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.

After 76 years afloat, the RMS Queen Mary surely still draws stares from the cargo ship crews that call at the Port of Long Beach, where the Queen remains one of Southern California's more incongruous tourist attractions. Having sailed the North Atlantic under the Cunard flag, the ship has, since 1968, served simultaneously as a hotel, museum, event venue, and elegant icon for an otherwise working-class Southern California port city. For all its high-class connotations, the Queen Mary is docked unceremoniously in a forlorn corner of the harbor. The ship and its surroundings have been the object of countless proposed redevelopment schemes, the latest of which comes courtesy of a new lessor with ambitions of turning the ship and her surroundings into a regional entertainment and tourism destination. "It's an icon with a long established association with the city," said Joseph Magaddino, chair of the economics department at California State University, Long Beach. "More importantly, it's one of the elements that fits into the overall tourist destination economy that Long Beach is trying to create." That effort now hinges on investment group Save the Queen (STQ), led by Orange County developer Jeff Klein, which submitted the winning bid to purchase the operating and development rights for $43 million in a bankruptcy court auction in November 2007. Though the previous operator had gone bankrupt in 2005, just seven years into a 66-year lease with the city, STQ pledged to bring the ship back to its art deco splendor while exploring development options for its 45-acre dockside parking lot. The plan, however, may have washed away in the current wave of economic uncertainty. The Queen Mary currently attracts captive audiences who attend conventions at the downtown Long Beach Convention Center. But to become a major regional attraction, it would likely require the complement of a Universal CityWalk-style destination that plays into the area's maritime tradition while softening its industrial image. "The efforts of the Save the Queen group are to allow the ship to be a significant attraction as part of the overall development of the site, not to preclude the ship but to make sure the ship is an active part of development," said historian John Thomas, who sits on the board of the Long Beach Redevelopment Agency and has consulted with STQ on the ship's restoration. Save the Queen has already invested a reported $6 million in aesthetic and functional improvements to the hotel, restaurants and ventilation systems. It has upgraded hotel rooms and has taken on a subcontractor to manage hospitality and retail operations. But restoring the ship may merely be prelude to something much bigger. As recently as August, reports and statements indicated that STQ was considering everything from a marina, to an amusement park, to hotels, residences and retail, all of which may have been developed in partnership with Carnival Cruise Lines. However, no dollar figure was ever attached to these proposals – though presumably it would range into the hundreds of millions – and promised renderings and specifics have yet to materialize. "I hope to see the Queen restored to its historic splendor," said Long Beach City Councilmember Suja Lowenthal, whose 2nd District includes the Queen Mary. "And I expect a proposal for a project with international level architecture and vision." The redevelopment of the Queen Mary would likely fit in with Long Beach's ongoing efforts to upgrade and market itself. "The city of Long Beach and the people in the region would like to see that site developed," said Professor Magaddino. Bob Maguglin, spokesman for the Long Beach Convention and Visitors Bureau, said that a revitalized Queen Mary would be "a regional draw." However, STQ, after initial pronouncement and promises, has refused to make any further statements concerning its plans, financing or deal with the city. In fact, the developer has hinted that it may jump ship entirely. "Due to potential changes in ownership we are holding off on all media inquiries related to entitlement discussions or status of STQ," STQ spokesman Mike Murchison wrote in an e-mail message. Likewise, representatives of the Long Beach Planning Department and Redevelopment Agency refused repeated request for interviews. "As far as I know, this deal is going forward," said Lowenthal. "I haven't been advised otherwise." Afloat but permanently moored, the Queen Mary faces little danger of going the way of her big sister Titanic. Yet a cavalcade of operators, including Hyatt and Disney, have tried to make a go of the Queen Mary. Ultimately the lease has been batted about among several operators whose resources and commitment were not strong enough to realize a comprehensive development plan. "The real potential is to take the property adjacent to the Queen Mary to see how that can be developed to provide shopping and entertainment," said Magaddino. The seagoing monarch therefore represents an enormous land-use challenge—to whomever develops it. Long Beach has revitalized its shoreline with The Pike entertainment and retail complex, an aquarium and parks, to which the Queen Mary provides a handsome backdrop. But the ship sits across the harbor, with poor road, pedestrian and transit connections, and its immediate surroundings have all the charm of a cargo dock. "I'm hoping for an urban planning component to it. Right now it's somewhat detached from downtown and the rest of the city," said Lowenthal, who has commissioned a study for a streetcar line. "One of the greatest hopes I have for it is for it to be woven into the fabric of our city." Save the Queen had contracted with a transportation consultant and planned to partner with the city to request federal funding to improve access and develop mass-transit service. Meanwhile, construction of a hotel, retail, or any other land-side buildings would also require approval of the California Coastal Commission as well as meet California Tidelands Trust restrictions. Ultimately, though, surmounting regulatory hurdles may be nothing compared with the challenge of raising capital. "The fact that we've had a worldwide economic collapse has put a kink in the timeline, but the developer is still investigating options," said Lowenthal. "I look forward to them presenting preliminary concepts to the city within the next few months. At that point, the entitlement process would begin." Contacts: Suja Lowenthal, Long Beach City Council District 2 , (562) 570-6684. Joseph Magaddino, CSU Long Beach, 562-985-5061. Mike Murchison, Save the Queen, (562) 596-5835. Long Beach Heritage: www.lbheritage.org . The Queen Mary: www.queenmary.com .

A challenge to a large power plant in western Riverside County has been rejected by the Ninth U.S. Circuit Court of Appeals, which ruled that the plaintiffs could not contest the project in federal district court. Romoland School District, two environmental justice groups, a collection of labor unions and two residents sued the Inland Empire Energy Center (a subsidiary of General Electric) and the South Coast Air Quality Management District to block the 810-megawatt, gas-fired power plant in an unincorporated area south of Perris. The project won approval as a 670-megawatt plant from the air district and the California Energy Commission in 2003. The Commission in 2005 approved a modified project that increased power output to 810 megawatts through the use of better turbines. In April 2006, the school district and other project proponents filed suit in U.S. District Court for the Central District of California. They argued the power plant violated the Clean Air Act's "new source review" provisions because the project received emissions credits for which it was not eligible, and because the plant would emit more fine particulate matter than permitted by an air district rule. Their concern was that air pollution from the power plant could harm the health of children at Romoland Elementary School, located 1,100 feet from the project site. They sought an injunction to halt the project and civil penalties from Inland Empire Energy Center (IEEC) and the air district. District Court Judge Ronald Lew rejected the requested preliminary injunction and in August 2006 dismissed the two causes of action against the IEEC. Later that year, District Judge Andrew Guilford dismissed the two causes of action against the air district at the request of the plaintiffs, who wanted to move to the appellate court level. The primary issue at the Ninth Circuit was whether the district court could consider the legal challenge, as Judge Lew dismissed the case for lack of jurisdiction. The plaintiffs argued their suit was brought under the citizen suit provisions of the Clean Air Act's Title I, which concerns new source reviews and other preconstruction requirements. However, the IEEC and South Coast argued the suit was really a challenge under Title V, which concerns permitting schemes such as the one the air district employed here. The two different portions of the Clean Air Act provide different avenues to court. Challenging a permit issued according to Title V requires an appeal to the Environmental Protection Agency administrator, and then judicial review beginning at the circuit court level. The plaintiffs in this case had a Title V challenge that the district court properly dismissed, the Ninth Circuit determined. "We do not opine upon the general contours or scope of the citizen suit provision of 42 U.S.C. 7604," Judge Ronald Gould wrote for the three-judge Ninth Circuit panel, referring to a portion of the Clean Air Act. "We hold only that where a state or local air pollution control district has integrated preconstruction requirements of Title I within the permitting requirements of Title V and a permit is issued under that integrated system, a claim that the terms of that permit are inconsistent with other requirements of the Clean Air Act may only be brought in accordance with the judicial review procedures authorized by Title V of that Act, 42 U.S.C. § 7661-7661f, and may not be brought in federal district court under the Act's citizen suit provisions, 42 U.S.C. § 7604. Because plaintiffs' action was brought in an inappropriate forum under an inapplicable CAA provision in an untimely avenue of protest, the district court was without jurisdiction to hear it." In a concurring opinion, Judge J. Clifford Wallace wrote that he agreed with the outcome of the case but said the Ninth Circuit should not have considered the appeal because the plaintiffs voluntarily dismissed their case against the air district. Construction of the power plant finished last year and the plant is now in the testing stage. The Case: Romoland School District v. Inland Empire Energy Center, LLC , No. 08 C.D.O.S. 14167, 2008 DJDAR 17047. Filed November 18, 2008. The Lawyers: For Romoland: Suma Peesapati, Adams, Broadwell, Joseph & Cardozo, (650) 589-1660. For IEEC: Robert Wyman, Latham & Watkins, (213) 485-1234. For South Coast Air Quality Management District: Bradley Hogin, Woodruff, Spradlin & Smart, (714) 558-7000.

A San Joaquin Valley Unified Air Pollution Control District permitting process for dairies has been rejected by the Fifth District Court of Appeal because the district did not conduct an adequate assessment of public health impacts. The decision marks a significant victory for environmental justice advocates and clean air supporters in the San Joaquin Valley who argue the air district has not done enough to regulate air pollution from the region's large-scale dairies. They insist dairy operators should alter feed, better manage animal waste and even house livestock indoors so that emissions may be captured. In 2003, state lawmakers approved a series of bills intended to force improvements to the San Joaquin Valley's deteriorating air quality. Specifically, SB 700 (Florez) eliminated agriculture's exemption from air quality regulations and required the air district to adopt and implement a rule requiring confined animal facilities to reduce the emission of air contaminants. The district followed up by adopting Rule 4570, which established a permitting process for large confined animal facilities – essentially dairies. The rule called for controlling emission of volatile organic compounds (VOCs), a precursor to ozone, with various management practices. The group Association of Irritated Residents (AIR) sued, arguing the district failed to perform a health effects analysis of the permitting process, failed to address ammonia and other air pollutants, and failed to adopt a rule actually reducing VOC emissions. Several large dairy organizations intervened in the lawsuit on behalf of the air district, and Fresno County Superior Court Judge D. Tyler Tharpe ruled against AIR. The Fifth District overturned the ruling, finding a necessary public health assessment to be completely missing. The air district and dairy organizations pointed to a district staff report and estimates of how many tons per year of VOC the permitting process would reduce. The court was unmoved. "If the goal is healthier air, the district has not shown whether it has taken steps toward reaching that goal," Acting Presiding Justice Rebecca Wiseman wrote for the unanimous three-judge panel of the Fifth District. "For example, the district claims that rule 4570 will reduce VOCs by 7,563 tons per year; however, it makes no statement about how this will impact public health concerns. "The report discusses how much the changes in feed and waste management will cost facilities and identifies a number of possible controls which have been rejected because of higher cost. If costs are going to justify mandating lesser controls instead of tougher ones, the public is entitled to know what the cost of this decision will be to public health," Wiseman continued. "If the available science is insufficient to justify more expensive, tougher environmental controls, the public is entitled to know this as well." The court rejected AIR's other contentions, including the argument that the district must regulate dairy ammonia emissions. The 2003 legislation was intended to address ozone and ozone precursors and not all air pollutants from agriculture, the court ruled. The Case: Association of Irritated Residents v. San Joaquin Valley Unified Air Pollution Control District , No. F053956, 08 C.D.O.S. 14250, 2008 DJDAR 17107. Filed November 19, 2008. The Lawyers: For AIR: Luke Cole, Center on Race, Poverty & the Environment, (415) 346-4179. For the district: Philip Jay, SJVUAPCD, (559) 230-6033. For the dairies: David Cranston, Greenberg, Glusker, Fields, Claman & Machtinger, (310) 553-3610.

A 7-year-old City of Los Angeles ordinance prohibiting new off-site signs has been upheld by the Ninth U.S. Circuit Court of Appeals, which rejected the argument that the ban combined with a city contract permitting advertising at city-owned bus stops violated the First Amendment. In overturning a District Court ruling, the Ninth Circuit determined that the Los Angeles ordinance is "essentially indistinguishable" from a San Diego ordinance the U.S. Supreme Court upheld in the pivotal 1980 billboard case Metromedia, Inc. v. City of San Diego , 453 U.S. 490. The fact that Los Angeles signed a contract permitting one company to sell advertising at bus and transit stops does not make the city's off-site billboard prohibition unconstitutional, because the ban still advances the goal of decreasing visual clutter and motorist distractions, the court determined. The decision is an important one for the assailed Los Angeles law and for a similar regulatory scheme in San Francisco. Still, the Los Angeles law remains unenforceable because of a 2008 federal judge's ruling in a different case that the law's exceptions for certain zoning districts make the law unconstitutional. Paul Fisher, the attorney for plaintiff Metro Lights, said the Ninth Circuit's ruling ignores the evolution in case law since Metromedia as well as the city's overall scheme of favoring commercial speech that generates municipal revenue. The fact that some signs make the city money is not a "cognizable interest" in a First Amendment case, he said. "The court has gone back to 1981. It said we're not going to look at bus shelters and news racks, and we'll go back to a case involving only billboards," Fisher said of the court's reliance on Metromedia. Attorney Laura Brill – counsel for CBS-Decaux, which has the contract for bus stop signs, and the League of California Cities – said the Ninth Circuit decision comports with U.S. Supreme Court precedent. The Ninth Circuit decision "restores the balance" after the district court judge struck down the Los Angeles ordinance, added Brill, who said she was not speaking as a CBS-Decaux representative. Since 1987, Los Angeles has had agreements that provide private companies exclusive advertising rights on bus shelters in exchange for the installation of shelters and annual payments. After an open bidding process, the city in 2001 signed an agreement with CBS-Decaux (then Viacom Decaux) that covered not only bus shelters, but also public toilets, trash bins, kiosks and news racks. Under the "street furniture agreement" (SFA), CBS installs the facilities, sells advertising on them and makes annual payments to the city, which assumes ownership of the facilities. Four months after signing the contract with CBS, the city adopted a sign ordinance that prohibits the installation of new off-site signs. The ordinance provides exceptions for signs in the public right-of-way (such as CBS's street furniture advertising), and signs permitted by variance, a specific plan, a supplement use zoning district or a development agreement. Essentially, the city sought to outlaw new billboards except in certain areas, such as around Staples Center at the southern end of downtown. Billboard companies began suing immediately. Metro Lights did not file suit until December 2003, after the city had issued the company numerous citations for installing new off-site signs. In 2006, District Court Judge Gary Feess ruled for Metro Lights. The city could not prohibit Metro Lights from displaying messages while it allowed CBS to erect off-site signs in the public right-of-way, Feess determined. The city appealed the ruling, while Metro Lights appealed Feess' refusal to award damages. For a law that regulates commercial speech to be constitutional, it must "directly advance" a legitimate government interest. In Metromedia , the Supreme Court ruled that traffic safety and esthetics are legitimate interests. Metro Lights argued the Metromedia decision was not applicable here because the city's street furniture agreement permits advertising in the public right-of-way that is at least as distracting as billboards on private property. Taken together, the sign ordinance and the street furniture agreement could not directly advance the government's interest in traffic safety and aesthetics, Metro Lights argued. Rather, the city was essentially auctioning off First Amendment rights, the company argued. But the Ninth Circuit pointed out that the San Diego ordinance in Metromedia also provided an exception for bus stops. More importantly, the Metromedia court's "deference to legislative judgment resounds quite clearly in this case," Judge Diarmuid O'Scannlain wrote for the unanimous three-judge panel. "Los Angeles, just like San Diego, ‘has obviously chosen to value one kind of commercial speech' – controlled offsite advertising on public transit facilities – ‘more than another kind of commercial speech' – uncontrolled offsite advertising spread willy-nilly about the streets." "Although the SFA permits some advertising," O'Scannlain continued, "a regime that combines the sign ordinance and the SFA still arrests the uncontrolled proliferation of signage and thereby goes a long way toward cleaning up the clutter, which the city believed to be a worthy legislative goal. O'Scannlain called the auctioning First Amendment rights argument "little more than a canard." He continued, " ven if there were no SFA but only the sign ordinance, the city would still exercise proprietary control over who gets to advertise on its transit facilities." Metro Lights attorney Fisher said he will ask a full panel of Ninth Circuit judges to re-hear the case. Meanwhile, at least half a dozen lawsuits over the sign ordinance are pending somewhere in the legal system. One of those cases is World Wide Rush, LLC v. City of Los Angeles , No. 08-56062, in which the city has asked the Ninth Circuit to overturn a district court judge's order blocking enforcement of the sign ordinance. The city has settled other lawsuits. For instance, the city settled one suit by permitting CBS Outdoor and Clear Channel Outdoor to convert 840 billboards from standard signs to digital format. Although the agreement ended litigation, it has been sharply criticized by some neighborhood groups and residents who live near converted signs, which flash brightly lit messages 24 hours a day. The Case: Metro Lights, LLC, v. City of Los Angeles , No. 07-55179, 09 C.D.O.S. 113, 2009 DJDAR 205. Filed January 6, 2009. The Lawyers: For Metro Lights: Paul Fisher, (949) 675-5619. For the city: Kenneth Fong, cit attorney's office, (213) 978-8064. For CBS-Decaux: Laura Brill, Irell & Manella, (310) 277-1010.

Remember way back to the days when climate change and greenhouse gas emissions didn't dominate every discussion of land use and economic development in California? You know, way back in … 2005.  Well, Dan Logue sure does. A freshman assemblyman from the Marysville area and former Yuba County supervisor, Logue has introduce a bill that would repeal AB 32, California's greenhouse gas emissions reduction law. "I've talked to businesses," the Republican lawmakers told the Chico Enterprise Record . "They cannot function under AB32." Logue's bill is AB 118. I don't have to go far out on a limb to say the legislation is DOA at the Capitol. That's not to say the world – well, at least California – would not be a simpler place if Gov. Schwarzenegger had never signed AB 32, SB 97, SB 375 or Executive Orders S-3-05 and S-13-08. But he did, and now policy-makers and professionals are figuring out how to implement all this stuff. The recent UCLA Extension Land Use Law and Planning Conference made clear there is a lot to figure out. Experts talked about the Office of Planning and Research's recently released draft CEQA guidance for addressing greenhouse gas emissions (GHG), and the California Air Resources Board's draft guidance for greenhouse gas emissions thresholds of significance under CEQA, which was released in December. Curtis Alling, an EDAW vice president based in Sacramento, said that under the draft CEQA guidelines , a significant impact occurs when there is a "considerable contribution" to cumulative emissions. But because the guidelines contain no quantifiable or specific thresholds, it's very difficult to figure out what is a considerable contribution. Alling's advice: • Any large project must have a robust GHG analysis with a quantified inventory/analysis. • For small projects using a negative declaration or mitigated neg dec, mention GHG and simply hope for the best. • Agencies may continue to use categorical exemptions for projects that generate GHG. Alling also reminded the practitioners in the audience that a project's GHG problems are not solved with a CEQA document, they are solved with project designs that reduce carbon emissions. David Weaver, a senior associate with Environ, addressed the CARB guidance , which concerns transportation, energy use, construction and water use. Weaver said the CARB advisory needs work, as portions are unclear and could inadvertently provide wrong incentives. On residential development, the air board says a project generating more than 14,000 vehicle miles traveled (VMT) per household annually would have a significant impact. The 14,000 annual VMT is a very difficult standard, Weaver said. Only small dwelling units within large metro areas routinely meet this standard today. According to Weaver, the CARB VMT standards are based on one of the few pieces of empirical research that attempts to quantify VMT in different metropolitan settings, John Holtzclaw's 1994 paper, "Using Residential Patterns and Transit To Decrease Auto Dependence and Costs." Holtzclaw's research focused on the Bay Area and was sponsored by Natural Resources Defense Council. This paper sought to link density and VMT, which it did; but in general it found that the more close-in a household was, the less VMT. So a San Francisco household generates less VMT than Berkeley household, which had less than a Danville household, etc. On energy, the air board calls for a target of 30% reduction from 2008 Title 24 standards. But Title 24 standards are relative. Thus, noted Weaver, a very large house that consumes less energy than other very large houses could meet the target, while a small unit that does not use much energy may not be able to hit the target because there is so much less fat to cut. Another problematic example: The guidance calls for 20% use of recycled construction material but gives no credit for simply using less material to build things, Weaver said. In other words, there is a very long ways to go in figuring out exactly how to implement the climate change mandates. Comments are due February 2 on OPR's draft CEQA guidelines. On the SB 375 front, the Air Resources Board has appointed the 21 members of the Regional Targets Advisory Committee , which is scheduled to meet for the first time on February 3. This panel is supposed to help CARB determine how much land use can contribute to meeting the AB 32 greenhouse gas emissions reduction goal . The appointees make for a very high powered group. Interestingly, the committee includes five regional transportation planning executives and only two elected officials. Certainly no shortage of big thinkers among this group. - Paul Shigley and Bill Fulton

Not since Lyndon Johnson more than 40 years ago has any president come into office with anything like the sky-high expectations about reforming urban policy that Barack Obama brings. But the various federal policies related to growth and development have many constituencies – urban, suburban, and rural – and it is not yet clear that Obama can meld them in a meaningful way. Whether and how he does meld all these policies is of the utmost importance to California. Unlike the Northeastern and Midwestern states – such as Illinois, where the new president is from – California is not generally a state dominated by urban constituencies. Yes, there are some poor urban areas. But overall California is a state filled with overgrown suburban development that is struggling with how to become more urban in a good way without falling into the trap of urban decay that befell so many other states. The Obama approach to transportation is especially important to California because of the state's own fiscal crisis. Gov. Arnold Schwarzenegger has halted virtually all capital projects, including transportation projects (though he is simultaneously seeking to streamline environmental review on several big projects). In the short term, the state's politicians are lobbying hard for some of Obama's federal stimulus money to pay for these transportation projects. But in the long run, Obama will have to decide how he wants to reshape federal transportation policy, especially in light of the climate change issue. And California will have to decide whether to simply go for the pork or try to use the transportation money to leverage a lot of change in the state's growth patterns. Congress will be reauthorizing the transportation bill this year, and Obama will face tough decisions about where future funding will come from and whether to cave in to the pavement crowd. Obama is a deft big-tent politician who knows how to appeal to vastly different constituencies. He's from the South Side of Chicago, but he's vastly popular in California among environmentalists, social liberals, and other typical Blue State types. His ambition appears to be to bridge traditional divides among housing and urban policy, transportation, and environmental protection – all of which play an important role in shaping California's growth patterns. Urban policy, focused around the Department of Housing & Urban Development (HUD), has traditionally had a largely African-American constituency. Indeed, up until the 1990s, HUD was usually the Cabinet slot occupied by an African-American. Obama is clearly comfortable in this world. Both affordable housing and market-rate development – whether created by nonprofits or for-profit developers – has been a stable of political power on the South Side for decades. By contrast, the Department of Transportation has traditionally served a largely suburban and rural constituency, driven by pork-barrel politics and the need to spread around vast transportation dollars. And environmental protection – split between the Environmental Protection Agency, the Interior Department, and a few other agencies – catered to a largely suburban, white, middle-class constituency interested in clean air, clean water, and open spaces. Obama does not connect as easily to such constituencies, but his appeal among liberal suburbanites is very strong. In the election, he polled surprisingly well among moderate Democratic voters in Western states such as Montana. Obama has made several moves that would suggest he is serious about integrating all these areas of policy – but it's not clear whether he can really do it. Perhaps the most significant move was creating a White House Office of Urban Policy, designed to coordinate all federal policy associated with cities. The question is whether the White House will view urban policy only in terms of central cities – the traditional "HUD cities model" so deeply embedded on the South Side – or whether Obama's administration will take a more expansive view and include cities, suburbs, and large-scale metropolitan issues in this mix. At HUD, Obama – who has a unique luxury in this regard – has followed recent practice and appointed somebody who is not African-American, Shaun Donovan, as secretary. Donovan has an impressive pedigree (he completed the Kennedy School/Graduate School of Design master's combo at Harvard) as well as a stellar record as housing director in New York City. He's also eloquent and even moving on big-picture urban issues, such as equal opportunity for all segments of society. The question is whether Donovan can marry HUD's traditional agenda – housing for the poor and some aspects of housing finance – with larger issues associated with growth and development. On many garden-variety environmental issues, such as air, water, and open space, Obama can probably be relied upon to follow a traditional Democratic line. It is not clear whether his interior secretary, Ken Salazar of Colorado, or his agriculture secretary, Tom Vlasick of Iowa, grasp the significance of federal landholdings in shaping metropolitan growth, especially in the West. But the Department of Transportation likely holds the key to the Obama metropolitan growth strategy. Nothing the federal government does affects overall growth patterns more than how and where transportation money is spent. Highway funds can be used for greenfield projects or vital urban connectors; overall, money can be spent on highways or transit or other things. Obama surprised everybody by appointing Ray LaHood, a Republican congressman from downstate Illinois, as Transportation Secretary. The conventional wisdom is that LaHood is not good news for smart growth, especially when compared with candidates such as U.S. Rep. Earl Blumenauer of Portland and Steve Heminger, head of the Metropolitan Transportation Commission in the Bay Area, whose names were being bandied about until the last minute. On the stimulus package, smart growth advocates are arguing that the money will generate more prosperity if it is targeted to support compact urban development patterns (see Smart Growth America's "Transportation for America" campaign.) They're likely to lose that battle, because Obama has already promised money for "shovel-ready" projects – and any attempt to deny or slow down those funds based on smart growth criteria is likely to be met with a lot of opposition, given the state of the economy. In the long run, however, Obama's probably going to have to come up with federal transportation formulas that jibe more than ever with environmental, as well as economic, policy. Current policies requiring conformity with the Clean Air Act have not been of great significance – but if Obama pushes for a climate change bill that restricts greenhouse gas emissions, then he'll have to move past pork and use at least some smart growth criteria to dole out federal funds. That is, of course, if any federal funds are available. The Highway Trust Fund is virtually broke, and one of the tasks of the new administration is to figure out a way to fund it in the future – an increased gas tax, a vehicle miles traveled tax, a tax related to carbon emissions, or something. The betting here is that Obama will be bold: He'll go for a whole new kind of tax that will drive more transportation dollars into smart growth and infill projects. At that point, California will have a choice: keep pushing for pork, or lead the way on growth in the same way that the state is leading the way on climate change.

Senate Bill 375 dominated this year's UCLA Land Use Law and Planning Conference. While there were few comments about the merits of the new law, there was extensive discussion regarding the law's impact and implementation. If there was a common theme, it was this: SB 375 has the potential to change dramatically both California's land use planning system and growth patterns, and the law is very much a work in progress. Although it was largely unsaid, the implication is that the era of the large-scale, low-density, single-family housing tracts has passed. The author of SB 375, Senate President Pro Tem Darrell Steinberg, was scheduled provide the lunchtime keynote address, but he got stuck in Sacramento dealing with the state budget. Instead, Steinberg sent along a 15-minute video in which he told the approximately 300 conference attendees that SB 375 will change growth patterns and serve as a national model. Steinberg reflected back to 2001, when, as an assemblyman, he attempted to decrease the fiscalization of land use by creating a tax-sharing system across metropolitan regions. Like many academics had already concluded, Steinberg argued that the system provided fiscal incentives for bad planning . His bill failed amid intense opposition from the League of California Cities and suburbs with large sales tax bases, but Steinberg never gave up on the issue . When Gov. Schwarzenegger in 2006 signed AB 32, the state's greenhouse gas emissions reductions law, Steinberg saw a new way to get at the issue. SB 375, he said, attempts to incorporate land use and transportation into AB 32 implementation. Signed by Schwarzenegger last September, the new law provides something for every member of the "Coalition of the Impossible" that coalesced around the bill. • Builders receive incentives in the form of relaxed environmental review of projects favored by environmentalists and planning advocates, namely, compact, mixed-use development. • Cities get a longer period (every eight years instead of every five) in which to update their housing elements. • Housing advocates have greater ability to challenge housing element, especially if cities and counties do no complete rezoning to accommodate affordable units. As the replacement lunchtime speaker, League lobbyist and Coalition of the Impossible member Bill Higgins said that SB 375 is both less and more than it appears. He contended that the "strategic growth strategies" that metropolitan planning agencies must adopt under SB 375 are not significantly different than the growth forecasts that regional transportation planning agencies already prepare and which are reviewed by the federal Environmental Protection Agency for compliance with the Clean Air Act. Higgins speculated that most MPOs will not be able to hit their state-mandated greenhouse gas emissions reductions goals with a sustainable communities strategy and, therefore, will have to prepare the required alternative planning strategy that does provide a path to greenhouse gas emissions compliance. The alternative strategy does not have to be incorporated into the regional transportation plan, but Higgins predicted that local elected officials will want to implement the alternative plan. Plus, the climate change hawks in the state attorney general's office and CEQA enforcers will insist on the alternative plan's implementation, he said. Which gets to the Higgins point about SB 375 being more than advertised. The CEQA incentives for high-density, mixed-use projects near transit will change the type of projects that developers propose, he said. Thus, we'll see a bottom-up change to growth patterns. Higgins said the law needs cleanup legislation to address housing elements that come due during the transition to SB 375, which will not kick in until late 2011. Later in the day, Housing and Community Development Director Lynn Jacobs agreed such legislation is necessary. Higgins also predicted that transportation agencies and commercial developers would seek CEQA incentives similar to those SB 375 provides to residential developers. Peter Detwiler, staff director for the state Senate Local Government Committee, said he too expects to see follow-up legislation because SB 375 des not provide implementation details.   Taking a step back, Martin Wachs, a former transportation and urban planning academic at UC Berkeley and UCLA who now is with the RAND Corporation, said that SB 375 and other recent legislation is an attempt to undo the automobile's dominance of land use planning. Jeff Stevens, director of consulting company Danielian Associates, said that SB 375 and the urge to reduce greenhouse gas emissions comes down to transportation choice and proximity. Many cities, he noted, lack the infrastructure for such basic transportation choice as walking and bicycling. – Paul Shigley

When Barack Obama took the oath of office Tuesday, he tried to strike a delicate balance between the soaring rhetoric he is famous for and an almost dour message about how much work and sacrifice will be required to put America back on its feet. Nowhere will that balance be more difficult to strike – or more important – than in the vast combination of federal policies that help to drive growth and development patterns around the country. Even the weather itself seemed to suggest the dichotomy in Obama's approach. His inauguration took place on a cold and somewhat cloudy day in Washington, D.C., but the clouds lifted to reveal warm sunshine while he was giving his inaugural address. Later, as the crowds dispersed from the mall, the clouds set in again, accompanied by a cold wind, as if Obama's brief sunny moment had already passed. Obama has laid out an enormous domestic policy agenda, most of which will have a significant impact on growth issues. The economic stimulus package will push lots of money into infrastructure. He will have to attack global warming with a new climate change bill. The federal transportation funding system is both broken and broke, and Obama will have to create a new one almost from scratch. And he has promised to revamp urban and metropolitan policy, partly from the new White House Office of Urban Policy and partly at the Department of Housing and Urban Development. Whether Obama can marry bold action with both change and restraint remains to be seen. – Bill Fulton