An appellate court has given the City of Alameda new life in a lawsuit over the city’s attempt to acquire railroad property for far less than market value. The First District Court of Appeal overturned a trial court ruling that a nearly 80-year-old contract between the city and the railroad owner was too vague to enforce. A unanimous three-judge panel ruled that the trial court should consider evidence developed after completion of the 1924 contract, and the appellate panel returned the lawsuit to the lower court for further proceedings. At issue in the litigation is property in Alameda that could be worth tens of millions of dollars. In 1924, the city sold a municipal belt line railroad for $30,000 to the Alameda Belt Line (ABL), which was a corporate venture of Western Pacific Railroad Company and The Atchison, Topeka and Santa Fe Railway Company. Paragraph 14 of the agreement gave the city the right to repurchase the belt line and "all extensions thereof" at a sum equal to ABL’s cost to acquire and improve the property. In 1999, the city learned that ABL was selling parcels of land and was in the process of selling a 22-acre rail storage yard for $18 million. So in November 1999, the city gave ABL notice that the city intended to exercise its right to repurchase the railroad and all extensions pursuant to the 1924 contract. Alameda Belt Line sued, contending that paragraph 14 was unenforceable because the term "all extensions thereof" did not sufficiently define the property that the city could repurchase. Alameda County Superior Court Judge Judith Ford accepted ABL’s argument and issued a summary judgment for ABL. The city appealed, and the First District overturned Judge Ford. The issue before the appellate court was whether evidence not included in the 1924 written contract could be considered in determining the property that the city may reacquire. The city argued that such evidence should be considered when interpreting the contract, and the First District agreed. The court noted that the 1924 contract required ABL to "keep an accurate account of the cost of additional investments and extensions and file a verified report thereof annually with the City Clerk." These reports identify the property constituting "extensions thereof" and should be considered as evidence, the court held. "‘The defense of uncertainty has validity only when the uncertainty or incompleteness of the contract prevents the court from knowing what to enforce,’" Justice Lawrence Stevens wrote, citing , (1986) 182 Cal.App.3d 492, 500. That situation apparently was not the case here. " he repurchase option in this case is somewhat unusual, since it sought to include not only the original railroad, but also property that was to be acquired in the future for ‘extensions thereof.’ However, this unusual feature does not necessarily make the 1924 agreement fatally uncertain," Justice Stevens wrote. "Only the original property, or new lands or other property acquired to provide ‘extensions’ of the operations of the original railroad, would seemingly be covered by the repurchase option. If ABL acquired other property for non-railroad purposes, such property would not fall within the option to repurchase." The First District ordered the appellate court to consider the additional evidence before determining whether or not the city could acquire the 22-acre rail storage yard under terms of the 1924 contract. The Case: , No. A099429, 03 C.D.O.S. 9637, 2003 DJDAR 12109. Filed November 4, 2003. The Lawyers: For Alameda Belt Line: Benjamin Salvaty, Hill, Farrar & Burrill, (213) 620-0460. For the city: Douglas Dang, Dang & Trachuk, (510) 832-8700.

A new attempt to build another airport to serve San Diego is underway, with proponents working toward an airport siting measure for the 2006 ballot. There may be no place in the United States that has studied potential airport locations more thoroughly than San Diego. Depending upon who is counting, between two dozen and 40 official, semi-official and academic studies, analyses and committee reports have presented findings and recommendations over the last three decades. All the while, Lindbergh Field — an undersized facility bordered by extensive urban development and the shoreline — remains the county’s lone commercial airport. The latest process is being run by the San Diego County Regional Airport Authority, an 11-month-old entity created by state legislation that removed the airport from control of the San Diego Unified Port District. In October, the nine member Airport Authority board chose seven finalist sites from a list of 32 possibilities. Five active military bases, a location in Imperial County, and Lindbergh Field made the cut. But in late November, the board also directed its staff to use a geographic information system to hunt for new, non-military site options. "The board feels uncomfortable with having predominately military sites," Chairman Joseph Craver explained. The finalist sites are: • A desert location off Interstate 8 in Imperial County • March Air Reserve Base in Riverside County • Marine Corps Air Station Miramar in San Diego • Marine Corps Air Station Miramar East in San Diego • Camp Pendleton • North Island Naval Air Station on Coronado Island • San Diego International Airport (Lindbergh Field) Failing to make the finalist cut were a proposed facility south of the border tied to Tijuana Rodriguez International Airport, Brown Field just north of the border where the city planned and later backed away from a major cargo airport, and a proposed airport floating in the ocean. "San Diego has studied the airport site selection subject for the last 40 years and has spent millions and millions of dollars, and, unfortunately, it has gone nowhere," Craver said. "This process is entirely different than anything that has been done in San Diego." After so many years of floundering, San Diego is full of skeptics about the latest process. Steven Erie, an urban studies and planning professor at University of California, San Diego, said the process is stacked in favor of Lindbergh Field expansion. The Airport Authority’s "public working group" that provided the initial list of 32 potential sites was merely a "fig leaf," said Erie, who was a member of the group. Six of the seven finalist sites make a Lindbergh Field expansion appear to be the only real option, Erie contended. Five of the sites are active military bases — including March, which is nearly 100 miles from downtown San Diego — and the non-military alternative is 85 miles east of downtown in the Imperial County desert, he pointed out. Former state legislator James Mills, who helped carry the 1962 legislation that created the Port District, agreed that the process is loaded in favor of Lindbergh Field expansion. The requirement of voter approval for a new site "is a stinger," he said. "You’ll never get the favorable vote because the opinion of the public is so divided," Mills contended. "If you take it to a vote, moving the airport loses." Both Erie and Mills said the process is loaded for Lindbergh Field because former state Sen. Steve Peace, who authored the 2002 legislation that put Lindbergh Field under control of the Airport Authority and gave the new agency power to site a new facility, does not want a new airport. Mills noted the Peace said publicly for years that he opposed any new airport, a stance from which he later backed away. "This all started because the Port District started to look for a new airport," Mills said. Peace’s legislation was a reaction, Mills said. Still, Erie and Mills concede that an expanded Lindbergh Field is probably the best answer politically. Proponents of the idea note that about 160 acres of industrial property and a small, but active, military base lie next to the airport and could be part of an expansion. But the Airport Authority’s Craver dismissed the notion that the process favors Lindbergh Field. He noted that even with improvements, Lindbergh Field is expected to reach its capacity in 15 years. With 600 acres and no possibility to configure a second runway that would allow simultaneous landings and takeoffs, Lindbergh Field cannot be the only airport, Craver insisted. At best, Lindbergh Field could complement a second airport, he said. Lindbergh Field is one of the smallest metropolitan airports in the United States. The Airport Authority is searching for a site of 2,800 to 3,000 acres for a new facility. Denver’s airport, one of the country’s newest, occupies about 35,000 acres, most of which are buffer zones. The military bases are proposed to be "enhanced joint-use" projects with extensive new facilities for civilians, although that approach could change if the planned 2005 round of base closures includes one of the five facilities. The Imperial County site could be served by high-speed rail and might be the only potential airport site with significant local support. Sunil Harman, director of airport system planning for the Airport Authority, said the seven finalist sites were selected based on economic feasibility, and potential impacts on people and the environment. The next phase of analysis will be more detailed and consider weather conditions, site constraints, geology, infrastructure availability, market demands and more, Harman said. In November, Congress passed a bill containing $10 million for the second phase of study. "This is a unique process in that it’s being dictated by state legislation," Harman said. That legislation requires voter consent by 2006. Exactly what the Airport Authority will place before voters is unknown. Harman said he expects voters will get multiple choices. Craver promised that airport supporters will run an aggressive political campaign to win voters’ approval for the best option. "There is no question that we will be successful," Craver said. "We all signed on to this process knowing that it is a political minefield. We all know everybody wants a solution but not in their backyards." Contacts: Joseph Craver, San Diego County Regional Airport Authority Board, (619) 299-9950. Sunil Harman, Airport Authority system planning, (619) 400-2461. Steven Erie, UC San Diego Department of Urban Studies and Planning, (858) 534-3083. Airport Authority website: www.san.org

An appellate court has published its opinion of what belongs in the administrative record for a California Environmental Quality Act (CEQA) lawsuit. The decision is the second opinion published in the second half of 2003 that addresses directly the contents of the administrative record under CEQA. The latest decision, in a case from Orange County, concerned the inclusion of 1,800 pages of documents related to an environmental impact report addendum that was never adopted. A unanimous three-judge panel ruled that the material did belong in the administrative record. A section in CEQA — specifically, Public Resources Code § 21167.6, subdivision (e) — "contemplates that the administrative record will include pretty much everything that ever came near a proposed development or to the agency’s compliance with CEQA in responding to that development," the court held. That section of CEQA has been around for years but has received little interpretation in court, said Jack Golden, a deputy county counsel for Orange County. The statute, which refers to internal notes and communications, and the court’s expansive interpretation could scare some public agencies, he noted. "At least we’ll know what the rules are going in now," Golden added. In this case, project opponents sought to block the 1,800 pages of material from inclusion in the administrative record. Orange County Superior Court Judge C. Robert Jameson agreed and eliminated the documents from the administrative record. The Fourth District overturned that decision. "We think we, as the administrative agency, should get to decide what is in the administrative record," Golden said. "As long as we follow the rules, neither the opponents nor the court should be able to veto that." The decision came in the second round of litigation surrounding a controversial project in Trabuco Canyon, an unincorporated area near an abbey and a monastery in the mountains east of Irvine. In 1997, the Orange County Planning Commission certified a final EIR for a proposed 705-unit mobile home development on 222 acres. The Vedanta Society of Southern California, which owns the monastery, appealed to the Board of Supervisors. When one supervisor recused himself, the board split 2-2 on the EIR. The county determined that the tie vote meant the EIR was approved. Over time, the project was downsized to 299 single-family houses and there was a considerable amount of legal wrangling. Eventually, the Fourth District ruled in , (2000) 84 Cal.App.4th 517 (see , January 2001), that the 2-2 vote was inadequate to certify the EIR. For the project to move forward under that ruling, the Board of Supervisors would either have to affirmatively vote for the EIR or order preparation of a new one. Supervisors chose the first option and only an addendum to the 1997 document was prepared. Supervisors subsequently changed their minds and a new EIR was written. The board adopted the new EIR for what had become a 293-unit development in November 2002. The Vedanta Society and two environmental groups brought a fresh CEQA lawsuit over the new EIR. In pursuing the latest lawsuit, project opponents sought to block from the administrative record all of the documents relating to the EIR addendum that supervisors never adopted. The trial court judge agreed, and the county appealed. The appellate court held first that the 299-unit project and the 293-unit project were "substantively the same ‘project.’" And because CEQA is an interactive process that can result in project modifications, there should "be a record of such modifications, not just those documents relating only to the finished product," Presiding Justice David Sills wrote for the court. "If a project has been modified in response to the CEQA process, the logical inference is that the ‘process works’ and the statute is being complied with," Sills continued. "To truncate review to just the project as specified in the ‘final’ EIR not only deprives the court of material bearing on changes made by the process itself, but presumptively loads the dice against project proponents who have much more to lose if anything in the record is held inadequate." Sills cited the other recently published case on this topic, , 110 Cal.App.4th 362 (see , September 2003). In , the Fifth District Court of Appeal overturned Merced County’s approval of a gravel mine because the court found the administrative record in a CEQA suit over the mine to be poorly organized and lacking documentation to support the county’s findings. Both the Fourth District and Deputy County Counsel Golden suggested that the Vedanta Society had learned a stalling tactic from Protect Our Water. "Realistically, we expect an appeal from whatever decision the trial court makes," Sills wrote. "That appeal is part of the rules of the games. But it is not within the rules to build into the legal process the probability of two appeals — one from a decision without the excluded materials, and one from the decision after the first one is ostensibly corrected." An attorney for the Vedanta Society did not return a phone call. The Fourth District sent the case back to the trial court for further proceedings on the merits. The Case: , No. G032843, 03 C.D.O.S. 9651, 2003 DJDAR 12130. Filed October 7, 2003. Ordered published November 5, 2003. The Lawyers: For the county: Jack Golden, county counsel’s office, (714) 834-3357. For Vedanta Society: David Hesseltine, Conner, Blake & Griffin, (949) 622-2600.

The largest development project along the newly extended 210 freeway at the foot of the San Gabriel Mountains is finally proceeding after years of planning and financial difficulty. However, all is not smooth sailing for the Colonies Crossroads project, as a November appellate court order halted grading on a portion of the site because of a fight over flood control facilities. The Fourth District Court of Appeal halted the grading after the San Bernardino County Flood Control District appealed a lower court decision in favor of Colonies Crossroads developers. A trial court ruled that the county no longer controlled easements on the property in Upland, which has been a gravel quarry, flood control basin and groundwater recharge site for decades. After the lower court issued its ruling in August, developers began recontouring flood control facilities and grading for a 1.1-million-square-foot shopping center. The court order halted any work on permanent flood control facilities, but not on interim facilities or the commercial development. However, the extensive grading has all been part of one construction project. The controversy over the flood basin threatens to overshadow the entirety of the development. As approved by the City of Upland, Colonies Crossroads will contain 1.1 million square feet of commercial space and 1,150 residential units, mostly single-family houses, on about 440 acres. Smack in the middle of the project are about 65 acres dedicated to flood control that are also intended to serve as open space for recreation and wildlife habitat. Included are about 25 acres of riparian habitat, a plan that pleased environmentalists. A hotel and several automobile dealerships could also be built, although that portion of the project remains uncertain. City officials favor the project because it will bring sales tax revenue and large new homes to town. During the late 1980s, developer William Lyon won approval for a mostly residential development on the site. The project, known as San Antonio Lakes, proposed nearly 1,500 housing units and a lake. At that time, an extension of the 210 freeway, although long proposed, was seen as a distant possibility, recalled Upland Community Development Director Jeff Bloom. Like many real estate interests, Lyon went bankrupt during the early 1990s and it lost the property. A group of investors calling themselves Colonies Crossroads, Inc., acquired the property about six years ago. By that time, the 20-mile extension of the 210 freeway from its transition to a boulevard in San Dimas to Interstate 15 in Rancho Cucamonga and beyond was becoming a reality. The freeway extension opened in late 2002 (see , January 2003). The freeway made the site more appealing for commercial uses, especially because the site includes a freeway interchange, say the developers and city officials. "We’re trying to get uses and qualities of development that are appropriate to the city," Bloom said. "We’ve lost over the years a lot of shopping to surrounding areas." Plus, he said, the state’s tenuous fiscal condition makes sales tax generation look more appealing than new housing. The new investors broke the project into two phases — a first phase of 305 single-family houses and a second phase of everything else. The first round of homes were intended to generate cash for the next round of development. Standard Pacific and KB Homes have actually built the houses, about 80% of which are complete. Most are 2,700 to 3,500 square feet and carry prices in the $400,000s and $500,000s. Sales have been brisk. The first part of the 105-acre commercial component is intended to be a big-box-style power center, with The Home Depot, Target and Kohl’s as major tenants. Some office space is also included. A "lifestyle center" with restaurants, possibly a movie theater and other features is proposed for the second round of commercial development. The remaining residential portion of the project is divided into 11 tracts, including one devoted to 350 high-end condominiums. Taylor Woodrow Homes has purchased all of the remaining single-family home entitlements. Since the 1980s, the project has drawn consistent opposition from residents of Rancho Cucamonga east of the site and residents of the unincorporated community of San Antonio Heights to the west. Residents in general have complained about the loss of views and open space, and the intrusion of a busy commercial district into a quiet residential area. More recently, litigation has been an obstacle to development. The Cucamonga County Water District and San Antonio Water Company sued over groundwater recharge. Those lawsuits were settled in August when developers and the water companies agreed on the design of new groundwater recharge pits. Earlier this year, Caltrans paid $8 million to settle a lawsuit filed by the developers, who complained that the design of the 210 freeway channeled more floodwater onto the Colonies Crossroad site. The controversy over flood control, however, did not end with the Caltrans’ payment. The county Flood Control District has owned easements on the property since the 1930s and over the years built a series of levies and basins. In 2001, the Colonies Crossroads developers argued that the district had abandoned those easements and that the district must pay for flood control facilities constructed as part of the development. The county contended the easements were still in place and pointed to a 1999 contract it signed with the developers in which the county abandoned its easements in Phase 1 of the project in exchange for certain flood control improvements. In August, San Bernardino County Superior Court Judge Peter Norell ruled for the developers. The cost of the new flood control basin and habitat area is estimated at about $25 million, while the land involved could be worth as much as $1 million an acre. Colonies managing co-partner Jeff Burum has threatened in the press to sue the county for $200 million for the improvements, the land and project delay. Burum did not return messages. "We believe the district has no obligation ," said Deputy County Counsel Mitchell Norton. "We believe what the Colonies should do is abide by the contract." Providing for flood control has always been part of the project’s conditions, Upland’s Bloom said. "The debate is less about what is going to be done than about who will pay for it and how much land will be dedicated to it," he said. Overall, though, Bloom said it has been exciting to see the project move into actual construction after so many years of speculation. Contacts: Jeff Bloom, City of Upland Community Development Department, (909) 931-4130. Mitchell Norton, San Bernardino County Counsel’s Office, (909) 387-5444. Colonies Crossroads website: Colonies Crossroads

Developers are building residences in California at the fastest pace in years. From recent economic reports suggesting a slowing economy, the construction might appear to be risky. But builders are banking on two irrefutable facts: There is no end in sight to the state's population growth, and all of those people need a place to live. According the Construction Industry Research Board (CIRP), 2003 is shaping up to be the best year since 1989 for homebuilders. If CIRB's estimates hold, the industry will erect 188,200 dwellings this year. That represents $37.5 billions in residential permit values across the state. Homebuilding began declining rapidly in 1990, foreshadowing a deep recession in the Golden State's economy. Homebuilding hit bottom during the middle of the 90s before starting a good run in 1997. The turnaround marked the first time that homebuilding became a leading indicator of economic growth, rather than a lagging one. If that pattern holds, the current, sniffling economy may not catch the flu. CIRB expects 2004 to mark another increase in housing starts - this a 5.2% jump. "This strength in homebuilding derives from several factors," said Ben Bartolotto, Research Director for CIRB. "Pent-up demand, record-low interest rates, and continued population growth all fuel the marketplace." Just like in the 1980s, home prices are also on the upward curve and have reached all-time highs in most of the state's sub-markets. And that is another factor that keeps builders building. Embedded in the overall growth in housing starts are some telling regional variations. Whereas all five regional markets tracked by the CIRB showed year-to-date increases in overall homebuilding for the first nine months of 2003, there were two exceptions by housing type: The Bay Area was the only market to log a decrease in single-family dwelling unit starts (-3.3%), while the Central Coast logged the only decrease in multi-family units (-21.5%). During the same period, the San Joaquin Valley marked the largest percentage increases in both single-family building (+26.6%) and in multi-family construction (+127.6%). In raw units, Riverside County built the most single-family houses (19,945) during the first nine months of 2003, nearly 2 1/2 times more houses than second place San Bernardino County. Los Angeles County built the largest numbers of multi-family dwellings (7,673). The figures suggest a number of continuing trends, namely, densification and infilling of the state's urban areas, and an increasing suburbanization of the inland valleys. But these simplistic generalizations mask the hybridization of California's housing market. The fact is that housing construction of every type is happening all over the place. If a city is "built-out" – planners' jargon for a city covered by urban uses and lacking land area on which to expand because of geographic conditions – then recycling of uses to more intensive, multi-family housing is occurring. Everything from high-rise condos in downtown San Diego to live-work loft apartments in Los Angeles and San Francisco are now part of the commercial homebuilding industry. Elsewhere, suburban housing tracts are spreading outward from farm towns in Fresno and Kern counties and formerly rural places. And in many areas, like San Jose and Sacramento, both urban infill/reuse and suburban growth on the fringes are happening at once. "There is no ignoring the single most important factor fueling housing construction, and that is the ever growing population of California," said Mark Geiberson of the California Association of Realtors. And that is perhaps the real point. While Governor Schwarzenegger blames Gray Davis for sinking the economy and vows to turn it around, one might wonder which economy Schwarzenegger is referring to. With housing construction projected to top $39 billion in 2004, thereby marking nine straight years of growth, and with population growth remaining a constant, maybe the economy is just fine. Housing Starts in California Year: Single-family / Multi-family / Total / Value in constant $ (billions) 1990: 103,819 / 60,494 / 164,313 / $28,213 1995: 68,689 / 16,604 / 85,293 / $17,257 2000: 105,595 / 42,945 / 148,540 / $30,179 2001: 106,902 / 41,855 / 148,757 / $30,171 2002: 123,865 / 43,896 / 167,761 / $33,998 2003 (estimate): 134,000 / 54,200 / 188,200 / $37,509 2004 (forecast): 138,500 / 59,500 / 198,000 / $39,072 Housing Start, first 3 quarters of 2003 Region: Single-family / Compared with 2002 / Multi-family / Compared with 2002 So. California: 49,793 / +16.3% / 23,396 / +27.6% SF Bay Area: 10,686 / -3.3% / 9,899 / +68.0% Sacramento Valley: 17,037 / +0.3% / 3,704 / +34.6% San Joaquin Valley: 20,245 / + 26.6% / 2,053 / +127.6% Central Coast: 3,764 / +16.7% / 991 / -21.5% Rest of state: 3,371 / + 15.3% / 472 / +60.5% CA totals: 104,896 / + 12.8% / 40,515 / +37.5%

A lawsuit contesting the environmental study for the Cal-Fed Bay-Delta project may proceed, the Ninth U.S. Circuit Court of Appeals has ruled. The three-judge appellate panel overturned a district court that ruled the lawsuit was filed too early and threw it out. The Ninth Circuit ruling means the lawsuit filed by the California Farm Bureau Federation and three farmers may go forward in federal court. The farmers contended that the combined environmental impact statement/environmental impact report (EIS/EIR) did not consider reasonable alternatives to the proposed conversion of farmland to environmental uses, failed to consider Cal-Fed’s impact on agricultural resources, and provided an inadequate analysis of mitigation options. The Farm Bureau and other Cal-Fed opponents praised the Ninth Circuit’s decision to overturn the lower court. The Ninth Circuit, however, did not consider the merits of the Farm Bureau’s arguments. Rather, the Ninth Circuit sent the case back to the district court for consideration of the merits. A similar case challenging the EIS/EIR under the California Environmental Quality Act is alive in state court. Cal-Fed is a cooperative undertaking involving 18 state and federal agencies responsible for the San Francisco Bay and Sacramento-San Joaquin Delta. The project seeks simultaneously to restore the Bay-Delta ecosystem and improve the quality of water available for urban uses. Farmers have feared for most of Cal-Fed’s nine years of existence that they would be the ultimate losers under the plan. The essential questions before the Ninth Circuit were whether the Farm Bureau and the three farmers had legal standing to file the lawsuit, and, if so, whether the lawsuit was ripe for judicial review under the National Environmental Policy Act. The Ninth Circuit ruled that the farmers had standing to bring the lawsuit because they could be injured by "the loss of affordable irrigation water for their agricultural lands." The plan selected by the EIS/EIR would convert some agricultural lands to other uses and reallocate the water elsewhere, the court noted. Because the individual farmers had standing, it did not matter whether the Farm Bureau had standing, the court determined. The court then addressed the issue of whether the EIS/EIR was ready — or "ripe" — for judicial review. District Court Judge Oliver Wanger ruled that the issues were not ripe because the EIS/EIR did not amount to a final agency action. The EIS/EIR and the Record of Decision (ROD) "simply outline a program" and review by the court would have to await a site-specific action, Wanger ruled. The Ninth Circuit rejected Wanger’s reasoning and pointed directly to the Cal-Fed Record of Decision, which stated the "EIS/EIR represents the culmination of the National Environmental Policy Act (NEPA) and California Environmental Quality Act (CEQA) processes. The ROD reflects a final selection of a long-term plan (preferred program alternative), which includes specific actions, to fix the Bay Delta, describes a strategy for implementing the plan, and identifies complementary actions the Cal-Fed agencies will pursue." "Therefore," wrote Ninth Circuit Judge Sidney Thomas, "because the ROD pre-determines the future through the selection of a long-term plan, to the exclusion of others which will not be among the available options at the implementation phase, it is ripe for review." Thomas cited , 956 F.2d 1508 (1992), in which the Ninth Circuit ruled that an EIS for a proposed wilderness designation was ripe for review because "a future challenge to a particular, site-specific action would lose much force once the overall plan has been approved — especially if the challenge were premised on the view that the overall plan grew out of erroneous assumptions." In both the current case and in Idaho Conservation League, the EIS set out a preferred program alternative to guide subsequent site-specific actions, Thomas noted. "As we noted in , ‘if the agency action only could be challenged at the site-specific development stage, the underlying programmatic authorization would forever escape review.’" The Ninth Circuit sent the Cal-Fed EIS/EIR back to the District Court for such a review. Additionally, the Ninth Circuit directed the District Court to consider whether state actions under Cal-Fed may be challenged in federal court, and directed the court to allow further discovery on the question of federal court jurisdiction over state defendants. The Case: , No. 02-15104, 03 C.D.O.S. 8177, 2003 DJDAR 10195. Filed September 8, 2003. The Lawyers: For Laub: Brenda Jahns Southwick, California Farm Bureau Federation (916) 561-5660. For Interior: Silva Quast, Department of Justice, (202) 514-2000. For the state: Gordon Burns, attorney general’s office, (916) 324-3081.

The wildfires of late October and early November – which some fire experts claim were the worst in the state’s history – have stimulated a whole new round of debate about whether and how to permit urban development in areas with naturally high fire risk. Local government officials throughout Southern California are responding to the conflagration with a variety of steps designed to increase firefighting capacity and possibly building standards. Meanwhile, state building and fire officials are also taking potentially important steps that could lead to stricter building and development standards. At the center of this debate, however, lies a fundamental question that always confronts California when development and nature collide: Avoidance, minimization, or mitigation? On the fire question – as with earthquake hazards, wetlands, and any number of other environmental issues – the scales are tilting pretty clearly toward mitigation. The choice on fire risk mirrors the choice embedded in wetlands regulations, but fire is a different kind of a natural resource consideration. Wetlands regulations provide the three choices of avoidance, minimization, and mitigation, and it is clear which alternative is preferable. The best alternative is to avoid any damage to wetlands altogether by channeling development elsewhere. Second-best is to minimize the damage through a sensitive design that takes out the smallest amount of wetlands possible. Last on this list – but still acceptable under some circumstances – is mitigation, which essentially means trying to make up for the loss of wetlands by taking steps to rebuild or enhance other wetlands on-site or elsewhere. California’s fire managers would like urban development to follow the same hierarchy in fire hazard areas. The California Department of Forestry and Fire Protection has long sought to persuade rural local governments to deny subdivisions in forests and other high fire-risk areas – thus adopting avoidance as the preferred strategy. The state’s fire managers claim that avoidance allows them to do their job better because the presence of structures in the vicinity of a fire forces firefighters to alter their entire strategy from controlling the burn to protecting the structures. But knowing that a hillside might burn at some time in the future is not the same as seeing a marsh full of birds. With fire safety, avoidance has always been a tough argument to win. Plus, people like to live in pretty places, and most pretty places in California are prone to fire. Additionally, rural county governments are loathe to restrict development in ways that appear anti-property rights. Finally – and perhaps more importantly in the 21st Century – California has become so populous that it is probably impossible to accommodate more growth without putting a lot of people in the path of fires. Over the last two decades, California’s population growth has driven new development deeper and deeper into natural wildlands previously undisturbed by human habitation. A generation or two ago, new development in California took place primarily on agricultural land where farmers had already altered many natural resources and natural hazards by leveling the terrain and removing native plants. This is still true in the Central Valley, but in our largest metropolitan areas, little farmland remains on which to build. In Southern California, the "urban-wildland interface" now encompasses a vast ring on the interior edge of the region stretching from the Antelope Valley through San Bernardino and Riverside Counties down to the rural area of eastern San Diego County, which was especially vulnerable in the recent fires. Given California’s continued population growth – somewhere in the vicinity of half a million people a year, with more than half of that in Southern California – it is inevitable that more and more people will have to live in close proximity to fire risk. In that sense, the urban-wildfire debate is not so much like wetlands as it is like earthquakes: You can’t live in California without taking the risk, so you have to manage the risk through mitigation measures. Over the past century, mitigating the risk of earthquake damage in California has been a remarkably successful enterprise. Buildings today are much larger – and yet, at the same time – much safer than they used to be. Indeed, one of the safest places to be during a massive earthquake might be in a brand-new skyscraper in downtown San Francisco. Our state regularly withstands major earthquakes – quakes that would kill tens of thousands of people elsewhere in the world – with very few deaths or injuries. Is it possible to foster that same kind of transformation with fire risk? Such a shift might seem unlikely at first, but it is clearly the direction that California’s public policy is moving. Shortly before the fires, then-Governor Gray Davis signed a bill carried by Assemblyman Juan Vargas (D-San Diego) requiring stricter building standards in high fire hazard areas. Experts say the standards are likely to require the use of fire-resistant materials for all exterior portions of a building, not just the roof. Better management of vegetation in residential areas is also on the rise; the recent fires have caused renewed interest in Oakland for a vegetation-management assessment district in high-fire-risk areas. The experience of the recent wildfires will likely give more fuel, so to speak, to the mitigation argument. The poster child for fire risk in the recent events was Scripps Ranch, the upscale development in San Diego where a lack of fire mitigation measures seemed to contribute to the destruction of hundreds of homes. By contrast, the poster child for fire safety was Stevenson Ranch near Santa Clarita, a classic new Southern California development that was punched into the urban-wildland interface. Built with a wide variety of mitigation measures — vegetation clearance surrounding the subdivision, eaves sealed with stucco, a system that allows firefighters to pump swimming-pool water — Stevenson Ranch suffered little damage even though a huge fire traveled for miles literally to the doorstep of Stevenson Ranch houses. Whether we like it or not, it appears that more houses will be built in high fire risk areas in California during the 21st Century. Mitigation may not be preferable to avoidance as a concept. But with 40 million Californians on the horizon, it may be the inevitable approach.

The administration of new Governor Arnold Schwarzenegger started coming together in November, but Schwarzenegger’s appointments were as difficult to peg as the new governor himself. Schwarzenegger has sprinkled his administration with moderates and Democrats, and he counterbalanced those appointments with business-oriented veterans of the Wilson administration. At the same time, not everyone has said yes to the new governor. He has had difficulty filling two key planning and development slots, Resources Agency secretary and Caltrans director. As went to press, most of Schwarzenegger’s key planning and development appointments were in places, including the following: • Environment Now President Terry Tamminen as secretary of the California Environmental Protection Agency – a controversial move but one that Schwarzenegger boxed in with two business-oriented subcabinet appointees. • Democrat Sunne Wright McPeak, head of the business-oriented Bay Area Council and a former Contra Costa County supervisor, as Business, Transportation, and Housing secretary. • Michael Chrisman, a Central Valley farmer, Southern California Edison official, and former Wilson political appointee, as Resources Agency secretary. Chrisman was reportedly Schwarzenegger’s third choice at least. As was headed to press, Schwarzenegger still had not named anyone to lead Caltrans and the Department of Housing and Community Development – both departments that will operate under McPeak’s leadership as BTH secretary — nor the Governor’s Office of Planning and Research. At least one potential Caltrans director has reportedly turned down that job, at least partially because the $120,000 annual salary would have been a substantial pay cut. Many regional transportation agencies pay far more than state department head jobs. The appointment of McPeak in particular matches what appears to be something of a "smart growth" approach within the new administration. A platform paper issued shortly before Schwarzenegger took office spoke of restoring urban environments. The paper stated, "Working with local officials, my administration will develop an infill incentives package to help local governments deal with the jobs/housing imbalance throughout the state and to spur smarter development by providing a mechanism for planners to identify and evaluate redevelopment of blighted and underutilized sites, allowing cities to accommodate mixed use, compact development and urban infill while curtailing urban sprawl." Epitomizing the mixed bag of appointments is Cal EPA. Schwarzenegger named veteran Santa Monica environmental activist Tamminen to the EPA secretary’s slot, apparently on the advice of his wife’s cousin, New York environmental activist Robert F. Kennedy Jr. Kennedy and Tamminen have worked together on the river, bay, and coast "keeper" watchdog efforts. Yet the governor appointed Wilson veterans James Branham as undersecretary and Maureen Gorsen as deputy secretary. As undersecretary for the Resources Agency during the Wilson years, Branham helped negotiate the state’s most expensive land purchase ever — acquisition of the Headwaters Forest in Humboldt County from Pacific Lumber for $480 million. After leaving state government, Branham became director of external relations for Pacific Lumber. Complaining of a revolving door in Sacramento, environmentalists called the appointment "outrageous." But logging industry representatives praised the move. Since leaving her post as general counsel for the Resources Agency in the Wilson administration, Gorsen has worked for the downtown Los Angeles firm of Weston, Benshoof, Rochefort, Rubalcava & MacCuish, where she did work for real estate and development interests. How — and whether — this team of three will mesh at Cal EPA has many people talking. "This does raise some eyebrows and prompt some concern," Sierra Club lobbyist Bill Allayaud told the Los Angeles Times. "Terry is in charge, but to have Branham right below him is a concern." McPeak’s appointment might be the most intriguing so far. A Bay Area Democrat, McPeak has been active in civic affairs since the 1970s. She served four terms on the Contra Costa County Board of Supervisors before leaving in 1993. More recently, she was executive director of the Bay Area Council, which has a reputation as one of the more progressive business advocacy groups in the country. "As someone who has worked on transportation, business and housing policy for most of my adult life, this was an opportunity too good to pass up," McPeak said in a written statement. Under McPeak’s leadership, the Bay Area Council helped establish the Bay Area Alliance for Sustainable Communities, which produced a "Compact for a Sustainable Bay Area" earlier this year. To implement the compact, the Bay Area Alliance launched the "regional livability footprint project" for the nine-county region. All of this work is based on what are known as the "three Es" of sustainable development — a prosperous economy, a healthy environment and social equity. Gary Binger, director of the Urban Land Institute’s California Smart Growth Initiative said he was surprised and "very pleased" by McPeak’s appointment. "She is a very strong advocate for housing and really understands how that issue works and what the challenges are," he said. Binger recalled that McPeak supported as a county supervisor a transit-oriented development proposed near the Pleasant Hill BART station at a time when such projects were not widely understood. In an editorial railing against an "elitist smart growth agenda," the said, "On balance it’s not completely clear what the incoming governor — or at least his eclectic group of aides — means when he talks about ‘smart growth.’" How far McPeak can carry any agenda is in question partly because of state budget constraints. Shortly before Thanksgiving, Schwarzenegger proposed that about half of $1.9 billion worth of mid-year spending reductions come from Business, Transportation and Housing Agency programs, including suspension of a number of in-progress transportation projects. The new administration has also had to work past some rejections. Schwarzenegger named Chrisman to head the Resources Agency after at least two other people turned down the job. Former state lawmaker and Secretary of State Bill Jones said no to the Resources Agency post after Republican Congressman David Dreier announced that he would not run for U.S. Sen. Barbara Boxer’s seat, clearing the way for a Jones campaign. And Jones was reportedly the second person to say no to the job. Chrisman’s appointment did not bring out strong opinions one way or the other. Environmentalists made clear their displeasure with the possibility naming of Jones as Resources secretary, but they were subdued in response to Chrisman’s appointment — even though Chrisman, on the surface, looks very much like Jones. Both are Republicans who own and help run family farms in the Central Valley, and Chrisman was Jones’s chief of staff when Jones was an Assemblyman. In carrying out numerous purchases and land and easements, the Davis administration’s Resources Agency made preservation of environmentally and politically sensitive open space a priority. Whether that approach will continue under Schwarzenegger is unclear. The new governor’s first budget proposal would halt new deals under the state’s Natural Heritage Preservation Tax Credit program administered by the Wildlife Conservation Board. The program grants tax credits to landowners for the donation of land and easements (see , March 2002).

In this age of the embarrassingly intimate personal disclosure, I think it is time to come clean about my own personal vice: I am obsessed with housing density. Obsessed. Do not try small talk with me at a Christmas cocktail party because I am likely to start expounding on "units per acre," a topic which makes even public relations people scatter like confetti in a wind tunnel. I am, in fact, a housing nerd. Boring or not, there is an urgent need to create attractive, medium-to-high-density neighborhoods for California's ballooning population. At the Rivermark subdivision in the city of Santa Clara, three of the largest homebuilders in the country - Lennar, Centex and Shea Homes - come surprisingly close to satisfying my density obsessions. Housing comes in six different "products," from "large-lot" single-family homes to town houses and apartments. One hundred units of affordable housing are included in Rivermark, as are a K-8 grade school, a public library, an 18-acre park and scattered pocket parks. The 1,900-unit development fills about 152 acres formerly occupied by the Agnews State Hospital; Sun Microsystems has taken over the remaining 80 acres. The overall density of the project is 20 units per acre, which is at least twice the prevailing density in the surrounding neighborhoods. At its highest level, the density rises to 50 units per acre. Rivermark has been praised as a progressive project for providing some New Urbanist-inspired architecture, affordable housing and open space. Architecture critic Alan Hess, however, seemed less impressed, describing Rivermark in the San Jose as "just one more step in evolving and perfecting the art of suburbia." The project has "taken existing ideas and made them more sophisticated, more effective," according to Hess. Rivermark is an uneasy amalgam of urban and suburban. Resisting the suburban label, master plan architect Mark Day rightly points out that the master plan has urban formality and urban densities. In fact, the project has a pedestrian orientation, houses with recessed garages and a combination of housing types and income levels - all plusses on the urban side of the score sheet. What Rivermark fails to deliver, however, is a thoroughgoing urbanism. Like many master plans both urban and suburban, Rivermark is more or less a self-contained island. The site plan looks inward. Few streets connect Rivermark to the surrounding community beyond the arterial roads that define the four sides of the property and the existing Agnew Road. The retail portion of the project is a formula-driven "neighborhood center," all clumped together in its own realm. By falling back on formula, the developers have missed the opportunity to create a public shopping street stretched out along a boulevard. This failure to fully develop streets as public places is the most notable failure of the plan because urban character and coherence largely depend upon streets. In a similar way, several large-scale multi-family developments are isolated in the northwest corner of the plan and situated on their own "super-blocks," rather than being arranged as more linear projects that front on a major street. There is, again, a lost opportunity to use streets to unite different housing types. And there is a failure to take full advantage of the library-school-park complex as a genuine public place. This is a set of civic buildings that needs to be played up as the of this neighborhood, with a conspicuous courtyard. But the site plan, at least the way I am reading it, does not exploit this grouping to make it stand out dramatically from its neighbors. We need a public space to mark the public nature of these buildings. Rivermark also raises the growing tension between the California imperative for the detached, single-family home and the drive to create greater housing density overall. Despite the many parks inside the Rivermark plan, Hess has written about the "claustrophobic" feeling of houses on very small lots, which I believe is the result of shoe-horning single-family homes into increasingly small lots. At least some of Hess's claustrophobia might be relieved by consolidating much of the housing into townhouses or courtyard housing, and arranging it along streets, while upping the number of parks and other spaces, such as esplanades that would run down the center of streets. This approach would have the dual effect of making the housing less claustrophobic, by replacing the sense of crowding with one of continuity. Of course, many of the affluent young homeowners of Silicon Valley would rather live in a detached house, no matter how cramped, than in row housing. In this way, Rivermark is a case where California confronts the conflict between the traditional single-family home and the need to increase residential densities. Single-family housing remains a resonant symbol of independence and affluence, but the notion of "high-density" detached housing may have its limits. For all their virtues, the symbols of comfort at Rivermark - such as yards that are shrunk to postage-stamp size - may work against actual comfort. To criticize the critic, I am probably failing to acknowledge that home building is a conservative, market-driven business, to which change comes very slowly, just as slowly as any change comes to society as a whole. I do not demonize homebuilders. Their goal is to promote urbanism only so far as it helps them build and sell houses. That is the narrow role of homebuilders in a free market economy. Rivermark is praiseworthy for advancing certain ideas in home-building, and it is encouraging that the middle-of-the-road homebuilders are thinking in progressive ways because it is the middle-of-the-roaders who ultimately build our cities. We cannot complain entirely when we leave critical decisions in city making largely up to developers whose goals are only tangential to urban design. The making of neighborhoods that can grow into delightful places is the result of a larger public discussion, and in changing the tastes of the housing "consumer." For the time being, Rivermark is the better mousetrap. But as the boring housing nerd at the Christmas party will tell you, sometimes better is not good enough.

Competing desalination projects — one public, one private — have been proposed to serve the thirsty Monterey Peninsula. In the northern corner of the county, the private California-American Water Company, or Cal-Am, wants to build a desalination plant next to a power plant. On the peninsula, the Monterey Peninsula Water Management District (MPWMD) is proposing to build a similar project in Sand City. Only one of the projects is likely to be built. The state’s Public Utilities Commission favors the Moss Landing project. Both desalination projects are designed to replace water that Cal-Am has pumped from the Carmel River. In 1995, the State Water Resources Control Board ruled that Cal-Am did not have valid rights to 70% of the water. Cal-Am was ordered to reduce its water use immediately, and a 20% water cutback has been in effect for peninsula water customers ever since. The mandatory rationing impacts about 110,000 residents of the region, which includes the cities of Monterey, Seaside, Sand City, Del Rey Oaks, Pacific Grove and Carmel, along with nearby unincorporated areas. The area gets no water from the State Water Project. Although Cal-Am provides water for the region, state legislation passed in 1978 created the MPWMD to manage water issues, develop additional supplies and oversee agencies that provide water. The district provides no water service, and if it builds the Sand City desalination plant, the district could turn over operations to Cal-Am, said Andy Bell, district engineer. Cal-Am initially proposed damming the Carmel River, but environmentalists fought the plan. In 1995, 57% of district voters rejected the proposed 24,000-acre-foot New Los Padres Dam. Two years earlier, they also gave a thumbs down to a desalination plant. Henrietta Stern, project manager with the district, said district voters turned down desalination by a close vote in 1993 because they thought they would be approving a dam soon. But 10 years later — and after years of rationing — the ballot box results could change. In recent years, both state and local officials told Cal-Am they would not approve a dam for environmental reasons. Cal-Am announced in February the proposal to build a desalination plant at Moss Landing, which is located outside of the water district that it serves. Under the legislation that created the MPWMD, voters get a chance to vote on water issues, according to Stern. But because Moss Landing is outside the district’s boundaries, voters will not be able to cast ballots on the project. Further taking the project out of local control, the PUC has become the lead agency in preparing the environmental impact report for the Moss Landing project, a role that the County of Monterey had asked to handle. A PUC administrative law judge ruled in the PUC’s favor, a position supported by Cal-Am. The county has appealed that decision to the Governor’s Office of Planning and Research, according to Stern. The PUC suggested the Moss Landing desalination plant after a state law passed in 1998 that required the commission to come up with alternatives to building a dam on the river. The PUC came out in favor of desalination — first suggesting the Sand City site in a draft report, then choosing Moss Landing in its final report, Stern said. The Sand City plant would take its water from below sand near the ocean, avoiding potential harm to small sea organisms. But the PUC’s 2002 report rejected the Sand City site because of “limited seawater production capacity along the beachfront,” and because of concerns about brine disposal and getting permits for using California Parks and Recreation land. But the Moss Landing proposal also faces obstacles. A desalination plant at Moss Landing would have a ready supply of electricity because of infrastructure located there for a recently expanded Duke Energy power plant, which is the state’s largest. The water used to cool the power plant’s engines could be used to dilute brine discharges from the desalination process. But water pipes into a Moss Landing desalination facility would have to filter out plankton and other sea life. In addition, a pipeline would have to be built to send water to customers on the peninsula. Neither of the desalination plants provides any water for future growth, according to Stern and Meg Catzen, project director for Cal-Am. But county officials have indicated an interest in getting more water, Catzen said. “The county hasn’t asked us for a defined amount of water,” she added. The Sand City project would generate 8,400 acre-feet of water a year, and Moss Landing would generate 9,400 acre-feet a year. Residents of North Monterey County have voiced opposition to the new construction in Moss Landing which, so far, is offering no benefit to them. “In North County, we do not have a feeling or opinion that we have any local control over what’s happening to us,” said Carl Chase of Prunedale, a member of the North County Citizens Oversight Coalition. Although the cost of desalination has decreased in recent years (see CP&DR Trends, February 2002), both plants in Monterey County are expected to cost between $150 million and $200 million to build, Stern said. By comparison, a smaller desalination plant built in Santa Barbara during the early 1990s cost $34 million. Stern defended the Sand City project as simpler and contended it would not involve regional issues that could affect the Moss Landing plan. An EIR for the Sand City project is underway and voters could be deciding on the project in November 2004. Catzen said the initial environmental studies for Moss Landing could take more than a year to complete. The California Coastal Commission recently released a report on desalination, noting that two dozen desalination projects are proposed along the state’s coast. It said that application of the Coastal Act to projects will differ depending on whether the project is a public or private facility. “The Coastal Act is based on the coastal resources of California being public resources, and the consumptive use of seawater by private interests will require thorough evaluation and adequate assurances that public uses and values will be protected,” the report said. The study said that marine life could be affected by water intake and brine discharges. But it said both can be mitigated by proper design, siting and operations. Both of the proposed desalination sites in Monterey County are near the Monterey Bay National Marine Sanctuary, and “you cannot build new outfalls or new intake pipes in the sanctuary area,” Stern said. Contacts: Henrietta Stern, project manager, Monterey Peninsula Water Management District, (831) 658-5600. Meg Catzen, project director, California-American Water Company, (831) 646-3206. California Coastal Commission desalination report: http://www.coastal.ca.gov/energy/Th9b-8-2003.pdf

A redevelopment agency may sue a landowner to force cleanup of contaminated property within a redevelopment project area, the Fourth District Court of Appeal has ruled. The court further held that the redevelopment agency need not have expended resources on the cleanup before filing a lawsuit. The Polanco Redevelopment Act “expressly provides redevelopment agencies with the power to take ‘any actions’ necessary to remove hazardous substances from ‘property within a project area, whether the agency owns that property or not,’” Justice James McIntyre wrote for the court. “Nothing within the act requires a redevelopment agency to sustain ‘injury’ through the actual payment of costs in order to compel a responsible party to remediate contaminated property within its territory.” The property in question is the Campbell Shipyard and an adjacent parking lot, which the San Diego Unified Port District proposed to develop for a convention center hotel. San Diego Gas & Electric Co (SDG&E), previously operated a manufactured gas plant near the property. In 1995, the San Diego Regional Water Quality Control Board issued a cleanup and abatement order for the parking lot because of contaminated soil and groundwater. The San Diego Redevelopment Agency contended that SDG&E’s gas plant caused the contamination and, therefore, SDG&E was the “responsible party” for cleanup under the Polanco Act. But, apparently, no cleanup was forthcoming. In 2001, the Redevelopment Agency and the Port District signed a joint powers agreement (JPA) primarily for the purpose of cleaning up the site and identifying responsible parties. The agency then sent SDG&E a 60-day notice identifying the utility as a responsible party and asking how it would clean up the site. The utility did not respond, so in November 2002 the agency filed a lawsuit seeking to compel SDG&E to remove the hazardous substances. San Diego County Superior Court Judge Sheridan Reed ruled for SDG&E, finding that the Polanco Act did not authorize the agency’s lawsuit and that because the JPA immunized the agency from direct costs, the agency had no standing to file a lawsuit. The agency appealed, and a unanimous three-judge panel of the Fourth District, Division One, overturned the lower court. The appellate panel answered two questions: Does the Polanco Act allow redevelopment agencies to bring lawsuits to compel parties to remedy environmental contamination within a project area? If so, does the redevelopment agency have to show financial injury or damage to win the case? The answers were yes to the first question, and no to the second. A reading of the statute and of the legislative history supports the conclusion that the agency may file the lawsuit to compel action by SDG&E, the court ruled. SDG&E argued that a plain reading of the law and the legislative history supported the opposite conclusion, but the court ruled that the utility relied on its own interpretation and “provided no authority to support its assertion.” State law promotes redevelopment of blighted areas by remedying “injurious conditions through the employment of all appropriate means,” Justice McIntyre wrote, citing Health and Safety Code § 33037, subdivision (a). “The existence of hazardous waste on a property is considered to be a blight-causing condition that permits a redevelopment agency to use its authority under the act,” he wrote. Moreover, the Polanco Act gives the agency specific authority to take “any actions” to remove hazardous substances within a project area. “Thus, the plain language of the act allows a redevelopment agency to compel a responsible party through a civil action to remedy or remove hazardous substances,” McIntyre wrote. The court then dealt with the issue of whether the Redevelopment Agency had to show it had sustained injury — namely, spent money — because of the contamination before filing the lawsuit. SDG&E said yes, but the court said no and again pointed to the language of the statute. The court also rejected the argument that the agency-port district JPA — which assigned all costs to the port district — prevented the agency from suing SDG&E. The Polanco Act gives the agency the right to seek a court order, and a separate contract “does not affect this right,” the appellate panel ruled. The Case: , No. D041882, 03 C.D.O.S. 7955, 2003 DJDAR 9876. Filed August 28, 2003. The Lawyers: For the Redevelopment Agency: Linda Beresford, Foley & Lardner, (619) 234-6655. For SDG&E: C. Larry Davis, Sempra Energy, (619) 696-2000.

Two Oakland ordinances that crack down on shoddy motels have been upheld as constitutional by the Ninth U.S. Circuit Court of Appeals. The unanimous three-judge panel rejected contentions from motel owners that the ordinances were an unconstitutional taking, denied the owners their due process and equal protection rights, and were too vague. After years of wrestling with illegal activity in and around run-down motels, the Oakland City Council in 1999 adopted two ordinances aimed at improving the physical condition of motels and rooming houses. Ordinance No. 12136 required regular housekeeping, proper security and good record-keeping. Ordinance No. 12137 placed all legal, nonconforming motels into a new "deemed approved hotel program" that required all such motels to abide by the other ordinance or face misdemeanor prosecution and possible closure. The Hotel & Motel Association of Oakland and a number of motel owners challenged the new laws on constitutional grounds. District Court Judge Thelton Henderson upheld the ordinances. The motel owners appealed but got no further at the Ninth Circuit. The appellate panel ruled that the takings claim — based on motel owners being denied economically viable use of their land — was not ready for judicial review because the owners had never sought state administrative or judicial remedies. The court also rejected the argument that because they did not advance a legitimate state interest, the ordinances amounted to takings. "Based on legislative findings, the ordinances target an increasing concentration of illegal activity, unsanitary and dangerous conditions, and a variety of nuisances associated with problem hotels," Justice Margaret McKeown wrote. "The purpose is undeniably legitimate … and the means chosen substantially advances that purpose." The court quickly disposed of due process and equal protection claims because the city ordinances applied to all hostelries in town. As for the vagueness argument, the court held that the motel owners had to prove that there was no set of circumstances in which the ordinances would be valid. The motel owners failed that test. The Case: , No. 02-15220, 03 C.D.O.S. 8496, 2003 DJDAR 10613. Filed September 17, 2003. The Lawyers: For the association: Frank Weiser, (213) 384-6964. For the city: Arlene Rosen and Christopher Kee, city attorney's office, (510) 637-0360.