A property owner that lost a California Environmental Quality Act suit against the City of San Rafael has been told to pay the city for costs incurred recovering emails related to the property and a proposed development project. Although the developer's attorney characterized the email inquiry as a routine Public Records Act request, the First District Court of Appeal clearly thought it was an unnecessary fishing expedition for which the developer should pay. The First District upheld the trial court's award of the expense, even though it was the property owner who prepared the administrative record. Typically, only the side that prepares the administrative record may have its costs covered. But the court found that the property owner's email demands justified the award of costs. Furthermore, the court rejected the landowner's contentions that the city violated CEQA and the housing element law when the city removed the property from its sphere of influence. The decision concludes San Rafael's role in the acrimonious planning of the property, which is owned by St. Vincent's School for Boys, Catholic Charities. Marin County is now considering St. Vincent's development plans. First, some background: St. Vincent's is a 150-year-old school and residential treatment center for troubled teenagers. It owns 835 acres between San Rafael and Novato. The mostly undeveloped property extends from Highway 101 on the west to San Pablo Bay on the east. The property is separated from the San Rafael city limits by the approximately 350-acre Silveira cattle ranch. Since the early 1970s, Marin County has emphasized development in cities along the Highway 101 corridor in order to preserve much of the rest of the county. For years, city and county officials worked jointly on planning the roughly 1,200-acre St. Vincent's/Silveira site, assuming that San Rafael would eventually annex the territory. San Rafael's 1988 general plan designated the properties for 2,100 residential units. Environmentalists, however, have long fought development of the pastoral lands between the freeway and the bay. When Marin County and San Rafael began updating their respective general plans nearly 10 years ago, they created a 16-member advisory task force to recommend use of the St. Vincent's/Silveira properties. In May 2000, the task force recommended 800 to 1,500 units, reduced to 500 units with the purchase of development rights. The city forwarded the recommendation to its general plan task force. In early 2002 — while the city's general plan update was still in process — St. Vincent's and developer Shapell Industries submitted an application for 766 residential units and 120,000 square feet of commercial space. In January 2003, however, the City Council passed a resolution indicating its intent to remove the properties from the city's sphere of influence. Three months later, the City Council voted to deny the St. Vincent's and Shapell application for annexation and prezoning. The council found that, since the task force had presented its recommendation in 2000, planned road improvements had not been made, Highway 101 traffic had worsened, and public opposition to development of the site had grown. Plus, the council noted, the St. Vincent's property was not contiguous to the city. In November 2004, the city adopted an updated general plan that excluded the St. Vincent's and Silveira properties from future annexation. In December of that year, St. Vincent's sued, arguing the city violated CEQA and state planning and zoning laws. In 2006, Marin County Superior Court Judge James Ritchie ruled for the city, and awarded the city $4,000 in filing and copying fees, plus $26,362 for the costs of retrieving emails. St. Vincent's appealed, but got nowhere with a three-judge panel of the First District, Division Three. St. Vincent's did not dispute that the city had incurred costs while retrieving emails. Instead, St. Vincent's argued that the Code of Civil Procedure and the Public Records Act barred the award of costs. St. Vincent's argued that CEQA permits the petitioner (St. Vincent's in this case) to prepare the record of proceedings as a way of controlling the expense of lawsuits. Awarding the city its costs would frustrate CEQA's goal of controlling expenses, St. Vincent's argued. But the court examined the specifics of the case and reached a different conclusion. In response to St. Vincent's initial request, the city turned over documents amounting to 58,000 pages. St. Vincent's found few emails included in the package, so it submitted a broad Public Records Act request for electronic communications stored on city computers. The city eventually turned over a collection of emails, but St. Vincent's was dissatisfied and further demanded documents. Again, the sides went back and forth with St. Vincent's continuing to complain about withheld emails. All the while, the case was moving forward in court. "This record," wrote Alameda County Superior Court Judge Jeffrey Horner, sitting by assignment to the First District, "reflects a total disregard for cost-containment on St. Vincent's part, and a complete abandonment of its statutory duty to ‘strive to at reasonable cost.' After three extensions of time, the city gave St. Vincent's 20 boxes of documents in April 2005. St. Vincent's then subjected the city to a costly and lengthy process of trawling through its entire computer system in response to an extremely broad and unbounded search for ‘all writings evidencing or reflecting communications … relating to or in connection with the St. Vincent's property or the Silveira property.' And St. Vincent's rationale for this? — not because it had identified any ‘gaps' in the voluminous planning documents contained in the 20 boxes, but because it was not satisfied with the number of emails contained in the 20 boxes." Horner then wrote in italics: "It is telling that after all this, St. Vincent's does not mention one single email, obtained in response to its request, which provided information that bolstered any of its claims in this case. Indeed, we wonder what the point of all of it was, because, as noted, St. Vincent's filed its brief before the issue of the emails was ever resolved." St. Vincent's attorney Stephen Kostka, of Bingham McCutchen, said that what the plaintiff did was not out of the ordinary. He said the court's ruling "indicates that perhaps it's a risk" for plaintiffs to assemble the record based on Public Records Act requests. On the merits, St. Vincent's argued that the city improperly removed the St. Vincent's and Silveira properties from the city's sphere on influence in January 2003 without any CEQA review and as an unlawful reaction to a development application. But the court ruled that the January 2003 resolution did not trigger CEQA and that the general plan EIR provided satisfactory review. As to the charge of an improper reaction to an application, the court noted that the city's decision merely maintained the status quo and did not preclude development. St. Vincent's argued that the general plan EIR should have evaluated displacement of development as an impact because the plan would force development to distant locations. The court ruled, " he city specifically addressed the issues of ‘displacement' or ‘leapfrog development' in its response to St. Vincent's comment on the EIR." On the question of the housing element, St. Vincent's contended the city could not identify adequate sites to meet its fair-share obligation without the St. Vincent's and Silveira properties. The court disagreed, noting the city had identified more than enough sites to meet its fair share and had adopted policies to encourage housing development. Potential development of the St. Vincent's and Silveira properties is now entirely within Marin County's hands, said San Rafael Community Development Director Bob Brown. The county's recently adopted comprehensive plan (see CP&DR Local Watch , January 2008 ) permits a total of 221 housing units clustered on 5% of the two properties, said Alex Hines, the county's community development director. The development could be split proportionately between the two properties, he said. The plan also permits other uses, such as an assisted living facility, so long as the uses do not generate more traffic than houses would, Hines said. County supervisors rejected pleas from affordable housing advocates who said the properties could provide a site hundreds of affordable units in a county where the median price is more than $900,000. Instead, county officials emphasized the potential to restore wetlands on the St. Vincent's property. Plus, building a great deal of housing right at sea level makes little sense considering predictions of rising sea level and more severe storms, Hines said. St. Vincent's has not filed an application, but it did endorse the comprehensive plan and the property owner's representatives have been talking with county officials, according to Hines The Case: St. Vincent's School for Boys, Catholic Charities CYO v. City of San Rafael , No. A116690, 2008 C.D.O.S. 3070, 2008 DJDAR 3705. Filed March 18, 2008. Certified for publication in full April 15, 2008 at 2008 DJDAR 5337. The Lawyers: For St. Vincent's: Stephen Kostka, Bingham McCutchen, (925) 937-8000. For the city: Clark Guinan, city attorney's office, (415) 485-3080.

The state Supreme Court has accepted a case involving the baseline for an environmental impact report of a Southern California oil refinery project. The decision to accept the case means the state high court now has four California Environmental Quality Act (CEQA) cases pending. In the latest case, the Second District Court of Appeal ruled that actual emissions from ConocoPhillip's Los Angeles Refinery should serve as the baseline for measuring impact of proposed refinery modifications. The court threw out a South Coast Air Quality Management District EIR that instead used permitted emission levels as the baseline, even though actual emissions were less than half the amount permitted (see CP&DR Legal Digest , March 2008 ). Although a line of cases indicates that permitted levels would be the proper baseline for an EIR, the court said those cases were inapplicable because they involved permitted levels that had been subject to environmental review. The refinery's permitted emissions had not undergone prior CEQA review. The case is Communities for a Better Environment v. South Coast Air Quality Management District , No. S161190. Due for a decision by July 1 is a case involving the EIR for the Cal-Fed Bay-Delta project. The Third District Court of Appeal in 2005 ruled the document inadequate for a number of reasons, including the document's lack of an alternative that did not contemplate a halt to future state population growth (see CP&DR Legal Digest , November 2005 ). The case, Bay-Delta Coordinated Proceedings , No. S138974, was argued on April 2. One of the other pending cases has been heavily briefed and appears ready for oral argument. That case, Save Tara v. City of West Hollywood , No. S151402), concerns whether or not the city's signing of a conditional agreement with a developer to sell a city-owned property constituted a "project" for CEQA purposes (see CP&DR Legal Digest , April 2007 ). An appellate court said the conditional agreement should have undergone environmental review, even though it required CEQA compliance prior to development. The final CEQA case before the state Supreme Court concerns whether the statute of limitations ran out before opponents of a proposed Wal-Mart Supercenter in Stockton filed a lawsuit challenging the city's lack of environmental review for the project. That case is Citizens for Sensible Planning v. City of Stockton , No. S159690 (see CP&DR Local Watch , February 2008).

An environmental impact report is necessary for a 120-unit senior housing facility in the City of Grand Terrace, the Fourth District Court of Appeal has ruled. The unanimous three-judge appellate panel upheld a trial court judge's ruling that a mitigated negative declaration for the project was inadequate. The court found that housing density, building height and noise were all potential impacts that needed additional study. The site in question is six acres in Grand Terrace, which is located between Riverside and San Bernardino. In 2004, the city purchased the undeveloped land with the intent of developing senior housing, as the city's senior center is next door. The property was zoned for single-family residential development of up to five units per acre, although a 2003 park master plan contemplated using the property for a park. The city signed an agreement with Corporation for Better Housing to develop the site. In September 2005, the city approved a specific plan for the site. The specific plan included a general plan amendment, a rezoning to medium-high density residential allowing up 20 units per acre, approval of 120 units in a mixed two- and three-story building on a 2-acre portion of the site, and a 4-acre park. The city also certified a mitigated negative declaration that said all environmental impacts could be reduced to insignificant levels with project mitigations. The project had been unpopular with residents of the single-family neighborhood bordering the site, so not surprisingly they organized as Citizens for Responsible and Open Government and sued. In mid-2006, San Bernardino County Superior Court Judge John Wade ruled that Citizens had made a fair argument that increased population density, neighborhood incompatibility and noise were potential environmental effects, and he ordered preparation of an EIR. On appeal, Better Housing argued Citizens had not met the fair argument standard, which is a relatively low bar for plaintiffs to cross. Regarding population density, Better Housing contended the average density was 20 units per acre — not 60 — because the entire 6-acre site needed to be considered. Plus, Better Housing argued the opponents had not identified significant impacts that would not be mitigated by approved measures such as screening and setbacks, minimizing outside lighting glare, the provision of transit, and compliance with the city's noise ordinance. Citizens argued that 60 units an acre was the proper characterization because development would occur on only 2 acres. Plus, the opponents pointed out, the general plan limits density to 12 units per acre. The Fourth District said Better Housing presented "a disingenuous method of evaluating the project density." The court noted the specific plan itself refers to "120 senior-oriented villas and related parking area on 2.05 acres." And even at 20 units an acre, the court ruled, the project conflicts with the general plan's limitation of 12 units per acre. An EIR is necessary to evaluate "changes to the physical and aesthetic conditions and character of the surrounding low-density, single-family residential community," Justice Barton Gaut wrote for the court. On building height, Better Housing pointed out that it eliminated a third story on one wing closest to houses and that the third story elsewhere was only 6 to 8 feet higher than an adjacent elementary school. Still, the court found the project "uncharacteristic of the surrounding neighborhood." "The impact creates a change in the aesthetic environment and interferes with scenic views of the public in general by introducing into the primarily single-family residential neighborhood a large, high-density residential building, which includes mixed two-story and three-story structures," Gaut wrote. "Aesthetic issues, such as public views, ‘are properly studied in an EIR to assess the impacts of a project,'" Gaut continued, citing Mira Mar Mobile Community v. City of Oceanside , (2004) 119 Cal.App.4th 477, 492 (see CP&DR Legal Digest , July 2004). Regarding noise, opponents argued that the project's individual wall-mounted air conditioning units would impact the quiet neighborhood. Better Homes pointed to mitigations, such limiting air conditioners near neighboring residences to 20 and complying with the noise ordinance. But the court said the evidence supported opponents' contention and concluded, "There is no evidence of any measures to be taken that would insure that the noise standards would be effectively monitored and enforced." In an unpublished portion of the opinion, the Fourth District upheld the trial court's award of $30,000 in attorney's fees to Citizens. The Case: Citizens for Responsible and Open Government v. City of Grand Terrace , No. E041493, 08 C.D.O.S. 2960, 2008 DJDAR 3615. Filed February 21, 2008. Certified for partial publication March 13, 2008. The Lawyers: For Citizens: Raymond W. Johnson, Johnson & Sedlack, (951) 506-9925. For Corporation for Better Housing: John C. Nolan, Gresham, Savage, Nolan & Tilden, (951) 684-2171.

Even on a typical day, Las Vegas often seems like an extension of Los Angeles. Throngs of tourists arrive via car on the I-15 each day, and it's not uncommon to walk down the Strip and run into people you know. This week, however, the American Planning Association conference – being conducted at two hotels along the Strip – has often seemed like an extension of Los Angeles as well. Not only is the conference flooded with planners from L.A., but there are so many sessions on L.A. that it could become a whole separate track! Prime-time on the Los Angeles network was a panel Monday featuring Gail Goldberg and Bruce McClendon, who talked about the challenges they've faced in the last two years as the new city and county planning directors, respectively. Goldberg, who had spent her entire career in San Diego before coming to L.A., admitted being overwhelmed when she first arrived. "It took me two weeks to realize L.A. is a humungous city. San Diego, much as I love it, is a baby city," she said. The City of Los Angeles is 450 square miles and 4 million people, while L.A. County is 4,000 miles with 10 million people, including 1 million in the unincorporated area. McClendon, on the other hand, said that his longtime views about how to approach a planning challenge have been reaffirmed at Los Angeles County – including the idea of increasing public visibility and improving the reputation of planning. He told the story of buying something in the downtown Macy's while wearing his employee badge with his title on it. "The saleswoman said, ‘My God, you mean this place is planned?', she exclaimed," McClendon recalled. "Our biggest public challenge has been, how can we market planning in L.A.?" Both planning directors, however, said that they have been fortunate to walk in during a "window of opportunity" that they can best take advantage of by focusing on the creation of community plans for specific neighborhoods because their jurisdictions are so big. Since her arrival two years ago, Goldberg has managed to get significant budget and staffing increases – in spite of a financial crisis that has L.A. cutting almost every other department except for public safety. She's obtained a commitment from the politicians to update each of the 36 community plans on a three-year cycle, meaning that the city will initiate 12 community plan updates each year. The reason for her success? She claims it's because the old system of the city councilmembers interposing themselves project by project isn't working anymore, and developers, councilmembers, and neighborhood groups would rather have plans to fall back on. She also said the new plans will be meatier than the 15-20 page community plans currently in existence. "We will never stop planning," she said. Meanwhile, McClendon said that he hopes to devote more attention to community plans in L.A. County's urban unincorporated areas as well. The County has been updating its general plan for the first time since 1985, but, he said, community plans will be more important going forward. – Bill Fulton

Today, as planners, we are constantly inundated with new ideas and theories, and nowhere can this become more of a reality than a planning conference in Las Vegas. This year's national APA Conference is being held between the Paris and Bally's casinos, quintessential locations for gambling, shopping, dining, nightlife, and, well, apparently planning conferences. Where else can conference sessions be held in banquet halls decorated like extravagant French parlors? As a recent graduate of a planning program and a new practicing planner with Solimar, I found myself caught somewhere between wanting to ingest everything I can about planning and going into Spring Break mode and imbibing in a literal sense. But who says you can't be a professional planner and still have fun in Vegas? My old classmates, planning grad students who are generally good natured, remarked after their forays that the strip was "exhausting," "awful," and "it embodies everything I love to hate about cities." After less than 24 hours in Sin City — not to be confused with a more beloved impetus for modern planning tools, Sims City — they were all "over it." But despite sensory overload, they still managed to learn how not to let their own cherished neighborhoods become epicenters of all things undesirable. But along with these complaints, there were also planning buzzwords like "champion projects," "green infrastructure," and "urban agriculture." I ran into a colleague who is a civil engineer who admitted to coming to the conference primarily to become well-versed in planner-ease so that he could connect with clients who find sustainable development desirable. It seems as if modern planning concepts have become less cliché and more mainstream. Even cities in the Rustbelt are confronting their demons by planning for a shrinking population in a sustainable manner, rather than fighting the tides of change, by incorporating ideas like, well, green infrastructure and urban agriculture. In Vegas, climate change was not the featured topic. Rather, urban revitalization and how to incorporate green infrastructure or open space into urban centers was debated and discussed. I learned how energy codes are becoming stand-alone guidance documents for cities looking to reduce carbon emissions and improve prosperity and quality of life instead of being referenced in general plans per the State of California mandate. During two sessions, I learned more about my new urban neighbor on the West Coast, L.A., than I had in the 10 months since I'd moved to Ventura. Downtown L.A. is getting a facelift thanks to city planners like Jane Blumenfeld who have orchestrated the adoption of implementation tools like the adaptive reuse ordinance. Another city that had a strong presence at the conference was my hometown of Atlanta. Not only is Atlanta now hip, it also has a green thumb. As projects come online like the Beltline, the City will be prepared to take on a growing population that desires housing choices like mixed-income downtown condos and apartments near transit and green space, instead of the typical single-family house on a cul-de-sac in the suburbs. But the question remains: Who will pay for these improvements to our beloved urban centers? Obviously, someone has to pay for the regeneration of decaying urban corridors, the improvement of transit corridors, and retrofitting the suburbs to be more like our cities. But that's where we as planners come into play, aiding in public-private partnerships that can leverage the resources necessary to carry out the ideas and theories that we all are willing to travel to Las Vegas to hear. So I say come join us in Las Vegas, where "transect" is not a four-letter word, at least for a few more days. – Jessica Daniels

The City of Baldwin Park is pressing forward with an extremely ambitious redevelopment project that would convert the present downtown area of mostly single story commercial structures and modest houses into a very high-density, mixed-use district adjacent to a Metrolink station. However, the city's extensive planning and a deal with a developer may be for naught if state voters approve eminent domain restrictions that will appear on the June ballot. City officials say the project would bring much needed investment and wealth to Baldwin Park, a San Gabriel Valley suburb that for years was best known as the corporate home of the In-N-Out Burger chain. (In-N-Out has since moved to Irvine.) But local detractors of the downtown project have begun organizing protests, and managers of the statewide campaign for Proposition 98, which would restrict the use of eminent domain, are citing the Baldwin Park project as a prime example of the government activity they want to halt. Although the project is still somewhat ill-defined, the basics are these: The Baldwin Park Community Development Commission (the city's redevelopment agency) would acquire 125 acres in the middle of town, with master developer Bisno Development funding the acquisitions and any resident and business relocation costs. Bisno would then receive the property and develop it in phases over 15 years with 8,000 housing units, 3 million square feet of commercial space, 750,000 square feet of retail and entertainment uses, a 300-room hotel and a charter school. Public improvements would include a pedestrian promenade, a lagoon and extensive upgrades to the existing Metrolink station. "The project is presented pretty much as a transit-oriented development," explained Marc Castagnola, the community development director who arrived in Baldwin Park in mid-process. "The intent is that the people who are going to live downtown will be able to walk just a block or two and ride the transit." There is a significant obstacle: The 125-acre redevelopment site that centers around the intersection of Ramona Boulevard, Maine Avenue and Pacific Avenue is broken into about 330 developed parcels, most of which are privately owned. Opponents estimate the redevelopment project would displace about 100 households and 300 businesses. "We're just not good enough," huffed Ken Woods, who owns a 54-year-old sewing machine repair and embroidery business in the redevelopment project area. "They don't want our kind of people — working blue collar people." Woods has helped organize a local group called Community Alliance for Redevelopment Accountability (CARA) that started making its opposition to the project known last fall. He does not deny that the area "needs sprucing up." But he and others argue that the city is moving too fast on a plan that lacks local support. "We keep saying back off, get us involved," Woods said. "They want to bulldoze 125 acres and start over." After soliciting proposals from developers, the City Council signed an agreement with Los Angeles-based Bisno in late 2006. Since then, the city, Bisno and consultants have been working simultaneously on a general plan amendment, a specific plan and an environmental impact report, according to Castagnola. A draft EIR is expected to be released this month, with a final EIR and the other documents to follow in a few months, he said. The specific plan "will look a lot like a zoning code," Castagnola said. The specific plan will set land uses and densities, establish architectural and color standards, outline a landscape palate, and provide an open space design, he said. The specific plan will also contain the development entitlements, meaning there would be only minor review of follow-up projects that comply with the specific plan. Castagnola said the redevelopment agency would provide "no monetary subsidies" to Bisno for the project other than making available the 20% housing set-aside fund for affordable units. However, the agreement between the Community Development Commission and Bisno states that if the developer's cost of acquiring land and relocating businesses and residents tops an average of $2 million per acre, the Commission will reimburse Bisno the difference with tax increment. The agreement pledges up to half of the project area's tax increment to make up the difference. In January 2007, CEO Robert Bisno sent the city a letter urging a fast planning process that would be complete before a vote on any restrictive initiative. At the time, the Howard Jarvis Taxpayers Association was discussing an initiative that eventually turned into Proposition 98, a measure that would prevent the taking of private property from one owner for transfer to another private entity. The rival Proposition 99 would prevent the taking of owner-occupied single-family houses for transfer to another private owner. Clearly, the city is not going to beat the June 3 election date. The city's inability — or unwillingness — to rush the process to beat election day is good, said Marko Mlikotin, a spokesman for the Proposition 98 campaign. That is, it's good for the community and good for the campaign, which has begun featuring Baldwin Park as exhibit A of redevelopment abuse. "You have your greedy developer. You have a dispassionate city council. You're going to have hundreds of people homeless," Mlikotin recited. In recent months, public meetings in Baldwin Park, a 70% Latino city of 81,000 people, have grown more and more tense. Opponents of the downtown project have put the City Council on the defensive and have staged street protests. Councilmembers recently refused to speak to a Los Angeles Business Journal reporter, and Mayor Manuel Lopez did not return messages from CP&DR . Late last year, Lopez told the San Gabriel Valley Tribune that opponents were using misinformation and scare tactics. "We don't even know if this project is even going to occur or not," Lopez told the newspaper. Woods said that if the project goes forward, he'll close his business rather than try to relocate. Ironically, he is in his present location after losing his commercial building during the late 1980s to an earlier redevelopment project that brought a supermarket and other stores to the downtown area. "Now they are going to tear down the area that they redeveloped in the first place," Woods said. Contacts: Marc Castagnola, City of Baldwin Park, (626) 813-5253. Ken Woods, Community Alliance for Redevelopment Accountability, (626) 962-5298. Marko Mlikotin, California Alliance to Protect Private Property Rights, (916) 444-8781. Bisno Development project website: www.baldwinparkfuture.com/index.php

Dave Brown of Calabasas is this year's recipient of the American Planning Association's leadership award for a planning advocate. A member of the Santa Monica Mountains Conservancy advisory committee since 1985 and a Calabasas planning commissioner since 1992, Brown has been involved in land use and natural resources issues in the area since the 1970s. He received the award in part for his "overlooked but instrumental" role in creating the 153,000-acre Santa Monica Mountains National Recreation Area. For 45 years he has been a history professor at Los Angeles Valley College, where he still teaches two classes. Brown spoke with CP&DR Editor Paul Shigley in April. CP&DR : Congratulations on the APA award. Brown: It surprised me. I think there are a lot of other people who deserve it more. I'd trade it all to conserve some more land. CP&DR : How did you get involved in land use planning? Brown: I got involved in planning — not planning directly so much — in midlife, I guess primarily out of an interest in saving and protecting some of the natural beauty and habitat in the area. I first really got interested when I got involved with Malibu Creek State Park. I got some coaching from one guy who was a county planner. The object here was basically to protect the setting of the state park, the area around it, from massive development so that the park itself would remain a place of natural beauty. I first got started working with state parks to determine what areas needed to be purchased to protect the state park. That was 30 years ago at least. How to protect a place like that that is under constant urban pressure is what got me thinking about planning. CP&DR : Did you move from your activities at the state park to the Santa Monica Mountains Conservancy? Brown: I got involved with the Coastal Commission, whose jurisdiction extends five miles inland in the Santa Monica Mountains. The Coastal Act is a very comprehensive type of plan. I learned a fair amount about planning from reading the Coastal Act , and attending Coastal Commission meetings and getting up and speaking. The conservancy kind of came logically out of that. Actually, the Santa Monica Mountains Comprehensive Planning Commission came first. That lasted four years. It was supposed to do a plan for the Santa Monica Mountains. It never quite got that far because there wasn't political support. The conservancy grew out of the Comprehensive Planning Commission as the next best alternative to having land use authority. I was appointed to their advisory committee in 1985 and I've been on it ever since. Los Angeles County was almost the antithesis of good planning until about 10 or 15 years ago. When the county's political climate began to change, I was one of a number of people appointed to a citizens committee set up to redo the plan for the area where I live. This area would have been north of Malibu and west of the SF Valley. I was eventually elected chair of that committee. We did the north area plan with the cooperation of Supervisor Yaroslavsky. That was my first effort into really getting involved in land use planning. In 1991, the city of Calabasas incorporated and I was appointed to the Planning Commission. I've been on it every since. CP&DR : Are the Santa Monica Mountains still experiencing urban growth pressures? Brown: Yes. It's not just urban growth pressures. It isn't so much any longer big housing tracts. In the '70s that was still a threat — large hillsides getting scraped clean, and cut and fill. The terrain is so rugged that big developers have given up that sort of thing. What we've had in the Santa Monica Mountains is parceling, and I finally figured out what was really going on. People were buying acreage lots, and being allowed by the county to divide them but not being required to put in the necessary improvements. They could buy a 40-acre parcel and split it into 10-acre parcels without providing much of anything in the way of improvements and then leaving the buyer to figure out what to do with a parcel that did not have adequate street access or anything. A lot of that was done in the Santa Monica Mountains. It messed up a lot of beautiful areas and it messed up a lot of areas that could have been developed. It was planning at its worst in an area that is subject to an extreme fire hazard. One of the things that I've concluded over the years is that we desperately need to plan for fires. When I first started saying that, people just said, ‘What can you do about it?' You can do a lot. If we would pay more attention to setting back a house from the lip of steep slopes, rather than trying to maximize the view, for example, we could design the house to minimize that risk. We've never done that. I'm hoping in my last years of these efforts to get more people thinking in those terms. You can reduce the fire loss with good planning. … There's a danger when people get out of touch with the natural forces around them. They make decisions that endanger their life and property. CP&DR : Do your activities with the conservancy carry over to the city's Planning Commission? Brown: They interface to some extent. I think I've broadened my interest in planning beyond just protecting the scenic environment. Probably the most frustrating thing you can do in the L.A. area is try to protect something in its natural state, and yet we've done it. We've left a legacy of protecting landscapes that hopefully will bring joy to people for decades, assuming we take care of it. In the 30 years I've been involved in this, there has really been a change among citizens that some pieces of land are not made to be cut-and-fill pads. Maybe you should also pay attention to areas of natural beauty with the assumption that someday people will appreciate that. I think of those guys who sat around Yellowstone 100 years ago who decided maybe it would be nice to preserve this beauty for future generations. CP&DR : What can planners learn from a history professor? Brown What you can learn from history is not to make the same mistakes you've made before. We don't always understand the consequences of what we're doing. If we study the past, we would learn better how to plan for the future.

I hate to be repetitious, but sometimes in the column-writing business it's inevitable. Eighteen months ago, I wrote in this space that the debate over Proposition 90 came down to two unfortunately simpleminded campaign slogans – "protect our homes" or "taxpayer trap." Proposition 90 would have greatly restricted the use of eminent domain – hence it would have protected our homes. But it also would have required the government to compensate landowners for virtually any downzoning – hence the taxpayer trip. "Taxpayer trap" won, but not by much. So now we've got Proposition 98 on the June ballot – a watered-down and slightly sideways version of Proposition 90. And for good measure we've got Proposition 99 – a countermeasure put forth by local government organizations that would restrict eminent domain, but only in the case of owner-occupied single-family homes. In campaign terms, it doesn't look much different than it did before. On the one hand, we've got Proposition 98 – the "Protect Renters, Protect Homes" initiative or the "Hidden Agenda Initiative," depending on your point of view. On the other hand, we've got Proposition 99 – the "Homeowner Protection Act" to its supporters. So far, opponents haven't come out with their pithy three-word negative characterization. They've fallen back on the trusty old "Don't Be Fooled" approach. And the campaign rhetoric will likely be pretty shrill and pervasive, because these two propositions will be the only measures on the June ballot – thanks in large part to the fact that California moved its presidential primary (and hence some other ballot measures) from June to February. The whole reason this issue is even on the ballot at all in California is because of the U.S. Supreme Court's ruling in 2005 in Kelo v. City of New London . On a 5-4 vote, with Sacramento native Anthony Kennedy as the swing vote, the court upheld a local government's power to use eminent domain for "economic development" purposes. That is, the court ruled the government has the power to take property via eminent domain from one private owner and convey that property to another private owner. Kelo didn't change the state of the law in California, but it provided a political opening for property rights advocates here and elsewhere. Proposition 90 came pretty close to passing, setting up a rematch on the ballot this year. Underneath all the typical political rhetoric rehashed above, what do we really have? Three things: 1. A weaker property rights initiative that does not address the regulatory takings issue. 2. A property rights initiative that – unlike its predecessor – seeks to outlaw rent control. 3. A countermeasure that seeks to limit the damage. Of these three things, only the third is not surprising. The local government organizations got caught flatfooted during the 2006 election, when only a last-minute media blitz – one that was hard to place on TV, given the political competition (see CP&DR Insight , October 2006 ) – averted the passage of Proposition 90. In putting forth Proposition 99, the local government establishment is throwing a bone to the other side. OK, they're saying, we recognize eminent domain has to be limited, so let's limit that limitation as much as possible. The first two items on the list above, however, are something of a surprise, especially the interplay between the two. A pull-back from Proposition 90's aggressive position on land use regulations was probably inevitable if the property rights crowd wanted to broaden its base of support. And rent control is always a favorite target of landowners, even though it affects only a small percentage of rental properties in the state. The addition of rent control – which was not a part of Proposition 90 – augmented Proposition 98's fundraising base. Yet trading land use regulation for rent control as a target doesn't seem to have done the property rights advocates much good. Proposition 98 didn't win the support of the state Chamber of Commerce. And while Proposition 98 popped open the landlord fundraising base, it has fueled opposition from a wide variety of tenant groups. Chief among these are the state's mobile home residents — a mostly older and highly organized group of folks who typically own the "coach" in which they live but not the land underneath it, on which they must pay rent. In dozens of communities throughout the state (including the one where I serve as an elected official), the city government has passed a rent control ordinance restricting the land rents that mobile home park owners charge the residents. The archives of CP&DR are littered with the failed attempts of mobile home park owners to take down these rent control ordinances. So it's not surprising that mobile home park owners are glomming onto Proposition 98 as the solution to their long-time rent control problem. They are important donors to the Yes on 98/No on 99 campaign. In trading the regulatory takings issue for the rent control issue, the property rights advocates clearly traded a large group of landowner and developer supporters who each had a little to gain for a much smaller group of landlords who stand to obtain enormous gains if Proposition 98 passes. Whether that campaign can come up with a winning message, however, remains to be seen. The No on 98/Yes on 99 campaign is engaging in more than its fair share of hyperbole, arguing not only that landlords would win and renters would lose, but also that water projects, land use planning and environmental protection are all at risk, which is stretching the truth at best. But that's nothing compared with the stretches coming out of the Yes on 98/No on 99 campaign. As noted earlier, the advocates have not yet come up with a single, pithy campaign slogan against 99. They are using familiar themes – arguing, for example, that the League of California Cities is not segregating membership funds (which are tax revenues) from Proposition 99 campaign funds. The most amusing argument is that Proposition 99 opens a "back door" to a split roll – a property tax assessment system that would circumvent Proposition 13 by assessing commercial property at a higher rate than residential property. How? By setting the "dangerous precedent" of treating owner-occupied, single-family homes differently from other properties. There is a good argument to be made that houses should not be treated differently because they are rented by the occupants rather than owned. But it is unlikely that Proposition 99 will revise Proposition 13 to allow split roll. Nor does it seem like this is a winning argument in June. But it's probably a pretty good fundraising strategy because the most likely donors to Proposition 98 are income property owners who would fork out big bucks to fight a split roll. The bottom line: Proposition 98 would not have nearly the wide-ranging impact on land use planning that Proposition 90 would have had – even though it would outlaw rent control. And it is fair to say that the Proposition 98 folks still have not figured out their message, even though we have only a few weeks to go.

A bill that would permit the City of Industry to extend its redevelopment plan's effectiveness for 10 years appears to have died when the bill's author, Sen. Gloria Romero (D-East Los Angeles), pulled SB 1771 before a scheduled mid-April committee hearing. Rumors had circulated at the Capitol for months that Industry sought to extend its redevelopment powers without having to make updated blight findings, as required by current law. Industry reportedly sought the extension to help fund construction of a professional football stadium on 600 acres owned by developer Ed Roski Jr. Industry officials and Roski have denied there is any connection between redevelopment and the stadium. However, the day after the Senate Local Government Committee was scheduled to consider SB 1771, Roski revealed stadium plans at a press conference. Originally, SB 1771 was a Sen. Alex Padilla (D-San Fernando Valley) bill concerning credit counseling for homeowners. But the legislation was overhauled on April 10 to permit Industry's redevelopment activities to continue for an additional 10 years. Without the extension, Industry would have to start shutting down redevelopment activities in about four years. Industry's redevelopment agency had revenues of $98 million during the 2005-06 fiscal year, according to the state controller's office. An unusually long bill analysis for the Senate Local Government Committee raised questions about the legislation, which would permit Industry to sidestep existing legal provisions regarding blight findings and funding for affordable housing. "SB 1771 uncouples the half-century-old policy consensus that requires local officials to document blight before they can get their hands on the property tax revenues that ordinarily go to other local governments, especially school districts," the analysis said. In a letter to the committee, Christine Minnehan, a lobbyist for the Western Center on Law and Poverty, wrote, "Current law permits all activities sought in SB 1771 if blight — the justification for redevelopment — remains. SB 1771 eviscerates existing law and invites more public outcry against redevelopment." The football stadium is proposed for 600 acres of vacant land at the junction of the 60 and 57 freeways, a location where Industry approved Roski's proposed 4.8 million-square-foot industrial development in 2004. That project has not gone forward. Now Roski proposes a 75,000-seat stadium, a 5,000-seat concert venue, 1.5 million square feet of office buildings and nearly a 1 million square feet of retail shops and restaurants. The site is not within a redevelopment project area.

A hypothetical or speculative use of property is not a proper basis for determining damages caused by a city's temporary construction easement, the First District Court of Appeal has ruled. The unanimous three-judge appellate panel overturned a jury's decision to award a Fremont homeowner $195,000 in temporary severance damages. The First District ruled that the trial court judge improperly permitted the jury to consider compensation for hypothetical — rather than actual — injuries. Although the First District appeared simply to uphold the decades-old principle that property owners are not entitled to damages for hypothetical loses, the Fremont homeowner has asked the state Supreme Court to overturn the appellate panel. The property owners, George and Elizabeth Fisher, have owned a single-family house on Washington Boulevard for 20 years. In 2004, the City of Fremont offered the Fisher's $14,250 for a temporary construction easement (TCE) on 1,873 square feet of the Fisher's 6,846-square foot lot. The city needed the temporary easement for construction of the Washington Boulevard/Paseo Padre Parkway grade separation project. The city and the Fishers could not reach agreement, so the city filed an eminent domain lawsuit later that year and sought immediate possession of the property rights, which the Alameda County Superior Court granted in January 2005. In July 2006, the city amended its eminent domain suit to seek a small permanent slope easement and extend the temporary construction easement until the end of 2009. Both sides made offers but they could not reach agreement. The Fishers demanded $320,000; the city offered $100,500, plus $1,334 a month from August 31, 2007 until completion of the project. At the trial to determine the value of the taking, Superior Court Judge Harry Sheppard permitted the Fishers' real estate appraiser, Kurt Reitman, to testify that because a temporary construction easement encumbered the property, it could be sold only at a deep discount. Reitman testified that the highest and best use of the property was to demolish the current house and build a new one, which would not be possible with the temporary construction easement in place. Reitman pegged damages from the temporary easement at $207,664. The city's appraiser said the temporary construction easement caused no damage and would actually be used for only a short period at the end of the project so the city could connect the Fishers' driveway to the newly elevated Washington Boulevard. Ultimately, the jury awarded the Fishers $403,513 — $84,352 as fair market value of the temporary construction easement, $195,413 for temporary severance damages caused by the temporary easement, $15,500 as fair market value of the permanent slope easement, and $108,248 for permanent severance damages. Judge Sheppard went on to award the Fishers $125,400 in attorney's fees, $61,696 in expert witness fees and $39,927 for prevailing against the city's motions for either a new trial or a reversal of the verdict on temporary severance damages. On the city's appeal, the case went to the First District, Division Two. In its opinion reversing the lower court, the First District thoroughly reviewed the state Supreme Court's holding in Metropolitan Water Dist. of So. California v. Campus Crusade for Christ, Inc. , (2007) 41 Cal.4th 954. In that case, Campus Crusade sought compensation for seven years of construction by the water district on a pipeline crossing Campus Crusade's property. The court ruled that Campus Crusade was entitled to compensation for the construction period only if Campus Crusade could identify a specific loss (see CP&DR Legal Digest , September 2007 ). In the Fremont case, the property owners presented no evidence that the temporary construction easement would interfere with their planned or intended use of the property. Reitman said that he had no information indicating the Fishers wanted to sell or develop their property, and the Fishers in fact argued that their intentions did not matter. They were wrong, the First District ruled. " he Supreme Court in Metropolitan Water makes clear that the property owner must establish a substantial impairment to the property owner's actual intended use of the property during the period of the temporary encumbrance," Justice James Lambden wrote. "Otherwise, there is no specific loss attributable to the temporary encumbrance." The Fishers, however, "completely failed to identify any actual loss attributable to the delay caused by the TCE because they produced no evidence that they tried to or planned to sell the property during the five years the property was burdened by the TCE. They produced no evidence that the TCE interfered with their actual use of their current single-family home," Lambden wrote. The court reversed the $195,413 award for temporary severance damages, and directed the trial court judge to reconsider the award of litigation expenses to the Fishers. The state Supreme Court has not yet decided whether to accept the case. The Case: City of Fremont v. Fisher , No. A116935, 08 C.D.O.S. 2438, 2008 DJDAR 3032. Filed February 28, 2008. The Lawyers: For the city: John H. Erickson, Erickson, Beasley & Hewitt, (510) 839-3448. For Fisher: Heidi Timken, Timken, Johnson & Hwang, (925) 945-6211.

In a potentially important decision for environmental advocates, the Third District Court of Appeal has ruled that environmental groups are eligible for attorney's fees in a Bay-Delta water lawsuit, even though public agencies won similar litigation. The success of the Central Delta Water Agency and the South Delta Water Agency in their lawsuit against the State Water Resources Control Board does not mean the environmentalists were automatically barred from receiving attorney's fees in a similar suit against the state, the court ruled. "That the success they achieved was the same success the Central Delta parties achieved does not justify a denial of fee award under the private attorney general theory," the court ruled. In 1995, the State Water Resources Control Board (SWRCB) adopted the Bay-Delta plan that, among other things, established minimum monthly average flow rates on the San Joaquin River at Vernalis, a few miles west of Modesto. The flow rates were intended to help double the population of Chinook salmon in the river. A few years later, the board completed a water rights proceeding (called Decision 1641) that allocated responsibility for meeting the flow rates in the Bay-Delta plan. Decision 1641 essentially determined how the salmon's needs would impact water rights holders. In 2000, the two Delta water agencies sued the SWRCB over Decision 1641, arguing it conflicted with the Vernalis flow objectives in the 1995 plan. At about the same time, the Golden Gate Audubon Society and a collection of other environmental groups also sued the board, arguing that Decision 1641 was illegal and "ignored" the salmon-doubling objective in the 1995 plan. A trial court ruled for the water agencies and directed the board to comply with the Vernalis flow objectives. However, the court ruled against the environmentalists. After numerous parties appealed, the Third District ruled that the SWRCB had failed to implement the 1995 Bay-Delta plan and that Decision 1641 was effectively an improper amendment of the plan. The appellate court agreed with the environmentalists' contentions regarding minimum flows necessary to double the salmon population. The court directed the board to conduct further administrative proceedings either to assign responsibility for meeting the 1995 flow objective, or to modify the objective ( State Water Resources Control Bd. Cases , (2006) 136 Cal.App.4th 674). Back at the trial court, Central Delta Water Agency, South Delta Water Agency and the environmental groups all sought attorney's fees. Sacramento County Superior Court Judge Roland Candee granted the water agencies 40% of their fee request based on the "partial and limited success" of their litigation. Judge Candee rejected the environmentalists' request, concluding the Audubon Society and other organizations had not proven their role was necessary in light of the water agencies' victory. The environmentalists appealed, and the Third District overturned the lower court. At issue was interpretation of the "private attorney general doctrine" in Code of Civil Procedure § 1021.5. The statute is intended to provide a bounty for pursuing public interest litigation. In 1993, the Legislature amended the law so that a public entity may receive attorney's fees. "In the wake of the 1993 amendment, the purpose of § 1021.5 is to encourage parties — whether public or private — who do not necessarily have adequate financial resources to do so to pursue important public interest litigation for the benefit of the public at large, or at least for the benefit of more than just themselves or their constituents," Justice Ronald Robie explained in the Third District's unanimous decision. There was no doubt the litigation was a private attorney general action because, in fact, the attorney general's office was defending the SWRCB, the court noted. Judge Candee, however, refused to grant the environmentalists attorney's fees because the water agencies were enforcing the same public interest. The Third District, though, said it was impossible under the statute to call either the water agencies' or the environmentalists' roles in the litigation superfluous. " e conclude that where (as here) a public entity receives fees under § 1021.5 for succeeding in important public interest litigation, a private party who succeeded alongside that public entity cannot be denied a similar award of fees simply because the success might have been achieved by the public entity acting alone," Robie wrote. The Third District sent the case back the trial court to determine the amount of fees the Audubon Society and the other environmental groups may recover. The Case: State Water Resources Control Board Cases , No. C055104, 08 C.D.O.S. 3461, 2008 DJDAR 4212. Filed March 26, 2008. The Lawyers: For SWRCB: Mark Poole, state attorney general's office, (415) 703-5582. For the Golden Gate Audubon Society: Stephan Volker, (510) 496-0600.

OK, so everybody's bought into the idea that Sacramento's Blueprint process is a national model of regional smart growth planning. But what happens next in this cooler-than-we-ever-imagined metropolis? Depending on who you talk to the answer is: • Continue to play the "carbon card" for all its worth – while resisting the idea of city carbon budgets. • Try to create an "enlivened democracy" to match the regional vision. • Use public dialogue to have a more "real" discussion about the risks involved in daily life. • Identify the emerging "walkable urban neighborhoods" and get ahead of the curve in investing in them. • And, hey – how about building more stuff around those light-rail stations? These were but a few of the many ideas kicked around Friday at a forum on "the sustainable region" sponsored by the Sacramento section of the American Planning Association's California Chapter . (I was also one of the panelists at this event.) Blueprint mastermind Mike McKeever, executive director of the Sacramento Area Council of Governments , said flat-out: "We're certainly going to continue to play offense." And he said the organization would continue to use reduced carbon emissions as a policy lever to promote implementation of the Blueprint. Asked by architect Bruce Race to envision how life in 2050 would be different than now – when, under AB 32, Californians will have to live with a carbon footprint only 5% the size of today's – McKeever responded by talking about democracy rather than the built environment. He said the Blueprint succeeded because "ordinary folks" participated in shaping the smart growth vision underlying the Blueprint and he predicted that a lively democracy will be required to implement it. West Sacramento Mayor Christopher Cabaldon said that local governments don't do a good job of truly discussing the relative risk of different development patterns and, as a result, often oppose smart growth because of people's fears. "We need to be able to assess whether somebody's more likely to get in an accident driving their daughter to school than the daughter is likely to be abducted walking three blocks to the school," he said. (Cabaldon is currently running for the Assembly.) In a keynote lunch speech promoting his new book, The Option of Urbanism , developer and real estate analyst Christopher Leinberger said Sacramento needs to be more aggressive in promoting "walkable urban neighborhoods," especially around light-rail stops. Leinberger recently came out with a Brookings paper that tries to identify the "walkable urban neighborhoods" in the 30 largest metro areas in the nation. Practically everybody – including bloggers on this web site – has criticized Leinberger's methodology. But he made some good points in his talk. He said the region should be especially aggressive in predicting and planning for where the new "walkable urban neighborhoods" will emerge over the next 10 to 20 years. "You've got three right now," he said.. "You'll have 10 in the future. Where are the others going to be?" He didn't say what the three are, but his paper seems to indicate that they are Downtown-Midtown, Roseville, and Arden – which, if true, really does call his methodology into question!- However, his point – a good one – is that based on national real estate research it is possible to identify where the next "WUs," as he calls them, will emerge. Cities can then plan their future, invest in necessarily infrastructure, and set up management structures such as business improvement districts. And while they are at it, the cities can pick up land in these areas on the cheap at the front end, in order to create a land supply for affordable housing later on. On Friday night, after the event, I tested out the sustainable metropolis by going to the River Cats baseball game at Raley Field in West Sacramento. My companion and I walked the four miles or so from East Sacramento to the ballpark – it was a lovely evening – but decided to transit back. The shuttle bus from Raley dumped us off at the 8th and Capitol station on Capitol Mall a few minutes after 10 – unfortunately just a minute or two after the 10:04 had left. (If only that second-to-last Tucson batter had taken the third strike instead of getting a hit!) With 30-minute headways, we had time to kill, so we walked over to the Archives Plaza station in front of the Secretary of State's office. Still nothing much going on – hardly anything open, nobody around. The 10:34 showed up on time, and we were back at the 39th Street station, near UC Davis Medical Center, in less than 10 minutes. But it looks like Leinberger was right on one thing: Build more stuff around the light-rail stations that are already built. — Bill Fulton