From CP&DR 's Morris Newman: Personally, I think there's a way for Disney to make lemonade out of the lemons of this dispute over housing near Disneyland in Anaheim. Given that affordable housing is a clearly one-way ticket to blight and criminality -- at least according to some critics in Anaheim -- Disney should capitalize on the setting, and "theme" its third gate as "Disney's Urban Adventure."    The Walt Disney Company and its travails in Anaheim. Disney's California Adventure, a theme park that lives across the street from Disneyland, has gathered more dust than a broken set of Bancroft's History in a Salvation Army store. Adding further dismay to the Chief Private Benefactor of Anaheim is the proposal by SunCal, a local home builder, to erect 1,500 housing units across the street from the future site of Disney's third gate (i.e. themed attraction.) Disney has objected strongly to the SunCal development, because housing is out of place in a world-class resort like the Magic Kingdom.Making SunCal's housing proposal even worse, in the eyes of opponents, is the proposed existence of 225 units of affordable housing. (TelePrompTer: Start shrieking.) In the eyes of some people, affordable housing means slums, gang violence and discordant signage. Witness this characterization in the Los Angeles Times : "Disney and tourism officials are concerned that the more than $6 billion in public and private funds poured into the resort district over the last 13 years would be wasted if the area returns to its past, marked by seedy motels, tacky shops and neon signs." In other words, housing equals seedy motels. Who, I wonder, who was the source of this characterization? Please be aware that the land in question is currently a trailer park.  Really, creating Disney's Urban Adventure as Disneyland's third gate solves all these problems! The inner-city-like conditions created by the new housing development can be "re-purposed" as an attraction for suburban youth, who are the largest consumers of hiphop recordings, tee-shirts, and grills (i.e. bling for teeth.) Here's a clip from our marketing video (please keep in mind that in Disney parlance, customers are "guests" and employees are "performers.") Suburban Teenage Disney Guest: "Dude, I'm so looking for authenticity!" Urban Contemporary Disney Performer: "Well, this ain't the Gap, Daddy-Mac. Like some champagne?" STG:  "Hey, I'd love some!" Urban Contemporary Disney Performer: "Then buy your own, b***h. This s**t is expensive." Goofy's Crack House and Ho Alley will recreate South Central as heartwarmingly as Disneyland's Main Street replicated the Midwest town center. Suburban Teenage Disney Guest: "I can't believe how real this all seems! Look at this poorly maintained houses, and the unemployed people, sitting listlessly on the front stoops, seething with impotence and resentment. Say, sir, you know where I can buy a rock and hook up with a home girl?"  Stoop-sitting performer: "Can't properly say. Australia, maybe?" Donald's Check Cashing Stand will dispense souvenirs and trinkets, albeit at a healthy mark-up. Suburban Teenage Guest, perspiring heavily: "You've got to cash this check, no matter how high the interest! I've got to feed my habit!" Disney Performer: "I know, I know, those pumpkin Frappaccinos are addictive." In Minnie's Justice System, guests will be handcuffed to hospital beds, as they glide one-by-one through the Courthouse, the Slammer, Parole, and Unemployment (with Pregnancy and Substance Abuse leaping out of the shadows to scare them.) Suburban Teenage Male: "I can really say that we have experienced what only can be described as the underbelly of urban life!" Suburban Teenage Female: "I wish we had some affordable housing in our affluent community, so we could go slumming like this more often." (With her one free hand, she waves hello to a performer from Pluto's Bail Bonds.) "Hey One Leg P! What's goin' down?"One Leg P (formerly known as Pluto) wearing Armani shades and a diamond studded choke collar: "Oh, you know, the usual--home invasion, car jacking, leaving' babies in the dumpster—that kind of stuff. Nothing out of the ordinary." Suburban Teenage Female: "Awesome! I mean, I'm down with it." Teenage Male: "Man, these low- and moderate-income folks sure know how to live! To think that people in Anaheim tried to stop this place from being built! Is that whack, or what? That would have prevented us from being exposed to the genuine life style of everyone in America who makes less than $140,000 a year!" Suburban Teenage Female: "Omigod, I have to get out of here, and fast! I'm in trouble!"Suburban Teenage Male: "You mean you're…?" Suburban Teenage Female: "Yes! I've broken a nail on this stupid ride!" (Weeps.) "Take me home, Tyler!" Suburban Teenage Male: "You're on your own, Tiffany. After this, I'm never going back to Disney's California Adventure!"

Downtown Ocean Beach seems like a coddled momma's boy afraid to grow up. The small San Diego community just south of Mission Bay is a curious little enclave where the outdated downtown clashes with the cost of housing. The residents seem in denial about the hustle-bustle of capitalism and stubbornly resist the modern amenities like Starbucks. Shoes are optional and suntans are mandatory. On a lazy late Sunday afternoon after a football game at Qualcom stadium, we drove west until the 8 Freeway brought us to Ocean Beach in search of dinner. The area is a great place to get swept away in sunburns and beer-burps, but from planning perspective, the commercial core seems precarious. The residents hate corporations and redevelopment, and they fear gentrification like it's the super-bug. In the meantime their little downtown looks like it suffers from low-revenue and retail vacancies. Like a lot of beach subdivisions in Southern California, the subdivision of Ocean Beach dates back to the 1880s and once included an oceanfront amusement park. Today, the downtown is characterized by free and available street parking and diminishing quantities of vacant retail spaces the closer you get to the beach. The main drag, Newport Avenue, is nothing like the affluent city to north that shares the same name -- nor would it want to be. The sidewalks are wide and fraught with skateboarders and dogs. The retail mix ranges from antiques stores to head shops to taco-beer-burger restaurants. The only office space I noticed was mixed-use with a taco restaurant. There were a couple tourist shops, one was selling t-shirts in an unsightly box-store with 40-foot ceilings and yellow fluorescent lights. Drinking on the beach is a major source of revenue for an area where spring break is a sabbatical, and Fourth of July and New Years Eve are holy days. Some days there are as many as 40 dogs splashing unleashed in the surf. Though seemingly too large and out-of-place, the pier connects a block south of the main street to a residential area on the hillside and serves for a great view from the end-focal point of the downtown. Ocean Beach is dense, white, and accommodates a high share of college educated residents with lower than average incomes ( http://zipskinny.com zip code 92107) so why can't they get it together? The residents don't really depend on downtown stores like poor communities rely on transit and mom-and-pop bakeries. They should welcome a little gentrification and redevelopment to help bring the area into the 21st century, but I guess living in the slow lane, nestled away in this nearly forgotten beach town is good enough. People are usually afraid of change, and Ocean Beach only changes what party-event it will have next. Aaron Engstrom

FRIDAY DECEMBER 7, 2007UCLA EXTENSION BUILDING, G-33ELOS ANGELES (WESTWOOD VILLAGE), CALIFORNIA Smart growth, sustainability, housing, infrastructure, flooding, global warming and planning for safe communities: each of these topics reflects yet another step in the evolution of California's general plans.  While cities, counties and community groups are insisting upon well-conceived, legally valid plans, they now are more demanding: they seek plans that incorporate both innovation and realism; confront growth issues; transcend "legalism" by developing effective tools to reach community consensus; and conserve community character while celebrating its culture. This year's program will chart trends in general plan development as documented in new and pending legislation; will examine recent court cases; and most importantly, will focus on the tools and skills needed to imbue new plans with environmental, social and economic sustainability; smart, transit-oriented and pedestrian friendly growth; and a unique vision that reflects the heart and soul of its community. WHO SHOULD ATTEND Planning commissioners, elected officials, planning staffs, consultants, land use attorneys, developers and other project applicants, community activists, and others working with cities and counties on general plan development and revision. SEMINAR LEADERS Steven A. Preston , FAICP, is Deputy City Manager and Community Development Director for the City of San Gabriel ("Woodie") Tescher , is Principal Technical Professional/ Planning and Urban Design for EIP Associates, a division of PBS & J DATE, TIME, AND LOCATION Friday December 7th, 2007 9 am-4:30 pm (Registration and refreshments begin at 8:15 am.) UCLA Extension Lindbrook Center 10920 Lindbrook Drive, Room 204 Los Angeles, CA 90024 www.uclaextension.edu/publicpolicy

If any part of Los Angeles begs for redevelopment, it would be a 2,600-acre terrain in the northeast San Fernando Valley known as Sun Valley. From a satellite, the area could be easily mistaken for a moonscape, or perhaps a bombing range. The most conspicuous land forms are four enormous pits, which are gravel quarries. Two played-out pits are enjoying second careers as landfills. Nearly half of Sun Valley is devoted to heavy industry, yet the area still has a population of 45,000 people. Seventeen percent of the community lives in poverty, and the area is a local hot spot for cancer. Just to add some spice to the challenge, the area is also a regional watershed known as Tujunga Wash and needs additional flood control. If Sun Valley is an environmental Slough of Despond, the economic story in the area is slightly more cheerful. The community, together with neighboring Tujunga, is home to 10 million square feet of industrial space, with a vacancy rate of only 2% (even if that robust industrial activity includes far more waste handlers than any other neighborhood in Los Angeles). This wealth of industrial land, sullied as it is, may help keep high-paying industrial jobs in Southern California at a time when other industrial areas are being squeezed out by the condo-building craze. As a planning exercise, then, Sun Valley offers a stimulating mix of ingredients. The industrial area wants to be cleaned up and "repurposed" as light industry, such as sound stages and other entertainment-related uses. Lankershim Boulevard and San Fernando Road, the major corridors, want to be filled in with new mixed-use developments. A historic protection designation may be appropriate for Stonehurst, a neighborhood of 60 houses built of rocks salvaged from the wash. An unsightly steam plant owned by the Los Angeles Department of Water & Power needs to be hidden by landscape or otherwise screened from view. One disused gravel quarry could be reinvented as a park plus detention basin, while another could serve as an expansion of an existing spreading yard, with newly installed wetlands and layers of gravel to scrub the filthy water. And at the north edge of Sun Valley, at the foot of the San Gabriel Mountains, the plan envisions a nature trail that could be incorporated into a continuous linear park that would eventually circle the entire San Fernando Valley. This optimistic yet achievable set of goals is a simplified summation of the Sun Valley Renaissance concept plan, prepared by the Urban Design Assistance Team of the American Institute of Architects, San Fernando Valley chapter. Sponsoring the study is the Economic Alliance of the San Fernando Valley and the CivicCenter Group. This is a fine undertaking, even more so for a set of community-minded volunteers. The best part of the plan is that it is down to earth and do-able. The most challenging part, perhaps, is finding both the money and the political libido to realize a plan that seems socially, environmentally and economically desirable. Although Sun Valley officially falls within the city's Pacoima/Panorama redevelopment area, the plan was prepared independently of the Los Angeles Community Redevelopment Agency. In the implementation chapter, the study recommends that the agency coordinate with other public agencies and help create a business improvement district in the area. While many things in the world seem to worsen over time, the Sun Valley document shows how much planning has improved – even if planning in California is most often destined to remain theoretical. The concept plan shows respect for different constituencies — property owners, industrial employers, homeowners, existing service businesses, even eco-tourists. For neighborhood revitalization, the plan proposes a set of "urban villages." Please overlook that tired nomenclature and take note of the worthwhile goal: Making neighborhoods more walkable by locating retail and service businesses within short distances of residences. And rather than scraping entire streets and building the kind of humungous meta-project currently favored by the city's redevelopment agency, this concept plan proposes to repair some structures and build others where needed, including some fashionable-looking residential mixed-use projects. In short, the plan respects the street and its existing businesses, rather than sweeping all the chess pieces off the board in the name of revitalization, which is perhaps the most perverse aspect of redevelopment driven purely by revenue requirements. The challenge, here, then, would be to find developers willing to take on small projects, rather than the capital-intensive shopping centers that are somewhat easier to finance. Most difficult to achieve, if worth trying, is the idea of modernizing and prettifying the existing industrial inventory. Industrial space is the lowest-yielding type of real estate, and the prospect of slightly increased rents is rarely enough to induce owners to make major capital improvements to existing buildings. Most quixotic, alas, is the suggestion to bring in entertainment and high-tech uses. While the suggestion has a rational basis, insofar as both industries are growing and looking for affordable space in L.A., both are industries that tend to cluster in familiar locales, rather than look for cheaper space on the edge of town. Sun Valley, however, may be able to attract some import-related businesses, given that the area is immediately north of the Bob Hope Airport in Burbank. The toughest thing about any plan is implementation, which means political support and money. Politics aside, I am having a hard time seeing where the money will come from to build all these worthwhile things. My unscientific guess (and I would be delighted to be proven wrong) is that tax increment is not going to rake in the kind of bucks necessary to rebuild the local infrastructure while providing new facades to ugly industrial buildings. I also question whether Los Angeles voters would be willing to authorize the millions of dollars in revenue bonds needed to benefit Sun Valley, which is 70% Latino and has little clout with the rest of the city. Perhaps the committee that was wise and generous enough to prepare this plan can tackle the financing next. Sun Valley begs to be redeveloped, and this plan begs to be acted upon.

When voters approved the incorporation of Elk Grove in Sacramento County in early 2000, the town had a population of about 54,000. Today, Elk Grove's population is heading past 140,000, and the city is looking at a 13,900-acre area for potential expansion. In late October, the Elk Grove City Council directed its staff to move forward with a sphere of influence expansion and future master planning effort. City officials hope to annex the area within three to four years. "This process is about building the long-term vision of Elk Grove," Councilman Gary Davis said. "We have the opportunity, I believe, to grab hold of our future." Elk Grove's population has increased dramatically because of both rapid building and the city's annexation of Laguna West, a highly touted new urbanist community just east of Interstate 5. Considering this recent history and other factors, it is no surprise that Elk Grove is looking to grow into the pastures and open space that lie to the south and east of the current city limits. The city was a reluctant participant in the Sacramento Area Council of Government's regional blueprint process that sought to reign in sprawl. Voters in the 7-year-old city have consistently elected pro-development candidates, and slow-growth organizations seem to have had trouble gaining traction, despite extensive farmland conversion and increasing traffic congestion. The city currently has no sphere of influence beyond the city limits. The proposed sphere expansion "comes straight from the general plan," explained Taro Echiburu, the city's environmental planning manager. The plan identifies two areas for potential urbanization within the sphere study area. "The city's basic goal is to have a sustainable community that has a good amount of balance — housing, retail, employment, agricultural protection, open space," Echiburu said. Earlier this year, Sacramento County officials questioned Elk Grove's rush to expand. But the most recent communication between the two governments was friendly, as Elk Grove ensured the county it would be involved while the city studies where to draw lines for the sphere of influence and urban growth areas. A bigger obstacle than local politics might be environmental considerations. Elk Grove and all of the surrounding area lies within the boundaries of the South Sacramento Habitat Conservation Plan (HCP), which has been in the works for nearly a decade. Some of the most important habitat lies along the Cosumnes River corridor, a portion of which falls within the city's sphere study area. The Sacramento Valley Conservancy has identified the Cosumnes River corridor, including all of the Elk Grove side of the waterway, as an "essential countywide open space resource area." In this fashion, the corridor could provide not only habitat, but a permanent greenbelt between the cities of Elk Grove and Galt. In addition, the Elk Grove sphere of influence study area stretches right to the Cosumnes River's 100-year floodplain. Under recently signed state law, Central Valley development will need 200-year flood protection, or a plan to achieve such protection, as of 2015. Although he conceded "the HCP does not contemplate what the city wants to do," Echiburu said there is no reason the city's southward expansion has to conflict with the HCP. The city is a participant in the HCP process and has no intention of seeing development cover the entire 22-square-mile study area. "Certainly a large amount of that would be left in open space," Echiburu said. "We are looking at 7,500 acres for potential urbanization." So far, environmentalists have remained in the background. Indeed, at a recent City Council meeting, nearly all public comment came from people complaining that their land was not included in the city's sphere study area. The process approved by the City Council includes a detailed public participation plan for both determining the sphere of influence and for the subsequent master planning effort. Under the approved process, the city will not designate new land uses within the proposed sphere area. Instead, it will define a preferred sphere of influence. Once that sphere has been approved by the Sacramento County Local Agency Formation Commission (LAFCO), the city intends to undertake a two- to three-year master planning process for the area, Echiburu said. Peter Brundage, Sacramento LAFCO executive officer, noted that there would appear to be a tension between the HCP and Elk Grove's expansion designs. But Brundage declined to speculate on where things might head. "They've never talked to me and I've never seen anything from them," Brundage said. The city expects to file a sphere of influence expansion application at LAFCO within nine months, Echiburu said. Contacts: Taro Echiburu, City of Elk Grove, (916) 478-2257. Peter Brundage, Sacramento County Local Agency Formation Commission, (916) 874-6458. South Sacramento Habitat Conservation Plan: http://www.planning.saccounty.net/habitat-conservation/overview.html

Should planning departments in California force developers to steer clear of fire-prone areas? Or should building departments force developers to fireproof their neighborhoods instead? Frankly, I'm a little tired of posing this question, because it comes up every time there's a big set of fires. But when you're looking at a couple of thousand houses lost and more than a billion dollars in property damage, it's a question you have to ask. The last time this question came along was four years ago – almost to the day – in the wake of the last enormous conflagration, in which more than 20 people died and 3,600 homes were destroyed. The answer at that time pretty clearly was in favor of fireproofing neighborhoods rather than avoiding fire-prone areas. Since then, there has been little evidence that policy is changing. But the California Department of Forestry & Fire Protection (CDF) has been thinking about it. And maybe it's worth a fresh look, if local governments are willing to think about it. As usual, perverse financial incentives built into the state system make city officials less likely to think about it. "Avoidance" is one of those good planning ideas. You simply draw a line around fire-prone areas and don't allow construction inside the line. Kind of like earthquake planning. Or classic McHargian environmental planning. But in an era when California is running out of places to put people and property rights advocates have the upper hand, avoidance is not always viewed as a viable option. To be fair, there's also some evidence that better fire mitigation at the neighborhood level is working. The turning point in the avoidance v. mitigation debate came during the last devastating fires four years ago, when the Stevenson Ranch subdivision near Santa Clarita in unincorporated Los Angeles County survived a nearby fire without much trouble. A front-page story in The New York Times documented how a wide variety of mitigation practices required by Los Angeles County building inspectors created a mostly fireproof subdivision. Most of the post-mortems focused on building codes, not planning. The emphasis was on mitigation, not avoidance. The City of San Diego, which bore much of the damage during the 2003 fires, finally outlawed wood roofs. This time around, attention again quickly turned to mitigation rather than avoidance. Even as the fires were still burning, the Los Angeles Times returned to Stevenson Ranch to confirm that it still had not burned down thanks to the effective creation of defensible space . As for the use of land use planning for avoidance, most everybody was fatalistic. Referring to the San Bernardino Mountains – again in flames this time around – San Bernardino County Supervisor Patti Aguiar told the Riverside Press-Enterprise in 2004: "A moratorium probably made sense a long time ago, if you didn't want anybody up there. But now, everybody's already up there. It's pretty darn late ." CDF, however, hasn't stopped thinking about avoidance as opposed to mitigation, and with good reason. As the state fire agency, CDF has primary responsibility for fighting wildfires — especially in rural areas, but also in semi-urban areas on the perimeter of the Southern California metropolis. CDF fights wildfires not by putting them out immediately, but by containing them and allowing them to burn out. Among other things, this appears to be a more environmentally sustainable approach, given what the experts call California's "fire-driven ecology." But when structures are present, CDF must by law focus on the structures, not on the wildlife. This often requires redeploying firefighters and other resources from containing a far-reaching wildfire to protecting a small geographical area with structures in it. In the past few months, both the state fire chief and the Legislative Analyst's Office (LAO) have tried to highlight the problems that subdivisions in fire-prone areas are creating. In a report issued last March , the LAO noted that CDF's budget had increased 83% during the last decade, from $475 million to $869 million. This fiscal year's budget for CDF tops $1 billion. The LAO attributed much of the increased cost to additional development in the wildland-urban interface, which state fire officials like to call the "WUI." In recent years, the LAO noted, the State Responsibility Area – the geographical area to which CDF must by law provide wildland fire protection – has remained stagnant at about 31 million acres. But just from 2000 to 2005, the number of houses in the State Responsibility Area increased by more than 10% – from around 780,000 to around 860,000 units. Then, at the beginning of the fire season in June, CDF Director Ruben Grijalva devoted his weekly message to an unusually detailed and insightful analysis of the wildland-urban firefighting problem. Grijalva zeroed in particularly on the development question, noting the trend of equity refugees moving away from urban areas and into wildland areas. He placed particular emphasis on the issue of watershed preservation in wildland areas, saying that low-density forest subdivisions can harm watersheds that all urban Californians depend on. In general, local jurisdictions – especially counties – have not paid much attention to these concerns. That's not surprising. As with so many other land use policy issues in California, it is at least partly a question of who bears the cost – the local governments or the state. Buried deep within the rules as to what constitutes a State Responsibility Area is a density rule. In unincorporated areas with timberlands, rangelands, or watersheds, counties bear financial responsibility for firefighting if subdivisions contain more than 3 units per acre. If a subdivision contains less than 3 units per acre, then the state has financial responsibility to pay for the firefighting. In other words, if counties are inclined to permit subdivisions in fire-prone areas to begin with – and most rural counties in California are so inclined – then they have a financial incentive to lower the density so fighting wildfires is CDF's problem. The LAO report from last spring suggested that the minimum density should be changed to remove this perverse incentive. If there's one bright spot in all this, it's Riverside County. Thanks partly to new state fire hazard maps, Riverside is taking fire risk seriously, and considering the possibility of creating a fire hazard zone similar to the 100-year floodplain that would not permit development . So not everybody has given up. And that is a good thing. Because surely if there is one thing that land use planning is well-suited for, it is mapping out hazards and helping to avoid them.

The state Supreme Court has modified its most recent California Environmental Quality Act ruling, but it rejected the losing side's request for a re-hearing. In Muzzy Ranch Co. v. Solano County Airport Land Use Commission , the court ruled than adoption of an airport land use compatibility plan qualified for a "common sense" exemption from CEQA review (see CP&DR Legal Digest, July 2007 , May 2007 ). In one portion of the opinion, the court applied the "substantial evidence test" to the issue of the exemption, even though the CEQA Guidelines and prior case law indicate that the "fair argument" standard applies to non-statutory exemptions. Under this standard, a project does not qualify for a non-statutory exemption if an argument can be made that the project might have a significant effect on the environment. In its modification, the court did not specifically name the fair argument test, but the court did remove all references to the substantial evidence test for non-statutory exemptions. The modification was filed September 12, 2007, and may be found at 2007 DJDAR 14225. A divided state Supreme Court has decided not to hear a closely watched case involving CEQA and housing elements. In an unpublished opinion issued in June, the First District Court of Appeal ruled that San Francisco should have conducted an environmental impact report for a housing element update adopted in 2004. The city argued that no environmental review was necessary because the 2004 update was not substantially different from the previous housing element adopted in 1990. But the First District accepted the argument from neighborhood groups concerned about overcrowding, traffic and impacts on business that the update required study. The state Supreme Court took extra time to consider San Francisco's request for review, but only Justices Joyce Kennard and Carlos Moreno voted to hear the case — two short of the four needed to grant review. Thus, the First District ruling stands in San Franciscans for Livable Neighborhoods v. City and County of San Francisco , No. A112987.

Local zoning trumps a valid easement, the Second District Court of Appeal has ruled. In a case from Los Angeles, the court determined that one property owner's easement on his neighbor's property was valid but unenforceable because it violated the zoning. The situation is this. John Blankenship owns a half-acre lot in Sunland, a quasi-rural area off the 210 Freeway in northwest Los Angeles. He also owns an easement, acquired by a previous landowner in 1994, on three-quarters of an acre of adjacent property. The easement permits the keeping and enjoyment of horses. The new owner of the neighboring property, Henri Baccouche, filed a lawsuit seeking to extinguish the easement on the corner of his 4-acre parcel. Both lots are zoned "residential estate." Baccouche argued that, under the city's zoning ordinance, the keeping of horses is permitted only in conjunction with a residential use. Because his property is vacant, Baccouche argued, the equine easement was invalid. Los Angeles County Superior Court Judge Elizabeth Grimes ruled for Blankenship. She found the easement valid and determined that, because Blankenship's property contains his house, the easement did not violate the city's zoning ordinance. Baccouche appealed, and a unanimous three-judge panel of the Second District, Division Four, overturned the lower court in part. The Second District agreed with the lower court that the easement is valid. However, the appellate court determined that enforcement of the easement was not permitted. Both sides and the court relied heavily on Teachers Ins. & Annuity Assn. v. Furlotti , (1999) 70 Cal.App.4th 1487. Also from Los Angeles, that case involved a commercial building's easement to use an alley shared with an apartment building. The boundary between the commercial zone and the residential zone ran down the middle of the alley, and the owner of the apartment building sought to prohibit commercial use of the residential portion of the alley, which would essentially make the alley impassible for trucks. Ruling for the apartment building owner, the court cited Municipal Code § 12.21.C.5(h): "No accessory building or use shall be located on a property in a more restrictive zone than that required for the main building or main use to which it is accessory." Thus, the use of the residential portion of the alley for commercial deliveries, loading and trash collection was not permissible. "Private agreements as to the use of property are immaterial to the validity of a particular zoning ordinance," the Teachers court concluded. In the case at hand, both properties have residential estate zoning, but that zoning does not permit the keeping of horses except as part of a residential use. "To the extent the easement purports to grant Blankenship the right to keep horses on the undeveloped Baccouche lot, it is unenforceable because it would allow a use not permitted by the zoning, as in Teachers ," the court ruled. The house on Blankenship's property does not overcome the restriction. "Section 12.03 expressly requires that the accessory use be on the same lot as the residence," the court ruled. The Case: Baccouche v. Blankenship , No. B192291, 07 C.D.O.S. 11006, 2007DJDAR 14188. Filed September 11, 2007. The Lawyers: For Baccouche: David Romley, (818) 951-9469. For Blankenship: Edward Russell, (949) 622-4333.

A settlement agreement between the City of Los Angeles and an Orthodox Jewish congregation that permits operation of a synagogue in a residential district has been invalidated by the Ninth U.S. Circuit Court of Appeals. The court ruled that the settlement agreement was essentially a conditional use permit that was granted without giving affected people — namely, the neighbors — notice and an opportunity to be heard. The lack of process violated the Los Angeles Municipal Code, which a settlement agreement may not do, the court concluded. Congregation Etz Chaim's synagogue has been litigated in federal and state court for a decade. In the mid-1990s, the congregation applied for a conditional use permit to use a house on Highland Avenue in Los Angeles's Hancock Park neighborhood for worship and services. After the city denied the application, the congregation filed a federal court lawsuit alleging a violation of civil rights, and filed a separate suit in state court. The Los Angeles County Superior Court and the Second District Court of Appeal upheld the city's denial. The congregation then returned to federal court. Citing the state court rulings, a District Court judge tossed out all of the congregation's claims except those concerning the Religious Land Use and Institutionalized Persons Act (RLUIPA), which Congress had only recently passed. In September 2001, the city and the congregation settled the lawsuit. The settlement agreement authorized the congregation to use the Highland Avenue property for worship, subject to a number of restrictions. This time, the neighbors sued, arguing that the settlement agreement violated their due process rights and local zoning ordinances. A District Court judge ruled for the congregation and the city. When neighbors appealed, the Ninth Circuit sent the case back to District Court for reconsideration in light of a state appellate court ruling in Trancas Property Owners Ass'n v. City of Malibu , 138 Ca.App.4th 172 (2005). In Trancas , the court invalidated a city's settlement agreement with a developer that approved the developer's tract maps (see CP&DR Legal Digest , November 2005). The court ruled that the city had contracted away its police power, which it may not do. The court also ruled that the agreement's exemption from density limitations amounted to a variance, which may not be granted without the city following prescribed administrative proceedings and adopting findings. The District Court found that the Congregation Etz Chaim case was different from Trancas and again ruled against the neighbors, who then went back to the Ninth Circuit. This time, the appellate court said the cases were indistinguishable. "The congregation sought, and the settlement agreement granted, permission to operate a synagogue on the Highland property. In an R1 zone, congregational worship is considered a ‘conditional use' under § 12.24, and requires a permit," Judge Barry Silverman wrote for the court. "Before allowing such a use, the city was required to comply with the ordinance's procedural formalities. Because the city did not satisfy those formalities when it entered into the settlement agreement, the agreement is invalid and unenforceable under state law." The district court found the cases were different because Trancas involved tract maps that apply to property, while the settlement agreement here was between the city and the congregation. Still, the Ninth Circuit said Los Angeles had improperly bargained away its police power "so long as the congregation is in existence." The Ninth Circuit rejected the argument that the city charter permits the city to circumvent zoning procedures to settle litigation. " Trancas clearly holds that such exemptions are illegal," Silverman wrote. The District Court also had upheld the settlement agreement because the city's rejection of the congregation's plan might have violated RLUIPA. That was not good enough for the Ninth Circuit. A federal court can uphold a settlement agreement authorizing a state or municipality to disregard its own laws only if the court finds "there has been or will be an actual violation of federal laws." But in the settlement agreement, the city specifically disclaimed any admission of liability under RLUIPA. The decision puts the congregation's record in the Ninth Circuit at 1-1. Three years ago, the court ruled that the city could not revoke a building permit that was based on the settlement agreement, even though the congregation did not process its building plans as required by the settlement ( Congregation Etz Chaim v. City of Los Angeles , 371 F.3d 1122 (2004) (see CP&DR Legal Digest , July 2004). The Case: The League of Residential Neighborhood Advocates v. City of Los Angeles , No. 06-56211, 07 C.D.O.S. 9816. Filed August 21, 2007. The Lawyers: For the league: Leslie Werlin, McGuire Woods, (310) 315-8200. For the city: Tayo Popoola, city attorney's office, (213) 978-8068. For Congregation Etz Chaim: Susan Azad, Latham & Watkins, (213) 485-1234.

A state law that permits landlords to go out of the rental business does not trump the California Environmental Quality Act, the Second District Court of Appeal has ruled. The court said that a Los Angeles County property owner cannot use the Ellis Act to avoid mitigation measures imposed on a plan to demolish apartment buildings and replace them with condominiums and new apartments. The ruling came in the long-running battle to preserve the Lincoln Place apartments in Los Angeles's Venice district (see CP&DR Places , February 2007) and appears to be a significant victory for the few remaining Lincoln Place tenants, as well as hundreds of tenants who were evicted or relocated in less-than-voluntary fashion. The court suggested that the property owner, Apartment Investment and Management Company (AIMCO), was playing a game to avoid the obligations that the city imposed while approving AIMCO's project at Lincoln Place. Those obligations are contained in the city's conditions of approval for AIMCO's vesting tentative tract (VTT) map. "We reject any argument that because AIMCO complied with the RSO's Ellis Act provisions and relocation benefits, it may go out of the rental business without reference to conditions 5b and 13 of the VTT. AIMCO specifically agreed to additional conditions in the VTT to mitigate the demolition of a very large apartment complex that has been part of the community for many years, the removal of more than 700 rent-controlled units from the marketplace, and the displacement of those tenants, in order to get permission to redevelop the land. It may not now act as if those events never occurred," Justice Laurie Zelon wrote for the court. The Lincoln Place project has an extremely long administrative, political and legal history. Lincoln Place was designed by noted architect Ralph Vaughn and built during the late 1940s and early 1950s. The 52 minimalist buildings spread across 38 acres contained 795 apartments and were connected by extensive walkways and landscaping. In 1991, Denver-based AIMCO and a local developer (who is no longer involved) proposed demolishing the buildings and replacing them with 654 market-rate condominiums, 52 moderate-income townhouses and 144 low-income apartments. The city refused to approve the project and ultimately a court found that the city's regulations were a violation of the Ellis Act ( Los Angeles Lincoln Place Investors, Ltd. v. City of Los Angeles , (1997) 54 Cal.App.4th 53 ( Lincoln Place I ); see CP&DR Legal Digest , May 1997). Partly because of Lincoln Place I , the Legislature amended the Ellis Act — a 1980s statute that ensures property owners may remove a property from the rental market — to make clear that local governments do have authority to regulate the demolition of rental properties. In 2002, the city certified an environmental impact report and approved a vesting tentative tract map. Soon thereafter, the city approved demolition permits. Tenants and historic preservation advocates sued, and a court in 2005 ruled that the city had violated CEQA by not enforcing mitigation measures before approving the demolition ( Lincoln Place Tenants Assn. v. City of Los Angeles , 130 Cal.App.4th 1491 ( Lincoln Place II ); see CP&DR Legal Digest , September 2005). Although Lincoln Place II stalled the demolition of Lincoln Place apartments, AIMCO was already well into an aggressive tenant removal program. Starting in 2004, the majority of the remaining 350 households renting apartments in Lincoln Place signed "voluntary relocation agreements." However, others refused to go, and AIMCO began serving tenants with eviction and "Ellis" notices in early 2005. In July of that year, AIMCO took nearly 100 tenants to court to force their removal. In December of 2005, AIMCO attempted to lockout the remaining tenants of 52 apartments, an incident that led to an ugly and well-publicized confrontation between tenants and sheriff's deputies. By the time the tenants association filed the present suit in June 2006, only 13 apartments remained occupied, although former tenants continue to be keenly involved in the controversy. The tenants association argued that AIMCO had not complied with two mitigation measures and a relocation plan approved as part of the subdivision map. The mitigations and relocation plan were intended to ensure that current tenants could relocate to a comparable or better unit within the new project, receive maximum relocation assistance under the city's rent stabilization ordinance, or accept one of the new affordable units with moving costs paid. Los Angeles County Superior Court Judge David Yaffe ruled against the tenants, but a three-judge panel of the Second Division, Division Seven, overturned the lower court. AIMCO argued that the mitigation measures conflicted with its Ellis Act rights and that the conditions did not apply because AIMCO never recorded the vesting tentative tract map. The court dismissed those contentions without addressing whether AIMCO — which owns more apartments than any other entity in the country — is truly going out of the rental business at Lincoln Place. The court found that the mitigation measures are within the Ellis Act's exceptions for local land use controls, that AIMCO agreed to the mitigations during the administrative process, and that AIMCO could not pretend evictions were not part of the overall project. "Throughout the approval process, tenants were told they could choose to remain on site; this promise is memorialized in conditions 5b and 13. Eviction is inconsistent with these provisions," Justice Zelon wrote. "Furthermore, prior to commencing the evictions, AIMCO did not advise the city or the tenants that it intended to abandon the project; on the contrary, as its arguments concede, the evictions are a prelude to proceeding with the project." " he mitigation conditions and other conditions in the VTT constitute enforceable covenants under CEQA, to be fulfilled before the final map may be recorded," Zelon wrote. "AIMCO cannot attempt to defeat the conditions it imposed upon itself in order to obtain approval of the VTT by ignoring such conditions or attempting to render them meaningless by moving ahead with the project in spite of them. Such conduct amounts to ‘piecemealing,' a practice CEQA forbids." In early October, the Los Angeles City Council voted not to appeal the ruling to the state Supreme Court. AIMCO could still file an appeal. In the meantime, the California Building Industry Association has asked the state high court to depublish the decision so that it may not be cited as precedent. The Case: Lincoln Place Tenants Association v. City of Los Angeles , No. B193235, 07 C.D.O.S. 11365, 2007 DJDAR 14722. Filed September 19, 2007. Modified October 10, 2007 at 2007 DJDAR 15586. The Lawyers: For the tenants association: John Murdock, (310) 450-1859. For the city: Gerald Sato, city attorney's office, (213) For AIMCO: Mark Schaeffer, Nemecek & Cole, (818) 788-9500.

A San Diego merchant who has become one of the state's leading fighters against eminent domain has not only lost his appeal of a trial court decision upholding the taking of his shop, but he has also lost a $9 million award of compensation and attorneys' fees. The Fourth District Court of Appeal ruled that Ahmad Mesdaq could no longer challenge the taking itself because he had withdrawn money that the San Diego Redevelopment Agency deposited into an account to compensate him. The unanimous three-judge appellate panel also determined that San Diego County Superior Court Judge John Meyer made numerous mistakes during the valuation phases of the litigation. The Fourth District sent the case back to the lower court for a new trial on how much the redevelopment agency owes Mesdaq. In mid-October, Mesdaq asked the state Supreme Court to review the case. In the meantime, a settlement that Mesdaq reached earlier this year with the developer who has since acquired the site of his former cigar shop appears to be in doubt. The story is one that, not surprisingly, has served as the basis for a documentary film. In 1983, Mesdaq received political asylum in the United States after the Soviets destroyed his home in Afghanistan. He attended college in San Diego and later owned several restaurants in the city's rebounding Gaslamp Quarter. In 2001, he acquired a building at Fifth Avenue and J Street for $1.3 million, and then went about overhauling the structure. In 2003, he opened Gran Havana, a cigar lounge and coffee shop that soon counted Gov. Arnold Schwarzenegger as one of its customers. But the city's downtown redevelopment arm (Centre City Development Corp.) and developer GRH, LLC, had other ideas for the prime location close to the San Diego Padres new baseball stadium and the convention center. GRH acquired 35,000 square feet of land but still needed Mesdaq's 5,000-square-foot parcel to make room for a proposed 12-story, high-end hotel. GRH made offers to Mesdaq, but he declined them. So, in April 2004, the San Diego Redevelopment Agency filed a complaint in eminent domain to acquire Mesdaq's property. The agency sought a "quick take," so it also deposited $3.1 million as probable compensation and asked for immediate possession. Mesdaq held on for a while but ultimately closed Gran Havana in 2005, and the redevelopment agency took possession of the property. Three separate trials were conducted: a bench trial to determine whether the taking was for a public use, a second bench trial regarding Mesdaq's request for pre-condemnation damages, and a jury trial to determine just compensation. Judge Meyer ruled that the taking was legitimate, but that a cleanup order the redevelopment agency had issued was unreasonable and the jury could consider granting damages for it. Later, a jury awarded Mesdaq $7.8 million — $4.2 million as fair market value for the property, $3.4 million for lost goodwill, $96,000 for lost furniture and equipment, and $78,000 for pre-condemnation damages. Meyer also awarded Mesdaq $1.2 million in attorneys' fees and costs. Both sides appealed. Mesdaq challenged the trial court ruling that the agency had the legal authority to take his property, while the agency challenged the awards. The Fourth District did not reach the merits of Mesdaq's appeal. The court noted that in August 2005, seven months after the court ruled the redevelopment agency could take the property, Mesdaq's lender, First National Bank, filed an application to withdraw nearly $1.2 million from the $3.1 million the agency had put on deposit. Mesdaq did not object and First National removed the funds to pay off the merchant's outstanding mortgage plus interest. The withdrawal of funds ended Mesdaq's ability to challenge the taking under Code of Civil Procedure § 1255.260, according to the Fourth District. The court cited the state Supreme Court's recent decision in Mt. San Jacinto Community College Dist. v. Superior Court , (2007) 40 Cal.4th 648, 666: "‘An owner cannot have it both ways. It is reasonable to require the owner to choose one or the other: either to deny the condemner's right to take the property and litigate, or to take the deposit.'" Mesdaq argued that he could continue to challenge the taking because he did not receive the funds, the bank did. But the court found no legal distinction. "The money withdrawn was used to satisfy Mesdaq's indebtedness ," Justice Joan Irion wrote for the court. "Further, the payment of Mesdaq's indebtedness with the deposit funds was accomplished with Mesdaq's explicit consent." On the redevelopment agency's appeal, the Fourth District reversed the lower court on the setting of the date of valuation, the determination of lost goodwill, legal fees and pre-condemnation damages. Again, the court leaned heavily on Mt. San Jacinto , which upheld the constitutionality of the state's "quick-take" procedure (see CP&DR Legal Digest , Aril 2007). In a standard eminent domain proceeding, the property may be valued either at the time the proceeding commences or at the start of the trial. But in a quick-take, "the land is to be valued as of the date of the deposit of estimated value which permits an order for early possession," Irion explained, citing Code of Civil Procedure § 1263.110. Judge Meyer implicitly found the $3.1 million deposit was adequate, but immediately prior to trial determined that the date of the trial would be the date of valuation. He reasoned that just compensation required the jury to consider the Gaslamp Quarter's rising property values. That was an error, the Fourth District ruled. Irion again cited Mt. San Jacinto : "‘In a quick-take proceeding, the constitutional requirement that an owner receive "just compensation" does not support a court's decision to disregard the statutory mandate because, under the constitution itself, "just compensation" is made available to the owner at the time of the deposit.'" Because Meyer insisted on the wrong date of valuation, the jury's award of $4.2 million must be set aside, the court ruled. To determine compensation for lost goodwill, Meyer permitted the jury to consider testimony from Mesdaq's expert regarding potential revenues from a restaurant on the site. However, Mesdaq did not have a restaurant or a liquor license. " he goodwill statute does not contemplate compensation for hypothetical or potential as opposed to actual goodwill lost," the court ruled in throwing out the jury's award of $3.4 million. Because the decision on attorneys' fees was based on awards that the court overturned, the trial judge ruling's on fees also was set aside. As to pre-condemnation damages, Meyer had ruled the agency's issuance of a "Polanco notice," two months before it filed the eminent domain action was unreasonable and Mesdaq was eligible for damages. A Polanco notice informs a property owner in a redevelopment project area that the agency suspects the property is emitting hazardous substances, and the notice gives the owner 60 days to respond with a remedial action plan. The trial court determined the agency issued this notice as a negotiating tactic to lower the value of the property and, therefore, Mesdaq was eligible for pre-condemnation damages. But the Fourth District said that a property owner is eligible for pre-condemnation damages only if the government's unreasonable action actually reduces the property value. "Here," Irion wrote, "there is no evidence that the agency's unsuccessful use of the notice as a negotiation tool diminished the fair market value of Mesdaq's property." What happens next with Mesdaq — and the site — is unclear. Although the redevelopment agency cleared the site two years ago and sold it to GRH, it remains a parking lot. The developer's original deadline to commence construction on the planned 334-room hotel was the first of this year. GRH reportedly offered, and Mesdaq accepted, $7.8 million to end all litigation earlier this year. However, the redevelopment agency has not approved the settlement, which may be further threatened by Mesdaq's appeal to the state Supreme Court. Mesdaq has continued to fight against the use of eminent domain for economic development purposes. He has appeared at numerous legislative hearings and is likely to be a player in the 2008 campaigns regarding eminent domain reform. The Case: Redevelopment Agency of the City of San Diego v. Mesdaq , No. D047927, 07 C.D.O.S. 10582. Filed August 31, 2007. The Lawyers: For San Diego: Bruce Beach, Best, Best & Krieger, (619) 525-1300. For Mesdaq: Vincent Bartolotta Jr., Thorsnes, Bartolotta & McGuire, (619) 236-9363.

The Ninth U.S. Circuit Court of Appeals has dismissed a mobile home park owner's attempt to invalidate San Luis Obispo County's mobile home rent control ordinance. The court ruled that Manufactured Home Communities' facial challenge of the ordinance was filed too late, the company's arguments over how the county applied the ordinance were not ready for judicial review, and the company's due process and equal protection claims were without merit. The court also declined to review the county's administrative process for considering the property owners' rent increase, because a state court has upheld the process. Manufactured Home Communities (MHC) has fought mobile home rent control ordinances in a number of cities. Now known as Equity Lifestyle Properties, the Chicago-based company owns more than 300 mobile home parks and recreational vehicle resorts in 30 states. It acquired Sea Oaks Manufactured Home Community in Los Osos in 1997 — 13 years after county voters approved a mobile home rent control initiative. The initiative capped annual rent increases at 60% of CPI and established the county Mobilehome Rent Review Board. In March 2002, MHC notified tenants in 9 of the 126 spaces that their rents would increase by an average of 185%. MHC said that the tenants had signed a standard-form 12-month rental agreement, and any lease or contract other than month-to-month was exempt from the rent control ordinance. The rent review board conducted three hearings and ultimately concluded that the agreements were month-to-month contracts no different than previous contracts that prior and current park managers had considered subject to the ordinance. On appeal, the Board of Supervisors upheld the rent review board's decision. In January 2003, MHC sued the county in federal court, arguing that its property had been taken without compensation and that the county had violated its constitutional rights to due process and equal protection. In a two-sentence order, District Court Judge Terry Hatter dismissed all of MHC's claims. MHC filed a similar suit in state court, and a San Luis Obispo County Superior Court judge also ruled against the company. An appeal of that decision is pending. The Ninth Circuit opinion written by Judge Diarmuid O'Scannlain methodically makes its way through MHC's claims. The property owner's takings claims took two forms: a facial challenge of the ordinance itself, and an "as applied" challenge. The court declined to consider the facial challenge because it was filed after the statute of limitations ended. MHC, which acquired Sea Oaks 13 years after the rent control ordinance was approved, argued Palazzolo v. Rhode Island , 533 U.S. 606 (see CP&DR Legal Digest , August 2001), eliminated the statute of limitations for facial challenges. The unanimous three-judge Ninth Circuit panel disagreed. "We read Palazzolo to require equitable tolling to protect subsequent landowners who do not receive notice of a regulatory taking or who lack standing to object to such taking prior to expiration of the limitations period," O'Scannlain wrote. "For such subsequent landowners, the limitations period must begin at the time of their acquisition of property, not at the time the original taking occurred. Thus, under Palazzolo , MHC had one year to file its facial takings claim after it acquired the property in 1997. Because MHC filed its claim in 2003, it exceeded the statute of limitations by five years." On the as-applied challenge, the court determined MHC's claim was not ripe for judicial review. To pursue such a claim, a landowner must attempt to obtain compensation through the state's procedure. In California, a landlord may seek a " Kavanau adjustment," under which future rents increase to compensate for previous confiscatory rents (see CP&DR Legal Digest , February 2004). MHC never sought a Kavanau adjustment. "Unless a complainant has sought relief through a Kavanau adjustment, he cannot file a federal complaint objecting to an uncompensated taking by the state," O'Scannlain wrote. The court dismissed MHC's arguments about why the Kavanau process would be futile and could not provide adequate compensation. MHC argued that its due process rights were violated because the county's application of the rent control ordinance violated substantive due process. MHC contended the ordinance transferred the value of MHC's property to a select group of tenants, and this transfer of value is not a legitimate state purpose. This argument was a nonstarter with the Ninth Circuit. "The Supreme Court and this court have upheld rent control laws as rationally related to a legitimate public purpose ," O'Scannlain wrote. MHC also got nowhere with its argument that the rent control ordinance unlawfully discriminated against mobile home park owners, thereby violating their right to equal protection. The court ruled the county could legitimately single out mobile home park owners because of the shortage of spaces and the impracticality of moving a mobile home. As for the county's administrative process, the court declined to consider the matter because the Superior Court had already issued a decision. The Case: Equity Lifestyle Properties, Inc. v. County of San Luis Obispo , No. 05-55406, 07 C.D.O.S. 11119. Filed September 17, 2007. The Lawyers; For Equity Lifestyle Properties (MHC): David J. Bradford, Jenner & Block, (312) 923-2975. For the county: Henry Heater, Endeman, Lincoln, Turek & Heater, (619) 544-0123.