215 Cal.App.4th 1013), the appellate court found that a mitigated negative declaration for installing lights at a high school football field was insufficient for a variety of reasons, including inadequate analysis of traffic and parking. Among other things, the case declined to follow up on a different appellate court's decision in San Franciscans Upholding the Downtown Plan v. City and County of San Francisco, 102 Cal.App.4th 656 (2002), saying that San Diego did not have the same strong transit policies that San Francisco had and therefore inadequate parking is "not merely a social inconvenience." "So what's the takeaway?" moderator Margaret Sohagi asked. "Do we have to go back to scrutinizing parking?" "It depends," Moose said. "You need to make the case. The General plan or other policies favoring transit may downgrade the parking impact. There may be interplay with the upcoming OPR guidance" -- meaning proposed CEQA Guidelines changes forthcoming from the Governor's Office of Planning & Research, directed by SB 743, to look at alternatives to level of service as a standard under CEQA. But Brandt-Hawley, one of the most successful CEQA plaintiff lawyers in the state, disputed the idea that parking isn't an environmental issue. "Parking alone doesn't have any impact but parking is related to traffic" she said. "If there isn't enough parking it creates more traffic. It never really made sense that parking isn't environment. What has happened since is that planners have called it traffic rather than parking."