An appellate court has declined to allow additional compensation in an eminent domain case to San Francisco landowners who argued that they should be made whole for the expected revenue on an approved but unbuilt mixed-use project on their land. The developers argued the state law mandating compensation for loss of business goodwill in eminent domain cases required San Francisco to pay for the developers' projected gains, because the developers would be unable to pursue their project. But the First District Court of Appeal ruled that the law did not apply because the developers "had no ongoing business located on the undeveloped parcel taken, a necessary predicate for recovery of lost goodwill." Martin Coyne and Brian Murphy O'Flynn owned a triangular parcel on Lombard Street in San Francisco's North Beach district that they leased for surface parking. In June 2003, they received Planning Commission approval for a nine-unit residential condominium development with retail space on the ground floor. In early 2004, however, the San Francisco Board of Supervisors approved a "resolution of necessity," which commenced the eminent domain process. San Francisco sought the property for a park. At the time, Coyne and O'Flynn had commissioned architectural and engineering plans, but they had not yet obtained building permits or secured construction financing. They had invested about $150,000 in the project, not including property acquisition and holding costs, and the value of their own time. The developers responded by requesting compensation for loss of business goodwill under Code of Civil Procedure § 1263.510. A trial court judge rejected the request. On appeal, the First District ruled in an unpublished opinion that there was insufficient evidence for the judge to decide on the request. The matter returned to Superior Court for a bifurcated trial. The first phase involved whether San Francisco had the right to take the property, and whether the developers could claim entitlement to compensation for lost goodwill. The second phase involved a jury determination of value. In the first phase, Judge Diane Elan Wick ruled the city could take the property and the landowners had failed to establish a loss of business goodwill. In the second phase, a jury awarded Coyne and O'Flynn about $2.7 million. They then went back to the appellate court to challenge the ruling on business goodwill again. Coyne and O'Flynn argued that they were actively engaged in developing a residential and commercial complex on the property, and the city's condemnation eliminated their business. Based on the testimony of their expert, they argued they were entitled to an additional $2.1 million to $2.9 million – essentially, the amount they could make from the completed project. A unanimous three-judge panel of the First District noted the developers had not received a building permit, had not begun construction and had not pre-sold or pre-leased any units. "Section 1263.510 provides for compensation for losses resulting from the forced relocation of an ongoing business conducted on condemned land," Presiding Justice Mark Simons wrote for the court. "There is no evidence of an ongoing business located on the property, aside from the parking lot." Instead, the court said the developers were trying to find a way to base the fair market value on the "developers approach," also known as the economic analysis approach or residual land value approach. Courts have consistently rejected this approach, Simons noted. Coyne and O'Flynn argued that courts have rejected this approach only for setting the value of the undeveloped land – and not for calculating the value of goodwill. But Simons called this argument "illogical." "If we adopted the rule proposed by appellants, we would allow developers of raw land to achieve through the back door precisely what California case law has long denied them at the front, a recovery rooted in a specific development plan," Simons wrote. The goodwill statute only contemplates actual goodwill lost, not hypothetical or potential losses, Simons pointed out. The Case: City and County of San Francisco v. Coyne , No. A11822, 08 C.D.O.S. 14825, 2008 DJDAR 17947. Filed December 5, 2008. Modified December 29, 2008, at 2008 DJDAR 18864. The Lawyers: For San Francisco: Kristen A. Jensen, city attorney's office, (415) 554-4700. For Coyne: Jonathan R. Bass, Coblentz, Patch, Duffy & Bass, (415) 391-4800.

A couple weeks ago, one local government official said she was getting tired of hearing about SB 375. Couldn't you write about something else, she politely asked? Yes, we could and will write about other subjects. But love it or hate it, SB 375 shifted the ground underneath planners' feet, and the true slipping and sliding is only now beginning. We're going to be writing about it for a very long time. While many of us in California are immersed in the details of SB 375's regional mandates for reduced greenhouse gas emissions via more efficient land use patterns, planners elsewhere are only beginning to learn about the issues. In the February edition of Planning magazine, I present SB 375 to a national audience. As I prepared to write that story, the point was made repeatedly to me that California is well ahead of every other state in linking land use planning and climate change mitigation. It's quite a change from the past 25-plus years, when California fell behind Oregon, Washington, Florida, Maryland and other states in planning innovation. "The premise that California is actually ahead of the country on this is correct," Armando Carbonell, chairman of the Lincoln Institute's Department of Planning and Urban Form , told me. Other states and regions, as well as Canadian provinces, are starting to put together climate action plans, but they remain mostly at the conceptual level, according to Carbonell. Meanwhile, California's big three – AB 32, SB 97 and SB 375 – have created a system (or at least an outline of a system) for taking real action on greenhouse gas (GHG) emissions. My story for Planning is now available online . (Sorry, the story is available only to APA members.) Meanwhile, occasional CP&DR blogger Joel Ellinwood has posted on his website a lengthy piece he wrote for California Real Property Journal on SB 375. The piece is part legal backgrounder, part policy analysis and part implementation guide. Ellinwood observes, "State government will have great difficulty meeting AB 32 GHG reduction goals without finding ways to influence and enable local governments to exercise their land use powers so that more people drive less, and make both existing and newly developed buildings and neighborhoods more efficient. For reasons discussed below, this approach may not come easily to single-issue state regulatory agencies like CARB." Of course, CARB is the state Air Resources Board. If you'd like to read the "reasons discussed below," click on over to Joel's website . And don't forget our SB 375 page , which has links to numerous news stories, blog entries and analyses.  – Paul Shigley

Community Development DirectorCity of Mill Valley, California The City of Mill Valley (pop. 14,000) encompasses the hillsides and canyons of the southeast flank of Mount Tamalpais, 11 miles north of the Golden Gate Bridge and San Francisco in Marin County. Residents value the City's unique natural beauty and are committed to protecting natural resources, promoting quality of life including performing and visual arts and community enhancement through public service. Citizenry are both active and vocal in contributing on a variety of local community development issues including design review, building and code enforcement topics. This at-will position reports to the City Manager and provides day-to-day management of both planning (current and long-range) and building (plan check and building inspection). The ideal candidate will have strong technical planning skills complemented by outstanding communication and interpersonal skills. The Director will have experience serving communities of similar size and complexity. Experience dealing with environmental issues, including CEQA is considered a plus. The Community Development Director will also be customer centric and a strong promoter of improved user-friendly and enhanced customer service. Requires a Bachelors degree in land use planning, urban planning, landscape architecture or closely related field; Master's degree and AICP are desirable with six years of experience in municipal planning including at least three years in a management capacity. Annual maximum salary of $141,588 with fully paid PERS Retirement (2.5@55). Review of qualified candidates to begin at the end of February; candidates are encouraged to send resume and cover letter immediately to apply@ralphandersen.com . Full brochure available at www.ralphandersen.com . Confidential inquires to Heather Renschler (916) 630-4900.

A state appellate court has cleared the way for a property owner to challenge an extension of a Morgan Hill growth control ordinance. The court ruled that the 10-year extension of an ordinance that was scheduled to sunset in 2010 could be contested even if the ordinance was unchanged from the original. Importantly, the Sixth District Court of Appeal refused to apply the federal court precedent from De Anza Properties X, Ltd. v. County of Santa Cruz , 936 F. 2d 1084 (1991), in which the Ninth Circuit Court of Appeals ruled that a property owner could not challenge the county's decision to delete a sunset provision in a mobile home rent control ordinance. The Ninth Circuit said the property owner could contest the ordinance only when it was first passed. In the Morgan Hill case, the court said De Anza did not apply "because it arose in a different legal context." At the time, a rent control ordinance was considered a physical taking of property; the Morgan Hill ordinance is being challenged as a regulatory taking, the court noted. The court made no ruling on the merits of the lawsuit and returned it to Santa Clara County Superior Court for trial. Attorney Diana Hanna, who represents property owner Arcadia Development Company in the case, said the decision provides an important precedent. "It's the first published decision in California that specifically acknowledges that when a local agency extends a land use regulation, even if there was no change in the regulation, it creates a new cause of action, a new harm," Hanna said. "I think cities and counties have been using the De Anza decision as a shield to prevent review of an ordinance extension." But attorney Ellison Folk, Morgan Hill's legal counsel, insisted De Anza is directly on point and has been relied upon by federal courts for years. "The court had a hard time with the idea that the city could extend the term of an ordinance and a limitation on the development of property without an opportunity for challenge," Folk said. At issue is Morgan Hill's scheme for regulating housing development. In the late 1970s, city voters approved Measure E, which imposed a residential development control system (RDCS) that limited the number of housing allotments the city could grant in a year. In 1990, voters approved Measure P, which continued the RDCS and imposed new restrictions to prevent outward growth that would strain city services. Measure P prohibited the city from adding land to its urban service area except for "desirable infill," until a time when the city has less than five years of land inventory for residential growth. Several property owners – including Arcadia – beat Measure P by applying for annexation prior to the ballot measure's December 8, 1990, effective date. In 1991, the city awarded Arcadia an allotment for an 11-acre housing subdivision but the city said further subdivision of Arcadia's remaining 69 acres would have to comply with the city's growth regulations. Barring annexation, Arcadia would be limited to development based on county zoning regulations, which would permit four new houses. In 2002, city officials began considering amendments to Measure P. The city made a few refinements but the most important change was an extension of the sunset date from 2010 to 2020. Voters approved the restrictions in March 2004 as Measure C. Arcadia sued the city shortly after the election, arguing that the density restriction is arbitrary and unreasonable, amounts to inverse condemnation and violates the property owner's equal protection rights. Essentially, Arcadia argued the density restriction applied only to its property and no one else's property, which was unfair. Arcadia and the city commenced a trial nearly two years ago, but Superior Court Judge Marc Poché halted the proceedings after one day to consider the statute of limitations issue raised by the city. He then ruled that the 90-day statute of limitations for challenging a zoning ordinance began to run on December 8, 1990 – the day Measure P took effect. Arcadia appealed that ruling to the Sixth District. The city argued that because Measure C merely extended an existing ordinance, the time had long passed for Arcadia to sue. The city also contended that Arcadia's consent to the 1991 subdivision approval conditions – which specify that no further subdivision would be permitted except as allowed by the RDCS – barred the landowner's legal challenge. The appellate court focused on the first argument. In finding that Arcadia could sue over Measure C, the court cited Barratt American, Inc. v. City of Rancho Cucamong a, (2005) 37 Cal.4th 685 (see CP&DR Legal Digest , January 2006 ). In that case, the state Supreme Court ruled a homebuilder could sue over the city's reenactment of development and building fees, even though the fees were unchanged. Morgan Hill argued that the statutory requirements in Barratt were different than those at issue here, but the Sixth District found that Barratt 's "reasoning is applicable" in that reenactments should not escape judicial review. Morgan Hill "did not intend for the 1990 density restriction to be permanent," Justice Eugene Premo wrote for the court. "The temporary nature of the original restriction meant that any decision extending the density restriction would have to be based upon then-existing circumstances such as the amount and location of the intervening growth." "The temporary nature of the 1990 restriction also means that extending it for 10 additional years was a new burden upon the Arcadia property, triggering a new inverse condemnation claim," Premo wrote. Toward the end of the opinion, Premo attempted to clarify the court's decision: "Our decision should not be read as holding that any renewal of an existing ordinance gives rise to a new cause of action. Our decision is based upon the facts of this case, which show that City recognized that the density restriction, as originally enacted, was intended to be temporary and that it would be lifted when circumstances changed. City's 2004 decision changed the impact of the restriction upon Arcadia's property based upon circumstances that existed in 2004. That impact and the 2004 circumstances must be considered in assessing the validity of the density restriction under the equal protection and takings theories of this case. Measure C's 10-year extension of the density restriction was a substantive change, which City and its voters considered and decided anew when Measure C was approved in 2004. It follows that Arcadia may challenge the 10-year extension of the density restriction, even though Arcadia is barred from challenging the original 20-year restriction." The court further ruled that the development restriction that Arcadia accepted in 1991 had similarly changed because Measure C altered the sunset date. The lawyers differed on the meaning of the decision for the case once it returns to Superior Court for a trial on the merits. "I think the appellate court decision accepts the underlying premise of the city's decision," said Folk, the city's attorney. Namely, the court recognized that limiting outward growth and promoting infill are legitimate government interests, she said. Hanna said Arcadia's case is helped by the court's insistence that the date for analysis of impacts is 2004, and not 1990. Circumstances did change, and the renewed regulation prevents only one property owner – Arcadia – from participating in the city's housing allocation process, she said. There is no justification for that exclusion, she said. The litigation is likely to resume in Santa Clara County Superior Court this spring. The Case: Arcadia Development Company v. City of Morgan Hill , No. H032201, 08 C.D.O.S. 15174, 2008 DJDAR 18369. Filed December 16, 2008. The Lawyers: For Arcadia: Diane Hanna, Ellman, Burke, Hoffman & Johnson, (415) 777-2727. For the city: Ellison Folk, Shute, Mihaly & Weinberger, (415) 552-7272.

Pressure is rising to "solve" the problems plaguing the Sacramento-San Joaquin River Delta, and there are indications that state officials may start making difficult choices during 2009. The Governor's Delta Vision Committee issued a report in January that contains an ambitious schedule for setting policy and beginning on-the-ground improvements to the plumbing system and environment. Only a few days after the Delta Vision Committee report came out, The Nature Conservancy became the first large environmental organization to endorse a peripheral canal (or "isolated conveyance facility"), signaling a potential shift in Delta politics. State lawmakers have begun introducing bills that would implement the Delta Vision report, create a Delta Conservancy, and establish a new governance structure. One question is whether the ongoing state budget problem will prevent lawmakers and the Schwarzenegger administration from focusing on the Delta. "I don't know if there is going to be space and policy energy for anything else," Public Policy Institute of California (PPIC) Director of Research Ellen Hanak said of the state budget. "That would be a shame because you have a lot of people motivated right now. There's a real panic about the Delta. Sometimes those kinds of crises can motivate people to move more and be willing to look at options." The reasons for panic are plentiful: • In December, the U.S. Fish & Wildlife Service enacted new rules to protect the endangered Delta smelt. The complex web of rules would maintain the 25% to 30% reduction in water pumping from the Delta that was originally ordered in 2007 by federal District Court Oliver Wanger, who rejected the Service's 2005 biological opinion that State Water Project (SWP) and Central Valley Project (CVP) pumping from the Delta does not harm the endangered fish. The new rules could impose even greater cutbacks during drought years. • The chances of catastrophic and multiple levee failures caused by flooding, earthquake or rising sea level appear greater than estimated only a few years ago. According to the PPIC, an island in the heart of the Delta has a 99% chance of inundation by 2100. Catastrophic levee failures could halt pumping from the Delta for months or even years, jeopardizing the state's economy. • Every environmental warning light is blinking red. In January, the National Marine Fisheries Service unveiled a draft report that concludes salmon, steelhead and sturgeon cannot survive current water management conditions. When the report becomes final in March, it could force major changes in Delta water management based on Endangered Species Act mandates. • Although late season rain and snow could still fall, it appears California is in the midst of its third consecutive drought year. Reservoirs are only one-third full. The SWP and CVP may provide as little as 10% to 15% of allocations Such low deliveries could cost the Central Valley tens of thousands of jobs. The Metropolitan Water District of Southern California has announced there is a 50% chance it will ration water this year. "There is no time to waste," concluded the Delta Vision Committee, "and we must accelerate implementation of near-term fundamental actions. Additional delay will only compound the risk to the state and its citizens." Assemblyman Jared Huffman (D-San Rafael), chairman of the Assembly Water, Parks and Wildlife Committee, said the Delta Vision implementation report has teed up the issues that lawmakers must decide. "I don't know if it will happen this year, but this is the two-year-long session to get it done. This issue is here and now," said Huffman, whose AB 39 would implement the Delta Vision report. The Delta Vision report was prepared by five cabinet secretaries. It followed up on a governor's blue ribbon task force that examined the issues for two years and made a series of recommendations. Initially, Resources Agency Secretary Mike Chrisman said the administration could implement the report's recommendations – including construction of a peripheral canal – without the Legislature's consent. Chrisman appears to have since backed away from that position. "In the real world," responded Huffman, "all the things that are going to have to happen for a canal to work are going to require broad consensus." Reaching consensus on the peripheral canal has proven impossible. In 1982, 62.7% of voters rejected Proposition 9, which proposed construction of a canal from the Sacramento River to the California Aqueduct south of the Delta. Voters in Northern California saw the peripheral canal as an evil attempt to take "their" water and ruin the Delta, while Southern California voters saw a way to provide water reliability. About 60% of Southern California voters backed Proposition 9, which was not enough to offset the 90% to 95% of voters in most Northern California counties who said no, according to Wesley Hussey, assistant professor of government at California State University, Sacramento. "The politics need to remove the mostly north-versus-south connotations of the canal," Hussey said. "The whole state needs to have some change." The Nature Conservancy's endorsement of a peripheral canal could help turn the political tide. Anthony Saracino, California water program director for The Nature Conservancy, said nearly everyone's understanding of the Delta ecosystem has evolved since 1982. Saracino noted that his organization has not received substantial criticism since it issued a Delta conservation strategy endorsing a canal. "Moving water through the Delta for export is not only not a natural situation, it is one of the reasons the ecosystem is failing," Saracino said. "We need to do something to restore more natural flows." The peripheral canal "for 20 years was off the table," said PPIC's Hanak. "It stayed off the table until we started to talk about two years ago in our report." She agreed with Saracino that a canal could be beneficial to the Delta's troubled fish because no longer would giant pumps alter the Delta's natural flows. But even without considering the fish, the current system of unstable levees poses significant water supply reliability problems, she said. The Delta Vision Committee recommended a dual water conveyance system. One canal would bypass the Delta entirely, while the other would run through the Delta, providing water for environmental purposes at important times for wildlife and fish. Not everyone is on board. In a commentary for the Sacramento Bee , Pacific Institute President Peter Gleick, one of the state's leading water policy analysts, wrote: "Given the enormous unknowns about the actual costs, benefits, design, rules for operation and impacts, it is grossly premature to take a position either in favor of or in opposition to, the peripheral canal." Delta farmers oppose a peripheral canal because they fear it would doom their way of life. Others have criticized the Delta Vision Committee for backing a canal while delaying a recommendation on exactly who should operate the canal. Indeed, the governance question may be the stickiest of all. "Anytime you work on water issues, on any big issues, there has be some element of trust," said Rita Schmidt Sudman, who heads the Water Education Foundation. "If we did have some kind of conveyance facility, how would it be governed? Whose hand would be on the tiller?" Until those questions are answered, it may be difficult to get consensus for a peripheral canal, she observed. Hanak pointed to PPIC reports urging the state to first establish a governance and financing system, and then to begin making broad decisions. But one of those decisions, she said, should be to build a peripheral canal with flexible operating abilities. "You can't know everything before you make a strategic decision on this," Hanak said. "It's our feeling that we have enough information to make decisions about water policy." Contacts: Ellen Hanak, Public Policy Institute of California, (415) 291-4400. Rita Schmidt Sudman, Water Education Foundation, (916) 444-6240. Assemblyman Jared Huffman, (916) 319-2006. Wesley Hussey, California State University, Sacramento, Government Department, (916) 956-0646. Delta Vision: http://deltavision.ca.gov Public Policy Institute of California water reports: www.ppic.org/main/policyarea.asp?i=15

Should housing be exciting?� Before I answer, let me tell a little story�. ��� "I've heard that one before," interrupts my wife gently but firmly enough to imply, "Once was enough, dear." As my middle-aged ego shakes off this dousing in cold water, I wonder if, indeed, I have become a teensy bit, well, you know, dull. Despite all my good qualities � my avuncular personality, my eagerness to talk about the Golden Age of Television, my collection of old cardigans � I suspect people have begun to think me a trifle tedious. In contrast, there is nothing dull, at least to me, about Uptown Oakland, a 2,600-unit housing development filling 14 acres in the East Bay city. The rentals include lofts, student units and affordable apartments in mostly low-rise units. Market-rate condos, meanwhile, await construction in mid- to high-rise towers. The master plan, designed by MVE & Partners in association with Calthorpe Associates, is highly sensitive to the site. An under-used area of parking lots and light industrial buildings becomes a coherent and walkable residential district with this plan. The low-rise context of the apartment buildings makes the new neighborhood match the low-rise scale of surrounding buildings; the planners concentrated the high-rise part of the plan in the northeast corner, along Telegraph Avenue, where new tall buildings will harmonize with those of nearby high-rise office buildings. A $75 million subsidy from the City of Oakland helped make the project feasible for the developers, the California office of New York's Forest City Development and MacFarlane Partners of San Francisco.� (To date, three buildings, or less than half the full project, have reached completion.) Still, for a non-housing-enthusiast, this plan may not seem that exciting. It is not as exhilarating as something cooked up by architects like Zaha Hadid or (heaven forbid) Daniel Libeskind. Maybe housing is not supposed to be exciting in such an extroverted way. I mean, do you really want to come home after a long day of work in the federal center in Oakland to a giant piece of origami? � So what could be exciting here? For impatient readers, here's the big takeaway: Uptown Oakland is innovative, in large part, for using courtyard housing to fill most of an urban district. The use of courtyards has at least two big benefits. Although this type of unit is still rare in the multifamily industry, courtyard buildings provide arguably the most desirable form of rental housing. The individual units are essentially townhouses, each with its own front and back door. Those doors open the dwellings to far more natural light and breezes than are available in the dormitory-like slabs that we have come to accept as housing in our society. In those dreary units, natural light comes from a single wall, unless you are lucky enough to get a corner unit with two window walls. The units are hot, claustrophobia-inducing, poorly ventilated, dark and depressing. Architects call these kinds of units "stacked flats," a name that evokes the industrial soullessness of this manner of warehousing human beings. "Hey, this land is valuable! Stack up the folks like cordwood." (Indescribably boring.) Courtyards add a further advantage to townhouses, which is the garden-like area in the center, typically fitted with a fountain. It is a protective space that adds both to sociability and defensibility. The planned, landscaped courtyard is the opposite, philosophically and socially, of the dead, concrete center of the square housing doughnuts that some developers have the nerve to call courtyards. This is where swimming pools are located in many apartment complexes, unless the housing is affordable, in which case there is nothing but two or three dying trees in planters and some plastic furniture. (Not so exciting.) � Courtyards are also great tools in urban design, a topic that non-experts consider just slightly more interesting than cleaning fish. Stay with me on this one: In redeveloping a somewhat featureless section of downtown Oakland, courtyards organize and unify the site by creating coherent street fronts. When completed, courtyard buildings will help establish a coherent urban scene around the historic Fox Theater on Telegraph Avenue, which is finally slated for renovation. � I like courtyards so much, in fact, that I wish that some other fragmentary clumps of rentals units on the plan could be rearranged in doughnut form. At 18th and San Pablo Avenue, on the lower left-hand side of the plan, some units that stand on a triangular block would be vastly improved by becoming a courtyard in the shape of a wedge-like "flatiron" building. Beyond its dramatic shape, this building would mark the meeting of two different downtown grids. (Flatiron buildings: Definitely not boring.) The Oakland Uptown plan also rates high for integrating the streets into the pedestrian life of the city, while providing east-west connections between the two main corridors in the area: Telegraph and San Pablo avenues.� � One question mark, however, is the square public plaza, proposed in the upper center of the plan. While open space is clearly welcome amid the dense forest of housing (and required by the city, in this case), the plaza looks a little large for the site. Large, flat plazas are rarely attractive. Time will tell whether this mid-block location will attract the kind of foot traffic needed to fill up the plaza with enough people, the one indispensable type of park furniture, to make the open space seem safe and comfortable. So this park is neither boring nor exciting � yet.� With two BART stations nearby, Uptown Oakland looks like an attractive place to live and commute in the Bay Area. It may not have enough sizzle to make it into Wallpaper or Dwell or some other trend-mongering magazine. A lack of external excitement does not always mean that you are boring, however. As I was telling my wife the other day, when putting on my newest cardigan � the nice maroon one, you know, from Sweden �

The City of Bell's plan to purchase property from the federal government and lease it to a railroad for use as a truck yard has been stalled and possibly killed by an environmental justice organization's successful California Environmental Quality Act lawsuit. The litigation has also raised questions about $35 million in bonds that the city issued in 2007 to fund property acquisition and improvements. Last summer, a Los Angeles County Superior Court judge invalidated a 30-year option to lease between Bell and Burlington Northern Santa Fe (BNSF) Railway for a 15-acre site because the city had performed no environmental review prior to signing the agreement. Judge James Chalfant also blocked a 45-year extension of an existing lease that permitted BNSF to continue using 14 acres of city-owned property. The city did not appeal the ruling. Since then, BNSF appears to have backed away from the project. Railway spokeswoman Lena Kent said project managers "are still evaluating their options." She was unable to provide a timetable for a decision. Attorney Gideon Kracov, who represented East Yard Communities for Environmental Justice in the suit against Bell, said he was unaware of any activity regarding the project since Judge Chalfant's decision, which also forced a halt to the city's destruction of old buildings on the property. "My client would like the city to make productive use of the land," Kracov said. But, he added, "The expansion of the railroad facilities raises very important public health issues." "Study after study has demonstrated a clear connection between expansion of the rail yards and pollution. The typically low-income communities near the rail yards suffer the highest rate of air pollution in the state," Kracov said. Bell city officials did not respond to CP&DR inquiries. Bell City Attorney Ed Lee, of Best, Best & Krieger, told the Los Angeles Daily Journal in October that the city had made no decision on whether to conduct environmental review or drop the project. As of the end of January, Bell had filed no CEQA notices with the State Clearinghouse. Like many of the "Gateway Cities" in southern Los Angeles County, Bell is a center of the logistics industry that moves freight in and out of the ports of Los Angeles and Long Beach. For some time, BNSF has leased 14 acres of city-owned land in Bell on which the railroad stacks empty intermodal shipping containers. The Bell Yard site is within one mile of BNSF's giant Hobart rail yard, where freight is transferred between trucks and intercontinental trains. In November 2006, the Bell Public Financing Authority – a joint powers entity created by the City of Bell and the Bell Community Redevelopment Agency and all controlled by the City Council – issued $26.3 million in bonds to fund the purchase of the 25.3-acre Bell Federal Service Center, which once served as a military barracks. The property is located on Rickenbacker Road, adjacent to the land already leased by BNSF and just off the Long Beach Freeway. In October 2007, the Authority issued $35 million in lease revenue bonds to pay off the original debt and to reimburse the city $6.1 million for capital improvement and other costs related to the property. Those bonds come due November 1 of this year, although the city may extend the maturity date to November 1, 2010. The city's original plan was to retire the debt with BNSF lease payments of about $142,000 per month. The railroad intended to use the property for parking up to 700 trucks. BNSF executed an option to lease 15 acres from the city in September 2007. The city has apparently been using its own money to fund the debt payments. The official statement for the 2006 debt issuance said that the city "may elect to hold the property for redevelopment" if agreement with BNSF falls through. The property does lie within the city's redevelopment project area. According to the state controller's office report for 2006-07 (the most recent available), Bell's redevelopment agency had $51.5 million in debt and the 670-acre project area generated $4 million in tax increment, of which the agency retained $3.1 million. The East Yard environmental justice group filed its suit against the city on October 26, 2007, the same day the lease revenue bonds "financial facility agreement" was finalized. In that document, the city stated there was no litigation pending that could affect the validity of the agreement or the BNSF lease. Pointing to the potential for increased air pollution from trucks at the expanded BNSF site, East Yard said the city had to complete an environmental review of the project. The city and the railroad's primary argument in the litigation was that the Interstate Commerce Commission Termination Act exempted the railroad from CEQA because the state law could restrict the railroad's ability to operate. Judge Chalfant did not buy the argument. " his action concerns the city's decision to lease city-owned land, not BNSF's activities on its own land. Federal law does not preempt environmental review under CEQA of the city's lease of its own land," he ruled in East Yard Communities for Environmental Justice v. Bell Public Financing Authority , Los Angeles County Superior Court No. BS 111726.

The City of Concord has chosen a preferred alternative plan for reuse of the shuttered Concord Naval Weapon Station that emphasizes transit-oriented development and job growth while designating 65% of the 5,000-acre site for open space and parks. Base reuse planning still has a long way to go, but the City Council's selection of a preferred plan provides a milestone in a process that began in late 2006 (see CP&DR Local Watch , January 2007 ). The plan calls for approximately 12,300 dwelling units, 6.2 million square feet of commercial space, 710 acres of developed parks and a state university campus while leaving about half the site as open space that provides habitat and public recreation. The "clustered villages alternative" chosen by the City Council would center development around an existing BART station and four other nodes along a new transportation corridor. "It isn't every day that you have a real blank slate that has an underutilized rapid transit station right adjacent to the site," said Michael Wright, Concord's community reuse planning director. The plan tries to capitalize on that asset with dense, mixed-use development that would provide workplaces for more than 20,000 people, as well as homes for many of those employees. Although the preferred alternative has proponents inside and outside of City Hall – and the City Council voted 5-0 for the plan – there is opposition. Some environmental groups and the Concord Naval Weapons Station Citizen Alliance have advocated for designating 80% of the site as open space and decreasing the number of potential homes and office buildings. The City Council-appointed Citizens Advisory Committee supported the clustered villages plan with only a 10-7 vote, as the dissenters voiced concerns about traffic congestion. Meanwhile, Councilwoman Helen Allen has argued for less open space and a plan that reflects Concord's current land use pattern of single-family homes on large lots. Allen said she voted for the clustered villages plan simply to keep the process moving forward. She called the plan uncreative, too urban and unrealistic. "We are not truly urban, we are suburban . The rest of the city map that surrounds all of that is single-family residential, median- and low-density," Allen said. "They want to stuff all these people into these high rises and force them to use BART. This transit-oriented development is something that exists in New York and Chicago and all the big cities that people want to escape when they come to California." Beverly Lane, an East Bay Regional Park District director and member of the Citizens Advisory Committee, said she voted against the preferred alternative because it would permit too much development. Highway 4 and Ignacio Valley Road (a major thoroughfare from Walnut Creek to Pittsburg) are already jammed at peak hours, and the dense housing and office development would further clog roads, she said. "The major issue that is out there is the density. Having an approval for potentially 28,000 more people is huge," Lane said. "For some of us, that density is unrealistic." The Navy stopped using the inland 5,000 acres of the 12,600-acre weapons storage and maintenance facility in 1999. The Base Realignment and Closure Commission in 2005 recommended closing the inland portion of the base, and the Navy declared the property surplus in 2007. The Navy transferred a deep water port and the adjacent 7,600 acres to the Army. The surplus property lies within the Concord City limits, and the city three years ago proposed a general plan update that called for 13,000 housing and 15,000 jobs on half of the site, with the remainder used for parks and open space. When opposition arose, the city dropped the property from the general plan update and began a separate base reuse planning process in late 2006.   Environmentalists appear to be divided on the reuse plan. The group Save Mt. Diablo continues to press for designating 80% of the 5,028-acre site for open space and parks, and contends the proposed development "could create a traffic nightmare from East County to the Bay Bridge." However, Greenbelt Alliance Field Representative Christina Wong called the council's selection of the clustered villages plan "a good step forward." The plan, she said, "has the potential to be a model for smart growth development." The plan appears mostly to satisfy the park district, which would get about 2,400 acres for a regional park, and California State University, East Bay, which is in line for 150 acres for an educational complex. The plan also calls for assessing developers a total of $38 million to fund housing, transitional facilities and services for homeless people – an aspect of the plan that Allen voted against. The City Council chose the clustered villages approach over a "concentration and conservation alternative" that would have designated 64% of the site as open space and another 9% for parks and recreation. The rejected alternative would have permitted about 2,000 fewer housing units and 1.5 million fewer square feet of commercial development. The clustered villages plan's extensive developed parkland and potentially greater fiscal feasibility won favor with the council. City Manager Daniel Keen, who has been with Concord for less than a year, said he sees broad community support for the clustered villages alternative. "There were an awful lot of interests that got involved early on, and that influenced the preferred alternative," he said. Keen previously worked in Seaside, which is helping redevelop Fort Ord, and in Novato, where the former Hamilton Air Force Base is located. Both the Fort Ord and Hamilton reuse plans placed regional need ahead of local fiscal realities, he said. That is not the case with the Concord reuse, which the city is trying to make revenue-neutral, he said. The plan does depart from existing development patterns in the Contra Costa County city of 125,000 people. Wright said the departure is the result of wanting to capitalize on the BART station, a desire to limit the development's carbon footprint, and advocacy by the attorney general's office. Indeed, a detailed letter from Deputy Attorney General Sandra Goldberg urged the city "to create a model mixed-use, transit-oriented community that provides a substantial contribution to achieving the state's GHG reduction goals." "It is going to be something new, and it is going to be something different," Wright said of the proposed transit-oriented development and villages. "You want to do that or you are not going to be able to attract the kind of jobs that you want." Plus, he said, because part of the base will eventually lie in a redevelopment project area, the city could pool tax increment and use the funds to enhance older parts of town and to create good road and bus connections between the newly developed base property and adjacent neighborhoods.  The city's priority for the next several months will be completing a revised draft EIR that focuses on the preferred alternative, said Wright. The City Council will likely vote on a final reuse plan in June or July, he said. "We'll be preparing some more detailed planning studies that focus on the transit-related proposals on the site," Wright said. "We'll be putting together design principles that will help the council guide developers toward sustainable buildings, green buildings, a reduced carbon impact." The city will also draft a preferred disposition strategy for the Navy to review. Two years ago, the Navy strongly considered handing the Concord base property to Shaw Environmental & Infrastructure, Inc., a Virginia-based military contractor, in exchange for construction of military housing and infrastructure elsewhere. Under pressure from members of Congress, the Navy backed away from the Shaw offer but it has never announced exactly how it will dispose of the property. The city's plan assumes that the Navy will give 60% to 65% of the site to the city or other public agencies, primarily for parks and open space. The remaining acreage would be auctioned to developers in a process that could generate more than $1 billion for the Pentagon.  The Navy needs to adopt an environmental impact statement and complete endangered species act consultations with federal agencies before making any conveyance decisions – a process that could easily take more than a year. The Navy also needs to address the level of cleanup that will be necessary to convert the former weapons storage facility to civilian uses. Only then could auctions begin. At that point, having a good plan with strong community backing becomes even more important, said Keen. "When you get to the stage where you are ready to sell property to developers, that's when you really get pressure to change the plan," Keen said. Which is exactly what Allen, a plan opponent, is counting on. "The market is what really drives this," she said. "It's not going to end up like the plan shows now, so why fight it?" Contacts: Michael Wright, City of Concord, (925) 671-3019. Concord City Councilwoman Helen Allen, (925) 671-3158. Beverly Lane, East Bay Regional Park District, (510) 569-4319. Christina Wong, Greenbelt Alliance, (925) 932-7776. Community Reuse Project: www.concordreuseproject.org

Plans for a controversial liquid national gas (LNG) terminal off the coast of Long Beach have been scrapped by Woodside Petroleum of Australia, which announced that market conditions no longer support the project. In 2007, a different Australian company, BHB Billiton, announced it was canceling a proposed LNG terminal off the coast of Malibu. That announcement followed votes by the State Lands Commission and the Coastal Commission against the project. As recently as 2006, there were at least half a dozen LNG terminals – at a cost of roughly $1 billion apiece – proposed off the California coast to accommodate giant tankers hauling the super-refrigerated gas from Australia, Indonesia and the Middle East. Gov. Schwarzenegger endorsed LNG as a "bridge" to renewable energy, and both the Public Utilities Commission (PUC) and the California Energy Commission predicted the state would need the new source of energy. But the projects encountered major opposition from members of the public and government officials, who said the projects presented grave public safety and environmental concerns (see CP&DR Environment Watch , September 2005 ). The Woodside announcement reflects the natural gas market crash. The PUC and Energy Commission now predict that natural gas demand will remain flat in California for the next 20 years. Meanwhile, exploitation of this country's natural gas resources is expected to increase dramatically, thanks to Bush administration decisions to open up federal lands to drilling. It now appears unlikely any of the LNG terminal proposals off California's coast will advance. Voters in the City of Industry approved $500 million worth of bonds to fund infrastructure improvements, including at least $160 million worth of projects in the area where developer Ed Roski, Jr. has proposed a football stadium and retail center (see CP&DR Places , June 2008 ). Industry is mostly a collection of business parks and has only 82 registered voters. They approved the bonds on a vote of 60 to 1 during a special election in January. By similar margins, they also approved imposition of local taxes on entertainment tickets and parking, created an electric utility to serve part of the city, authorized the City Council to approve contracts without soliciting bids, and approved a measure excluding transients and people who live in hotels or commercial areas from voting in Industry. Meanwhile, the City Council in neighboring Walnut has voted to oppose the 560-acre stadium and commercial project because of concerns about traffic, crime and decreased property values. The City of Diamond Bar submitted 102 pages of comments on the project EIR, which the city argues is deficient in numerous areas. A proposed private university and housing development that won approval from Placer County supervisors in December is now the subject of two California Environmental Quality Act lawsuits. The Sierra Club and a group called Placer Citizens Against Gridlock filed separate suits in January over the project's environmental impact report. The project opponents say the analysis does not adequately address traffic congestion, greenhouse gas emissions and loss of farmland. The county approved the regional university specific plan, as well as a development agreement, a general plan amendment, rezoning and a public facilities financing plan, for 1,157 acres of farmland west of Roseville. The decision permits Drexel University of Philadelphia and local landowners to move forward with a deal in which the landowners would donate the acreage to Drexel, which would fund construction of a 600-acre campus for 6,000-students by selling the remaining 557 acres for development of 3,200 housing units and commercial uses. Among the land donors is developer Angelo Tsakopolous. The county's specific plan website is here. The lead developer of a controversial proposed housing development in San Pedro has been replaced and the project is getting reworked in advance of a public hearing scheduled for April. Investors in the Ponte Vista project replaced Bob Bisno, a longtime Southern California developer, with Ted Fentin of Credit Suisse, who has indicated he is willing to scale back the project. Ponte Vista demonstrates the tension between regional needs and local desires. The site is 61.5 acres formerly owned by the Navy and currently zoned by the City of Los Angeles for single-family houses. But the Southern California Association of Governments, the local Chamber of Commerce and other groups have backed the much more intensive development sought by Bisno, who proposed 1,950 condominiums and townhouses and a smattering of retail uses (see CP&DR Local Watch , October 2007 ). Backers say building single-family homes would waste an infill development opportunity within two miles of the Port of Los Angeles, the region's largest job center. Still, the project hit a buzz-saw of opposition from local residents complaining about the already congested conditions along the adjacent South Western Avenue and from Councilwoman Janice Hahn. The new development team intends to conduct focus groups to determine what level of development the community might accept. Gov. Schwarzenegger has appointed former Assemblywoman Nicole Parra to the new position of director of the Governor's Regional Development Initiatives within the Business Transportation and Housing Agency. The position is intended to promote public-private partnerships in poor regions. Although Parra will have responsibility over the entire state, she is likely to focus her attention on the Central Valley. She will be charged with convening regional job growth summits and working with the California Partnership for the San Joaquin Valley (see CP&DR , February 2006 ). A Democrat from Hanford, Parra was termed out of the Assembly last fall. She has been involved in several bitter political fights recently. She endorsed Republican Danny Gilmore in the race to succeed her, rather than Democrat Fran Florez, who is mother of state Senate Dean Florez (D-Shafter) Parra and the younger Florez have fought a number of battles. Gilmore won the election. Parra lost her office in the state Capitol toward the end of the 2007-08 Legislative session because she refused to vote for a Democratic-drafted budget. Throughout, Parra has remained close to the Schwarzenegger administration. Madera County has been slammed with multiple lawsuits after approving two large projects in Rio Mesa, a designated growth area north of Fresno. Fresno County, two environmental groups and the San Joaquin River Parkway and Conservation Trust filed a total of three lawsuits over a 3,000-unit development to the north and west of Millerton Lake. Fresno County's concern is traffic, while the other organizations say Madera County has not done enough to protect the San Joaquin River and endangered species habitat. Meanwhile, the Chawanakee Unified School District sued over the 5,200-unit Tesoro Viejo project along Highway 41. The district argues the project violates the Rio Mesa area plan because the county did not ensure developers provide adequate money to fund new schools. The district contends it needs an additional $100 million to build schools. Madera County has tried to encourage growth in the 15,000-acre Rio Mesa area since the 1990s, but financing problems, environmental concerns and water issues have so far prevented most development (see CP&DR In Brief , August 2006 ; Local Watch , May 2004 ).

A decision by the Coastal Commission not to intervene in a dispute between Malibu property owners was upheld by the Second District Court of Appeal. The court affirmed the Commission's refusal to conduct a hearing on a proposed beachfront house that was approved by the City of Malibu but opposed by the next door neighbors. The court also found that a State Lands Commission failure to investigate the project's potential impact on public tidelands was not enough to disturb the city's approval. In 2004, property owner Jeff Stibel applied for a permit to construct a 3,500-square-foot house and 450-square-foot garage on beachfront property on Escondido Beach Road in Malibu. The project would also include an on-site septic system and a bulkhead on the adjacent sandy beach, as well as the merger of two existing lots. Daniel Alberstone and Lisa Ogawa, who own a house next to Stibel's property, fought the proposal. They argued the project would violate Malibu's local coastal program (LCP) because it would require construction of a protective device (the bulkhead) and other shoreline stabilization during the 100-year life of the project, and because the merged lot would be smaller than zoning allowed. The City Council approved Stibel's application in May 2006. Alberstone and Ogawa appealed to the Coastal Commission, but the Commission determined the appeal did not raise a "substantial issue" and refused to hear the matter. Alberstone and Ogawa then sued to compel the Commission to conduct a hearing on Stibel's application. Los Angeles County Superior Court Judge David Yaffe ruled against the neighbors, who then appealed. Alberstone and Ogawa argued that Yaffe made a number of errors and his ruling was not supported by the evidence. The Second District, however, declined to consider the argument because the appellate court's role in the case was to review the administrative record, not the trial court's conclusions. The court then turned to the merits. Under the Coastal Act, the Commission must hear an appeal unless it determines the appeal does not present a substantial issue, which is defined as significant question about conformity with a local coastal program. Alberstone and Ogawa argued that the project conflicted with the LCP because it prohibits "land divisions" that could require shoreline protection or bluff stabilization structures. They said the term "land divisions" included lot mergers, and they noted the project included a proposed bulkhead. The Commission determined that the specific provisions of the LCP in question excluded lot mergers. The Commission – which essentially drafted and adopted the LCP on Malibu's behalf – had excluded mergers in order to encourage lot consolidation. "We are inclined to defer to the Commission's interpretation," Justice Patricia Bigelow wrote for the unanimous appellate panel, "because it presents a reasonable interpretation that is in keeping with the purposes of the LCP." Alberstone and Ogawa further argued the small size of the lot resulting from the merger conflicted with the LCP. The Commission conceded the lot would be of substandard size but concluded the lot size standards do not apply to mergers. Besides, the city had concluded it could not deny economic use of the residentially zoned property. The Commission and city's reasoning was good enough for the court, which determined the Commission had met the intent of the LCP. The Malibu LCP also requires the State Lands Commission to determine whether a proposed development on the beach or along the shoreline would encroach on tidelands or other public trust interests. When asked for a determination, the State Lands Commission said it did not have time or resources to investigate and instead stated that it "presently asserts no claims that the project intrudes onto sovereign lands or that it would lie in an area that is subject to the public easement." Alberstone and Ogawa argued the Lands Commission's failure to make the required finding required the rejection of Stibel's application. But the court said that striking the Coastal Commission's approval based on the Lands Commission's response "would be a tremendous waste of time and resources." The Case: Alberstone v. California Coastal Commission , No. B202008, 08 C.D.O.S. 15636, 2008 DJDAR 18887. Filed December 29, 2008. The Lawyers: For Alberstone: Roland Tellis, Bingham McCutchen, (310) 907-1000. For the Commission: Hayley Peterson, attorney general's office (619) 645-2540. For Jeff Stibel: Alan Robert Block, Block & Block, (310) 552-3336.

The Coastal Commission has no jurisdiction over a fence at the base of a coastal bluff in Torrance because a 1988 boundary agreement among state entities and landowners authorized the fence, the Second District Court of Appeal ruled. The court said it did not matter that the Coastal Commission was not party to the 1988 agreement, and the court rejected the Commission's argument that an exception in the Coastal Act for boundary settlements did not apply to physical activities that could impact the environment. Located at the back of a public beach, the fence has a long history. After two people fell to their deaths while climbing on the unstable bluffs behind the beach, a chain link fence was erected during the late 1960s. The fence was apparently destroyed by a storm and rebuilt in the early 1970s. Property owner Martin Burke, who has represented homeowners on the bluff top, said the fence was in place when he moved there in 1972. The fence was on private property, as the homeowners' properties extend to the mean high tide line on the beach. Burke obtained a permit from the city to rebuild the fence on his property in 1974, and a permit to replace the fence in 1981. Property owners to the north and south of Burke received permits from the predecessor to the Coastal Commission in 1973 and 1975 to extend the chain link fence so that it was about 1,000 feet long. Meanwhile, a dispute over public access to the beach at the base of the bluffs simmered until September 1988, when Paseo de lay Playa Drive homeowners, the State Lands Commission, the attorney general's office and Gov. Deukmejian signed a formal boundary agreement. That agreement established a public easement over a strip of private sandy beach at the bottom of the bluffs, and it allowed owners to maintain an eight-foot-tall chain link along the edge of the easement. In 2005, Burke sought to repair the fence on his behalf and that of 14 other property owners. At the Coastal Commission's insistence, Burke filed an application for an after-the-fact approval and replacement of 930 feet of eight-foot-tall fence. In July 2006, the Commission rejected the application, finding the fence would change the view of the bluffs from the beach and could result in homeowners intensifying uses of the properties along the bluff face and at the toe of the bluff. Burke sued the Commission, arguing, among other things, that the Commission had no jurisdiction under the 1988 boundary agreement to reject the fence. Los Angeles County Superior Court Judge David Yaffe ruled for the Commission. However, a unanimous three-judge panel of the Second District Court of Appeal, Division Two, said it was clear the 1988 agreement precluded Coastal Commission regulation of the fence. A provision in the Coastal Act (specifically, Public Resources Code § 30416, subdivision (c)) states, "Boundary settlements between the State Lands Commission and other parties and any exchanges of land in connection therewith" shall not be considered a "development" requiring Coastal Commission review. "Thus," wrote Presiding Justice Roger Boren, "to the extent the erection or reconstruction of the fence is a ‘boundary settlement,' the Coastal Commission has no authority to require a permit and thus lacks jurisdiction over the fence." The Coastal Commission argued § 30416, subdivision (c), applied only to "the setting of boundaries, and not to physical development in the coastal zone," and the Commission noted it was not a party to the 1988 agreement. But the Second District maintained the fence merely was part of the boundary settlement, and, "The Coastal Commission has no statutory authority over the ‘setting of a boundary' or settling boundary disputes." Justice Boren continued, " he Legislature has specifically carved out § 30416, subdivision (c), as an exception from the otherwise expansive coverage of the Coastal Act." The appellate panel ordered the Coastal Commission to vacate its permit denial and declared the Commission lacks jurisdiction. The Case: Burke v. California Coastal Commission , No. B207188, 08 C.D.O.S. 14666. Filed December 1, 2008. The Lawyers: For Burke: J. David Breemer, Pacific Legal Foundation, (916) 419-7111. For the Commission: John Saurenman, (213) 897-2000.

In the latest installment in a feud between neighboring Big Sur property owners, the Sixth District Court of Appeal ruled that the Coastal Commission did not make the proper findings for approving a house in an environmentally sensitive area. The Coastal Commission said it approved a coastal development permit for the proposed house to avoid an unconstitutional taking of private property. But the court determined the Commission never considered the taking issue and instead approved the project as being consistent with habitat protection policies. The property owners maintained that the project was indeed consistent with habitat policies, but the court rejected that contention and instead sent the project back to the Commission for a new hearing. Since at least 2001, Dr. Hugh McAllister has fought plans by neighboring property owners Sheldon Laube and Dr. Nancy Engel to build a single house on two 2-acre parcels on Kasler Point. In considering McAllister's appeal, the Monterey County Board of Supervisors approved the project and a lot merger in early 2004. McAllister appealed that decision to the Coastal Commission and sued the county over its environmental study of the project. Two years ago, the Sixth District ruled that McAllister could not challenge the county's environmental review because the Coastal Commission had the ultimate authority ( McAllister v. County of Monterey , 147 Cal.App.4th 253; see CP&DR Legal Digest , April 2007 ). The Coastal Commission considered McAllister's appeal but approved a modified version of the project in 2005. McAllister sued the Commission, arguing the project did not conform to policies protecting environmentally sensitive habitat areas, visual resources and water resources. He also argued the Commission violated the California Environmental Quality Act (CEQA). Monterey County Superior Court Judge Robert O'Farrell ruled for the Commission. In a 51-page opinion written by Presiding Justice Conrad Rushing, a three-judge panel of the Sixth District Court Appeal addressed numerous contentions raised by McAllister, the property owners and the Commission. First, the court determined that the site qualifies as an environmentally sensitive habitat area (ESHA) for coastal sage scrub and the Smith's blue butterfly. Under the Coastal Act and the Monterey County local coastal program, development within an ESHA is restricted to resource-dependent uses that do not significantly disrupt habitat values. A new house would not be dependent on the natural resources, the court found. Although the property owners disagreed with this analysis, the Commission was willing to accept it. The Commission instead argued that sections of the Coastal Act (specifically, Public Resources Code § 30010) and the county's coastal zoning ordinance permitted the approval of non-resource-dependent uses in a protected habitat area to avoid an unconstitutional taking of private property. The court acknowledged the legal framework and conceded that denial of a permit for Laube and Engel might effect a taking. But the court found that the Commission never considered the taking issue. "Given the significance of relaxing a fundamental restriction on development in declared habitat areas and allowing a non-resource-dependent use, one would expect the record to reflect some discussion of both the restriction and the taking issue," Justice Rushing wrote. "Here, however, the record is silent." Instead, the Commission actually found the project, with mitigation measures, would conform to habitat protection policies. Although the Commission did not defend this position before the Sixth District, the administrative record reflected the abandoned position, and not the approval-in-lieu-of-taking proposition. "Clearly, the Commission had a duty to make express findings that it was excusing strict compliance with the development restrictions to avoid a taking if that had been its reason for approving the project," Rushing wrote. The appellate court directed the Commission to conduct "a new hearing at which it can consider the taking issue and make appropriate findings." The Case: McAllister v. California Coastal Commission , No. H031283, 09 C.D.O.S. 26, 2009 DJDAR 26. Filed December 30, 2008. Modified January 20, 2009 at 2009 DJDAR 840. The Lawyers: For McAllister: John Bridges, Fenton & Keller, (831) 373-1241. For the Commission: Patricia Sheehan Peterson, (510) 622-2152. For Monterey County: Frank Tiesen, county counsel's office, (831) 755-5045. For Sheldon Laube and Nancy Engel: Sheri Damon, Lombardo & Gilles, (831) 754-2444.