The Malibu Bay Company (MBC) owns the last undeveloped beach front parcel in Malibu, a 2.08-acre, 200-foot-wide parcel. In order to accommodate its proposed division into four parcels, MDC proposed an amendment to the Local Implementation Plan of Malibu's local coastal plan in order to create a new zoning district which would allow for lot widths of 45 feet, a decrease from the, then existing, standard of 80 feet. Despite opposition from neighbor Deane Ross, MBC's request to subdivide the property was ultimately successful following the ruling of the Second District Court of Appeals in Ross v. California Coastal Commission.  As the application advanced to the City Council, council staff ultimately recommended that the required width for all parcels in same district as MBC's property was located in, be reduced to the 45-foot standard. Altogether, this change would impact 733 parcels, although as staff noted, a majority of the existing parcels were already substandard to the 80-foot width standard. Staff further determined that only five parcels (including MBC's) were capable of further division under the proposed 45-foot standard. Two of the five were subject to additional legal limitations precluding further re-division, leaving only two parcels in addition to MBC's. Staff concluded that any further re-division of those parcels would require a coastal development permit and CEQA review.  Concluding that there would be negligible direct and cumulative effects on aesthetics, biological resources and land use and planning, staff recommended acceptance of a negative declaration. Due to the presence of an environmentally fragile sand dune area, and based further upon a dune study submitted by the applicant's biologist, mitigation for dune species was required. The City Council eventually approved a revised mitigated declaration, and conditionally granted the approvals, subject to Coastal Commission approval. Neighbors opposed the approval of the entitlements, and submitted a biologist study indicating potential impacts to sensitive species. Further review at the Commission resulted in conflicting recommendations from applicant, city and commission staff biologists as to the desired setback from the sensitive area, which is a habitat for the Globose dune beetle, which is considered a "species of concern" by the federal government. Commission staff eventually recommended a less aggressive setback then that proposed by its own consultant, based, in part, on a restoration requirement. The Commission staff also recommended a change to the view corridors as well. Neighbors continued to oppose the project at the Commission level. Immediately prior to the Commission hearing, Commission staff issued an addendum staff report, and recommended a further change to the LCP plan amendment. The Commission approved the amendment on a 10-1 vote in June of 2008. The matter was remanded to the Town of Malibu who adopted concurring revisions, and Commission staff ultimately certified compliance with the Commission's approvals, and the approvals took effect.  The neighbors filed suit. The trial court granted partial relief. On appeal, the appellate court reversed, ruling in favor of the town and the Coastal Commission. In the published portion of the decision, the appellate court addressed a number of procedural and substantive issues.  The first substantive issue dealt with the setback for the dunes, an environmentally sensitive area. The town's general plan specified a 100-foot setback, whereas the local implementation plan of the local coastal plan allowed for a reduced setback. As there were reports in the record from the applicant's and town biologists on this subject, the court found substantial evidence in the record to support the Commission's imposition of a 5-foot setback. As to the application of these two different standards, the court held that the Commission's interpretation was entitled to deference.  The court then addressed the CEQA claims, in the context of a certified equivalent CEQA process as authorized by CEQA and the Coastal Act. The first matter for consideration was whether or not CEQA's review period for EIRs (30 days; Public Resources Code section 21091) applied, or in the alternative, the 13-day review period utilized by the Commission was sufficient. The appellate court held that the Commission's certified regulatory program was exempt on the basis that the Secretary of the Resources Agency had certified the Coastal Commission's regulations which included the shorter, seven-day time period. It was too late to challenge the validity of the shorter review periods under the Coastal Act.  The Commission also successfully argued to the appellate court that under CEQA procedures, it acted as a responsible agency, and therefore the many requirements and steps necessary for preparation of the appropriate CEQA document did not apply. The appellate court also upheld the sufficiency to the responses to the general public comments by the Commission.  The opponents also challenged the trial court's decision regarding the underlying analysis to the cumulative impact analysis, which analysis concluded that only two other lots were capable of additional division. In the face of the argument that owners of other lots may in the future combine them and seek re-division, the court, as had the court in Save Round Valley Alliance v. County of Inyo (2007) (see CP&DR Legal Digest Vol. 23, No. 2 , Jan. 2008), concluded that the agency was not required to speculate as to what might happen in the future and, in any event, such development would be subject to regulation under the local coastal plan.  The final CEQA issue pertained to the trial court's decision requiring that CEQA required a concurrent examination of the two existing lots which were capable of further division. Reversing, the appellate court observed "It is unreasonable to require the commission, city or developer to conduct a biological assessment on developed property they do not own and for which there is no reason to expect will be subdivided. Should these two developed lots be subdivided in the future, their owners will need to obtain a coastal development permit…"   The Case:  Ross v. California Coastal Commission B225796, 2011 DJDAR No. B225796. Filed and ordered published, September 9, 2011.  The Attorneys:  Elkins Kalt Weintraud, John M. Bowman and Reuben Gartside for Plaintiffs and Appellants. Edmund G. Brown Jr. and Kamala D. Harris, Attorneys General, John A. Saurenman, Assistant Attorney General, Christina Bull Arndt and Wyatt E. Sloan-Tribe, Deputy Attorneys General, for Defendant and Appellant California Coastal Commission. Christi Hogin, City Attorney, Jenkins & Hogin and John C. Cotti for Defendant and Appellant City of Malibu. William W. Abbott is a partner in the firm of Abbott & Kindermann , LLP, of Sacramento.

Forget about setbacks, traffic counts, and environmental impact reports. A new nationwide initiative suggests that planners and community development officials should be focusing as much on canvases, scripts, and jam sessions—especially if those planners are in California.  Last month, 11 national foundations plus the National Endowment for the Arts announced the founding of ArtPlace America, a nationwide initiative to drive revitalization in cities and towns with a new investment model that puts the arts at the center of economic development. The launch of Artplace, based in Chicago, coincided with the awarding of $11.5 million in grants to community-oriented arts organizations nationwide.  Of the 34 grants, eight of them went to organizations in California; no other state received more than three. These ranged from a project in San Francisco – not a surprise – to an "Art and Ag" project in Yolo County. They reinforce the widely held belief that in a down economy, the arts – and the foundations that support them – can play a critical role in stimulating urban revitalization. The aim of the grants is not only to support individual organizations but also to promote economic development and even revitalization of the respective urban fabrics where the organizations are located. Artplace operates on the principal that the arts, though they often lack the monumental physical presence of factories and office buildings, can contribute just as much to a local economy as can conventional businesses and housing programs.   "We are acting very deliberately to affect place and we believe vibrancy is the best proxy for quality of place, and quality of place is of course essential to attracting and retaining talent," said Carol Coletta, executive director of ArtPlace. "And attracting and retaining talent is essential to economic success in places."  According to research by Elizabeth Currid-Halkett, planning professor at the University of Southern California, and others, artists are not mere gentrifiers, spiffing up a neighborhood and kicking out longtime residents only to commute to work elsewhere. Rather, they keep their activities local and create economic multipliers in relatively small radii, especially when artists' residences, studios, galleries, and watering holes arise next door to each other. This pattern, according to Currid-Halkett, dates back at least to the revitalization of New York's SoHo in the 1970s.   "The arts have been thought of as icing on the cake," said Currid-Halkett. "But if you look at the cases of some of the most successful neighborhoods in the world, there's a real presence of the arts and cultural industries." Among the eight grant recipients in California, some have direct connections to the built environment, whereas others are more ephemeral (see sidebar). The preponderance of grants in California suggests that the state's creative economy—at least that which does not involve the mass-market entertainment industry—is getting its due.  "I think California's reputation has not been as big as the actual art that exists here," said Currid-Halkett. "Los Angeles and San Francisco have huge concentrations of artists doing incredibly interesting work and I don't think it has the global reputation it ought to….Hopefully, for California's sake, the NEA's investment will have the spillover effect of actually creating the California art brand that it should have had years ago."  Artplace officials hope that these projects will catalyze local development in a way that traditional local government programs could not.  "If you think about the trajectory of community development, in the beginning, it was thought of as investments in housing," said Coletta. "Over time, it became clear that that's not enough. We need to have more complete communities." The grants, though small in the scheme of the California economy, come at an opportune moment in light of the state's budget crisis and especially the woes of its redevelopment agencies.  "It could help our redevelopment problems," said Currid-Halkett. "If there's one thing that artists tend to do historically, it is act as change agents in neighborhoods. They seem to set off a series of other kinds of activities, whether it's galleries, coffee shops, or restaurants, and those draw other residents."  Crucially, the arts generally require physical places, including neighborhoods where artists interact and buildings where they produce and display their work. That is a crucial distinction from those types of commerce that can take place online or that can be outsourced.  "Everybody's on Facebook and cell phones and everybody feels massively connected through the Internet, and yet the arts still continue to be one of the places where we connect," said Dani Thomas, executive director of grant recipient YoloArts. "And then you keep the money local." Representatives of the Berkeley Repertory Theater say that this process has already occurred in downtown Berkeley and that the Artplace grant may enable it to happen again in west Berkeley. The theater is establishing its Ground Floor incubator on Harrison street in a forlorn industrial district. The company expects to attract as many as 50 visiting dramatists, in addition to dozens of staff that will occupy offices there.  "It's an opportunity to do to a new neighborhood what (we did) in downtown Berkeley," said Meghan Pressman, managing directof of the Berkeley Rep. "Harrison Street is definitely a neighborhood in need of revitalization.  We're hoping to turn it into an incubator home that attracts new businesses." But the Artplace philosophy does not apply only to urban areas. One of its grants is helping to fund the Arts & Ag Project of YoloArts, which serves largely rural Yolo County. The project is intended to bring "artists out from their studios and farmers off of their farms," said Thomas. It is also promoting the display of art in unconventional places, such as gallery spaces in corner drug stores. The idea, says Thomas, is to demonstrate that art does not need to be the sole provenance of cosmopolitan elites.  "We're not Carmel, so we don't have a gallery every other building," said Thomas. "It's opened up the opportunity to start working with general businesses." The fact that Yolo County is not Carmel – and that Watts isn't SoHo – is central to the mission of Artplace's grants. Coletta said that Artplace is deliberately giving grants to organizations that it believes can be catalytic in communities. But it is not choosing communities prima facie, either because they have thriving arts scenes or because they might seem like fertile ground.  "We believe that investments in artists and arts organizations who have a passion for this work and for their community are the ones where we want to make investments," said Coletta.  "That is," said Currid-Halkett, "a sound strategy."  "I don't think with the arts it's, ‘if you build it they will come.' I think it's ‘build around what's already there,'" said Currid-Halkett.  Building, however, may be only half the battle. The other part lies in the permission to build environments that complement the work that arts organizations are attempting to do. Currid-Halkett noted that the typical arts neighborhood includes large spaces, live-work spaces, and often requires inexpensive real estate that fits artists' budgets. In the past, zoning and other regulations have all but forbidden such neighborhoods in cities nationwide. Halkett said that planners deserve credit for letting artists colonize SoHo.  "There was this choice to root them out and what they actually did was rezone for the artists to live and work there," said Currid-Halkett. "That is an absolute planners decision." Many Artplace grant recipients are hoping for similar cooperation from the public sector in their respective jurisdictions.  "There are certain factors that enable vibrancy, and planners know very well what those factors are: Create a better public realm, and tend to buildings where they hit the streets," said Coletta.  In some places, public sector officials are cooperating enthusiastically. Thomas, of YoloArts, said that she initially drew incredulous reactions from county officials who did not think that the arts had a place in either agriculture or economic development. Those attitudes appear to have changed.  "The health and the dynamism of an arts program in a jurisdiction is a key indicator of quality of life," said Ervin. Ervin noted that quality of life is almost impossible to measure – and, therefore, may not get much attention from public officials – but that it can be worthwhile.  "I'm not sure how much economic activity arts generates directly or whether that could be measured easily," said Yolo County Economic Development Director Wes Ervin. "It certainly enhances the experience of the visitor and…makes the place more attractive and, therefore, encourages placemaking."  Ultimately, Coletta said that the Artplace movement should extend beyond just the 34 recipients of the initial grants and even beyond future recipients. Instead, she hopes that other communities and organizations, in California and elsewhere, will cultivate their own arts communities and creative industries.     "We hope to invest not only in projects that will move the needle on vibrancy in their communities but also those projects that we can learn from and that others can learn from," said Coletta. ArtPlace America Grant Recipients in California: Bay Area (14 Counties): The Creative Work Fund provides grants and other means of support so that artists can collaborate with community-based nonprofits.   Berkeley: The Berkeley Repertory Theater's Ground Floor is an innovative incubator for new dramatic works. It is being established on a campus in an industrial area of west Berkeley.  Los Angeles: The Watts House Project enlists artists, designers, and architects to work on a range of community revitalization projects and programs around the Watts Towers.  Los Angeles: Good Magazine Ideas for Cities describes itself as a "continuing brainstorm" on the future of cities, in collaboration with CEOs for Cities.   San Francisco: Intersection for the Arts is partnering with developer Forest City on the "5M Project," which involves the redevelopment of four downtown acres near 5th Street and Mission. The property includes the old San Francisco Chronicle building, empty parking lots and vacant warehouses into space for film and digital-media businesses, artists' workshops, social-entrepreneur offices and cultural events. San Jose: 1st ACT Silicon Valley s a network of business, civic and arts leaders working to foster cultural engagement and help create an authentic sense of place and cultural identity for Silicon Valley. San Jose: Zero1 commissions local artists to create works that explore the relationship between culture and technology.  Yolo County: YoloArts Arts & Ag Project cultivates a dialogue between artists, farmers, and the community to raise awareness of the importance of preserving working landscapes, to promote sustainable agriculture and visual arts in Yolo County.  Contacts:  Artplace America Carol Coletta, Executive Director, ArtPlace America, 901.233.8496 Elizabeth Currid-Halkett, University of Southern California School of Planning, Policy, and Development, 213.740.4012 Wes Ervin, Economic Development Manager, Yolo County, 530.666.8066 Meghan Pressman, Managing Director, Berkeley Repertory Theater, 510.647.2949

In this off-year election, there are few land use measures on Nov. 8 ballots statewide. The City of Vernon's measures regarding term limits and other reforms represents a resurrection of sorts in the wake of the highly publicized efforts to disincorporate it. Updated Weds., November 10. San Mateo Measure G: Affordable Housing: Rejected, 52% opposed Measure G would amend the City of San Mateo's general plan to allow the city to impose housing impact fees and a fee refund incentive program to compel developers to provide below-market-rate units in rental properties. The measure is in response to  Palmer v. City of Los Angeles , which invalidated certain approaches to inclusionary zoning.   Vernon Measure A: Term Limits: Approved, 43-9 In response to the firestorm of criticism--and an attempted forced disincorporation--the industrial City of Vernon in Los Angeles County is pursuing reform measures now that it has a new lease on life. This measure would limit council members to two-five year terms, with a lifetime ban thereafter. Critics contend that city council members have ruled over the city for decades and treated it like their own fiefdom in the absence of term limits or a functioning municipal democracy. Vernon has fewer than 200 residents. The Vernon city ballot also includes measure regarding city administration, at-will employment, and prevailing wages. Pittsburgh Measure I: Urban Limit Line: Approved, 79% in favor Sponsored by developer West Coast Homebuilders, Measure I would amend Pittburgh's general plan and expand its urban limit line to accommodate a 193-acre development averaging three dwelling units per acre. The measure would pre-zone the land for a combination of single-family residential, high-density residential, and light industrial uses.

The words "green" and "cargo containers" hardly seem to belong in the same sentence. Shipping is a dirty business. Particulate matter and greenhouse gases have long blackened the lungs of people who live near the ports, giving the area the lowest air quality rating in the region. One source of foul air is the port equipment, including the diesel-burning cranes and tow-trucks that move containers from ships to trucks. More harmful, however, is the fleet of fume-vomiting trucks that haul containers from the ports to intermodal yards near downtown Los Angeles and other places further inland, where the containers are loaded onto rail cars to destined for points east. These trucks make an average of 6,000 trips daily to and from the ports (including multiple trips by individual vehicles.) Many of these trucks are more than 20 years old, and engines tend to emit increasingly more with age.  You can understand my initial incredulity, then, with the claim that the proposed $500 million Southern California International Gateway would be "the greenest intermodal facility in the U.S." This claim can be found in the draft EIR of the project, filed last month by the developer, BNSF Railways of Dallas, Texas. BNSF appears to be betting heavily on a government-relations campaign that emphasizes both environmental quality and improved efficiency in moving the metal boxes through the ports of Los Angeles and Long Beach. And the company has some progressive, even eye-opening suggestions on how to improve better air quality. Yet we still must ask whether BNSF is overstating the benefits the intermodal facility to bring to the region, such as improved air quality and lighter traffic on the 710 Freeway, the antiquated roadway leading to and from the ports.  An obvious tension exists between the goals of improving the air quality in the port area and the need to push millions of containers more quickly through the two ports onto waiting trains. The Los Angeles-Long Beach ports are the busiest in the nation, in part because they are primary point of entry for Chinese goods and/or American goods made in China. The aging 710 Freeway, which carries the bulk of the truck traffic to and from the ports, has undergone repeated studies for widening, although that prospect seems both expensive and politically volatile.    The basic premise of the BNSF intermodal yard is fairly simple: To cut down on pollution, they will shorten the distance that trucks must travel. Located about four miles away from the ports, the facility is far closer to the ports than BNSF's existing intermodal yard, which is 24 miles away in downtown Los Angeles. Shorter truck trips mean lower emissions overall, at least from those serving the new intermodal yard. (Many other trucks travel further to intermodal yards in the Inland Empire.) The shorter trip to the new yard means greater efficiency, with an expected increase of 1.5 million containers annually. The project sponsors, in the draft EIR, further claim that the project will improve traffic on the stop-and-go 710 Freeway. BNSF offers several other green features: One welcome decision is to use all electric equipment to move the containers. Another idea is to incentivize truck drivers to use cleaner-burning vehicles, by refusing to do business with drivers with substandard emissions.  All these green ideas are admirable, as far as they go. But will they make a meaningful difference to the brown air hovering over this heavily trafficked freeway? Sparing an estimated 1.5 million truck trips a year is a good thing. But the 710 Freeway is a thoroughfare in which demand always is greater than capacity. If BNSF actually manages to create some room on the road, that room will be quickly filled other truckers, who are driving their high-emissions trucks to container yards deep in the Inland Empire, shooting out tons of greenhouse gases and particulates all the while. So in this theoretical situation, BNSF gets good marks for increasing its own efficiency and sustainable practices, any claims to lighten traffic or reduce overall pollution, however, are not realistic. Similarly, the decision to do business with only low-emissions trucks seems to send the right message to the trucking industry. But if other container yard operators do not insist on cleaner trucks, BNSF has not really changed the equation. The preferences of one yard operator for clean burning truck engines over dozens of others that do not does not stack up as a strong enough incentive to change the behavior of truck drivers. Keep in mind that the majority of truck owners are small, family-owned businesses that bought older trucks because the latter cost a fraction of the sticker price of newer models. These owners do not have deep pockets. One meaningful program, sponsored by the ports, was to buy older trucks and cut them in half with acetylene torches, while the owners got a grant to help buy a newer, less polluting vehicle. A few dozen vehicles, however, are not enough to change the chronically poor air quality of the harbor area.  The resulting situation is an unenviable policy question that counterposes the needs of small business, the needs of big business, and those of public health. BNSF is "modeling good behavior," as they say in parenting class. The net improvement to the environment, however, remains questionable if others do not similarly change their trucks and their equipment.  But in the endless slow recovery, high-paying jobs are nothing to sneeze at. The best part of the BNSF container yard is that it promises 1,500 construction jobs for three years. Apparently the construction unions agree with me: In late October, when a group of them agreed to provide $255 million in project financing in exchange for an agreement from BNSF to hire union labor. If BNSF can't clean the air in L.A. County's worst air shed, they can at least make blue skies for a lot of under-employed people.

On October 7, the Los Angeles Chapter of the American Institute of Architects held a symposium to discuss opportunities to design communities that promote greater physical activity and equitable access to healthier lifestyles.  The event brought together a architects, planners, landscape architects, policy makers, urban designers, public health professionals, and students.  The major theme of the symposium is the need for greater cross-collaboration between architects and planners, and public health professionals to address the problem of obesity. Highlights of the event, by sub-topic, included: •         Public Health: Dr. Paul Simon with the L.A. County Department of Public Health provided important background on the historic connection between city planning and public health, with statistics on childhood obesity and healthcare spending that demonstrate the severity and urgency of the problem.  Dr. Simon also highlighted various ongoing efforts by the Public Health Department to create healthy communities, including the Policies for Livable, Active Communities and Environments (PLACE) and Renew Environments for Nutrition, Exercise, and Wellness (RENEW) programs. •         Planning: Los Angeles City Planning Director Michael LoGrande discussed the city's efforts in healthy design and planning such as: plans to incorporate a health chapter into the General Plan Framework, along with implementing ordinances; development of a health-centric transit-oriented development template in South L.A. along Metro Blue Line stations; and update of the Mobility Element of the General Plan to give Angelenos a full range of options including biking, walking, and public transit. •         "Living Streets": Consultant Ryan Snyder presented the idea that a living street is one in which the needs of automobile drivers are secondary to the needs of users of the street as a whole; it is a space designed to be shared by pedestrians, playing children, bicyclists, and low-speed motor vehicles.   Snyder's presentation focused on the Model Street Design Manual that was created through a writing charrette involving national experts.  This manual focuses on all users and modes, seeking to achieve balanced street design that accommodates automobiles while ensuring that cyclists, pedestrians, and transit users can travel comfortably and safely.  •         Community Engagement: Lark Galloway-Gilliam with Community Health Councils contended that the community needs to be engaged in any process to design and redesign communities.  She pointed out how past planning efforts lacked vision on the part of leadership and reflected disconnect between different public agencies responsible for planning, transportation, housing, and redevelopment.  Gilliam also stressed the need to speed up in coming up with strategies to help the residents of underserved communities. •         Recreational Space: Carolyn Ramsey discussed the Trust for Public Land's successful efforts in improving and increasing usage of existing parks through "fitness zones."  Fitness Zones are easy-to-use outdoor gyms designed to promote general health and introduce a new set of healthy activities to the park experience.  Installed in existing parks, the equipment is designed to be durable, vandal resistant, and appropriate for teenagers and adults of all fitness levels.  To date, 29 Fitness Zones have been installed throughout L.A. County and more are planned in the near future. An idea that was briefly mentioned during the symposium, but not fully discussed was the temporary closure of some streets for recreational activities. Inspired by Bogotá's Ciclovía, Los Angeles has held three CicLAvia events (most recently on October 9), which opened up some city streets to pedestrians and bicyclists, creating a temporary network of public space where participants could walk, bike, socialize, and learn more about their city. Closing streets temporarily recognizes the urgency of addressing the recreational needs of residents. Los Angeles could learn from New York City's Playstreets Program created by the city's Departments of Health and Mental Hygiene, Transportation, and Parks to battle childhood obesity.  This program is a quick and low-cost way to create active play space, and is a health measure that directly targets children, the city's most important at–risk population.  Other ideas also deserve consideration.  For example, given the success of mobile libraries, and the lack of land and money to develop permanent recreational facilities, mobile park spaces may also be employed as a way to bring in outside resources to a community in need. Mobile gyms provide additional opportunities for residents to work out and are flexible in that they can be parked at any location where vehicles are allowed.  Also, the conversion of existing buildings for recreational use is growing in popularity and has been carried out by both commercial interests and public agencies.  Warehouses, for example, have been converted to sports facilities for indoor soccer, badminton, handball, and batting cages. The symposium was successful in many ways.  Hopefully, it would lead to the rise of more political and professional champions in the architecture and planning realms, and the development of timely, effective solutions to promote greater physical activity in our communities and address the obesity crisis.  Clement Lau is a freelance writer and a planner with the Los Angeles County Department of Parks and Recreation.

In a feat of chronological gymnastics regarding a proposed development in the City of Napa, the Court of Appeal for the First Appellate District held that a Notice of Determination posted over the course of 31 calendar days was not posted long enough to satisfy the California Environmental Quality Act's requirement that it be posted for 30 days.  CEQA provides for shortened statutes of limitations to challenge project approvals if the local agency files and posts a Notice of Determination (NOD) according to Public Resources Code section 21152. The shortened statute of limitations means that a project opponent has 30 days, rather than 180 days to challenge the project approval. Public Resources Code section 21152 requires the local agency to file a notice of determination within five days of the project approval. The notice then must be posted within 24 hours of the receipt and shall remain posted for 30 days. In Latinos Unidos de Napa v. City of Napa , supra, (196 Cal.App.4th 1154), the Court of Appeal held that for the shortened 30-day statute of limitations to apply the notice must be both filed and posted, and the notice must be posted for 30 days, excluding the first day, and must be posted for the entire 30th day.  On June 16, 2009, the City of Napa approved revisions to the housing element of its general plan, and related general plan and zoning amendments, concluding the project would have no environmental effects beyond those identified and mitigated in the 1998 general plan. On June 17, 2009, the city filed an NOD with the county clerk. The cash register receipt shows the document was received at 9:05 on June 17. According to the Clerk, the NOD was posted from 10:00 a.m. on June 17, 2009 until at least 10:00 a.m. on July 17, 2009.  Petitioners Latinos Unidos, a group that advocates for affordable housing in the region, visited the clerk's office at 11:29 a.m. on July 17, 2009 and found no NOD posted. On September 17, 2009, Petitioner filed a petition for writ of mandate challenging the project approval, claiming the longer 180-day statute of limitations applied, rather than the shorter 30-day statute of limitations, because the NOD had not been posted for the full 30-days required by Public Resources Code section 21152 subdivision (c). The trial court granted the city's motion for a judgment on the grounds that the petition was barred by the 30-day statute of limitations. Petitioners appealed. Petitioners based their claim that the longer statute of limitations applied on an interpretation of the posting period in CEQA on Code of Civil Procedure section 12 which excludes the first day of posing and includes the last. Petitioner further argued that the NOD must be posted for the entire 30th day to satisfy the 30-day requirement.  The city argued the notice was posted over the course of 31 days – from 10:00 a.m. on June 17 to 10:00 am on July 17. The City further argued that even if the first day is excluded from the calculation, the NOD was posted for part of the 30th day, and thus, was adequate. Petitioners argued, that when calculated according to Code of Civil Procedure section 12, which excludes the first day and includes the last, the 30th day of posting was July 17. Further, Petitioners argued that the notice should have been posted for the full day on July 17, pointing to Scoville v. Anderson (1901) 131 Cal. 590 and other case law holding that the effect of fractions of days are disregarded when time is computed.    The court agreed with the petitioners.  The court rejected the city's argument that Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) (see CP&DR Legal Digest Vol. 25, No. 4 , Feb. 2010) stood for the proposition that the 30-day statute is triggered when the NOD is filed, not when it is posted. The court also rejected the City's argument that it had substantially complied with the 30-day posting requirement, stating that "any assessment of substantial compliance would introduce an element of subjective line-drawing into an area where clarity and precision are vital."  The court held that because the NOD had not been posted for the full 30 days as calculated according to Code of Civil Procedure section 12, the 180-day statute of limitations applied and the dismissal was reversed.  The practical effect of this case is that the 30-day posting period in 21152(c) is actually 32 days. However, the effect will be limited, given that a potential project opponent risks missing his filing deadline if he or she actually waits to see if the NOD was posted for the full statutory 30 days. The Case:  Latinos Unidos de Napa v. City of Napa (2011) 196 Cal. App. 4th 1154, No. A129584. The Attorneys:  For Plaintiff and Appellant: Law Offices of David Grabill and David Grabill. For Defendants and Respondents: Jarvis, Fay, Doporto & Gibson, Andrea J. Saltzman, Rick W. Jarvis and Julie M. Randolph  Leslie Walker is an attorney with Abbott & Kindermann , LLP, of Sacramento.

This case involved the perfect storm of events resulting in the flooding of the plaintiffs' properties and an ensuing legal tempest. Plaintiffs sued the county in court claiming that the flooding was a result of county's failure to maintain a county road, from which the runoff spilled. Plaintiff claimed that the county's neglect of the road constituted a taking and inverse condemnation. In Gutierrez v. County of San Bernardino , the Fourth District Court of Appeals grappled with the application of the "reasonableness" takings test that applies to flood control projects. The court concluded that the county acted reasonably, and therefore, there was no taking. Background In October 2003, a wildfire eliminated all of the trees on a section of the mountains north of the unincorporated community of Devore, where plaintiff Michael T. Gutierrez and other plaintiffs resided. In December 2003, it rained, causing water to flow down the mountain trapping debris and sediment in its wake. The water flowed across Greenwood Avenue and brought the debris and sediment to plaintiffs' properties. In an attempt to protect the properties from further flooding, the county placed concrete K-rails along the sides of the paved portion of the street on which plaintiffs' live. Unfortunately, another large rain storm passed through and the K-rails failed to contain all of the debris and settlement. Plaintiffs brought this action against the county on the grounds that the county's actions in maintaining the street in 2003 and 2004 caused the flooding, and thereby, constituted a taking. The trial court found in favor of the county, and plaintiffs appealed. Appeal On appeal, the appellate court divided the case into two separate issues: was there a taking in 2003, and was there a taking in 2004 by implementation of the K-rails? The court quickly dismissed the issue of the 2003 taking because the road that brought the debris and settlement was still in its natural state and never maintained by the county, and therefore it was not a "public improvement" for purposes of inverse condemnation. As to the part of the road that was paved, plaintiffs failed to present any evidence as to how this road caused the damage to their properties.  The court spent more time discussing the issue of the 2004 flooding. All parties and the court agreed that the K-rails installed in 2004 constituted a public improvement, and the court accepted the trial court's conclusion that the K-rails caused damage to plaintiffs' properties. Thus the only remaining issue, the one that took up most of the court's opinion, is whether strict liability or the "reasonableness test" applied. As stated in Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550, 565, "a public agency that undertakes to construct or operate a flood control project clearly must not be made the absolute insurer of those lands provided protection." For this reason, courts apply the reasonableness test to flood control improvements, which requires the court to evaluate whether "the design, construction or maintenance of the flood control project…posed an unreasonable risk of harm to the plaintiffs." The appellate court found that the K-rails constituted the type of flood control project to which the reasonableness test applied, and strict liability was not proper. After reviewing the record of evidence, the court found that "substantial evidence supports the trial court's conclusion that the county acted reasonably relative to its installation of the K-rails," and the trial court's decision was upheld in its entirety. The Case: Gutierrez v. County of San Bernardino (2011) 198 Cal.App.4th 831. Filed August 24, 2011.  Cori Badgley is an attorney with the firm of Abbott & Kindermann , LLP, of Sacramento.

Gov. Jerry Brown considered over 600 bills that came to his desk this legislative session. Some of the most contentious involved land use, particularly bills concerning redevelopment and the California Environmental Quality Act. The City of Los Angeles got a CEQA exemption for its proposed football stadium and infill developments have received special dispensation; speculation is that other such exemptions may be on the horizon. High-profile failures and vetoes include a bill opposing the expansion of Walmart in San Diego and a bill that would have lowered parking requirements in transit-oriented districts.  In total, the governor received 870 bills, the lowest number in decades. Yet, he still managed to veto 14 percent of them. Herewith is CP&DR's roundup of relating to land use that made the cut.  California Environmental Quality Act AB 320 (Hill) will prevent CEQA lawsuits and litigation from being thrown out in the event a "recipient of approval" appears only after the statute of limitations time period has passed. The bill will help bring clarity to the question of which parties must be named in CEQA lawsuits and litigation. AB 900 (Buchanan) will allow the governor to choose as many projects as he deems appropriate for the expedited judicial review process, primarily by skipping Superior Court review and expediting the timeline for the litigation process at Appellate Court. SB 226 (Simitian) seeks to streamline CEQA processes to facilitate projects (including rooftop solar, renewables on disturbed lands, and infill) that are generally considered ‘green'.  SB 292 (Padilla) establishes specified administrative and judicial review procedures for the administrative and judicial review of the EIR and approvals granted for a project related to the development of football stadium in the City of Los Angeles.  Land Use AB 147 (Dickinson) is an amendment of the Subdivision Map Act that allows municipalities to include fees to developers for constructing bicycle, transit, pedestrian or traffic calming measures.  AB 208 (Fuentes) extends by 24 months the expiration date of any approved tentative map or vesting tentative map that has not expired as of the effective date of this act and will expire prior to January 1, 2014. AB 516 (M. Pérez) establishes a specified public participation process for the establishment of Safe Routes to Schools programs.  Redevelopment AB 936 (Hueso) requires redevelopment agencies and other public bodies to report debt forgiveness. AB 1338 (Hernández) requires redevelopment agencies to get appraisals before acquiring real property.  Housing AB 221 (Carter) – The Housing and Emergency Shelter Trust Fund Acts of 2002 and 2006: supportive housing. AB 1103 (Huffman) allows localities to count foreclosed homes and second units converted into deed-restricted homes toward their regional housing needs assessment requirement. Allows cities and counties to plan to meet up to 25 percent of their Regional Housing Needs Allocation targets by converting foreclosed homes into homes affordable to low- and very low-income households. SB 562 (Committee on Transportation and Housing) Housing omnibus bill. Water & Waste AB 54 (Solorio) establishes new requirements for organizing and operating mutual water companies.   AB 359 (Huffman) would encourage the sustainable management of groundwater resources by requiring, as a condition of receiving a state grant or loan, local agencies to including a map of prime recharge areas in their groundwater management plans. It would then require these maps to be shared with the planning agencies, interested parties and organizations. AB 938 (M. Pérez). Public water systems. This bill would add environmental documentation to the costs of a single project that the department is required to determine by an assessment of affordability AB 964 (Huffman) authorizes any person to obtain a right to appropriate water for a small irrigation use. AB 1221 (Alejo) – State Water Quality Control Fund: State Water Pollution Cleanup and Abatement Account. SB 267 by (Rubio) – Water supply planning: renewable energy plants. SB 607 (Walters) – State Water Resources Control Board: water quality: brackish groundwater treatment. Environment, Parks & Open Space AB 42 (Huffman) allows the state to explore partnerships with non-profit organizations that can help support state park system.   AB 566 (Galgiani) amends the Surface Mining Act (1975) to include additional legislative findings, including, among other things, that the state's mineral resources are vital, finite, and important natural resources and the responsible protection and development of these mineral resources is vital to a sustainable California. AB 703 (Gordon) – Property taxation: welfare exemption: nature resources and open-space lands. AB 1036 by Assemblymember Michael Allen (D-Santa Rosa) – Parks: regional park, park and open-space, and open-space districts: employee relations. AB 1077 by Assemblymember Wilmer Amina Carter (D-Rialto) – State parks: Colonel Allensworth State Historic Park. AB 1112 (Huffman) Oil spill prevention and administration fee: State Lands Commission.  AB 1414 (Committee on Natural Resources) Forestry: timber harvesting. SB 152 (Pavley). Public lands: general leasing law: littoral landowners. Requires the State Lands Commission to charge rent for a private recreational pier, as defined, constructed on state lands and would require the rent to be based on local conditions and local fair annual rental values SB 328 (Kehoe) revises the Eminent Domain Law to establish requirements for acquisition of property subject to a conservation easement.  SB 436 (Kehoe) – Land use: mitigation lands: nonprofit organizations. Revises these provisions and would additionally authorize a state or local public agency to authorize a nonprofit organization, a special district, a for-profit entity, a person, or another entity to hold title to and manage an interest in property held for mitigation purposes, subject to certain requirements. SB 551 (DeSaulnier) – State property: tidelands transfer: City of Pittsburg. SB 618 (Wolk) allows landowners and local officials to simultaneously rescind Williamson Act contracts and enter into easements allowing photovoltaic solar facilities on the same land.  SB 668 (Evans) – Local government: Williamson Act. Authorizes a nonprofit land-trust organization, a nonprofit entity, or a public agency to enter into a contract with a landowner who has also entered into a Williamson Act contract to keep that landowner's land in contract under the Williamson Act, for a period of up to 10 years in exchange for the open-space district's, land-trust organization's, or nonprofit entity's payment of all or a portion of the foregone property tax revenue. SB 792 (Steinberg) – Surface mining: mineral resource management policies. SB 860 by Committee on Natural Resources and Water – Tidelands and submerged lands: public trust lands: mineral rights. Infrastructure & Transportation AB 529 Gatto (D-Burbank) – Vehicles: speed limits: downward speed zoning. AB 615 (Lowenthal) supplements Budget Act appropriations by appropriating $4,000,000 from the High-Speed Passenger Train Bond Fund to the authority for the Los Angeles to San Diego segment. AB 628 (Conway) – Vehicles: off-highway vehicle recreation: County of Inyo. AB 664 (Ammiano) allows San Francisco to form special waterfront Infrastructure Financing Districts for the Port America's Cup and Treasure Island areas.   AB 706 (Torres) – Metro Gold Line Foothill Extension Construction Authority. AB 716 (Dickinson) – Transit districts: prohibition orders: Sacramento Regional Transit District: Fresno Area Express: San Francisco Bay Area Rapid Transit District. AB 751 (Cedillo) concerns a freeway segment to be constructed without an agreement within the jurisdiction of the Los Angeles County Metropolitan Transportation Authority. AB 957 (Committee on Transportation) – Transportation omnibus bill. AB 892 (Carter) Department of Transportation: Environmental Review Process. Allows CalTrans to continue its participation in the National Environmental Policy Act delegation pilot program in SAFETEA-Lu or any successor federal transportation reauthorization legislation.  AB 1027 (Buchanan) requires local publicly owned utilities to provide space on their utility poles for use by communication service providers. AB 1097 (Skinner) authorizes a state or a local agency, relative to the use of federal funds for transit purposes, to provide a bidding preference to a bidder if the bidder exceeds Buy America requirements applicable to federally funded transit projects. AB 1143 (Dickinson) – Sacramento Regional Transit District: bonds. AB 1164 (Gordon) – Federal transportation funds. AB 1298 (Blumenfield) – Vehicles: parking: mobile billboard advertising displays. SB 310 (Hancock) allows cities and counties to adapt Infrastructure Financing Districts and other incentives for transit priority projects.   SB 325 (Rubio) enacts the Central California Railroad Authority Act to create the Central California Railroad Authority as an alternative for ensuring short-line railroad service in the Counties of Kern, Kings, Tulare, Fresno, and Merced. SB 468 (Kehoe) Department of Transportation: north coast corridor project: high-occupancy toll lanes. SB 771 (Kehoe). In regards to programs of the California Alternative Energy and Advanced Transportation Financing Authority, expands the definition of "renewable energy" to include energy generation based on thermal energy systems such as landfill gas turbines, engines, and microturbines; and digester gas turbines, engines, and microturbines. Local Finance, Governance, & Agency Formation AB 307 (Nestande) includes a federally recognized Indian tribe as a public agency that may enter into a joint powers agreement. AB 506 (Wieckowski) – Local government: bankruptcy: neutral evaluation. A signing message can be found here. AB 912 (Gordon) expedites the dissolution of special districts.   AB 1344 (Feuer) alters the statutory requirements regarding how cities and counties can put a proposed charter before the voters. Increases the noticing period from the regular 72-hour noticing requirement to a 10-week process. AB 1430 (Committee on Local Government) – The Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 omnibus bill. SB 244 (Wolk) General Plan: Disadvantaged Unincorporated Communities. Mandates General Plans be updated to address disadvantaged unincorporated communities. Cities required to submit dual annexation requests.   SB 555 (Hancock) allows Mello-Roos community facilities districts to finance renewable energy, energy efficiency, and water efficiency improvements on private property.

Sacramento County may not rank among California's great wine countries, but it does appreciate the value of aging. Eight years in the making, the land use element of the county's new general plan update is on the verge of approval by the county Board of Supervisors. In contrast with the contentiousness that has surrounded many other recently updated county general plans, this one—save some concerns about the protection of wild habitats—seems to be pleasing just about everyone.  The plan still holds the theoretical potential to expand the "Urban Policy Area" by up to 20,000 acres. However, in order to direct development towards what county planners explicitly refer to as a "smart growth" pattern, the county has established a novel set of benchmarks that proposed development must meet before they can even think about treading beyond the established Urban Policy Area.  "They have fashioned a really innovative kind of approach that I'm not sure anyone else has done exactly the same way," said Mike McKeever, executive director of the Sacramento Area Council of Governments. County Supervisor Phil Serna called it a "paradigm shift for how the county is going to consider growth in the future."  Critics of the growth management strategy contend that there will be political pressure to not follow through with the plan's density goals, which could then open up greenfields to development more quickly than planners anticipate. "Our big concern is, that despite strong criteria, the actual implementation of projects will involve a never-ending series of concessions and relaxations and decisions that will end up with the kind of development that we have historically seen at the edge of the urban area, which is primarily single-family residential, transportation systems that are inadequate, and more of the same kind of sprawl that we've been getting for the last 15-20 years," said Ron Burness, a member of the Executive Board of the Environmental Council of Sacramento. Last month, the Board of Supervisors tentatively approved, by a unanimous vote, the plan's growth management strategy and will soon consider the land use element. Final votes on both are expected by the end of the year. Supervisors say they have supported the plan because it responds to a host of environmental and economic concerns.  Though disputes and discussions have drawn out the planning process to an absurd duration, stakeholders say that its glacial pace may have averted a planning catastrophe. Had the plan been based on conditions before the real estate market crash, the results could have been disastrous. "When we started out, demand was a lot higher," said Storelli. "As the market tanked, we realized that we needed to scale back because demand wasn't that high. Our board of supervisors still wanted an opportunity to consider new growth areas so we had to come up with some criteria that weren't based off supply and demand." Torrid growth swept over the region in the beginning and middle of the last decade, pushing development into greenfields and creating what critics consider to be economically inefficient and environmentally unfriendly low-density communities. Planners say a general plan update based on these premises would have been useless for a host of changes that have taken place since 2008, most notably the near-death of new development that corresponded with the recession and mortgage crisis.  Contemplating a relatively slow-growth future, county planners turned to a more conservative but flexible scenario that, they say, is designed to limit growth at the urban fringes and encourage development within existing unincorporated communities. A significant portion of Sacramento County's population—roughly 550,000 out of 1.4 million county residents—lives in the county's 23 unincorporated areas. County planners say that SACOG estimates that demand could be for anywhere between 50,000 and 100,000 new housing units by 2030.  Attempts to control where and how development occurs have enjoyed mixed success in the past. The county established a pair of planning tools in 1993 meant to limit the growth of urbanized areas. The Urban Policy Area defines territory where the county provides services and allows growth; it could be expanded to accommodate projected growth for a 25-year period. The Urban Services Boundary, however, is a rigid boundary extending beyond the UPA designed to mark the absolute extent of all future development in the county. Environmentalists and other critics have lamented that in the boom years of the 2000s, the UPA was expanded almost at whim by the Board of Supervisors.  The new land use element attempts to remove political whims from the shaping of the county's growth. Yet, many stakeholders, including environmental groups, are unnerved by the fact that the element still allows for the potential expansion of the UPA by 20,000 acres. However, planners caution that what the plan allows for, and what will actually take place on the ground, are likely to be two vastly different things.  "It doesn't actually open up anything," said Storelli. "If you (developers) meet these very stringent criteria you can initiate an application that would expand the USB and only then would the land open."  For the board to consider extending the UPA or approving a master plan beyond UPA boundaries, developments must meet some combination of the following criteria as outlined in the draft growth management plan:  • A "Justification Statement" that shall be a comprehensive explanation of the proposed request and the development it would allow.  It must include background information, reasoning, and the goal(s) and benefits of the proposed project. • "Significant borders" that are adjacent to the existing UPA or a city boundary.  As a guideline, "significant borders" generally means that the length of the boundary between the existing UPA or city boundary and the proposed UPA expansion/Master Plan should be 25 percent of the length of the boundary of the UPA expansion area.  • A vision of how the development will connect to other adjacent existing and potential future development areas within the USB, including how roadways, transit, sewer, and water could occur within all adjacent areas.  • A variety of housing types and densities, including single-family homes, duplexes, triplexes, accessory dwelling units, townhomes, condominiums, apartments and similar multi-family units, in a variety of settings including both residential neighborhoods and mixed use nodes.  • Design guidelines, development standards and/or similar assurances that will require high-quality development consistent with the vision set forth in the Master Plan.  These criteria are meant to guide growth to infill areas, with particular attention to older commercial strips that, planners say, are ripe for redevelopment. The plan text includes the goal of "enhancing quality of life in every community, as well as utilizing vacant and underutilized lands to accommodate future economic and population growth." This will take different forms in maturing suburban places such as Arden-Arcade, which is nearly fully built-out, as opposed to more rural communities that are expected to experience significant growth.  "It's a more thoughtful approach than just looking at projected housing and jobs and treating it in a sterile, quantitative fashion only," said Serna. "We're trying to address growth in the context of what is that future growth going to mean not just in terms of its land uses but what is it going to be in terms of its connection between land use, transportation, and air quality." As long as that list of criteria may be, its certainty and flexibility may actually be appealing to developers who are desperate for some kind of predictability.  "Previously they were looking at more of a supply-and-demand model, and those numbers can swing from very high to very low, which is what the county has experienced over the eight-year cycle of developing their general plan," said John Costa, Senior Legislative Advocate of the North State Building Industry Association. "This provides a better framework for projects moving forward in the planning process and have a better idea of what they are developing for." While developers may need some time to wrap their minds around this new approach to development, one group that welcomes the county's approach wholeheartedly is the Sacramento Area Council of Governments. SACOG is responsible for preparing the region's Sustainable Communities Strategy as mandated by Senate Bill 375, the 2008 law requiring major metro regions to reduce per capita greenhouse gas emissions by better integrating land use and sustainable transportation policies. Though SACOG's SCS is only in the early planning stages, SACOG and the county planning department collaborated to ensure that the general plan update—and the projects that result—would reflect the same goals and values as the SCS.  "They may end up entitling some projects that meet their smart growth criteria that have more market capacity than will fit inside our SCS in any given planning cycle, but that's fine," said McKeever. " This collaboration represents a new approach to the interplay between local and regional planning. Defanti noted that the economic climate was not the only thing that changed in the last eight years.  "Throughout this process, the economy has violently fluctuated on us and that the regulatory environment has fluctuated as well," said Defanti. "Central to that has been SB 375." Serna echoed that sentiment, saying "it is a new day and we do have a responsibility to respond to a different regulatory and different legislative environment."  That regulatory change has, according to McKeever, made metropolitan planning organizations, such as SACOG, even more relevant to local planning efforts.  "The actions of MPOs are now front-and-center, so even though it's a little bumpy in some regions, everyone is looking in much more detail at how these regional plans are built," said McKeever. Area developers remain anxious about what form infill development will actually take in a county that has historically embraced single-family, low-density development.  "The difficulty that we've seen through the process is that the density levels are higher than we're used to in this area," said Costa. "Some members have concerns about whether that's viable to build." Burness pointed to three developments already in the planning stages that would extend the urban fringe, as well as potential annexations by cities including Folsom and Sacramento.  "All of these efforts on the part of landowners by and large (have pushed) at the edges of the urban area," said Burness.  Costa rejects the contention that the new plan would foreshadow rapid suburban growth.  "You may see projects in the planning stages, but we don't believe that the county is going to open up this area to growth anytime soon," said Costa. He added that many BIA members focus on infill and not just on greenfield development.  As well, county planners contend that the growth management strategy has built-in disincentives to greenfield development.  "Any new development that would be coming forward would have to show how it pays for itself, and hopefully would be a net benefit to the county," said Defanti.  Contacts & Resources:  Rob Burness, Executive Board, Environmental Council of Sacramento, 916.444.0022 John Costa, Senior Legislative Advocate, North State Building Industry Association: 916.751.2753 Dave Defanti, Senior Planner; Cindy Storelli, Principal Planner; Planning Division, County of Sacramento, 916.874.6141 Mike McKeever, Executive Director, Sacramento Area Council of Governments, 916.321.9000 Phil Serna, Supervisor, County of Sacramento, 916.874.5485

The California Supreme Court announced today that it will hear oral arguments in San Francisco on  California Redevelopment Association v. Matosantos on November 10. The lawsuit challenges the constitutionality of the state's plan to eliminate redevelopment agencies unless they agree to pay $1.7 billion for FY 2011-12 and $400 million in subsequent budget years. The initial petition was filed on July 18 by the California Redevelopment Association, the League of California Cities, and the cities of San Jose and Union City. The suit claims that the state's budget plan runs afoul of Proposition 22, which passed last yaer and was designed to protect local funds from state captures. In August, the Court agreed to hear the case on an expedited basis, in order to reach a decision before Jan. 15, 2012, when the first payments under AB 1x 27 are due.

In the ongoing billboard wars that have taken place up and down the state in recent years, the advertisers have won the latest legal battle.  In Hill v. San Jose Family Housing Partners, the Court of Appeal for the Sixth Appellate District held: (1) that a written easement for a billboard was enforceable, even if the billboard was constructed in an illegal manner; and (2) that the servient owners of a development that unreasonably interfered with the visibility of the billboard could owe the billboard owner damages for lost profits. Plaintiffs James C. Hill and Dawn L. Hill and defendants San Jose Family Housing Partners (SFJHP) own adjacent parcels of land located along U.S. Highway 101 in San Jose. Since the 1970s, the Hills have owned and operated a two-sided commercial billboard on a section of SJFHP's parcel, near the joint property line. In 2000, the Hills and SJFHP's predecessors in interest entered into a written easement agreement relating to the Hills' use of the billboard.  The purpose of that easement was " o do all things necessary and incidental to the operation of the business of a billboard including, but not limited to, placement, construction, reconstruction, maintenance and repair of the billboard … all to facilitate the billboard business or any other lawful purpose associated with the use of the Dominant Tenement." The easement also expressly provided that "no structures, vegetation, or other objects will be allowed to interfere with or encroach on the easements in the above described Grant Deed and as, herein, referenced." In or about 2007, the Hills learned that SJFHP planned to construct on its property a multi-unit residential development, which would obstruct the view of the billboard's north face. The Hills brought a lawsuit against SJFHP in 2007 for injunctive relief and damages.  In that lawsuit, SJFHP raised an affirmative defense that the easement is unenforceable because the billboard was constructed and maintained in violation of county and city building codes and ordinances. The trial court rejected that defense. The trial court also held that the easement agreement must be interpreted "to allow viewing of the billboard," and that SJFHP's development interfered with the Hills' easement by obstructing it. The trial court therefore awarded damages in the amount of $778,539, which included lost future profits through 2037.  After trial, the City of San Jose issued a compliance order that directed removal of the "illegally constructed billboard." SJFHP moved for a new trial on the grounds that this newly-discovered evidence of the city's actions would substantially reduce or eliminate the lost profits portion of the Hills' damages award. The trial court denied the motion. SJFHP appealed.  On appeal, the court affirmed the trial court's determination as to the illegality defense. SJFHP argued that if the billboard is itself illegal, its use for advertising is also illegal, and therefore the easement agreement is unenforceable. The court disagreed. This was not a case where the parties entered into an easement agreement that allowed for an illegal use of the property. The court explained: "The Hills' action to enforce the easement is entirely legitimate because the property's use for advertising purposes is not illegal in and of itself. Although the instrumentality of that use, i.e., the billboard, may be illegal, that is not a bar to the enforcement of the agreement."  The court also affirmed the trial court's interpretation of the easement agreement. SJFHP argued that the easement did not prohibit SJFHP from developing its property since such development does not restrict the Hills from operating, maintaining or accessing the billboard (even if that development reduced the profitability of that billboard business). The court disagreed. Instead of seeking an impermissible easement for light, air or view, the Hills were seeking enforcement of an easement that expressly provided that its purpose is to allow for the operation of a billboard business. The court explained: "Since the point of a billboard is that it be visible to potential consumers, it is clear the intent of the easement was to prohibit unreasonable interference with the structure's visibility. Such interference would necessarily impinge on the Hills' operation of the billboard business…. t is clear the parties to the easement agreement necessarily intended that the billboard must be visible to passing motorists." However, the court reversed the trial court's judgment and order, denying the motion for a new trial, in light of the evidence regarding the city's post-trial efforts to remove the billboard. The court remanded the matter for retrial on the issue of damages, and directed the trial court to stay the retrial pending a final resolution of the city's removal actions. The Case:  Hill v. San Jose Family Housing Partners (2011) Cal.App.4th, Filed Aug. 23, 2011. No. H034931. Cal. App. LEXIS 1101 The Attorneys:  For the Plaintiffs/Respondents: Law Office of Scott S. Furstman, Scott S. Furstman; Law Office of Paul J. Derania, Paul J. Derania  For the Defendant/Appellant: Incorvaia & Associates, Joel L. Incorvaia, Lavanya Ramachandran, and G. Ehrich Lenz  Glen C. Hansen is an attorney in the law firm  Abbott & Kindermann , LLP, of Sacramento.

As with most things in life, one person's gain is another person's loss, and public-private partnerships are not exempt from these types of tradeoffs. To the state engineers and their representative union, the contracting out to private engineering firms of engineering services traditionally performed by Caltrans engineering staff represents one of those zero-sum games. This becomes the backdrop to a challenge to the Phase II improvement work on Doyle Drive, the highway approach to the southern terminus of the Golden Gate Bridge. At the heart of the litigation is Streets and Highways code section 143, a section permitting public private partnerships. This statute allows Caltrans to hire outside engineering companies for work traditionally performed by Caltrans engineering staff. Work on Doyle Drive dates back to 1998, when, through a series of cooperative agreements between Caltrans and San Francisco County Transportation Authority (SFCTA), SFCTA undertook a number of feasibility studies for improving the roadway. In 2009, the Legislature significantly expanded potential opportunities for public private partnerships, also known as P3s. Caltrans ultimately awarded a P3 contract to a private contractor, and a separate cooperative agreement with SFCTA. The agreements called for a supervisorial role for Caltrans, but project construction would be the responsibility of the private contractor. The state Professional Engineers union filed suit, seeking to set aside the contract and enjoin the action. The trial court denied relief, which was affirmed on appeal. The plaintiff's primary attack claimed the project did not qualify as a P3, as Caltrans had not been acting as a responsible agency, as the initial engineering work had been performed by private consultants working for SFCTA. Responding to an argument over legislative interpretation, the appellate court ultimately concluded that responsible agency status required Caltrans to be responsible for the work, not that it was required to perform the work. The court held that, under the terms of the various agreements, this element was satisfied. Given the current state budget pressures in Sacramento, it will be worth watching to see whether or not the less-government-rather-than-more movement will make further inroads into contracting out services traditionally performed by agency employees. The Case:  Professional Engineers in California Government v. Department of Transportation (2011) Cal.App. 4th No. A131449, 2011 DJDAR. Filed August 8, 2011. The Attorneys:  Somach Simmons & Dunn, Jennifer T. Buckman, Kanwarjit S. Dua and Gerald A. James for Plaintiffs and Appellants Ronald W. Beals, Chief Counsel, Thomas C. Fellenz, Deputy Chief Counsel, Todd Van Santen, Assistant Chief Counsel and Erin E. Holbrook for Defendants and Respondents California Department of Transportation et al. Nossaman LLP, Stephen N. Roberts, Stanley S. Taylor III for Defendants and Respondents San Francisco County Transportation Authority et al. Stoel Rives LLP, Barbara A. Brenner and Craig A. Carnes for Amicus Curiae American Council of Engineering Companies of California William W. Abbott is a senior partner in the law firm Abbott & Kindermann , LLP, of Sacramento.