The federal government is falling far short of meeting its goal of "no net loss" of wetlands, according to a new study by the National Academies of Sciences' National Research Council. While the loss of wetlands in the contiguous 48 states decreased by 77% from 1986 to 1997, about 58,000 acres of wetlands are being plowed up or paved over every year, according to the report. The scientists found that many mitigation projects are not implemented after development is approved, that some new wetlands are not maintained as promised, and that some projects do not adequately replicate a natural system. The scientists urged better data collection and greater enforcement by the U.S. Army Corps of Engineers, which regulates most wetlands development. "A broader geographic area needs to be considered when deciding which wetlands to restore and where to place new wetlands so they continue to serve the ecological needs of the entire watershed and have a higher chance of long-term survival," said committee chairman Joy Zedler, the Aldo Leopold Chair of Restoration Ecology at University of Wisconsin, Madison. The report is available at the National Academies' website, www.nationalacademies.org/webextra/wetlands Before going on summer recess, the Legislature passed a bill that requires the City of Tustin to give a 100-acre parcel of the former Tustin Marine Corps base to the Santa Ana Unified School District and the Rancho Santiago Community College District. The state Senate approved AB 212 (Correa) 21-13 on a party-line vote. Assembly Democrats passed the bill in April. As of late July, Gov. Davis had not indicated his position. Tustin and the school districts, which serve Santa Ana, have fought over base reuse for five years. Tustin has extensive redevelopment plans for the 1,600-acre base and wants the 100-acre site for a commercial project. Tustin offered the districts 39 acres and $20 million. The overcrowded school districts rejected the offer because the 39 acres appear to be heavily contaminated. Tustin contends AB 212 illegally preempts federal law and usurps the city's constitutionally protected police powers. The Correa bill is a companion to SB 874 (Dunn), which would prohibit Tustin's redevelopment agency from issuing debt based on the school districts' share of property tax increment unless the redevelopment agency and the districts sign an agreement. Both houses of the Legislature approved SB 874, but they did not reconcile differences before the summer recess started in July. The Temecula city clerk's decision to block a development referendum from the ballot was upheld by Riverside County Superior Court Judge Sharon Waters. In March, opponents of the 2,000-home Wolf Creek subdivision filed about 4,800 signatures on a rezoning referendum petition, twice as many has they needed to qualify a ballot measure. However, City Clerk Susan W. Jones said the petition backers failed to show signers the entire Wolf Creek development plan, so she refused to certify the referendum. After a three-day trial in July, Judge Waters ruled that referendum supporters should have made all Wolf Creek planning documents available to petition-signers. The Fannie Mae Foundation has identified a new type of suburb that has become commonplace in California. In a report released in late June, Fannie Mae defined a "boomburb" as an area with more than 100,000 residents that has maintained double-digit population growth in recent decades and is not the largest city in its metropolitan area. Fannie Mae found 53 boomburbs nationwide, including 25 in California. Some of the largest in the state are Anaheim, Santa Ana, Riverside, Fremont and Chula Vista. The report painted a contrasting portrait: "Because of their exceptionally fast growth rates, Boomburbs face extreme degrees of development-related problems, such as traffic congestion, strained public services, and sprawl. However, because of their large size and their potential to cooperate with other large municipalities, Boomburbs may prove well-positioned to participate in comprehensive regional solutions to these problems." The report, "Boomburgs: The Emergence of Large, Fast-Growing Suburban Cities in the U.S.," is available at the Fannie Mae website, www.fanniemaefoundation.org/census_notes_6.shtml Playa Vista — a 1,087-acre, mixed-use infill development on Los Angeles's west side — received two major boosts recently. In June, the City Council approved $135 million in Mello-Roos bonds to fund roads, utilities and parks. The council also approved $33 million in Multi-Family Housing Revenue Bonds to fund construction of affordable apartments. Although Playa Vista has been controversial for years because of its location at the Ballona wetlands, the votes came without City Council dissent. In July, influential developer Rob Maguire revealed that he had purchased 60 acres from the principal owner, Playa Capitol Corporation, and that he had hired renowned Santa Monica architect Frank Gehry to design at least four buildings. Gehry told the Los Angeles Times that his design for the commercial structures was inspired by the simple hangar where Howard Hughes built the Spruce Goose airplane shortly after World War II. Hughes formerly owned the Playa Vista site, where the hangar still stands. The California Public Utilities Commission has ruled that the Napa Valley Wine Train does not function as a public utility and therefore is subject to local land use regulations. The ruling, issued in June, is a significant victory for the City of St. Helena, which has fought for years to block a proposed Wine Train depot. The Wine Train carries tourists on a slow, 18-mile ride from Napa to St. Helena but has permission to stop at only one place along the route — a winery in the community of Rutherford. The Wine Train has long argued that it is a railroad and is subject only to the PUC. The Legislature even passed a measure that appeared place the Wine Train under the sole jurisdiction of the PUC. St. Helena and many Napa Valley winemakers and grape growers have fought the Wine Train continuously, saying it does not provide meaningful alternative transportation, blocks roads and driveways, and gives the valley a carnival atmosphere. San Bernardino County Supervisor Jerry Eaves has pleaded no contest to seven misdemeanor counts of failing to report political gifts and voting on issues that aided his benefactors. Under a settlement with the Attorney General's office, which took over the case from the county District Attorney's office, Eaves will pay a $20,000 fine and he cannot re-election in 2004. A former Assemblyman, Eaves failed to disclose that he received three fishing trips to a Canadian resort from an attorney with the firm of Miller & Schroeder. Eaves later voted for $160 million in bonds underwritten by Miller & Schroeder. The funds were used for, among other things, redevelopment of Norton Air Force Base in San Bernardino. Voters in the San Gabriel Valley city of Duarte rejected a special tax to purchase foothill open space during a June 26 special election. Measure A would have raised about $3.9 million over 30 years to help purchase 726 acres. The special tax would have cost homeowners about $48 annually. Measure A required a two-thirds vote but received only 40.1% approval. The year-old City of Elk Grove approved a 295-acre shopping mall in late June. Sacramento County had rejected the proposed Lent Ranch Marketplace before the city incorporated, partly because the project is proposed next to the county's urban services boundary. Elk Grove officials said the city needs the shopping opportunities and revenue that the 3-million-square-foot development will bring. The El Dorado County Local Agency Formation Commission has extended the deadline for the El Dorado Hills incorporation effort until December of 2002. However, the commission and incorporation proponents, who submitted petitions three years ago, disagree over the cost of financial and environmental studies. On the border of El Dorado and Sacramento counties, El Dorado Hills is a growing commuter town.

So, who's on top — the planners or the developers? You would think the U.S. Supreme Court would know. This court, after all, was able to decide who the president should be. But after almost a quarter century of hearing land-use "takings" cases, the Supreme Court has provided no clear answer as to who rules at the planning counter. In late June, the Supreme Court issued a split ruling — apparently in favor of property owners — in Palazzolo v. Rhode Island, No. 99-2047. At the same time, the court decided to accept a new land-use case for next year from Lake Tahoe. (For legal details on both cases, see Legal Digest.) Most of the time, the property owners have won at the U.S. Supreme Court. The breakthroughs began in 1987, when the court issued the landmark First English takings ruling and the Nollan exactions ruling, both from Southern California, in the same month. Victories by property owners are not surprising considering the fact that since the mid-80s the court has been dominated by conservative justices appointed by Republican presidents. But there have been very few slam-dunk victories that led to dramatic change. Almost all of the cases have been decided by a 5-4 vote and – as was the case with Palazzolo – sometimes one of the five majority justices has written a concurring opinion undercutting some of the majority's main points. Like so many other rulings before it, Palazzolo was a model of muddiness. The lack of clarity raises the question of what it all means — not in the realm of property rights lawyers and government attorneys, but in the real world of planners and developers. Unquestionably, the balance of power at the planning counter has shifted in the last 20 years, and almost without exception it has shifted in the developers' favor. Especially in California — where most of the takings cases originated — city attorneys and county counsels have become very cautious when developers complain about takings. The lawyers' concerns are probably leading to a cautious attitude on the part of the planners themselves. But the balance of power over the planning counter and the balance of power in the courtroom are two different things. Because the threat of a takings lawsuit — or a city attorney's fear of one — is only the first step in a three-step process. Step two is the actual filing of a lawsuit. And step three is the actual winning of a lawsuit by the property owner. Step one, the threat, is pretty common, and that is where the balance of power has shifted. Developers who threaten takings lawsuits are viewed seriously by government agencies and especially by government lawyers, who then advise their land-use planners to be cautious. Not surprisingly, however, step two – the actual filing of the lawsuit – is uncommon. And step three – winning the lawsuit – is almost unheard of. You can count the successful takings lawsuits on the fingers of one hand – or maybe two. It is almost impossible to actually prove that a taking has occurred, not least because the U.S. Supreme Court and other judges have failed to lay down a firm and consistent standard regarding what constitutes a taking. They have consistently stated that "it depends" – that is, it must be determined on a case-by-case basis. But what it depends on isn't always clear. Indeed, in the Palazzolo case the justices got lost in this very thicket by attempting to decide which of three different takings standards (previously laid out in three different Supreme Court rulings) should apply in this situation. And even when they're victorious, developers typically do not strip government agencies clean with their victories. Indeed, in the most famous takings victory — the Del Monte Dunes case, where the landowners' victory was upheld in by the Supreme Court in 1999 (see CP&DR Legal Digest, June 1999, July 1999) — the landowner got peanuts. More precisely, the landowner got $1.45 million. That may seem like a lot to you or me, but it probably does not seem like much to a development company that submitted five different development plans for a 37-acre beachfront parcel, all of which were rejected, and then spent more than a decade litigating the case. It's also not much compared with the City of Monterey's annual budget of $70 million. Heck, the lawyers' fees in a case like that are probably more than $1.45 million. But the power struggle over the planning counter is not really about whether a taking can be proven or how much money the government will pay if a taking is proven. The battle is about the cost and hassle of defending a lawsuit and the fear that you will be the one government agency that will be stuck with a doozy of a bill in the end. Which is why the Tahoe case that the Supreme Court will hear next year is so important for the future of planning practice. In a lot of ways, Lake Tahoe is the most atypical situation of land-use regulation. Land use in Tahoe is governed by a special regional agency, the Tahoe Regional Planning Agency, which covers parts of two states and was created by an act of Congress. The land-use regulations there have been extremely restrictive for more than 20 years, and regulators have been locked in mortal combat with angry property owners and aggressive lawyers for almost all of that time. Over the years, property owners have sued TRPA on all kinds of takings allegations, dealing mostly with the agency's limited allocation of single-family construction permits and the transferable development rights program, which emerged partly as a response to landowner concerns. However, the issue that the Supreme Court will hear is a surprisingly narrow one – and one of great interest to planning agencies everywhere: does a building moratorium constitute a taking of property? The history of takings allegations in Tahoe is so complicated that the Ninth U.S. Circuit Court of Appeals ruling in question (Tahoe Sierra Preservation Council Inc. v. Tahoe Regional Planning Agency, See CP&DR Legal Digest, July 2000) actually deals separately with what the judges called "Period I," "Period II," "Period III," and "Period IV." But apparently the Supreme Court will hear the relatively clean question of whether the building moratorium imposed by TRPA in 1981 constituted a taking because the moratorium lasted for three years. California specifically permits temporary moratoria so long as the period of time involved is "reasonable" and the public policy reasons for imposing a temporary building ban are compelling. And according to land-use law guru Dan Curtin, the California courts have set a high threshold to elevate a delay in the development process (including a moratorium) to the status of a taking. For example, in Landgate v. California Coastal Commission, 17 Ca.4th 1006 (1998) (see CP&DR Legal Digest. June, 1998), the California Supreme Court ruled that a two-year delay in the issuance of building permits by the Coastal Commission was a "normal delay" in the development process. The question of what is a normal delay and what is a taking has been an important one ever since the First English case was issued 14 years ago because in that case Chief Justice William Rehnquist invented the idea of a "temporary taking." Cutting through a knotty and persistent problem in takings law, Rehnquist said that if a regulation creates a taking of property and then is changed, a taking still could occur for the period of time during which the regulation was in place – if it was an unreasonably long period of time. Normal planning delays, he said, do not count. That is what gave the California Supreme Court the opportunity to conclude that two years was a normal planning delay in the Landgate case. Now, the U.S. Supreme Court will have the chance to decide once and for all what a normal planning delay is. In particular, they'll have the chance to decide whether a three-year building moratorium constitutes a normal planning delay or a taking. A clean ruling here will help determine the balance of power across the planning counter in the years to come. Of course, there is no guarantee that the Supreme Court will make a clean ruling in the Tahoe case. Clean rulings have been rare in land use to begin with, and the Tahoe ruling could get extremely muddled. For example, even though the TRPA moratorium ended in 1984, it was followed almost immediately by another three-year moratorium imposed by a federal judge — a fact that landowner lawyers have attempted to introduce into the Tahoe litigation as an additional factor in the "takings" question. So even though we will have a new Supreme Court ruling within the next 12 months, the psychology at the planning counter may well be just as confused a year from now as it is today.

Regulations that require most new development to contain and treat stormwater runoff continue to advance at Regional Water Quality Control Boards for California's coastal urban areas. The regulations, however, have received mixed reviews from environmentalists and condemnation from the building industry. In January 2000, the Los Angeles Regional Water Quality Control Board became the first in the state to set quantifiable standards for treating stormwater runoff from most new developments (see CP&DR Environment Watch, March 2000). About 30 inland cities and the Building Industry Association of Southern California challenged the Standard Urban Storm Water Mitigation Plans (SUSWPs). But in October 2000, the State Water Resources Control Board defended the SUSWPs by adopting a "precedential decision." The regulations require developers to install filtering devices or create vegetated swales to slow runoff and to capture sediment and contaminants. Regulators said the standards would add only 1% to 2% to project costs; builders said the mandates could cost more and could require substantial redesign of projects. Cities questioned who would maintain stormwater facilities. The nine regional boards were watching how the state board would handle the appeal, said state board spokesman Robert Miller. When the state board defended numeric targets for stormwater control, regional boards were in position to adopt similar regulatory approaches. "The general movement is toward the numeric target and the SUSWPs," Miller said. "Anything that flows across a paved area, or that flows across construction sites, will eventually find its way to creek and rivers and oceans. … We've got pathogens in the beach water all up and down the state, and we have got to get a handle on them." The nine regional boards have not approached the issue consistently, said Peter Hsiao, an attorney with Morrison & Foerster in Los Angeles, a firm that often represents development interests. In agricultural areas, it is very difficult to get a handle on runoff, he said. But in urban areas, controlling runoff from parking lots and construction sites is "viewed as low-hanging fruit" by many regulators and environmentalists, Hsiao said. "The issue in big urban areas like Los Angeles is really critical because the majority of contaminants are not coming from point-sources, they are coming from stormwater runoff," Hsiao said. Congressional revisions to the Clean Water Act approved in 1987 placed a strong focus on cleaning up "non-point source" pollution, including urban runoff. ("Point sources" are things such as sewer plants and factory discharges.) Despite the revisions and growing concern among environmentalists regarding the effects of polluted and swift-moving stormwater runoff, most state regulatory bodies moved cautiously. But attention to the problem has grown in recent years — especially because the state now requires local public health officials to post warning notices when water bodies show signs of dangerous pollution. Last year, many popular beaches in Orange County were closed for extended periods, greatly angering coastal merchants. Lawmakers have also directed money toward studies and pollution prevention efforts, Miller said. Under the SUSMP adopted by the Los Angeles regional board for Los Angeles County — and later extended to Ventura County — new developments must be designed to collect or filter runoff from the first 0.75 inches of rain in a 24-hour period. The regulations apply to commercial projects of more than 100,000 square feet, parking lots of at least 5,000 square feet, most gas stations, auto repair shops and restaurants, residential subdivisions with at least 10 units, and hillside homes. Developers usually can comply by building grassy swales, detention ponds or infiltration basins. The Los Angeles board is now considering revisions to the SUSWP, but no one anticipates a significant easing of requirements on developers. In February of this year, the San Diego Regional Water Quality Control Board adopted regulations similar — but not identical — to the Los Angeles board's. The San Diego board requires developments to treat the first 0.6 inches of a storm. Residential developments of at least 10 units, commercial projects of at least 100,000 square feet, and parking lots of at least 50,000 square feet are covered. The San Diego board approved the regulations over the objection of many cities and the building industry. The San Diego BIA, like its cousins elsewhere in the state, argued that the rules would have a negligible benefit because they do not address pollution from existing development, and that implementation would be costly. Now, similar arguments are being sounded at the Santa Ana and San Francisco Bay regional boards, which are considering their own stormwater runoff regulations. Earlier this year, the Bay Area regional board adopted new stormwater regulations addressing everything except new development. The regional board continues to work on those rules, which would apply first to Santa Clara County. Alameda, Contra Costa and other counties in the region would then follow, said regional board spokesman Will Behrns. The San Francisco Bay board had scheduled adoption of regulations for Santa Clara County this month, but delayed a vote until October, at least partly because cities say the regulations would be too expensive to enforce. Environmental organizations are not on board, either. The group WaterKeepers has urged the San Francisco Bay regional board to speed the pace of rule-making and to tighten its proposed regulations. WaterKeepers' Jonathan Kaplan called the proposed San Francisco Bay regional regulations regarding new development weaker than those adopted by the Los Angeles and San Diego boards. Kaplan said the San Francisco Bay region's proposed definition of redevelopment that would be affected is unclear. He also complained that while the San Diego regional board tailored pollution control rules to the actual quality of water running off a new development site, the San Francisco Bay regional board would allow any "best management practice" for any pollutant. Additionally, the San Diego regulations flatly say that new development shall maintain or reduce peak flows to prevent erosion. San Francisco Bay officials have proposed rules that take into account the waterway that receives the flows — an approach called a "hydromodification management plan." This makes sense "because many creeks in the County have been so hardened by previous flood control work that significant changes due to upstream projects will have little or no impact on sediment erosion," a staff report says. Officials at the state Environmental Protection Agency appear satisfied to let the individual regional boards wrestle with the issues. The State Water Quality Control Board has adopted general guidelines but has no plans to impose strict statewide requirements, spokesman Miller said. Both environmentalists and developers seem satisfied with that decision. Contacts: Peter Hsiao, Morrison & Foerster, (213) 892-5731. Jonathan Kaplan, WaterKeepers, (415) 561-2299. San Francisco Bay Regional Water Quality Control Board website: www.swrcb.ca.gov/rwqcb2/ State Water Resources Control Board stormwater website: www.swrcb.ca.gov/stormwtr/index.html

A Clinton-era Interior Department policy that delayed endangered species petitions filed by the public has been thrown out by the Ninth U.S. Circuit Court of Appeals. The unanimous three-judge panel agreed with environmentalists who said the policy improperly stalled consideration of plants and animals that could qualify for protected status. Specifically, the court ruled that the Fish and Wildlife Service's "Petition Management Guidance" (PMG) manual, adopted in 1996, conflicted with statutory provisions of the Endangered Species Act (ESA) and with congressional intent by allowing the agency to put citizen requests into limbo for an undetermined period. In June 1998, the Tucson-based Center for Biological Diversity filed two petitions with the Fish and Wildlife Service requesting that the Interior secretary extend ESA protection to the Chiricahua leopard frog and the Gila chub (a small fish). The Fish and Wildlife Service responded with a letter that said both species were already candidates for listing, so the secretary, under the PMG manual, would take no action. The Interior secretary had listed the chub as a candidate species in 1982, and the frog as a candidate in 1991 — but there had been no final determination on whether protection was or was not warranted. In August 1999, the Center filed a lawsuit seeking to force the Interior secretary to issue findings that the species either did or did not qualify for protected status. Arizona District Court Judge John Roll issued summary judgement for the Interior Department, finding that the PMG manual satisfied ESA's requirements. (Two months after that decision, the Interior Department proposed to list the frog as "threatened," so that portion of the lawsuit became moot.) The Ninth Circuit overruled the district court. The Endangered Species Act prescribes two methods of adding or removing species from the protected list: petition by interested people, or an initiative by the secretary. Under the petition route, the secretary has 90 days to decide if the petition presents "substantial scientific or commercial information" that protection or removal may be warranted, and one year to decide whether or not the petition should be granted. If the secretary takes the initiative and places a species on a candidate list, the ESA prescribes no deadlines. Under the PMG manual, the agency considered any petition regarding a species already listed as a candidate to be superfluous. The agency reasoned that the secretary could ignore those petitions — without explanation — under the ESA's "warranted but precluded" exception. In the lawsuit, the Center argued that this policy compromised the ESA. The Interior Department argued that the ESA was unclear about how to handle petitions for species already under consideration, so the agency could do what it wanted. The Ninth Circuit sided with the environmentalists. "The statute is not ambiguous, but instead is exquisitely clear, concerning what the Secretary must do when she receives a petition requesting action on a species, " Judge Marsha Berzon wrote for the court. The Act gives the secretary 12 months to decide after receiving a petition, and the "warranted but precluded" exception does not necessarily apply, the court held. That exception applies only when the Interior Department is actively working on other listings, and that activity actually precludes her from reviewing the petition. Citing the congressional record, Berzon wrote, "Congress emphasized that providing for the ‘warranted but precluded' designation was not designed to justify ‘foot-dragging efforts of a delinquent agency.'" Furthermore, under the "warranted but precluded" provision in the ESA, the secretary still must determine within 90 days whether a petition has merit. If it has merit, she must determine within one year whether action is warranted, not warranted or warranted but precluded. And the secretary must publish appropriate findings for whatever she decides. If she rules the request is warranted but precluded, the one-year cycle repeats and she again must publish findings, the court ruled. "The statutory deadlines thus assure that species tagged for protection are not forgotten in an administrative quagmire, but instead are periodically monitored and reconsidered for listing," Berzon wrote. "The case of both the frog, which the Secretary identified as a candidate in 1991 — nine years before she published a proposed rule to list the species as threatened — and the chub, which has been a candidate for nearly two decades without ever being the subject of formal findings, demonstrates that potentially qualified species may sit on a candidate list for extraordinarily long periods before becoming the subject of protective rules. It was precisely in these situations that Congress intended the petitioning process to ‘interrupt the department's priority system by requiring immediate review.'" The Case: Center for Biological Diversity v. Norton, No. 00-16020, 01 C.D.O.S. 5086, 2001 DJDAR 6271. Filed June 20, 2001. The Lawyers: For the Center: Matt Kenna, Kenna & Hickcox, (970) 385-6941. For Norton: Mark Haag, Department of Justice, (202) 514-2000.

WASHINGTON _ The U.S. Supreme Court's latest take on takings law is getting two cheers from landowners and property rights advocates and grudging acceptance from land use regulators and environmentalists. "An excellent decision," says James Burling, an attorney with the Pacific Legal Foundation in Sacramento who represented the Rhode Island landowner, Anthony Palazzolo, in the case. "We're very happy with it." "A useful advance in the law," says Michael Berger, of Santa Monica's Berger & Norton, who has built a career representing developers and landowners in takings cases. "The court is continuing the concerns that it expressed a couple of years ago that landowners are being jerked around by regulators." But Rhode Island Attorney General Sheldon Whitehouse saw the outcome very differently. "The important point is, under the theory Mr. Palazzolo pursued, he lost and he lost flat out," Whitehouse told the Associated Press. "More of a muddle," observes Richard Frank, California's chief assistant state attorney general and the office's leading expert on land use law. He says the ruling will lead to "more fact-based inquiry" in individual cases and "more uncertainty for state regulators, property owners, and the interested public." "Everybody won a partial victory," Frank adds, "and those on either side who might claim full victory are mistaken." The high court's ruling in Palazzolo v. Rhode Island reinstated a takings claim by an 80-year-old, retired auto wrecker over a state agency's refusal to allow him to fill wetlands on an 18-acre tract in the coastal town of Westerly. The high court threw out two procedural hurdles that Rhode Island courts had thrown in front of Palazzolo. Contrary to those courts, the U.S. justices voted 6-3 that Palazzolo's claim was legally "ripe." And by a 5-4 vote, the high court held that he could bring a claim even though he acquired legal title to the land after the state's adoption of wetlands protection regulations. But the high court agreed with the Rhode Island Supreme Court that Palazzolo had failed to show a "total deprivation" of the value of the property because he could build a house worth at least $200,000 on an upland part of the site. On that basis, the justices remanded the case to Rhode Island courts to give Palazzolo a chance to seek compensation under a test that gives judges more flexibility to reject a takings claim. Property rights advocates disagree among themselves about which of the two procedural rulings was more important. Berger points first to the ruling on the ripeness issue, which he said showed the justices wanted to "examine what's really going on here and not worry so much about how many specific applications were made for what particular uses, how detailed the applications were, and so on." But Burling gives greater weight to the court's ruling on the so-called "notice rule"— the view in some cases that a landowner cannot claim a taking because of regulations already in place at the time of property acquisition. "The Supreme Court put an end to the notion that purchasing previously regulated property means that you have no right to challenge those regulations or the applications of those regulations," Burling says. For his part, Frank viewed the ripeness decision as the more important of the two setbacks for regulators. "They seem to be signaling some general discomfort with the harsher applications of the ripeness rule," says Frank, co-author of the 1999 book The Takings Issue . As for the notice rule, Frank emphasizes that the justices' separate opinions indicate division on how to evaluate a takings claim based on pre-acquisition regulations. For the majority, Justice Anthony M. Kennedy decisively sided with property rights advocates on that issue. Under the state's argument, Kennedy said, "the postenactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable." The court's four other conservatives joined that part of Kennedy's opinion: Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas. In a concurring opinion, however, O'Connor said the opinion did not mean that the timing of a regulation was "immaterial" to a taking claim. That prompted Scalia to write his own concurring opinion, saying that the timing of the regulation should have "no bearing" on compensation. The four liberal-leaning justices all indicated that a landowner typically could not claim a taking for a pre-acquisition regulation — including Justice John Paul Stevens, who sided with the conservatives on the ripeness issue but would have barred Palazzolo's claim anyway. Any taking, Stevens wrote, "occurred before became owner of the property." The muddled decision reflected the muddled facts of Palazzolo's case. He bought the property in 1959 with another investor as part of a closely held corporation. The corporation was dissolved in 1978 for failure to pay taxes, and legal title passed to Palazzolo individually. By that time, Rhode Island had created the state's Coastal Management Council with a statutory charge in part to protect coastal wetlands. Twice, the council turned down Palazzolo's applications to fill the wetlands for development, in 1983 and 1986. In their rulings, Rhode Island courts concluded that the council had not rejected all possible development on the site and specifically noted that at least one house could be built on part of the property. But Palazzolo sought $3 million in damages, claiming that he could have built up to 74 houses on the site but for the state regulation. In his opinion, Kennedy said the council's decisions "make plain that the agency interpreted its regulations to bar from engaging in any filling or development activity on the wetlands." For the dissenters, however, Justice Ruth Bader Ginsburg said, "The prospect of real development shown by the State warranted a ripeness dismissal." Justices David H. Souter and Stephen G. Breyer joined her opinion. All nine justices agreed that Palazzolo's ability to build at least one house on the property knocked out his "total taking" claim under the Supreme Court's decision in Lucas v. South Carolina , 505 U.S. 1003 (1992). But the majority said Palazzolo was entitled to a chance to show that a taking occurred under a multipart test laid down in another case, Penn Central Transportation Co. v. New York City , 438 U.S. 104 (1978). The ruling instructs courts to consider several factors in weighing taking claims, including the property owner's "reasonable investment-backed expectations" as well as the public purpose of the regulation. Attorneys on both sides of the issue agree that Palazzolo faces an uphill battle in Rhode Island courts. "We are dealing with a court system that in the past has been a little recalcitrant in embracing the taking doctrine," says Burling. Frank is blunter: "I would be very surprised if the state of Rhode Island lost on remand." In California, too, one leading expert cautions landowners against finding great encouragement in the ruling. "The bottom line, in California at least, is that we've only had two cases that have found a taking after you've gotten over ripeness," says Daniel Curtin, of McCutcheon, Doyle, Brown & Enersen in Walnut Creek and author of Curtin's California Land Use and Planning Law . "Even though it might be easier for to get into court, you still have to prove you have a taking and that's still an uphill battle." The Case: Palazzolo v. Rhode Island , No. 99-2047, 01 C.D.O.S. 5439, 2001 DJDAR 6685. Filed June 28, 2001. The Lawyers: For Palazzolo: James S. Burling, Pacific Legal Foundation, (916) 362-2833. For Rhode Island: Michael Rubin, Office of Attorney General (401) 274-4400. Kenneth Jost, formerly editor of the Los Angeles Daily Journal, is staff writer for Congressional Quarterly and author of The Supreme Court Yearbook.

Two Southern California redevelopment agencies have lost separate lawsuits over the allocation of property tax revenue from redevelopment project areas. In the first case, the Second District Court of Appeal ruled that Los Angeles County can withhold from a redevelopment agency the cost of administering property taxes, and that the amount of money withheld should be counted against a redevelopment project area's maximum allowable tax increment. In the second case, the Fourth District Court of Appeal ruled that the Santa Ana Unified School District is entitled to its share of the 2% inflationary increase in property tax revenues from an Orange County redevelopment project area even though the school district did not request the money until 10 years after the redevelopment project was adopted. At issue in the case from Los Angeles was approximately $5.2 million that the Los Angeles Community Redevelopment Agency (CRA) argued has been — or will be — illegally diverted by the county. The city's argument failed at both the trial court and appellate court levels. The case centered on interpretation of a law that allows counties to bill other government entities for the cost of various administrative functions, such as collecting property taxes. The Legislature first approved of such funding schemes in 1990. In 1994, the Legislature enacted Revenue and Taxation Code § 95.3, which provided for "property tax administrative funding" or "property tax administrative fees" or simply "PTAF." Los Angeles County relied on § 95.3 subdivision (b)(1) to deduct its costs of administering property tax collections for the CRA. The CRA argued that this deduction was improper. The CRA also argued that the amount the county deducted for administrative purposes should not count against a project area's tax increment cap. The city argued about the effects on three redevelopment project areas: Pico Union, with a lifetime cap of $14 million in tax increment; Crenshaw, with an annual cap of $500,000; and the Central Business District, with a lifetime limit of $750 million. The Pico Union project area hit its cap in 1994, at which time CRA ceased receiving tax increment. However, the county determined in 1996 that the city owed it an additional $107,000 for administration of Pico Union project area taxes, so the county deduced that amount from subsequent allocations to the CRA. The county also deducted $67,000 for administering the Crenshaw Plan for three years during the mid-1990s when the project area hit its annual tax increment ceiling. When the Central Business District project area hits its ceiling in either 2003 or 2004, the county will have withheld about $5 million in administrative fees. The city argued that the county was impermissibly reallocating property tax revenue to itself, and that the way the county implemented the PTAF violated the state constitution. But the Second District disagreed, saying the county's procedure is "exactly" as prescribed by § 95.3 (b)(1). "The plain language of the statute here permits County to deduct the PTAF from CRA's tax increment allocation and is in harmony with the legislative intent to allow counties to cover their administrative costs," Presiding Justice Roger Boren wrote for the unanimous three-judge panel of the Second District, Division Two. "To follow CRA's interpretation of § 95.3 would allow redevelopment agencies with capped plans to avoid those costs." The court cited Arcadia Redevelopment Agency v. Ikemoto, (1993) 16 Cal.App. 4th 444 (see CP&DR Legal Digest, July 1993). In that case, the City of Arcadia argued that the PTAF violated Article XVI, § 16 of the state constitution, which protects a redevelopment agency's tax revenue. But the court in Arcadia said the Legislature can alter the levying and collection of taxes from redevelopment projects if the Legislature treats other taxes in the same manner. "Whether a redevelopment agency's tax revenues are reduced by a proper alteration of the levy and collection of taxes or by a charge for administrative costs, the principle is the same," Boren wrote. "The Legislature is so empowered as long as it acts with an even hand. … We explicitly approve and adopt the rationale of the Arcadia opinion." The court also said the deductions should count against a redevelopment project's revenue limit. "A redevelopment agency ultimately pays all of its financial obligations from its tax revenue allocations. The PTAF is a proper obligation and payable to the county administering and collecting the taxes," Boren wrote. The Orange County case was significantly different, but the outcome was still a loss for the redevelopment agency. In 1996, the Santa Ana school district Board of Trustees approved a resolution electing to receive its portion of the 2% inflationary increase in property taxes from within the Santa Ana Heights Redevelopment Project area. The county, which runs the redevelopment project, refused to give up the revenue. The county said the school district should have made such a request before the county adopted the redevelopment plan in 1986. In 1999, the school district sued, saying that the 2% should be automatically allocated. Superior Court Judge David McEachen ruled for the school district and ordered the county to pay about $90,000 — the district's share of the 2% increase for 1996 through 2000, plus 8% interest — and to continue paying the school district its share of the 2% increase until the redevelopment project expires. The unanimous three-judge panel of the Fourth District, Division Three, upheld the decision. The case turned on the interpretation of Health and Safety Code § 33676. Before the Legislature amended that section in 1984, the law said that, prior to adoption of a redevelopment plan by a legislative body, any taxing agency may elect to receive its portion of 2% tax increases from within a redevelopment area. The 1984 amendment said that every school district "shall elect" to receive those revenues. Orange County argued that the Santa Ana school district lost the right to the money because it failed to make the election prior to the county's adoption of the redevelopment plan. The appellate court disagreed. "The amended language at issue here removes plaintiff's option to elect; it requires the election, reflecting the intent that school districts are to be paid the funds," Justice William Rylaarsdam wrote for the court. The county's emphasis on the timing of the election missed the "overarching purpose" of the legislative amendment, the court held. "The change from permissive to mandatory election only reinforces the conclusion that the Legislature's objective was to require that the funds be paid," Rylaarsdam wrote. A 1993 amendment (part of the much broader AB 1290 redevelopment reform) strengthens this interpretation, the court ruled. That amendment eliminated the "elect" language so that the statute simply says school districts "shall be allocated" their share of inflationary property tax growth. The appellate court also rejected the county's argument, supported by the California Redevelopment Association, that the school district's claim was submitted so late that the county could not adequately defend against it, and that the claim would upset the redevelopment agency's "financial apple cart." The court said that the county had not produced evidence that its defense was harmed by the timing of the claim, and that the county presented no evidence that its contracts with bondholders would be impaired. First Case: Community Redevelopment Agency of the City of Los Angeles v. County of Los Angeles, No. B136115, 01 C.D.O.S. 4466, 2001 DJDAR 5466. Filed May 31, 2001. The Lawyers: For CRA: Ronald Low, deputy city attorney, (213) 977-1802. For the county: Thomas Tyrrell, principal deputy county counsel, (213) 974-1880. Second Case: Santa Ana Unified School District v. Orange County Development Agency, No. G027331, 2001 DJDAR 6835. Filed June 29, 2001. The Lawyers: For the school district: Wendy Wiles, Bowie, Arneson, Wiles & Giannone, (949) 851-1300. For the county: Ward Brady, deputy county counsel, (714) 834-3300.

The University of California is preparing for a tidal wave of new student enrollment in the next decade, and the question of where students will be housed is one that the university continues to grapple with. Under a systemwide increase now underway, the University of California expects to add 60,000 students to its nine-campus system by 2010. UC Merced, the system's tenth campus, is expected to open in 2004 as home to 4,000 additional students. This enrollment growth, driven by the state's population surge, places even more stress on a student housing system that is already overloaded. For years, individual campuses have struggled to add housing, often facing criticism from local jurisdictions over their methods. In January, for example, UC Santa Cruz leased a Holiday Inn for 10 years to provide student and staff residences, depriving the City of Santa Cruz of $500,000 in annual transient occupancy tax revenue. The University system has also faced opposition over environmental issues from communities that did not want to grow, as has occurred in recent years over proposed housing at UC Santa Barbara. Taxpayers are not expected to finance UC housing under current state policy, according to UC spokesman Chuck McFadden. "The university does understand there is a serious problem in providing student housing," he said. "It is particularly tough at UC Berkeley and UCLA," which have the largest enrollments of the UC campuses. All campuses, McFadden said, have to be aware of their relationships with local communities, many of which do not want the campuses to grow further, and which expect universities to honor long-range development plans that limit university development. In a shift toward finding systemwide solutions, a 20-member task force was appointed this year to look at ways to make housing more available for students, senior staff members and faculty. Chaired by UC Senior Vice President Joseph Mullinix, the committee began meeting in May and is expected to produce recommendations by the end of the year. The task force is made up primarily of UC students, faculty, UC administrators and campus administrators. Mullinix has asked the task force to study ways the university can work with third parties more frequently to provide housing, and to provide financial assistance to those who purchase houses. McFadden and Sam Morabito, a UCLA associate vice chancellor who sits on the task force, said it is too early to tell what recommendations the task force will come up with. But Morabito said he did not think a statewide bond measure would be a viable option for funding. Rates of growth by 2010 will vary by campus, with some of the smaller campuses taking on substantially more students than larger ones. UCLA, which currently has about 36,000 students, is expected to grow by 4,000 students during the next decade. In contrast, UC San Diego's student body of 20,000 is expected to increase by 50% during that period. During the past 15 years UCLA has been transforming the school from a predominantly commuter school to one where most students live on campus or nearby. The school has met its goal of getting 50% of the student population either to live on campus or to live within walking distance, Morabito said. UCLA is located in one of Los Angeles's most expensive areas, and new housing construction is limited. UC San Diego, in contrast, benefits from an abundance of rental housing within five miles of its campus. "Compare this to UCSB, UCSC, UCB and even UCLA where the market is completely gone," said Dolores Davies, a spokeswoman at UC San Diego. And while UCSD prepares to build more housing (a 1,240-bed dorm expansion is due to open in 2003, with apartments planned at later date), Davies noted there have been swings in the market before. "As late as 1993, we had vacancies in our residence halls," she said. More students usually means more traffic. At UCLA, the school has a transportation agreement with the City of Los Angeles that caps the number of trips into the campus, according to Morabito. The school is meeting the agreement with vanpools and carpools, and by encouraging public transportation ridership. At UC Berkeley, the administration is seeking innovative ways to meet UC's mandated increase in student population while still honoring a 1989 agreement with the City of Berkeley to cap enrollment, according to Dennis Hengstler, executive director of planning and analysis at UC Berkeley. The city has a love-hate relationship with the university: It loves the school but hates the impacts. Under an agreed-upon system UC Berkeley uses to count students, there were 29,979 students on campus during the 2000-2001 school year. But under the 1989 agreement, the student population is supposed to decrease to 29,450 students in the 2005-2006 school year. At the same time, UC guidelines call for the school to grow from 27,000 students in 1998 to 31,800 in 2010. One way to accommodate more students is to promote the education abroad program, which allows students to study in other countries. Also, under the pending state budget, the UC system would receive up to $54 million to pay for summer school programs at UC Berkeley, UCLA and UCSB, Hengstler said. Summer school has always been self-supporting, with students paying higher academic fees. But if the state money is allocated, the cost of summer school would go down, and more students are expected to attend. Those students who attend summer school would then be counted towards each campus' enrollment growth, he explained. Traditionally, more housing is available on and near UC campuses during the summer, as many students leave town. UC Berkeley does continue to work on new housing projects, Hengstler noted. But like the area near UCLA, there is little available land. And land use changes in Berkeley are frequently resisted by students and local residents. Many of the UC officials interviewed said their highest priority is to provide housing to any entering freshman or transfer student to ease the transition into university life. However, many entering students decline university offers for housing. UC San Diego, for example, housed 33.9% of its undergraduate and graduate students last fall, which placed it second in the UC system. UC Santa Cruz was the leader, housing 47% of its student population. Contacts: Chuck McFadden, spokesman for University of California (510) 987-9193. Dolores Davies, senior communications officer, UC San Diego, (858) 534-5120. Sam Morabito, associate vice chancellor, Business and Finance Services, UCLA (310) 794-6000. Dennis Hengstler, executive director of planning and analysis, UC Berkeley, (510) 642-5561.

California is the land of wide-open spaces. And everybody moves here from the East Coast to get away from those big, crowded cities. Right? Not anymore. In some ways, California is just as crowded as � or maybe even more crowded than � the East Coast. And it's only going to become more so during the decades ahead. That is the conclusion reached by CP&DR's sister organization, Solimar Research Group, in a report prepared for the Bookings Institution Center on Urban and Metropolitan Policy. The report, "Who Sprawls Most?" concluded that there are significant differences in how metro areas in different parts of the country use land. The report measured "density" at the level of the metropolitan area, and defined density as the population (extrapolated from Census figures) divided by the amount of urbanized land (as estimated by the National Resources Inventory). The report examined trends as of 1997, as well as change between 1982 and 1997. As the map of Metropolitan Statistical Areas and Consolidated Metropolitan Statistic Areas shows, California is � surprisingly � one of the most densely populated places in the country. In fact, Los Angeles replaced New York as the densest metro area on the continental United States between 1982 and 1997. San Diego, the Bay Area, Monterey-Salinas, Visalia, and Modesto were all among the 15 densest metro areas in the country in 1997. The density change statistics between 1982 and 1997 are even more startling. Nationally, metropolitan densities dropped 20% during this period � from about 4.5 to 3.9 persons per urbanized acre. In most of the country � the East, Midwest, and South � metro areas saw about one acre of land urbanized for each new resident � even in places like New York. In California, however, the story is different. The density in 1982 was about 7 persons per urbanized acre � and it stayed that way through 1997. California is just more dense than the rest of the nation. If this conclusion does not make intuitive sense, try thinking about the metropolitan edge rather than the center. New York is extremely dense at its core, but it is very sprawling at the edge, which is an endless parade of 5- and 10-acre lots. California is different. Most new suburban development � even projects on the edge � are built at the familiar 6 to 8 units per acre. In New York, if you travel 60 miles away from the city center you get a bigger lot. In California, by contrast, all you get is a cheaper house, but on the same size lot you would find in the central city. The report can be found at www.solimar.org and www.brook.edu/urban.

A developer who lost his ownership interest in a piece of property had no standing to seek a court order forcing a county to recognize a 19th century subdivision of the property, the Second District Court of Appeal has ruled. A unanimous three-judge panel of the Second District, Division Six, overturned a trial court's writ of administrative mandamus in the case. In 1995, Jack Munari applied to the San Luis Obispo County planning department for 577 certificates of compliance for 834 acres of range land near Paso Robles. In 1889, a subdivision map for the property had been filed with the county clerk, but the site was maintained for agriculture. In July 1996, the planning department rejected the application, saying the 1889 map did not create separate parcels under the Subdivision Map Act. Planners said they would allow only 135 lots to be developed. Munari appealed to the Board of Supervisors, which upheld the planning department in January 1998. The following month, Munari filed a lawsuit requesting declaratory relief, a writ of administrative mandamus, and compensation for inverse condemnation and violation of his civil rights. Four days after filing the suit, however, Munari lost the property in a foreclosure sale to William Zappas, a lienholder. Zappas then intervened in the suit and assigned the action to the Weyrich Development Company. Weyrich proceeded to settle with the county for 146 lots and dismissed the action. However, nearly three years after Munari lost the property, San Luis Obispo County Superior Court Judge Jeffrey Burke granted Munari's motion for summary adjudication on his mandamus and declaratory relief claims. Judge Burke said that the 1889 subdivision map created valid lots under the Subdivision Map Act and the county was obliged to issue 577 certificates of compliance. The appellate court, however, never reached the merits of the case. " mortgage foreclosure," Justice Arthur Gilbert wrote for the court, "divested Munari of all interest in the property prior to completion of judicial review of the administrative action. This makes it impossible for Munari to receive relief." "Moreover," Gilbert wrote, "Munari's successor-in-interest has settled with the County. It is undisputed that the settlement requires the County to issue significantly fewer certificates than the 577 certificates Munari sought." Munari argued that the trial court only ordered the county to vacate its position. Thus, should Munari reacquire the property, he would be entitled to the certificates of compliance. But the court refused to make such a hypothetical determination. "Under Munari's reasoning, a stranger to these proceedings could make the claim that he or she may someday acquire the subject property and, therefore, is entitled to petition for mandamus, " Gilbert wrote. "Hope springs eternal, but writ relief is temporal and requires firmer substance." The Case: County of San Luis Obispo v. Superior Court, No. B147202, 01 C.D.O.S. 5520, 2001 DJDAR 6739. Filed June 28, 2001. The Lawyers: For the county: Raymond Biering and Rita Sciaroni, deputy county counsels, (805) 781-5400. For Jack Munari: William Walter, (805) 541-6601.

While finger-pointing and chest-thumping have been California politicians' most visible reactions to the latest version of the energy crisis, a few local governments are slowly emerging as leaders in addressing the new energy crisis. The most aggressive of these agencies are going beyond simple conservation programs and actually using their existing facilities as alternative energy power generating locations. And some are seeing that by being leaders in alternative energy production, they can gain competitive advantage in all things civic. The newfound zeal to conserve and produce locally is not really new. Back in the 1970s, California took an aggressive approach to the first energy crisis. Under Jerry Brown's administration, the state constructed an elaborate tax incentive program that rewarded property owners who retrofitted with solar collectors or other devices. The state passed Title 24, one of the most energy-conserving construction codes in the world. A host of local governments passed solar access protection ordinances, and building orientation became a staple of site planning. On all fronts, conservation and personal responsibility were emphasized in policy discussions and they permeated the public consciousness. But government lost interest. In the post-Proposition 13 era, the emergence of corporate models of governance came into vogue. A series of less environmentally oriented governors and their colleagues in the Legislature even phased out the tax breaks for solar collectors and other energy-saving features. The trend of purchasing more fuel-efficient vehicles — and corresponding state regulations requiring fuel efficiency — stalled. Energy conservation dropped away from public discussions. And finally, deregulation was passed. The seeds of our current crisis were sown. But the harvest may not be entirely bitter. Pat Stoner, resource conservation specialist with the Local Government Commission, is optimistic about local government's potential. "I think they are doing more than we give them credit for," he said. Nevertheless, one must concede that we could count on two hands the number of cities and counties in the state that are committing themselves to finding their own solutions to the energy problem. Not surprising on the list of proactive local governments is the City and County of San Francisco, which is tackling the difficult problem of reducing energy demand at small businesses. Most small businesses rent their digs and therefore have a disincentive to invest in lighting and energy retrofits. Whereas large utility companies in the state have managed energy retrofit programs for their largest customers for some time, San Francisco sought and received an $8 million grant from the state Public Utilities Commission to launch their "Power Booster's" program. The program will fund free energy use audits for 6,000 small businesses and retrofit up to 4,000 of them with energy-efficient lighting. The energy savings will be significant. Small businesses are estimated to consume 22% of the power in the city, and the projected savings of 24 million kilowatt hours annually is expected to provide enough power for 12,000 San Francisco residences. San Francisco is also planning to expand its role in the power production business. As of late July, the San Francisco Board of Supervisors was considering placing a charter amendment before the voters to enable city's municipal utility to invest in solar and other renewable energy infrastructure. City officials see an opportunity to level the playing field with the traditional energy provision utility companies by (1) guaranteeing the purchase of a stable amount of energy from renewable sources and (2) directly supplying a portion of the city's own demand through a vast retrofit program of public buildings. The initiative could go before San Francisco's voters in November. Meanwhile, Alameda County just completed a $4 million solar panel retrofit project for the Santa Rita jail in Dublin. The 4,000-panel system will cut energy demand for the facility by 20% — a savings of $300,000 per year. And things are happening in other parts of the country, too. Most ambitious is Chicago's program. The Windy City has adopted a measurable goal that is both ambitious and admirable: Within five years, 20% of the city's electricity for all public uses – from elevated trains to elevators – will be provided by renewable resources. To help meet the goal, Chicago has teamed with the state and a major utility to build a solar power generating station in nearby Lake Calumet. Chicago officials say that such initiatives will enable Chicago to become one of the largest "green" cities in the world. Many economic development professionals believe that by simply committing to such policies, cities like Chicago gain important competitive advantages. By showing leadership in resolving infrastructure problems while supporting emerging technologies such as green energy, such localities position themselves as problem-solving initiative takers. That is a good reputation to have if a community wants to develop a range of human cultural endeavors, including business. Stephen Svete, AICP, is president of Rincon Consultants, Inc., a Ventura-based consulting firm.

Here is a twist on the familiar story of neighborhood groups negotiating with developers: The two sides did not limit their discussion to traffic congestion. On the table were a surprisingly wide array of social and environmental concerns, including hiring guarantees, wage levels, job safety and affordable housing. The story becomes even more interesting when we become aware of who was sitting at the table: On one end was LA Arena Land Company, a company whose principals include three billionaires: Los Angeles developer Ed Roski Jr., railroad and multiplex magnate Philip Anschutz, and media übermensch Rupert Murdoch. On the other side of the table was a coalition of neighborhood groups, environmental groups and labor unions representing thousands of poor people who live near the arena. In short, the negotiations, which concluded in May, took place between some of the wealthiest people in the country and some of the poorest. Under the resulting deal, the business moguls promise to hire local residents for the majority of permanent jobs to be provided by the project, pay workers $7.72 per hour with benefits, or $8.97 without them, build at least 160 units of affordable housing, provide a fund for parks, create a "preferential parking district" for local residents and serve up a host of other community advantages. The working poor who live near the glitzy sports arena could use some benefits. The novelist William Faulkner could have been writing about Los Angeles's working class, Spanish-speaking neighborhoods when he wrote the famous sentence: "They endured." Specifically, the low-income residents of downtown Los Angeles endure unskilled or semi-skilled labor jobs and low wages, and indifferent public transit. Politically atomized and outwardly timid, they do not seem to attract attention of the general public, except when gang violence threatens to spill over neighborhood lines. The $300 million Staples Center has been very successful for its owners, and perhaps its fans, during its two years of existence. Situated next to the Los Angeles Convention Center, Staples Center is home base to five professional sports franchises, including the Los Angeles Lakers. The facility also hosted the Democratic National Convention last summer. For people who live in the immediate neighborhood, however, Staples Center has been a swift pain. Parking is unavailable on game nights, and renters find themselves slapped with $60 parking tickets, "which is pretty major for a garment worker making below minimum wage," said Sandra McNeill, an organizer with Strategic Actions for a Just Economy (SAJE), a nonprofit group that works with poor people. One parent complained that she was unable to transport an asthmatic child to the hospital because post-game traffic was so thick. The lowest point came during the political convention, when some local residents found themselves prevented from entering their own homes by riot police. Community leaders began assembling their coalition in May 2000, shortly after reading in the Los Angeles Times that a Los Angeles City Council committee was already studying a $1 billion expansion to the Convention Center-Staples Arena juggernaut. LA Arena Land wants to build a 45-story convention center hotel, a 7,000-seat theater, and an undetermined amount of retail space on two shopping streets that will flank the sports arena. The city, for its part, wants to expand the 1 million-square-foot Convention Center by another 250,000 square feet and two build two high-rise apartment towers with a total of 800 units and possibly another hotel, as well. The project has been described in the real estate trades as "the biggest mixed-use project ever proposed for downtown" Los Angeles. The core group of what would become the Figueroa Corridor Coalition for Economic Justice was SAJE and Hotel Workers and Restaurant Workers Local 11. The latter group is one of the most active labor organizers in Los Angeles, with on-going labor actions against hotels in downtown Los Angeles and Santa Monica. The coalition was later joined by a number of other groups, including Esperanza (a community-based non-profit home builder), Los Angeles for a New Economy (another local group concerned with working conditions), and a local chapter of Environmental Defense. The fledgling coalition called for a meeting with then-City Councilwoman Rita Walters, who in turn arranged a meeting with the developer. The first meeting, in September 2000, did not go smoothly, however. LA Arena president Tim Leiweke, who is also president of the Kings hockey franchise, was scheduled to meet with a group of organizers and local residents. Although a group of staff people showed up to represent the developer, Leiweke was not among them. A number of people apparently felt snubbed, and the meeting became raucous, some people directing angry comments to Leiweke's conspicuously empty chair. Things improved the following month when Leiweke handed off the negotiations to senior vice president Ted Tanner, a former executive with Catellus and someone with more community-relations experience than the sports executive. Tanner had the grace to read his presentation entirely in Spanish, which he does not speak, and what he lacked in pronunciation was compensated by goodwill. At this point, the negotiations took on a positive tone, and the activists set forward a remarkably detailed set of demands on wages, housing, work and even open space for local residents. In May, the developer and the neighborhood groups arrived at a set of concessions. "We didn't get everything we asked for, but we achieved a really solid agreement, and we were really pleased," SAJE's McNeill said. Tanner could not be reached for this article, but we suspect that "doing the right thing" was not the only factor behind the concessions. The developer is reportedly expected to ask for a $75 million subsidy from the city, and the strong support of the neighborhood — and the councilmember from the district — may sway an otherwise skeptical City Council. Politically calculated or not, this set of concessions seems remarkable for the emphasis on what could be called the "quality of daily life," as well as the familiar mitigations for environmental impacts. Projects like Staples Center, which occur in a dense, urban context, have many human impacts. The Figueroa Corridor Coalition has provided a useful index of those impacts, and the way that developers of major projects might respond to the difficulty of building in our ever-densifying cities.

The U.S. Supreme Court will decide a case in which Lake Tahoe property owners allege that a temporary building moratorium amounted to an unconstitutional taking. The Supreme Court likely will hear oral arguments this fall in Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 00-1167. The court agreed to consider only one question from the multi-faceted case: "Whether the Court of Appeals properly determined that a temporary moratorium on land development does not constitute a taking of property requiring compensation under the Takings Clause of the United States Constitution?" The Tahoe Sierra Preservation Council has been in litigation against TRPA, a bi-state agency that oversees development in the Tahoe Basin, since the 1980s. But the Preservation Council, which represents about 450 property owners, has lost four separate rounds at the Ninth U.S. Circuit Court of Appeals. Last year, the Ninth Circuit ruled, among other things, that a 32-month building moratorium which TRPA imposed while adopting a regional plan was not a taking. The Ninth Circuit panel called a temporary moratorium a "crucial planning mechanism." Landowners had argued the moratorium was a taking because it denied "all economically beneficial or productive use of land" while it was in effect. The landowners asked for a rehearing before the whole Ninth Circuit. Five judges voted to hear the case, which was not enough for reconsideration. That caused conservative Judge Alex Kozinski to pen a sharp dissent in which he said the three-judge panel that ruled in the case had overturned the First English precedent that established the concept of "temporary takings." First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987). The Ninth Circuit's ruling was a major victory not only for TRPA, but for a large number of government entities that submitted amicus briefs in the case. A contrary ruling would make government agencies liable for imposing a building moratorium, which would harm good planning, the agencies argued.