Flat-rate "franchise fees" that the City of Roseville charges customers of its municipal water, sewer and refuse collections systems are in violation of Proposition 218, the Third District Court of Appeal has ruled. The in-lieu franchise fees are illegal because they are not directly related to the cost of providing service to property owners, the court held. If the fees were tied to the cost of services, the city could levy the charges, the court ruled. The court ruling could affect numerous local governments that provide utility services to property owners and transfer a portion of the revenues to the general fund. In 1992, the northeastern Sacramento suburb of Roseville began charging a 4% in-lieu franchise fee on the budgets of the city's water, sewer and garbage utilities. City officials said the fee was compensation, or rent, paid to the general fund by the municipal utilities for use of streets, alleys and rights-of-way � all of which are supported by the general fund. The city also said the 4% fee was a reasonable economic return to the general fund. Several years later, the Howard Jarvis Taxpayers Association, two other groups and two ratepayers sued the city. They claimed that the fees violated Proposition 218, the Right to Vote on Taxes Act, which voters added to the state constitution in 1996. Placer County Superior Court Judge Frances Kearney ruled for the taxpayers, and Roseville appealed. On appeal, the Third District considered two questions: First, does Proposition 218 apply to the in-lieu franchise fee? And, second, does the fee violate Proposition 218? The unanimous three-judge appellate panel answered yes to both questions, upholding the lower court's decision. Proposition 218 applies to fees "imposed by an agency upon a parcel or upon a person as an incident of property ownership," the court ruled, citing Article XIII D, � 2 of the state constitution. The city argued the fee was not "an incident of property ownership" and, therefore, was not subject to Proposition 218. But the court disagreed, pointing to Roseville municipal ordinances that direct the provision of water, sewer and refuse services to property. "These services are first necessarily delivered to property, and then, and only then, to those living or working on that property," Justice Rodney Davis wrote for the court. "This recognized dichotomy discounts any argument that water, sewer and refuse services delivered to a tenant are not property-related." Moreover, Proposition 218 stated, "�Property ownership' shall be deemed to include tenancies of real property where tenants are directly liable to pay." As to whether the fees violated Proposition 218, the court ruled the answer is yes because the proposition requires fees to be reasonably related to the cost of service. "Roseville may charge its water, sewer and refuse utilities for the street, alley and right-of-way costs attributed to the utilities," Davis wrote. " nd Roseville may transfer these revenues to its general fund to pay for such costs (the general fund supports or pays for Roseville's streets, alleys and rights of way). Here, however, there has been no showing that the in-lieu fee reasonably represents these costs." A consultant prepared a report for the city that provides a "theoretical foundation" for imposing the fees, but the report failed to identify what the costs supported by the general fund actually were. "The in-lieu fee is the same percentage applied to each budget, regardless of varying uses of streets, alleys and rights-of-way by the individual utilities," Davis wrote. "It cannot be said that this flat fee on budgets coincides with these costs." Furthermore, Proposition 218 requires the fees to be pledged for specific purposes. But Roseville simply placed the revenue in its general fund for general governmental services, which was a further violation, the court ruled. The city argued that Measures U and K, approved by Roseville voters in November 2000, legalized the fees. Measure U amended the city charter to require each city utility to be financially self-sufficient and to fully compensate the general fund "for all goods, services, real property and rights to use or operate on or in city-owned real property." Measure K permitted the city to levy an in-lieu franchise fee of up to 4% to pay for police, fire protection, parks, recreation and libraries. However, the court ruled those measures did not save the city's case because � again � the ballot measures did not demonstrate what the actual costs were. The Case: Howard Jarvis Taxpayers Association v. City of Roseville, No. C036295, 02 C.D.O.S. 3160, 2002 DJDAR 3870. Filed April 12, 2002. The Lawyers: For Jarvis: Jonathan Coupal, (916) 444-9950. For the city: Mark Doane, city attorney's office, (916) 774-5325.

"Environmental justice" is becoming the biggest buzzword in planning since "smart growth." There is an irony here, because, at least in California, the two appear to be on something of a collision course. On one hand, smart growth principles call for focusing new development on land available in existing urban areas. But on the other hand, environmental justice calls for an equitable distribution of development so that older neighborhoods with concentrated poverty do not bear a disproportionate burden of harmful facilities. These two things are not at complete odds with each other. Not all growth channeled into poor neighborhoods is harmful; and not all older neighborhoods are poor. But older affluent neighborhoods have long been skilled at deflecting any kind of undesirable development. In a certain way, older poor neighborhoods are using the environmental justice movement to fight the same projects. Indeed, the debate in California planning is whether environmental justice concerns should be dealt with in general plans or during environmental review under the California Environmental Quality Act (CEQA). This mirrors a fundamental debate about how most other planning issues in California should be handled. Planners often argue that things should go in the general plan; yet use of CEQA is a favored tactic of project opponents everywhere. At the policy level, the general plan approach appears to be winning. A new law requires the Governor's Office of Planning & Research (OPR) to include environmental justice considerations in revising the general plan guidelines, and to complete those revisions by next year. But CEQA-style review may win at the street level in the long run simply because the tactics of environmental justice proponents lend themselves to project-by-project battles. In particular, environmental justice advocates appear to believe that if affluent suburban neighborhoods can use CEQA to their advantage in stopping projects, inner-city activists ought to be able to do the same. The environmental justice movement has emerged largely as a result of aggressive action by ethnic and anti-poverty advocacy groups, which have argued that non-white and poor neighborhoods bear a disproportionate burden of the impact of noxious facilities. In many ways, environmental justice is simply a new way of looking at the familiar planning question of how to balance regional benefit and local impact. Planners have struggled with this question at least since the 1970s, when Rutgers University planning professor Frank Popper coined the phrase "Local Unwanted Land Use" (LULU). Environmental justice advocates have revived the LULU debate by casting it sharply in terms of race and economic class, however. For example, the Latino Issues Forum, a San Francisco-based research and advocacy group, recently used a GIS analysis to challenge the California Energy Commission's statistics on the impact of new energy plants on non-white populations. The research report found that non-white populations generally -- and Latino populations specifically -- were highly concentrated in areas adjacent to proposed peaker energy plants throughout the state. This kind of aggressive activism in environmental justice has become much more common since 1994, when President Clinton issued Executive Order 12898. The order called on every federal agency to make environmental justice "part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations." In issuing the executive order, he relied on a combination of Title VI of the 1964 Civil Rights Act (which requires that federal actions not discriminate on the basis of race, among other factors), the National Environmental Policy Act, the Clean Air Act, and federal freedom of information laws. As a result of the executive order, all federal agencies and some state and local agencies dependent on federal funds — most notably Caltrans — have embarked on aggressive programs to include environmental justice in their activities. (A recent survey of 63 state agencies by OPR found that 2% had environmental justice policies and 11% were developing them; among agencies subject to Title VI, those figures were 6% and 33%.) But a recent federal appellate court ruling from New Jersey has called the full force of the executive order into question. In South Camden Citizens in Action v. New Jersey Department of Environmental Protection, the Third Circuit Court of Appeals ruled that the federal civil rights law could not be used to pursue a claim of "disparate impact" unless the underlying statute in question specifically states that disparate impact is against the law. The successful argument by anti-environmental justice lawyers was that the Civil Rights Act was not passed in the context of concern for "disparate impact;" therefore, it cannot be used to pursue such claims, despite Clinton's reliance on Title VI. Environmental justice has come under fire not only from conservative commentators but from iconoclastic middle-of-the-road pundits, such as David Friedman of the New America Foundation, who have argued that the evidence of actual health problems associated with proximity to noxious facilities is less than overwhelming. According to one study cited by Friedman, living close to a plant emitting toxic chemicals shortens people's lives far less than simply being poor. In spite of these debates over the legal and scientific validity of environmental justice, the topic has gradually worked its way into the debate over land use planning in California. Indeed, much of the debate over both CEQA and general plan revision in recent years has revolved around environmental justice. For example, most efforts to streamline CEQA in urban areas have run into opposition from environmental justice advocates. These same environmental justice advocates, however, have been unable to work the topic overtly into the CEQA process. CEQA and the CEQA Guidelines do contain some basis for what we today call environmental justice. Both contain references to decent housing and "suitable living conditions" for all people and warn that environmental protection cannot be achieved at the cost of those goals. There is no specific mention of environmental justice, however. When she was state lawmaker, Rep. Hilda Solis, a Democrat from of El Monte, repeatedly attempted to work environmental justice into CEQA and other state laws. In 1997, Solis pushed a bill requiring environmental justice considerations to be part of CEQA analysis all the way to the desk of Gov. Pete Wilson, but Wilson vetoed it. Two years later, Gov. Gray Davis signed a Solis bill establishing OPR as the statewide coordinating agency for environmental justice programs. The Solis bill and a bill by Sen. Richard Alarcon (D-San Fernando) passed in 2001 seek to use the California Environmental Protection Agency as a model for environmental justice programs. The most important bill for land-use planning, however, was AB 1553 (Keeley) in 2001, which calls on OPR to include environmental justice considerations in its next set of general plan guidelines, and to issue the revised guidelines by July 1, 2003. In response to the Keeley bill, OPR conducted four public hearings around the state in January and February soliciting ideas for the General Plan revisions. Among other things, those testifying suggested: * Beefing up efforts to inform local governments about the federal Civil Rights Act. * Encouraging local governments to pursue equitable distribution of facilities. * Providing precise definitions for sometimes vague environmental justice terms, such as an "environmental justice affected community," "equitable distribution," "livable," "over concentrating," "buffer zones," and "employment zone." Planners at OPR have not drafted changes to the general plan guidelines yet. But it will be interesting to see whether the eventual changes will alter the nature of California planning practice. Will local governments add "environmental justice elements" to their general plans? Will they take the whole topic seriously? Or will they deal with it in such a way that environmental justice advocates — like so many environmentalists before them — simply fall back on CEQA as the handiest tool at their disposal?

The people of the County of Nevada ordain as follows: Nevada County (the "County") shall provide an orderly process for addressing claims for reimbursement, payable to the property owner, when it is determined that there is a reduction in the market value of an owner's parcel. After passage of this initiative, this process applies to proposed projects when regulatory actions or determinations by the County restrict existing use or utility, in whole or in part, of the affected parcel. Restrictions based upon a clear and present danger to public health and safety, and traditionally recognized common law nuisance prohibitions, shall not be considered in calculating reductions in value. A property owner seeking reimbursement pursuant to this initiative shall first seek beneficial best use of the property. This best use must be denied by the Board of Supervisors prior to filing a claim. The Superior Court of the County shall have exclusive jurisdiction over claims made, and shall have the power to make independent findings of fact and conclusions of law, and shall not be bound by findings or determinations by the County. Reimbursement shall equal the difference in market value, with and without the regulation or action complained of, and shall include reasonable attorneys' fees and costs. If any phrase, clause or part of this initiative is found to be invalid by a court of competent jurisdiction, the remaining phrases, clauses and parts shall remain in full force and effect.

Though scarcely acknowledged, urban planning is in the midst of a fundamental shift in professional focus. The public is demanding the change. It's a simple idea, as well as an old one: Planners need to understand design. This is because urban planning in America has followed the larger culture into an era where style is substance. This fundamental shift should send planners back to school with a fresh academic pursuit — architecture and landscape architecture. These topics are simply not part of North American universities' planning curriculum. Since the 1940s, top planning academicians have eschewed urban design as "orthogonal thinking." Long misunderstood by the public, the planning profession is in fact rooted in the tradition of social welfare and — this can be difficult for some of us to admit — social engineering. Physical planning has focused on color-coded plan maps, legalistic zoning codes, trip generation, and population pyramids — topics far afield from the more right-brained world of design, and far from issues that currently inspire the public. Nonetheless, since World War II, built environment design issues have been left for architects and landscape architects. Until now. The late 19th Century theories of cities and urban space popularized by Daniel Burnham (architect) and Frederick Law Olmstead (landscape architect) are all the rage today. Re-popularized by the neotraditional urban design movement led by Andres Duany (architect) and coupled in various combinations with the transit-friendly geometric city design of Peter Calthorpe (architect), the old has become new again. And planners, with their policies, codes and standards, are expected to make sense of it because the public demands it. Frank Ramirez, senior planner for the Governor's Office of Planning & Research (OPR), has noticed the drift of planning toward design concerns. OPR reports that 51% of California's 477 municipalities now employ design guidelines. Ramirez, who reviews general plan elements submitted by the state's local governments, notes a strong increase in communities that have adopted optional urban design elements as part of their general plans. Of the 91 cities that have adopted such elements, one-third have done so during the last five years. "Cities are more aware of their limited space. They want to ensure that their developed areas are livable and provide a high quality of life," Ramirez said. He sees the design movement being rooted in smart growth impulses. "Cities are encouraging infill because they are beginning to realize that the sprawl model costs more to service." He notes the wide variety of design approaches that have come into being. Built-out communities pay attention to street design, while expanding cities focus on private development standards. Designers who are engaged in developing guidelines and elements also note the surge in interest in regulation related to quality-of-life issues. "People in general are much more vocal and involved in the development of their communities" than 20 years ago, said Erik Justesen, an urban designer trained in landscape architecture with San Luis Obispo-based RRM Design Group. He noticed that community interest in design really began to take hold during the 1980s, a period noted for the first large-scaled post-modernist developments — such as Michael Graves' Humana tower in Louisville, Kentucky — and the deconstructivist work of architect Frank Gehry. There is likely a marketing element at play, too. Justesen observes that the growing competition between communities for attracting shoppers and tourists drives demand for good design. "Cities have a desire to distinguish themselves as destinations. They are realizing that attractive environments attract people. Retail developers, too, realize that," he said. John Chase holds a lonely post as one of only a handful of urban designers employed to review design by a city government in California – in his case, West Hollywood. Despite the growth in public interest in urban design, Chase wonders if his profession is more accepted in the private sector, where he notes a string of consulting firms have hired urban designers right out of school to serve their public agency clients better. Chase, a trained architect, serves primarily as an advisor on development review and the design of public spaces in West Hollywood, such as the recent redesign of Santa Monica Boulevard. He answers to the planning manager, and he understands that urban planning abandoned design as a primary concern decades ago and is now in the rediscovery process. He suspects the popularization of design is tied to what he calls the "Martha Stuart phenomenon" – the notion that everything can be dressed up and that, in so doing, quality of experience is improved. In this line of theory, merchandizing and branding have become so integral to culture that the public demands branding and packaging of urban space. Whereas it seems that there is something to the notion that "city-as-theme-park" impulses are at play in current redesigns of urban retail and entertainment-oriented downtowns, there are just as many legitimate calls for a humanizing and beautification of public spaces in our cities. To LA-based urban designer and landscape architect Patricia Smith, the three most important urban design tenets are the relationship of buildings to the street, the design of the street/public space itself, and the design of access and "wayfinding." Smith and Chase agree that in order to get a good result from the myriad forms of urban design policies/guidelines/codes, it is critical to require that design-trained professionals be involved with both writing and with implementation. "Interpretation of standards is critical," said Smith. "There are always unique circumstances that confront a design problem where a fundamental understanding of the intent is essential to enable a creative solution." Stephen Svete, AICP, is president of Rincon Consultants, Inc., a Ventura-based consulting firm.

Where do housing unit need projections come from? If you answered, "from population projections," you are only partly correct. The little-understood and unappreciated "headship rate" translates population projections into units. Small changes in headship rates could result in significant changes in housing need projections. Housing element law, first enacted in 1969, mandates that local governments work to provide a safe and livable environment for Californians. That mandate evolved to include adequately planning to meet the existing and projected housing needs of all economic segments of a community. During the latest round of state-mandated housing element updates, many cities and counties have struggled to plan for the number of units required by the Regional Housing Needs Allocation (RHNA). The RHNA number is determined by the headship rate — the probability that individuals, families, or groups will rent or buy a housing unit. Headship rates are worth a closer look because they estimate how many households are formed from the population projections. The Southern California Association of Governments (SCAG) currently is focused on the headship rates and realizes that small changes in the rate will make large differences in future housing unit projections. The RHNA allocation is a two-part number: the existing housing need and future need based on population growth. The existing need figure is the number of units necessary to reduce overcrowding and provide an economic choice range that, coupled with a decent vacancy rate, enables an efficient and equitable housing market to operate. The growth-based housing need estimate is based on population projections (a combination of net natural increase and net migration) translated into numbers of households via the headship rates. Like most demographic methods, headship rates reflect how the population has been carved up into housing units in the past. The Department of Finance (DOF) and SCAG headship rates are essentially probabilities that a person of a specific age and race will be listed as the "Head of Household" ("Reference Person" in census jargon) or the person listed first on a lease, mortgage or property title. Chart No. 1 contains the Department of Finance's headship rates for San Bernardino County. It shows that about 22.5% of males age 18-24 are a household head. That means the remaining 77.5% of age 18-24 males are living with their parents, at school, in jail or with someone else who is listed as the "household reference person" in a census or survey. You can also see that male heads of household tend to outnumber female, and that the highest headship rates are for people older than 55. Headship rates also vary by race, income and geography, reflecting the various factors that influence people's desire and ability to form households. In San Bernardino County, the expected number of households for males age 35 to 44 differs by race, as shown in Chart No. 2. "Others" include Asians and Pacific Islanders and American Indians. Here you see the general pattern that more than half of all males in this age group are renting or owning an apartment or house, more likely renting than owning. These "starter households" are the most likely to be affected by a tight housing market because of cost and low housing supply. Most people older than 35 already have a home, and they may choose to remain in it pending a good opportunity to move. So, when they do not move, or move less frequently, the pipeline "jams up" and affects the starter households the most. We are already seeing in some areas more young adults continuing to live with their parents. As a result, young adults are less able to move to take entry-level jobs, or the jobs have to offer higher wages. You may infer that because non-Hispanic whites generally have higher incomes than the other groups, headship is a function of income. You would be right. That raises the question of other ways to estimate households that may better anticipate future household formations in an increasingly expensive housing market. Perhaps sex and race-based headship rates are not the best way to anticipate future household formation. When Census 2000 income data are fully released by September, this is one topic worth examining. Maybe in the next round of fair-share housing allocations, a different headship rate methodology would yield results more attuned to the interests of local businesses and residents. In our increasingly diverse population, one wonders if race-based headship rates still make sense. Perhaps the rates should be based on income and/or education. The existing rates reflect the housing choices of the 1980s and early 1990s, which is another reason to explore more accurate ways to create the rates.

Voters in Sierra Madre have approved an initiative that gives owners of property on the city's historical landmarks registry 120 days to withdraw their properties from the landmarks list. The vote on Measure 02-A during the April election was 1,419 (61.3%) to 897 (38.7%). The San Gabriel Valley city's historic landmarks registry contains 79 properties, mostly single-family homes from the early 20th century. The city tightly regulates any changes to the structures. However, some property owners have complained that they never consented to the listing and have battled to get their real estate off the registry. In 1998, Sierra Madre voters approved a city-sponsored ballot measure that removed 29 homes from the registry. However, historical preservationists sued because the city did not perform an environmental review prior to putting the measure on the ballot. The case went all the way to the state Supreme Court, which ruled that ballot measures placed before voters by public agencies must receive scrutiny under the California Environmental Quality Act (see CP&DR Legal Digest, May 2001). The court distinguished citizen-sponsored initiatives. After that ruling, a group called Citizens for Property Rights got the initiative qualified for the April ballot. The latest election still may not settle the issue, as historic preservationists vowed to continue fighting. In a symbolic move, two Bush administration Cabinet secretaries opened the main irrigation canal in Southern Oregon's Klamath Basin in late March. Interior Secretary Gale Norton and Agriculture Secretary Ann Veneman opened the headgates that help irrigate 240,000 acres of farmland in Oregon and Northern California. Only 11 months earlier, the Bureau of Reclamation announced it was reducing 2001 water deliveries by 80% so that more water would be available for the endangered sucker fish and for two Indian tribes downstream in California (see CP&DR Environment Watch, October 2001). The bureau's decision caused widespread protests, and Bush administration officials vowed to reconsider the situation. "We have to find ways to balance the needs of the ecosystem and of people," Norton said during the March ceremony, at which environmentalists and Indians protested. An infrastructure panel appointed by Gov. Davis has issued its final report addressing numerous planning issues, including the need for more housing development. The California Commission on Building for the 21st Century recommended passing a new school bond, adopting a state energy infrastructure policy, lowering the voter threshold for local transportation tax hikes from two-thirds to 55%, and adopting a state water infrastructure plan. The panel further urged establishment of a new state infrastructure fund, and creation of a public-private entity "to support needed and cost-efficient infrastructure planning and investment." Unlike many past infrastructure reports, this latest document includes recommendations for housing and land use. To boost housing production, the panel recommended the state: o Reform the state-local fiscal relationship so that local government has incentives to meet regional housing production goals. Possibilities include swapping local sales tax revenue for more property tax revenue, capping the property tax shift to schools, and regional tax revenue sharing. o Provide more funding for brownfield cleanup and redevelopment. o Establish a permanent housing incentive fund to reward communities. o Offer incentives for interregional and multi-disciplinary planning. o Provide more resources to cities and counties with housing elements that are in compliance with state law. o Resolve construction defect litigation. Possibilities include a better dispute resolution system, home buyer warranties, and more training for construction workers and building inspectors. o Promote the use of master environmental impact reports and streamline the California Environmental Quality Act. Regarding land use in general, the commission recommended the state: o Provide matching funds and technical support to help local governments update general plans. o Provide better data, technical assistance and planning grants to local and regional agencies. o Adopt inter-agency planning models. o Fund resource conservation planning, such as multi-species habitat conservation plans. o Use "scientifically accepted standards" to regulate brownfield cleanup. o Provide money for "best practices in zoning and building codes so communities can achieve more efficient land use and adopt new models of development, such as mixed-use and transit-oriented development." The report is available at www.bth.ca.gov/invest4ca/ A proposed 450-acre expansion of the Sunshine Canyon Landfill into the City of Los Angeles has been rejected by the city's Environmental Affairs Department, which said Browing Ferris Industries' application was incomplete. Within hours, BFI withdrew the application temporarily. The huge garbage dump, which straddles the city-county border near Interstate 5, operated for years inside the city before its permit expired 11 years ago. Los Angeles County permitted landfill operations to resume in 1996. In 1999, the Los Angeles City Council approved expansion into the city — a decision that was a catalyst for the San Fernando Valley secession movement. Browning Ferris hoped to get a permit approved to open the city portion of the facility this spring. Mayor James Hahn said he is "committed to closing all landfills within our city limits" and he endorsed the decision to reject the application. Mountain View City Councilman Mario Ambra was convicted of willful misconduct and removed from office in April. A jury found Ambra guilty of violating the city charter by bullying the planning director and other city employees. One week after the verdict was issued, Santa Clara County Superior Court Judge John Herlihy formally removed Ambra from office, although Ambra had submitted his resignation the prior day. Earlier in the trial, Judge Herlihy dismissed three counts against Ambra related to his attempts to use the planning department to harass a neighboring property owner so the property owner would sell out to Ambra. According to grand jury testimony, Ambra wanted to develop the site next to his home on Rengstorff Avenue. However, the court ruled that Ambra did not have a financial interest in the property where his home is because the real estate is held in a trust established by his father. Housing advocates have settled a lawsuit with the City of Folsom. Under the settlement approved by Sacramento County Superior Court Judge Lloyd Connelly in April, the city will rezone 128 acres to allow development of about 2,900 units for very low- and low-income people. City officials also agreed to create a housing trust fund, impose a "linkage" fee of at least $1.10 per square foot on commercial and industrial development, and adopt an inclusionary housing ordinance. In approving the settlement, Judge Connelly lifted a development moratorium on 600 acres. He had imposed the moratorium in December because the city had not approved any low-income housing units in recent years. The Coronado City Council imposed a 45-day moratorium on mixed-use developments in early April and will likely extend it so that planners have time to complete a downtown specific plan, Community Development Director Tony Pena said. A few years ago, the city decided to allow development of up to 74 residential units in the "limited commercial" and "central commercial" zoning districts of the Orange Avenue corridor. The city has approved an 8-unit project, and applications for two others were submitted, Pena said. However, all the projects are in the "limited commercial" zone. Planners hope to complete the specific plan by the end of the year before taking action on the latest mixed-use proposals. The San Diego Union-Tribune reported that residents of mixed-use projects in the area have complained about noise and traffic from businesses. Correction. The Public Development story in the April edition incorrectly characterized AB 2058 (Papan). The bill would allow public entities outside of San Francisco that rely on the Hetch Hetchy water system to form the Bay Area Water Supply and Conservation Agency, which could issue bonds to fund system repairs.

While discussing a proposed downtown baseball stadium and adjoining redevelopment project, the San Diego City Council repeatedly violated the California open meeting law because the council's descriptions of closed door negotiations were too general and because some topics should have been discussed in public, the Fourth District Court of Appeal has ruled. The appellate court also ruled that a trial court judge was correct to issue an injunction detailing how the council should comply with the law in the future. The unanimous three-judge panel upheld the decision of Superior Court Judge Judith McConnell (who has since been elevated to the appellate bench) that the city failed to adequately describe closed-session topics on its agenda and that the council improperly discussed side issues not on the agenda during private sessions. Both the appellate court and McConnell found that the City Council violated the letter and the spirit of the Brown Act open meeting law in the past and appeared unwilling to change its practices. "The City Council is attempting to use the Brown Act as a shield against public disclosure of its consideration of important public policy issues, of the type that are inevitably raised whenever such a large public redevelopment real estate transaction is contemplated," Justice Richard Huffman wrote for the appellate panel. In November 1998, voters approved Proposition C, which authorized the city, the redevelopment agency and the Padres baseball team to enter into a partnership to build a new stadium and to redevelop the surrounding area (see CP&DR Places, January 2002). Proposition C also provided for substantial city bond funding to build the ballpark. Passage of the ballot measure, however, appeared to increase the level of controversy regarding the proposed stadium and the city's funding of it — a political conflict that had simmered for years. Soon, the City Council's implementation of Proposition C came under scrutiny, and project detractor Melvin Shapiro filed a lawsuit. Shapiro alleged that the City Council's posted agendas for 18 closed sessions from December 1998 through October 1999 did not comply with the Brown Act (Gov. Code § 54950 et seq.) because the agendas did not designate specific parcels under consideration or describe what transaction was being considered. In 16 of the instances the agendas stated: "In the matter of authorizing the city manager to negotiate with designated representatives from the San Diego Padres and the San Diego Unified Port District regarding real property interests in the East Village area of downtown San Diego, and at Qualcomm Stadium in the City of San Diego." Twice, the agendas were less descriptive. Shapiro also claimed that City Council discussions strayed from the scope of the agendas. During a trial, Judge McConnell privately examined confidential minutes of the closed City Council meetings before she ruled for Shapiro. She ruled that the Brown Act required the city to identify separate items of business to be discussed, that the agenda must name the negotiators involved, and that the City Council must provide those names in open session before going behind closed doors. McConnell also found 10 instances when the City Council discussed topics that should have been addressed in public. Those topics included transient occupancy tax, architectural design work, parking, the need to hire a project director, an environmental impact report, financing, naming the ballpark and the project's impact on homeless people. McConnell then issued a detailed injunction for how the City Council must comply with the Brown Act. The City Council agreed to post more detailed agendas. But the council still appealed McConnell's decision, saying she lacked a legal or factual basis for the injunction. The council also argued that McConnell insisted on more disclosure than required under the Brown Act's "safe harbor provision," and that the council should be able to discuss matters "reasonably related" to posted agenda items. The Fourth District upheld McConnell's decisions, ruling that the injunction was proper, that the City Council's reading of the safe harbor provision was too broad, and that councilmembers should stick to the agenda. The injunction was necessary because the Brown Act violations were a continuing practice, Justice Huffman wrote. " o long as the allegations and proof of the legislative body's practices extend to ‘past actions and violations that are related to present and future ones,' the Brown Act provisions are brought into play to authorize and justify injunctive relief. That is the case here, where the City Council has staked out a position that the trial court had no authority to prescribe the manner in which it should comply with the Brow Act. … Also, the City Council continues to resist any judicial direction not to discuss topics in closed sessions which go beyond instructions to its negotiators regarding purchase or sale price and terms of payment specific real property," Huffman wrote. Next, the court addressed the Brown Act's safe harbor provision (Gov. Code § 54954.5), which sets minimum standards for what the City Council must disclose from closed sessions. "The City Council contends that simply because the ballpark project is a complex real estate based transaction, many complex issues will inevitably arise, and it cannot reasonably be foreseen when or where they will require discussion," Huffman wrote. That view, the court ruled, is inconsistent with the Brown Act's disclosure requirements. The City Council must identify a specific transaction regarding a specific piece of real estate. "A negotiator has to be pursuing some specific transaction, which itself is the subject item of business that should be disclosed. A negotiator does not negotiate in a vacuum," Huffman wrote. As for the discussion of related topics in closed session, the court said it recognized the practical need — and the legal authority — to conduct real estate negotiations in private. But the court ruled the City Council discussions had gone too far afield. "The City Council cannot claim substantial compliance under the safe harbor provisions of § 54954.5, subdivision (b), when its anticipated project discussions exceed the scope of the safe harbor provisions, and do not involve a specific and identifiable piece of property under discussion, but rather range far afield of a specific buying and selling decision that the negotiator is instructed to work toward," Huffman wrote. "If we were to accept the City's interpretation of the Brown Act in this respect, we would be turning the Brown Act on its head, by narrowly construing the open meeting requirements and broadly construing the statutory exemptions to it." The Case: Melvin Shapiro v. San Diego City Council, No. D037323, 02 C.D.O.S. 2142, 2002 DJDAR 2627. Filed March 5, 2002. The Lawyers: For Shapiro: Charles Wolfinger, (858) 272-8115. For the City Council: Leslie Girard, assistant city attorney, (619) 533-5800.

WASHINGTON _ The U.S. Supreme Court gave state and local governments a green light to continue using temporary moratoria to limit or block development while devising long-range land use plans. In a setback for property rights advocates in a closely watched California case, the court ruled 6-3 that temporary moratoria do not automatically amount to a "taking" of private property requiring government compensation to affected landowners. "A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decision-making," Justice John Paul Stevens wrote for the majority. "Such an important change in the law should be the product of legislative rulemaking rather than adjudication." The court ruling still allows private landowners to seek compensation for regulatory delays, but only under a multi-factored test that virtually always favors government interests over property rights. Stevens said that a delay could be one factor — but only one — in determining whether a taking had occurred. The decision in , No. 00-1167, ended a lawsuit pursued for 18 years by several hundred plaintiffs who owned property near Lake Tahoe on either side of the California-Nevada border. The bistate Tahoe Regional Planning Agency (TRPA) sharply limited development in the area beginning in 1981 to reduce runoff that was threatening the lake's much-celebrated crystalline beauty. Dissenting justices said the delay at issue — calculated as 32 months by the majority and six years by the dissent — required compensation. "A ‘moratorium' lasting nearly six years bears no resemblance to the short-term nature of traditional moratoria," Chief Justice William H. Rehnquist wrote in a dissenting opinion. Lawyers representing national planning groups praised the ruling. "It's the best news for state and local officials in the land use area for a long time," said Timothy Dowling, chief counsel for the public interest group Community Rights Counsel, which wrote a friend of the court brief on behalf of state and local governments. "It's a win for planners, it's a win for property owners, and it's a win for the public," said Lora Lucero, a staff attorney with the American Planning Association in Chicago. "The court is saying very clearly that you have to balance everyone's interests. Everybody wins with that." Daniel Siegel, a California deputy attorney general in the land law section, called the ruling "an excellent decision." "The decision promotes thoughtful planning with full public participation," Siegel said. "If planners faced with the loss of an important resource like Lake Tahoe were prohibited from putting development on hold while they put together a land use plan, they would either have to throw together a plan quickly with little input or allow the resource to be potentially destroyed while they craft a plan." Property rights advocates said they were disappointed, but some sought to minimize the impact of the ruling. "I'm not happy with it, but it could have been worse," said Richard Samp, who filed a friend of the court brief for the conservative Washington Legal Foundation. "It's an unfortunate step backward," said Michael Berger, the veteran Santa Monica property rights attorney who represented the plaintiffs. "The court had been steadily moving in a direction to accord landowners the same kind of Bill of Rights protections that other citizens get," Berger continued, "and this is a stumble in the road." The case reached the Supreme Court after a tortured procedural history spanning 18 years (see , July 2000). After a series of rebuffs by the Ninth U.S. Circuit Court of Appeals, landowners reached the Supreme Court with only one, stark legal issue: whether the temporary moratoria imposed from 1981 to 1984 pending adoption of a long-range land use plan amounted to a per se taking of property without regard to the planning agency's justifications. Berger and other property rights advocates strenuously argued for a categorical rule to prevent state and local governments from stringing property owners along with a succession of "temporary" land use moratoria. But attorneys for the Tahoe agency, both states, and a number of planning and environmental groups warned that treating any moratorium as a taking would effectively cripple the planning process. The court's majority agreed with the planners. "The interest in facilitating informed decisionmaking by regulatory agencies counsels against adopting a per se rule," Stevens wrote. "Otherwise, the financial constraints of compensating property owners during a moratorium may force officials to rush through the planning process or to abandon the practice altogether." The six-vote majority included the court's four liberal justices — Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer — and the two centrist conservatives: Sandra Day O'Connor and Anthony M. Kennedy. Joining Rehnquist in dissent were the court's other two strong conservatives: Antonin Scalia and Clarence Thomas. Stevens appeared to have held O'Connor's and Kennedy's votes in part by quoting approvingly from pivotal opinions each wrote in the court's ruling partly favoring property owners in a somewhat similar takings case, , 533 U.S. 606 (2001) (see , August 2001). The new ruling represented a rare setback for property rights advocates during Rehnquist's 16 years as chief justice. In the first of those decisions — , 482 U.S. 304 (1987) — the court ruled that governments must compensate a landowner for a taking even if it is only temporary. Five years later, the court ruled in , 505 U.S. 1003 (1992), that a landowner is entitled to compensation if a regulation has the effect of preventing all economically viable use of the property. In the new decision, Stevens reaffirmed , but said that case did not address the "quite different" question of whether the temporary regulation at issue actually amounted to taking. (On remand, California courts said the regulation was not a taking.) As for , Stevens significantly limited the impact of the decision by saying that it applied only to a permanent restriction on any economic use of land. Property "cannot be rendered valueless by a temporary prohibition on economic use," Stevens wrote, "because the property will recover value as soon as the prohibition is lifted." Instead of a per se rule, Stevens said takings claims based on land use moratoria must be decided according to a three-part test announced in the court's 1978 decision, , 438 U.S. 104. Under that test, a takings claim is evaluated on the basis of the purpose of the government action, the economic effect on the landowner, and the effect on "reasonable investment-backed expectations." Samp predicted that some landowners could win compensation under the ruling. "A moratorium whose length cannot be justified on some reasonable ground like the need to fully explore the ramifications of allowing development is not reasonable and thus would constitute a taking," he said. But Dowling disagreed. "It will be an exceedingly rare case in which a landowner could show under this ruling that a moratorium was so extreme and unreasonable as to constitute a taking," he said. For his part, Berger conceded the decision left his clients with no effective remedy. "They're dead in the water," he said. A lawyer for the Tahoe planning agency agreed. "I don't think there's an appeal to the World Court," said Clement Shute, the private San Francisco attorney who represented TRPA up to the Supreme Court arguments. The Tahoe landowners say they continue to be effectively blocked from developing their property or are forced to sell parcels to government agencies at below-market prices. Shute insisted that the long-range plan finally adopted in 1987 has allowed some building, and has permitted landowners to trade for other development rights or to sell parcels at fair market prices. The Case: , No. 00-1167, 02 C.D.O.S. 3495, 2002 DJDAR 4399. Filed April 23, 2002. The Lawyers: For the landowners: Michael Berger, Berger & Norton, (310) 449-1000. For the agency: E. Clement Shute, Shute, Mihaly and Weinberger, (415) 552-7272. Kenneth Jost, formerly editor of the Los Angeles Daily Journal, is staff writer for Congressional Quarterly and author of The Supreme Court Yearbook.

Imagine this scenario: A major symphony orchestra woos an internationally renowned conductor to become its next music director. After extensive, high-tension negotiations, the conductor at last accepts the job. The day after, however, the orchestra discovers something disconcerting: The conductor is tone deaf. Truth be told, she does not care much for music. After the inevitable flap, the conductor withdraws from the contract, citing unspecified "unsuitable conditions." Given this situation, should the orchestra feel disappointed or relieved? At the risk of over-simplification, the above situation is similar to the collapse of negotiations in March between the San Jose Redevelopment Agency and the Palladium Co., a New York-based retail developer. The official reason for ending 14 months of talks was that the city and the developer together "concluded after careful and detailed review that the market at this time does not support the large, mixed-use project we originally envisioned," according to a statement by Ken Wong, Palladium's western region manager. Although plans for the project remained sketchy, the developer had proposed 500,000 square feet of retail space, a 350-room hotel, 350,000 square feet of office space and 1,000 residential units spread over a five-block area. Estimates of the construction cost ranged from $750 million to $1 billion. That development sounds appealing for downtown San Jose, which lost much of its original downtown to urban renewal during the 1960s. The city has been rebuilding its downtown almost entirely through redevelopment projects for the past 20 years. That said, the city is better off without this particular project and this particular developer. I think that the "poor market" excuse claimed by both the developer and the city was a fig leaf. True, the office market has tanked — the regional office vacancy rates are now about 16% in Silicon Valley as a whole — and the hotel business is still suffering from the chill induced by the September 11 attacks. It is also true that the retail market in downtown San Jose is very limited because the city has a small, if growing, base of full-time residents and office tenants who would be the primary patrons of downtown merchants. The large amount of retail proposed by the developer, equal in size to a regional mall, could not compete with real suburban malls less than five miles away. A grocery store, a drugstore and a handful of other businesses that serve locals would do more for downtown right now than one more mall or power center. Not all parts of the project looked like a bad idea, however. The demand for housing remains strong in Santa Clara County and prices are actually rising on single-family homes in some areas, despite the recession and the "tech wreck." San Jose Mercury News reporter Mike Zapler in a day-after story, suggested several additional reasons why Palladium's big feet got cold in California. Among the factors that made the developer chafe, according to Zapler, was the potential difficulty in assembling the five-block property that has at least 40 separate parcels. Conceivably, some of the properties needed to be acquired by the redevelopment agency through its eminent domain powers. Zapler also suggested that the city and the developer were at odds over a subsidy, although neither side has ever mentioned a dollar figure. On the other hand, mayoral spokesman David Vossbrink observed that the city has paid subsidies and condemned property in the past, so those issues may not have been deal breakers in themselves. So what was the true reason for Palladium's departure from San Jose? One clue is that Palladium expected to build this enormous project all at once. That approach makes sense for a developer that wants the city to hand it a big piece of land so that it could build quickly, lease quickly, and then sell to an investor at a healthy mark-up. That is the attitude of a suburban developer, not a genuine urban developer. Palladium is a suburban developer in the sense that the company's idea of development is the old-fashioned, greenfield approach: Build a huge project all at once that defines the character of an area and creates a "destination" where one did not previously exist. Palladium calls itself an urban developer, I suspect, because downtown areas are fashionable and because cities with suffering downtowns are prepared to assist, and sometimes subsidize, such projects. A city, however, is more than a passive staging area for an arrogant mega-project that will define and dictate the character of the city around it. If you want to develop a large portion of a downtown area, you must contend with the reality of cities. Cities are messy and complex. They have many parcels and many landowners. There are historic properties that make master planning difficult, especially when developers want to lay out huge floor areas for national tenants like Gap or Borders or Tommy Hilfiger. There are city officials who are very particular about what they want built in a particular area. My guess is that Palladium did not want to go through the trouble, expense, time and uncertainty to put this large assemblage together and entitle it. When the developer realized that San Jose would be a slow grind, it found a gracious way to withdraw. The city is currently talking to CIM Group of Los Angeles, which was the runner-up when San Jose officials first chose Palladium. CIM currently is rehabbing a group of buildings on Hollywood Boulevard in Los Angeles. Neither life nor real estate development carry guarantees, but I suspect that CIM, if it takes the deal, will fare better than Palladium because of the former's willingness to embrace urban realities and work with them. CIM and other experienced urban developers have a good sense of pitch. They can hear the music of the city. Palladium, in comparison, was tone deaf. There is nothing to regret in Palladium's departure except some lost time, maybe, and the annoyance of having negotiated with a conductor who could not carry a tune.

The owners of beachfront property are not entitled to compensation for a public access easement that the state required in exchange for a building permit many years earlier, the Ninth U.S. Circuit Court of Appeals has ruled. The Santa Barbara County beachfront property owner needed to challenge the exaction when the state levied it — not years later when a public agency got around to accepting the easement, the court ruled. The case is one of the Ninth Circuit's first applications of the U.S. Supreme Court's ruling last year in a different takings case, Palazzolo v. Rhode Island, 121 S.Ct. 2448 (see CP&DR Legal Digest, August 2001). In Palazzolo, the U.S. Supreme Court allowed to proceed a takings suit over regulations that were in effect when the landowner acquired the property. The Ninth Circuit found that the case from Santa Barbara County was different because in Santa Barbara County the taking had already occurred; whereas, Palazzolo was challenging an existing regulation that could affect a still-proposed development. The Santa Barbara County case dates to the mid-1970s, when the California Coastal Commission and its predecessor, the California Coastal Zone Conservation Commission, exacted public access easements as a condition of approving all sorts of building projects. That practice was curtailed in 1987 when the U.S. Supreme Court ruled that requiring a coastal access easement in exchange for a permit to tear down a house and replace it with a taller model was an unconstitutional taking. Nollan v. California Coastal Commission, 483 U.S. 825. In 1974, landowner Carl Johnson sought permission to divide beachfront property into four parcels. A regional division of the Coastal Zone Conservation Commission approved the application but required Johnson to make a 25-year offer of dedication for a five-foot-wide pedestrian and bicycle easement. Johnson appealed the exaction to the state coastal panel, but lost. Three years later, Johnson applied for a permit to build a house on one of the new lots. He received the permit but had to renew the 25-year offer of dedication. In 1987, shortly after the Nollan decision came down, the owners of the house Johnson built signed another 25-year offer of dedication at the request of the Coastal Commission. In 1997, Ann Daniel and Leonard Hill purchased the house. In October 1998, Santa Barbara County accepted the offer of dedication that was made in 1987, despite a protest by the new homeowners. In November 1998, Daniel filed a lawsuit against Santa Barbara County under the Civil Rights Act (42 U.S.C. § 1983) alleging a physical taking of property in violation of the Fifth Amendment. District Court Judge Margaret Morrow ruled that Daniel did not have standing to challenge the easement because she did not own the property when the offer of dedication was made. Furthermore, the lawsuit was filed too late because the offers of dedication were made many years earlier, Morrow ruled. Daniel appealed, but a unanimous three-judge panel of the Ninth Circuit upheld the decision. Daniel argued that it was the county's acceptance of the offer of dedication that amounted to a taking. But the court disagreed and said the government requirement of the offer itself was at issue, not the county's acceptance. Previous landowners needed to challenge the requirement when the state imposed it. " he last offer to dedicate — the 1987 IOTD — was exacted ten years before the Daniels purchased the property," Judge William Fletcher wrote for the Ninth Circuit. "Under any possible accrual date for a takings claim based on the IOTD, the statute of limitations for a §1983 claim has now expired." Daniel was aware of the offer of dedication when she purchased the property, and the price likely reflected the offer's existence, Fletcher wrote. Those factors were not enough to prevent the landowner in Palazzolo from pursuing a takings lawsuit. This case, however, was different. The Palazzolo decision rejected a blanket rule regarding existing land use regulations. "But Palazzolo … did not adopt a rule that would find a taking whenever there are pre-existing restrictions on land use that reduce market value," Fletcher wrote. "If that were the rule, no land-use restriction would ever be safe from a takings challenge." "In sum, in Palazzolo, the landowner took ownership of the property subject to pre-existing wetlands regulations that had the potential, in the context of a specific proposed project, later to effect a regulatory taking. In this case, the Daniels purchased their property subject to the County's pre-existing options to accept dedication of any easement, which were already-accomplished physical takings," Fletcher wrote. "The Daniels, who purchased with the knowledge of the County's options to accept the easement, may not, by virtue of that purchase, revive their predecessors' time-barred claims for those takings." The Case: Ann Daniel v. County of Santa Barbara, No. 99-56887, 02 C.D.O.S. 2293, 2002 DJDAR 2839. Filed March 12, 2002. The Lawyers: For Daniel: Steven Amerikaner, Hatch & Parent, (805) 963-7000. For the county: William Dillon, county counsel's office, (805) 568-2950.

The U.S. Fish & Wildlife Service cannot ignore the one-year deadline to decide on a petition for protecting a species under the Endangered Species Act, the Ninth U.S. Circuit Court of Appeals has ruled. The court said the agency's practice of taking many years to decide on petitions for endangered species listings violated the law. Under the Endangered Species Act (ESA), citizens can present petitions to the Interior Department (the Fish & Wildlife Service's parent agency) asking that a plant or animal receive protected status. The federal regulators then have 90 days "to the maximum extent practicable" to make an initial determination on whether a petition presents enough information to deserve further study. If the initial determination is positive, the agency has 12 months from the date of the petition filing to decide whether a listing of the species under the ESA is warranted. The Fish & Wildlife Service has used the "maximum extent practicable" language as a loophole to go the beyond the 90-day deadline regularly. In fact, the agency can take years to make the initial determination. "However, if that determination is positive, the Service is already in violation of the twelve-month deadline for the final determination," Judge Johnnie Rawlinson wrote for the three-judge appellate panel. "That is exactly what happened in this case." Starting in 1995, the environmental groups in this case presented petitions for four species: the Spalding's catchfly, the southern California population of the mountain yellow-legged frog, the Great Basin redband trout, and the yellow-billed cuckoo. The Fish & Wildlife Service said prioritizing under a tight budget forced the agency to delay decisions on the petitions (see CP&DR Environment Watch, November 2001), so the environmental groups sued to force action. In what appeared to be a conflicting decision, Oregon District Court Judge Garr King ruled that the Endangered Species Act gave the Fish & Wildlife Service discretion to make an initial finding after the 12-month deadline for issuing a final warranted/not warranted decision on listing. However, Judge King also refused to let the agency go beyond the 12-month deadline for making the actual warranted/not warranted decision. King said the court did not have discretion to extend the permitted time. Both the environmental groups and the federal government appealed to the Ninth Circuit, which then ruled squarely for the environmentalists. "Under the Service's interpretation, it has 90 days ‘to the maximum extent practicable' to make the initial listing determination … but if it is not practicable to complete the determination within 90 days, the finding may be delayed indefinitely. We disagree with the Service's interpretation," Rawlinson wrote. That interpretation would render the 12-month deadline for a final decision inoperative, the court ruled. Rawlinson pointed to the legislative history as evidence that Congress wanted quick decisions on endangered species petitions. "While the Service asks us to embrace an interpretation of the ESA in which listings could admittedly take years, it is apparent that Congress passed the 1982 amendments for the very purpose of curtailing the process," Rawlinson wrote. The Ninth Circuit rejected a number of arguments presented by the Fish & Wildlife Service. The agency argued that the environmental groups lacked standing to bring the lawsuit and that, because the agency has since decided on the petitions in question, the lawsuit was moot. But the court ruled the groups could pursue the lawsuit. "Appellants' desire to use, observe, and study the stated plant and animal species is undeniably a cognizable interest for purpose of standing," Rawlinson wrote. Plus, the Fish & Wildlife Service's failure to act threatened the groups' interests. Neither was the case moot, the court held. The same groups have battled with the agency before on this issue, plus " hey have pending petitions, and the Service continues to interpret the statutory provisions at issue to allow it to delay action indefinitely." The appellate court also rejected the Fish & Wildlife Service's argument that the lower court could have allowed the agency to go beyond the 12-month deadline for final action. The lower court's decision was necessary to carry out the intent of Congress, the Ninth Circuit ruled. "The court had no discretion to consider the Service's stated priorities," Rawlinson wrote. The Case: Biodiversity Legal Foundation v. Badgley, Nos. 00-35076, 00-35089, 02 C.D.O.S. 2553, 2002 DJDAR 3129. Filed March 21, 2002. The Lawyers: For the foundation: Stephanie Parent, Pacific Northwest Environmental Advocacy Center, (503) 768-6707. For the Fish & Wildlife Service: M. Alice Thurston, Department of Justice, (202) 514-2000.

Local regulation of religious land uses has become the latest battlefield in California development. There are at least seven lawsuits pending over government regulation of church development, proposed private schools, and the use of facilities by religious ministries. Lawsuits have been filed against the cities of Concord, Cypress, El Cajon, Los Angeles and Morgan Hill, and against Alameda County and the California Coastal Commission. Additional lawsuits appear likely in Sierra Madre and Huntington Beach. "There are certainly more cases in California than anywhere else," said Roman Storzer, director of litigation for The Becket Fund for Religious Liberty based in Washington, D.C. "They regulate such uses to a greater extent than other states." The Religious Land Use and Institutionalized Persons Act (RLUIPA), approved unanimously by Congress in 2000, provides the basis for most litigation. The law, which many local government leaders and planners opposed, appears to give religious institutions the upper hand by prohibiting most regulation that is a "substantial burden" to religious freedom. Courts have not yet defined "substantial burden" and there are questions about how much evidence in the record is needed to deny religious land uses, said Vivian Kahn, an Oakland-based planning consultant and former American Planning Association (APA) board member. The federal law has had a chilling effect on planners, according to Kahn. "We see this as another federal pre-emption of local land use decision-making," she said. A long history While the controversy has flared during recent years, arguments regarding restraint of religion are very old, said Joseph DiMento, an urban planning and law professor at University of California, Irvine. Government has long regulated the secondary effects of religious land uses, such as traffic, glare and noise, he said. However, lawmakers and courts have begun constraining the ability of government to regulate secondary impacts, he said, pointing to a Massachusetts law that precludes any restriction on religious institutions. DiMento and others favor a content-neutral approach. "If you are treating the institution the same way you are treating others, it should be on the institution's shoulders to prove that it is being harmed," he said. The questions are complicated by the many manifestations of religion in the United States, and by the increased number of "mega-churches" that draw thousands of worshippers, DiMento added. The debate gained new life in 1997 when the U.S. Supreme Court, in City of Boerne v. Flores, 521 U.S. 507, struck down the Religious Freedom Restoration Act of 1993 as an unconstitutional limit on state and local government authority. Congress responded to that decision by approving RLUIPA, which is similar to the stricken statute. The new law prohibits government regulation that imposes a substantial burden on the exercise of religion unless the government proves the restriction is for a "compelling governmental interest" and it is the least restrictive means of furthering that interest. James Kushner, a visiting professor at University of Southern California law school who is helping update the six-volume California Environmental Law and Land Use Practice, said what RLUIPA requires of government regulators is uncertain at this point. There is little case law, and law review articles have not been helpful, he said. "I think that it's a cloud over what local government is permitted to do," Kushner said. One of the first RLUIPA cases decided so far in California concerned San Jose Christian College's proposal to convert a former hospital to a college campus in Morgan Hill. In 1999, Catholic Healthcare West (CHW) closed the 60-bed St. Louise Hospital and adjoining medical offices, shifting much of the staff to a CHW hospital in Gilroy. CHW put the 30-acre property on the market with the restriction that the site could not be used for medical purposes. San Jose Christian College proposed converting the hospital to a campus. However, the site is zoned for a hospital and city officials have been working with a new healthcare foundation to reopen the facility. In 2001 the City Council denied the college's rezoning application. "While this was the only site for a hospital, we allow churches and schools in almost any other zoning district," said Jim Rowe, Morgan Hill planning manager. "There were other sites available to San Jose Christian College." The college sued, but federal District Court Judge Ronald Whyte ruled that the college had not proven the City Council decision was a substantial burden. " Moreover," Whyte wrote, "RLUIPA does not grant religious institutions immunity from land use regulations." Brad Dacus, president of Pacific Justice Institute, which represented the college, said the city's decision did represent a substantial burden because the college has had to turn away students and reduce its ministries for lack of larger facilities. He is appealing the decision. The Morgan Hill situation is not uncommon: A church that wants to build facilities or use existing buildings is denied a variance, use permit or rezoning. More unusual is the case of the Cottonwood Christian Center, which is battling the Cypress redevelopment agency over a prime 18-acre site the church owns. The city has begun eminent domain proceedings to acquire the property for retail development. But the church, which sued earlier, wants to build a 4,700-seat sanctuary and support facilities. Different viewpoints Planners say they are simply applying regulations to religious institutions in the same way rules apply to secular developers and landowners. And, planners say, the First Amendment already affords religious institutions a great deal of protection. "I think the government has accommodated religion in every single way the constitution permits, and then some," said Kushner. "Yet people keep going to the legislature and demanding even more." Advocates such as Dacus of the Pacific Justice Institute and Storzer of the Becket Fund see the world differently. They argue that government finds ways to single out the activities of religious institutions, so laws such as RLUIPA are needed to ensure religious liberty. Dacus said many cities have not updated their zoning ordinances since RLUIPA became law. An ordinance that requires a church to get a discretionary use permit in every zoning district, for example, conflicts with RLUIPA, he said. "We intend to file many, many more lawsuits against cities and counties in the years ahead," Dacus said. "We'd much rather work constructively with municipalities ahead of time to avoid litigation. We are willing to assist without charge." Dacus and Storzer argue that government can block a religious institution's land use plans only if the project would endanger public health and safety. Economic concerns or speculative development possibilities cannot be a factor, Dacus contended. The APA's Kahn, however, believes planners can use content-neutral regulations to deal with religious land uses. RLUIPA, she said, treats churches like the Americans with Disabilities Act treats disabled people. The government has to provide a compelling reason for what it is doing, she said. "Make sure your ordinance does not treat religious land uses differently from any other uses that have the same impacts," Kahn added. "If you allow lodges and private clubs in a district, but not religious assemblies, you need to change your ordinance." She also said that economic concerns, especially in a redevelopment zone, can provide a legitimate basis for making decisions. A church that is often closed and that generates little foot traffic may not be an appropriate use for a parcel in an area where the city is trying to spur economic growth, she said. The APA wants to find a good RLUIPA test case, added Kahn, who is a member of APA's Amicus Committee. Alameda County's denial of a use permit application from Redwood Christian Schools might provide that case. Last fall, the Alameda County Board of Supervisors rejected the application, which would have allowed construction of a 650-student campus in a lightly developed area near Castro Valley, because the site is outside the voter-approved urban growth boundary. The school has since filed a lawsuit. One further complication in California is a state law that allows religious institutions to exempt themselves from local historic preservation laws. The state Supreme Court upheld the validity of that law in East Bay Asian Local Dev't Corp. v. State of Cal., 24 Cal4th 693 (2000) (see CP&DR Legal Digest, January 2001). Churches, synagogues and other houses of worship can be some of the oldest structures in a community and local governments often regulate structural changes to the historic buildings. Under the East Bay decision, a church could bypass such historic preservation regulation. Contacts: Vivian Kahn, Kahn Mortimer Associates, (510) 482-1031. Jim Rowe, Morgan Hill planning department, (408) 779-7247. James Kushner, USC School of Law, (213) 740-2542. Joseph DiMento, UC Irvine, (949) 824-5102. Brad Dacus, Pacific Justice Institute, (916) 857-6900. Roman Storzer, The Becket Fund for Religious Liberty, (202) 955-0095. Becket Fund website: www.becketfund.org