Infill development is increasingly the best — or only — option for landlocked and built-out cities to add housing. However, estimating where and how much infill housing could realistically be developed are challenges. Many city planners identify vacant lots but cannot say with certainty that the lots will be developed. And the definition of "underutilized" varies from expert to expert. As a result of the imprecision and varying approaches, the state Department of Housing and Community Development (HCD) is hesitant to credit cities for infill estimates in their housing elements. Without those potential infill units, some cities have a great deal of trouble documenting that they can accommodate their fair share of regional housing. To tackle this problem, Solimar is working with the non-profit group Environment Now and the City of Los Angeles to develop a standard methodology that estimates realistic infill housing potential well enough to count towards meeting state-mandated Regional Housing Needs Allocation (RHNA) targets. Our goal is to distribute the methodology to cities and counties so that local governments may receive more credit for feasible and likely infill housing development in future rounds of housing element updates. Our methodology, which is still evolving, starts with local planners designating infill study areas (ISA). These are census-block-based neighborhood areas with similar zoning and common housing ages and types. Planners characterize the ISAs based on 11 criteria (see chart) leading to a series of ISA types, such as "postwar, low-density, single-family development with poor transit access," or "commercial and small apartments along transit arterials." Each infill study area's current and potential housing are calculated using Census 2000 housing counts, post-Census permit records, and zoning. The next step is to apply quantifiable and feasible infill strategies targeted to ISA types, while still reflecting zoning. This is where the City of Los Angeles comes in. We are developing and testing infill strategies on 519 ISAs identified by Los Angeles city planners earlier this year. Strategies being developed are aimed at both market-driven situations and those needing government action such as a change in design standards. The strategies do not necessarily include changing zoning or subsidized development. The strategies that are most quantifiable and financially feasible are being "formulized" by Economic Research Associates so that the strategies translate into identifiable increases in housing densities. The idea is that a planner in any urban city or county could apply a strategy to target ISA acreage, and the formula would produce a theoretical increase in housing units. In reviewing housing elements, HCD would then credit cities and counties for some or all of the estimated infill housing identified by this methodology. Cities and counties would need to monitor the success of the strategies and report on their success. The methodology will be relatively inexpensive and easy to use with a companion manual and sample documents. The process could be done without a geographic information system (GIS) in small cities, but the methodology is designed for a GIS system based on ArcView 3.3, an Access database, TIGER census files, and typical building permit databases. The methodology could be combined with other planning efforts, such as brownfield reuse, vacant lot inventories, and redevelopment. The methodology is still evolving, but it is promising and should help cities and counties realistically estimate infill housing enabled by specific government actions and housing that should occur as a result of market-driven activity. The main goal is to get local planners, state housing officials and developers all on the same page.

The First District Court of Appeal has published its decision upholding a slow-growth initiative approved by Alameda County voters in November 2000. The decision to publish the opinion regarding Measure D came after the court rejected developers' challenges early this year, reconsidered that decision, and then stood by its ruling in an unpublished opinion issued July 1. The lengthy ruling published at the end of July rejects developers' contentions that the initiative broke the single-subject rule, violated state housing law and was an unconstitutional taking of land. Nearly three years ago, 57% of Alameda County voters backed Measure D, a Sierra Club-sponsored initiative that drew tight growth boundaries around cities and unincorporated communities in central and eastern Alameda County (see , December 2000, October 2000). Importantly, the boundary excluded the territory of the North Livermore specific plan, where the City of Livermore, the county and developers had constructed a plan for 12,500 housing units (see , June 2000). After the election, Shea Homes and one landowner, the Lin family, filed a lawsuit alleging the election and planning law deficiencies while Trafalgar, Inc., filed a separate suit that also included a takings claim. The trial court ordered the lawsuits combined and then ruled against the developers. Shea, the Lins and Trafalgar appealed, and a unanimous three-judge panel of the First District, Division Five, upheld the lower court. The First District first dealt with the argument that Measure D violated the single-subject rule found in Article II, section 8(d) of the state constitution. The developers argued that Measure D on one hand tightened the urban growth boundary and altered land use designations, while on the other hand the initiative amended the county's solid waste management policies, in part by prohibiting the planning of landfills with more than 15 years of capacity. Developers argued land use and garbage policies were separate subjects. The court disagreed, citing Measure D's "numerous findings pertinent to its stated purpose." Those findings included the necessity of protecting open space, the uneconomical nature of scattered development, the environmental degradation caused by "sprawl," the environmental impact and ugly nature of landfills, and the ability of recycling to reduce the need for land disposal of trash. "Given these findings, the provisions of Measure D that limit landfills and require the county's Board of Supervisors to conform and coordinate East County Area Plan solid waste policies and those of other county agencies (the Recycling Board and the Waste Management Authority) are eminently germane to Measure D's purpose of enhancing and protecting the open space and agricultural lands of East County and the Canyonlands," Presiding Justice Barbara Jones wrote for the court. In fact, state law requires general plans to designated land for solid and liquid waste disposal facilities, she noted. The intent of the single-subject rule "is to avoid voter confusion and subversion of the electorate's will," Jones continued. "An initiative that is entitled ‘Save Agricultural and Open Space Lands' reasonably and naturally encompasses provisions that will (1) limit a use of the land at issue, such as a landfill, that is incompatible with this title, and (2) promote an activity, such as coordination of solid waste recycling and management, that fosters this title by reducing a cause for encroachment on open space." The court then considered developers' arguments regarding state housing law. At issue were four sections of the Government Code — § 65913.1, which requires a housing element to designate sufficient land for residential uses to meet housing needs; § 65008, subdivision (c), which prohibits the county from discriminating against low- and moderate-income residential development; § 65584.5, which allows one jurisdiction to transfer some of its share of regional housing needs to another jurisdiction only if certain conditions are met; and § 65915, which requires the county to grant a density bonus if a portion of a development serves low-income households. The court found that Measure D violated none of the sections. Developers argued that the proposed North Livermore development would provide a mix of housing units, and the initiative offered no substitute locations. But the court said no because the housing element in effect at the time specifically excluded North Livermore as a site for development. The court also rejected the argument that the initiative's downzoning of land outside the growth boundary discriminated against affordable housing development. In fact, Jones wrote, Measure D requires projects of 20 units or more to include affordable units and requires the county to impose a fee for very low-income housing on builders of market-rate units. The initiative did not directly or by implication transfer Alameda County's housing obligation to another jurisdiction, the court ruled. As for the density bonus argument, the court ruled, "Measure D's low density limitation of one specific region within East County does not preclude accommodation of the state policy promoting low-income housing construction in other regions of the county." Finally, the court turned to Trafalgar's takings claim. The developer, which had been trying for years to develop 77 acres in an area near Castro Valley known as the Canyonlands, contended that the initiative on its face was an unconstitutional taking. The court said that a facial challenge can succeed only if the regulation does not "substantially advance legitimate state interests" or denies the owner economically viable use of the land. The court ruled that preservation of open space and discouraging the environmental impacts of urban sprawl were clearly legitimate state interests. As for use of the property, the court noted that Measure D did not change the "agricultural" designation on Trafalgar's land. That designation allows one house per parcel, secondary units, public and recreational uses, quarries and agricultural structures. Additionally, Measure D specified that its provisions would not apply if they deprived a person of constitutional or statutory rights, Jones wrote. Trafalgar tried to turn its takings argument into an "as applied" challenge, but the court refused to consider the argument because Trafalgar had not submitted a development application since Measure D's passage. The Cases: , and , Nos. A097072, A097387, A097454. 2003 DJDAR 8397. Filed July 1, 2003. Ordered published July 29, 2003. The Lawyers: For Shea: Kathy Banke and Jayne Fleming, Crosby, Heafey, Roach & May, (510) 763-2000. For Trafalgar: David Lanferman, Sheppard, Mullin, Richter & Hampton, (415) 434-9100. For the county: Lorenzo Chambliss, senior deputy county

The Fifth District Court of Appeal has upheld an environmental impact report's water analysis for the proposed University of California, Merced, campus. In an unpublished opinion, the court rejected project opponents' attempt to liken the UC Merced water analysis to an EIR that was rejected in , (1996) 48 Cal.App.4th 182. That case, commonly called by the proposed development's name, Diablo Grande, helped set the standard for what is required of a water study (see , November 1999, August 1999, September 1996). But in the UC Merced case, the court held that project opponents simply disagreed with the studies in the EIR, which was not enough to throw out the document. "In the case the EIR simply did not identify what the source of water would be," Presiding Justice James Ardaiz, who penned the earlier decision, wrote in the UC Merced case. "In the present case, however, the EIR identifies the source of water for the new campus as groundwater from the 30 million acre-feet of groundwater stored in the eastern Merced County groundwater basin." "The EIR also states that ‘well development to serve the campus would not result in significant environmental impacts that would require mitigation,'" Ardaiz continued. "The EIR in the present case thus does identify the sources of water, and does address whether the supplying of water will have an adverse environmental impact. Appellants' disagreement with the EIR's conclusions does not render the EIR legally deficient." In January 2002, the UC Board of Regents approved a long-range development plan and EIR for a new campus about two miles northeast of Merced. A handful of local environmental groups sued, claiming the EIR was inadequate for a number of reasons. Merced County Superior Court Judge William Ivey ruled for the university. The environmental groups appealed but only regarding the EIR's consideration of water. The project opponents argued that the EIR ignored certain information, including a letter from the state Department of Food and Agriculture saying that the groundwater basin was getting pumped faster than it was being replenished and the campus could aggravate the situation. Opponents contended the EIR should have contained more analysis and reached different conclusions. But the court ruled that additional study is not always necessary, and the fact that experts have formed different opinions based on the same information is not enough to render an EIR inadequate. "So far as we can tell, appellants wish the EIR had reached a conclusion that there is an insufficient amount of water available to serve the new campus, or that providing water to the new campus would harm the water supply of the wells of nearby landowners. But the EIR did not reach that conclusion," Ardaiz wrote. Stephen Kostka, the university's attorney, and the Building Industry Legal Defense Foundation requested publication of the opinion, but the court denied the request. Kostka said he knows of 12 published California Environmental Quality Act cases involving water supply analyses — and not once in those cases has the court upheld the analysis. The UC Merced case would have provided guidance on how to adequately study water issues, he said. "I think courts are having difficulty with this issue," Kostka said. Groundbreaking for UC Merced occurred in November 2002. The Case: , No. F041622. Issued June 24, 2003. The Lawyers: For the rescue center: Patience Milrod, (559) 442-3111. For UC: Stephen Kostka, Bingham McCutchen, (925) 975-5312.

A NEW REPORT by the state auditor suggests that California's brownfields program could be stronger. The state lacks an inventory of brownfields and even a definition of the term, which generally refers to abandoned industrial sites, gasoline stations and mines. The Department of Toxic Substances Control (DTSC) has an inventory of only 46 "orphan" sites, which are polluted locations for which the responsible party has not been found or cannot fund cleanup. The State Water Resources Control Board told the auditor that there really is no such thing as an orphan site because of the state's strict liability laws. The auditor reported that DTSC spent $9.7 million on orphan site cleanup from July 1998 through April 2003 — a tiny fraction of the $124 million to $146 million the agency anticipates needing to remediate the identified sites. Yet a 2000-01 general fund allocation of $85 million to a cleanup fund went largely unspent, as DTSC returned $77 million to the general fund. The auditor recommended state agencies do a better job of pursuing federal funding, rely more heavily on hazardous materials fees for cleanup, settle on a uniform definition of brownfield and obtain a comprehensive list of orphan sites and locations for which only partial liability could be determined. The agencies disputed some of the findings and recommendations, especially the call for a definition and site inventory. A site's presence on such a list may "create a stigma or negative perception" and hinder reuse. " aving no definition, or any obligation stemming from a property being designated as such, may in many instances encourage or facilitate property transactions that may not otherwise be pursued," the California Environmental Protection Agency wrote in response. The full report is available on the state auditor's website: www.bsa.ca.gov/bsa/index.html . ***** SAN BENITO COUNTY voters will decide on a slow-growth initiative after all. The initiative headed for the March 2004 ballot would require voter approval of rezones for projects of 100 or more units, cap growth at 1% annually, and quadruple the minimum parcel size for tens of thousands of acres of agricultural and range land. In April, San Benito County supervisors adopted the initiative rather than put it on the ballot. But the county Farm Bureau and a business organization fought back by gathering signatures on a referendum petition. Initiative proponents and county officials questioned the technical legality of the referendum, but supervisors decided to let voters have the final word. "The board feels this is bigger than any of us," Board of Supervisors Chairman Richard Scagliotti said before the unanimous vote to place the initiative on the ballot. ***** A DOWNTOWN LOS ANGELES redevelopment plan has been blocked by a Los Angeles County Superior Court Judge. When the city hit the court-mandated spending cap for the central business district redevelopment area in 2000 — 10 years ahead of schedule — the city moved properties into a new city center redevelopment project area. The city hoped to encourage development of a hotel and entertainment complex near Staples Center. Los Angeles County sued, arguing that the city was trying to get around the spending cap. Judge Marvin Lager agreed, ruling that the city "may not do indirectly what could not do directly." The ruling was similar to a 2002 appellate court ruling striking down a City of Upland attempt to move property from an old redevelopment project area to a newer project area (see , August 2002). ***** LOS ANGELES MAYOR James Hahn has released a new plan for reworking Los Angeles International Airport that would not add to the airport's current, theoretical capacity of 78.9 million passengers per year. Hahn's plan calls for replacing the parking garage adjacent to terminals with a new main terminal, shifting runways and taxiways farther apart and building a new parking and screening facility a few blocks away, just off the San Diego Freeway. The plan is a contrast to previous Mayor Richard Riordan's blueprint, which would have increased LAX capacity to roughly 90 million passengers per year. The airport handled abut 67 million passengers during 2000, its biggest year. Hahn's plan makes meeting the 78.9 million passenger capacity mark realistic by providing more room between runways and taxiways. But passenger growth beyond that level should be at regional airports, contended Hahn, who made no provision for additional runways at LAX. The plan has received a mixed reception from the airlines and other public officials. ***** THE CALIFORNIA DEBT and Investment Advisory Committee reported that redevelopment assistance was essential for most of the 28 transit-oriented, mixed-use developments CDIAC studied in a recent survey. The survey focused on five specific projects and found that "absent redevelopment funding and programming support, these transit-oriented projects could not have proceeded." The July report came in response to a Senate Local Government Committee request for CDIAC input on SB 465 (Soto). The bill would allow local governments to establish redevelopment project areas within half a mile of transit stations whether or not blight existed, and would allow transit village redevelopment project areas to collect tax increment for an extra 15 years. The bill stalled in the Senate Appropriations Committee but could return later in the two-year legislative session. ***** FARMS IN THE CENTRAL Valley will be subjected to water discharge requirements for the first time under a plan approved in July by the Central Valley Regional Water Quality Control Board. The plan requires owners of 7 million acres of irrigated farmland to register with the state agency and to monitor water runoff for pollution. Farmers complained that the plan was unworkable, while environmentalists argued that it did not go far enough to protect rivers and groundwater. The program does not require farmers to pay enforcement costs, and the agency conceded it does not have the money for ongoing enforcement. The board vote was a reversal of a late 2002 decision to extend an exemption from water quality requirements to farmers. The board reconsidered its decision when the Attorney General's Office found that Board Member Beverly Alves, a Glenn County rice farmer, had a conflict of interest and should not have voted or lobbied her colleagues. The regulation scheme now heads to the Water Resources Control Board. ***** THE GOVERNOR'S OFFICE of Planning and Research has released a second draft of an update to the office's general plan guidelines. The second round contains extensive revisions to a new chapter on sustainable development and environmental justice. The second draft also includes new material on trends such as "visioning" and the early identification of broad planning goals. The agency anticipates publishing the first update to the general plan guidelines since 1998 by year's end. More information is available on the website, www.opr.ca.gov . ***** A NEW TRANSPORTATION impact fee in western Riverside County and 14 cities led to a flood of building permit applications before the fee took effect in June. Cities and the county issued permits for nearly $500 million worth of housing during May — up from about $90 million worth of construction permitted in May 2002. The City of Moreno Valley alone issued permits for 830 new homes this May. The $6,650-per-house fee is intended to help fund $2.6 billion in transportation improvements during the next 20 years (see , March 2003). ***** AN ALAMEDA COUNTY County growth control initiative remains intact despite the First District Court of Appeal's reconsideration of its earlier ruling upholding the initiative. The unanimous three-judge panel in July stuck with its decision, despite granting developers' request for a rehearing. Shea Homes, Trafalgar Inc. and a rural Livermore area property owner contended the initiative violated the single-subject rule and prevented cities and the county from meeting fair-share housing requirements. Measure D, approved by voters in 2000, set growth boundaries around cities and unincorporated communities in central and eastern Alameda County (see , December 2000, October 2000). ***** THE SANTA CRUZ COUNTY grand jury has criticized county supervisors for meddling with day-to-day planning department operations. Supervisors use phone calls, emails and personal meetings to direct routine operation of the planning department, according to the grand jury, which blamed the micromanagement and political pressure for preventing planners from completing their duties in a timely fashion. ***** IN MAIL BALLOTING that concluded in July, Santa Ana property owners overwhelmingly rejected an assessment to fund street and park maintenance, street lighting and graffiti removal. Only 29.4% of property owners voted for the assessment, which was set at $33 a year for houses and $24 annually per apartment.

Three years ago — back when California had money — Gov. Gray Davis came up with a clever idea to push more money into transportation projects in a way that would benefit his core political constituencies without raising taxes. Today, Davis's Transportation Congestion Relief Program appears to be self-destructing, along with the entire system of funding state transportation projects. The whole congestion relief episode contains an important lesson about how optimistic budgeting in good times can be counter-productive when bad times arrive. The transportation funding mess has been brought into focus by an extraordinary recent report from the state auditor, who found that both Davis's congestion relief fund and the State Highway Account — the chief funding source for road projects created by a mixture of revenues — are about to go negative. The California Transportation Commission has already reduced State Transportation Improvement Program (STIP) allocations by $3 billion this year in an attempt to plug the gap, meaning that both the governor's pet projects and most of the regular STIP projects are now stalled. The STIP numbers are sobering indeed. Out of a planned $1.6 billion required to fund and build hundreds of projects during the 2002-03 fiscal year, the California Transportation Commission only allocated about $800 million. Out of $2.1 billion required to fund projects during 2003-04, the commission has so far allocated not a cent. And those cutbacks, the state auditor reports, are not enough. Caltrans budgeters are currently predicting a cash surplus in the State Highway Account, but only by overestimating certain revenues, such as state fuel excise taxes and commercial weight fees. A more realistic estimate of these revenues, along with the continuing state budget crisis, which will prevent the state from moving any more money from the general fund into the special transportation accounts, will surely plunge the state's transportation construction program into the red, perhaps in this fiscal year. State transportation planning is a complicated world that revolves around the STIP, which is the prioritized list of construction and renovation projects approved by the California Transportation Commission. (Regional-level projects are included in regional TIPs.) When Davis's traffic program came along, bureaucratic wags called the program the G-TIP — Gray's Transportation Improvement Program. And in many ways, it was a remarkable example of peculiar California budgeting, a pre-allocation of the general fund. In that sense it was similar to ballot-box budgeting efforts such as the Proposition 98 school funding initiative. But the earmarked transportation funding was mandated by the governor's own legislation. The Transportation Congestion Relief Program allocated about $1 billion a year in general fund money — mostly from sales tax revenues on fuel — to a list of about 140 specific transportation projects around the state. The top-priority projects were not the same ones that had emerged from the state's regular transportation programming priorities; mostly, the projects served urban areas that are important to Democrats, such as Santa Clara County, where a BART extension to San Jose is planned. Cunningly, the governor's initiative did not provide all the funding for any project; rather, it threw just enough into the pot (usually 25% to 30% of the cost) to move the projects up the list for other funding (see Insight, July 2000). The whole thing was a manipulative, politically driven end-run around the executive branch's own transportation planning system. But in the tax-rich world of 2000, everybody went along with it. Why not? After all, this was money flowing into transportation that would otherwise have been spent on something else. There is a difference between ballot-box budgeting and a chief executive's pre-allocation, however. Once the voters have made a decision about how to allocate the state's general fund, legislators are unlikely — and, in the case of constitutional amendments such as Proposition 98 — unable to alter the system. But in desperate times, it turns out that even a constitutional amendment gives the governor and the Legislature great leeway to start messing around with things. And mess around with the Transportation Congestion Relief Program they have. Technically, the program created a separate fund known as the Transportation Congestion Relief Fund (TCRF) designed to receive transfers from the general fund for the governor's special list of transportation projects. The legislation in 2000 also created another fund known as the Transportation Investment Fund, or TIF, where sales tax revenues from gasoline would be parked rather than in the general fund. In 2002, voters approved Proposition 42, a constitutional amendment that cemented the gasoline sales tax as the TIF's funding source. The congestion relief projects were supposed to receive $5 billion from these two sources from 2000 through 2008. About $1.5 billion originally came from a general fund transfer to the TCRF, and the remainder was supposed to come from the TIF. (Any overage in TIF funds was supposed to be distributed to other projects according to a formula.) However, things have not worked out as planned — not surprising, considering that state leaders have wrestled with a budget deficit of more than $30 billion for months. For one thing, the Legislature has now "borrowed" more than $1 billion from the congestion relief fund to prop up the general fund and seems to have no plans to pay the money back. For another, the governor and the legislature have not transferred the $1 billion in sales-tax-on-gas revenues from the general fund into the TIF for this fiscal year. It turns out that, under Proposition 42, they can suspend the payments in a budget crisis. This description could go on and on, but the bottom line is that because of the budget crisis the state simply is not implementing the congestion relief program that was adopted by the Legislature only three years ago and added to the state constitution last year. And more than the governor's pet list of 141 projects is at risk. The state's decision not to shift funds from the general fund into these two special transportation accounts has also placed the entire state highway construction program at risk. The state auditor's report made that point clear. One rule of thumb around Sacramento is that when everybody else runs out of money, there is still a lot sloshing around at Caltrans. It is the biggest state agency, and it has reliable sources of revenue that are least partly protected from the vagaries of general fund budgeting. Transportation projects always get taken care of. But the maneuvering of the last few years has made Caltrans and its projects more vulnerable than they used to be. Slicing off general fund money to transportation projects via constitutional amendment is fine, except that it was done in typical California fashion — a method familiar to local governments that have lost property tax revenues to a special fund for schools. A separate account was created; statutory and constitutional provisions were put into place about how to transfer general fund money into the separate account; and an override system was included so that the governor and the Legislature could pull the plug on the whole thing if the budget went south. That is what has happened. In the crazy world of Sacramento budget deficits, even Caltrans can't count on anything.

Voters in the Contra Costa Water District will decide early next year whether to quadruple the capacity of five-year-old Los Vaqueros Reservoir in the hills east of Mount Diablo. The reservoir expansion would increase water reliability and improve water quality but would not provide more water for growth, water district officials insist. The environmental community — which is a factor in many East Bay elections — appears to be ambivalent so far. The project could benefit the San Francisco Bay Delta ecosystem. But some environmentalists fear the project could induce growth in the East Bay. Notably, one of the potential partners in the expansion project is Zone 7 of the Alameda County Flood Control and Water Conservation District, which provides water to Livermore and the Amador Valley — an area where the growth wars have raged for decades. In July, the water district board of directors set an advisory vote for March 2004. Directors say they will not go forward with the expansion without voter approval. Water district voters in 1988 approved construction of Los Vaqueros Reservoir, which cost the agency about $450 million. Construction was completed 10 years later and today the lake can hold up to 100,000 acre-feet of water. Expansion would increase the reservoir's capacity to as much as 500,000 acre-feet. Los Vaqueros appears to fit well in an age when damming rivers is infeasible for a variety of reasons (see Environment Watch). Los Vaqueros is located "off stream," meaning that water is pumped from elsewhere to an isolated surface storage location. The off-stream nature of the reservoir gives the operators a great deal of flexibility for filling and drawing down the lake. "An expansion project would provide improved water quality, drought reliability and a significant financial reimbursement to the customers of the CCWD ," states a project planning report released in May. "An expansion project would contribute to enhancing the Delta environment and contribute to Cal-Fed's goal for restoration of the Delta ecosystem." To improve water quality, operators would fill Los Vaqueros with freshwater from the Delta when flows are high and water quality is good. This water would then serve Bay Area water customers during the summer and fall, when flows into the Delta are low and the water quality is poor. Reliability would be aided by storing water at Los Vaqueros during wet years for use during drought periods, according to the planning report. The additional storage could also be used if other portions of the Bay Area's public water system were shut down because of earthquake, levee failure or a chemical spill. The potential environmental benefits are many. Reducing pumping from the Delta when flows are low would reduce the number of fish — some of which are endangered species — that get sucked into pumps. Letting more water flow during dry periods would also improve habitat conditions in the Delta and the San Joaquin River, which State Water Project pumps cause to flow uphill at times. The additional storage could also be part of an environmental water account, allowing Bay Area water agencies that rely on the South Bay Aqueduct to shut down Delta pumps for periods of time. The details of all of these benefits, however, remain uncertain because the agencies potentially involved in the project have not yet decided how to operate the reservoir. The studies completed to date provide "bookends" for how the reservoir would operate, with the different scenarios emphasizing different benefits, said Marguerite Naillon, project manager for CCWD. Operating plans will not be finalized until the water district knows who its partners will be for the project. At any rate, Naillon said, operations would be restricted by the Cal-Fed Record of Decision and CCWD board policy. Together, those ensure that the additional storage would not serve growth and — importantly for CCWD voters — would not be shipped to Southern California. "The existing reservoir is not growth inducing, and this one wouldn't be either. It's basically just timing of the diversion," Naillon said. "Nobody here in the Bay Area is concerned about water for growth. What people care about in the Bay Area is water quality and having enough water for drought." But some environmentalists are not convinced. The water district has no business asking voters to decide on an undefined project, said Mike Daley, conservation director for the San Francisco Bay Chapter of the Sierra Club. Daley said his group does not necessarily oppose expansion of Los Vaqueros. But the Sierra Club wants to see more details, including well-defined mitigation measures and a stronger assurance that the additional storage will not be additional water for new houses. "They are going to voters without a project. They haven't done an environmental impact report," said Daley. The water district might be headed to the ballot early because voters might be less likely to approve the expansion if they knew all of the potential impacts and mitigations, he charged. But CCWD officials, who have been talking with Daley and other environmentalists, dismiss his complaints. The state Department of Water Resources and the federal Bureau of Reclamation have funded about $7 million worth of studies and planning. Although there is no EIR, Naillon said much of the analysis is detailed and could easily be folded into an EIR or environmental impact statement (the federal equivalent of an EIR). As for the timing of the election, the district tried the find the point at which it had enough information but had not spent so much money on planning and studies that it was committing itself, Naillon said. A number of federal, state and local agencies will be closely watching the advisory election results. Zone 7 Assistant General Manager Vince Wong said an expanded Los Vaqueros could be "another tool in water management" for his agency. But Zone 7, which recently completed a groundwater banking agreement with the Semitropic Water Storage District in Kern County, has made no commitments to the Los Vaqueros project. "It seems to us that the cost of water supply reliability from the project might be high for us," Wong said. Still, the water quality benefits are appealing, he added. Cost is likely to become an issue at some point. The expansion is estimated to cost $1 billion to $1.5 billion. Contra Costa Water District directors say that their constituents will not pay for the expansion. In fact, the agency contends it could make money by operating a larger facility. But exactly who would pay the construction tab is unknown and depends largely on who the eventual partners are. State and federal agencies involved in the Cal-Fed effort might be interested, but money for Cal-Fed has dried up faster than the San Joaquin River below Friant Dam. The Los Vaqueros expansion is one of five surface water storage projects identified by Cal-Fed as worth pursuing. Although it is the only one of the five that hinges on voter approval, the Los Vaqueros project might be the first to actually get built. Two of the five options — enlarging Shasta Dam, and enlarging Friant Dam or building an equivalent — depend on the Bureau of Reclamation, which is short of money for water storage projects these days. And the final two options — new storage in the Delta and the long-proposed off-stream Sites Reservoir in Colusa County — would have to be built from scratch. Contacts: Marguerite Naillon, Contra Costa Water District, (925) 688-8018. Vince Wong, Alameda County Flood Control and Water Conservation District Zone 7, (925) 484-2600. Mike Daley, Sierra Club, San Francisco Bay Chapter, (510) 848-0800. Los Vaqueros website: www.lvstudies.com

The right to pump groundwater does not equate to the right to store water in the same groundwater basin, the Second District Court of Appeal has ruled. In perhaps the first published ruling of its kind, the court held that unused groundwater storage space is a public resource that must be managed for the public benefit. The court ruled against seven cities, four water companies and an irrigation district, which collectively control the right to half of the water pumped annually from the Central Basin in metropolitan Los Angeles. Those entities sought to apportion storage rights in the same proportions as pumping rights. The court rejected the plan and instead ruled that the Water Replenishment District of Southern California was authorized to manage groundwater storage. The decision could be a victory for public agencies and developers that need to prove that water is available for growth because a managed structure for groundwater storage adds more certainty to local and regional water analyses, according to attorney Edward Casey, the Weston Benshoof attorney who represented the water replenishment district. Under litigation initiated in 1962, the Los Angeles County Superior Court has apportioned water rights within the Central Basin, and the court has retained its jurisdiction. A total of 148 public and private entities now have adjudicated water rights in the basin. In 2001, 12 entities asked to amend the most recent court judgment to quantify and allocate the rights of water holders to use underground storage space. They proposed that the court divide up the usable storage space to the 148 entities based on annual pumping allocations. The dozen entities that filed the motion sought to amendment the judgment so that they could pursue conjunctive use projects, which rely on in lieu and artificial recharge of the groundwater basin. Superior Court Judge Reginald Dunn rejected the request. He found that the judgment at issue was limited to the right to pump water and that storage was a different matter. Judge Dunn also determined that the water replenishment district had statutory authority to replenish and store water for conjunctive use. The 12 water pumpers appealed, and a unanimous three-judge panel of the Second District, Division Eight, upheld the lower court. Before addressing the pumpers' arguments, the court first held that underground water storage space is a public resource under Article X of the state constitution. That article requires that water resources be used in the public interest, and Water Code §100 and § 105 reflect this policy. "Most significantly, under § 105, underground water resources must be developed ‘for the greatest public benefit,'" the court ruled. The court then considered the pumpers' argument that the doctrine of "mutual prescription" created their right to unused groundwater storage space at the same ratio that they may remove water from the basin. The court ruled that the pumpers' right is to use of the water — not to storage space. "The doctrine of mutual prescription applies only if the use of the claimed right was actual, open, notorious, hostile and adverse to the original owner and continuous for the statutory period," Presiding Justice Candace Cooper wrote for the court. "Appellants bear the burden of establishing such element, and have failed to demonstrate any one. The motion concerned unused property that by definition was not continuously used in an open, notorious and hostile manner." The pumpers also argued that correlating storage rights to pumping rights was correct because storage and extraction are "hydrologically linked." But the court said there was no legal basis for this argument. "If appellants' theory were correct, adjacent property owners would have more control over their neighbors than nuisance law affords them, easement owners would have more control over the dominant tenement than property law affords them, and end water users would have more control over water extraction than water law affords them," Cooper wrote. "Extraction and storage are different physical processes; establishing a hydrologic link between them is not sufficient to show that a legal interest in one creates an interest in the other." Furthermore, the court held, the proportional allocation of storage rights does not guarantee beneficial use of the water or public accountability. The water replenishment district "is expressly authorized to store water for the purpose of replenishing the district," Cooper wrote, citing Water Code § 60221, subdivision (e). "Storing water for replenishment purposes is similar to storing water for conjunctive use." The court found no support for the pumpers' argument that the district's authority was limited to replenishing an annual overdraft. The Case: , No. B155143, 03 C.D.O.S. 5079, 2003 DJDAR 6434. Filed June 12, 2003. Modified July 9, 2003 at 2003 DJDAR 7591. The Lawyers: For Water Replenishment District of Southern California: Edward Casey and Paeter Garcia, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, (213) 576-1000. For the water pumpers: Robert Saperstein and Russell McGlothlin, Hatch & Parent, (805) 963-7000.

With all of the static energy burning away in today's world, it's no wonder a growing number of communities want to stay in the dark. A handful of communities are working with educational organizations and lighting manufacturers to dim the lights in an effort to limit nighttime lighting pollution. And if the International Dark-Sky Association (IDA) succeeds in its ongoing public education campaign, more communities will be regulating the annoyance of lighting pollution. The problem is easily understood: Under the assumption that more is better, cities, road agencies and developers have been lighting up our urban areas, ostensibly to provide safety and visibility. But specialists on the topic tend to agree that less is actually more, from the standpoint of light pollution, safety and energy conservation. Though the problem of over-lighting is rampant, "I would say that the biggest offenders are cities," said Jack Sales, a California spokesman for IDA. Most cities still use drop-lens cobra-head luminaries with high-pressure sodium vapor fixtures to light streets and municipal yards. These lights produce an extraordinary amount of uplight glare, and are particularly inefficient at converting watts into lumens. The retro-style candle standards currently popular in neotraditional developments are another culprit because most do not restrict uplighting of the night sky. The major private property offender are the wall pack units used commonly to light industrial projects. Concern about light pollution is not a new phenomenon. The first generation of communities changed its practices about 20 years ago, according to Sales. These were usually in places associated with important astronomical observatories. In fact, the IDA was founded in Arizona, where observatories are central to research institutions in the Flagstaff and Tucson areas. In California, San Diego, the city most associated with both the Palomar and Mount Laguna observatories, and San Jose, near the University of California-operated Lick Observatory at Mt. Hamilton, were early leaders in using regulation to combat light pollution. In San Jose, the city converted a majority of its streetlights to LPS (low-pressure sodium) fixtures during the early 1980s. Even more interesting, the city worked directly with Lick Observatory astronomers to develop specifications. A few years later, the city required new or revised developments to use LPS lighting in parking lots. The current revival interest in dark sky ordinances, though, has more of a quality-of-life basis. According to Sales, this second generation of communities is combating light pollution for aesthetic reasons. In the war on sprawl, think of dark sky ordinances as the battle over lumen control. Interestingly, the new generation includes very different kinds of towns. The Los Angeles suburb of Calabasas, most famous for its steadfast fight against the Ahmanson Ranch development in the Santa Monica Mountains, adopted a dark sky ordinance during 2002. And 350 miles away, in a stunning perched valley of the Eastern Sierra, the Town of Mammoth Lakes adopted a dark sky ordinance in May. In Calabasas, the idea to adopt an ordinance came from Councilwoman Janice Lee, who began to ask questions about light pollution in 1999. She did her own research, and discovered the IDA and other information on the Internet. Then she launched a quiet campaign to educate her council colleagues and to direct staff studies. In Calabasas, the lost identity of a rural, coastal mountain town may have driven the ordinance, which seeks to preserve what little remains of that rural heritage. In Mammoth Lakes, a recognition of the economic value of tourism may have been an additional factor. "We just wanted to preserve a dark sky for our residents and visitors, so visitors could remember why they came up here." said Senior Planner Bill Taylor. As in Calabasas, the Mammoth Lakes ordinance was driven by little more than a personal interest of two decision-makers — in this case, Planning Commissioners Mike Telliano and Elizabeth Tenney. The ordinance has the typical restrictions on uplighting, and should result in a gradual retrofitting of street lighting with full-cutoff fixtures and an inventory of private lighting around town that does not meet the goals. The regulation met no resistance. Though not a movement that will take the planning world by storm, the dark sky advocates instead prove that simple solutions are worth pursuing and may result in incremental improvements in the urban experience. Expect the dark sky movement to emerge in communities that focus on, and value, their natural environmental setting.

A Santa Barbara County property owner has been allowed to pursue a lawsuit alleging that the county violated his rights of free speech, equal protection and due process by giving him a hard time with proposed developments. The Ninth Circuit Court of Appeals upheld a district court decision, which threw out five of the landowners' claims because they were filed too late. However, the Ninth Circuit overturned the lower court with regard to two claims that were not filed too late. The lower court had ruled that they were unripe takings claims, but the appellate panel characterized them as "separate claims supported by allegations of discrete constitutional violations." The appellate panel directed the district court to review the merits of those two claims. The lawsuit was filed by Patrick Nesbitt, who owns property along the coast near Carpinteria. Nesbitt has sought to develop his property in a number of ways and has received 11 county permits since acquiring the property in 1994. The litigation apparently stems from conflicts between Nesbitt and the county over the size of a residence he wants to construct and a polo field. The county has proposed numerous conditions on the residence, has told Nesbitt to apply for a major conditional use permit for the polo field, and has threatened to levy $25,000-per-day fines if he plays polo without obtaining the permit. Nesbitt claimed that the more he spoke out in public forums, including to local newspapers, about the county, the county increased conditions and restrictions on his property and delayed permitting — thereby violating his First Amendment rights. He also argued that his right to equal protection of the law was violated because the county did not impose the same conditions on similarly situated property owners. And he contended his right to due process had been violated because the county subjected his plans to a local review committee and because biased decision-makers had been motivated by retaliation. Nesbitt cited a number of actions by the county to support his position. However, all but two of the actions occurred more than a year before he filed his lawsuit, and the statute of limitations was one year, according to both the district court and the Ninth Circuit. Two contentions, however, were not barred by the statute of limitations: That the county wrongly required Nesbitt to apply for a major conditional use permit and then failed to act on the application, and that the county attached discriminatory conditions to his residential building permit. The district court determined these two contentions were "as applied" takings claims, and the court ruled that they were not ripe for court review because the county had not rendered final decisions. But the appellate court disagreed. "If, as Nesbitt alleged, the county's requirements, conditions, delays and fees were imposed in retaliation for his exercise of his First Amendment rights to publicly criticize the county and to access the courts, Nesbitt suffered harm thereby and did not have to await further action by the county," the court ruled. The same theory applies to Nesbitt's equal protection and due process claims, the court ruled. " is challenge is to the procedure he had to endure to get those permits. Even if the county relented today and issued all of the permits Nesbitt has applied for, he still would have been injured by the treatment he allegedly received and which caused him harm." The Case: , No. 01-57218, 03 C.D.O.S. 5504, 2003 DJDAR 6974. Filed June 25, 2003. The Lawyers: For Carpinteria Valley Farms (Nesbitt): A. Barry Cappello, Cappello & McCann, (805) 564-2444. For the county: David Pettit, Caldwell, Leslie, Newcombe & Pettit, (213) 629-9040.

A Bush administration framework for Western water is drawing praise from some surprising circles, while normal administration allies are showing skepticism or outright hostility. At a July Bureau of Reclamation conference in Sacramento, Environmental Defense attorney Tom Graff offered the strongest endorsement of the administration's "Water 2025" report. Meanwhile, farming and irrigation district representatives gave the Interior Department report (it is not detailed enough to be called a "plan") a lukewarm reception. What sets Water 2025 apart is that it does not call for the construction of more federal dams. Instead, the report's four "key tools" are: • Conservation, efficiency and voluntary transfers • Collaboration • Improved technology • Removal of institutional barriers to increase interagency coordination. Although local efforts to build smaller dams might prove feasible, federal officials essentially say in Water 2025 that the West must make due with the water it has. Graff, a leading environmentalist water attorney, called Water 2025 a "reform agenda" and said during the Sacramento meeting that he agreed with everything in the document. For California, the document in part builds on an environmentally friendly 1992 overhaul of operations at the Central Valley Project, a reform from which both the Clinton and second Bush administrations backed away, he said. But Graff did question whether this administration would be willing to abide by Water 2025. Still, Graff's overall positive appraisal seemed to surprise some environmentalists. They had joined Indians in a sidewalk protest against the Interior Department, saying the agency did not provide enough water for fish. Others who joined Graff on a panel review of Water 2025 in Sacramento, and people in the audience of about 400, were more circumspect. Steve Hall, executive director of the Association of California Water Agencies (ACWA), said the document reflects the reality that the federal government is no longer going to spend large amounts of money on new water facilities. But Water 2025 tools will be effective, Hall said, only if federal officials overhaul the Endangered Species Act, the Clean Water Act and other regulations in a manner that benefits local communities. Glenn-Colusa Irrigation District General Manager Van Tenney and Dan Keppen, executive director of an agricultural water group in the Klamath Basin, both said there must be provisions for more surface storage. Furthermore, Tenney said his agency's experience with a large-scale water transfer to the Westlands Water District has been problematic. There are too many administrative rules and not enough trust between the agencies, said Tenney, who questioned whether water transfers could be a significant part of a near-term solution. "Where's the leadership to make this happen?" Keppen asked of Water 2025's tenets. Keppen might have more reason than most to be skeptical. It was the crisis in his Klamath Basin that spurred the drafting of Water 2025. Two years ago, the Bureau of Reclamation dramatically reduced water deliveries to farmers to provide water for two species of endangered sucker fish in Upper Klamath Lake and two species of salmon farther downstream (see , October 2001). The various species of fish are very important to no fewer than four Indian tribes in California and Oregon. In fall of 2002, salmon in the Klamath River died by the tens of thousands, prompting the tribes, environmentalists and commercial fishermen to blame Bureau of Reclamation irrigation practices 200 miles upriver in the Klamath Basin. After two years of constant crisis and clashes, resolution appears further away than ever before. "We're all in our camps now," Keppen said. "We're fighting for our own clans." Protesters with picket signs drove home Keppen's point. But Assistant Interior Secretary Bennett Raley, the highest-ranking official at the Sacramento session, said he welcomed a dialogue with protestors. "In its own way, Water 2025 is our protest to having to go through the Klamath Basin tragedy over and over and over again," Raley said. Numerous other locations in the West have the potential for similar crises, said Raley, who called Water 2025 "an experiment in pragmatism." Raley emphasized the need "to manage what we have in the most effective way." That could mean investing in transmission facilities so that willing water sellers can get the resource to buyers, focusing on desalination technology, and simply repairing old infrastructure to prevent water loss. There is no shortage of studies, he said. What is in short supply is state and local consensus that allows the federal government to act, he said. Where the report will lead is uncertain. The Interior Department released the document in May and scheduled nine conferences (including the one in Sacramento) for this summer. Kirk Rogers, mid-Pacific regional director for the Bureau of Reclamation, said the conferences were intended to open a dialog and federal officials will revise Water 2025 after receiving comments. Jeff Loux, director of the land use and natural resources program at University of California, Davis, called the framework a "recognition of reality," but he was unsure what would come of the report and this summer's conferences. "It's a good thing for any government to go out in the field and make some noise and say we're on the case. And what they are saying sounds perfectly reasonable," said Loux, who is also a member of the Water Forum, a collaborative that has helped resolve Sacramento regional water issues. But, asked Loux, where is the federal money to implement Water 2025's tools? In recent years, Congress has not been willing to fund the Cal-Fed Bay Delta project, which embodies the collaborative and creative approaches endorsed by Water 2025. John Leshy, the Interior Department's general counsel during the Clinton administration and now a law professor at Hastings College, told that he was pleased that the current administration recognizes that "pouring more concrete" is not the answer. "In the vast majority of cases, alternatives such as more efficient use, transfers away from inefficient to more efficient uses, groundwater recharge, more sophisticated management and something as basic as just measuring uses — which are not measured in many parts of the West — and enforcing existing water rights — which are limited by the beneficial use doctrine — will supply all the water needed for the foreseeable future, including for environmental restoration," Leshy said. The fact that Leshy, a Clinton appointee and former Natural Resources Defense Council attorney, would agree would the Bush administration's approach shows just how confusing water policy can be. But the Bush administration is echoing what the Clinton administration said about big dam building no longer being economically, politically or environmentally feasible, said Rita Schmidt Sudman, executive director of the Sacramento-based Water Education Foundation. And the Bush administration is actually going further by saying there is no more money to meet the water needs of farmers and property owners. That is a change from past administrations Republican or Democratic, and it is shocking for many Bush allies to hear, Schmidt Sudman said. But although Washington Democrats and Sacramento Republicans could agree on Cal-Fed during the 1990s, few entities have expressed more skepticism of Water 2025 than the Davis administration. In comments in the on the day of the Interior Department meeting in Sacramento, Resources Secretary Mary Nichols blasted the federal agency for failing to support Cal-Fed, abandoning endangered species recovery efforts and even for not inviting her to sit on the day's Water 2025 panel discussion. The Bush administration "is not at the table when key decisions are made," Nichols told the Bee. It was evident that many people at the Interior Department's gathering had read Nichols's comments that morning. "Until the state and federal agencies come together," warned ACWA's Hall, "I don't believe Water 2025 or any other initiative can work." Contacts: Tom Graff, Environmental Defense, (510) 658-8008. Steve Hall, Association of California Water Agencies, (916) 441-4545. Jeff Loux, UC Davis, (530) 757-8577. Rita Schmidt Sudman, Water Education Foundation, (916) 444-6240. Water 2025 website: http://www.doi.gov/water2025

California State University is not required to fund mitigation measures that offset a new campus's traffic and fire safety impacts, the Sixth District Court of Appeal has ruled. In a split decision, the court held that local agencies cannot charge the university impact fees to fund off-site road and fire safety improvements needed to serve the CSU Monterey Bay campus. " his state's constitutional and statutory framework compel the conclusion that off-site improvements in traffic facilities necessary to handle the loads put on them by a public university are not the responsibility of the university but rather of the locality," Presiding Justice Conrad Rushing wrote for the majority. In 1998, the CSU Board of Trustees adopted a campus master plan and an environmental impact report for the Monterey Bay campus, located on 1,350 acres of the defunct Ford Ord army base. That action followed the previous year's adoption by the Ford Ord Reuse Authority (FORA) of a base reuse plan that required fair-share funding by all involved entities for traffic, fire protection, water and sewage facilities related to base reuse. In the EIR, however, CSU trustees adopted a statement of overriding considerations regarding traffic and fire safety. Those impacts could not be mitigated with the payment of fair-share fees, the trustees asserted, because state law and the state Supreme Court's decision in (1986) 42 Cal.3d 154, precluded the university from paying traffic and fire safety infrastructure costs. The findings of overriding consideration also stated that traffic and fire facilities were FORA's responsibility, so the university could not guarantee facilities that offset the impacts would be provided. The reuse authority and the City of Marina sued, arguing that the EIR failed to recognize the university's responsibility for funding its fair share of infrastructure. Monterey County Superior Court Judge Richard Silver ruled against the university, finding that the California Environmental Quality Act (CEQA) required the university — like any developer — to contribute to a fund earmarked for the mitigation of cumulative impacts. The university appealed, and the split panel of three Sixth District justices overturned the lower court. The court majority cast the case not as a CEQA case, but as a dispute over fees. The university satisfied CEQA by disclosing the campus's impacts and adopting overriding findings of consideration. "The legal question is whether the university's funds are subject to use for off-campus infrastructure improvements," Justice Rushing wrote. The court relied heavily on the San Marcos case and on Government Code § 54999. In , the court ruled that a water district could not levy on a school district a "sewer capacity right fee" to fund capital facilities. Two years later, the Legislature partly overturned that decision by approving § 54999. That statute allows the providers of public utilities to charge capital facilities fees for "a facility for the provision of water, light, heat, communications, power, or garbage service, for flood control, drainage or sanitary purposes, or for sewage collection, treatment or disposal." Notably absent from the list were facilities related to traffic and fire safety. Because the conflict in this case was over traffic and fire safety — the university agreed to pay its fair-share for water and sewer facilities — the court ruled that the ruling was applicable. Thus, the local agencies could not require the university to pay its fair share for roads and fire facilities — and the university could not legally make such payments. "Many of the communities responding to the draft EIR in the record betray a desire, on the one hand, to recognize the benefits of having the university locate on the site but, on the other hand, to obtain funding and infrastructure concessions," Rushing wrote. "Such state funding mechanisms in their statutory and constitutional context do not make such conflicting goals addressable through the CEQA environmental review process." "The challenge here," Rushing continued, "is not that the trustees failed to identify or analyze significant environmental impacts or identify the facilities necessary to mitigate them, which would be a claim under CEQA. The dispute is rather about who will fund construction of such facilities." The base reuse authority and the City of Marina need to convince state legislators to pay for CSUMB's traffic and fire impacts, the court concluded. In a dissenting opinion, Justice Patricia Bamattre-Manoukian said the litigation was very much a CEQA case. was not applicable because it involved a fee to fund facility expansion, she wrote. In this case, "it is CSU's project that has created the impact on the environment and the consequent need for expanded infrastructure." "I believe the law is clear that CEQA imposes an independent duty upon any project proponent, including a state university, to mitigate the impacts of its project," Bamattre-Manoukian wrote. The existence of the base reuse authority did not alter the university's responsibilities under CEQA, the dissenter continued. In fact, the reuse authority's plan "provides a feasible means for CSU to mitigate the impacts of its project." "A central purpose of FORA is to plan and implement the improvements that will be necessary to mitigate the impacts of redevelopment of the base property," Bamattre-Manoukian wrote. "This purpose would be undermined if CSU, which was envisioned by the Legislature as the principal participant in the base reuse plan, were exempt from contributing to the FORA improvement program. Under the circumstances, I believe that CSU's findings, that it was not feasible to mitigate the impacts of its project because it was FORA's responsibility to do so, were legally inadequate." The Case: , No. H023158, 03 C.D.O.S. 5233, 2003 DJDAR 6608. Filed June 17, 2003. The Lawyers: For Marina: Sheri Damon, Lombardo & Gilles, (831) 754-2444. For CSU: John A. Taylor Jr., Horvitz & Levy, (818) 995-0800.

A city that acquires land for two roads through eminent domain does not have to compensate the property owner for the growth-inducing impacts of the roads, the Fourth District Court of Appeal has ruled. In a case in which 50 cities joined an amicus brief supporting the City of Carlsbad, the appellate panel threw out $2.3 million worth of damages that a jury had granted to the owners of two nurseries. Those damages were based on the notion that the extension of Poinsettia Lane and Brigantine Drive — for which land was condemned — would speed residential development in the area, and that the growth pressure would shorten the nurseries' life spans. " he claimed shortened life expectancy and depreciation of nursery business assets and improvements is caused not by the construction and use of extended Poinsettia Lane and Brigantine Drive, but by the residential development on surrounding properties claimed to have been ‘accelerated' by that use," the court ruled. " s the city persuasively puts it, ‘growth inducement is simply not part of the design, construction and operation of the public project, which is the basis for compensable severance damages.'" In June 1998, Carlsbad filed eminent domain actions against the owners of two properties. Joseph and Barbara Rudvalis owned one parcel, on which they operated a wholesale orchid nursery. The other property was owned by William and Donna Baker; Pamela Koide leased that property month-to-month and ran a wholesale nursery. The nurseries were nonconforming uses on land that had been designated for residential development in the city's general plan since 1965. The city sought .05 acres of the Rudvalis property and 3.07 acres of the Baker's land to build two roads. After a trial, a jury awarded the Rudvalises $118,000 for physical damages to personal property, $745,000 in economic damages to personal property, and $640,000 in "economic damages to improvements pertaining to realty severance damages to improvements." The jury awarded Koide $153,000 for physical damages to personal property, $759,000 in economic damages to personal property, and $195,000 in economic damages to realty improvements. Furthermore, the court awarded litigation expenses of $346,000 to the Rudvalises and $264,000 to Koide. After the court refused the city's request for a new trial, the city appealed. The city did not contest the awards of $118,000 and $153,000 for physical damages. But it did appeal all of the economic damages and the litigation expenses. A three-judge panel of the Fourth District, Division One, overturned the lower court. The appellate court threw out the $2.3 million worth of economic damages to personal property and realty improvements, and the Fourth District directed the lower court to reconsider litigation expenses. The nursery owners and their experts contended that accelerated urbanization resulting from the new roads would shorten their businesses' remaining economic life by about six to eight years, so the city should compensate the owners for their potential losses. The city countered that compensation was not justified because the economic damages were not the direct result of the condemnatory act. Siding with the city, the Fourth District focused on "the causation element." Damages must be "based on conditions ‘caused by' or ‘resulting from' the project that are substantiated by competent, nonspeculative and nonconjectural evidence," Justice John O'Rourke wrote, citing the state Supreme Court's landmark eminent domain case , (1997) 16 Cal.4th 694 (see , September 1997.). In the Carlsbad case, the damages claimed by the nursery owners did not flow directly from the public project's construction and use. "Even if we were to assume the subject project attracted residential development to the area, such urbanization would occur and the defendants' asserted damages would be exactly the same if the road extension passed through adjoining property not owned by the defendants. In fact, much of the incoming development was not dependent on the Poinsettia extension." Furthermore, both the Rudvalises and Koide continued to operate the nurseries at the time of the trial — three years after the project's completion, the court pointed out. O'Rourke wrote that even if the court accepted the nursery owners' argument that the project caused the damage, the damage caused no injury because the nursery owners "have no legal right or vested interest in keeping the surrounding land free of incoming development or increased population." As for the damages to removable personal property, the court said the general rule is that such property is not compensable. "It is only where personal property is ‘damaged or destroyed by the physical appropriation of a portion of the owner's property' that such damage is compensable in eminent domain," O'Rourke wrote, citing , (1984) 156 Cal.App.3d 428. The nursery owners were not uprooted, the road did not encroach upon their buildings or assets, and the condemnation did not render relocation impossible, O'Rourke wrote. Plus, actual physical damages to assets such as plant stock were awarded separately. Moreover, lost future income from allegedly damaged property falls in the category of "goodwill," and the nursery owners had withdraw claims for goodwill damages prior to the trial, the court noted. The Case: , No. D039112, No. 03 C.D.O.S. 4950, 2003 DJDAR 6275. Filed June 10, 2003. The Lawyers: For Carlsbad: Ronald Ball, city attorney, (760) 434-2891. For Rudvalis: Gary Weisberg, Palmieri, Tyler, Wiener, Wilhelm & Waldron, (949) 851-9400.