The reactions to our latest downtowns list has been interesting — and telling, because they betray a fundamental misunderstanding of "placemaking." The strongest reactions concern our list of the most disappointing mid-sized city downtowns in California. First, let me say congratulations to the folks in San Bernardino and Redding. Although we still think those downtowns are awful, at least people in those cities reacted with "We've got great plans" (San Bernardino), or "It's better than it used to be" (Redding). When we named Fresno the worst big-city downtown in California earlier this year, we detected not a squeak of protest from anyone. In Chico, whose downtown we ranked third, we were heros, sort of. Check out the Dog's Breakfast blog and comments, and the Bullfight blog and comments. In Redding, the reaction was a bit different, as is evident in this Record Searchlight column and the comments. What's telling is that some people see our list as a ranking of "the city's" efforts — as in, the plans and execution of the people running City Hall. This is where the misunderstanding lies. The work of elected and appointed municipal officials is only one factor in the success or distress of a downtown. Planning, public investment and government leadership are important. But just as important are property owners who are willing to invest, developers with long-term vision, merchants who take a few chances, and hardworking community organizations that have their own pride of ownership. Without all of these pieces, a downtown will suffer to some extent, no matter how well City Hall is doing its job. And if you think we were hard on some cities, check out Sacramento Bee columnist Marcos Breton's Sunday piece on downtown Sacramento, which he calls a "caldron of neglect." Yes, Breton blames City Hall. But he also points the finger at slumlords and apathetic parents. - Paul Shigley

Norman Mineta, possibly the most important transportation policymaker of the last 20 years, closed the 2007 CCAPA Conference on Wednesday with a speech that was less than inspiring. Not that Mineta wasn't entertaining. He told a number of humorous and self-depreciating stories from his 40-year career in public service. But he was speaking to a group dedicated enough to stick around for the fourth and final day of a very full conference. I think they were counting on more from a guy who understands both politics and policy. Mineta was the mayor of San Jose before heading to Congress for more than 20 years. In the House, he was the lead author of the ISTEA and TEA-21 legislation that overhauled federal transportation programs and spending priorities. He was Commerce secretary during the last year of the Clinton Administration and then was the lone Democrat in the Bush cabinet, serving as Transportation secretary from 2001 to 2006. Fairly early in the 25-minute presentation, it appeared Mineta would talk about details. He clearly knew what the planners had been focused on for four days, and he contended that nothing has a greater impact on qualify of life than the ability to get from point A to point B. "You simply cannot have a conversation about transforming the urban fabric without discussing transportation," Mineta said. "Those areas with the strongest transportation systems will thrive the most." Mineta then candidly described President Bush's insistence that the 2005 transportation bill not include any gas tax increase. The president even scratched Mineta's plan for a CPI inflator that would not take effect until Bush was out of office. The former Transportation secretary did not criticize Bush directly but he did say, "Our current approach is broken." He said he we need more public-private partnerships and market-based initiatives — and leadership from groups like the American Planning Association. And that was about it. The audience asked no follow-up questions. A few final notes from the conference … Co-Chairs Juan Borrelli and Hing Wong announced that 1,800 people attended this year's conference, the most ever … … The final half-day of the conference was quite well-attended. In past years, the final session has drawn some embarrassingly small "crowds." This year, however, conference organizers cleverly saved the CEQA update panel for the final morning … … As usual, though, the room for the CEQA update was not large enough to accommodate everyone. It almost never is … … The feather boas handed out by one consulting firm were a bit hit. Twice, I found feathers floating around on Caltrain passenger cars in the evening … … The 2008 CCAPA conference is scheduled for September 21 through 24 at the Renaissance Hollywood Hotel in, yes, Hollywood. - Paul Shigley

The tension between planners and engineers is well-known. Planners have little patience with their counterparts down the hall, and vice-versa. Both sides think the other side doesn't "get it." This tension was the subject of a panel presentation — "Putting Design in the Driver's Seat" — during Tuesday's CCAPA conference in San Jose. Essentially, the planners in the room blamed the engineers for creating ugly streets that carry lots of automobiles and discourage every other potential use of the right-of-way. And engineers, said one planner, are easy compared with fire chiefs who insist that every residential street must be 40 feet wide. But the real theme was that we all can get along if we're all just a little bit flexible, and don't consider guidelines to be mandatory standards. The panel members — Jeff Williams of DC&E, UC Berkeley Professor Elizabeth Macdonald and Christopher Ferrell of Dowling Associates — provided some great resources for planners. (You can find those online resources here .) One of the best resources, though, was the streets of downtown San Jose right outside the Fairmont Hotel. Numerous streets around the conference hotel serve automobiles, light rail and pedestrians quite well. Sycamores, redwoods, ficus and other trees provide shade and visual relief. Many sidewalks are wide enough for outdoor dining. The panel emphasized that the car should not control the landscape. And in downtown San Jose, it doesn't. Just ask all the planners walking around the Fairmont. - Paul Shigley

You can't turn around at this year's CCAPA conference in San Jose without hearing the terms LEED, sustainability, carbon footprint, greehouse gas emissions and zero waste. Forget about floor-area ratios, design review standards and conditional use permits. These people think land use planning can save the world. Clearly, land use planners have gotten the green religion. Every session — heck, every conversation in the hallway — seems to touch on global warming. Monday's sessions specifically on AB 32 (the greenhouse gas law) and climate change were overflowing. Even sessions on dense subjects such as indirect source review were well-attended. The big question for CCAPA attendees is how the need to address global climate change will affect their day-to-day practice vis-a-vis general plans, CEQA conformance and project review. The fear that Jerry Brown will sue every city and county over each and every general plan amendment that doesn't take climate change into account is one big factor. But it's not the only factor. Stuart Cohen, of Transportation and Land Use Collaborative and a member of the Governor's Climate Action Team, said the bigger quetions are about policy and technical work. What policies will emerge from implementation of AB 32? Will local governments be required to quantify emissions from new development projects? How do you compare emissions from different development scenarios? Cohen said the Climate Action Team will likely focus on three things: • Using better planning tools • Shifting money around to promote green goals • Requiring mitigation of greenhouse gas emissions from new projects. All of this really comes down to increased air pollution regulation, which means, according to Joe DiStefano of Calthorpe Associates, more pressure to quantify greenhouse gas emissions from every project. And, as Walter Arenstein of Writrac Consulting pointed out, the science of measuring and mitigating greenhouse gas emissions has not advanced much in many years. Clearly, this is all headed toward a far greater emphasis on infill development, mixed-use, public transit and anything else that will decrease vehicle miles traveled. And that means it's going to be far more difficult for NIMBYs to defeat the six-story building proposed next to the local transit station. - Paul Shigley

Downtown San Jose sure has changed since the last time CCAPA was at the Fairmont. That was in 1989, when the Fairmont had just opened up. The idea of a fancy hotel in downtown San Jose – or a fancy anything, for that matter -- was kind of a new idea. Today, the Fairmont's practically a venerable institution compared to the newer cool things, like light-rail and high-density housing and the Adobe "vertical" campus and the excellent "urban interface" between downtown and San Jose State … The opening reception at the Tech Museum featured a lot of planners doing nerdy things (imagine!) like making little water turbines at the exhibits. CP&DR collected a few tidbits as well …. … Rick Willson reports that there's a proposal to eliminate the College of Environmental Design at Cal Poly Pomona (that's the college planning has been in forever) and merge it into a new school that includes agriculture and natural resources. They're not happy about this! … Bill Anderson, the San Diego city planning director, and Planning Commissioner Kathy Garcia report that the city's General Plan – still called "City of Villages" will come before the Planning Commission within a month. Anderson shocked everybody by leaving Economic Research Associates after 23 years to become the planning director, but he seems to be thriving; Bill now oversees planning, economic development, redevelopment, facilities finance, and urban design… Well, it wasn't o ur fault: As the city's redevelopment manager, Shawn Tillman was always downtown Redding's biggest booster. CP&DR , of course, recently rated Redding as having one of California's worst downtowns . But Shawn says he moved on to the City of Chico to be in charge of neighborhood planning three months ago – before we came out with our ratings … And appropriately enough – especially considering yesterday's blog on Warren Jones – a number of California's most distinguished planners adjourned from the Tech Museum last night for their first annual Dan Curtin Memorial Dinner. Everyone in San Jose this week misses Dan … Hands-down best "after-party" last night was the Civic Solutions casino night at The Montgomery – which included not just blackjack but also some pretty ferocious bocce ball … Receptions we've heard about … Tonight * Cal Poly San Luis Obispo, Paragon Restaurant, 5 pm (BEFORE CPF Auction) * DC&E party, The Loft Bar & Bistro, 90 S. 2nd St., 8-11 pm (AFTER CPF Auction) Tuesday night • Call Poly Pomona, Atherton Room at the Fairmont, 8 pm If we hear about more we'll keep you posted.

Fittingly enough, the memorial service for Warren Jones – the founder of Solano Press Books, who died back in May – took place yesterday, on the eve of the annual conference of the California Chapter, American Planning Association, in San Jose. Like most conferences, CCAPA is all about exchanging information – practice tips, job leads, business cards. And Warren devoted most of his career to making sure that planners in California had access to the information they needed. Warren's memorial service wasn't conducted here in San Jose, where the CCAPA conference is being held. Rather, the memorial service took place four hours to the north in the tiny Mendocino County town of Point Arena, where for the past 19 years Warren had lived his life, served his community, and – improbably enough – operated one of the most important institutions in California planning. The memorial service was held at the Point Arena Community Library, which, as anybody who knew Warren could readily guess, would not have existed without his organizational know-how and financial support. Most of the attendees and speakers were Point Arena locals, who clearly loved the fact that this kindly curmudgeon had made the city his home for so long. Among other things, they wouldn't have had a general plan of any substance if he hadn't volunteered his time to write one almost as soon as he move there from Berkeley. But for those of us in the planning profession, Warren Jones's legacy is much broader. Warren founded Solano Press in 1985, and since then the company has published more than two dozen books – almost all of them geared to assist the planning practitioner in California. These books include Guide to California Planning , written by Paul Shigley and me, as well as such classics as Curtin's California Land Use and Planning Law, by Dan Curtin, and a series of NEPA and CEQA books written by the likes of Ron Bass, Al Herson, and Ken Bogden. When you asked Warren how he had come to found Solano Press, he would claim that it was kind of a fluke. The truth was, it was the culmination of his life's work. Born in 1929, Warren came of age in an era when information was plentiful but difficult and expensive to obtain. The knowledge planners needed was available not online but in print – on planning department bookshelves, in libraries, and, most importantly, inside the heads of the state's leading land-use lawyers and planning practitioners. Warren spent the majority of his working life making sure that useful, easy-to-use practice information was available to practitioners at a low cost. In 1972, as an adjunct professor at the Department of City & Regional Planning at UC Berkeley, he was appointed to run the planning school's continuing education programs. In that capacity, he essentially invented the now-familiar UC Extension land use course – the pithy and informative half-day or full-day class. And it wasn't long before the impresario found his first star – Dan Curtin , then the city attorney of Walnut Creek, whose basic land-use law seminar quickly became the staple of the UC Extension circuit. The thick binder from Curtin's class soon became one of the most sought-after commodities in the world of California planning, and after a few years Jones and Curtin realized that it had market value. So Warren started Solano Press Books for the express purpose of publishing Curtin's California Land Use and Planning Law , which is still a best-seller after 27 years. Over the years, Warren found many other authors and nurtured many other excellent practice books. In 1987, Warren traveled to Ventura expressly to ask me to write Guide to California Planning – a book he had always wanted to write himself but, as he aged, realized that he never would. Always quick to seize a market opportunity, I turned him down – and then, two years later, begged him to let me write it. The recent passing of both Warren and Dan Curtin – there were four years difference in age between them and they died five months apart – is a sober reminder that a seminal generation of California planners is moving on. These are the unsung heroes from the ‘50s, ‘60s, and ‘70s, who brought planning from the dark ages into the modern world of the seven-element General Plan and CEQA. But it's also a reminder of how different the world of information is today. For those of us who deal in that business today, the problem is not that information is inaccessible or expensive, as it was in Warren's day. Rather, the problem is the opposite – it's ubiquitous and free. So the key is no longer delivering pithy information; it's sifting through all the chaff out there on the internet to find what's golden. It's a challenge that Warren Jones himself would have loved to tackle. -- Bill Fulton

Regional planning strategies are not necessarily compatible with local desires, especially when satisfying regional needs means putting a bunch more cars on already overburdened streets. This is a common story in California's urban regions, and it is playing out right now in San Pedro, where developer Bob Bisno has proposed a 1,950-unit housing development on 61.5 acres along South Western Avenue formerly owned by the Navy. A 13-member community advisory committee to Los Angeles Councilwoman Janice Hahn rejected the project primarily because of traffic impacts. "At this point, I am in agreement with my advisory committee," Hahn said. "Traffic is just too much of a problem on Western Avenue and the project built on this site should not be any denser than its current R-1 zoning." But keeping the residential single-family zoning, which would permit in the range of 525 to 725 houses, is unrealistic and a wasted opportunity, according to the developer. Plus, a traffic analysis says that a single-family development would put just as many cars on Western Avenue at peak hours as the proposed multi-family project, known as Ponte Vista, of which 44% would be restricted to senior citizens. "I don't think anyone seriously believes this should be developed with 5,000-square-foot, single-family lots. Nobody is developing that in the region," said Alan Abshez, Ponte Vista's land use attorney. The site is located about 2 1/2 miles north of downtown San Pedro, and less than two miles from the Port of Los Angeles. The City of Rancho Palos Verdes lies across Western Avenue. For nearly four decades, the site provided housing for Navy personnel stationed at Long Beach Naval Shipyard. The shipyard and the housing closed in 1999 and, ultimately, the Navy auctioned the property. Bisno Development Co. acquired 42 acres for $88 million and later bought the remaining 19.5 acres from Volunteers of America, a homeless advocacy group, for $34 million. The property has been zoned for low-density residential development since the City of Los Angeles annexed it in 1980. Bisno originally proposed 2,300 townhouses and condominiums in four- to six-story buildings, with one-quarter of the units located in a gated community for senior citizens. Also proposed were about 10,000 square feet of retail uses, a community clubhouse and 11 acres of parks. "The concept is to provide a resort-like community in which people of different income levels can enjoy the amenities," Abshez explained. "We wanted to have a project that would service several market segments — seniors, entry-level buyers, move-up buyers." "It's an incredible infill opportunity site in every sense of the term," Abshez continued. "It's located next to the region's largest employment source — the ports of Los Angeles and Long Beach." No one disputes that the demand is enormous because housing development has not kept pace with the explosion in employment in and around the country's busiest port complex. "Virtually no new housing has been built in that area of the City of Los Angeles in the last 20 to 30 years," Abshez said. The response during nearly a year's worth of Hahn's community advisory council (CAC) meetings was mixed, but concerns about density and traffic were too hard to ignore. In June, Bisno downsized the project to 1,950 units in buildings of no more than four stories. There would be 850 senior condos in a gated community, 1,000 townhouse-style condos and 100 upper-end, attached, three-story townhouses. The developer also agreed provide 20% of the units (370 units) at or below the "workforce" pricing level, which Abshez estimated at about $460,000. The developer would pay extensive fees to improve traffic on Western Avenue, with the bulk of the money going for expansion of and improvements to a signal automation system that adjusts based on traffic conditions. But the CAC questioned the traffic figures from the city and Bisno's consultant, as well as the practicality of a signal automation project that requires better coordination among Los Angeles, Rancho Palos Verdes and Caltrans simply to meet current demands. The CAC expressed extreme frustration with the city, which members said failed to provide needed information "and left the CAC rudderless in a process that very much needed good direction." By a vote of 10-1, the CAC rejected the revised project, and by a vote of 8-4, the committee recommended keeping existing single-family zoning. Committee members said they appreciated the need for new housing and supported infill policies, but insisted that multi-family projects such as Ponte Vista belong near public transit centers, not along a gridlocked arterial that has only routine bus service. They cited recently adopted city Planning Department guidelines that urge "additional density at train and rapid bus stops, and discourage new density where we anticipate no mass transit relief." However, a five-member CAC minority urged Bisno, Hahn and city planners to negotiate on a new mixed-use, multi-family project. "In short, by failing to suggest a reasonable compromise, we are missing an opportunity to improve traffic on Western Avenue and to provide needed housing for people to come to or remain in San Pedro," the minority group wrote. "Opportunities such as this are unlikely to present themselves again." Indeed, 61.5-acre infill sites that have virtually no environmental hazards are extremely rare in metropolitan Los Angeles, which explains why a developer was willing to pay nearly $1.5 million an acre for unentitled dirt. The San Pedro Peninsula Chamber of Commerce is among the organizations that has endorsed the project because of its positive impact on local goods and services providers, and because of its mix of housing types. And the project won an endorsement from the Southern California Association of Governments, whose regional planning urges infill. Hahn, however, appears ready to accept the CAC's recommendations. "There is no doubt that Los Angeles is facing a housing shortage, which is why I have been so supportive of new housing in downtown San Pedro, where we have the public transportation and roads to support it. But increased density at the Ponte Vista site is clearly just the wrong fit for San Pedro," she said. Public hearings on Bisno's request for a general plan amendment, zoning change, specific plan, development agreement and tract map are scheduled to begin about the first of the year. One complicating factor is the Los Angeles Unified School District's proposal, still under consideration, to take about eight acres of the site for a small high school. Contacts: Alan Abshez, Ponte Vista, (310) 203-7573. Los Angeles Councilwoman Janice Hahn, (213) 473-7015. Ponte Vista website: www.pontevista.com Citizens Advisory Council report: www.nwsanpedro.org/pdfs/pontevistaCACreport%20final.pdf

The creation of a "land bank" and the subsequent sale of mitigation credits within the bank is not subject to requirements of the Subdivision Map Act, according to the attorney general's office. The opinion, prepared by Deputy Attorney General Marc Nolan, is potentially good news for advocates of using mitigation banks to offset development's impact on endangered species — a fairly routine practice used statewide. The opinion was prepared for state Sen. Dick Ackerman (R-Irvine) in response to a specific situation in San Bernardino County. After the U.S. Fish and Wildlife Service listed the Delhi sands flower-loving fly as an endangered species in 1993 (see CP&DR Environment Watch , September 1999), Vulcan Materials Company signed an agreement with the agency to operate a conservation bank for the fly. Vulcan agreed to transfer in phases portions of its property in the City of Colton to the Fish and Wildlife Service. Vulcan would then receive mitigation credits that it could sell to other potential developers. According to Ackerman's request letter, Vulcan has effected one transfer and sold three 1-acre mitigation credits. However, the question arose as to whether the arrangement constituted a "subdivision" within the meaning of the Subdivision Map Act, which could then start a whole new planning and environmental review process. The granting of an easement is not typically considered a subdivision. But an argument could be made that the credits constitute a "lease" for a definite period of time, which could trigger the map act. In addition, the arrangement might also be considered an "environmental subdivision," which would be subject to map act requirements. In response, the attorney general started with the definition of "subdivision" in Government Code § 66424: " he division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, shown on the latest equalized assessment roll as a unit or as contiguous units, for the purpose of sale, lease or financing, whether immediate or future." Other portions of the act speak to the intent to create "one or more new or additional, separate parcels of property," Nolan wrote. A mitigation bank does not fit within these definitions, the attorney general concluded. "While the grant of a conservation easement may involve identifying a portion of a larger tract of land upon which will be placed enforceable use restrictions, the grant does not constitute a division of the land within the meaning of the act," Nolan wrote. "The owner has neither conveyed the land so designated, nor expressed any future intent to convey it, as a separate unit. The creation of a conservation easement, in which the owner maintains ownership and possession of the land, does not, in itself, evidence an intent to convert the designated property into a separate parcel that can be transferred or sold." "Moreover," Nolan continued, "the purpose of granting a conservation easement ‘is to retain land predominately in its natural, scenic, historical, agricultural, forested, or open-space condition' (Civil Code § 815.1) and not to effect a ‘sale, lease or financing, whether immediate or future.'" There is no sale involved in the mitigation bank arrangement because ownership of the property does not change hands, Nolan explained. And there is no lease within the meaning of the act, because the "occupier" — in this case, the purchaser of mitigation credits — does not gain exclusive possession of the property. In fact, developers who buy credits "will not acquire any right to actual possession, much less the right to exclusive possession." The financing provision of the act does not apply because the mitigation bank involves no transfer of the property title, the attorney general concluded. Because the mitigation bank does not qualify as a subdivision under the map act, the provisions for an "environmental subdivision" do not apply, according to the opinion. The attorney general also rejected the notion that Vulcan's receipt of mitigation credits or the subsequent sale of the credits triggered the map act. "Under the federal program, such a credit represents ‘the quantification of a species' or habitats' conservation values within a bank' so as to offset the negative impact of a credit purchaser's development of other land," Nolan wrote, citing Fish and Wildlife Service guidelines. "No ‘division' of land results from the receipt, sale or use of mitigation credits." Although an attorney general's opinion does not set legal precedent, courts often rely on the opinions when making decisions. The opinion is No. 06-801 and was issued August 14, 2007. It may be found at 07 C.D.O.S. 9630 and 2007 DJDAR 12483.

An appellate court has upheld the awarding of $200,000 for lost goodwill to a business owner whose shop was taken by the Inglewood Redevelopment Agency, even though the business had mostly lost money. The court agreed that the owner of Auto Inn Lube and Oil deserved to recoup the losses he racked up while awaiting completion of a big-box center across the street. The business owner's expert called this the "cost to create" goodwill, and the court said it was an acceptable method of valuing goodwill lost because of the government's taking. However, the court declined to throw out the city's eminent domain action or to award the business owner his litigation expenses. Elias Aklilu opened Auto Inn in 1997 on West Century Boulevard. The business was profitable in 1998, but lost money the following four years while it endured road construction related to development of Marketplace at Hollywood Park, which contains Home Depot, Target and other stores. Once traffic flow returned to normal in 2003, the profitability of Aklilu's business also returned. But in mid-2003, the Inglewood Redevelopment Agency adopted a resolution of necessity authorizing condemnation of the property on which Auto Inn was located to make room for a 180,000-square foot retail project. In October of that year, the agency filed an eminent domain complaint against the property owner, Aklilu and his subtenant, who ran a smog-check shop. The agency settled with the property owner for $700,000 and with the subtenant for $35,000. The agency offered Aklilu $35,000 for lost goodwill, but he demanded $239,000 for lost goodwill, $31,000 for improvements and $85,000 for "moveable equipment." At trial, Aklilu's expert, Chris Pedersen, said Auto Inn had adjusted annual losses of $238,761 over six years, and that amount should be considered the "goodwill" that Aklilu had invested in what was likely to become a successful venture because of its location. The agency's expert testified that Auto Inn had no goodwill because it had not turned a profit. Ultimately, a jury awarded Aklilu $200,000 for lost goodwill. Los Angeles County Superior Court Judge Ricardo Torres also awarded Aklilu $4,265 of the $34,525 the agency had agreed to pay the property owner for fixtures and equipment. The judge declined to award attorneys fees or halt the city's condemnation action. Both sides appealed, and a unanimous three-judge panel of the Second District Court of Appeal, Division Three, upheld the lower court. Key to the decision was the valuing of lost goodwill. The agency contended the "cost to create" approach was impermissible because it was not based on past business performance, but instead speculated about future business success. The court, however, pointed to People ex rel. Dept. of Transportation v. Muller , (1984) 36 Cal.3d. 263, the only state Supreme Court decision to analyze compensation for lost business goodwill under Code of Civil Procedure § 1263.510. In Muller , the court ruled, " here is no single acceptable method of valuing goodwill." "Pedersen testified a willing buyer would pay $238,716 for Auto Inn's goodwill," Presiding Justice Joan Klein wrote for the Second District. "The fact Pedersen appraised the value of this goodwill using a cost to create approach does not render Pedersen's valuation inadmissible. Rather, admission of Pedersen's testimony was consistent with Muller's interpretation of § 1263.510 as ‘a remedial statute to be construed liberally.'" The court noted that the founder of the firm hired by the agency to determine valuation had written a handbook that said a cost to create approach was acceptable when the "excess profits" test produced a goodwill value of zero. The court declined to overturn the agency's resolution of necessity, finding that Aklilu should have raised an objection during a public hearing when instead he endorsed the resolution under the mistaken belief the agency would find room for him in the new project. The court also upheld the trial court judge's determination that substantial evidence supported the city's resolution. As for litigation expenses, Aklilu argued he was eligible because the jury's award of $200,000 was far beyond the city's offer of $35,000. But the court ruled that the mathematical relationship between the award and the offer was only one factor. The court noted that Aklilu made "unreasonable" demands for payment for fixtures and equipment he apparently did not own, and for "movable" equipment, which is not eligible for compensation. In addition, the agency's payment to Aklilu's subtenant also settled a suit the subtenant had filed against Aklilu. The court also ruled that the agency could offset the interest it owed Aklilu against rent he owed for continuing to occupy the property after the agency gained actual possession. The Case: Inglewood Redevelopment Agency v. Aklilu , No. B185107, 07 C.D.O.S. 9041, 2007 DJDAR 11677. Filed and partially published July 30, 2007. Certified for full publication August 20, 2007. The Lawyers: For Inglewood: Royce Jones, Kane, Ballmer & Berkman, (213) 617-0480. For Aklilu: Karen Larson, Century Law Group, (310) 642-6900.

The requirement that two Antioch property owners dedicate land for a new highway bypass when they develop their property is constitutional, the First District Court of Appeal has ruled. The ruling overturned a trial court judge who found that the dedication requirement violated the Dolan "rough proportionality" test because the two property owners were treated differently than property owners whose land was not along the bypass alignment. The trial court also determined the dedication requirement violated the equal protection clause because the two property owners were not treated the same. "In our view, the court misconstrued Dolan and judged the legality of the dedication requirement using a benchmark — equality of burden among all property owners benefiting from the bypass project — that is not required by Dolan , and not otherwise mandated by state or federal law," Justice Sandra Margulies wrote for the unanimous three-judge panel of the First District, Division One. The decision came not in a case directly challenging an exaction or regulation, but in an eminent domain valuation case. Composed of Contra Costa County and the cities of Antioch and Brentwood, the State Route 4 Bypass Authority is an 18-year-old joint powers authority whose mission is to build a new freeway in Eastern Contra Costa County. The authority long ago adopted a policy requiring its member agencies, when granting development approvals to property owners along the chosen freeway alignment, to require dedication of a 110-foot-wide right-of-way. More recently, the authority began eminent domain proceedings to acquire a 250-foot-wide strip across lands owned separately by Toshiko Morimoto and Ronald Nunn. The authority sought a total of 16.9 acres from Morimoto, and 3.3 acres from Nunn. The authority contended that the value of the 110-foot-wide strips that would have to be dedicated in the future should be based on existing agricultural uses. Thus, 4.7 acres of the Morimoto property would be valued as farmland, while the remaining property would be valued based on its highest and best use as commercial and residential development. Similarly, 1.5 acres of the Nunn property would be valued as agricultural land, with the rest valued based on its potential for commercial and residential development. This approach is permitted under City of Porterville v. Young , (1987) 195 Cal. App.3d 1260, according to bypass authority. The landowners did not agree with this approach, and, ultimately, neither did Contra Costa County Superior Court Judge Joyce Cram, who ruled that the dedication requirement ran afoul of Dolan and the equal protection clause. In Dolan v. City of Tigard , (1994) 512 U.S. 374, the U.S. Supreme Court built on its landmark Nollan decision. In Nollan , the Supreme Court ruled that there must be an "essential nexus" between an exaction and a project's impact. In Dolan , the court ruled that there must also be a "rough proportionality" between the exaction and the project's impact. The First District ruled that Judge Cram misread Dolan because she concluded that Dolan prohibited the authority from placing a greater financial burden on property owners' based on the location of their property. The appellate court ruled that Dolan does not require consideration of other property owners. " he takings clause, as construed in Dolan and other cases, only protects a property owner from being assessed for more than the full spillover costs of developing his or her property; it does not compel public agencies to pick the most equitable possible method of distributing such costs," Justice Margulies wrote. "The trial court's formulation of the Dolan test would also lead to a multitude of practical problems," Margulies continued. "Trying to establish that a developer challenging a dedication condition is not being asked to shoulder a greater financial burden than any other similarly situated developer would not be easy, and would likely become a fruitful source of litigation." Moreover, there was no evidence that Morimoto and Nunn were being disparately burdened, the court concluded, noting that impact fee and road dedication policies would apply to any developer in the area, and that property owners along the future freeway would gain additional economic benefits. "Although the trial court and take the position that it would be fairer and more rational to do away with the dedication requirement and raise fee levels for all developers, the equal protection clause is not a rule of thumb for determining the relative fairness and wisdom of public policy choices," the court ruled. "It is a safeguard against wholly irrational policies that do not advance a legitimate state interest or that single out an unpopular group for discriminatory treatment." The trial court had also ruled that the dedication requirement violated the equal protection clause because the Nunn property was expected to generate up to three times as much traffic as the Morimoto property, yet the authority sought one-third as much land from Nunn. However, the First District again said evidence was lacking "to draw any conclusions about the relative burdens placed on property owners to mitigate area-wide transportation problems." The First District sent the case back to the trial court for further proceedings based on the authority's use of the Porterville approach to valuation. The Case: State Route 4 Bypass Authority v. Superior Court , No. A116834, 07 C.D.O.S. 9398, 2007 DJDAR 12099. Filed August 8, 2007. The Lawyers: For the authority: John Makin, Greenan, Peffer, Sallander & Lally, (925) 866-1000. For the property owners: Matthew Gray, Bingham McCutchen, (925) 937-8000.

A billboard company may not bring a California Environmental Quality Act lawsuit over the City of West Hollywood's amended sign ordinance, the Second District Court of Appeal has ruled. The Second District upheld a trial court judge, who had determined that Regency Outdoor Advertising was attempting to use CEQA to pursue its commercial interests against competitors. In 1998, West Hollywood amended its zoning ordinance to permit tall wall signs — illuminated outdoor advertising of at least 5,000 square feet — along Sunset Boulevard to break up the visual monotony of blank walls. The signs were to be allowed where windows were less than 15% of the image area. Two years later, the city permitted Regency to place a tall wall sign on a building at 9229 Sunset Boulevard. In 2001, however, the city amended its ordinance again. This time the ordinance permitted tall wall signs only if windows covered less than 15% of the wall, not merely the image area. The amendment compelled Regency to remove its sign because windows covered about 25% of the wall. In 2004, the city proposed reverting to the earlier language regarding "image area," which apparently would permit a new sign on the building at 9229 Sunset. But by that time, Elevation Media and Sunset Sierra Properties had gained the right to place the sign on the building. Regency said the restored language needed review under CEQA. Instead, the city invoked CEQA's "common sense" exemption and adopted the amendment without environmental review, prompting Regency's lawsuit. Los Angeles County Superior Court Judge David Jaffee tossed out the case based on the precedent set in Waste Management of Alameda County v. County of Alameda , (2000) 79 Cal.App.4th 1223. The Waste Management case was filed by the operator of a landfill (Waste Management) whose proposed acceptance of a particular type of waste was subjected to environmental review by a regional water quality control board. When a competing landfill located only four miles away but within a different water board's jurisdiction was allowed to accept similar waste without undergoing environmental review, Waste Management sued. But the court dismissed the case, concluding the company could not use CEQA simply to advance its commercial and competitive interests (see CP&DR Legal Digest , May 2000). On appeal, Regency argued that Waste Management did not apply. Regency contended it was suing over an ordinance of general application while Waste Management involved a single permit. Regency cited Dunn-Edwards Corp. v. South Coast Air Quality Management Dist ., (1993) 19 Cal.App.4th 519, for support. But the Second District said Dunn-Edwards focused on regulator's response to claims about environmental effects of regulations, and not on standing (a party's ability to bring a lawsuit). "A case is not authority for a proposition it does not address," Justice Laurence Rubin wrote. Regency argued that while the landfills involved in Waste Management were in two different water boards' jurisdictions, Regency has its main office and billboards in West Hollywood. Therefore, the company has an interest over and above the general public's. The court agreed the ordinance affects Regency more than it does the general public. "But the amendment does not have environmental effects on Regency that are greater than the effects it has on other businesses and property owners in the city," Rubin wrote. Regency argued that instead of relying on Waste Management , the court should look to Burrtec Waste Industries, Inc., v. City of Colton , (2002) 97 Cal.App.4th 1133. In Burrtec , the court allowed a company to pursue a CEQA lawsuit concerning a competitor's permit application because it involved the city's failure to follow public notice requirements. The fact that Burrtec Waste Industries could gain an economic advantage did not disqualify the company's suit (see CP&DR Legal Digest , July 2002). The Second District was unconvinced: "Regency does not allege it lacked notice of the city's proceedings to amend the ordinance. Instead, Regency simply disagrees with the outcome of those proceedings in which it participated." Regency further argued that it had "citizen standing" under CEQA and, for support, cited four other lawsuits it has pending regarding competing billboard companies' compliance with CEQA. That argument played badly at the trial court, where Jaffee concluded it was further evidence of Regency's use of CEQA for economic purposes. "To dispel the aura of self-interest masquerading as environmentalism, some evidence is likely to exist of a party's engagement in environmental issues where it had nothing to gain financially," Justice Rubin wrote. "The trial court found Regency's gaggle of lawsuits was not such evidence." The Case: Regency Outdoor Advertising, Inc. v. City of West Hollywood , No. B18611, 07 C.D.O.S. 8870, 2007 DJDAR 11348. Filed July 25, 2007. The Lawyers: For Regency: Michael Tidus, Jackson, Demarco, Tidus & Peckenpaugh, (949) 752-8585. For the city: Michael Jenkins, Jenkins & Hogin, (310) 643-8448. For Elevation Media and Sunset Sierra Properties: Gary Mobley, (949) 955-1010.

A new environmental impact report is not required for a drastically modified high-rise project proposed in downtown Los Angeles, because there is substantial evidence that a 2005 addendum to a 1989 EIR was sufficient, the Second District Court of Appeal has ruled. In its decision, the court makes two things perfectly clear: The "fair argument" test does not apply when the question concerns the need for a supplemental EIR, and the Third District Court of Appeal got a similar case wrong. The decision came in a lawsuit over a long-planned project on 6.3 acres of parking lots next to the Harbor Freeway, near Staples Center. In 1990, nine years before Staples Center opened, the city approved a 2.7-million-square-foot development of three 30-story towers, a 36-story tower and a 7-story structure. Primarily office space, the project also was to have a hotel, some retail facilities and possibly a cultural center. The EIR, certified in 1989, concluded the project would result in unavoidable, significant impacts to traffic, air quality, water, sewer capacity, solid waste, and police and fire services. Project approval was followed by litigation, a weak office market, numerous tweaks to the project — but no actual construction. Finally, in 2004, the developer proposed changing the project primarily to residential. In late 2005, after IDS Equities acquired the project, the city approved the 3.2-million-square-foot L.A. Metropolis project of four towers ranging from 350 to 620 feet in height. The towers would contain up to 836 residential units, a hotel of 480 rooms, 1 million square feet of office space and a small amount of ground-floor retail in all the buildings. The city also certified a 390-page addendum to the original 1989 EIR and a 2000 addendum. The 2005 addendum found that most of the earlier unavoidable impacts would be solved by the switch to a primarily residential project. Only air quality and construction noise were identified as significant unavoidable impacts. In January 2006, Mani Brothers Real Estate Group, an office real estate investment company, filed suit arguing that the EIR addendum was inadequate for the revised project and that a supplemental EIR was required. Los Angeles County Superior Court Judge David Yaffe ruled that the 2005 environmental document was adequate except for its analysis of impacts to police services. He ordered the city to prepare an "SEIR that deals with the necessity for increased police services required by the new, predominately residential project." Both sides appealed, and a unanimous three-judge panel of the Second District Court of Appeal, Division Two, upheld the lower court. Mani Brothers relied heavily on Save Our Neighborhood v. Lishman , (2006) Cal.App.4th, 1288. In that case, the Third District Court of Appeal rejected the City of Placerville's use of an addendum to a negative declaration for a revised project. The court said the approach was not legal because the revised project was really a "new project" that was unrelated to earlier versions, except for the fact that they were proposed for the same site (see CP&DR Legal Digest , September 2006). By law, the court ruled, the new project required a fresh environmental review. In the case at hand, the Second District called the analysis in Save Our Neighborhood "flawed" and not appropriately deferential to the governing body. What matters, the Second District said, is not the project details, but the environmental impacts. "Labeling a project a ‘new' project, as distinguished from a ‘modified' project, and finding such a label determinative, as the court did in Save Our Neighborhood, imposes a new analytical factor beyond the framework of CEQA," Presiding Justice Roger Boren wrote for the court. "Particularly here where there is a previously certified EIR, changes in the size, ownership, nature, character, etc. of a project are of no consequence in and of themselves. Such factors are meaningful only to the extent they affect the environmental impacts of a project." What matters, according to the court, is that there was substantial evidence supporting the city's decision to use an addendum. The lower-threshold "fair argument" test does not apply. In an instance such as this one, where the question concerns subsequent environmental review, the court views the record "‘in a light most favorable to the city's decision in order to determine whether substantial evidence supports the decision not to require additional review,'" Boland wrote, citing Friends of Davis v. City of Davis , (2000) 83 Cal.App.4th 1004 (see CP&DR Legal Digest , October 2000) While most of the addendum passed the substantial evidence test, the analysis of impacts on police services failed. The mitigation measures in the 2005 addendum — private security guards, electronic surveillance equipment, card-key entry systems — were no different than mitigations identified in 1989, when the impact on police services was deemed unavoidable and significant, the court noted. " he 2005 addendum fails to explain how the mitigation measures, found unable to mitigate the original project's impacts in the 1989 EIR, are now magically able to mitigate the impacts of the larger and mostly residential modified project," Boren wrote. An SEIR to evaluate the impacts on police services is required, the court concluded. The Case: Mani Brothers Real Estate Group v. City of Los Angeles , No. B194309, 07 C.D.O.S. 9317, 2007 DJDAR 11908. Filed August 2, 2007. The Lawyers: For Mani Brothers: Thomas Winfield, Brown, Winfield & Canzoneri, (213) 687-2100. For the city: Siegmund Shyu, city attorney's office, (213) 978-8191. For IDS Equities: Amy Nefouse, DLA Piper, (619) 699-2693.