An appellate court has rejected the argument that a project leading to the loss of farmland should have been mitigated with the establishment of agricultural easements on other farmland. The ruling came in a lawsuit regarding development of a large state prison near the San Joaquin Valley town of Delano. The environmental impact report determined that the prison would convert 480 acres of farmland to institutional uses, and that other projects would convert another 1,820 acres of farmland. The California Department of Correction (CDC) found that no mitigation was feasible and adopted findings of overriding consideration. But project opponents contended the EIR did not analyze or discuss feasible mitigations, such as agricultural easements over important farmlands in the vicinity of the proposed prison. A unanimous three-judge panel of the Fifth District Court of Appeal rejected opponents' argument. "At best, such as easement might prevent the future conversion of some as yet undefined parcel of farmland to a nonagricultural use. Although appellant might deem this to be a desirable result, appellant's desire for such a result does not turn appellant's proposed action into mitigation of the cumulative impact on farmland of this project and of the past, present and probable future projects properly considered ", Presiding Justice James Ardaiz wrote for the court. The decision worries proponents of agricultural easements, who fear that the ruling establishes a black-and-white precedent for projects that impact farmland — giving proponents the choice of no project or no mitigation. Numerous groups have asked the state Supreme Court to depublish the decision, meaning it could not be used as a precedent. In 1995, the Department of Corrections certified an EIR for a 4,180-inmate, 400-acre prison in Kern County near the existing North Kern State Prison in Delano. However, the state did not fund "Delano II." Four years later, the governor signed urgency legislation authorizing construction of Delano II. Corrections then prepared a subsequent EIR (SEIR) on a project that had grown to 5,160 inmates and 480 acres. The agency certified the EIR in June 2000. Three organizations sued Corrections, alleging several violations of the California Environmental Quality Act (CEQA). The Kern County Superior Court kicked out two of organizations — Critical Resistance and the Prison Law Project — because they lacked standing. But Friends of the Kangaroo Rat was allowed to proceed with the litigation. Eventually, Kern County Superior Court Judge Roger Randall upheld the EIR except for the an analysis of the cumulative impact of farmland conversion. The Department of Corrections then revised the cumulative impacts analysis (RCIA), adopted a new SEIR in December 2001 and asked Judge Randall to dismiss the lawsuit. In April 2002, Randall ruled that the RCIA was acceptable and he dismissed the lawsuit. Friends of the Kangaroo Rat appealed. In a partially published opinion, the Fifth District upheld the lower court's decision. The Fifth District published only the portion of its opinion addressing the issue of farmland conversion. The SEIR found that the cumulative impact on farmland conversion from the prison and from past, present and probable future projects was a significant impact that could not be mitigated. Friends of the Kangaroo Rat commented on the SEIR when the document was circulating, saying the conclusion was not supported by evidence in the record. Friends suggested creating agricultural easements as a mitigation. A response in the final SEIR called the suggestion "novel" and said an easement would not mitigate the impact because it would neither create new farmland nor compensate for the loss of farmland. The SEIR also stated that creating new farmland on the valley floor was infeasible because it would likely impact habitat for rare species such as the Tipton kangaroo rat, and that reverting developed land to farmland was also infeasible. Friends made its same arguments to the Fifth District but got no further. "The CDC correctly observed that once the prison is built and the 480 acres of farmland at that site have been converted to what the RCIA calls ‘an institutional use' (i.e., a prison), the 480 acres of farmland will be gone," Justice Ardaiz wrote. "Similarly, when the 2,300 acres of past, present and probable future projects are completed, 2,300 acres of farmland will be gone. The only option for ‘mitigating or avoiding the project's contribution to' loss of farmland would be to not build the prison. This is in essence the ‘No project alternative' which was required to be discussed in the SIER and which was in fact discussed." Even if farmland easements were deemed to be mitigation, the court continued, Corrections explained why they easements were not feasible. "A public agency ‘need not, under CEQA, adopt every nickel and dime mitigation scheme brought to its attention or proposed in the project EIR,'" Ardaiz wrote, citing , (1993) 12 Cal.App.4th 1773, 1809 (see , July 1993). In the longer but unpublished portion of its opinion, the Fifth District rejected Friends' arguments regarding water and traffic impacts. The court said the water concerns were "deemed waived" because they were not raised when Corrections was preparing and reviewing the environmental documents. The cumulative impacts on traffic also had not been raised administratively, the court ruled. Besides, the court held, the SEIR adequately addressed the cumulative traffic impacts. Since the Fifth District issued its ruling, a number of environmental, open space and farming groups — including both the California Farm Bureau Federation and the Sierra Club — have urged the state Supreme Court to depublish the decision. Agricultural easements have been proven to be successful mitigation for development that converts farmland to urban use, said Alvin Sokolow, a University of California, Davis, professor and authority on agricultural easements. Properly placed easements can prevent the additional loss of farmland, said Sokolow. Several cities and counties in California require developers that build on farmland to acquire farmland easements "This decision basically removes the mitigation option," said Sokolow, who has asked the Supreme Court to depublish the decision. Meanwhile, development groups and the League of California Cities have urged the state high court to leave the decision alone. As of late December, the Supreme Court had not issued a ruling. The Case: , No. F040956, 2003 DJDAR 10597. Filed August 18, 2003. Partial publication ordered September 16, 2003. The Lawyers: For Friends: Babak Naficy, (310) 473-8899. For the state: Meg Halloran, attorney general's office, (916) 323-8549.

An initiative passed by Burbank voters that sought to restrict the expansion of Burbank Airport has been struck down by the Second District Court of Appeal. The unanimous three-judge appellate panel ruled that the State Aeronautics Act gives legislative authority for airport expansions and relocations exclusively to City Councils and Boards of Supervisors, thereby prohibiting initiatives and referenda. The court also held that Burbank Airport expansion and relocation was a matter of "statewide concern" and therefore not subject to a local initiative. The proposed expansion of Burbank Airport has been a source for ballot measures, litigation and other controversy since at least the 1980s (see , September 1999 and November 1997; , June 1999; , May 1998 and January 1993). Situated at the southeast end of the San Fernando Valley, the airport is surrounded by urban development and has virtually no buffer. But short runways, the close proximity of runways to the terminal, and a single, crowded terminal have caused the Burbank-Glendale-Pasadena Airport Authority — the three-city entity that owns and runs the airport — to look favorably on expansion. At a special election in October 2001, Burbank voters approved Measure A. The initiative required the City Council to get two-thirds voter approval before approving "financing and/or construction of an airport terminal." The initiative further prohibited the city from approving any airport expansion, relocation or related measure unless 12 specific conditions were met. Among those conditions were flight curfews, caps on the numbers of flights and passengers, a ban on the noisiest aircraft, development of a master plan, and a ban on runway projects to accommodate larger airplanes. Measure A also directed the city to establish a city department to enforce the initiative, hire a consultant to monitor noise levels and amend all existing city laws to conform with the initiative. Amending Measure A required two-thirds voter approval. A week after the election, the City of Burbank filed a lawsuit seeking to have the initiative declared illegal. Michael Nolan, one of Measure A’s primary proponents, defended the ballot measure. In September 2002, Los Angeles Superior Court Judge Richard Montes ruled for the city on a number of grounds. Among other things, Montes found that state law prohibited the initiative, that the two-thirds vote requirement violated the California constitution, and that the subject matter was beyond the initiative power. Nolan appealed, and the Second District, Division Seven, upheld the lower court. The appellate court looked closely at one section of the State Aeronautics Act, Public Resource Code § 21661.6, which specifies the procedural criteria for expanding an existing airport. "Public Resources Code § 21661.6 specifically refers to the ‘board of supervisors’ and to the ‘city council’ as the governing bodies responsible for decisions regarding any expansion or enlargement of an existing public airport," Justice Earl Johnson Jr. wrote for the court. "Use of these specific terms rather than the generic terms of ‘governing body’ or ‘legislative body’ creates a strong inference the Legislature intended to preclude action regarding airport expansion or relocation by initiative or referendum." The inference is strengthened further by the fact that the statute addresses a matter of statewide concern, wrote Johnson, noting the Legislature’s stated goals for a regional airport system proved the statewide importance. Thus, the state law precluded a municipal initiative, he court held. In reaching the decision, the court cited , (1988) 45 Cal.3d, 491. In that case, the state Supreme Court threw out an initiative that sought to prohibit the City of Irvine from collecting development and bridge fees to funds highways because state legislation authorizing the fees specifically named the Board of Supervisors and city councils, and because construction of highways was a matter that went beyond municipal boundaries. The court rejected Nolan’s contention that Measure A was merely a zoning ordinance, which would normally be subject to initiative or referendum. The court further rejected the argument that the City Council had ceded its authority to voters when in placed Measure B on the ballot in November 2000. That ballot measure prohibits airport expansion without voter approval. "The validity of Measure B was not before the trial court," Johnson wrote. The Case: , No. B162667, 03 C.D.O.S. 9934, 2003 DJDAR 12470. Filed November 19, 2003. The Lawyers: For the city: Dennis Barlow, city attorney, (818) 238-5700. For Michael Nolan: Dennis Winston, Moskowitz, Brestoff, Winston & Blinderman, (310) 785-0550.

Long criticized as a regulatory laggard, the San Joaquin Valley Air Pollution Control District appears to be only one year away from becoming the first air district in the state to levy air quality impact fees on all new developments. The proposed fee would be based on the size and type of project, and development proponents whose projects meet certain criteria could minimize or avoid the fee all together. Environmentalists and state regulators endorse the district’s approach, but developers and some local government officials have concerns. Among the biggest issues is the difficulty of defining a "nexus" between the fee and the true impact of new developments. District officials say new development means more automobile trips, and emissions generated during those trips must be offset. But, said Bakersfield Planning Director Stanley Grady, "I’m wanting to see that there is a direct relationship between the fee and a reduction in tailpipe emissions from additional cars that moves us toward attainment." So far, the district has not satisfied Grady, but the rulemaking process is young. The district intends to roll out a proposed program for public review this month. After seeming to fly under the public policy radar for years, air pollution in the San Joaquin Valley has become a hot issue during the last few years. Environmentalists, anti-poverty activists and even medical professionals have taken to the courts. The federal Environmental Protection Agency has threatened to cut off federal transportation funding for the region because the Valley air district has not made progress in cleaning up pollution. State lawmakers have introduced bills, and this year the Legislature passed half of a 10-bill air pollution package authored by Sen. Dean Florez (D-Shafter). The and have printed major series on air pollution during the last year. And the air is, indisputably, dirty (see , April 2002). Bakersfield, Tulare, Visalia and Fresno now rank with Riverside, San Bernardino and Houston at the top of the national list for ozone pollution. The snow-capped high Sierra is rarely visible from the Valley floor these days because of airborne dust and soot — a visible change from only 20 years ago. Fresno County has the highest childhood asthma rate in the state, according to the American Lung Association. Throughout it all, the Valley air district — governed by county supervisors and city councilmembers from eight Central Valley counties — has received increasingly harsh criticism for failing to act. The debate in the district, which stretches from San Joaquin County in the north to Kern County in the south, has frequently been cast as environment versus economy. The politics of regulating Valley air polluters, however, appears to have turned during the last few years, as evidenced by developers’, farmers’ and other members of the business community’s failure to defeat the aggressive legislation introduced by Florez (see , October 2003). One piece of Florez legislation, SB 709, which the district supported, requires the district to adopt a fee schedule on "area-wide or indirect sources of emissions." This provision, essentially, provides permission for the district to impose a fee on anything that generates automobile trips, such as housing developments, shopping centers, cinemas, arenas and office buildings. Only the South Coast Air Quality Management District, which regulates metropolitan Southern California, and the Sacramento Metropolitan Air Quality Management District have imposed indirect source fees on new development, and then only in select cases such as large employment sites, according to Jerry Martin, a spokesman for the California Air Resources Control Board. After lawmakers passed and then-Gov. Davis signed SB 709, the San Joaquin Valley air district conducted workshops with planners, builders, environmentalists, community groups and others. The district will use input from those meetings in drafting the fee policies, which are scheduled to be released this month, said district Planning Manager Dave Mitchell. District officials hope to adopt a fee schedule this summer and begin collecting money via the counties and cities in January 2005, he said. The fee schedule will take into account the size of the development, the types of land uses and the project’s design, Mitchell said. Regulators would prefer to see on-site mitigation. Thus, a relatively dense housing development on an infill site that is close to transit and is designed to encourage walking and bicycling might escape the fee altogether, he said. "It will be a sliding scale and we’ll calculate the emissions based on the circumstances," Mitchell said. Mitchell would not say how much the fees might be although he insisted the fees would not be onerous. During the mid-1990s, Valley air regulators proposed a fee of about $5,000 per new housing unit. That proposal hit widespread resistance and the agency dropped the idea. With authorizing legislation now in hand, the district plans to combine the fee revenue with other revenues "to fund the most cost-effective emission-reduction projects," Mitchell explained. Those projects include replacing old, diesel-powered agricultural water pumps with cleaner-burning diesel or electric models, subsidizing hybrid vehicle purchases and paying for truck engine swaps. Funding for public transit projects is also a possibility, Mitchell said. But the proposed spending plan is one area where the district hits friction. "If an ag pump needs to be replaced," asks Bakersfield’s Grady, "why does that fall on the subdivider and not on the guy with the ag pump?" Grady’s counterpart down the street, Kern County Planning Director Ted James, added, "I don’t have a sense that they can come up with an effective nexus." Steve Madison, executive vice president of the Building Industry Association of Central California, echoed those concerns. He contended SB 709 supporters and the Valley air district have chosen an "easy source to target because they can attach a fee to it at the time of building permits." Madison and others in the building industry contend that the air district must scientifically quantify the air quality impacts of new development and connect expenditure of any fees to those impacts. State law requires no less, they say. Fees on new development cannot be used to solve an existing problem, they say. Brian Todd, executive vice president of the Building Industry Association of Kern County, believes the entire approach is "way, way off base. Automobile trips are generated by population increases," he said. "People don’t buy a new house and then say, ‘Oh my gosh, I need a new Suburban.’" Less than 1% of valley residents buy a new home in a given year. That small group should not carry the financial burden of cleaning up the air, especially when there appears to be no guarantee that fees will be spent in the neighborhoods where they are collected, Todd said. Todd also insisted that housing builders are willing to take steps to mitigate air impacts. Builders can and have designed subdivision with short blocks to promote walking, planted additional trees, put charger stations for electric vehicles in garages, installed electric outlets outside to encourage use of electric yard equipment, and eliminated wood-burning fireplaces and stoves, Todd said. Air quality regulators and environmentalists endorse the mitigation measures Todd listed. But, they say, more needs to be done. The California Environmental Quality Act compels the use of the most up-to-date information and mitigation, which should include an indirect source fee, according to Kevin Hall, a representative of the Sierra Club’s Tehipite Chapter. Quantifying and understanding the air quality impacts of new development can be difficult, but they can be done, said Martin, of the Air Resources Board. Models for predicting the impacts of various types of development already exist. Mitchell, of the Valley air district, said industry experts are reviewing the agency’s emission models and proposed mitigation measures. And despite builders’ protests that their projects do not worsen air quality, Martin said, "All of those projects are sources of pollution that did not exist before that subdivision was built." The Valley air district plans to conduct workshops and public hearings on the fee proposal during coming months. Most people expect litigation to follow adoption of any fees. Contacts: Dave Mitchell, San Joaquin Valley Unified Air Pollution Control District, (559) 230-6000. Stanley Grady, City of Bakersfield planning division, (661) 326-3733. Brian Todd, Building Industry Association of Kern County, (661) 633-1316. Steve Madison, Building Industry Association of Central California, (209) 529-4531.

A proposed 5,800-unit housing development in the rugged hills between the San Fernando Valley and Santa Clarita is generating controversy, intergovernmental friction and litigation even before an environmental impact report has been produced. The Las Lomas project is proposed for a 555-acre wedge of land between Interstate 5 and Highway 14. Proponents are billing it as a dense, transit-oriented, mixed-use, environmentally friendly infill project in an area with a great housing demand. Opponents, including the City of Santa Clarita, say the project will overwhelm streets and highways, alter already unstable hillsides and cut off a wildlife corridor. In an interesting twist, developers Las Lomas Land Company LLC, led by Dan S. Palmer Jr. of Santa Monica, have filed an application with the City of Los Angeles. However, it is the City of Santa Clarita — and not Los Angeles — that has filed an application to annex the territory, according to Sandy Winger, deputy executive officer of the Los Angeles County Local Agency Formation Commission. Shortly after Santa Clarita filed an application with LAFCO about one year ago, the developers sued the city to block the action. Santa Clarita's application to annex 825 acres, including most of the Las Lomas site, is be held in abeyance until the litigation is resolved, Winger said. Nevertheless, the City of Los Angeles is processing an application for a specific plan, a general plan amendment, zoning changes, a vesting tentative tract map and a development agreement. The city and its consultant, ESA Associates, began work on the EIR in mid-2002. The document will probably be released in the first half of this year, said Maya Zaitzevsky, of the Los Angeles planning department's environmental review section. She called the EIR "an expensive document" that would address many issues, but she declined to discuss project specifics until the document is made public. "I'm sure there will be a lot of tweaking to the specific plan once the EIR process is complete," Zaitzevsky said. It does not appear, however, that tweaking will satisfy project opponents. Lynne Plambeck, president of Santa Clarita Organization for Planning and the Environment called the project "terrible" and said the site should remain in its largely undeveloped state. She listed traffic, the potential loss of a wildlife corridor between the Santa Susanna Mountains and the San Gabriel Mountains, and air pollution as major concerns. "I think the thing that's most frightening about it is that the area is so unstable," Plambeck said. "What happens when the houses fall down in 20 years? The whole reason for planning is to make sure you don't do something like that and you protect future residents." An overpass at the junction of I-5 and Highway 14, which is less than one mile from the project site, has collapsed twice because of earthquakes, most recently during the 1994 Northridge earthquake. State Department of Conservation maps do not show a fault on the 555-acre Las Lomas property. However, territory that qualifies as "special study areas" under the Alquist-Priolo Act appears to surround the property. And Department of Conservation maps do indicate that landslides encumber the property. Indeed, landslides are easily visible from nearby roads. Development on the steeply sloping site is proposed to include 20 million cubic yards of grading, which would have a substantial visual impact, said Vince Bertoni, Santa Clarita's interim planning director. "It's a very challenging site to develop," said Bertoni, noting that the city's general plan designates the property for large-lot residential development. The site belongs in the City of Santa Clarita's boundaries because three-fourths of it is in Santa Clarita school districts, Bertoni said. The city boundaries lie just to the north and east of the site. Plus, the city's parks and streets would serve the new residents, Bertoni added. Moreover, the proposed project appears to conflict with the city's hillside and ridgeline development regulations, and with the city's oak preservation ordinance. Santa Clarita officials have insisted on creating a greenbelt around the city, and the Las Lomas site is about all the separates Santa Clarita from the north end of Los Angeles's San Fernando Valley. One complicating factor in the jurisdictional battle: Santa Clarita was created without a sphere of influence and LAFCO has been reluctant to provide the city of 160,000 people with a sphere of influence (see CP&DR Local Watch , January 2001 ). Developer Dan Palmer and Santa Clarita have a long and uneasy history, even though Palmer has developed hundreds of housing units within the city. Palmer campaigned against the city's 1987 incorporation — which city leaders have never forgotten — and Palmer has had conflicts with Santa Clarita schools over development impact fees. Palmer did not return CP&DR telephone calls. But Las Lomas architect Richardson Robertson III said project opponents are a minority that only wants to stop growth. Robertson said Las Lomas will feature multiple story buildings with a mix of uses, a street orientation, a town center overlooking I-5, distinctive architecture that compliments the natural setting, and several transit options. "It would not look like Santa Clarita at all. It would not look like suburbia," said Robertson, who compared his design to Santa Barbara's State Street. "When we get finished, it will look like Las Lomas has always been there." In addition to 5,800 dwelling units, the project is proposed to contain 2.3 million square feet of office and research and development space, 225,000 square feet of retail development, and a 300-room hotel and spa. The proposal further includes a variety of public facilities, including a K-8 school, a library, a museum and a wastewater treatment plant. About half of the land would remain undeveloped and, in fact, wildlife habitat and visual qualities would be improved, said Robertson, countering opponents' concerns. Very little of the project will be visible from the adjacent freeways, and most of what passersby see would look better than it does today, he contended. As for transportation, proponents hope to have a MetroLink commuter rail station because MetroLink already runs through the property. An internal trolley system is also proposed, as is a connection to Santa Clarita's bus system. In fact, proponents are pushing the project as a transit-oriented development that makes a great deal of automobile travel unnecessary, and they have approached the Los Angeles County Metropolitan Transportation Authority about transit plans. But detractors have their doubts about whether a large housing and office development lying between two Southern California freeways will do anything but generate more automobile trips. Although the City of Los Angeles could conduct public hearings as early as this spring, no one appears to believe that development will be clear to proceed anytime soon. Contacts: Richardson Robertson III, Robertson Partners, (310) 208-4200. Vince Bertoni, City of Santa Clarita, (661) 255-4365. Maya Zaitzevsky, City of Los Angeles, (213) 978-1355. Lynne Plambeck, Santa Clarita Organization for Planning and the Environment, (661) 255-6899.

The economy may be a little sluggish, but housing prices throughout California have not stopped going up. So it’s not surprising that cities and counties throughout California appear to have developed a new interest in "inclusionary zoning" programs, which require housing developers to set aside 10% to 20% of their units for low- and moderate-income residents. More than a dozen cities and counties – ranging from the City of Los Angeles to San Benito County – are currently considering adopting inclusionary programs. In some cases, these proposals are being considered because of the state Department of Housing and Community Development’s certification process for housing elements. The market is so hot – and advocates are so well-organized – that the number of inclusionary ordinances is strongly on the rise. A recent study from the Coalition for Rural Housing and the Non-Profit Housing Corporation of Northern California found that 95 cities and 12 counties (about 20% of the statewide total in each case) have inclusionary housing programs, a huge increase from 64 jurisdictions a decade ago. The only recent example of a locality that considered an inclusionary ordinance and then didn’t adopt it is Calaveras County, located in one of the most conservative areas of the state. The bigger question, however, is what happens when these policies are put into place. Inclusionary ordinances may look good when adopted, but the political reality of implementation can be different, as local jurisdictions are reluctant to require construction of the units onsite or to build housing with the "in-lieu fees" that are sometimes collected instead of requiring construction. The housing advocates’ study found that 34,000 units have been constructed in California since 1973 as a result of inclusionary ordinances. The study also found that the average "in-lieu fee" is about $107,000 – significantly less than the subsidy required to make a market-rate unit affordable in California. But two recent examples, one from Oceanside and one from Sacramento, show how difficult it is to convert inclusionary housing policy into reality. In mid-December, the City of Sacramento reached a compromise with JTS Homes, which had sought an exemption from the onsite inclusionary requirement. JTS is building a 450-home subdivision in Meadowview, a neighborhood in south Sacramento, and wanted to transfer its 58-unit affordable housing obligation to an apartment district in the North Laguna area. The city agreed to let JTS build 19 units onsite and 39 offsite. At almost the same time, an Oceanside task force deadlocked on the question of whether to extend a longstanding 10% requirement, partly because building industry officials claim the city has not spent the $15 million collected under the program since 1991. The building industry saw this as a reason to ditch the requirement, but the city’s consultant, David Rosen, asked why the task force was resistant to an onsite requirement if the in-lieu system is not working. The answer should be obvious. Many cities need to have a policy showing they are promoting affordable housing. At the same time, there is considerable political pressure not to actually build affordable housing – or to build it far away from other people. On top of everything else, builders dislike the requirement, claiming it increases the cost of market-rate units. Inclusionary requirements have long been a staple of the liberal affordable housing agenda. State housing officials began to look for and encourage them during Gov. Jerry Brown’s administration. During the last decade, the state has focused on increased densities and identification of sites for multifamily housing. Still, HCD has continued to encourage the use of inclusionary zoning as a strategy for meeting a city’s or a county’s fair share of regional affordable housing needs. Although inclusionary ordinances are all similar in concept, they can vary widely in the particulars. In most cases, the ordinances require that housing developers set aside from 10% to 20% of their units for specific income groups – usually using the federal guidelines of very low income (50% of median income), low income (50-80%), and moderate income (80-120%). In many parts of California today, a moderate-income household earns $70,000 to $90,000 per year – still not enough to purchase a median-priced house, which exceeds $400,000 in many coastal counties. The statewide survey found that only about one-quarter of the 107 programs in California require a setaside of 20% or more, while almost half required only 10%. Of all the current proposals, the Los Angeles effort is the most wide-ranging. Although no formal ordinance has yet been introduced, L.A. officials are looking at requiring all housing developers to provide from 10% to 20% affordable units, depending on the income range to which those units are targeted. Seeking to combat the builders’ argument that an inclusionary zoning ordinance would increase costs for builders, the city commissioned David Rosen – the same consultant who worked with Oceanside – to study the economic feasibility of the inclusionary option. Rosen’s 324-page report assessed the economics of several development prototypes – including both rental and ownership properties – and concluded that in all cases an inclusionary requirement does not sink the economic feasibility of most projects. High-rise rental projects do become infeasible because of the cost of construction. However, many of the prototypes included in the study assumed density bonuses of 25% to 50% in exchange for providing low- and moderate-income units. A number of jurisdictions outside of Los Angeles also appear to be moving forward with inclusionary requirements. To name just a few: • The San Benito County Board of Supervisors is considering a 30% inclusionary requirement as part of its housing element. The board is scheduled to vote on this proposal in January. • Mendocino County appears ready to adopt an inclusionary requirement as part of its housing element. The Board of Supervisors postponed a final vote from December 17 to a meeting in January. • In November, West Sacramento adopted an interim ordinance requiring a 5% setaside for low-income residents and a 10% setaside for moderate-income residents. • In Monterey County, county officials recently increased the inclusionary requirement from 15% to 20%. • Even conservative Placer County recently approved a 15% inclusionary requirement as part of its Housing Element – over the objections of a group called Residents Against Inconsistent Development (RAID), which claimed that the requirement could discriminate against the beneficiaries of the inclusionary requirement because affordable units might be built to lower quality. Still, the question remains: When a developer with tract map in hand is standing in front of them, will these city councils and boards of supervisors have the will to tell the developer that he must sell every fifth house for $150,000 less than the market will bear? The "right" answer could be difficult to muster.

Eliminating a quarter of the parking spaces for a retail and office development in a busy urban area might seem like a potential nightmare. But in Riverside, a 25% reduction of required parking spaces helped spell success for University Village, a 16-acre project near the University of California, Riverside, campus. University Village businesses thrive with what would appear to be a shortage of parking because a 910-space garage is used by office workers and students during the day, and then by moviegoers to the 10-screen theater and restaurant patrons at night. "We knew we would have shared parking," said Ken Gutierrez, Riverside’s planning director. "We knew we wanted that shared intensity." Another 500 spaces of nearby ground-level parking boosts accessibility for motorists – such as morning commuters craving a Starbucks fix – without gobbling up valuable retail space. University Village is evidence that when merchants, developers and a municipality are willing to flex, new retail development can thrive in existing urban areas. Nonetheless, urban retail development "is not for the faint of heart," said Matt Holmes, president of Retail West, a San Francisco-based leasing brokerage for 26 retailers including Peet’s Coffee, Kinko’s and Whole Foods. He estimates that a retailer’s interest in an urban location translates into a store opening no more than 60% of the time. The constraints can be overwhelming: Limited parking and retail space, lack of ground-level access, city bureaucracy and community groups’ opposition to big box stores or chains. Yet urban retail’s intoxicating blend of sophisticated shoppers and guaranteed foot traffic continues to lure developers and intrigue planners. Planning directors do not see the appeal decreasing any time soon as work-live-play centers continue to gather momentum in urban bellwethers like San Francisco, second-tier cities and even older suburbs. The customer base is there for retailers, but the space often is not. Many big retailers such as Home Depot and Target prefer to build based on a template for undeveloped suburban land. Their prototypes call for acres of surface parking adjacent to single-story stores. That prototype does not work in developed urban areas, where parking and ground-level retail space are at a premium. Rather than eschew promising sites with challenging configurations, however, big retailers are innovating. The first two-level Wal-Mart to be built from the ground up is scheduled to open this fall in San Diego. In another twist on its traditional format, the new Wal-Mart’s only entrance will be through a mall. Wal-Mart and Home Depot are also thinking outside the big box in order to penetrate desirable retail markets. "Their real estate directors have been very creative because land just isn’t available," said David Lukes, vice president of development and leasing for Kimco Realty Corporation. in Daly City. "They either be creative, or they don’t get into the market." That creativity comes at a cost. Developing a two-story retail store can cost about 40% more than the a single-story site, said Lukes, who’s involved in the refurbishing of the 50-year-old Westlake Shopping Center in Daly City, just south of San Francisco. Second-story construction costs about $90 per square foot, versus $50 per square foot for the ground floor, according to Lukes. The extra costs cover steel construction instead of wood, long, easily accessible escalators to woo shoppers upstairs, elevators for freight delivery and handicapped access, and conveyor belts for shopping carts. Zoning issues come into play as well. Developers often need approval to exceed zoning regulations on building height and density. City officials are far more likely to approve variances when residents support them, according to Retail West’s Holmes and other retail brokers, who also warned that united residents may also kill a project. In San Francisco, which has discrete neighborhoods of organized, vocal residents, chain stores have often suffered the wrath of community organizers, who feared anything but mom-and-pop businesses would erode their neighborhood’s charm. Borders Books’ effort to open on Union Street in San Francisco four years ago was ultimately doomed because of staunch neighborhood objections, Holmes said. The store even conceded to limit delivery days, but to no avail. If even one resident demands it, a developer eyeing a San Francisco site must complete a discretionary review detailing the impact the proposed business will have on the community. "You need to prove you’re needed in the neighborhood," he said. Developers who wanted community support used to "pawn it off on expediters and big-shot attorneys. That’s not the way to go," Holmes said, because it’s expensive and it alienates residents. Increasingly, retail brokers and developers are approaching the community first. Some like to survey residents about the businesses they’d like to see, what type of architecture they find appealing – or at least unobjectionable – and what concerns they have about potential development. Some developers find that surveying community members about their preferences before filing an application at city hall is an effective way to ensure buy-in, but the process is time-consuming. "It makes the development process so long in the greater Bay Area," Holmes said with a sigh. "It makes developers say, ‘Forget San Francisco. I’m going to participate in suburban sprawl. I can get a permit in a week in Antioch.’" Securing the requisite approval for a Pottery Barn store in San Francisco’s Castro neighborhood took two years. Retail West thought a two-story stucco building that had housed a bank would be ideal for the house wares chain. But residents feared a Pottery Barn would drive out smaller stores. Holmes finally got his project built in 1999 with a creative compromise: He agreed to build an off-site community room for neighborhood groups to use. Sometimes, however, cities and residents are hungry for retail but cannot persuade developers and merchants to commit. That is the case in downtown Oakland, which offers matching funds for retail façade and interior improvements to lure developers. "In general, people just feel starved for retail," said Keira Williams, an urban economic analyst for Oakland’s Economic Development Unit. Mayor Jerry Brown hopes that increasing downtown housing options will prime Oakland for retail development. Developers, however, remain aloof. They want ground-floor space with high ceilings and no interior columns, and they do not want to build it themselves. So with the exception of Bay Area-based chains Gap and Men’s Wearhouse, most downtown tenants are small, locally owned stores. Williams and her colleagues would love to attract a national clothing store to fill a void in Oakland’s retail market and, ideally, spark further infill. "Sometimes you need the pioneering retailers," Williams said, "and once they’re there, the other guys are more willing to come." Contacts: Ken Gutierrez, City of Riverside Planning Department, (909) 826-5658. Matt Holmes, Retail West, (415) 292-7200. David Lukes, Kimco Realty Company, (650) 991-1555. Keira Williams, City of Oakland Economic Development Unit, (510) 637-0260.

Cities and counties of all sizes are adopting regulations to limit development of big box stores. Jurisdictions as different as the City of Los Angeles and sparsely populated Tuolumne County are considering or have adopted new regulations. Wal-Mart’s widespread expansion of its "supercenters" — which are at least 50% larger than the typical Wal-Mart and carry groceries — appears to be driving much of the regulatory activity. Recently adopted or proposed ordinances in Los Angeles, Oakland, Alameda County, Contra Costa County, Turlock and elsewhere specifically limit stores of a certain size, usually about 100,000 square-feet, to no more than 5% to 10% of floor area devoted to non-taxable goods. A Wal-Mart supercenter is usually 180,000 to 230,000 square feet, and groceries fill more than one-third of the stores. The restrictions could also hit some Costco and Target stores. Other jurisdictions are placing caps on the size of all big boxes, whether or not they sell groceries. The giant retailers, however, are fighting back. On the ballot in March will be two Wal-Mart sponsored measures — a referendum of a big-box ordinance approved last June by Contra Costa County supervisors, and an initiative in Inglewood that commands the city to approve a proposed Wal-Mart supercenter. Meanwhile, Wal-Mart opponents in San Marcos have forced a referendum on a Wal-Mart that the City Council approved. Wal-Mart has about 1,300 supercenters in 43 states, but none in California. The company plans to open 40 supercenters in California in four years. Wherever ordinances appear to specifically target Wal-Mart, labor unions often have been involved because none of Wal-Mart’s 1.2 million workers in the U.S. is a union member. In California, Wal-Mart’s $8- and $9-an-hour jobs pay about half of what many unionized grocery store clerks make. And Wal-Mart’s health benefits reportedly do not compare to health insurance received by unionized workers — a central point in the Southern California supermarket clerk strike that began last fall. Despite the social issues, Wal-Mart and other big box retailers are being regulated as land uses. And the biggest land use concern is that a Wal-Mart supercenter will force other grocery stores in town to close, leading to the downfall of entire shopping centers. In some places, traffic generated by the huge stores is a concern. The Los Angeles City Council is expected to vote this month on an ordinance that would prevent any store of at least 100,000 square feet from devoting more than 10% of its floor space to nontaxable items. The ordinance would apply inside and near any of the city’s economic assistance zones, including redevelopment project areas and enterprise zones. Most of the city would be affected. "The intent is to protect the areas of Los Angeles where we need to revitalize the economy," said Josh Kamensky, spokesman for Councilman Eric Garcetti, who is pushing the regulation. Studies of Wal-Mart supercenters show that they cause other stores in the vicinity to empty out, creating blight, Kamensky said. In Los Angeles, which is still something of a union stronghold, the labor issues are in the open, too. Kamensky conceded poor neighborhoods might benefit from Wal-Mart’s discount prices. But he contended those prices do not mitigate Wal-Mart’s low wages and part-time jobs. "There’s always a short-term burst of activity They exert a downward pressure on prices. But they don’t exert downward pressure on rents or on healthcare costs," Kamensky said. But during a hearing in December, Councilman Bernard Parks, who represents the poor South Central and Crenshaw districts, told Garcetti, "It’s 30 years too late. They already left." A Wal-Mart supercenter is preferable to empty stores, argued Parks, the city’s former police chief. And he disputed the contention that a Wal-Mart would suppress local economic development, "because there’s nothing to suppress." The proposed regulation "looks like one more hindrance to depressed areas. It looks like one more reason for developers not to come," Parks said. Councilman Alex Padilla, who represents poor areas of eastern San Fernando Valley, countered that Wal-Mart’s low wages and poor benefits would only contribute to a downward economic spiral in some neighborhoods. Padilla said the ordinance would protect the city’s economic development investments. The arguments were similar in Oakland, which in October adopted an ordinance prohibiting big box grocery stores in most commercial zones and requiring a conditional use permit in a limited number of commercial and manufacturing zones. "Where a grocery store serves as an anchor to a local commercial district, the presence of a big box grocer in the city can threaten the viability of the entire commercial district," states a staff report by Oakland Community and Economic Development Agency Planner Heather Coleman. The new ordinance "can serve as a means for protecting Oakland’s local shopping districts." But Wal-Mart representatives say the stated land use concerns are disingenuous. "So-called land use arguments are nothing more than a way to try to divert the real issues, which is that this is being driven by unions," Wal-Mart’s Amy Hill told the . "Unions are very frustrated by their inability to unionize Wal-Mart associates, so they’re trying to stop Wal-Mart stores." When it considered a big box regulation in December, the Turlock City Council heard testimony from union members. But, said Turlock Planning Manager Michael Cooke, it was the potential loss of existing grocery stores that drove the regulation. "We’re very much a blue-collar town, so cheap prices and cheap groceries do resonate with a lot of people," said Cooke, who noted that the city already has a 130,000-square-foot Wal-Mart without groceries and similar sized Home Depot and Target stores. Additionally, unions have little presence in Turlock. But councilmembers have seen the impact of supercenters that opened elsewhere in the country and feared that at least two or three existing grocery stores — plus the shopping centers they anchor — would go under if a supercenter came to town, Cooke said. Turlock’s new law bans stores of more than 100,000 square feet that devote more than 5% of floor area to retail sales. Turlock officials basically copied the thresholds used by other cities. However, those common thresholds actually derive from noncompetition clauses contained in some development agreements, Cooke noted. The issues are different in Tuolumne County, where supervisors are scheduled to vote on a big-box ordinance this month. The law would prohibit any retail store larger than 60,000 square feet and would require a conditional use permit for any store larger than 25,000 square feet — the sort of restrictions that slow-growth cities such as Davis have had for years. In Tuolumne County, a 120,000-square foot Home Depot proposed for a prominent hillside outside Sonora drove the debate, explained Tuolumne County Community Development Director Bev Shane. Essentially, the store would have been an unwanted entrance feature for the community. "Visual quality is the primary issue," said Shane. Gold Country visitors do not want to be confronted with the same type of development they see at home. "Tourism is a lot bigger business than our retail sales are. We have a $230 million tourism industry," Shane said. Of course, big boxes and even Wal-Mart supercenters are not meeting resistance everywhere in the state. Wal-Mart’s first California supercenters are scheduled to open this spring in LaQuinta and Palm Springs. During the last six months, supercenters won fairly easy City Council approval in the far northern cities of Redding, Anderson and Red Bluff. Labor union-backed groups have since filed CEQA lawsuits over the Redding and Anderson projects. Wal-Mart is not shy about presenting its case directly to voters. Wal-Mart backed organizers have forced the March 2 referendum on a Contra Costa County ordinance that prohibits stores larger than 90,000 square feet from devoting more than 5% of space to nontaxable items. Wal-Mart has already said it is willing to spend $1 million on the campaign. In Inglewood, voters this March will face conflicting ballot measures — one that would bar supercenters and one that directs city officials to approve a proposed supercenter without environmental review.

Calveras County supervisors approved a 3,250-acre residential and golf course resort project near the lower foothills community of Copperopolis in mid-December. The following day, the Tuolumne County Board of Supervisors voted to sue its northern neighbor because of traffic concerns about the project. Oak Canyon Ranch is the largest project approved by Calaveras County is many years, said Interim Planning Director Robert Sellman. The specific plan calls for 2,275 single-family houses, and another 1,200 housing units, up to 400 of which may be for permanent residents. The other 800-plus units are designated for visitor housing, such as hotel rooms or time-share condominiums. The project also calls for 300,000 square feet of resort and commercial development, and a golf course. The primary access to the development would be on Calaveras County roads off of Highway 4. However, the Oak Canyon Ranch EIR found that the project would nearly triple traffic to more than 13,000 trips per day on O'Byrnes Ferry Road, which crosses the Tuolumne County line before intersecting Highways 108 and 120. That intersection, which features only a stop sign on O'Byrnes Ferry Road and a short left-hand turn lane on the highway, is the most dangerous in the county, said Tuolumne County Community Development Director Bev Shane. Tuolumne County's lawsuit will seek a mutually acceptable plan for improving the roads, she said. Calaveras County approved Oak Canyon Ranch without requiring improvements to O'Byrnes Ferry Road or the intersection. In fact, supervisors adopted a finding of overriding considerations. Caltrans officials also raised concerns about the project. Sellman said his county is willing to work with Caltrans but he contended that the county could not require developers to improve roads in another jurisdiction. On the day after approving the Oak Canyon Ranch project, Calaveras County supervisors voted 3-2 against implementing the county's first road mitigation fee program. The proposed fees were $3,347 per single-family house and $2,418 per multi-family unit. Two supervisors opposed the fees outright because of fears that the fees would slow development, and one supervisor voted no because commercial projects would have been exempt.

The Sixth District Court of Appeal has allowed a Santa Clara County landowner to exclude his property from a subdivision approved in 1970. The exclusion was permitted by a rarely used provision of the Subdivision Map Act (Government Code §§ 66499.21-66499.29), the court held. The ruling came in a "fact intensive" case that involved multiple landowners, the validity of a 33-year-old parcel map, the passage of three decades, and revisions to state and local land use regulations during that time. In 1970, John Weis sought permission to divide his 10-acre parcel in San Martin, a rural community between Gilroy and Morgan Hill. He intended to keep one parcel of 3.5 acres for himself. He planned to sell a newly created 3.9-acre parcel to neighboring dairymen John Pereira and Edwin Vargas, and sell a newly created 2.8-acre parcel to Frank Pacheco, another neighboring dairy owner. In April 1970, the county conditionally approved Weis’s parcel map application. Upon approving the map, however, the county also combined the holdings of Pereira and Vargas, who already owned two parcels totaling 12 acres, with their new parcel into one large parcel. The county did the same for Pacheco, who already owned 10.75 acres on two parcels. The dairy owners were apparently unaware that they then owned one parcel apiece instead of three lots apiece. Time passed, Weis and Pacheco died, the county changed the zoning from 1-acre minimums to 20-acre minimum lot sizes and later to 5-acre minimums. In 1999, Richard van’t Rood purchased the Pacheco property. While buying the property, van’t Rood received a title report indicating the existence of three legal lots. Van’t Rood filed an application for a lot-line adjustment, but the county concluded only one lot existed and rejected the application. Van’t Rood then applied for certificates of compliance to prove the validity of the lots, but he withdrew the application. Van’t Rood and Pereira filed a lawsuit instead. The county presented a wide variety of defenses: The landowners had not exhausted their administrative remedies; the lawsuit was filed too late; the 1970 parcel map was valid; the landowners consented to the 1970 map; the landowners’ consent was not required by statute in 1970; issuance of title insurance on separately described property and separate property tax assessments were irrelevant. Santa Clara County Superior Court Judge Jack Komar ruled for the county. He ruled that Weis was the authorized agent of the other landowners and merged their parcels as a result of the 1970 parcel map. Judge Komar also ruled that there was no necessity to exclude the pre-existing parcels from the 1970 map and the county’s objections were reasonable. Only van’t Rood appealed, and a unanimous three-judge panel of the Sixth District overturned the lower court. The appellate court ruled that the dairymen had not authorized Weis to act on their behalf. Because the dairymen had not consented, the merger was not a voluntary one. And because the county had not provided notice to the dairymen, the merger was not a legal involuntary merger either, the court held. The court dealt at length with the question of whether or not Weis was the agent for his neighbors. The trial court ruled that Weis was the property owners’ agent because they had authorized Weis to do whatever was "reasonably necessary" to obtain the county’s approval of the land division so they could purchase the land. But the appellate court ruled otherwise. "In our view, nothing in the 1970 contract provision directing Weis to complete the ‘lot split procedure’ can be construed as a grant of authority to effect a merger of Pacheco’s pre-existing parcels or to deal with those properties in any other fashion," Justice William Wunderlich wrote for the court. "Moreover, we find nothing in that provision that would warrant Weis in believing he had such authority." Weis’s sales contract with Pereira and Vargas was even less specific, the court determined. The lack of an agency relationship between Weis and the other property owners meant that the 1970 parcel map was not valid as a voluntary merger. At the time, the county did not provide notice to any landowner other than Weis, so the map "is not valid as an involuntary merger because Pereira/Vargas and Pacheco were not afforded constitutionally required procedural safeguards," the court concluded. The court then considered the statutory requirements for excluding land from a subdivision, namely the existence of evidence proving the necessity of exclusion and the lack of reasonable objection. The necessity, the court ruled, was twofold: The 1970 parcel map stripped the property owners of the benefits of owning separate parcels. Second, the 1970 map was not valid. Exercising the exclusion provision appeared to be the only remedy, the court ruled. As for objection, the court rejected the county’s arguments, which were based largely on revised zoning and subdivision regulations. "The zoning at the time of the 1970 land division was 1-acre minimum. Changes in zoning since that time do not constitute a reasonable basis for objection to exclusion," Wunderlich wrote. The court ruled not only for van’t Rood, but also extended its ruling to the property of Pereira and Vargas even though they were not part of the appeal. The Case: , No. H023716, 03 C.D.O.S. 10052, 2003 DJDAR 12603. Filed November 20, 2003. The Lawyers: For van’t Rood: Craig Bassett, (408) 779-0007. For the county: David E. Kahn, county counsel’s office, (408) 299-5900.

The Davis administration has come and gone with little to show in the way of changes to the California Environmental Quality Act (CEQA) Guidelines, a document that carries the force of law and dictates how public agencies are supposed to implement CEQA. About 30 minor guideline changes were issued in September, but those changes could be put on hold or cancelled by the new Schwarzenegger administration. The revisions included about 30 minor changes that outgoing Resources Agency General Counsel Margret Kim described as "very neutral," favoring neither developers nor environmentalists. Maureen Gorsen, the incoming deputy secretary of the California Environmental Protection Agency who oversaw the last major revision of the CEQA Guidelines as Resources Agency general counsel under Governor Pete Wilson, offered an explanation for the Davis administration’s slow pace on the guidelines. "It’s not very rewarding work," she said. "You just don’t win friends and influence people by doing this kind of work." Gorsen said her predecessors from earlier administrations had warned her not to focus on CEQA Guidelines, telling her, "It’s not worth your time. You’ll only get headaches." Davis was known for his centrist, non-controversial approach to governing. Making decisions on CEQA Guidelines usually upsets someone, either environmentalists or developers. Gorsen also noted that the general counsel’s position in the Resources Agency was empty for two years after she left the post in 1999. Davis administration officials conducted at least two brainstorming sessions on the guidelines with such groups as the American Planning Association, the Sierra Club, and business groups, according to Terry Rivasplata, a senior environmental planner at Jones & Stokes in Sacramento. A number of potential guideline amendments were discussed at those meetings, but none of those proposals turned up in the new guidelines, said Rivasplata, who headed the Office of Planning and Research’s State Clearinghouse under Wilson. But at least two revisions proposed by Davis — to §§ 15065 and 15152 — are expected to streamline the CEQA process for builders and developers. "Governor Schwarzenegger may see it as something important for business purposes," Rivasplata said. That view was shared by Sacramento Attorney Jim Moose, who often represents agencies and developers. He called the Davis revisions "modest and moderate changes." Section 15065, which deals with mandatory findings of significance, has only a few wording changes. But those changes allow preparation of mitigated negative declarations rather than EIRs — a result could save development interests time and money. Under the proposed changes, an EIR would be required when "there is substantial evidence, in light of the whole record," that various events might occur. "The proposed changes are intended to clarify that when effective mitigation measures will be required as part of the project, Section 15065 will allow the adoption of a ," Rivasplata said. Added Gorsen: "You really have to be having an impact on a species or habitat" to be forced into preparing an EIR. The new guidelines also make changes to tiering, which is covered in § 15152. Tiering involves using the analysis of general matters in a broad, master EIR — such as an EIR prepared for a general plan — in EIRs for subsequent projects. Under the proposed revisions to § 15152, the lead agency will generally not need to examine environmental effects of a new project if the lead agency determines that the master EIR adequately analyzed those effects. Moose said this amendment provides a lead agency an incentive to adopt tight general plan standards as a way of avoiding expensive environmental reviews later. "The requirements … would give cities and counties an incentive to have stringent environmentally-protective general plan policies which would function as performance standards," he said. "Because if they had such performance standards under that language, they would then be able to say that by implementing those standards at the project level, they would have adequately addressed the impact and would not have to revisit that impact. That would make for a more streamlined project level analysis, and in some instances, might make the difference between an EIR and a negative declaration." Other changes to the guidelines include § 15088, which would require a lead agency to respond 10 days before certifying an EIR with written response to a public agency’s comments on a draft EIR. Environmental attorney Susan Brandt-Hawley suggested that this section be amended to give 10 days notice of all other responses to all other commenters. "Sometimes the Final EIR is available only hours before its certification, which defeats the whole point of the written comment responses and prejudices not only the interested public but also the lead agency decisionmakers that have inadequate time for review," Brandt-Hawley wrote in comments to the Resources Agency. Gorsen said she does not expect that the Schwarzenegger administration to tackle CEQA Guidelines. "There’s so many more sexy, glamorous things to do," Gorsen said. Rivasplata said the state’s lack of money and perpetual short staffing of Resources Agency attorneys could influence the new administration’s priorities. Under the law, the governor is supposed to issue new CEQA guideline changes every two years. The 30 guideline revisions issued by the Davis administration were open for public comment until late October. The Resources Agency has until mid- to late 2004 to complete its comments, make changes and then turn over the amendments to the Office of Administrative Law for final review. In August, the Davis administration did finalize changes to Wilson administration guidelines that had been the subject of a court challenge in , 103 Cal. App 4th 98 (2002). In that case, the court invalidated six substantial changes addressing cumulative impacts, thresholds of significance, tiering and probable future projects (see , January 2003). Those CEQA Guideline changes, which involved striking out portions to comply with the court ruling, were not subject to public comment and the usual adoption process. In the case, the court had upheld § 15332, which provides an exemption for infill projects of five acres or less if the project would not impact, traffic, noise, air or water quality. In the latest guideline revisions, § 15333 adds a 33rd categorical exemption for habitat restoration projects of five acres or less. Contacts: Jim Moose, Remy, Thomas & Moose, (916) 443-9017. Terry Rivasplata, Jones & Stokes, (916) 737-3000. Maureen Gorsen, Resources Agency, (916) 653-5656. Susan Brandt-Hawley, (707) 938-3908.

A federal appeals court has rejected two Sacramento-area cities’ challenge of Interior Department decisions that resulted in the development of an Indian casino. The U.S. Circuit Court of Appeal for the District of Columbia ruled that the Interior Department acted within the meaning of the Indian Gaming Regulatory Act (IGRA) and a statute that provided federal recognition to the United Auburn Indian Community. The cities of Roseville and Rocklin argued that the Interior Department could not provide land to the tribe for a casino unless the agency determined the casino would not be detrimental to surrounding communities and the agency received the consent of the governor. The Interior Department did not have to take those steps when it accepted into trust 49 acres along Highway 65 on the outskirts of Roseville and Rocklin. The tribe opened the Thunder Valley Casino — California’s largest — on the site earlier this year. In reaching its conclusion, the unanimous three-judge appellate panel read the federal legislation broadly. The court ruled that the IGRA and the law that established the United Auburn Indian Community encouraged economic development and tribal self-sufficiency, and that the cities’ narrow legal interpretation would thwart those goals. About 250 survivors of the Maidu and Meiwok Tribes comprise the Auburn Indian Band. Until 1967, the band, known as the Auburn Rancheria, had a 40-acre reservation in the Sierra Nevada foothills near Auburn. During the 1960s, as part of the then-federal policy of assimilating Indians, Congress withdrew recognition of the tribe and distributed the reservation lands to individuals. Congress restored the Auburn Band in 1994, when lawmakers passed the Auburn Indian Restoration Act. The law authorizes the secretary of the Interior to take into trust for the tribe the former reservation lands and other lands anywhere in Placer and neighboring counties. In 2000, the tribe asked the secretary to accept 49 acres of grasslands along Highway 65, several miles north of Interstate 80, so the tribe could build a casino. The cities of Roseville and Rocklin opposed the application, arguing that a casino would increase crime, interfere with planned residential development and harm the family-oriented nature of the area. The cities also argued that, under the IGRA, the secretary could not permit gambling on the site without determining there would be no negative impact on surrounding communities and getting the governor’s consent. Casinos proposed for lands acquired for Indians after the 1988 effective date of IGRA require those steps, the city contended. The Interior Department, however, ruled that the land was exempt from the IGRA’s conditions on sites acquired since 1988 because the site was "restoration lands." The cities sued but a federal district court agreed with the Interior Department’s application of the "restoration lands" exception. The cities appealed and the D.C. Circuit Court of Appeal upheld the lower court. The cities contended that restoration lands must be either territory in a former reservation or lands nearly identical to the former reservation. The cities said the casino site was 40 miles from the former rancheria site and that the valley site was unlike the wooded foothills where the rancheria had been located. The tribe and the federal government countered that "restoration" also encompassed "restitution," a notion accepted by the appellate court. "That a ‘restoration of lands’ could easily encompass new lands given to a restored tribe to re-establish its land base and compensate for historical wrongs is evident here, where much of the Auburn Tribe’s Rancheria is, as a practical matter, unavailable to it," Judge Judith Rogers wrote for the court. The IGRA "refers to the restoration of ‘lands,’ not to the restoration of a ‘reservation.’ The Maidu and Meiwok Tribes from which the Auburn Tribe descended once occupied much of central California. For the cities to now argue that the 49 acres are a windfall, as if the Tribe’s ancestors had never possessed any more, is ahistorical. Given the history of Indian tribes’ confinement to reservations, it is not reasonable to suppose that Congress intended ‘restoration’ to be strictly limited to land constituting a tribe’s reservation immediately before federal recognition was terminated." The cities argued that, had the tribe’s recognition not ended during the 1960s, the tribe, under the IGRA, would not now be allowed to gain access to the 49 acres for development of a casino. But the court ruled that what the cities considered an unfair benefit for the tribe was entirely fair. "Had the Auburn Tribe never been terminated, it would have had opportunities for development in the intervening years," the court ruled. "A ‘restoration of lands’ compensates the Tribe not only for what it lost by the act of termination, but also for opportunities lost in the interim." The IGRA and the 1994 law that restored federal recognition both promote tribal economic development and self-sufficiency, the court continued. "A reading allowing the Auburn Tribe to participate in that economic base furthers this purpose of IGRA while a reading that confines ‘restoration lands’ to the old reservation, the Rancheria, (most of which is now in the hands of homeowners, many non-Indian, and hence unavailable for development) would likely deny the Tribe this opportunity," Rogers wrote. The Case: , U.S. District of Columbia Circuit Court of Appeals No. 02-5277. Filed November 14, 2003 The Lawyers: For Roseville: William P. Horn, Birch, Horton, Bittner & Cherot, (202) 659-5800. For the United Auburn Indian Community: Seth P. Waxman, Wilmer, Cutler & Pickering, (202) 663-6800. For Norton: Elizabeth Ann Peterson, Department of Justice, (202) 514-2000.

An appellate court has decided to allow Caltrans to transfer 130 acres near Carmel for use as a state park despite a constitutional provision prohibiting the sale of Caltrans property for less than market value. The court ruled that a constitutional exception for property in the coastal zone applied because about 20% of the property lies within the zone. The land in question is in Hatton Canyon, a Monterey Pine forest supporting coastal habitat, diverse wildlife and public recreation. In 1956, Caltrans purchased 130 acres through Hatton Canyon for a potential realignment of Highway 1 east of Carmel. Forty-five years later, the Legislature passed AB 434. The law declared the 130 acres to be surplus property in the coastal zone and transferred the land to the Department of Parks and Recreation. A taxpayers group called Citizens for Hatton Canyon filed a lawsuit challenging the constitutionality of AB 434. The group contended the transfer violated the state constitution’s ban on disposing of Caltrans property for less than market value. Monterey County Superior Court Judge Michael Fields upheld the law. On appeal, so did a unanimous three-judge panel of the Sixth District Court of Appeal. Article XXVI of the state constitution bars the sale for less than market value of Caltrans property acquired with tax revenues. An exception, however, is found in article XIX, § 9, which allows below-market sales when the property is in the coastal zone and is sold for a park. In the Hatton Canyon case, only 24 acres of the 130 acres lie within the coastal zone. Citizens for Hatton Canyon argued that because only a portion of the property was within the coastal zone, the exception in article XIX, § 9, did not apply. In ruling against the taxpayers’ group, the appellate court first pointed to the Coastal Act and to the Park and Recreational Facilities Act of 1984. The Coastal Act — which seeks to enhance the coastal zone environment and maximize public access to the coast — underlies the article XIX, § 9, exception, Presiding Justice Conrad Rushing wrote for the court. The 1984 park law re-emphasizes this commitment to the coast and declares an intent to acquire, develop and restore areas for recreation and conservation. Assembly Bill 434 furthered these policies, the court held. "The Legislature’s objective, to promote the coastal habitat of Hatton Canyon by transferring the land to Parks, was entirely consistent with the strong public policy protected by article XIX, § 9, of the constitution," Rushing wrote. Furthermore, the court was bound to accept the Legislature’s legal interpretation that the phrase "in the coastal zone" applied to properties that are only partially in the coastal zone, the court held. " he legislative intent of protecting coastal properties for the public good is actually better served by this more expansive interpretation of the term ‘in the coastal zone,’" Rushing wrote. "Such an interpretation is also entirely consistent with the constitutional objective of elevating the protection of the coastal zone above the protection of the state’s highway trust fund." The Case: , No. H024449, 03 C.D.O.S. 9180, 2003 DJDAR 11520. Filed October 17, 2003. The Lawyers: For Citizens: Michael Masuda, Noland, Hamerly, Etienne & Hoss, (831) 424-1414. For Caltrans: Antonio Anziano, Caltrans, (415) 904-5700. For Department of Parks and Recreation: John Davidson, attorney general’s office, (415) 356-6365.