The California Supreme Court has accepted two more land use cases, one of which is a California Environmental Quality Act (CEQA) case that has generated quite a bit of discussion. The second one is an inverse condemnation case involving street landscaping that blocks a view of billboards. The CEQA case was filed, ironically, by potential developers. Muzzy Ranch Company, which owns 5,000 acres of farmland, sued the Solano County Airport Land Use Commission after the panel adopted a land use compatibility plan for territory surrounding Travis Air Force Base in 2002. The compatibility plan froze development on hundreds of thousands of acres over 35 miles at the level permitted by the existing general plan and zoning regulations. The airport commission determined that the plan was exempt from CEQA review. Muzzy Ranch argued that adoption of the plan would cause indirect environmental impacts by re-directing housing development that would have occurred around Travis to other locations in the region. A trial court judge rejected the argument, but the First District Court of Appeal accepted it (see , March 2005). The appellate court ruled that adoption of the plan was a “project” within the meaning of CEQA and required environmental review. Thus, one of the questions for the state Supreme Court is whether adoption of an airport compatibility plan that recommends maintaining a county's existing general plan and zoning is a project under CEQA. Furthermore, the appellate court specifically rejected the airport commission's contention that it could not study housing displacement because the commission would have to speculate about other agencies' future land use decisions. The court ruled that adoption of the plan was a “conclusive step” that “will foreseeably lead to some displacement of future development.” That part of the ruling has spurred discussion among CEQA practitioners over how far - in both time and distance - an environmental review must reach. The case is , No. S131484. The second case involves a billboard company that sought compensation for damages after the City of Los Angeles planted trees along Century Boulevard that blocked the visibility of six billboards near Los Angeles International Airport. The billboard owner contended that the landscaping amounted to inverse condemnation. However, the Second District Court of Appeal ruled that loss of visibility, without the loss of access to the billboards, was not enough to sustain the billboard owner's claim (see , May 2005). The Second District also ruled that the billboard company owed the city $83,000 in expert witness fees, even though the city accumulated the expense before a settlement offer was made. The billboard company said the awarding of fees violated the Code of Civil Procedure. The case is , No. S132619.

Two water transfers from irrigation districts to the City of Tracy did not require a combined environmental impact report, the Third District Court of Appeal has ruled. The court found that the separate negative declarations adopted by the irrigation districts provided adequate review under the California Environmental Quality Act (CEQA). The court rejected the Sierra Club's arguments that the entities involved had improperly segmented one project, that cumulative and growth-inducing impacts had not been adequate addressed, and that the effects of delivery cutbacks were ignored. In writing for the court, Justice George Nicholson issued this warning: “The Sierra Club's failure to raise any facts to suggest cumulative or growth-inducing impacts exposes a possible intent to use CEQA simply to create delay. We caution CEQA plaintiffs 'that rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic or recreational development and advancement.' ( , (1990) 52 Cal.3d 553, 576)” In 1993, Tracy adopted a new general plan, under which the city's population could roughly quadruple to 130,000 people over 20 years. The general plan's environmental impact report calculated that the city would need 39,000 acre-feet of water per year to serve all of the growth permitted by the general plan. The city at the time had only 16,000 acre-feet of water - 10,000 acre-feet from the federal Central Valley Project (CVP), and 6,000 acre-feet of groundwater. The EIR said the city was exploring possible water transfers and directed the city to secure additional water sources. In 2001, the city signed separate agreements with The West Side Irrigation District and the Banta-Carbona Irrigation District. The contract with West Side assigned 2,500 acre-feet of water rights from the Central Valley Project to the city, and gave the city an exclusive option to obtain another 2,500 acre-feet of West Side's CVP water. The agreement with Banta-Carbona assigned rights to 5,000 acre-feet of CVP water to the city. In September 2002, the districts adopted negative declarations for the transfer of annual water rights. The Sierra Club sued the districts and the city for allegedly violating CEQA. San Joaquin County Superior Court Judge Bob McNatt ruled against the environmental group, a ruling that the Third District upheld on appeal. The Sierra Club contended that the two water transfers amounted to one project under CEQA, and that the city - not the irrigation districts - should have prepared one EIR. The Sierra Club pointed out that the water transfers rely on nearly identical initial studies, both require city and Bureau of Reclamation approval, and both seek to convert 5,000 acre-feet of CVP water from agricultural to urban uses. The appellate court was not convinced. It found that the assignments of water rights were separate and that the water districts could serve as lead agencies for the environmental reviews. The assignments were approved by different agencies, may be implemented independently, are not contingent on one another, involve separate water rights and different amounts, and were negotiated separately, the court noted. “Moreover,” Justice Nicholson wrote, “both initial studies acknowledge the other proposed assignment and analyze the cumulative impacts of both assignments.” Regarding those cumulative impacts, the Sierra Club contended that the negative declarations were deficient. The documents reported that the water transfers would not have incremental effects because the transfers would have no impact on area hydrology or growth beyond what had already been studied in the general plan EIR. The Sierra Club listed development projects that should have been considered in the environmental review, but that list did not satisfy the court. “Merely listing, as the Sierra Club does, other projects occurring in the area that may cause significant cumulative impacts is not evidence that the assignments will have impacts or that their impacts are cumulatively considerable,” Nicholson wrote. As for growth-inducing impacts, the court noted that the new water would be provided only to areas covered by the general plan, and that the negative declarations incorporated the general plan EIR's discussion of growth-inducing impacts. That approach was sufficient, the court ruled. As for cutbacks in CVP water deliveries during droughts, Nicholson wrote, “ he entire environmental analysis consists of analyzing the impacts that would occur under the very situation of which the Sierra Club complains.” The Case: , No. C044989, 05 C.D.O.S. 3390, 2005 DJDAR 4507. Filed March 22, 2005. Ordered published April 20, 2005. The Lawyers: For Sierra Club: Donald Mooney, (530) 758-2377. For the irrigation districts: Jeanne Zolezzi, Herum, Crabtree, Brown, (209) 472-7700. For the City of Tracy: Martha Lennihan, (916) 321-4460.

A new opinion issued by the state attorney general's office regarding housing elements appears to allow cities and counties to skirt their mandated fair-share housing numbers if the local government lacks the resources sufficient to provide the units. However, a number of people involved in the housing element process have downplayed the importance of the opinion. The Department of Housing and Community Development (HCD) called it merely a restating of existing law that does not affect the requirement that local governments plan for their fare share of housing at all income levels. The opinion by Deputy Attorney General Gregory Gonot came in response to a request from San Luis Obispo County, where controversy over the last round of the regional housing needs assessment was particularly sharp. The county, cities and the San Luis Obispo Council of Governments (SLOCOG) were at odds with HCD over the number of housing units for which the state officials said the county and cities must plan, in part because the state-mandated figures clashed with local growth management policies (see , July 2002). In the end, the county was willing to incorporate thousands more units of moderate and upper-end housing units into the county housing element, thus relieving the burden on the seven cities. Growth management policies, however, were not part of the question that the attorney general chose to answer. After convincing SLOCOG to reduce four housing law inquiries down to a single question, the attorney general addressed only financial resources. Gonot concluded: “A community may establish its maximum number of housing units by income category that can be constructed, rehabilitated, and conserved over the next five-year period below the number of housing units that would meet the community's goal of achieving its share of the regional housing needs established pursuant to the planning and zoning law if the community finds that its available resources in the aggregate, including but not limited to federal and state funds for its housing programs, its own local funds, tax or density credits, and other affordable housing programs, are insufficient to meet those needs.” In a process that chafes local officials across the state, HCD determines how many housing units - and at what income level - a regional should plan for over a five-year period. Councils of government then divide those numbers of among member cities and counties, which are supposed to incorporate their assigned numbers into updated housing elements. This is all known as the regional housing needs assessment (RHNA) process. Government Code § 66583 authorizes a city or county to determine a “quantified objective” that sets the maximum number of housing units by income category that can be provided over five years, according to Gonot. This maximum number “need to be identical to the total housing needs” that come out of the RHNA process if the local government lacks the resources to satisfy the need, Gonot writes. “ he legal issue to be resolved is whether federal and state housing funds constitute part of a community's 'resources' for purposes of setting the community's quantified objectives,” the opinion states. “We believe that such funds constitute some of the resources of a community.” The opinion continues, “We note, however, that if a lack of federal and state funds is found by a community to be one of the circumstances causing the community to set its quantified objectives below the number representing its total housing needs, the validity of such determination may be challenged in court by any interested party pursuant to the terms of Government Code § 65587. Moreover, it would not be appropriate to look solely at the unavailability of federal and state housing funds without determining whether other resources were available to meet the community's share of the regional housing needs.” In San Luis Obispo County, the opinion states “basically what we had assumed,” said Peter Brown, a planner for SLOCOG. Brown said SLOCOG raised the question for the AG because of concerns that the RHNA process created unfunded mandates on local governments that are unable to accommodate all of the new housing assigned by the state. The AG's opinion appears to say that there is no unfunded mandate because local governments must take into account federal, state and local resources. Still, the opinion does recognize that there are limits to what local governments can do to provide housing, said Bill Higgins, of the League of California Cities' Institute for Local Government. Funding for affordable housing is “a huge limitation,” he said. But if a city that is updating its housing element cites funding limitations, it had better be prepared to defend itself to both HCD and a court, he added. Janet Huston, an HCD spokeswoman, called the opinion a “reiteration of current law.” “The law is clear that communities have to plan for these targets, but you can't force communities to construct those units,” Huston said. “There's really nothing new in this regard in the opinion.” The opinion does spell out what resources a city or county must consider, which is helpful, she said. Mike Rawson, an attorney for the California Affordable Housing Law Project, said that the opinion did not break new ground. “Before the question was asked, I think everybody agreed on the answer: Your quantified objective in the housing element does not have to be equivalent to your housing need,” Rawson said. The requirement to plan for a fair share of housing units is a separate question, he said. Rawson agreed with HCD officials that the opinion is helpful in specifying that a city or county must count all resources available - federal, state and local. The attorney general's opinion is No. 03-104. It was published May 18, 2005 at 2005 DJDAR 5766. Contacts: Peter Brown, San Luis Obispo Council of Governments, (805) 781-4219. Janet Huston, Department of Housing and Community Development, (916) 324-4477. Mike Rawson, California Affordable Housing Law Project, (510) 891-9794, ext. 145. Bill Higgins, League of California Cities, Institute for Local Government, (916) 658-8250.

If an oil company wants to build a service station in California, it typically needs a permit from the local air pollution control agency, which has the authority to consider whether vapors released during fueling might harm neighbors. If the station is a big one and has been proposed for a vacant lot next to a day-care center, the oil company might never get that permit. But if a developer proposes building a day-care center next to a service station, no air-quality permit is required. Local land use authorities, such as the city council or planning commission, would provide the only review, and they may or may not consider the health implications of toxic air emissions when deciding whether the site is appropriate for children. The same goes for many other projects - medical clinics, housing tracts, schools, retirement homes, playgrounds - with the potential to place vulnerable populations near existing uses that may jeopardize their health. In an effort to integrate public health into the review process, the California Air Resources Board (ARB) has adopted a set of guidelines local agencies can use to prevent land use conflicts of this sort. The board approved the document, titled “Air Quality and Land Use Handbook: A Community Health Perspective,” on April 28. Although it promises to address an issue of growing concern to health advocates, the handbook also promotes a policy shift that could complicate efforts by California communities to redevelop their aging urban fabric using “smart growth” principles. If widely employed, the policies and procedures outlined in the handbook also would involve local air quality officials more deeply in the project review process. While welcomed by environmental justice advocates, who argue that communities have long dumped undesirable projects on poor and minority neighborhoods, the prospect of an additional hurdle is likely to dismay developers, who are already critical of the slow pace, complexity and cost of regulatory compliance in California. The risk of developing acute illness from direct exposure to substances known to be toxic or carcinogenic is well established. It is only recently, however, that researchers have begun identifying proximity to traffic-clogged freeways, or to ports and distribution centers frequented by diesel trucks, as risk factors for a variety of health problems, including asthma and heart attacks. Many of these stem from exposure to the fine soot particles in diesel exhaust. “Recent air pollution studies have shown an association between respiratory and other non-cancer health effects and proximity to high traffic roadways. Other studies have shown that diesel exhaust and other cancer-causing chemicals emitted from cars and trucks are responsible for much of the overall cancer risk from airborne toxics in California,” the ARB handbook warns. As a remedy, the ARB handbook recommends that local general plans, zoning laws and conditional use permit requirements be revised to prevent new “sensitive land uses” - characterized as any residence, schools and other facilities for children, and any medical facility - from being approved in the following areas: o Within 500 feet of a freeway, urban roads with 100,000 vehicles a day, or rural roads with 50,000 vehicles a day. o Within 1,000 feet of a distribution center that accommodates more than 100 trucks per day. o Within 1,000 feet of a major service and maintenance rail yard. o Immediately downwind of ports and petroleum refineries. o Within 1,000 feet of a chrome plater. o Within 300 feet of any dry cleaning operation that uses perchloroethylene. o Within 300 feet of a large gas station, defined as one that dispenses 3.6 million gallons or more per year, or within 50 feet of a typical gas station. “Our intent is to highlight potential health impacts associated with living, playing and going to school near high air pollution sources so land use decision makers can consider these issues throughout the land use planning process,” ARB Acting Chair Barbara Riordan said in announcing the handbook's adoption. The ARB handbook is one of several efforts under way in California to bring air-quality considerations into the planning process. Legislation pending in Sacramento, SB 44 by Sen. Christine Kehoe (D-San Diego), would require local governments to add air quality elements to their general plans. And on May 6, the South Coast Air Quality Management District board approved a “Guidance Document for Addressing Air Quality Issues in General Plans and Local Planning,” which suggests ways local governments in the Los Angeles region can implement regulations similar to those outlined in the ARB handbook. There is a clear public health interest in keeping schools, day-care centers, medical clinics and other "sensitive uses” away from industrial plants, heavily traveled freeways and other pollution sources. The handbook acknowledges, however, that a rigorous application of that principle would require buffer zones and other constraints that might hamper urban infill projects, transit-oriented development and other hallmarks of the smart growth movement. “Avoiding incompatible land uses can be a challenge in the context of mixed-use industrial and residential zoning,” the documents says. “For a variety of reasons, government agencies and housing advocates have encouraged the proximity of affordable housing to employment centers, shopping areas, and transportation corridors, partially as a means to reduce vehicle trips and their associated emissions.” To developers and builders, the policy recommendations appear to transfer responsibility for reducing the adverse health effects of air pollution from the polluter to innocent bystanders - namely, the building industry. Tim Piasky, director of environmental affairs for the Building Industry Association of Southern California, argued that the ARB should require diesel users to clean up their emissions rather than advise landowners to surrender property for buffer zones. Requiring such buffers without compensating landowners, he suggested, could amount to an unconstitutional taking of property. Additional restrictions also would drive up the cost of housing, he warned. Environmental justice advocates, however, are cheered by the prospect that health considerations might begin to play a stronger role in local land use decisions. “We're not asking for sprawl” said Joseph Lyou, executive director of the California Environmental Rights Alliance. “We just want to make sure the growth in urban areas is done in an informed manner, and one that acknowledges the public health impacts of these land use decisions.” Contacts: Air Resource Board's “Air Quality and Land Use Handbook: A Community Health Perspective”: www.arb.ca.gov/ch/landuse.htm . Building Industry Association of Southern California, (909) 396-9993. California Environmental Rights Alliance, (310) 536-8237.

West Sacramento appears to be a city whose time has come. For many years before and after its incorporation in 1987, West Sacramento has been a manufacturing and logistic industry hub. While the Sacramento region has grown in recent decades, that growth has gone mostly east and south of Sacramento to suburbs such as Roseville, Folsom and Elk Grove. Meanwhile, West Sacramento - right across the Sacramento River from the capital city - bided its time. Now, developers have “discovered” the Yolo County city of 40,000 people. Developers are building thousands of suburban-style houses in the southern half of town. In the northern part of town (a ship channel cuts the city in half), the city is seeing private market interest in redevelopment plans that could transform parking lots and a rough industrial area into an urban mixed-use district. Also on the way: Extension of a riverfront promenade for 3 1/2 miles, and redevelopment of West Capital Avenue into a walkable, heavily landscaped boulevard. “West Sacramento had this rough and tumble, wild West image in the region,” said longtime Community Development Director Steve Patek. “The regional developers just were not willing to take a chance here.” But when new houses started selling quickly in the southern half of town about five years ago, developers started looking for opportunities in West Sacramento, Patek said. And when a 57-unit, new urbanist-oriented housing project across the I Street bridge from Sacramento sold out quickly last year, more developers took note. During the 1930s, '40s and '50s, thousands of modest homes were built in West Sacramento. From the 1950s through the 1980s, industrial development, including warehouses, predominated. The Port of Sacramento opened in West Sacramento during the 1960s. West Sacramento leaders, however, saw more potential for their town - potential that was not being realized. So they led a successful incorporation effort. Within three years of incorporation, however, the real estate market crashed just about everywhere in California, including in the Sacramento region. The real estate slowdown provided West Sacramento with a chance to plan. Over a period of years, the city adopted the Southport Framework Plan, which calls for 14,000 housing units and 4 million square feet of commercial and industrial space on the 7,100 acres in the southern half of town (see , March 2000). In 1997, the city completed a second bridge across the shipping channel connecting the two parts of town. The city also adopted the Triangle and Washington specific plans for riverfront redevelopment, an action plan for West Capital Avenue redevelopment, and more recently completed a waterfront plan in cooperation with the City of Sacramento. In 1999, the city landed a stadium for the AAA-affiliate of the Oakland A's (see , March 1999). When Raley Field opened just across the river from Old Town Sacramento, many people thought that West Sacramento riverfront redevelopment was on its way - especially because the stadium was near the iconic Ziggurat office building constructed for The Money Store during the 1990s. But redevelopment continued to wait. The Money Store, a “sub-prime” lender, went under several years ago, and the 11-story Ziggurat has not been fully occupied since. In the Triangle Area just south of Raley Field, a railroad spur serving a cement plant created both a “physical and psychological barrier” to plans for new development, said West Sacramento Redevelopment Manager Les Bowman. But there is reason to believe the city's long-held plans to make something of its waterfront are moving forward. The city has committed to moving the cement plant to a location near the port, which could cost the city's redevelopment agency as much as $15 million, Patek said. But the move will allow destruction of the rail spur. If all goes smoothly, private development in the area could start in about 2 1/2 years, according to Bowman. The specific plan for the 180-acre Triangle area calls for up to 5,000 dwelling units, 7 million square feet of offices and retail space, and a riverfront park with an amphitheater. The largest landowner, Fulcrum Capital Properties, which has ties to the Rumsey Band of Wintun Indians, is the largest landowner in the specific plan area and has submitted an application for 1,750 dwelling units and 1.1 million square feet of office space on 50 acres. In the Washington specific plan area just north of the stadium, Panattoni Development and Signature Properties have proposed a 27-acre, mixed-use project of 750 dwellings, 845,000 square feet of offices, some commercial and retail uses, and a hotel and conference center. The Signature portion of the project - 550 condominiums and local-serving retail space on 7.4 acres - is remarkable for its density. There is nothing quite like it in the region, said John Bayless, a Signature vice president. The location is the attraction: Right across Tower Bridge from Sacramento. “We're just looking at the extension of the Capital Mall. West Sacramento has the opportunity to extend that parkway feel across the river,” Bayless said. “The risk is that you're going in where there is nothing. The benefit is that those who come along at the same time or after use will bring new product.” Bowman believes the project makes sense. “It's the right place for those densities, and it's the right time for those densities,” he said. “It's literally a stone's throw to downtown. I can't think of a better place to put those densities from a 'smart growth' perspective.” The connection to downtown Sacramento provided by the two-lane Tower Bridge is critical to riverfront development - so critical, in fact, that the two cities have cobbled together $9 million to fund the construction of 10-foot-wide walkways on the historic bridge. Construction could start next year, Bowman said. Pedestrians and redevelopment efforts will also benefit from the planned River Walk Park extension. Ultimately, the city hopes to have a 3.5-mile linear park along the river. The city is now seeking designs. Tower Bridge links Sacramento's Capital Mall with West Sacramento's West Capital Avenue, where the city plans to invest $18 million over five years. The plan is to narrow the former Highway 40, which is up to eight lanes wide, to four lanes, build wide sidewalks, plant extensive landscaping and leave room for a light rail line in the median. City officials hope the conversion will spur private investors to build high-density housing along West Capital, which is lined with underused stores and low-rent motels. “It's a classic planning and redevelopment problem that communities all over the country have had, which is what do you do when the highway bypasses your primary street,” Bowman said. The city's plans have attracted an application from a developer who wants to build 200 townhouses along West Capital. What's going on the ground right now in West Sacramento, though, is suburban-style development. Since 2000, the city has issued permits for 4,000 units in the Southport area, according to Patek. On the city's north end, Grupe is developing a high-end, 1,100-unit house and multi-family project on a former golf course. And there is an application for another 2,000 units in an area proposed for annexation south of Southport. West Sacramento is also getting its first power center on an 80-acre site adjacent to Interstate 80. Ikea will be an anchor. Patek expects the 900,000-square-foot center to be full in less than three years. Contacts: Steve Patek, West Sacramento Community Development Department, (916) 617-4620. Les Bowman, West Sacramento Redevelopment Agency, (916) 617-4535. John Bayless, Signature Properties, (916) 789-2400. Sacramento Riverfront Master Plan: www.cityofsacramento.org/riverfrontmasterplan .

A City of San Francisco decision to deny an application for a cell phone antenna has been upheld in part by the Ninth U.S. Circuit Court of Appeals. The court, though, found that questions remained as to whether the city improperly discriminated against the antenna applicant and whether the denial prohibited the provision of wireless services. The Ninth Circuit sent the case back to the District Court for further proceedings. The permitting of cell phone antennas has vexed planners since Congress passed the Telecommunications Act of 1996. Exactly how far local governments may go in regulating wireless communication antennas has been the subject of extensive litigation. With it latest ruling, the Ninth Circuit attempted to make some rules clearer. In early 2002, MetroPCS applied for a conditional use permit to install a six-panel antenna on an existing light pole on the roof of a Geary Boulevard parking garage in the Richmond District. The Planning Commission approved the permit, but a resident appealed to the Board of Supervisors. Eighty local property owners and hundreds of other San Francisco residents signed petitions supporting the appeal. They argued that the antenna was not necessary for MetroPCS or the community, that the antenna would create a visual blight, and that the antenna would produce harmful radio frequency emissions. In June 2002, the Board of Supervisors unanimously overturned the Planning Commission's decision. MetroPCS then filed a suit in federal court. The company argued that the board's decision violated the Telecommunications Act because it was not “in writing,” was not supported by substantial evidence, was unreasonably discriminatory among wireless service providers, prohibited the provision of wireless service and was improperly based on radio frequency emissions concerns. District Court Judge Phyllis Hamilton issued summary judgment for the city regarding all claims except one. Hamilton found that material questions of fact remained as to whether the board's decision “had the effect of prohibiting the provision of personal wireless services.” Both sides appealed, and a three-judge panel of the Ninth Circuit largely upheld the lower court. The Ninth Circuit first dealt with the question of whether the board's decision was in writing. The Circuit Courts are divided on exactly what the Telecommunications Act means by “in writing.” Some circuits demand detailed written explanations similar to a court ruling, while the Fourth Circuit is satisfied with the word “denied” stamped on an application. The Ninth Circuit panel chose to follow the standard set in , 244 F3d 51 (First Circuit, 2001). The standard requires local governments to “'issue a written denial separate from the written record' which 'contains a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons,'” according to the Ninth Circuit. Under this standard, the San Francisco board's five-page written decision - which summarized the facts, recounted the proceedings, articulated the board's reasoning and explained the evidentiary basis for the decision - stood up. The next issue for the court was whether substantial evidence existed to support the permit denial. On this issue, the court divided 2-1. The majority held that the court “may not overturn the board's decision on 'substantial evidence' grounds if that decision is authorized by applicable local regulations and supported by a reasonable amount of evidence (i.e., more than a 'scintilla' but not necessarily a preponderance).” The board based its decision in part on the necessity of the antenna. Local zoning regulations authorize the community necessity decision, and, according to the court majority, “the record does clearly establish that the Richmond District is amply served by at least five other major wireless service providers.” Thus, the majority ruled that substantial evidence existed for the board to conclude the proposed antenna was not necessary. Dissenting on this one point, Judge Susan Graber said the board's determination of necessity conflicted with the Telecommunications Act's provisions barring unreasonable discrimination among service providers. “ he board's 'necessity' finding cannot support its denial of MetroPCS's request even if substantial evidence supports that finding,” Graber wrote. The court reunited on the company's discrimination claim. Here, the appellate panel overturned the lower court. The Telecommunications Act contemplates some discrimination. To prove unreasonable discrimination, a provider “must show that they have been treated differently from other providers whose facilities are 'similarly situated' in terms of the 'structure, place or cumulative impact' as the facilities in question,” the court ruled, citing , 196 F.3d 469, 480 (Third Circuit 1999). The Ninth Circuit held that the record was unclear on whether the city treated MetroPCS's proposed antenna differently. SprintPCS has a wireless facility on Geary Boulevard only two blocks away, and Cingular Wireless has a rooftop antenna in the same neighborhood and “there appears to have been no detailed inquiry into the similarity of the existing facilities to the proposed MetroPCS facility,” Seventh Circuit Judge Richard Cudahy, sitting by assignment, wrote for the court. Thus, the Ninth Circuit sent the question of discrimination back to the lower court. As for MetroPCS's prohibition claim, the question boiled down to the definition of “significant gap” in service. The Second and Third Circuits have ruled that a significant gap exists only if no provider offers coverage, while the First Circuit defines “significant gap” as one in which the provider in question has a hole in its network. The Ninth Circuit chose the First Circuit's rule. “ significant gap in service, and thus an effective prohibition of service, exists wherever a provider is prevented from filling a significant gap in service coverage,” Cudahy wrote. Whether that was case for MetroPCS in the Richmond District was unclear, so the District Court rightly declined to grant summary judgment to either side, the Ninth Circuit ruled. Finally, the Ninth Circuit rejected MetroPCS's argument that the Federal Communications Commission's licensing authority preempted a city decision regarding “necessity,” and dismissed the claim that the board relied on radio frequency emissions as a basis for its decision - which the Telecommunications Act specifically prohibits. The board's written decision did not mention radio frequency emissions. The Case: , No. 03-16759, 05 C.D.O.S. 1988, 2005 DJDAR 2835. Filed March 7, 2005. The Lawyers; For MetroPCS: Martin Fineman, Davis, Wright, Tremaine, (415) 276-6500. For San Francisco: William Sanders, deputy city attorney, (415) 554-6771.

The meetings of two Malibu City Council members whom the council had charged with reviewing and negotiating over a land use plan prepared by the Coastal Commission were not subject to the state's open meeting law, an appellate court panel has ruled. A citizens group argued that then-Mayor Joan House and Councilman Jeff Jennings were functioning as a committee that should have been covered by the Brown Act, which regulates local government meetings. But the court ruled that House and Jennings composed a “limited term ad hoc committee” that was not required to meet in public. Adoption of a Local Coastal Plan (LCP) - a plan that regulates development in the coastal zone - has been a controversial issue in Malibu since the city incorporated in 1991. The city never adopted an LCP, so the state Legislature directed the Coastal Commission to prepare a plan for the city. The city has fought the Coastal Commission every step of the way. In September 2001, the Coastal Commission issued a draft of the land use plan (LUP), one element of the coastal plan. Thereafter, House and Jennings conducted private meetings with various individuals and staff members to “go over the city's response” to the draft plan, according to the court. In December 2001, House and Jennings recommended that the City Council not accept the Coastal Commission's plan. The council directed House and Jennings to continue negotiating with the Coastal Commission. Some people had asked that House and Jennings open their meetings to everyone, but city officials insisted that public meetings were not required. A group called Taxpayers for Livable Communities sued, arguing that the meetings violated the Brown Act (Government Code § 54950). Los Angeles Superior Court Judge Ronald Sohigian ruled for the city, finding that House and Jennings were not a “legislative body” to which the Brown Act would apply. Taxpayers for Livable Communities appealed. A three-judge panel of the Second District Court of Appeal, Division Eight, upheld the lower court. Taxpayers for Livable Communities argued that House and Jennings were a standing committee for land use and planning. Standing committees of a legislative body are subject to the Brown Act. Jennings and House were the only two members of the Land Use and Planning Committee, but the trial court and the appellate panel ruled that the City Council had reserved for itself jurisdiction over the city's response to the Coastal Commission. “ ust because the Land Use and Planning Committee tried to develop Malibu's Local Coastal Program does not mean the City Council gave the Land Use and Planning Committee jurisdiction over the city's response to LUP for Malibu,” the appellate court ruled. Taxpayers for Livable Communities also argued that House and Jennings were an “other body” within the meaning of the Brown Act because they had decision-making authority. The appellate court, however, pointed to the Attorney General's “2002 Handbook on the Brown Act.” “ he Handbook,” wrote the court, “offered as an example of an exempt advisory committee 'two city council members named to a committee for the purpose of producing a report in six months on downtown traffic congestion.' The Handbook explains that the Brown Act does not apply to the traffic committee because it is a 'limited term ad hoc committee' charged with accomplishing a specific task in a short period of time. Change the subject matter from traffic congestion to the Coastal Commission's Land Use Plan, and Jennings and House are indistinguishable from the Handbook's hypothetical council members.” Taxpayers for Livable Communities argued that the evidence regarding the responsibilities of House and Jennings could be interpreted differently, but the Second District ruled that the trial court properly resolved any conflicts in favor of the city. The Case: , No. B168630. 05 C.D.O.S. 1366. 2005 DJDAR 1855. Filed February 15, 2005. The Lawyers: For Taxpayers: Corin Kahn, (818) 907-8986, For the city: Christi Hogin, Jenkins & Hogin, (310) 643-8448.

Raise the topic of suburban sprawl in California, and you most likely launch a conversation about the San Fernando Valley, coastal Orange County, or the bedroom communities inland of San Francisco Bay. Only belatedly, if at all, will the conversation wander to the high desert, historically home only to scattered, windblown settlements scraped out of sand and creosote bush. That image is no longer accurate. The high desert is booming, particularly the Antelope Valley and the hinterlands of San Bernardino County, thanks to cheap desert land, soaring housing costs near the coast, and the apparently boundless willingness of Californians to commute on congested freeways. That boom has raised the stakes with regard to a habitat conservation plan (HCP) released in March by the Bureau of Land Management (BLM) and two local agencies. The West Mojave Plan is the largest HCP ever developed in the United States, a complicated set of strategies intended to balance development and other activities with conservation of habitat for more than 100 sensitive wildlife species. The plan encompasses 9.3 million acres, a tenth of the state. The planning area includes public and private land in Kern, Los Angeles, San Bernardino and Inyo counties; 11 incorporated cities, including Palmdale, Lancaster, Victorville, Apple Valley, Yucca Valley, Ridgecrest and Barstow; four military bases; and two national parks. It runs from Olancha south to Joshua Tree, and from the San Gabriel Mountains east to Baker. About 2.9 million acres in the plan area are privately owned; the remainder is in public hands. Twelve years in the making, the plan consists of two parts: new management regulations for the BLM's domain in the west Mojave - part of the sweeping California Desert Conservation Area established more than two decades ago - and an HCP governing private activities that affect protected species of plants and animals. The HCP is intended to streamline a permitting process that developers and property owners decry as time-consuming, costly, uncertain and needlessly complicated, thanks to Endangered Species Act protections for federally listed species such as the desert tortoise, and for candidate species such as the Mohave ground squirrel. Legal protections for unlisted species such as the burrowing owl, commonly found in urban areas in the desert, make the development process even more complicated and expensive. The Mojave HCP is like the other 500 or so HCPs adopted nationwide, in that it trades permission to destroy protected species and their habitat in exchange for preservation of habitat elsewhere and other protective measures. The Mojave Plan sets aside specific zones around the region's fast-growing cities and towns where development will be allowed without requiring individual landowners to conduct wildlife surveys and apply for incidental take permits under the ESA. Local governments must sign on to the plan for its provisions to apply to development in their areas. Once they do, landowners will be able to obtain incidental take permits from the federal government through the standard city or county planning and approval process. Streamlining that process for fast-growing desert communities was one of the primary reasons so many local agencies participated in the long, delicate process of negotiation that produced the plan, said Larry LaPre, desert district wildlife biologist for the BLM. The plan sets aside 1.5 million acres as “desert wildlife management area” to protect the tortoise and other sensitive species. In those areas, some activities such as mining, off-road vehicle use and grazing will be allowed, but under strict limitations intended to keep ground disturbance to 1% or less of the surface area, LaPre said. The plan also establishes a schedule of mitigation fees for development in the west Mojave, ranging from $385 an acre for construction on already disturbed land to $3,800 an acre inside wildlife conservation areas. The money is intended to help pay for $79 million worth of conservation projects identified in the document, LaPre said. The BLM will impose the fees for development on its property as soon as a record of decision is signed and the plan is implemented. For the fees to take effect on private property, individual cities and counties will have to adopt them by ordinance. Local government officials and planners were cautiously optimistic about the plan, development of which was spearheaded by the BLM, San Bernardino County and the City of Barstow. “We believe the plan strikes a good balance between protecting the environment and the sensitive lands while allowing for growth consistent with the city's general plan,” said Scott Priester, Barstow's community development director. Environmentalists, however, are alarmed by increasing pressure to develop the high desert. And environmentalists are less enthusiastic than local officials about the West Mojave Plan, saying the restrictions it places on development, mining and off-road use are inadequate to recover the desert tortoise and protect other species. “Because the government has decided to ignore science and endangered species recovery, the West Mojave Plan will be challenged” in court, said Daniel Patterson, desert ecologist for the Center for Biological Diversity. “The plan really is a giveaway to industry … It's a big disappointment to the conservation community.” No matter one's view on the plan, growth is proceeding at a rapid pace, as illustrated by a recent U.S. Census report. According to figures released April 14, San Bernardino County grew 3.2% last year, adding about 59,000 residents. Over the past four years, the county's population has grown by 12.4%, more than twice the rate for the state as a whole. That growth is most rapid in the high desert. Victorville, for example, expects to see 4,000 new houses this year alone. On the western edge of the high desert, the Antelope Valley continues to boom. The combined population of Lancaster and Palmdale is now more than 260,000. What the populous and pleasant coastal counties cannot offer, however, is relatively affordable housing, and that is the factor largely responsible for population growth in such places as Victorville and Morongo Valley. Although increasing demand is driving up prices even in desert towns, the desert remains considerably more affordable than the Southern California metropolitan area as a whole. The median house price in the Southern California metro region in March was $439,000, but in the high desert the median price was only about $260,000. Contacts: Larry LaPre, Bureau of Land Management, (951) 697-5220. Daniel Patterson, Center for Biological Diversity, (520) 623-5252. Scott Priester, City of Barstow, (760) 256-3531. San Bernardino County, (909) 387-4147.

Six months after his re-election, President George W. Bush is seeking to place his distinct imprint on federal urban policy. In the popular press, Bush's proposals for both Section 8 housing vouchers and Community Development Block Grant (CDBG) funding have been characterized as classic Republican “cutting and gutting.” True to form, however, Bush is not just “cutting and gutting” but seeking subtly to make a radical shift in federal policy. In so doing, he is proposing to wipe out popular reforms put into place by his own Republican predecessors - partly by claiming they are Democratic programs that have failed. It is unlikely that Bush will succeed in an overhaul this year; both programs have strong support in Congress and appear likely to make it through at least one more fiscal year without significant change. But even if his “Strengthening America's Communities Initiative” doesn't fly this year, Bush does not look like he is going to give up. A task force designed to promote the idea met for the first time during April in Fresno, hosted by Mayor Alan Autry, a task force member. On Section 8, Bush is seeking to take a housing assistance program revamped by the Reagan administration on a voucher model and move it toward a block grant model. On the CDBG program, Bush is proposing to do away with a block grant program shaped by the Nixon administration and replace it with a new set of programs that are targeted at economic development efforts. Along the way, he is seeking to shift control over much federal urban policy from the Department of Housing and Urban Development (HUD), which has a constituency of mostly Democratic central-city mayors, to the Department of Commerce, which has a constituency of mostly Republican business leaders. Not surprisingly, low-income housing advocates and local officials around the country are making a lot of noise. One coalition of community development organizations said the president wants to “divert the public's attention from the huge funding cuts that he wants to make to housing and community development programs that help low-income people.” (It's true that Bush proposes scrapping $5.1 billion in HUD programs - mostly CDBG - and replacing them with $3.7 billion in Commerce Department programs.) The Section 8 debate has been more technical but no less spirited. Throughout it all, one thing is clear: Bush is proposing a far more radical shift than either Ronald Reagan, who happily ignored most urban programs, or his father, who appointed the inspiring Jack Kemp as HUD secretary. In the case of the CDBG and a number of other federal programs, the Bush administration argues that their purpose should be narrowed and re-defined. “Most of these programs,” the administration's overview of the Strengthening America's Communities Initiative states, “currently lack clear goals or accountability measures.” But that was the whole point when the Nixon administration created the CDBG program in 1974, mostly as a sop to the emerging suburban constituencies of the time. The Great Society effort of the 1960s had created a passel of categorical urban aid programs - federal programs designed to address specific categories of urban problems. Among other things, these programs were designed to provide aid directly to Democratic mayors, bypassing Republican state governments. It was Nixon, seeking to mollify a Democratic Congress even while nurturing suburban Republicans, who rolled these programs into block grants, giving local governments more spending flexibility. The CDBG has survived with bipartisan support ever since. Whether or not it is “successful” depends on your definition of success, but it is certainly popular. The Bush proposal would re-establish strong federal control over the goals and purposes of community and economic development programs by using the money to target specific development strategies in specific distressed communities. In this way, the Bush administration proposal represents an eerie mirror image of the Johnson administration's original vision of urban aid. But it's a tough sell on Capitol Hill. Virtually all American municipalities feed at the CDBG trough, and they are fighting hard to keep maximum funding and maximum flexibility. Many presidents have learned the hard way that it is difficult to target federal aid once Congress gets involved. In the words of Baltimore developer Robert Embry, who hatched the Urban Development Action Grant program as an assistant HUD secretary in the Carter administration, “If you want Congress to pass a program for distressed areas, you had better make sure there are 218 distressed areas in the country.” (The House of Representatives has 435 members; 218 is 50%+1.) Bush's Section 8 reform proposals are even more indicative of how things have changed for Republicans during the last 20 years. The last major Section 8 revamp came when Reagan ditched Johnson-era housing programs aimed at housing production in favor of voucher programs that gave low-income renters the ability to obtain housing in the private marketplace. Most Section 8 vouchers are given to extremely poor people, usually those making 30-50% of median income. The tenants pay 30% of their income for rent; HUD pays the rest. Though controversial at the time, the voucher approach was a logical evolution. The original construction programs were aimed at eliminating substandard housing for the poor - the biggest problem of the 1960s. The voucher programs were aimed at dealing with the biggest problem of the 1980s - the fact that poor people couldn't afford housing. But over the long term maintaining a market-oriented voucher program has proven more expensive than building affordable housing for the simple reason that there is no brake on rents in the open market. The gap between market rents and the incomes of poor people has grown, meaning that the feds have had to throw more money into the subsidies, especially in high-cost housing markets like California. Furthermore, during the past few years, Congress has expanded the Section 8 voucher program to provide ongoing housing assistance to poor families who had been living in the federally assisted housing projects originally built during the '60s and '70s. Many of those projects reverted to market rents after 30 years. All this means there are more than 2 million families using Section 8 vouchers, and most of HUD's discretionary funding now goes to Section 8. The specifics of Section 8 are very technical, and Section 8 defenders have provided fine-grained rebuttals claiming that program costs are not rising as fast as the Bush administration claims. The bottom line, however, is that Bush's proposal would cap on Section 8 expenditures and possibly create a block grant program for local public housing authorities. The administration appears to be hoping to free up money to fund a home ownership program that would focus on families that are poor (60% of median income) but not extremely poor, as Section 8 does. Bush is proposing a Single-Family Ownership Tax Credit program, similar to the Low-Income Housing Tax Credit program. Difficult as it is to keep Section 8 going in an expensive market like California, it would be just as difficult to accomplish ownership goals, especially if the tax credits were focused on single-family detached dwellings. On the other hand, an ownership program would “lock in” costs at the front end of a project so that federal subsidies would not have to keep rising as the real estate market goes up. There is nothing wrong with re-thinking the goals of federal programs over time. A more targeted community development program might be more effective than a block grant program at achieving certain goals; an ownership housing program might help stem the Section 8 program's red ink. But Bush's proposals highlight the idea that there are no permanent solutions. One generation's magic bullet - liberal or conservative - can become the next generation's boondoggle or sacred cow.

A lawsuit filed by Malibu property owners while the City of Malibu was suing the Coastal Commission was not a Strategic Lawsuit Against Public Participation, the Second District Court of Appeal has ruled. The unanimous three-judge appellate panel also upheld the trial court's award of $35,000 in fees to the property owners and ordered the city to pay appeals costs. As with most Malibu land use controversies, local history colors this case. That history extends to the first nine years of Malibu's cityhood, during which the city never adopted a required Local Coastal Plan (LCP). Because there was no locally certified LCP, the Coastal Commission itself had to decide on applications for development permits. The state panel often spent one day a month dealing with permit applications from Malibu, nearly all of which lies in the coastal zone. In 2000, the Coastal Commission sought and won statutory authority to write an LCP for Malibu. The Commission adopted the plan in 2002. Malibu voters responded by gathering signatures on a petition to force a local referendum of the state-authored plan. The city then declared the LCP invalid, but the Coastal Commission refused to budge. The city sued the Coastal Commission but lost at both the trial court and appellate court levels. In ., 121 Cal.App4th 989 (see , October 2004), the court held that the state Legislature could require the Coastal Commission to write the LCP and that the state-prepared plan was not subject to local referendum. In July 2003 - while Malibu's appeal was pending before the Second District - property owners David and Sandra Visher applied for a coastal development permit (CDP) so that they could build a house on their vacant lot. The city refused to issue the permit. The city contended that granting the permit would amount to voluntary compliance with the trial court's order, thus jeopardizing the city's appeal. The Vishers sued to force the city to process their application. The city argued that the Vishers filed their lawsuit in response to the city's appeal in the Coastal Commission case, making the Vishers action a Strategic Lawsuit Against Public Participation (SLAPP). Such lawsuits are intended to hinder constitutionally protected rights of free speech and petition, and Code of Civil Procedure § 425.16 subdivision (b)(1) authorizes courts to dismiss SLAPP lawsuits. Thus, the city asked the trial court to dismiss the Vishers' lawsuit. Los Angeles County Superior Court Judge Allan Goodman, however, ruled that the Vishers sought only a permit to build a house, and he rejected the city's SLAPP argument. Judge Goodman also awarded the Vishers $35,000 in fees. The city appealed, but the same three-judge panel that ruled against the city in the Coastal Commission case upheld Goodman's decision. Writing for the Second District, Justice Laurence Rubin cited , 29 Cal.4th 69 (see CP&DR Legal Digest, October 2002). There, the city had adopted a mobile home rent control ordinance. Mobile home park owners filed suit in federal court contending that the ordinance was unconstitutional. The city then filed a validating action in state court. The park owners argued that the city's validating action was a SLAPP, but the state Supreme Court disagreed. The court said that the actual controversy was the ordinance itself, not the park owners' federal lawsuit. “Likewise here,” Rubin wrote. “The Vishers' petition arose from Malibu's refusal to process CDPs. It did not arise from Malibu's lawsuit against the Coastal Commission. Indeed, Malibu's refusal to process CDPs tellingly predated both its lawsuit against the Coastal Commission and the Vishers' lawsuit against Malibu. While the onset of litigation may have given Malibu an additional reason not to process the Vishers' CDP, it was Malibu's refusal to process CDPs of which the Vishers complained, not Malibu's engagement in the protected activity of suing the Coastal Commission.” Malibu also argued that the award of fees was improper because it did not file the anti-SLAPP motion in bad faith. The trial court disagreed, and so did the Second District. “ he sanctions order here involved the reasonableness of Malibu's resorting to a SLAPP motion to rid itself of the Vishers' petition,” Rubin wrote. “Malibu completely failed on that point.” The Case: , No. B173471, 05 C.D.O.S. 961, 2005 DJDAR 1355. Filed February 1, 2005. The Lawyers: For Visher: David and Sandra Visher for themselves. For the city: Christi Hogin, Jenkins & Hogin, (310) 643-8448.

I recently had an unsettling experience in a parking lot in Lompoc. I was standing in the middle of an enormous asphalt parking lot, surrounded by large buildings emblazoned with the logos of national retail chains, and, for a split second, I didn't know where I was. I don't think that I was losing my mind, at least on this occasion. The real problem was that the landscape had been taken over by the signs and symbols, the logos and trademark architecture, of the national chains. Nothing local or regional was in view. I realized that if I had awoken from a deep sleep and looked around me, I would not know whether I was in South Jersey or North Carolina or Santa Barbara County. Although Lompoc, like all places, has its own history and topography, I had no way of knowing that I was in Lompoc. In actuality, I was in Anywhere, USA. And, to paraphrase Neil Young, everybody knows that Anywhere is nowhere. I suspect that nearly every Californian, perhaps every American, can recall an experience similar to my aphasia in Lompoc. Local officials have begun to confront this “formula retail” problem. Although different cities have different legal definitions for the phenomenon, let's define formula retail simply as national retail chains who use familiar logos and/or building design to establish their presence in any given market. What is crucial here is that consumers are already familiar with the brand long before the retailer puts up a sign in a new location. To borrow the language of semiology, the golden arches are a “signifier,” that is, a bearer of meaning that stands for something larger and perhaps better known than a shopping center in Lompoc. The golden arches stand for McDonalds as a collective entity, as a societal force, rather than a single building. Recognition by itself creates trust, and people obviously will spend money where they feel comfortable. That is the genius of branding. And that power, beyond the ugliness or garishness of any particular sign, is why formula retail is bad for cities. A branded landscape can overwhelm the set of images and meanings that make a town a recognizable place. The question, then, is how to best strike a balance between the legitimate claims of a business owner, whether or not I approve of its marketing campaign, and the need of communities to give urban design standards the upper hand in the competition for visual supremacy. Cities, of course, always have the option of negotiating each new building on a case-by-case basis. In Arcata, the city in Humboldt County where this story is being written, city officials recently conducted talks with developers regarding the design of a Target outlet. The city insisted on a design that conforms to the city's residential character, especially Arcata's large stock of Victorian and wood-frame houses. The solution, which I think successful, forgoes Target's traditional big white box in favor of exterior walls covered in dark, multi-colored brick. The brick is accented by four white structures that look like pitched roofs and break up the massiveness of the building. Arcata takes a more systematic approach to formula restaurants, which the city tightly restricts (see , October 2002). San Francisco has gone much further with the systemic approach. The desire to protect a four-block area in Hayes Valley, a rejuvenating neighborhood, was the impetus for a 2004 ordinance championed by then-Supervisor Matt Gonzalez. With Hayes Valley showing new life thanks to the city's redevelopment effort, the big chains were sniffing a new market. Gonzalez asked Deputy City Attorney Sarah Owsowitz to prepare an ordinance that controlled formula retail. In the preamble to the ordinance, formula retail is characterized as unfair competition to local business startups because formula businesses are “typically better capitalized and can absorb larger startup costs, pay more for lease space, and commit to longer lease contracts.” The ordinance defines formula retail as a chain that has at least a 11 other existing outlets, and “maintains two or more of the following features: a standardized array of merchandise, a standardized façade, a standardized décor and color scheme, a uniform apparel, standardized signage, a trademark or a servicemark.” As approved by San Francisco's Board of Supervisors one year ago, the ordinance bans formula retail outright from Hayes Valley's commercial streets. In the rest of the city, with some exceptions, the ordinance enables local residents to request a public hearing and challenge the formula retail applicant's request for a conditional use permit. In the Cole Valley neighborhood, any application for a formula business automatically triggers a public hearing, even if neighbors do not ask for one. Significant exceptions to the regulation include Fisherman's Wharf and the area surrounding Union Square, both of which are rife with national brands and presumably past all hope. The ordinance also directs the Planning Commission to develop guidelines for evaluating formula retail applications that come up for public review. Among those guidelines are considering the existence of other formula retail businesses in a given neighborhood, determining whether comparable goods are already available within the same area, judging the compatibility of the proposed business with the character of the neighborhood, taking into account the retail vacancy rate in the area, and the balance of neighborhood-serving versus citywide or regional-serving businesses. This is the type of bold, almost radical solution that can work in the Bay Area but may not be able to travel south of Silicon Valley. One can already hear the raised voices of protest from those who believe in completely unrestrained free-market competition - as if a national chain and a local entrepreneur compete on the same level. If cities do not hold up their end of the debate, however, the commercial strips of every city will become little more than bulletin boards for corporate brands, and a lot more people will find themselves unsure of exactly where they are.

A billboard company has lost a lawsuit seeking damages from the City of Los Angeles for planting trees that obstructed visibility of six billboards. The loss of visibility, without loss of access, was not enough to sustain Regency Outdoor Advertising's inverse condemnation claim, the Second District Court of Appeal ruled. The appellate panel also upheld a lower court's decision to award the city $104,145 in costs, including $83,295 in expert witness fees. Five years ago, the city planted palm trees and placed lighted pylons on Century Boulevard between the San Diego Freeway and Los Angeles International Airport as part of an airport enhancement project. After Regency rejected a settlement offer - the city offered to remove one tree and pay Regency $1,000 - the company sued the city and its Department of Airports, seeking compensation for lost value. Los Angeles County Superior Court Judge Jean Matusinka ruled for the city, finding that Regency failed to prove damages. Regency appealed. A unanimous three-judge panel of the Second District, Division Four, agreed with Regency that Judge Matusinka had relied on the wrong legal principals. Still, the appellate panel held that the trial court's ultimate decision was correct. Matusinka based her decision on , (1960) 54 Cal.2d 855. In , the state Supreme Court ruled that a property owner could not recover damages caused by the construction of a public improvement on an adjoining property. However, according to the Second District, the Legislature in 1975 amended the applicable law by adding Code of Civil Procedure § 1263.420. Subdivision (b) abrogated by allowing recovery for damages regardless of the location of the damage. The Second District applied the amended statute to this case, but still ruled for the city. Regency cited a number of cases to support its claim for damages: , (1907) 150 Cal. 592; , (1943) 23 Cal.2d 390; , (1954) 127 Cal.App.2d 786; , (1962) 207 Cal.App.2d 729; and , (1969) 1 Cal.App.3d 1. Although the cases established that lost visibility could entitle a property owner to payment of damages, none of the cases stood for the proposition that loss of visibility alone mandated the payment of damages, the court ruled “Some decisions describe the easement of reasonable view as separate from the right of ingress and egress, but none has found substantial impairment of property rights based solely on loss of visibility” Presiding Justice Norman Epstein wrote for the court. “Since the only claimed damage in this case was the impairment of visibility of Regency's billboards, we find no error in the trial court's conclusion that there was no substantial or actionable impairment of Regency's property rights.” Epstein continued: “This conclusion follows logically from the established law that there is no obligation to compensate a landowner for diminution of property value resulting from highway changes which do not interfere with access, but cause diversion of traffic or circuitry of traffic beyond an intersecting street. (See , 207 Cal.App.2d 729, 737.) If reduction of a business's value caused by the rerouting of traffic is not compensable, then there is no reason to reach a difference conclusion where the routing remains the same, but the visibility of the business is changed by the planting of trees.” Regency also pointed to the Outdoor Advertising Act (Business & Professions Code § 5200 et seq.), which prohibits the government from compelling removal of a lawful sign or blocking customary maintenance and use. But the act, the Second District ruled, does not address impairment of visibility. “Since city did not require removal of the signs, or limit their use or maintenance, it had no statutory obligation to compensate Regency,” Epstein wrote. As for legal costs that the lower court awarded to the city, Regency contended that expert witness costs incurred before a settlement offer was made were not eligible, and that the city did not make the settlement in good faith. The appellate court, however, ruled that Judge Matusinka had discretion to award the costs, and that, because the city successfully defended the lawsuit, the city's settlement offer was reasonable. The Case: , No. B159255, 05 C.D.O.S. 1482, 2005 DJDAR 1967. Filed February 17, 2005. The Lawyers: For Regency: Michael M. Berger, Manatt, Phelps & Phillips, (310) 312-4000. For the city: Eduardo Angeles, Los Angeles World Airports, (310) 646-3260.