Having already prepared one environmental impact report that was set aside by a court, the City of Carmel-by-the-Sea undertook a new EIR for the purposes of evaluating the impacts of the City disposing, by sale or lease, of a historic mansion. That EIR and the special circumstances surrounding publically owned historic structures were at issue in Flanders Foundation v. City of Carmel-By-The-Sea.  In 1971 and 1972, the city acquired the Flanders Mansion and surrounding preserve property, which is located 3.5 miles from the center of town. Constructed in 1924, the mansion was a "two-story Tudor Revival English Cottage," designed by a prominent architect Henry Higby Gutterson and placed on the National Register of Historic Places. The city had used the property for various purposes: including residential, gallery, and office space, but had been vacant since 2003. Facing ongoing ownership of a property with significant deferred maintenance, the city proceeded with an EIR to deal with disposition options.  Pursuant to the EIR, the city's primary objective was to divest itself of the mansion, with secondary objectives of (1) preserve the mansion as a historical resource; (2) put the mansion to productive use; (3) provide that ongoing use of the mansion would not impact the surrounding neighborhood; (4) protect the public's enjoyment of surrounding preserve; (5) protect the environmental resources and (6) provide the public as many park benefits as are practical.  The DEIR included four alternatives: no project; residential lease; public use lease; sale with conservation easements and mitigations. The DEIR concluded that all the project alternatives had fewer environmental impacts than the project as proposed, but only the sale alternative would meet the basic objective of divestment. The administrative record, although not the EIR, included an economic feasibility analysis of the various options. One of the letters on the DEIR commented on the feasibility analysis, the Surplus Lands Act, and the alternative of selling the home on a smaller parcel. The FEIR responded to the first two, but not to the third comment in this particular letter.  In May 2009, the city adopted various resolutions certifying the EIR, adopting a mitigation monitoring and reporting program, adopting a statement of overriding considerations, and approving the project (sale with conservation easements and mitigation measures). Following the CEQA challenge, the trial court held that the EIR failed to consider the impacts of selling the property in compliance with the Surplus Lands Act as well as failure to respond to one comment. The city appealed and the Flanders Foundation, the petitioner, filed a cross appeal implicitly to prevent the city from relinquishing ownership of what it considered an important public resource. The appellate court ruled for the city on all issues save one.  First, the court concluded that while the Surplus Lands Act applied to the sale, the evidence was that the development of an affordable project was unlikely. Therefore, sale to another government agency—at anything resembling a fair price—was irrelevant and, therefore, there was no requirement to study this potential scenario in the EIR. The appellate court also concluded that there was no obligation for the lead agency to include the economic feasibility in the analysis, and in a detailed critique, that the evidence contained within the analysis constituted substantial evidence. Notably, the court held that analytical framework in the study of what a reasonable prudent property owner would do, as compared to what the city could afford to undertake, was appropriate.  The court writes, "The Foundation insists that…restoration and maintenance of the Mansion property ‘can be achieved" without selling the Mansion property. This argument ignores the fact that…substantial evidence supports the City's finding that it would be economically infeasible for the City to retain ownership of the Mansion property." The appellate court also rejected the foundation's challenge to the statement of overriding considerations, after determining that there were multiple independent grounds stated in support of the override (and that the opponents failed to demonstrate a lack of substantial basis for each one). The appellate court did concur with the trial court that the City's non-response to the question regarding the viability of mitigation to park impacts through the sale of a smaller parcel (along with the home) warranted a response, and that the "City's certification of the FEIR was therefore invalid." Flanders v. City of Carmel-By-The-Sea (January 4, 2012, H035818) ___Cal.App.4th ___

Charles M. Haar, one of the greatest land use and urban development lawyers of the second half of the 20th Century passed away Jan. 10 at his home in Key Biscayne, Florida. He will always be known for his brilliant articles on establishing the comprehensive plan as the constitution of land use planning in the United States in the 1950s, which has become increasingly important in the U.S. and California.  It is truly sad to see one of the greats no longer with us. Charles Haar was a good friend and colleague. We solidified our friendship when I was a visiting professor of law at Harvard in 1985 and later when we taught together at the University of Miami law school as visiting professors teaching land use courses.  Professor Haar had a brilliant career. After service in Naval Intelligence in World War II, and practice in real estate law, in 1952 he became a Professor of Law at the Harvard Law School and later on was named the Louis D. Brandeis Professor of Law. Together with Professor Jacob Beuscher of Wisconsin, he pioneered one of the first classes in the nation on land use law and in 1958 wrote one of the first, and for 30 years, the most influential, casebooks in the field, Land Use Planning: A Casebook on the Use, Misuse and Re-use of Urban Land. Professor Haar's most original work was his two 1955 seminal law review articles on the comprehensive plan. That is what Charlie will always be remembered for, as well as having conducted one of the first law school classes on Land Use Planning law. Charlie was the first to break away from the 1930's, 40's and 50's  influence of zoning attorneys and their narrow detailed zoning and subdivision treatises by emphasizing the need for comprehensive planning to serve as the underlay for land use implementation.   He particularly decried a series of 1950 New Jersey Supreme Court cases expressing the "majority view" rejecting the requirement of comprehensive planning to lie behind zoning.  For this alone he will always be one of the greats for having shaped a new direction for consideration of environmental, economic, architectural and planning multidisciplinary approaches and to escape from the parochialism and lack of planning embodying local controls.  The greatest tribute to Charlie's efforts was the case of Udell v. Haas, 235 N.E.2d 897 (N.Y. 1968) in the New York Court of Appeals, which attributed the need for planning as central to rational urban growth to Charlie's articles, citing Haar, In Accordance with a Comprehensive Plan, 68 Harvard Law Review 1154 (1955), and "The Master Plan: An Imperfect Constitution, 20 Law & Contemporary Problems 353 (1955): The mandate of the Standard State Zoning Enabling Act, § 4, that zoning be in accordance with a comprehensive plan, is not a mere technicality which serves only as an obstacle to overcome in carrying out their duties. Rather the comprehensive plan is the essence of zoning. Without it there can be no rational allocation of land use. It is the insurance that the public welfare is being served and that zoning does not become nothing more than a Gallup Poll…. As Professor Haar points out zoning may easily degenerate into a talismanic word like the "police power" to excuse all sorts of arbitrary infringements on the property rights of the landowner. To assure this does not happen our courts must require local zoning authorities to pay more than mock obeisance to the statutory mandate that zoning be "in accordance with a comprehensive plan."   In California, the influence of Professor's Haar's articles resulted in the adoption of California Government Code § 65860 (in 1965) "Consistency of zoning ordinances with general plan" with one great omission, charter cities, with the exception of Los Angeles, are exempt from the consistency requirement, Cal. Gov't Code § 65803, 65860 (d). Nevertheless in City of Del Mar v. City of San Diego, 133 Cal. App. 3d 401, 414 (1982) the court held that: While the trial court was correct in concluding that charter cities such as San Diego are statutorily exempt from the technical zoning consistency requirement contained in Government Code section 65860, Del Mar persuasively argues that a city's general plan may be viewed in many ways as the city's articulated perceptions of what constitutes the locale's "general welfare." Thus, to the extent that a city approves a zoning ordinance which is inconsistent with the city's general plan, the inconsistency must at least give rise to a presumption that the zoning ordinance does not reasonably relate to the community's general welfare, and therefore constitutes an abuse of the city's police power. In the 1960s, Professor Haar's career path shifted to working with the Kennedy and Johnson administrations on federal solutions to poverty, redevelopment and housing. His finest contributions were the drafting of the Model Cities legislation in 1966, which for the first time directed federal grants to renew poverty and minority neighborhoods through economic development and minority citizen participation, in contrast to the federal Urban Renewal program which bulldozed and obliterated inner cities through eminent domain, leaving vast wastelands, such as those discussed in Martin Anderson's The Federal Bulldozer (M.I.T. Press, 1964). Two years later he drafted Sections 235 and 236 of the 1968 National Housing Act which introduced the most effective federal subsidy programs the country has ever seen. Unfortunately his extensive and valuable work on national issues fell by the wayside with the demise of the Johnson Administration. Charlie's efforts then shifted to the world of exclusionary zoning and discrimination in the provision of housing, basic services and infrastructure systems. In 1971, working with Daniel Fessler of Harvard, he won a great victory in the case of Hawkins v. Shaw, 437 F. 2d 1286 (5th Cir. 1971) in establishing the constitutional right of minorities to equal services. Charlie continued his work, over the years, in housing and exclusion, publishing a number of well received books: Housing the Poor in Suburbia; Fairness and Justice, Law in the Service of Equality; The Wrong Side of the Tracks; and Suburbs under Siege: Race, Space and Audacious Justices (highlighting the Mount Laurel Supreme Court cases in New Jersey).  He also wrote definitive works on Property and Law, The End of Innocence, and The Golden Age of American Law. In 1982, Charlie was appointed Special Master in a state court case resolving the problems of pollution in Boston Harbor.  In 2005, he highlighted his experience in Mastering Boston Harbor: Courts, Dolphins and Imperiled Waters (Harvard University Press): Professor Haar said the courts were indispensable in solving what was known as the tragedy of the commons. Though the harbor belonged in principle to everyone, "no single entity felt duty-bound to care for it." Thus it was being lost to all. "The energetic judicial response to prior legislative inertia was the most extraordinary and precedent-setting feature of Boston Harbor's journey from a national disgrace to a symbol of national pride."  Attorney Robert H. Frielich teaches land use law at the University of Southern California and is the author of over 10 books, most recently, of  From Sprawl to Sustainable Growth, Successful Planning, Law and Environmental Systems.

LOS ANGELES -- For the wind-down of redevelopment to be anything short of a train wreck, successor agencies and oversight boards are going to need a keen understanding of real estate, public policy, economic development, and, of course, accounting. They're also going to need a lot of coffee and patience. But, according to Timothy McOsker, a member of the three-person board serving as successor agency for the Los Angeles Community Redevelopment Agency, the successful completion of the wind-down process is going to require something more subtle.  At this Tuesday's UrbanScape conference, presented by UCLA's Ziman Center for Real Estate and  UCLA Lewis Center , McOsker posited that ultimate agreement on crucial matters such as what to do with agencies' assets and how to approve enforceable obligation will be as much a matter of negotiation and people skills as they are of bean-counting. This was just one of countless insights posited by a panel charged with the unenviable task of explaining what the next year or so will bring for cities, RDA staff, and the nebula of professionals who used to work on redevelopment projects. McOsker noted that the Los Angeles City Council chose not to serve as successor agency because "presumably because they thought the job was impossible." Los Angeles' list of potential enforceable obligations amounts to a reported $1.8 billion.  The challenge McOsker and his colleges around the state face is one of many reasons why, if nothing else, Gov. Jerry Brown's decision to kill of redevelopment in California has led to a profusion of conferences, workshops, discussions, and task forces. Rather than the standard affair in which panelists discuss faraway plans or rehash information that is already well known, yesterday's conference took place in front of a rapt audience. And why shouldn't they be rapt?  Among the small sample of attendees with whom I chatted, there was a landscape architect who is now seeing projects dry up. An executive from one of Los Angeles' biggest affordable housing developers who now doesn't know where much of his funding is going to come from. There were consultants, developers, and public officials all of whom came for real information and usable insight into one of the swiftest changes in the history of California public policy.  CP&DR publisher Bill Fulton led a panel exploring the current state of affairs: the organized chaos that is the wind-down process and the immediate future in which newly formed agencies and oversight committees will try to figure out which pieces of the RDA pie get sold off and which can be kept by cities that are now starving for ways to stimulate their economies. Keep in mind, it's a pretty big pie: at the time of its demise, redevelopment's tax increment accounted for a full 12% of the state's property tax revenue. No wonder Gov. Brown was so eager to get his hands on it.   For Fulton's part, he presented himself as "the only mayor in California who supported the governor." Recently stepped down from his post as mayor of Ventura, Fulton felt that redevelopment needed reform and that gridlock in Sacramento was unlikely to loosen without radical action. None of his panelists necessarily disagreed: it seems, indeed, that the argument over the wisdom of the governor's plan is long gone. Now cities are too busy figuring out what to do with the wreckage of redevelopment.  But it's not just cities, of course. In the coming weeks and months, county auditor-controllers will be inundated by RDAs' books. They will help confirm the share of tax increment that used to go to different entities and the share that will now flow back to those entites in the absence of RDA. oversight boards, which have yet to be formed, will get to wrangle over which projects get to live and which get to die. The negotiations will be intense between those who want not another dime of tax incremnt to go to local projects and those who believe that it would be a waste to let projects die on the vine.  Then there's the Department of Finance. If the death of redevelopment had played out as the Legislature intended -- i.e. if it had been a voluntary culling rather than a massacre -- all of this might work might be taken in stride. The Legislature reasonably expected that a few agenices here and there -- a handful per county -- might have folded rather than agree to the "voluntary" transfer payments to the state. Instead, Finance has 400 dead agencies on its hands, and county auditor-controllers have to deal with every agency in their respective counties.  This is why McOsker was so adamant about the need for "social IQ." Many of the decisions that will be made in the coming months will not necessarily be the result of careful deliberation but rather will take place in frenzy. The Department of Finance likely will not care to appreciate the nuance of every question that arises, and, in many cases, it may tell oversight boards simply to make their own decisions. The ability for public officials to get along with each other may therefore determine the fate of what's left of redevelopment agencies. This is especially important for cities, which, as Fulton noted, are outnumbered, 2-5, on the oversight boards.  Conversely, if Finance doesn't make big decisions, then what about the small decisions? McOsker noted that AB X1 26 is fuzzy on successor agencies and oversight boards' powers and obligations. He posited the "paper clip problem": if the legislation doesn't specifically authorize the purchase of paper clips, then what do successor agencies do when they need to stick two pieces of paper together?  That question is especially pressing since most of them will have to put together far more than just two pieces of paper.  As for all of those audience members looking for answers and, possibly, for business: they may have to keep waiting. Though all the panelists, including Renta Simril, of Jones Lang Lasalle, and Tony Salazar, of McCormack Barron Salazar, were optimistic about the prospects for a replacement to redevelopment, it may not happen soon. As Fulton noted, it's going to be a lot harder for state to give up money that it now controls rather than to take funds away, as it did with the ERAF payments of the past decade.  "I think the governor is waiting for the body to get colder," said Fulton.

This week Senate Pro Tem Darrel Steinberg (D-Sacramento) and Senator Mark DeSaulnier (D-Concord) introduced two bills that seek to solve what many consider to be serious problems caused by the demise of redevelopment. The first would give cities and successor agencies greater powers to maximize the value of redevelopment agency assets rather than subject them to a "fire sale." The second represnts a holy grail for many housing advocates: a consistent, dedicated source of funding for affordable housing, to the tune of up to $700 million per year.  SB 1151 would require the successor agency (usually cities in the area formerly covered by the RDA) to prepare a long-range asset management plan that outlines a strategy for maximizing the long-term value of the real property and assets of the former redevelopment agency for ongoing economic development and housing functions. The bill would require the successor agency to submit the plan to the Department of Finance and the oversight board by December 1, 2012, and would require the approval of the plan by the department and oversight board by December 31, 2012. SB 1156 would allow and authorize the use of new joint powers authorities and a new financing option for cities and counties throughout the state to develop sustainable economic development and affordable housing. The bill would require the new authority to assume from a successor agency the responsibility for managing the assets and property of the former redevelopment agency . Funds would be raised from a $75 recording fee assessed to real estate transactions throughout the state. These funds would help replace the 20% set-aside lost when redevelopment agencies went out of business Feb. 1.

LOS ANGELES -- Yesterday's "California's UrbanScape" conference on redevelopment, presented by UCLA Ziman Center for Real Estate and UCLA Lewis Center, was kicked off by perhaps the member of the California Legislature most sympathetic to redevelopment--and therefore most remorseful about the current state of affairs.  State Sen. Alex Padilla (D-Los Angeles) was one of the only Democrats in the Senate to break ranks with Gov. Jerry Brown and vote against the dissolution of redevelopment. Yesterday he offered some optimistic words for the future of redevelopment, assuring the audience that "both houses support some sort of re-creation of economic development at the local level."  Padilla has co-sponsored Senate Bill 659, which would restore some of the affordable housing funding that disappeared with the demise of redevelopment.  The current situation arose in part because the Legislature that voted for Brown's plan failed to understand what redevelopment meant for low-income neighborhoods, according to Padilla. Having represented a low-income area of Los Angeles' San Fernando Valley Padilla said, "even without tools like redevelopment…there's going to be an interest in the Westside. But without redevelopment, would communities like the Eastside, like South Los Angeles even be on the radar for developers, for retailers, for housing investors?"  "That is a point of view and factor that, I think, fell on deaf ears last year in the State Capitol," said Padilla.  Even if the Legsilature did not appreciate what it was doing, Padilla reinforced one of the chief arguments advanced by its supporters doing last year's legislative and legal battles: "the Legislature intended for an alternative mechanism to continue local economic development activity at the local level." In other words, redevelopment's death was accidental, due to legislation -- AB X1 26 and AB X1 27 -- that was crafted hastily and poorly last summer. That haste is in stark contrast with how Sacramento usually works.  "It's not like the state of California was born yesterday," said Padilla. "The public policy challenges that we've had before us are either the new things or the very complicated things." Killing redevelopment was in the latter category, according to Padilla.  As cities and successor agencies try to implement the provisions of AB X1 26, Padilla said that people in the Capitol are already thinking about the equally complicated task of replacing redevelopment. He insisted that a new program might also be based on tax increment financing but with "significantly less dollar amounts than what we were accustomed to, and more structured and, in some ways constrained, by new policies that have been adopted." Padilla said that state policies such as those to reduce greenhouse gas emissions might guide the next incarnation of redevelopment.  While Padilla said that the Legislature would support such a move, he said that the biggest obstacle may be the governor.  "He got what he wanted," said Padilla. "I don't see the policy pushes and pulls for him to really engage here." Nevertheless, Padilla exhorted supporters of redevelopment to embrace the complicated discussions that are likely to ensue.  "There's a lot of excitement about what that could and should look like and very few people interested in dealing with the muck that has been created," said Padilla.

The Planning Center | DC&E is looking for an urban planner to join our team in the newly established Downtown Los Angeles office. We are seeking someone who is passionate and deeply committed to produce planning and urban design documents that are transformative in shaping and improving our communities. We are looking for someone who is on track for increasing responsibility for project management and marketing. Key qualifications for this position: ? Degree in urban planning, architecture, urban design, or related professional program ? Minimum of three years working for a municipal planning agency or private consulting firm ? Experience in writing policy sections for comprehensive general plans, specific plans, and comparable planning products ? Understands integration of urban form with policy planning and capable of conceptualizing physical development concepts ? Capable of addressing prevailing planning issues and best practices such as climate change, sustainability, and healthy cities ? Understands the tools and methods of public outreach and engagement and able to effectively participate in public meetings ? Has worked collaboratively in a multi-disciplinary environment ? Maintains a healthy and balanced life

As cities across the state are contemplating if and how they can spur economic and real estate development in the absence of redevelopment, the Los Angeles County city of Alhambra has taken early steps towards a self-help plan.   Last week the Alhambra City Council heard a first reading of an ordinance that would empower the city to employ a range of economic development tools and to pursue funds to pay for them now that tax increment financing is no longer available. The ordinance would vest in the city many of the powers that the redevelopment agency held.  The ordinance would permit the city to buy and sell land, provide financial assistance to developers, rehabilitate and remediate city-own land, among other strategies. And it would empower the city to work closely with developers on projects that the city deems desirable.   "Activities in that program would be very similar to the tools used with redevelopment in the sense that we'll be able to continue with a lot of activities that we were using," said Julio Fuentes, Alhambra city manager and president of the board of the California Redevelopment Association.  Fuentes considers it a stopgap measure enabling the city to pursue projects as it and the state's other cities wait for a statewide replacement to redevelopment to emerge from Sacramento. Some say that "Redevelopment 2.0" could be years away.  "We will at least be able to at least continue to do work and if there is a statewide strategy created," said Fuentes.  Alhambra's is possibly the first such ordinance to be considered in the state since redevelopment was dissolved Feb. 1. Fuentes said that other cities have contacted him to inquire about the ordinance, presumably with an eye towards replicating it.  "You have to look towards a self-help program where you need to sit down with your councils and city attorney…and design a program that works for you," said Fuentes.  The ordinance would permit the city to seek funds such as Section 108 and Community Development Block Grants from the Department of Housing and Urban Development. Fuentes also said that it could open the door for the city to garner funds generated by new developments, such as sales tax revenue from new retail establishments. Fuentes suggested that the city could pursue lines of credit, loan transfers, and the sale of city assets. He also proposed that the city could set aside a certain portion of the property tax that it receives from new projects and dedicate it to economic development. Fuentes is particularly enthusiastic about HUD grants because, he said, HUD is focusing on job creation now more than ever before.  Perhaps most importantly, the ordinance calls for the city to retain its former redevelopment staff. Many supporters of redevelopment have speculated that the dissolution of redevelopment agencies and dispersion of RDA staff would make future economic development efforts difficult for lack of expertise, institutional memory, and bureaucratic infrastructure.  Fuentes said that Alhambra can consider the ordinance because it is a charter city. General law cities may have more complicated legal considerations.  Fuentes warned, however, that this sort of local effort will not replace the former system of redevelopment.  "I think we can strive to accomplish the same goals and objectives that the agency had," said Fuentes. "But I think that when you look at the total effort here, it's not going to be on the same level as the agency's effort."

Amid confusion and frustration on the part of former redevelopment agencies, the Legislative Analyst's Office released a report today analyzing the wind-down as dictated by Assembly Bill X1 26 and making recommendations for some legislative patches to that law. The report reviews the history of RDAs, the events that led to their dissolution, and the process communities are using to resolve their financial obligations. The report recommends the Legislature amend the redevelopment dissolution legislation to address timing issues, clarify the treatment of pass–through payments, and address key concerns of redevelopment bond investors. Overall, the report is lukewarm on the former redevelopment system as a statewide economic development tool. It notes that the TIF financing system--which represented 12% of the state's total intake of property taxes--cost the state as much as do the University of California or Cal State systems "but did not appear to yield commensurate statewide benefits."  But with the die already cast in favor of disbanding redevelopment, the report offers analysis of how much money the state actually stands to recoup and discusses the wind-down process. It notes that the estimated $1.8 billion that is estimated to be distributed to local governments in 2011-12 and 2012-13 could be off by "hundreds of millions of dollars" and it reiterates the fact that the dissolution of redevelopment does not increase total revenues -- it just redistributes them.  "As we look over the estimates, we point out that there's a large degree of uncertainty," said Marianne O'Malley, the report's lead author. "Not in the long term, but in the short term, how much and when is not clear."  Other major findings and near-term recommendations include the following:  Although ending redevelopment was not the Legislature's goal, the state had few practical alternatives.  Design of replacement program merits careful consideration.  The redevelopment agency unwinding process could yield important civic bene?ts.  Hold hearings to promote local review over use of the property tax.  Provide funding to train K-14 oversight board members.  Alternative use of redevelopment assets raises dif?cult policy and ?scal issues.  Key state and local choices will drive state ?scal effect.  Clarifying amendments would help implementation of ABX1 26.  Clarify treatment of pass-through payments.  Address timing issues.  Clarify authority to take actions to ensure that funds are available to pay bonded indebtedness. The report also anticipates alternatives to redevelopment that might emerge. They include strategies and tools, usable at the municipal and/or statewide level, such as business improvement districts, infrastructure financing districts, property tax debt override, regulatory changes (such as relaxing parking requirements, changing zoning, streamlining project approvals, etc.), and state housing assistance.  Despite the complexity of the wind-down process and the uncertainties that the report identifies, O'Malley said that she came away believing that the process could spark a healthy discussion about local development and the use of property tax money. She noted that the competing interests of the members of the oversight boards will ensure that there will be vigorous debates over whether to continue certain projects or whether to liquidate them and return the funds to the respective local entities.  "I think those kinds of political debates about how the property tax should be used is long overdue in California," said O'Malley. "I started off looking at the oversight board and getting very worried at the complexity of all of this and then I started thinking that there are some enormously good civic side benefits that could result." The full, 32-page report can be found here:  http://www.lao.ca.gov/laoapp/PubDetails.aspx?id=2564

The best method for setting the proper baseline in a CEQA document still remains a matter of debate. For the project opponents, the payoff is often big if they can convince a court that the wrong baseline was used, as the ensuing analysis is all keyed to the baseline. If the wrong baseline is used, then the balance of the CEQA evaluations is upset. Citizens for East Shore Parks v. California State Lands Commission, the last CEQA decision for 2011, involves one of those baseline challenges.  The facts involve a lease extension between Chevron and the State Lands Commission for a marine terminal in the Bay Area city of Richmond. Originally built in 1902, the terminal had been periodically upgraded. In 1947, the Lands Commission entered into a 50-year lease with Chevron's predecessor. Starting in 1998 with the NOP, the Commission eventually certified the EIR for the lease extension, nine years later. CEQA litigation followed, with a case filed by a neighborhood group. The key issue in the case was the setting of the baseline. While administratively the Commission had considered the baseline as if no terminal was currently operating, it eventually determined that the appropriate baseline included existing active terminal operations. The opponents argued that a "no terminal" baseline was appropriate on the basis that the Commission had the right to not extend the lease, effectively terminating the activity. The appellate court disagreed.  The lead agency had the discretion to include the existing operations, and whether viewed as a question of substantial evidence or as a question of law, the appellate court held that the Lands Commission chose correctly. The commission's actions did not include the error of including hypothetical operations, a practice invalidated by the California Supreme Court in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 315. Most of the opponent's remaining arguments were hinged to their initial argument that the commission erred in its baseline selection. The appellate court rejected those claims as well, including an argument that the commission erred in failing to study an alternative that assumed that the terminal did not exist. Because the proposed lease activity had no impacts to recreational activities, there was no duty to examine potential impacts to trail plans (land and aquatic). The appellate court also rejected an argument that the project description was too narrowly drawn as it omitted the upland operations associated with the refinery. As the appellate court observed, the commission only had jurisdiction over the lease for the marine terminal, it was not required to consider the existing refinery as connected to the proposed lease. The appellate court also considered the claim that the lease violated the public trust doctrine. Upon achieving statehood, the State of California acquired title to all tidal and navigable river lands, and holds them in trust for the public. However, the appellate court concluded that the granting of a lease for a marine terminal was consistent with the public trust, and declined the urgings of the project opponents to compel the commission to engage in a wide-ranging identification, evaluation and mitigation of other potential public trust uses. The Case:  Citizens for East Shore Parks v. California State Lands Commission 2011 Cal.App. LEXIS 1645. No. A129896. Filed December 30, 2011. The Attorneys: Law Offices of Stephan C. Volker, Stephan C. Volker, Stephanie L. Abrahams, Daniel Garrett-Steinman, Jamey M.B. Volker and Joshua A.H. Harris for Plaintiffs and Appellants. Kamala D. Harris, Attorney General, John A. Saurenman, Senior Assistant Attorney General, Christiana Tiedemann, Supervising Deputy Attorney General and Joel S. Jacobs, Deputy Attorney General for Defendant and Respondent. Pillsbury Winthrop Shaw Pittman, Ronald E. Van Buskirk, Kevin M. Fong and Todd W. Smith for Real Parties in Interest and Respondents. William W. Abbott is a partner in the Sacramento law firm of Abbott & Kindermann, LLP. www.aklandlaw.com

Though medical marijuana may be legal in California, cities thus far have no obligation to ensure that patients have ready access to cannabis-based medicines. There have been several attempts by medical marijuana dispensary proponents to get the courts to recognize the right of prospective proprietors and co-ops to establish dispensaries, regardless of what the local zoning code allows. Thus far, these attempts have failed. The most recent attempt in Traudt v. City of Dana Point (2011) 199 Cal.App.4th 886, is no different. This time the court did not even make it to the merits, but struck the case down at the demurrer stage for lack of standing. Plaintiff Malinda Traudt developed osteoporosis in her 20's, and from that point on, lived a life of pain and constant illness, until she began taking medical marijuana. Traudt is also blind and suffers from several neurological conditions and chronic pain. According to Traudt's complaint, medical marijuana saved her life because it alleviated some of her pain. Due to her condition, Traudt cannot venture far from her house and must be accompanied by her mother, who is her caretaker. Her mother is also unable to leave her alone because she too is in fragile condition. Fortunately for Traudt, a dispensary opened up within walking distance from her home, and her mother could take her in her wheelchair to the dispensary.  Unfortunately for Traudt, the City of Dana Point began shutting down the dispensaries within city limits because they are not permitted under the local zoning code. This included Traudt's dispensary. Although the dispensary brought suit against the city, Traudt decided to initiate a lawsuit of her own, which was dismissed on demurrer for lack of standing, even though lack of standing had not been asserted by the city. Traudt appealed, and the appellate court agreed with the trial court.  As the appellate court readily admitted, "Traudt's condition is tragic and presents perhaps the most compelling case imaginable for individual standing." Nevertheless, according to the appellate court, "an individual medical marijuana patient is not the proper party to challenge generally applicable zoning provisions because – whatever the contours of the right to engage in cooperate or collective medical marijuana activity (see e.g., § 11362.775) – the Legislature invested this right in cooperative and collective groups and entities, not individuals." Therefore, Traudt had no standing to bring an action against the city, and she will just have to wait and see if the dispensary has any more success. The Case:  Traudt v. City of Dana Point (2011) 199 Cal.App.4th 886. Filed and published Sept. 30, 2011.  The Attorneys:  Schwartz Law and Jeffrey M. Schwartz for Plaintiff and Appellant. Rutan & Tucker, A. Patrick Muñoz, Douglas J. Dennington and Jennifer Farrell for Defendant and Respondent. Cori Badgley is an attorney with Abbott & Kindermann, LLP, Sacramento.

Jim Evans, 42, of Sacramento, has been appointed deputy secretary for communications and strategic planning at the Business Transportation and Housing Agency. He has been a consultant for Senator Mark DeSaulnier since 2009. He was communications director for Senate President pro Tempore Darrell Steinberg from 2006 to 2009 and communications director for Senator Joe Dunn from 2005 to 2006. Evans was a staff writer for the Sacramento Bee from 2003 to 2004, managing editor at California Journal from 2002 to 2003, a staff writer for the Sacramento News and Review from 2001 to 2002, and a staff writer at The Industry Standard from 1998 to 2001. This position does not require Senate confirmation and the compensation is $129,900. Evans is a Democrat.  Brian Kelly, 43, of Sacramento, has been appointed undersecretary at the Business Transportation and Housing Agency. Kelly has been executive staff director for Senate President pro Tempore Darrell Steinberg since 2008. He was executive principal consultant for Senate President pro Tempore Don Perata from 2004 to 2008, principal consultant for Senate President pro Tempore John Burton from 1998 to 2004, and assistant consultant for Senate President pro Tempore Bill Lockyer from 1995 to 1998. This position does not require Senate confirmation and the compensation is $172,992. Kelly is a Democrat.

Given the scarcity of land in urban neighborhoods in California and the costs involved in acquiring land and building new parks, we must consider alternative approaches to meet recreational needs. There is, of course, no substitute for the development of new parks. But we can still pursue innovative, low-impact strategies to maximize recreational opportunities.  After all, though planners and public officials are always going to be compelled to create lasting monuments, recreation can take place in locations other than parks.   Though Californians may balk at the notion of getting out of their cars, temporary street closures and temporary use of vacant or underused parking lots can ease the shortage, especially in low-income neighborhoods. Unfortunately, many in the planning profession are unfamiliar with these ideas, do not take them seriously, and/or have done little to support them.  As a parks planner, I believe that the time has come for this attitude to change.  Temporary Street Closures Closing some streets either permanently or temporarily for recreational activities is one way to create additional opportunities for physical activity.  Some cities, including Baltimore, Chicago, El Paso, Miami, and New York, have begun experimenting with the idea of once-a-summer or once-a-month road closures on regular city streets, following the example of the "ciclovias" that have become popular in Bogotá, Colombia and several other Latin American cities. Los Angeles recently began holding CicLAvia  events which opened up some streets to the public, creating a temporary network of spaces where participants could walk, bike, socialize, celebrate and learn more about their city.  From Boyle Heights to Downtown, MacArthur Park to East Hollywood, CicLAvia encouraged Angelenos to not only make active use of the streets, but to rediscover the neighborhoods that too often go unnoticed in automobiles.  About 100,000 turned out for the inaugural event in 2010, far exceeding the expectations of organizers, who had wondered whether Los Angeles could tolerate the idea of shutting down busy streets just to give Angelenos more opportunities to walk, bike, or socialize.   Closing streets temporarily recognizes the urgency of addressing the recreational and public health needs of residents, especially children.  For example, New York City's Departments of Health and Mental Hygiene, Transportation, and Parks have specifically created the Playstreets program to battle the childhood obesity epidemic.  This program allows communities to close off streets from auto traffic and open them up for play on a recurrent basis.  It is a quick and low-cost way to create active play space, especially for children, the city's most important at–risk population.  Temporary Use of Parking Spaces/Lots and Vacant Lots Another example of creating parks temporarily is " PARK(ing) Day " which began in 2005 when Rebar, an art collective, converted a single metered parking space into a temporary park in an area of San Francisco that was underserved by public open space.  Park(ing) Day has since become an annual worldwide event characterized by energetic participants and diverse installations like croquet courses, dog parks, and urban micro-farms.   In addition to parking spaces, vacant lots or underused parking lots may be used temporarily for recreation by setting up sports equipment like basketball hoops, soccer goals, and portable skate ramps at these locations.  As a park planner, I have observed that underserved communities like Florence-Firestone in south Los Angeles are home to numerous vacant or underused parking lots, some of which may be used as temporary recreation areas in the evenings and on weekends (or whenever they are not needed for their primary use).   Challenges and Solutions • \t Planning Regulations: A number of cities have adopted regulations to limit fast food restaurants in an effort to reduce obesity, but have done little to promote exercise.  It is unclear how planning departments would handle requests to temporarily use parking and vacant lots for recreation.  For example, would a temporary use permit be required?  Typically, such a permit would be needed for seasonal activities like the sale of pumpkins and Christmas trees on vacant lots.  Cities should support temporary use of parking and vacant lots for recreation by establishing a clear approval/permitting process for such uses.    • \t Coordination: Holding events like CicLAvias require many organizations to work together.  This is challenging considering that the stakeholders vary widely, from passionate event organizers and activists to more rigid agencies handling road closures and public safety.  However, the success of past CicLAvias proves that effective collaboration is possible.   • \t Logistics: Implementing the two ideas would mean new roles and responsibilities for parks staff.  Specifically, they would need to set up, take down, and provide sports equipment (like portable basketball hoops) needed for the temporary use of parking or vacant lots.  They would also need to supervise these locations to ensure safe play and proper use of the equipment.  Alternatively, volunteers could be recruited for such tasks. • \t Liability: Liability issues can discourage cities and individual property owners from allowing recreational activities on streets and vacant or underused lots, respectively.  Not being an attorney, I cannot speak intelligently on this matter.  However, it is my understanding that liability concerns can be addressed through adequate insurance coverage and the posting of limitations on liability language at locations where recreation is to take place temporarily.   Conclusion To meet the recreational and public health needs of underserved communities in California, we should explore and embrace creative ideas.  It's ironic that in California, a place with fantastic weather and an athletic culture, is often so reluctant to promote outdoor activities. It's almost as if planners feel that the presence of the ocean, mountains, and vast wild areas beyond the urban fringe has given them a free pass not to embrace recreational opportunities in center cities. But now that we've built cities that accommodate the car so well, it's time to take back a little space for people.  And if these temporary solutions don't work? Well, that's OK. They're just temporary.