The California Supreme Court has upheld the constitutionality of the state's "quick take" eminent domain process in which a public agency may take ownership of a property before a trial on final compensation for the property owner. The case was brought by Azusa Pacific University. In October 2000, Mt. San Jacinto Community College District commenced an eminent domain action to acquire 30 acres owned by Azusa Pacific in Riverside County. Two months later, the district deposited $1.789 million into court as probable compensation and applied for a prejudgment order of possession — a quick take. The court approved and the district took possession in January 2002. The university disputed the $1.789 million figure and the trial court eventually ruled that the value should be set to coincide with the start of the trial on the question of valuation, which was in December 2004. Between 2000 and 2004, property values increased dramatically. An appellate court reversed the trial court and said the date of valuation was December 2000, when the district deposited the funds for a quick take. At the state Supreme Court, Azusa Pacific argued that the quick take process put the university in the untenable position of having to choose between constitutional rights. The university could withdraw the deposited funds but, under the law, would then be precluded from litigating the legality of the taking itself. If it did not withdraw the funds, the university could litigate the taking, but the district would still have ownership of the property, meaning the university would have neither its property nor just compensation. But a unanimous state Supreme Court ruled that the process is constitutional. "The only constitutional limitations on the right of eminent domain are that the taking be for a public use, and that just compensation be paid," Justice Ming Chin wrote for the court. "The university does not claim that the condemnation is not for a public use. In addition, § 1255.260 does not require waiving a claim for greater compensation with withdrawal of the deposit. Thus, the university is not being forced to waive a constitutional right." "The condemner has a right to immediate possession of the property," Chin continued, "and made a deposit of probable compensation. The owner had the right immediately to withdraw that deposit. The existence of conditions on withdrawal on the owner's solely statutory right to further litigate the legality of the taking does not deny the owner just compensation." The court also upheld the earlier valuation date. If valuation were delayed, the court noted, "owners in a rising real estate market would have a considerable incentive to delay proceedings." The Case: Mt. San Jacinto Community College District v. Superior Court of Riverside County , No. S132251, 2007 DJDAR 2399. Filed February 22, 2007. The Lawyers: For the district: David Hubbard, Redwine & Sherrill, (951) 684-2520. For Azusa Pacific University: Michael Berger, Manatt, Phelps & Phillips, (310) 312-4000.

An appellate court has thrown out a property owners' lawsuit claiming that the Town of Tiburon's special assessment to pay for undergrounding utilities violated Proposition 218. The court ruled that the lawsuit was actually a "reverse validation action," and that the property owners failed to meet procedural deadlines. The property owners contended that they should be able to contest the assessment as a violation of Proposition 218 and not be bound by the strictures of the validation statutes. But a unanimous three-judge panel of the First District Court of Appeal, Division Three, disagreed. "The validation statutes and Proposition 218 address different concerns. Whereas Proposition 218 mandates compliance with certain procedures before a special assessment may be levied, the validation statutes provide rules of procedure for legal actions challenging an assessment after its adoption," Presiding Justice William McGuiness wrote for the court. Four years ago, the Tiburon Town Council decided to start putting together the Del Mar Valley Utility Undergrounding Assessment District based on the Municipal Improvement Act of 1913. A subsequent engineer's report found that placing the utility lines underground would provide aesthetic, service reliability and safety benefits to owners of about 220 properties. In May 2005, the town conducted an election in which 71% of property owners approved the proposed assessment district. On June 16, 2005, the owners of two properties in the district — including Jean Bonander, city manager of nearby Larkspur — sued Tiburon. They argued the assessment of $31,146 was excessive, there was no substantial evidence that placing utility lines underground would benefit their properties, and the city's process was faulty. The property owners sought to invalidate the town's approval of the district. Fifty-nine days later, the property owners' attorney "discovered" that validation statutes may apply. Those laws require litigants to follow special procedures, including preparing a summons directed to "all persons interested" and publication of the summons in a newspaper of general circulation within 60 days of filing the suit. The property owners made a last-minute attempt to comply but missed the 60-day deadline. The town then filed a motion to dismiss the lawsuit, which a Marin County Superior Court granted. The court found that the lawsuit was subject to the validation statutes, that the property owners did not comply with the statutes, and that there was no "good cause" for the failure to comply. On appeal, the First District upheld the lower court. The Legislature approved the validation statutes (Code of Civil Procedure § 860 et seq.) during the early 1960s. Under the laws, a public agency may bring a lawsuit to get a court ruling on whether the agency's action is legal. Any "interested person" may bring a similar suit, which is called a "reverse validation action." A ruling in such suits is intended to preclude further litigation over the action. Proposition 218, meanwhile, was a 1996 follow-up to Proposition 13 and requires a vote on tax increases, special assessments and fees. There was little dispute that the Tiburon property owners failed to comply with the validation statutes' requirements relating to summons and publication. The real question, according to the First District, was whether the validation statutes applied. Not all local government actions are subject to validation. However, an assessment based on a 1913 Municipal Improvement Act district qualifies, the court ruled. The property owners argued that they sought a remedy for only their properties — and not a ruling on the entire assessment district — but the court rejected this contention. "The special assessment on appellants' properties was not levied in isolation and without regard to other properties in the district," Justice McGuiness wrote. The fact that they were contesting the assessment as a violation of Proposition 218 did not matter, McGuiness added. "A property owner may seek to invalidate a special assessment on the ground the procedures leading to the assessment's adoption violated Proposition 218. The nature of the action is dictated by the statutory scheme, such as the 1913 Act, under which the assessment was levied," McGuiness wrote. "In the case of the 1913 Act, such a proceeding must be filed as a reverse validation action. This is so regardless of whether the challenge is premised on asserted violations of Proposition 218 or any other constitutional provision." The property owners argued that because the issue of whether the validation statutes applied was "complex and debatable," the property owners had good cause for failing to comply with procedural requirements. But the court said, "The issue is neither complex nor debatable. … It is well settled." Although the First District ruling apparently ends one round of litigation over the Tiburon assessment district, a second suit was filed in 2006 over a supplemental assessment district formed to cover rising costs. According to the city, 56% of property owners approved the supplemental district; however, a suit filed by about 30 property owners alleges vote tampering by the city. In the meantime, the undergrounding project remains on hold. The Case: Bonander v. Town of Tiburon , No. A112539, 07 C.D.O.S. 1935, 2007 DJDAR 2463. Filed January 31, 2007. Ordered published February 22, 2007. The Lawyers: For Bonander: Frank I. Mulberg, (415) 388-0605. For Tiburon: Thomas R. Curry, McDonough, Holland & Allen, (510) 273-8780.

Claims of taking and due process violation filed by a Ventura mobile home park owner who was denied rent increases have been rejected by the Second District Court of Appeal. The unanimous three-judge panel ruled that the trial court correctly dismissed the taking claim after deciding that rent increases granted to the park owner fell within a "broad zone of reasonableness." The Second District also ruled that procedural decisions of the trial court and Ventura's Rent Review Board did not deny the landlord due process. In early 2003, the owner of the 125-space Stardust Mobile Estates submitted an application for rent increases under Ventura's rent control ordinance. Stardust requested increases of $9.95 to $12.19 per month based on inflation and $16,000 worth of driveway repair and replacement expenses. Stardust also sought an increase of either $300 per month because rent control had provided tenants with tens of thousands of dollars in "premiums," or $50.50 because the landlord had not received past increases based on the full rate of inflation. Stardust further sought a $24 increase in the base year rate, which was established in 1981 when the city adopted rent control. In May 2003, the city's Rent Review Board approved rent increases of $9.23 to $9.70 based on inflation but rejected all other requested rent hikes. Stardust then filed a lawsuit challenging the rent board's decisions, and contending that the board had violated the park owner's due process rights and caused a taking of private property. Ventura County Superior Court Judge Henry Walsh ruled against the property owners but directed the city to increase rents based on the park owner's driveway maintenance expense. Ever since rent control became common during the 1970s, property owners have claimed that limited rent increases posed an unconstitutional taking. Property owners generally have not gotten far in court, but there was a brief period earlier this decade when they appeared to gain. In 2004, the Ninth U.S. Circuit Court of Appeals ruled the City of Cotati's mobile home rent control law was unconstitutional because the possibility existed that tenants might receive what amounted to a transfer of equity when selling their units in a rent-controlled park. For this reason, the court found that the ordinance did not "substantially advance" the goal of providing affordable housing. ( Cashman v. City of Cotati , 374 F3d 887; see CP&DR Insight , October 2004; CP&DR Legal Digest , September 2004). The Ninth Circuit's ruling in Cashman threw into doubt most mobile home rent control laws in California. However, less than a year later, the U.S. Supreme Court ruled in Lingle v. Chevron U.S.A., Inc. , (2005) 544 U.S. 528, that the "substantially advances" test does not apply when a court is determining whether a regulation effects a taking (see CP&DR , July 2005). The Lingle decision appeared to close the legal door that the property owners had kicked open; Judge Walsh cited Lingle in ruling against Stardust Mobile Estates. On appeal, Stardust argued that Lingle did not affect its taking claim, which it said was based on Penn Central Transp. Co. v. New York City , (1978) 438, U.S. 104. A Penn Central claim requires a court to consider the economic impact of a regulation on the property owner, the regulation's impact on "distinct, investment-backed expectations," and the character of the government action. Stardust argued that it was entitled to a trial on the Penn Central claim, which Judge Walsh had dismissed. The Second District found that Stardust's claim was based in part on the substantially advances test, and that the lower court handled things correctly. " he trial court concluded that substantial evidence supported the rent board's decision except for its ruling on driveway expenses, and the court remanded the case to the rent board which granted Stardust compensation — a rent increase that included the driveway expense, plus interest on those expenses," Justice Paul Coffee wrote for the court. " he court necessarily considered the factors that our state Supreme Court indicates must be considered in evaluating Penn Central taking claims. The court concluded that Stardust had no taking claim and correctly decided that the rent increase granted to Stardust provided it with a return that fell within the requisite ‘broad zone of reasonableness.' Having done so, the court properly dismissed the taking claim." The appellate court also rejected Stardust's contention that it was denied due process because it could not cross-examine witnesses during a Rent Review Board hearing or discover additional evidence at the trial court level. The court did rule for the property owner in one key area, though. Stardust sought a "Vega" adjustment to its base year rent because, when the ordinance took effect in 1981, rents were below market rate. Under Vega v. City of West Hollywood , (1990) 223 Cal.App.3d 1342, a property owner may seek a base year rent adjustment if the rent at the time was not reflective of general market conditions. Stardust contended that rents were artificially low in 1981 because the then-park owner was trying to assist elderly tenants. The rent board ruled that it could grant a Vega adjustment only if there were unique circumstances, and that none existed here. But the court said that the "peculiar circumstances" in the Vega decision referred to West Hollywood's ordinance. Ventura's ordinance "contains no ‘unique' or ‘peculiar' circumstances requirement," the court found. Thus, the court found the rent board's decision "arbitrary and unreasonable." Even the city's consultant had found that a Vega adjustment was warranted, only not as much as the property owner requested, the court noted. The court returned the issue of a base year adjustment to the city. The Case: Stardust Mobile Estates v. City of San Buenaventura , No. B186454, 07 C.D.O.S. 1955, 2007 DJDAR 2447. Filed February 22, 2007. The Lawyers: For Stardust: Robert Coldren, Hart, King & Coldren, (714) 432-8700. For the city: Donald Lincoln, Endeman, Lincoln, Turek & Heater, (619) 544- 0123.

Publisher WILLIAM FULTON founded California Planning & Development Report in 1986. A former newspaper reporter, Mr. Fulton is also President and CEO of Solimar Research Group, a California-based public policy research firm, and a Senior Scholar at the School of Policy, Planning, and Development at the University of Southern California. He is the author of three books considered classics in their field. The Reluctant Metropolis: The Politics of Urban Growth in Los Angeles , an L.A. Times best-seller, uses novelistic storytelling techniques to trace the way a leading metropolis grew and developed. The Regional City: Planning for the End of Sprawl , co-authored with architect Peter Calthorpe, is a pathbreaking work that has reshaped understanding of how metropolitan regions should be planned and designed. More than a decade after its original publication, Guide to California Planning remains the standard textbook for urban planning classes. He is also founder and publisher of the monthly periodical California Planning & Development Report. Mr. Fulton was elected to the Ventura City Council in 2003 and has led that city's innovative effort to promote sensitive infill development. He was active in the incorporation of the City of West Hollywood in 1984 and was one of the first appointees to the West Hollywood Planning Commission upon its creation in 1986. Mr. Fulton has also been active in the economic development arena as well. He is the economic development columnist for Governing magazine and has worked on a series of economic development strategies for communities across the country, focusing on Arizona and Upstate New York. Mr. Fulton holds a master's degree in journalism/public affairs from The American University in Washington, D.C., and a master's degree in urban planning from the University of California, Los Angeles.

Monterey County voters rejected a general plan initiative while sending mixed signals on a general plan update adopted by the county. Voters also rejected a 1,100-unit subdivision during a special election on Tuesday. The "no" side won all four ballot measures, even though two of the no votes conflicted with each other in the contentious and confusing election with a low turnout. Measures B and C both concerned a general plan update that the county adopted in January. County supervisors placed Measure B on the ballot. It asked whether the plan should be overturned — meaning that a "no" vote was a vote for the plan. Measure C was a referendum qualified by environmentalists and was more straightforward. "No" on Measure C meant no on the plan. Voters said "no" in both instances, providing conflicting results. But the Measure C referendum received more "no" votes than Measure B. When there are conflicting results, typically the side with the most votes wins — and here it would be voters' rejection of the county general plan via referendum. County officials initally began proceeding as if the Measure B vote — "no" on throwing out the plan — is controlling because it was an affirmative (really, a double-negative) vote that made the referendum irrelevant. Plan opponents have called the county's initial interpretation ridiculous, and now there is talk about trying to reach a compromise. "The extremes need to be ignored," Supervisor Simon Salinas told CP&DR . Much of the campaign focused on Measure A, a general plan initiative that would have prohibited most development outside the unincorporated communities of Castroville, Pajaro, Fort Ord, Boronda and Chualar. Environmentalists backed the initiative, arguing that it would prevent the county's rich farmland from being converted to subdivisions for Silicon Valley commuters. However, farmers, ranchers, and business and real estate interests opposed Measure A, contending it was unfair to landowners and would prevent the development of affordable housing. Monterey County has spent seven years trying to update its 1982 general plan, and the version on the ballot Tuesday was the fourth draft (known as GPU4). The electorate also rejected the 1,100-unit Butterfly Village project just north of Salinas. Measure D was the second referendum on development of the Rancho San Juan area. In 2005, on the same day that supervisors approved Butterfly Village, voters rejected a specific plan calling for 4,000 housing units on the site. The Butterfly Village developer, Mo Nobari's HYH Corporation, won a lawsuit in 2001 over the county's slow processing of the project, and additional litigation in light of the referendum is likely. There also is already litigation pending over GPU4. The results: Measure A (general plan initiative): No, 56.3% Measure B (reject the county's general plan update): No, 53.2% Measure C (keep the county's general plan update): No, 55.1% Measure D (uphold Butterfly Village approval): No, 63.7%

The opponent of a proposed house on the Big Sur coast cannot challenge Monterey County's environmental review of the project because the Coastal Commission provided the ultimate decision on the project, the Sixth District Court of Appeal has ruled. The county had approved the proposed house, but the aggrieved neighbor appealed to the Coastal Commission, which also approved the project. "With the Coastal Commission's decision to accept the administrative appeal, the county's CEQA determinations were converted into intermediate decisions, lacking finality," the court ruled. As a result, the project opponent "no longer has any CEQA claims against the county, which is ‘no longer plaintiff's adversarial opponent.'" For six years, Dr. Hugh McAllister, chairman of the World Wildlife Fund's Marine Leadership Committee, has been trying to prevent neighboring property owners Sheldon Laube and Dr. Nancy Engel from building a single house on two 2-acre parcels on Kasler Point. The Big Sur Land Use Advisory Committee initially endorsed the proposed 10,000-square-foot house in March 2001. Based on McAllister's objections, Laube and Engel relocated the proposed house and the advisory committee again gave its approval. The project then went to the Planning Commission, which certified a mitigated negative declaration, and approved a parcel merger and the project in October 2003. McAllister appealed to the Board of Supervisors, which denied the appeal. In February 2004, McAllister simultaneously filed a "precautionary" appeal of the Board of Supervisors' decision with the Coastal Commission, and sued the county, his neighbors and the Coastal Commission. In late 2004, the Coastal Commission approved a slightly modified proposal. In February 2005, Monterey County Superior Court dismissed the litigation. McAllister's original lawsuit made a number of claims, but his appeal of the Superior Court ruling was limited. He argued that the county violated CEQA, and that the county's decision was null and void because it violated the county's local coastal plan. McAllister argued that because the county was the lead agency under CEQA, and the Coastal Commission was only a responsible agency, the county's CEQA compliance should be subject to legal review. The court agreed that the county was the lead agency and the Coastal Commission was the responsible agency, but the court disagreed with McAllister's legal conclusion. The court cited Kaczorowski v. Mendocino County Bd. of Supervisors , (2001) 88 Cal.App.4th 564, 570, in which a court dismissed a lawsuit over a guest inn proposed near Fort Bragg because the project opponent failed to name the Coastal Commission in the lawsuit (see CP&DR Legal Digest , July 2001). The Coastal Commission had approved the project after the same opponents appealed the county's decision to approve the project. "The county's CEQA decisions," the Sixth District ruled in the Big Sur case, "have been superceded by the Coastal Commission's environmental review. ‘The commission's findings that the project complied with CEQA superceded equivalent findings by the County Board of Supervisors in precisely the same manner that the board's decision superseded that of the planning commission.'" The court distinguished this case from Save San Francisco Bay Assn. v. San Francisco Bay Conservation etc. Com. , (1992) 10 Cal.App.4th 908. In Save San Francisco Bay , which McAllister cited for support, the First District Court of Appeal considered challenges to both the City of San Francisco's environmental document for a proposed aquarium, and the Bay Conservation and Development Commission's environmental review (see CP&DR Court Cases , December 1992). But the Sixth District said that San Francisco and the bay commission "undertook environmental review under two different statutory schemes, each with a slightly different focus, rather than engaging in sequential review in a vertical process under CEQA." The Coastal Commissions' review, on the other hand, is the functional equivalent of a CEQA proceeding. "In this case, the Coastal Commission's review was the final step in a sequential process of CEQA proceedings, which started with the county's Planning Commission. That final step is the only one appropriate for judicial review," Justice Richard McAdams wrote for the court. McAllister responded that such a ruling would mean the county's CEQA compliance would be beyond judicial review. "We do not share McAllister's apparent apprehension over the Legislature's decision to give the Coastal Commission the final administrative say on sensitive coastal developments such as the one at issue here," McAdams wrote. McAllister also argued the county's decision was null and void because of code violations on the project site. A previous landowner had done grading and construction work prohibited by a 1977 permit. McAllister said this meant the current property owners were in violation of the county's local coastal plan. The court said the earlier construction might have breached the 1977 permit, but evidence "unequivocally" refuted McAllister's contention that a code violation existed. The Case: McAllister v. County of Monterey , No. H028813, 2007 DJDAR 1402. Filed January 31, 2007. The Lawyers: For McAllister: John Bridges, Fenton & Keller, (831) 373-1241. For the county: Frank Tiesen, county counsel's office, (831) 755-5045. For the property owners: Sheri Damon, Lombardo & Gilles, (831) 754-2444.

California courts are increasingly active in trying to clarify the question of when a government action becomes a "project" under the California Environmental Quality Act. Three recent appellate court rulings have turned on the answer to this question, and a fourth case involving a project definition is pending before the California Supreme Court. So far, however, the resulting picture is less than clear. All three recently decided cases involved instances when public agencies did not conduct environmental review, and in two of three the court ruled the public agency was correct — the agency action did not require environmental review. Courts ruled that the Tuolumne Park and Recreation District's sale of historic railroad right-of-way to an Indian tribe did not require environmental review, and neither did the McCloud Community Services District's conditional agreement with Nestlé regarding a potential water bottling plant. In the other case, the Second District Court of Appeal ruled that the City of West Hollywood should have completed an environmental impact report before entering into a conditional agreement with a nonprofit housing developer for the sale of city-owned real estate. Meanwhile, the State Supreme Court is scheduled to hear oral arguments this month in a case that also involves the definition of a project. In Muzzy Ranch v. Solano County Airport Land Use Commission , the First District Court of Appeal ruled that Solano County should have completed an environmental study before adopting the Travis Air Force Base Land Use Compatibility Plan, which froze the zoning on tens of thousands of acres around the base (see CP&DR Legal Digest , March 2005). Muzzy Ranch is a bit different from the three recent appellate court cases, but all involve the trigger for environmental review. "The real test ought to be whether the public agency has taken a step to go forward with a particular project or development," said Stephen Kostka, an attorney with Bingham McCutcheon and co-author of Practice Under the California Environmental Quality Act . "I think the West Hollywood case is sort of the outlier, but you might be able to explain it on its facts." However, Michael Jenkins, West Hollywood's attorney, contended that the facts in his case were similar to McCloud in that both cases involved public agencies approving agreements for projects that were not fully defined. Both agreements were conditioned upon compliance with CEQA once the projects were defined. But the ruling in Save Tara v. City of West Hollywood "seems to say that something is a project the moment you think about it," Jenkins said. "We obviously agree with McCloud. It's analogous." West Hollywood intends to seek a rehearing and could ask the state Supreme Court to review the decision. In Concerned McCloud Citizens v. McCloud Community Services District , the Third District Court of Appeal ruled that the district's contract with Nestlé for the provision of 1,600 acre-feet of water and other measures relating to a bottling plant was not a project (see CP&DR Legal Digest , March 2007). "The agreement, while admittedly a binding contract, is conditional and does not grant Nestlé a vested right of use of the project. The agreement is predicated on a series of ifs and commits the district to sell water to Nestlé only if the described terms are successfully completed," the court ruled. Among the agreement's conditions was completion of an EIR. Project opponents have appealed to the state Supreme Court. Jenkins brought McCloud to the attention of the Second District Court of Appeal panel considering the West Hollywood case. But the panel, which divided 2-1, did not mention McCloud in the ruling issued three weeks later. The West Hollywood case involves the fate of Laurel Place, a colonial-style mansion built at least 84 years ago and divided into four apartments during the 1940s. The previous owner donated it to the city. In June 2003, the city signed an option agreement with WASET, Inc., and West Hollywood Community Housing Corporation that permitted the developers to apply for Department of Housing and Community Development (HUD) funding. Later that year, HUD awarded the developers $4.2 million to help pay for 30 to 35 units of very low-income senior housing through rehabilitation of Laurel Place and construction of a U-shaped apartment building around the mansion. In May 2004, the city and developers signed a new "conditional agreement for conveyance and development of property." A group of project opponents called Save Tara (so named because the previous owner of Laurel Place loved "Gone with the Wind" and the West Hollywood estate slightly resembles the movie's mansion) filed a lawsuit. Opponents argued that the city had violated CEQA by not conducting an EIR before signing the agreement. In August, the city amended the agreement to state that CEQA must be complied with. Los Angeles County Superior Court Judge Ernest Hiroshige ruled against opponents because the city had not given final approval for the housing project. On appeal, the Second District, Division Eight, overturned Hiroshige. "The trial court's error is two-fold," Justice Madeline Flier wrote for the two-judge majority. "First, an EIR is not to be delayed until a ‘final' decision has been made. Second, the finding that the agreement was ‘expressly conditioned on compliance with CEQA' indicates a misunderstanding of the EIR review process. That process is intended to be part of the decision-making process itself, and not an examination, after the decision has been made, of the possible environmental consequences of the decision." The court noted that the HUD application and subsequent agreements between the city and the developers were extremely detailed. The May 2004 agreement "presents a project for which the planning in practical fact is complete. … It is not a ‘land acquisition agreement,' as city contends." " nce HUD approved the $4.2 million grant for the project in November 2003, the EIR review process should have been initiated," the court ruled. Since the litigation was filed, the city has completed an EIR for a 28-unit senior housing project and approved the development. The EIR was certified in October 2006 and not challenged in court. Thus, the city argued, Save Tara's suit was moot. The majority disagreed, ruling that the city must "engage in the EIR review process based on the project as described in the HUD application, and without reference to the May and August 2004 agreements." In a dissenting opinion, Presiding Justice Candace Cooper agreed with the city. The opponents sought a certified EIR and they didn't contest the one the city completed, she noted. Attorney Jenkins said the court's decision essentially invalidates the EIR, even though the court never reviewed it. "The court seems to presume that just because we entered into a conditional agreement, our EIR is tainted," he said. In the case involving Tuolumne Park and Recreation District's sale of railroad right-of-way, the Fifth District Court of Appeal went the other direction. Although the Tuolumne Band of Me-Wuk Indians is already developing a 300-acre parcel through which the railroad right-of-way runs, the court held that environmental review of the sale would have been premature because the tribe had announced no plans for development on the right-of-way. " rdering CEQA review in the absence of a plan involving an identifiable impact would not be meaningful," the court ruled. Originally constructed from 1897 to 1900, the Sierra Railroad ran 56 miles from Oakdale in the San Joaquin Valley to Tuolumne in the Tuolumne County foothills. It served the mining, logging and hydroelectric industries, and carried passengers. A private operator still uses a portion of the line to haul freight and provide tourist rides. In 1986, the Tuolumne Park and Recreation District purchased a 6.2-mile segment between the communities of Standard and Tuolumne. This segment had fallen into disuse, but the district proposed operating its own passenger excursion train. That idea was not politically popular, and by 1991 the district had abandoned it. A 2002 county recreation master plan, which the district helped write, called for extending a multi-use trail along the length of the right-of-way within Tuolumne County. Nevertheless, the district in 2005 sold the 6.2-mile-long, 100-foot-wide right-of-way to the Tuolumne Band in exchange for an office building and corporation yard, and $75,000. A group called Friends of the Sierra Railroad opposed the sale. Friends contended the railroad is an historic asset, with its track alignment, rolling stock, and railroad structures making for the most intact historic railroad system in California. The State Historic Resources Commission found that the entire railroad is eligible for the National Register of Historic Places. Friends argued the district had to study whether the sale would impact the railroad's historic value. The tribe already owned a 300-acre former lumber mill site that it is developing with offices, houses and a golf course, all related to the tribe's nearby Black Oak Casino. A 0.6-mile section of the right-of-way runs through the former mill site. The district declined to perform an environmental review, so the preservationists sued. The Tuolumne County Superior Court ruled that, although the right-of-way meets the definition of an historic resource under CEQA, the transfer of title was not a project. On appeal, a three-judge panel of the Fifth District agreed. The court's decision suggests that it is not always clear when a government action becomes a "project" for CEQA purposes. Friends argued that the transfer of the right-of-way was the "first step toward a physical change in the environment." The court conceded that the Tribe was already developing land along the right-of-way but, because no plans had been revealed for the right-of-way, there was no project to study. "The reasonably foreseeable likelihood of some development on the West Side Lumber Company property, combined with the possibility that the development could impact the historical resource included within the larger property, does not trigger CEQA review," Justice Rebecca Wiseman wrote for the court. "CEQA review has to happen far enough down the road toward an environmental impact to allow meaningful consideration in the review process of alternatives that could mitigate the impact." "As it was, no specific plans were on the table," Wiseman continued. "The tribe has not proposed any development that would affect the historic resource." Friends accused the tribe of a "lack of candor." The court said even if that were true, there still was no plan to review. Friends cited Bozung v. Local Agency Formation Com. , (1975) 13 Cal.3d 263, in which the state Supreme Court ruled that the commission's approval of a land annexation for a contemplated development was a project under CEQA. The group also cited Fullerton Joint Union High School Dist. v. State Bd. of Education , (1982) 32 Cal.3d 779, in which the court ruled that Yorba Linda's secession from a school district was a project. But the Fifth District said those cases were different. In Bozung , the court found that a planning process to subdivide land had already occurred. In Fullerton , the secession necessitated construction of a new high school. With the railroad right-of-way, "no planning has taken place and no building is expected to go forward in the near future that could cause an impact on the historical resource," the court concluded. Whitman Manley, attorney for Friends of the Sierra Railroad, said the decision is consistent with McCloud , but conflicts with Save Tara and with other cases that have "expanded on what is a project." Perhaps most frustrating to the preservationists, is that Indian tribes do not necessarily have CEQA obligations. "This decision is basically dumping the fate of the right-of-way into a jurisdictional black hole," Manley said. "It means they could do things with the right-of-way without ever disclosing the impacts on the historic resource." First Case: Save Tara v. City of West Hollywood , No. B185656, 2007 DJDAR 2360. Filed February 21, 2007. The Lawyers: For Save Tara: Jan Chatten-Brown, Chatten-Brown & Carstens, (310) 314-8040. For the city: Michael Jenkins, Jenkins & Hogan, (310) 643-8448. For WASET, Inc.: James Arnone, Latham & Watkins, (213) 485-1234. Second Case: Friends of the Sierra Railroad v. Tuolumne Park and Recreation District , No. F050117, 07 C.D.O.S. 1502, 2007 DJDAR 1878. Filed January 12, 2007. Ordered published February 8, 2007. The Lawyers: For Friends: Whitman Manley, Remy, Thomas, Moose & Manley, (916) 443-2745. For the district: Jerome Levine, Holland & Knight, (213) 896-2400.

Placer County is finalizing its first land conservation plan, designed to keep 60,000 acres from being developed in the rapidly-growing region northeast of Sacramento. An initial conservation map for the western part of Placer County was adopted by the Board of Supervisors during late January, and a final map could be approved later this year. The Placer County Conservation Plan marks a big turn for a pro-growth county where voters rejected a quarter-cent sales tax for land acquisition in 2000. While not stopping additional development, the new plan directs it away from some rural areas. And there is plenty of growth to direct. The county is planning major urban development in the western county with three large projects: Placer Vineyards, a university and associated community, and the Placer Ranch project. Placer Vineyards alone is planned to include 14,132 housing units on 5,230 acres west of Roseville. The plan accommodates these big projects, as well as large-scale growth plans in the City of Lincoln. "It will allow Lincoln a huge amount of new growth," said County Supervisor Robert Weygandt, who represents Lincoln. "It will probably provide the ability to double the population from the current 35,000." Placer County is bisected by Interstate 80, and much of the growth is along the I-80 corridor. The county's population has increased dramatically in recent years to about 320,000. In the first half of this decade, population grew by 17.6%, and for a few years, Placer was the fastest growing county in the state by percentage. By 2015, Placer County is projected to grow by an additional 90,000 residents — more than 25%. Most of the growth is in unincorporated areas, Lincoln and Roseville, the county's largest city. Roseville has not signed onto the land conservation plan, something county officials are hoping will happen. A Roseville city official said the city is participating in regional committees related to the county's conservation plan, including a technical advisory committee and one on biology. "After it's a little bit more defined, if it makes sense for Roseville to join, we might consider a different level of participation," said Mark Morse, environmental coordinator with Roseville's Community Development Department. The conservation plan is an outgrowth of longstanding efforts to save open space in the county, according to Terry Davis, Mother Lode Chapter Coordinator for the Sierra Club. "It seems like an anomaly, in a way, that a long-term planning effort would have progressed this far in a conservative county like ours, one whose political nature is inherently suspicious of big new government programs," Davis wrote in an op-ed article for the Auburn Journal. But the plan offers certainty for builders and the promise of quick issuance of permits, rather than lengthy court battles over large-scale development that have been the norm in recent years. The 50-year conservation plan only covers land in the western part of the county, along its borders with Sutter, Yuba and Nevada counties. These low-lying regions are home to rice fields, orchards and rolling oak-studded hillsides. They are also home to more than 30 species of concern or listed species under the federal or state laws, Davis said. Conservation plans for the remaining two- thirds of the county will be drawn up later. Much of the land in the conservation area will remain in agricultural use, said Fred Yeager, the retired county planning director who today is president of the Placer Land Trust. Cattle grazing around vernal pools, for example, may benefit those habitat areas, he explained. Boundaries for the proposed conservation plan area now encompass 80,000 acres, but the actual conservation area land is expected to be winnowed down to 60,000 acres after negotiations are completed with agencies such as the U.S. Fish and Wildlife Service. The conservation plan will function as a habitat conservation plan (HCP) under federal law and a natural communities conservation plan (NCCP) under state law, providing developers certainty over what regulatory issues they will have to contend with as they move to develop land outside protected areas. Under the Placer County plan, developers are expected to be able to mitigate any destruction of habitat by purchasing conservation easements within the protected conservation plan area. Although the plan focuses primarily on conservation easements, some of the land will be in public ownership as well, Yeager said. Federal and state funds are also expected to help pay for funding the conservation area, he said. According to a county staff report, programs like the county's "are increasingly seen as a solution to problems associated with project-by-project review of land development projects. The interest on local agencies' part is to solve the numerous and complicated problems associated with balancing growth with the mandate of the state and federal agencies to protect sensitive species and their habitats." But some wonder whether a recent decision to limit permits issued under San Diego County's multiple species conservation plan will mean that Placer County's plan is open to legal challenges (see CP&DR Environment Watch , February 2007). In the San Diego case, the focus was on permits related to development of property containing vernal pools — shallow, seasonally flooded ponds and puddles that constitute one of the rarest and most threatened habitat types in California. In Placer, too, much of the developable land is in an area that has many vernal pools. Brigit Barnes, a land use attorney in Placer County, is concerned that Placer County will run into the same problems that San Diego County did on its multi-species plan. "I think the plan is in violation of the San Diego order," said Barnes, who worries that environmentalists will seize on the discrepancy. The Center for Biological Diversity brought the San Diego lawsuit. Peter Galvin, the group's conservation director, said the environmental group is not involved in the Placer County HCP. But he said the San Diego ruling should help the group in its work on other HCPs in the state. Supervisor Weygandt is unperturbed. "San Diego had a problem because it excluded the vernal pool habitats," he said. "We're seeking coverage for all protected habitat types." "Our effort," added the Sierra Club's Davis, "has been to make this a very good HCP that could withstand any legal challenge." The Placer County Conservation Plan's legality is one question; its popularity is another. Barnes said that many Placer County landowners oppose the plan. Ranchers and farmers think of their land as "an estate plan for their grandchildren," she said. "It's controversial," Yeager conceded. "Folks believe it will result in more onerous requirements. I don't." Yeager said that every major project in Lincoln, Roseville and in unincorporated areas has been challenged in court during recent years over mitigation issues, primarily environmental ones. With the new plan, developers will be able to meet their mitigation needs for federal, state and county requirements in one fell swoop, he said. "Developers know what their obligations are going to be." Weygandt expects the additional costs of mitigation to be borne by new homeowners, but he sees many benefits of the new plan thanks to a "conservation strategy being as specific as possible." "I'm very optimistic," Weygandt said. "It's very likely we'll have a product that'll serve our citizens over 50 years." Contacts: Robert Weygandt, Placer County supervisor, (530) 889-4010. Fred Yeager, Placer Land Trust, (530) 887-9992. Terry Davis, Mother Lode Chapter of the Sierra Club, (916) 557-1100, ext. 108. Brigit Barnes, Barnes & Associates, (916) 660-9555. Peter Galvin, Center for Biological Diversity, (707) 986-7805. Mark Morse, City of Roseville Community Development Department, (916) 774-5499. Placer County Conservation Plan website: www.placer.ca.gov/CommunityDevelopment/Planning/PCCP.aspx

Disney has opened two new fronts in its fight to block a 1,500-unit condominium project adjacent to a third theme park site in Anaheim. At the same time, the Anaheim City Council has scheduled a new hearing on the project after a councilwoman who had abstained earlier learned that she has no conflict of interest. In late February, Disney sued the City of Anaheim over the environmental impact report for SunCal's 1,500-unit housing project on the site of two existing mobile home parks and a strip mall inside Anaheim's resort district. The suit arrived only days after the City Council deadlocked 2-2 on the project, meaning the Planning Commission's denial of the project stood. In March, Disney unveiled an initiative that would require a public vote on any land use changes within the 2.2-square-mile resort district. Disney and local business organizations said they hoped to get the initiative on the February 2008 ballot. The day after Disney's initiative announcement, the City Council voted 3-2 to reconsider SunCal's project. At Disney's urging, Councilwoman Lucille Kring had abstained from the earlier decision because she is planning to open a wine bar in the GardenWalk development, near the SunCal project site. But the Fair Political Practices Commission determined that Kring has signed only a nonbinding letter of intent, and that she may vote on the housing proposal. Kring and two other council members then voted for the rehearing, which is likely to be set for April 24. Disney argues that new housing would compromise the integrity of the resort district around its theme parks and the Anaheim Convention Center. Housing and labor advocates, however, argue that the tens of thousands of people who work in the resort district need close-by places to live. Fifteen percent of the units in SunCal's project would be available to moderate-income families. The League of California Cities has written a statewide initiative that would prohibit the taking of owner-occupied residences for economic development purposes. The "Homeowners and Private Property Protection Act" would still permit the condemnation of owner-occupied residences for public works projects, or for health and safety reasons. The proposed initiative offers no additional protections for renters. The league filed the initiative with the attorney general's office in late February and could begin collecting signatures this spring. The initiative could negate one of property rights advocates' chief arguments against eminent domain and redevelopment — that the government could take your house and give it to a private developer. Meanwhile, the Howard Jarvis Taxpayers Association continues to refine a competing property rights initiative (see CP&DR , January 2007). The Jarvis group has announced the same aim as the league, namely, protecting homeowners. However, the Jarvis initiative goes much further into property regulation and would, among other things, prohibit rent control. The Jarvis group's "California Property Owners Protection Act" is pending at the attorney general's office. San Francisco has adopted a six-month, interim ordinance that requires a conditional use permit for the destruction of any dwelling unit. Advocates said the measure, which could become permanent later this year, would protect affordable units in danger of being demolished and replaced with higher-end units. Opponents, however, said the new requirement would slow or block small developments opposed by neighborhood groups. "Effectively, what it is is a moratorium on residential demolition," said Joel Karr, of Group 41 Architecture, who argued that the measure does nothing to ensure housing affordability. "It's sort of a rampant NIMBYism." The Board of Supervisors passed the measure on a 6-5 vote. Litigation is likely. Stanislaus County supervisors have chosen to negotiate with Sacramento developer Gerry Kamilos on redevelopment of the closed Crows Landing Naval Air Station, on the Central Valley's west side south of Patterson. On a 3-2 vote, the board chose Kamilos's West Park proposal over one submitted by Hillwood Development, which is undertaking a similar base redevelopment in San Bernardino (see CP&DR Economic Development , July 2002). The Pentagon closed the Crows Landing base in 1996 and gave the 1,500-acre property to the county in 2004. County officials would like to see the base converted into a center of commerce on the valley's west side, which is dominated by farms and subdivisions for Bay Area commuters. A steering committee composed of various local representatives recommended Hillwood, which proposed a warehousing and manufacturing business park. Instead, supervisors picked Kamilos, who presented plans for not only the base, but 3,000 surrounding acres. The project envisions a short-haul rail link to the Port of Oakland. Trains would unload imports at warehouses, and load up agricultural products for export. Stanislaus County hopes to win state transportation bond funds for the rail line. Opponents of the Kamilos project say the chances of getting state funding are slim, and that the developer will turn to residential development instead — a charge Kamilos has denied. Solana Beach voters narrowly approved a "residential mansionization" ordinance during a special election in March. The city-sponsored initiative applies to about 1,200 parcels west of Interstate 5, where pressure to replace or add onto existing houses has peaked during recent years. The City Council approved the ordinance in 2006, amended it after a mistake was found, and then placed it on the ballot for confirmation. Proposition A passed with 50.8% of the vote. Ordinance supporters said it is necessary to preserve the ambiance of the city's modest beach neighborhoods. Opponents, including the North San Diego County Association of Realtors, argued the measure tramples on property rights. The ordinance establishes floor area ratios in a "scaled residential overlay zone." The ratios slide based on the size of the lot. For example, a 6,000-square-foot lot could have a house of 3,000 square feet, plus a 400-square-foot garage. A 10,000-square-foot parcel could have a 3,700-square-foot house, plus a garage. Alhambra's Redevelopment Agency spent up to 60% of low- and moderate-income housing set-aside funds on planning and administration, charged 35% of agency salary and operating expenses to the housing fund, and double-counted units for replacement and production purposes, according to an audit by the Department of Housing and Community Development (HCD). Auditors reported that the agency dedicated 60%, 40% and 51% of low-mod housing expenditures to planning and administration during the 2003, 2004 and 2005 fiscal years, and made no findings regarding the necessity and proportionality of such expenditures. Plus, charging 35% of salaries and overhead to the housing fund "seems to be a disproportionate share of the costs," HCD concluded. Alhambra officials responded that they would conduct an annual analysis and make required findings beginning with the current fiscal year. Auditors found that Alhambra has double-counted units as both replacements for lost housing and as new units to meet production requirements. "The agency has not provided a complete list of the project names and number of units as its basis for production-unit count, nor has it identified the projects associated with removed units; therefore, we are unable to determine to what extent the double-counting has occurred," HCD's audit states. Alhambra should revise and correct its implementation plan and records, and produce more units if necessary, HCD recommended. The agency said it would consider doing so. Advocates of incorporation in Carmel Valley have sued the Monterey County Local Agency Formation Commission (LAFCO) because the commission refused to let incorporation go forward without an environmental impact report. The LAFCO last fall determined that proponents of the 40-square-mile city would have to pay for the EIR, expected to cost more than $300,000. LAFCO also insisted on an updated fiscal analysis and a revenue neutrality agreement with the county. The incorporation advocacy group Carmel Valley Forum pointed to an Economic and Planning Systems study that found the proposed town would be fiscally viable. Carmel Valley Forum's lawsuit contends LAFCO's decision arbitrarily prevents voters from deciding on incorporation.

With the passage of $42 billion in bonds last November, infrastructure spending has risen to the top of the state Legislature's agenda. More than 60 bills attempt to allocate portions of the money or establish criteria for spending the funds, according to the California Budget Project. Still, there is plenty of legislative activity surrounding other planning and development staples, including housing, the California Environmental Quality Act, flood control and economic development. A number of failed, controversial measures from 2006 have returned in new form: Senate Bill 303 (Ducheny) would require cities and counties to zone for 10 years worth of housing need. Assembly Bill 70 (Jones) would assign local governments some financial liability for levee failures. SB 103 (Cedillo) would require hearings on any economic development subsidies. SB 2 (Cedillo) would make emergency shelters and transitional housing by-right uses in multi-family residential zones. But while many issues in Sacramento are familiar, many of the players are not. No fewer than 30 of the Assembly's 80 members are freshmen, mostly from city councils and boards of supervisors. Some freshmen are even committee chairs, including Democratic Assemblywoman Anna Caballero, who previously was the mayor of Salinas. Some former local officials appear to forget their "roots" when they enter the Capitol, but Caballero is carrying two housing bills sponsored by the League of California Cities. Assembly Bill 1256 would exempt from the state's density bonus law cities and counties that have inclusionary zoning policies. Those policies require developers to provide a certain percentage of new housing units affordable to low- or moderate-income residents or to pay an in-lieu fee. About 170 cities and counties have inclusionary requirements. In recent years, lawmakers have worked with affordable housing advocates and the building industry to expand the density bonus law. The statute now provides for bonuses of up to 35% and the waiver of some local regulations. Pete Parkinson, vice president of policy and legislation for the California Chapter of the American Planning Association, said Caballero's bill is attractive because local governments are getting slammed with density bonus projects. Yet the threshold for density bonus eligibility is low, said Parkinson. A project with as little as 5% of units designated for very low-income residents or 10% for low- or moderate-income residents earns at least some density bonus and a waiver of some regulations. In addition, developers "double-dip" by demanding density bonuses for meeting inclusionary zoning requirements. Affordable housing advocates are skeptical. Brian Augusta, who heads the California Housing Law Project, contended that developers should receive density bonuses for providing affordable units that are mandated by inclusionary zoning. "We want to encourage density bonuses," he said. Caballero's AB 1254 is more complicated. Currently, cities lose a portion of their property tax revenue to "ERAF," a fund for school districts. Also, most affordable housing projects built by nonprofit developers are property tax-exempt. Under AB 1254, cities could deduct from their ERAF payment to schools the amount that a new nonprofit, affordable housing project would have provided in property tax revenue had the project been taxable. "We think the bill would be a great reward for cities that are trying to do the right thing," said Daniel Carrigg, the League's legislative director. It also removes one of the NIMBYs' arguments — that affordable housing projects cost a city money, he said. Caballero's housing bills might be considered minor compared with SB 303. Similar to last year's failed SB 1800, which had the backing of the Schwarzenegger administration and the California Building Industry Association, SB 303 would rewrite big portions of general plan law. Among other things, the bill would require that cities and counties zone up-front for 10 years worth of housing need and make findings about the suitability of parcels zoned for residential development. The bill also would mandate that every element of the general plan encompass a 20-year planning period, and that every element except the housing element be updated every 10 years. The bill specifies retention of the current 5-year housing element updates. In introducing the bill, Ducheny said it would "ensure responsible planning" and boost affordable housing. "Our local governments have the right and responsibility to plan for places for people to live," Ducheny said. "We just want them to go the extra step of making sure that their process provides places that are truly appropriate for the housing they're planning." But the League's Carrigg said the bill conflicts with state and local infill policies. The bill specifies that local governments must make findings that each site zoned for residential development "will realistically accommodate construction of the maximum number of units allowed by the density range applicable to the site." The findings must be based in part on availability of infrastructure and services, environmental constraints, and "market demand for the density and type of housing." It would be difficult to make such findings for many infill sites, said Carrigg, because, "a lot of infill sites are hard work." Plus, nothing in the legislation limits development to the sites in the 10-year zoning. "How can we plan our regions?" Carrigg asked. "This is really going to result in sprawl." The APA's Parkinson, who heads Sonoma County's Permit Resource Management Department, said the concept of a 20-year land use plan is appealing. But he said it is "impractical" to have 10 years worth of zoning in place because it would hinder the ability to plan and phase growth. Flood legislation, which went nowhere in 2006, returns this year with a focus on the Central Valley and the Sacramento-San Joaquin River Delta. The key bill could be SB 5 by Sen. Michael Machado (D-Linden), whose Stockton-based district has extensive flood-prone areas under heavy development pressure. Machado has made clear he is not afraid to fight the building industry over flood control, and SB 5 would prohibit new residential development in areas lacking 500-year flood protection. The bill also tasks the Department of Water Resources with updating flood control plans and flood risk maps. Meanwhile, AB 70 (Jones) is similar to failed legislation from 2006. The idea is to make local governments financially liable for approving development in flood-prone areas. Builders generally oppose the concept because they fear local governments would reject subdivisions in low-lying areas, and local governments oppose because they have little control over levees and regional flood management systems. There also is a great deal of interest regarding climate change in the Legislature. However, legislation concerning land use planning and climate change has not coalesced. Interest in redevelopment reform and eminent domain limitations appears to have faded this year. Contacts: Daniel Carrigg, League of California Cities, (916) 658-8222. Brian Augusta, California Housing Law Project, (916) 446-9241. Pete Parkinson, California Chapter, American Planning Association, (707) 565-1925. California APA legislative platform: www.calapa.org/en/art/?109 Land Use Legislation Introduced This Year These bills have been introduced since December. "Spot bills" are essentially placeholders with few details. The legislative year ends September 14. Economic Development • AB 89 (Garcia). Directs the Business, Transportation and Housing secretary to study financing mechanisms for infrastructure along the border with Mexico. • AB 232 (Price). Spot bill regarding an integrated investment and development strategy for low-income neighborhoods in San Diego, Los Angeles, San Francisco, Oakland and Sacramento. • AB 831 (Parra). Requires the Legislature to review annually all tax breaks and repeal those that do not serve a public purpose. • AB 1272 (Arambula). Requires the Infrastructure and Economic Development Bank (I-Bank) to provide technical support to small and rural communities for local infrastructure and capital projects. • AB 1398 (Arambula). A complete overhaul of the system for awarding hiring tax credits. Among other things, the bill would eliminate the ability to claim multiple tax credits under different programs. • AB 1606 (Arambula). Requires several state agencies to coordinate preparation of a statewide economic development strategic plan, and to develop a system for measuring the performance of all state policies, programs and tax expenditures intended to stimulate the economy. • ABs 1719, 1720, 1721 and 1722 (Arambula). A series of bills concerning economic development, trade and investment policies. • SB 103 (Cedillo). Requires local agencies to conduct hearings on the details of proposed economic development subsidies of at least $25,000 and provide reports after approval. A similar bill failed last year. Flood Control • AB 5 (Wolk). Prohibits cities and counties in the Central Valley from approving new development in flood-prone areas. The bill also authorizes local agencies to adopt their own flood protection plans. • AB 26 (Nakanishi). Exempts Delta flood control maintenance projects from Department of Fish and Game streambed alteration regulations. A similar bill failed last year. • AB 70 (Jones). Makes local governments partially liable if a flood control project fails. • AB 156 (Laird). Increases the Department of Water Resources (DWR) role in Central Valley flood protection. The bill requires DWR to report on levee conditions, map flood-prone areas, undertake levee maintenance, provide annual warning notices to landowners, and establish mitigation banks. • AB 162 (Wolk). Requires cities and counties to make various provisions for flood control in general plans. • SB 5 (Machado). Addresses numerous aspects of flood management and planning. Among other things, the bill prohibits new residential development in any area with less than 500-year flood protection. • SB 6 (Oropeza). Requires local governments to consider global climate change before deciding on new developments. Substantial amendments are likely. • SB 17 (Florez). Renames the Reclamation Board the Central Valley Flood Protection Board and requires the board to review local and regional land use plans for compliance with standards adopted by the board. • SB 34 (Torlakson). Authorizes DWR to collect user fees and assessments to fund flood control in the Delta. Funds for planning • AB 1253 (Caballero) and SB 292 (Wiggins). Spot bills regarding Proposition 84 funding for local and regional planning. • SB 167 (Negrete McLeod). Commits $45 million from Proposition 84 for general plan revisions, general plan implementation, regional blueprint projects, and LAFCO municipal service reviews and spheres of influence. • SB 669 (Torlakson). Makes regional recreation corridors eligible for Proposition 84 planning funds. Housing • AB 239 (DeSaulnier). Authorizes Contra Costa County to increase its real estate recording fee to fund affordable housing. A similar measure failed last year. • AB 414 (Jones). Limits cities' and counties' use of land zoned for nonresidential uses in meeting regional housing needs. • AB 641 (Torrico). Requires that local governments defer all fees on projects with at least 49% affordable units until the certificate of occupancy stage. • ABs 723 and 1096 (DeVore). Spot bills declaring a five-year "CEQA holiday" for urban infill, affordable, employee and farmworker housing projects. • AB 763 (Saldaña). Increases the required notice given to tenants of apartments being converted to condominiums. • AB 872 (Davis). Spot bill providing a CEQA exemption for urban infill projects of fewer than 300 units. • AB 1254 (Caballero). Reduces the shift of property tax revenue from cities and counties to school districts when the city or county approves an affordable housing project. • AB 1256 (Caballero). Exempts local governments from the state density bonus law if the local government has an inclusionary zoning ordinance that mandates a portion of new units be available to low- or moderate-income residents. • AB 1449 (Saldaña). Tightens eligibility for density bonuses and waivers of local regulations. • AB 1497 (Niello). Exempts from land suitable for meeting regional housing needs land that is covered by Williamson Act contracts. • AB 1675 (Nuñez). The speaker's spot bill regarding transit-oriented development. • SB 2 (Cedillo). Makes emergency shelters and transitional housing by-right uses in areas zoned for multi-family residential uses. The bill is similar to last year's SB 1322, which the governor vetoed. • SB 12 (Lowenthal). Revises the Southern California Association of Governments' regional housing needs assessment process to align with the regional transportation plan (see CP&DR Insight, August 2006). The bill has passed the Senate. • SB 303 (Ducheny). A detailed, complex bill that, among other things, requires cities and counties to zone for 10 years worth of housing demand. The legislation is similar to last year's failed SB 1800. • SB 375 (Steinberg). Increases the CEQA exemption for urban infill projects. • SB 900 (Corbett). Increases the ability of local governments to block the conversion of mobile home parks to resident-owned condominiums. Such conversions are used by park owners to avoid rent control. Local government finance • AB 373 (Wolk). Expands the use of Mello-Roos financing to include flood protection, snow removal and graffiti abatement. • AB 934 (Lowenthal). Authorizes creation of up to 100 housing and infrastructure zones in which tax-increment financing would pay for a variety of housing and infrastructure projects. • AB 1221(Ma). Permits a city or county to engage in tax-increment financing to fulfill the goals of a transit village plan. • SB 670 (Correa). Prohibits the imposition of transfer fees when property is sold. Transfer fees have become popular ways to finance affordable housing and open space. AB 980 (Calderon) requires greater disclosure of transfer fees. Natural resources • AB 82 (Evans). Spot bill concerning preservation of agricultural land through local planning. • SB 634 (Wiggins). Requires owners of land covered by the Williamson Act to receive local government approval for the division of land and the construction of any road or building. The bill is partly a response to a situation in Humboldt County in which a Williamson Act landowner acting on an old subdivision map has sold parcels for residential development. • SB 421 (Ducheny). Authorizes the Department of Parks and Recreation to acquire property under a conservation easement or similar restriction. Redevelopment • ACA 2 (Walters) and SCA 1 (McClintock). Constitutional amendments to limit use of eminent domain. • AB 987 (Jones). Permits any low- or moderate-income person to enforce affordability covenants on subsidized housing units. • AB 1169 (DeVore). Spot bill prohibiting adoption or amendment of a redevelopment plan, or the merging of project areas, unless an unnamed state agency approves. • AB 1553 (DeSaulnier). Allows use of tax increment for loans to firefighters for the purchase or rehabilitation of homes in a project area. Other • AB 665 (DeSaulnier). A spot bill calling for creation of the California Growth Management Act. • AB 704 (Eng). Requires local governments to establish a resident advisory commission on the environment to make planning recommendations. • AB 889 (Lieu). Creates a new authority to construct a rail line from Los Angeles International Airport to a Metro Green Line station on Aviation Boulevard. • AB 1066 (Laird). Requires local governments to consider climate change when preparing or updating local coastal programs. • SB 10 (Kehoe). Makes the San Diego Association of Governments responsible for planning a new airport in San Diego County. Currently, an airport authority has the responsibility. • SB 157 (Wiggins). Ratifies a compact between the state and two Indian tribes (The Big Lagoon Rancheria of Humboldt County and the Los Coyotes Band of Cahuilla and Cupeño Indians of San Diego County) to permit development of side-by-side casinos in Barstow (see CP&DR Deals, August 2006). • SB 162 (Negrete McLeod). Requires local agency formation commissions to consider environmental justice when considering boundary changes.

One of the top 10 things that everybody loves is a top 10 list. Some people take such lists very, very seriously and get furious when, for example, their favorite Eagles' number doesn't appear on a list of top 10 songs from the 1970s. Most people take such lists with a few grains of salt. We at CP&DR are not going to be compiling the top 10 songs from any era. But we are going to be putting together some other lists. Best downtowns. Best municipal parks. Most walkable cities. Least walkable cities. Best examples of historic district preservation. Best use of a waterfront in an urban development. You get the idea. We may limit these to the top three or five, depending on the category and the "quality" of the potential entries. Or, heck, maybe we'll blow out some to the top 20. Do you have any ideas for top 10 lists that would interest CP&DR readers? If so, please add a comment at the bottom of this blog. If you've got top 10 lists of your own, go ahead and post those. If you're shy, feel free to email me at pshigley@cp-dr.com. Just remember, our universe is limited to California places. We don't much care about the best zocalo in South America, or the best Danny DiVito movie. We intend to start running the our lists about once a month beginning in July. We might spark a little fury, but mostly we intend to have some fun. - Paul Shigley

One of the most ambitious transit-oriented redevelopment projects in the state is taking shape in an unlikely location. Union City, a mostly working-class suburb just north of Fremont in Alameda County, is converting about 175 acres into a dense urban environment surrounding what city planners hope will become a regional transit hub. Hundreds of housing units are under construction or approved in Union City's Station District, and a developer is negotiating with the city to acquire land for as many as four residential towers of 10 to 24 stories apiece � a project that is also planned to include retail and office space and a pedestrian paseo. Construction on improvements to an existing BART station is beginning this month, and the City Council recently approved a design concept for a public plaza around which much is planned, including a fine arts building and possibly a library. "It will be the new downtown because of the retail, because of the public building, because of the East Plaza. It will be just a great place to hang out," said Mark Evanoff, Union City redevelopment manager. James Corliss, a senior planner for the Metropolitan Transportation Commission, said Union City is located in a critical position along the East Bay transit corridor. "They've got quite a quilt. They've got the multi-modal transit station and an aggressive development plan," Corliss said. "As we look to the future of the Bay Area, we need a lot of these older suburbs to reinvent themselves, as Union City is doing." A 48-year-old city of about 72,000 people, Union City lacks a discernable center of town. Old Alvarado, which dates from the era before incorporation, provides something of an historic district, but it's not really a downtown. Instead, the Station District redevelopment project seeks to convert two longtime eyesores adjacent to a BART station into downtown: a 30-acre former Pacific Gas & Electric pipe storage yard, and the 60-acre site of a long-closed steel mill. Union City's redevelopment agency acquired the PG&E site four years ago for $18 million. The agency acquired the Pacific States Steel Corporation site in a complicated bankruptcy proceeding that lasted more than two decades (see CP&DR Legal Digest , May 2003). Not surprisingly, both sites were contaminated. PG&E handled cleanup of its site, and redevelopment agency land sales paid for remediation of the old steel plant property. While things are moving along now, redevelopment proceeded slowly for years. So, in 2000, the city began an update of the redevelopment plan and its general plan. "It compelled us to really create a vision for our Station District," recalled Planning Manager Joan Malloy. The vision, adopted about five years ago, includes high-density housing, offices and mixed-use development around a multi-modal transit station. At the time, Silicon Valley's tech sector seemed indestructible, so, not surprisingly, the vision was for lots of offices. But the Bay Area's office market has been sluggish for a number of years. Now, Station District planners are emphasizing housing. Developers have already built about 120 single-family houses on the old Pacific States Steel property, and KB Home is developing 216 townhouses on the site. Those projects were aided by the redevelopment agency's provision of road access. The next project to break ground (possibly this month) will be Avalon Bay's 436-unit apartment complex on six acres that used to be a car repair shop, next to the BART station. This is a market-driven project without any redevelopment agency participation, Evanoff said. The project that is generating the most excitement, though, is the proposal from Barry Swenson Builders to construct four residential towers in three phases on the old PG&E site. The first phase would include a 10- to 14-story tower of 100 to 140 units. The second phase would have a slightly taller tower of 120 to 160 units. The third phase would include one tower of 12 to 16 stories and one tower of 12 to 24 stories with as many as 400 units between the two structures. The towers are planned to be for-sale condominiums. Each phase also would include smaller numbers of townhouses and below-market units, and there would be a total of about 60,000 square feet of office, retail and commercial space developed, much of it along a pedestrian paseo. Although negotiations are not complete, the agency anticipates selling the property to Swenson for $30,000 per market-rate residential unit. City officials began negotiating with Swenson last year after other potential deals bogged down when developers told city officials that their goal of up to 80 housing units per acre was not realistic. "Barry Swenson exceeded our expectation, based on what other developers told us was marketable," said Malloy, noting the Swenson project averages more than 110 units an acre. Jessie Thielen, a development project manager for Swenson, said typical four-story condominiums would not be the best use of a site so close to a transit center. Swenson has developed and is developing similar residential towers in San Jose. "Anywhere in the Bay Area where there is a transit hub is the right location," Thielen said. Of course, building condo towers in a city of 1 million people is one thing. Building them in a suburb with few urban amenities is another. But Thielen said the Swenson project will quickly create a "critical mass. You see a lot of transition in the neighborhood when a project like this starts going up," she added. The Swenson project is in the midst of the planning approval and environmental review processes, which both sides hope to complete by the second half of 2008. Although there has been some public concern expressed about traffic, there generally is acceptance of the high-density project. "I've never gone into community meetings where the level of opposition is so little to a project that is so different for a community," Thielen said. She credited city officials for laying the groundwork. While the private-sector component of Station District development is progressing, much of the public portion is more tentative. What the city wants is a station that brings together BART, the Altamont Commuter Express (ACE) train that runs from Stockton to San Jose, Amtrak's Capital Corridor train from Sacramento to San Jose, and the planned Dumbarton rail line that will connect the East Bay with the Peninsula. Alameda County Transit buses (which serve three counties and San Francisco) and local Union City buses would also converge at the station. Only San Jose's Diridon Station and San Francisco's Transbay Terminal would match the Union City station's multiplicity of transit services. Work started this month on BART station improvements, which are planned with an eye toward creating one large concourse for all rail passengers. Negotiations are ongoing with Union Pacific for a deal that would let the Capital Corridor and ACE trains use the UP right-of-way, according to Evanoff. The Dumbarton service is tentatively scheduled to start in 2012, although estimated project costs have doubled. In fact, money for most of the transit portion of the Station District project is not assured. "We're a small community that is trying to facilitate a big regional project," Malloy said. "We're looking at all options for how to keep this moving forward. It gets really complicated when you get into the regional aspects." Plans for other public facilities are also tentative, but progressing. The City Council in February approved a concept plan by ROMA Design Group of San Francisco for the East Plaza, adjacent to the transit station. The plaza would have space for a farmers market and outdoor events, a fountain, public art, and small retail spaces. ROMA has also prepared conceptual drawings for a 30,000-square-foot fine arts building that would provide meeting and performing spaces, studios and exhibit halls. A library is planned either as part of the East Plaza or next to the existing civic center, which is farther from the transit station but within the Station District. Contacts: Mark Evanoff, Union City Redevelopment Agency, (510) 675-5345. Joan Malloy, Union City Planning Division, (510) 675-5319. Jessie Thielen, Barry Swenson Builders, (408) 938-6312. James Corliss, Metropolitan Transportation Commission, (510) 817-5709.