The California Supreme Court has recently accepted two land use cases and ordered an appellate court decision regarding fees to be depublished. One of the accepted cases permits the state high court to delve into the touchy issue of local authority over wireless telecommunications antennas. The second case involves an award of damages to the owner of an adult cabaret in San Bernardino who was subjected to an unconstitutional zoning ordinance. Exactly how far local governments may go in regulating antennas has been the subject of extensive litigation during recent years. In June, the Fourth District Court of Appeal upheld a San Diego County zoning ordinance that establishes a detailed permitting process for antennas — and said that a Ninth U.S. Circuit Court of Appeal decision striking down a similar ordinance in the City of La Cañada Flintridge was wrong (see , August 2006). The first question for the state Supreme Court is this: Do Public Utilities Code §§ 7901 and 7901.1 — which give “telephone corporations” the right to install lines and other fixtures in the public right-of-way — extend to wireless telecommunications providers? Lower courts have generally said yes. The larger controversy is over the second question for the state Supreme Court: Does a provision in § 7901.1 permitting local governments to control the ‘time place and manner’ in which telephone corporations access roads give a local government the ability to regulate the aesthetics of telecommunications towers in the public right-of-way? Cities and counties contend that they may use the § 7901.1 provision to regulate the location, height and appearance of antennas. Telecommunications companies argue that the state law does not extend to aesthetics. The case is , No. S145541. In the San Bernardino case, the owner of Flesh Night Club was awarded $1.4 million based on expenses and lost income from a 53-month period when the city enforced a zoning ordinance defining where adult businesses could locate. Although the club owner challenged the ordinance, the city got a court injunction permitting the city to enforce the ordinance. Flesh Night Club was in the wrong location under the ordinance, so the business closed. Eventually, the Fourth District ruled that the ordinance violated the First Amendment. The business owner sued for damages and a jury awarded $1.4 million, which the Fourth District upheld earlier this year (see , June 2006). The central question for the state high court is whether a city may be held liable for damages under the federal Civil Rights Act for obtaining a preliminary injunction to enforce an ordinance that is later found to be an unconstitutional impingement on free speech. The case is , No. S144492. The depublished case is , which appeared at 140 Cal.App.4th 261. In that case, the Fourth District upheld the city’s building inspection and plan check fees (see , August 2006). The ruling will stand, but it cannot be cited as precedent now.

CEQA • AB 1387 (Jones). Expands a CEQA exemption for urban infill to projects of up to 100 units with a minimum density of 20 units per acre. The projects also must be within half a mile of a transit stop and comply with the local circulation element. Signed by governor. • SB 832 (Perata). Expands an exemption for urban infill housing developments. Gutted. • SB 1191 (Hollingsworth). A major Republican overhaul of CEQA. Died. Flooding • AB 802 (Wolk). Requires cities and counties to account for flood safety in general plan updates. Died. • AB 1528 (Jones). Requires cities and counties to share flood liability with the state in areas protected by new levees. Died. • AB 1665 (Laird). The administration’s package, which includes requirements for levee evaluations, plans for levee upgrades and notification of property owners. Died. • AB 1898 (Jones). Requires property owners in Central Valley areas lacking 200-year flood protection to get flood insurance. Died. • AB 1899 (Wolk). Prohibits development on land that lacks 100-year flood protection and land that will not soon have 200-year protection. Died. • AB 2208 (Jones). Requires the state to identify landowners that benefit from levees, for the purpose of establishing fees. Died. • AB 2500 (Jones). Requires cities and counties to adopt safety plans as a condition of receiving money for levee upgrades. Died. • AB 3022 (Umberg). Increases flood insurance disclosure requirements. Died. General Plans • SB 44 (Kehoe). Requires all jurisdictions to adopt air quality elements that account for development patterns. Gutted. • SB 409 (Kehoe). Requires cities and counties to correlate the water supply portion of their conservation elements with their land use elements. Gutted. • SB 655 (Ortiz). Requires new mapping of areas with naturally occurring asbestos, identification of the areas in general plans, and disclosure to buyers if asbestos is present. Failed in Assembly. • SB 1059 (Escutia). Authorizes the California Energy Commission to designate electricity transmission corridor zones, and requires cities and counties to consider such zones when making land use changes. Signed by governor. Housing and Housing Elements • AB 350 (Matthews). Authorizes local governments in Alameda, Contra Costa, Santa Clara, San Joaquin and Stanislaus counties to create infrastructure finance districts in jobs-housing opportunity zones. Gutted. • AB 2158 (Evans). Requires regional housing needs assessments to consider local agency formation commission policies on growth. Vetoed by governor. • AB 2378 (Evans). Makes condominiums developed under density bonus provisions subject to a resale restriction to ensure affordability to moderate-income households. Died. • AB 2511 (Jones). Gives cities and counties 90 days to decide on projects in which at least 49% of units are for very low- or low-income households, bolsters anti-discrimination laws, and permits courts to sanction local governments for not filing annual general plan status reports. Signed by governor. • AB 2634 (Lieber). Requires housing elements to provide for households that have incomes of 30% of median. Signed by governor. • AB 3042 (Evans). Establishes a procedure for cities and counties to transfer shares of regional housing needs. Died. • SB 1322 (Cedillo). Requires cities and counties to make emergency shelters and group homes by-right uses in certain zones, and to account for emergency shelters in general plans. Vetoed by governor. • SB 1432 (Lowenthal). Amends the Mello-Roos Community Financing Act in multiple ways, including a provision that permits use of Mello-Roos bonds for affordable housing development. Vetoed by governor. • SB 1800 (Ducheny). Makes numerous changes to housing element law and CEQA to ease housing construction. Died. Redevelopment • AB 773 (Mullin). Increases from 30 days to 90 days the time in which voters may prepare a referendum of a redevelopment ordinance. Signed by governor. • AB 782 (Mullin). Removes as a basis for establishing a redevelopment project area the existence of small and irregular lots. Signed by governor. • AB 1162 (Mullin). Places a moratorium until 2008 on redevelopment agencies taking by eminent domain an owner-occupied residential property if the property is to be transferred to a private entity. Died. • AB 1893 (Salinas). Prohibits a redevelopment agency from using tax-increment financing to fund the development of a city hall or county administration building. Signed by governor. • AB 1990 (Waters). Prohibits use of eminent domain if the real property being acquired is to be transferred to a private entity. Died. • AB 2922 (Jones). Stiffens affordable housing covenants for subsidized projects and increases tenants’ rights. Vetoed. • ACA 22 (La Malfa), SCA 15 and SCA 20 (McClintock). Constitutional amendments to restriction use of eminent domain. Died. • SB 53 (Kehoe). Requires redevelopment plans to explain where, when and how officials will use eminent domain, and requires agencies to document blight before extending the time period for use of eminent domain. Signed by governor. • SB 1206 (Kehoe). An overhaul of the Community Redevelopment Law that tightens the definition of blight, makes it easier to file legal challenges and referendums, and increases state oversight. Signed by governor. • SB 1210 (Torlakson). Makes numerous changes to how all public agencies carry out eminent domain actions. Signed by governor. • SB 1329 (Alquist). Authorizes redevelopment agencies to award planning grants and other financial incentives to supermarkets and other grocers to assist with planning and building supermarkets in underserved areas. Amended and died. • SB 1650 (Kehoe). Restricts how agencies may use property taken by eminent domain. Signed by governor. • SB 1809 (Machado). Requires local officials to add information about possible use of eminent domain to required statements. Signed by governor. Other • AB 1020 (Hancock). Requires Caltrans and regional transportation agencies in most urban areas to prepare new transportation models that better account for land uses policies. Vetoed by governor. • AB 1766 (Dymally). Permits enterprise zones to request 25-year extensions. Died. • AB 1785 (Bermudez). Increases by $55 million annually the money available for railroad grade separation projects. Died. • AB 2223 (Salinas). Extends until 2104 expedited procedures for cities to annex unincorporated islands. Signed by governor. • AB 2762 (Levine). Permits 16 Indian tribes to join the Southern California Association of Governments. Vetoed by governor. • SB 625 (Battin). Authorizes the Department of General Services to offer surplus land to local governments at fair market value. Died. • SB 1230 (Florez). Creates a clean air enterprise zone within the San Joaquin Valley, requires the state to provide low-interest loans to certain clean businesses in the zone, and expedites permitting. Vetoed by governor. • SB 1523 (Alarcon). Requires cities and counties to prepare economic impact reports for proposed big-box retail stores. Vetoed by governor.

A local agency formation commission may impose as a condition on its approval of the incorporation of a new city the requirement that voters support a general tax funding the new city, the attorney general’s office has concluded. The question came from the San Diego County LACFO. With a couple incorporation drives in the works, the agency wanted to determine what conditions it could impose on formation of a new city, explained San Diego LAFCO Executive Officer Michael Ott. One possibility is having voters decide on both incorporation and a general tax at the same time, and requiring that the tax receive approval for incorporation to be valid. But, said Ott, “There had been some question as to whether a dual ballot question was legal.” Ott said the agency’s attorney had determined a dual ballot question was legal. With a very straightforward reading of the Cortese-Knox-Hertzberg Local Government Reorganization Act (Government Code §§ 56000 – 57550), the attorney general agreed. In the opinion, Deputy Attorney General Gregory Gonot noted that § 56886 permits LAFCOs to impose conditions on incorporations, including the levying of assessments and fees “or the approval by the voters of general or special taxes.” “General taxes constitute one of a ‘virtually limitless array of factors’ upon which a LAFCO may condition its approval of a change of organization,” Gonot wrote, citing , (1992) 3 Cal.4th 903, 912. Seven years ago, the attorney general concluded in 82 Ops. Cal.Atty.Gen. 180 (1999) that a LAFCO could condition approval of a change of agency organization upon the continued collection of previously established taxes. In that opinion, the attorney general concluded that the then-Cortese-Knox Act complemented — rather than conflicted with — the state constitution’s requirements for voter approval of general tax increases. In the question raised by the San Diego LAFCO, approval of the tax and incorporation would take place at the same time, which would be permissible, Gonot concluded. The San Diego LAFCO has not imposed such a condition on incorporation but is considering doing so for the proposed city of Rancho Santa Fe, Ott said. “It gives incorporation proponents another tool to achieve feasibility, especially in light of the revenue-neutrality requirements that have been in effect since 1992,” Ott said. The San Diego LAFCO also raised the question of whether the imposition of such a condition would require a two-thirds vote of the LAFCO board. Proposition 62, a 1986 follow-up to Proposition 13, requires that a resolution proposing a general tax be approved “by a two-thirds vote of all members of the legislative body of the local government.” Gonot concluded that the Proposition 62 provision would not apply here because “LAFCO does not have the authority to ‘impose’ a tax.” Instead, all LAFCO can do is condition formation of the new city on voters’ approval of a tax, he wrote. In a letter to Ott analyzing the attorney general’s opinion, San Diego Senior Deputy County Counsel William Dean Smith called the attorney general’s answer to the Proposition 62 question “reasonable but still subject to potential challenge should LAFCO not achieve a two-thirds vote of all its members in approving an incorporation subject to a general tax condition.” Attorney General’s Opinion 06-210 was issued August 11, 2006. It may be found at 06 C.D.O.S. 7473, and 2006 DJDAR 10697.

Should Californians vote to “protect our homes,” or should they vote against a “taxpayer trap?” This, in a nutshell, is the campaign about Proposition 90, the property rights initiative on the ballot in November. And, given the way initiative campaigns go in California, a nutshell is all the voters will ever debate. But in planning and development circles, the debate about Proposition 90’s impact is raging because there is little question that if Proposition 90 passes, it will be the most disruptive event in California planning since approval of Proposition 13 in 1978. Riding the post- wave, Proposition 90 supporters advertise the initiative as an anti-eminent domain measure that would limit the government’s ability to take homes. It would amend the constitution to narrow the use of eminent domain to uses involving public ownership. But Proposition 90 is also a regulatory takings measure. It would amend the constitution to require compensation for downzonings and other land use regulatory actions that result in “substantial economic losses” to a property owner unless public health and safety is at stake. Although the eminent domain provisions are strong, it is the regulatory taking provisions that cause concern among state and local government officials – especially because the supporters virtually never mention regulatory takings in their campaign. If Proposition 90 passes, said David Jones, a California Redevelopment Association lobbyist, “We may never see another general plan revision in California again.” Proposition 90 is one of six property rights initiatives on the ballot in Western states this year. Similar measures will appear on the ballot in Arizona, Idaho. Montana, Nevada, and Washington (see , August 2006). All use some variation of the “protect our homes” theme. All are backed and at least partly bankrolled by Americans for Limited Government ( www.getliberty.org ), a New York-based group led by libertarian Howard Rich. Whatever the odds of a “Protect Our Homes” initiative passing in Montana or Arizona, Proposition 90 appears vulnerable in California. Most Republican legislators have signed onto it, as have about two dozen local elected officials, including one Democrat, Orange County Supervisor Lou Correa. The Orange County Register and the Long Beach Press-Telegram have editorialized in favor of it. But the polls are close, and opponents claim that the more voters hear about Proposition 90, the more likely they are to oppose it. Furthermore, most major business and development groups are against it. And property rights have rarely gotten the same kind of traction in California that they get in other Western states. This list of opponents includes a number of surprises: the Chamber of Commerce, the California Building Industry Association (which represents homebuilders), the California Farm Bureau Federation (representing agricultural landowners, who own most of the private undeveloped land in the state), and the California Business Properties Association (which represents commercial and industrial property owners). In a prepared statement, Farm Bureau president Doug Mosebar said the initiative “threatens farmland-protection measures and ‘right-to-farm’ laws that prevent leapfrog development and protect family farms and ranches.” Rex Hime, president of California Business Properties Association, told the : “Because it deals with regulatory taking, this opens up so many cans of worms in the current land use process. …We think it will create a dysfunctional legal nightmare.” “Dysfunctional legal nightmare” may be a bit much, but there is little doubt that Proposition 90 would impose a huge set of changes on the regulatory system that would take years and many lawsuits to sort out – just as the passage of Proposition 13 did starting in the late ’70s. Proposition 90 would amend Article I, Section 19, of the California Constitution, which specifies that private property may be “taken or damaged” for public use, and then only when just compensation is paid. The measure would amend the Constitution to state that “private property may not be taken or damaged for private use.” In the context of eminent domain, the measure would specifically limit the use of the property acquired by eminent domain so that it would be “owned and occupied” by a public agency for the public use originally stated. If the public agency that acquired the property doesn’t use it for the “stated public use,” the original owner gets to buy it back at fair market value – and then the owner is permitted to reclaim his or her lower base tax year under Proposition 13. But Proposition 90 would define “public use” so that it is narrower than “public purpose,” and would specifically prohibit transfers of land obtained via eminent domain “to non-governmental owners on economic development or tax revenue enhancement grounds.” However, it would apparently permit private companies to operate, if not own, public facilities on land acquired by eminent domain. The measure specifically calls out privately operated toll roads and prisons as “public use.” (Such “privatization” is a favorite of the Reason Public Policy Institute in Los Angeles, whose parent foundation supports the initiative.) The value of property taken by eminent domain must be the highest value available based on the government’s intended use, and the value cannot be discounted based on the assumption that the government would impose exactions or require dedications of the property were it developed privately. For routine land use planning, the key provisions involve the definition of “damage” to private property. Under Proposition 90, the government cannot “damage” private property without compensation. The measure specifically lists downzoning, elimination of access to private property, and “limitations on the use of private air space” as examples. The measure also specifically exempts Public Utility Commission rate regulations, emergency situations, and nuisances such as “blight, obscenity, pornography, hazardous substances, or environmental conditions” but circumscribes those exemptions to individual parcels. The measure also exempts government actions taken to protect public health and safety. In essence, Proposition 90 would permit downzonings for health and safety, but not for public welfare. The key phrase is Proposition 90’s definition of damage – “substantial economic loss to private property.” The measure does not define a “substantial economic loss,” so one inevitable lawsuit would be a test case asking the California Supreme Court to provide a definition. In the meantime, local governments seeking downzonings could do an analysis concluding that no substantial loss is involved. In addition, it seems likely that local planning departments will stretch the definition of “health and safety” as far as possible, because most planning relies on public welfare as the primary justification for use of the police power. Many more land use restrictions may be passed by relying on floodplains, seismic hazards and the like. The final area of contention would likely be the nuisance exemption. Specifying “blight” as a nuisance that’s not subject to Proposition 90 opens the possibility that land use restrictions in redevelopment areas might be permissible, while the phrase “environmental conditions” opens another possible door for local governments. But the courts would have to decide how narrowly to interpret Proposition 90’s requirement that nuisance be limited to individual parcels. Would only blighted parcels in redevelopment areas be exempt? Would this mean that redevelopment agencies – currently battling against a similar impulse in the Legislature – have to define blight on a parcel-by-parcel basis? Would downzoning a particular parcel in order to reduce the amount of traffic being generated – thus alleviating problematic “environmental conditions” – be acceptable? No one knows at this point. And that is the biggest concern about Proposition 90: It is written so broadly that local governments would be encouraged to find creative end-runs, which would lead to years of litigation. Welcome to Proposition 13 redux.

The life of a tentative map for a subdivision may be extended for up to five years if the map is subject to a local development moratorium, but the map does not live on if the moratorium continues for more than five years, the First District Court of Appeal has ruled. The court determined that a subdivision map originally approved by the City of Half Moon in 1990, but caught up in an eight-year sewer connection moratorium, expired before action was taken to finalize the map. The court also rejected the developer’s arguments that because two different moratoriums were in effect, the map was eligible for two separate time extensions. The court further dismissed the developer’s attempt to keep the map alive administratively by filing, before the apparent expiration date, a final map that did not comply with tentative map conditions. The developer, Ailanto Properties, filed in 1987 an application for a 228-lot vesting tentative map on 114 acres. Ailanto also sought planned unit development zoning. To offset some environmental concerns, the developer whittled the project to 216 lots. The Half Moon Bay City Council certified an environmental impact report and approved the tentative map and zoning in August 1990. One of the conditions of map approval was that Ailanto get a coastal development permit from the Coastal Commission. At the time, Ailanto’s property was subject to a Coastside County Water District water service moratorium, which was lifted in March 1994 when the district secured a new water supply. This moratorium caused the Coastal Commission to return Ailanto’s application in 1991 for the lack of sufficient water rights. Just at the time the Coastal Commission kicked back the application, the city adopted a sewer connection moratorium because the wastewater treatment plant needed expansion. The sewer moratorium lasted from March 1991 until March 1999. Thus, for three years, the project was subject to both a water moratorium and a sewer moratorium. During the sewer moratorium, the authority for coastal development permits shifted from the Coastal Commission to Half Moon Bay, which had adopted a local coastal program. Only days before the sewer moratorium expired, the city approved Ailanto’s coastal development permit application but further reduced the project to 197 lots. The project still ended up before the Coastal Commission when opponents appealed the city’s permit approval. In February 2001, the Coastal Commission upheld the city’s decision but cut the size of the subdivision even more and required that Ailanto retire development rights on an equal number of substandard lots elsewhere in town. Ailanto then sued over those conditions in litigation that is pending separately. In May 2001, Ailanto filed a phased final map with the city and provided supplemental material on August 6, 2001 — one day before the map, with moratorium-related and other extensions, apparently would expire. The city rejected the application because it did not comply with the tentative map conditions, specifically the requirement for a coastal development permit. Before the city rejected the final map, though, Ailanto filed a lawsuit seeking a court declaration that the life of its tentative map had been extended for the entire eight years of the sewer moratorium, that the separate water moratorium also extended the map’s life, and that filing of the phased final map was enough to start a new 36-month extension. Ailanto lost its moratorium arguments in San Mateo County Superior Court, but the court did rule that the developer’s delivery of the phased final map was adequate to trigger a 36-month extension of the vesting tentative map. Both sides appealed, and a unanimous three-judge panel of the First District ruled entirely for the city. The moratorium debate centered on Government Code § 66452.6, a section of the Subdivision Map Act. Ailanto argued that the statute limits local moratoriums — not tentative map extensions — to five years. The court undertook a lengthy discussion of the legislative history and found that from 1977 to 1986 the statute clearly limited the time that a tentative map could be extended because of a moratorium. The Legislature has amended the law several times since, making the language a bit ambiguous but apparently never changing the intent regarding map extensions. “In summary, the legislative history of § 66452.6 points us to the conclusion that the five-year limit in subdivision (b)(1) was intended by the Legislature to apply to the length of the moratorium-related tolling of the expiration of a tentative map and not to the duration of the development moratorium itself,” Justice Mark Simons wrote for the court. Ailanto also argued that multiple moratorium extensions applied, and cited , (1993) 15 Cal.App.4th 892 (see , June 1993). In that case, the court ruled that the city’s adoption of a growth management ordinance and delays in adopting a subarea facilities plan amounted to a moratorium that extended the life of a tentative map, even after a “friendly moratorium” had earlier prolonged the map. Ailanto argued that stood for the proposition that multiple moratoriums can extend the life of a tentative map by more than five years. But the First District rejected the argument, finding that “this issue was not addressed or even mentioned by the court.” The city’s appeal concerned a 36-month extension the Subdivision Map Act provides each time a phased final map is submitted before the tentative map expires. The city argued that Ailanto submitted a phased final map in a form that the city could not approve, meaning the tentative map did not qualify for an extension. Ailanto conceded it lacked the coastal permit required as a condition of tentative map approval, but the developer contended the statute did not require the filing of documents that are “approvable.” Here, the court found § 66452.6, subdivisions (a) (1) and (d) unambiguous. The lack of a coastal development permit was a “significant deficiency” and “a map that does not conform to the approved or conditionally approved tentative map may not be filed for approval by the legislative body,” Simons wrote. Despite the court’s ruling, the project is not dead. Two years ago, the city, Ailanto and the Coastal Commission entered into a settlement agreement which centers on approval of the coastal development permit, according to attorney Rick Jarvis, who represents Half Moon Bay. Working out that permit has been a slow process, for which the First District did not want to wait. Project opponents filed a California Environmental Quality Act lawsuit over the settlement agreement, but a Superior Court dismissed the suit in 2005. “The parties are still all behind the settlement agreement,” Jarvis said. The Case: , No. A098920, 06 C.D.O.S. 8214, 2006 DJDAR 11728. Filed August 30, 2006. Modified September 18 at 2006 DJDAR 12602. The Lawyers: For Ailanto: Robert Lanzone, Aaronson, Dickerson, Cohn & Lanzone, (650) 593-3117. For the city: Rick Jarvis, Jarvis, Fay & Deporto, (510) 238-1400.

A unanimous California Supreme Court has upheld lower court decisions rejecting an advertising company’s claim that it deserves compensation because trees planted along a public street obstructed visibility of six billboards. The state high court denied Regency Outdoor Advertising’s inverse condemnation claim and also rejected Regency’s arguments that the trial court had erroneously awarded the City of Los Angeles about $100,000 in costs, including $80,000 in expert witness fees. “ e conclude that owners and occupiers of roadside property do not possess a ‘right to be seen’ that requires the payment of compensation for municipal landscaping efforts having no injurious effect on any property rights other than the claimed right to visibility,” Justice Carlos Moreno wrote for the court. The court further held that compensation provisions in the state’s Outdoor Advertising Act do not apply because they speak only to intentional sign removal or limitations on use of billboards, not to incidental loss of visibility. To spruce things up for the 2000 Democratic National Convention, the City of Los Angeles planted mature palm trees and placed lighted pylons along Century Boulevard, the primary route into Los Angeles International Airport. Regency at the time complained that the landscaping made at least six of its billboards less visible to Century Boulevard motorists. Claiming the city must pay compensation for the allegedly reduced value of its signs, Regency then filed an inverse condemnation lawsuit. Prior to trial, the city offered to settle the lawsuit by removing one tree and paying Regency $1,000. The company rejected the offer, so the matter went to trial, after which Los Angeles County Superior Court Judge Jean Matusinka ruled for the city. Relying on different legal footing than Matusinka used, the Second District Court of Appeal upheld the trial judge’s decision on the merits and the award of costs (see , May 2005). Regency got no further at the state Supreme Court. In the inverse condemnation claim, Regency argued that it has an “abutter’s right” to have its property seen from the adjacent public street. The court did find that there is extensive case law on the rights of those who own property along a public street, including a “right to be seen.” However, the court also found that the “right to be seen” cases concerned a physical taking of loss or access, neither of which Regency suffered. “ he virtually unanimous rule provides that there is no freestanding right to be seen, and that the government need not pay compensation for any lessened visibility,” Justice Moreno wrote. As for a partial takings, the court cited its nearly century-old decision in , (1907) 150 Cal. 592, a case in which the court acknowledged the rights of a property owner whose shop was blocked by the construction of an electric railway switching tower on the sidewalk in front of the shop. “We follow the weight of authority and conclude that Regency has no visibility right warranting compensation here,” Moreno wrote. “It bears emphasis that , the first decision in this state recognizing any ‘right to be seen,’ qualified its holding by noting that ‘any obstruction to the use of the street which impairs or destroys an abutter’s easements is a private injury.’ Our careful phrasing implied that activity that comports with the fundamental purposes served by the roads does not produce a private injury. The planting of trees along a road is, in general, fully ‘consistent with the road’s use as an open public street’ ( , (N.Y. App.Div. 2002) 744 N.Y.S.2nd 438, 439), and in fact may enhance both travel and commerce along the street.” Furthermore, the court noted, Regency has not shown that the landscaping reduced the billboards’ value. Regency also argued that Business and Professions Code § 5412, a portion of the Outdoor Advertising Act, directed that the company receive compensation because the city had effectively removed or limited the use of the billboards. The statute prohibits the government from blocking “customary maintenance and use” of a billboard, and Regency argued that the tree planting denied the company such maintenance and use. The court ruled first that the city clearly did not remove the billboards. Secondly, the court said that Regency was reading § 5412 too broadly, and that the compensation requirements of the statute do not “pertain to municipal landscaping efforts that may incidentally impair the visibility of nearby advertising facings.” “Regency has offered no evidence establishing that the trees at issue were planted along Century Boulevard for the purpose of blocking its billboards from view — indeed, the evidence adduced at trial was to the contrary,” Moreno wrote. As for the costs awarded to the city, the court rejected all of Regency’s arguments, including the contention that city expert witness fees incurred prior to a settlement offer were not eligible. Since the court issued its decision, Regency has filed a request for a re-hearing, a potential step toward asking the U.S. Supreme Court to review the case. The Case: , No. S132619, 06 C.D.O.S. 7197, 2006 DJDAR 10276. Filed August 7, 2006. The Lawyers: For Regency: Michael Berger, Manatt, Phelps & Phillips, (310) 312-4000. For the city: Eduardo Angeles, city attorney’s office, (310) 646-3260.

Property owners who received an $850,000 loan from the Carson Redevelopment Agency must return the money because they acquiesced to the mayor’s demand for a $75,000 bribe, the Second District Court of Appeal has ruled. The property owners contended the court did not have to void the loan agreement because the corrupt public official did not have a direct interest in the agreement. They also argued that the court should consider remedies other than disgorgement of the $850,000. The court expressed sympathy to the property owners, but said that legal precedent and public policy mandated the case’s outcome. “A public contract obtained through an extortion payment is not valid, and no one should believe that it is valid. A bright line rule is required,” Justice Judith Ashmann-Gerst wrote for the unanimous three-judge panel. Michael and Bertha Padilla own the 45-unit Camino Senior Village apartment complex in Carson. In 1994, they signed a contract with the city’s redevelopment agency under which the agency agreed to provide rental assistance for six years of up to $295 a month per qualified tenant, up to a maximum of 22 units. In exchange, the Padillas agreed to provide 22 units as low-income senior housing for 30 years. In 1999, the Padillas asked the agency to extend the rental assistance for another 24 years and to include all 45 units. The agency responded with a proposed “buydown agreement” in which the agency would provide the Padillas an $850,000 forgivable loan to be used for buying down their existing mortgage. In exchange, the Padillas would restrict tenancy in 44 units to low-income people at least 55 years old for 24 years. Then-Mayor Agapito “Pete” Diaz Fajardo told Michael Padilla he would have to pay $75,000 to get the City Council and the redevelopment agency board to approve the new agreement. The Padillas paid the bribe and got the new agreement. The FBI indicted Fajardo in late 2002 for extorting money from the Padillas and attempting to extort another bribe from a bidder on a city public works project (see , January 2003). Padilla pleaded guilty in early 2003 and eventually was sentenced to 15 months in federal prison. The Carson Redevelopment Agency sued the Padillas, seeking avoidance of the buydown agreement and return of the $850,000. Los Angeles County Superior Court Judge Haley Fromholz ruled for the agency and ordered the Padillas to repay the $850,000 plus interest. On appeal, the Padillas argued that under Government Code § 1090, a public contract is not void unless a public official is financially interested in the contract. Although Fajardo received an illegal payment, he did not get paid with public funds and therefore did not have a cognizable financial interest in the contract, the property owners argued. However, the court ruled that Fajardo’s conflict of interest was plain and was covered by § 1090, which prohibits a public official from having an interest in a public contract that he created. “ ection 1090 is aimed at interest, other than an interest that is too remote or speculative, that could compromise a public official’s judgment or cast doubt on whether he executed his duties with the utmost allegiance, diligence, and loyalty to his office,” Ashmann-Gerst wrote. Here, the extortion payment created Fajardo’s financial interest in the contract, the court ruled. “ he term ‘financially interested’ in § 1090 cannot be interpreted in a restricted and technical manner,” the court ruled. “The sweep of § 1090 is broad; within its reach comes any interest that might deter a public official from the most righteous and noble path of civil service.” The Padillas also argued that requiring them to disgorge the $850,000 was unfair punishment of the victims of extortion. They said the court should consider the facts of the case before determining the appropriate remedy. The Second District, though, ruled that disgorgement is “automatic.” The court sited , (1985) 38 Cal.3d 633, in which the state Supreme Court ruled that an Albany city councilman who sold his land to the city through a third party had to return the payment he received for the land, while the city got to keep the land. “More recently,” Ashmann-Gerst wrote, , (2001) 91 Cal.App.4th 572, “held that a public entity is entitled to recover any compensation it paid under a tainted contract without restoring any of the benefits it received. By logical import, interpreted as a binding precedent holding that the disgorgement remedy is automatic. … Also, as a policy matter, it is the most effective way to give § 1090 all the teeth that it needs.” The Case: , No. B184629, 06 C.D.O.S. 5948, 2006 DJDAR 8423. Filed June 28, 2006. The Lawyers: For Carson Redevelopment Agency: William Wynder, Aleshire & Wynder, (949) 223-1170. For Padilla: Jay Coggan, (310) 407-0922.

The state Supreme Court has rejected California State University trustees’ contention that the university does not have to mitigate off-site traffic and fire safety impacts from expansion of the CSU Monterey Bay campus. A divided appellate court panel in 2003 had accepted the CSU Board of Trustees’ argument that the state constitution prohibits the university from paying the Fort Ord Reuse Authority (FORA) for off-site road and fire safety improvements related to campus expansion. The state Supreme Court unanimously overturned the appellate court and threw out the CSU Monterey Bay campus master plan and environmental impact report. “The plain language of the California Constitution does not support the trustees’ position that voluntary mitigation payments are impermissible,” Justice Kathryn Werdegar wrote for the court. The decision appears to provide a significant victory for cities and counties that are home to public universities and other large state institutions. “We argued that the university couldn’t simply point to another agency and say, ‘We know we have impacts here but they are your total responsibility,’ without even trying to enter into any sort of agreement,” said Sheri Damon, an attorney who has represented FORA throughout the eight years of litigation. The state Supreme Court took a broad view of a state agency’s obligations under the California Environmental Quality Act (CEQA), she said. The court ruled that although FORA may not assess fees on CSU, implementation of FORA’s infrastructure plan constitutes feasible mitigation for the impacts of university expansion. Thus, the court ruled, CSU should negotiate with FORA regarding the university’s contribution toward infrastructure plan improvements. Clara Potes-Fellow, a CSU spokeswoman, said the decision clearly will have one impact. “It definitely will increase the cost to the state to fund university construction projects,” Potes-Fellow said. “We will know in time if the cost has the impact of slowing down construction.” Local government officials were closely watching the case and had provided amicus briefs asking the state high court to overturn the appellate court decision. In San Diego, the city, a neighborhood group and a hospital have sued over San Diego State University expansion plans because of impacts on roads and public safety. The Supreme Court decision appears to shoot down San Diego State’s argument that the school is not responsible for offsetting the impacts. Since the Army closed Fort Ord in 1994, the university has emerged as the largest user of the 27,000-acre base in the hills northeast of Monterey. The university opened in 1995 and, in 1998, trustees adopted a master plan calling for eventual growth to 25,000 students on the 1,370-acre campus. More than 10,000 students, faculty, staff and household members would live on campus. The City of Marina and FORA filed a CEQA lawsuit arguing the trustees failed to identify and adopt feasible mitigation measures, improperly disclaimed responsibility for offsetting environmental effects, and improperly relied on a statement of overriding considerations to justify approval of the EIR and master plan. At issue was the mitigation of traffic and fire protection impacts. Trustees said they could not fully mitigate those impacts because doing so would require FORA to implement an infrastructure plan the Reuse Authority adopted in 1997. And, in fact, FORA had included CSU growth in the long-range base reuse plan and had assumed CSU would pay $1.139 million annually for 18 years to fund its share of infrastructure improvements. But CSU argued that it was precluded from paying. Monterey County Superior Court Judge Richard Silver ruled against the university, finding that CEQA requires the university, like any developer, to contribute to a fund for mitigating cumulative impacts. A divided three-judge panel of the Sixth District overruled Silver, largely based on the majority’s reading of San Marcos Water Dist. v. San Marcos Unified School Dist. , (1986) 42 Cal.3d 154. In San Marcos , the state Supreme Court ruled that a special district could not levy a “sewer capacity” fee on a school district. The Sixth District found that the Legislature overrode part of the San Marcos decision when lawmakers approved Government Code § 54999, permitting public agencies to levy capital facilities fees on schools for a number of things, but not specifically for traffic and fire safety (see CP&DR Legal Digest , August 2003). The state Supreme Court ruled that the Sixth District and CSU misread San Marcos . The university argued that San Marcos and the follow-up legislation permitted payments only for such items as water, drainage and sewage collection, but not for roads and fire protection. “The trustees have misinterpreted San Marcos ,” Justice Werdegar wrote. “The decision addresses only compulsory charges imposed by one public entity on another. The case has nothing to say about a discretionary payment made by a public agency that voluntarily chooses that method of discharging its duty under CEQA to mitigate the environmental effects of its project.” The Reuse Authority has not imposed a charge on CSU; instead, FORA has sought a negotiated payment to mitigate specific impacts of campus growth, the court noted. “Nothing in San Marcos speaks to voluntary payments or purports to address or narrow any public agency’s duties under CEQA,” Werdegar wrote. The trustees further argued that mitigation was infeasible because they could not guarantee that FORA would actually implement the infrastructure improvements. But the court rejected the contention. “Both the CEQA Guidelines and judicial decisions recognize that a project proponent may satisfy its duty to mitigate its own portion of a cumulative environmental impact by contributing to a regional mitigation fund,” Werdegar wrote. The trustees cannot disclaim responsibility for making such payments until the trustees have at least requested funds from the Legislature, Werdegar wrote. In a concurring opinion, Justice Ming Chin warned that the six-justice majority was inserting an unnecessary limitation into CEQA law. He wrote that it is not clear that “a public agency has no responsibility or jurisdiction for a mitigation measure simply because the Legislature denies a specific request for money to pay for that mitigation measure.” In this case, the trustees could still contribute to FORA from CSU’s general operating fund, Chin wrote. Indeed, FORA attorney Damon said the court did not go as far as it could have. It did not provide direction on settling potential impact fee negotiation impasses between FORA and CSU. Plus, the court gave the impression that only the Legislature may authorize money for mitigation measures when in fact universities have a variety of funding sources, she said. Potes-Fellow, of CSU, said trustees will now ask for environmental mitigation funds when submitting capital funding requests to the Legislature. “We will be facing the same situation in any future campus construction,” she said. The Case: City of Marina v. Board of Trustees of the California State University , No. S117816, 06 C.D.O.S. 6905, 2006 DJDAR 9917. Filed July 31, 2006. The Lawyers: For Marina: Sheri Damon, Lombardo & Gilles, (831) 754-2444. For CSU: Basil Shiber, Miller, Starr & Regalia, (925) 935-9400.

The Coastal Act does not protect views of the coast from off-shore locations, the Second District Court of Appeal has ruled. In a case from San Luis Obispo County, the court ruled that the Coastal Commission did not have authority to require that a proposed house be relocated and downsized to protect the views of boaters and surfers. The ruling is a setback for the Coastal Commission, which has increasingly sought to preserve views from offshore, especially in remote areas. At issue is a house proposed by landowner Dennis Schneider for a 40-arce parcel along the Harmony Coast, between Cambria and Morro Bay. Six years ago, the San Luis Obispo County Planning Commission approved a coastal development permit (CDP) for a 10,000-square-foot house, a barn and a 1.25-mile-long driveway from Highway 1. Two members of the Coastal Commission appealed the decision, and four years later the state panel approved the CDP but added new conditions. The Coastal Commission found that the project would be visible from the ocean. So the Commission insisted that the project be relocated to a higher elevation away from a marine terrace, that all development be confined to 5,000 square feet, that the barn be dropped from the project, and that the driveway be moved. Schneider sued, arguing that the Commission has no authority to impose development conditions to protect views of the coast from offshore. San Luis Obispo County Superior Court Judge Roger Picquet ruled for the Commission, but the Second District, Division Six, overturned that decision. The Coastal Commission argued that a portion of the Coastal Act, specifically, Public Resources Code § 30251, mandates protection of scenic and visual qualities of coastal areas. The Commission noted that the statute does not mention a vantage point. During the hearing regarding Schneider’s project and at other times, Coastal Commission Executive Director Peter Douglas contended that the agency has a responsibility to protect views from the sea to the coast. But the Second District determined, “This expansive reading of the statute stretches the fabric too thin.” Historically, the protection of scenic coastal views from public parks, roads, trails and vista points has been regulators’ aim, the court determined. “” e believe that it is unreasonable to assume that the Legislature has ever sought to protect the occasional boater’s views of the coastline at the expense of a coastal landowner,” Justice Kenneth Yegan wrote for the court. The Coastal Commission reviewed the CDP based on policies in San Luis Obispo County’s Local Coastal Program (LCP), which protect views from Highway 1 and other inland areas, the court noted. “Neither § 30251 nor the LCP support an unwritten policy to protect scenic views of the coast from offshore, ocean-based vantage points. The LCP protects ‘major public view corridors,’ not offshore views by the occasional boater, kayaker or surfer. Such an ocean-based view corridor would change minute by minute depending on where the boater, kayaker or fisher happens to be,” Yegan wrote. However, the court did not go so far as to reinstate the original permit approved by the county, and, instead, ordered the Commission to reconsider the CDP. The court noted that the proposed project would be visible from a park and other land-based view corridors, and the Coastal Commission had added conditions to address that impact. The Case: , No. B186149, 06 C.D.O.S. 5997, 2006 DJDAR 8429. Filed June 28, 2006. The Lawyers: For Schneider: James Burling and Lawrence Salzman, Pacific Legal Foundation, (916) 419-7111. For the Commission: Rosana Miramontes, attorney general’s office, (213) 897-2000.

Building homes around publicly accessible lakes may be the new gold mines in California's Sierra Nevada foothills. The unincorporated community of Copperopolis in western Calaveras County has just such a water feature in Lake Tulloch, and, not surprisingly, the area is experiencing a growth boom. The county has already approved approximately 5,000 residential parcels that remain unbuilt. In addition, Central California development heavyweight Castle & Cooke is building a new town square and in August submitted paperwork for two new projects totaling 2,100 units. A controversial 300-unit housing and golf course project is pending, as is a different plan for lakefront condominiums. Meanwhile, a community plan that forecasts a nearly ten-fold increase in population to 40,000 remains in limbo. "With the amount of development that is coming to Copperopolis and just around the lake, we're going to wind up with a city five times the size of Sonora. But there just isn't any infrastructure yet," said Connie Williams, who heads the Lake Tulloch Alliance. The Lake Tulloch group is one of many that, in recent months, has helped form the Calaveras Planning Coalition. The coalition is urging the county to overhaul its general plan, which was last updated in 1996. But Ward La Valley, a coalition coordinator, said the current general plan is a 1980s-style plan that provides "open season for all the wrong kind of development." In addition, growth is one of the primary issues in the campaign for the county supervisor's seat representing Copperopolis. But the race is unusual in that the challenger appears to be the more overtly pro-development candidate. First-term incumbent Supervisor Victoria Erickson has rolled out a number of proposals to protect Lake Tulloch and is taking a measured stance on growth. Her opponent, Russ Thomas, is a former Stanislaus County planning commissioner who has headed the Copperopolis Community Plan Update Committee, which did not embrace Lake Tulloch growth restrictions. Like a number of counties with territory in the Sierra Nevada foothills, Calaveras is seeing an influx of retirees from urban areas, wealthy people buying second homes, and even some long-distance commuters. And because there is only one small incorporated city — Angels Camp — nearly all of the newcomers to the county of 45,000 people are locating in unincorporated areas. Copperopolis, a 19th century gold and copper mining town on Highway 4, is one of the top destinations. The demographics certainly have the attention of Castle & Cooke. Among the company's projects are a new town square, buildout of the 1,150-unit Saddle Creek subdivision, and the newly proposed 1,500-unit Copper Valley Ranch and 600-unit Sawmill Lake projects. "We see this as a very critical region in California," said Paul Stein, vice president of land planning for Castle & Cooke Calaveras. "We're close to several million baby boomers in the Bay Area and the Central Valley who will be retiring in the next few years." From Copperopolis, people can make day trips to the foothills wine country, ski slopes at Bear Valley, and even the Bay Area, he said. Stein, a former county supervisor who served two years as chief deputy director of the state Department of Fish and Game in the Schwarzenegger administration, said Castle & Cooke is taking a long-term, community-building approach. That is why even before there are enough residences nearby to justify it, the town square project is under construction, Stein said. The 27-acre project will feature wide sidewalks, a post office and about 20 buildings with upwards of 200,000 square feet of space for retail shops, professional services and second-floor residential uses. "We're looking out 10 to 20 years," Stein said. "We want to re-create the old town center concept where people lived in town." Castle & Cooke as well as other developers are also enticed by 67,000-acre-foot Lake Tulloch, a reservoir operated by two Central Valley irrigation districts. Stretches of the lakeshore are lined with homes, some of which extend over the water. Castle & Cooke and other developers would like to build more lakeshore homes. That concerns the Lake Tulloch Alliance, which fears the waterway could easily get overrun by boaters. Another concern regards the extensive use of septic systems above the lake level. The group would like to see the county designate remaining lakefront land for 20-acre minimum parcel sizes and prohibit large-scale use of septic systems. Supervisor Erickson conceded that infrastructure is "a huge issue" in Copperopolis. But, she said, the Calaveras County Water District has adopted a good master plan for sewer and water service, and planners are now looking at possible routes for new roads. "The developers are going to have to realize that a lot of this infrastructure they are going to have to put in themselves," said Erickson, who commended the area's developers as responsible citizens. Erickson also said that preparation of a new general plan is essential. "The key thing is, as we grow, we need to maintain our rural character. That's going to be the big fight," said Erickson, noting the number of newly created citizen groups. "They are afraid we are going to lose that small-town character." Stein recommended preparation of a master plan for all potential development in the area, an idea Erickson endorsed. The draft community plan, though, is something of a touchy subject. The plan envisions an eventual population of 40,000 in the greater Copperopolis Basin, which now has fewer than 5,000 residents. Still, the county general plan would permit upwards of 100,000 people. The plan committee submitted the draft plan a year ago. County planners and attorneys identified flaws, Erickson said, so the county has commissioned an independent consultant's review, which should become public this month. Hearings will follow. "That community plan is a vital piece of the future of the Copperopolis Basin," she said. Thomas, however, said the plan received wide public input and that Erickson has delayed it for no good reason. The plan would help retain the look and feel of Copperopolis, he contended. "I personally think that it's far better for California to grow here than to continue to gobble up peach orchards and grape vineyards in the Central Valley," Thomas said. Neighboring Tuolumne County, which contains a piece of Lake Tulloch, has avoided the growth battles that are breaking out next door. Tuolumne County's lake frontage is steeper, and the county has zoned the area agricultural, with 37-acre minimum lot sizes. Plus, there is virtually no infrastructure, noted Tuolumne County Community Development Director Bev Shane. Tuolumne did sue Calaveras in 2004 over road impacts from the 2,600-unit Oak Canyon Ranch project. Litigation was settled with an agreement for the developer to fund road improvements in Tuolumne. Contacts: Victoria Erickson, Calaveras County supervisor, (209) 304-7374. Russ Thomas, Copperopolis Community Plan Committee, (209) 785-2020. Paul Stein, Castle & Cooke, (209) 785-8553. Ward La Valley, Calaveras Planning Coalition, (209) 754-3317. Lake Tulloch Alliance: www.laketulloch.org Calaveras County Planning Department: www.co.calaveras.ca.us/departments/planning.asp

Although it's city that has been in the redevelopment business since 1948, San Francisco has recently created its largest redevelopment project area. The new, 1,300-acre Bayview Hunters Point project might also be the most controversial redevelopment project in a city where land use planning and development are always contentious. The Bayview Hunters Point project area differs from more traditional redevelopment projects in that its top priority is housing. In fact, the city has committed 50% of tax increment revenue to housing for very low-, low- and moderate-income residents. That could amount to more than $90 million for housing over the next 45 years. The city also has set a goal that 25% of all new housing in the project area be affordable. State law requires only that 20% of tax increment go for housing, and that 15% of new units in a project area be affordable. San Francisco's redevelopment agency has made housing - including a policy of "no net loss" of affordable units in project areas - a major emphasis in recent years. Moreover, the city's definition of "affordable" is even tighter than required by state law, as rental housing must be affordable to people making 50% of median income, and for-sale units must be affordable to people with incomes equal to 100% of median. "It's not unusual for San Francisco," Redevelopment Agency Executive Director Marcia Rosen said of the Bayview project housing policy. "We devote 50% of net tax increment after pass-throughs to affordable housing. We do it in nearly every project area. San Francisco has an enormous affordability gap and enormous unmet needs." Still, the Bayview plan's ambitious housing policies have not been enough to win over large portions of the historically African-American Bayview Hunters Point community in the southeast corner of town. That's because Bayview residents have long memories. Prior to the 1960s, San Francisco's Western Addition was heavily populated by low-income African-Americans. But when the city undertook "urban renewal" style redevelopment, the city cleared away the homes of many African-American people to make room for projects serving wealthier people. A number of the Western Addition's residents relocated to Bayview Hunters Point, just north of Candlestick Point and east of the 101 freeway. Those people and their younger family members fear the city could undertake the same sort of clearance, followed by gentrification. The local San Francisco Bay View newspaper has been a leading opponent, contending that redevelopment will only help developers at the expense of existing residents. And even some city leaders have remained skeptical. The Board of Supervisors' vote to approve the project this spring was 6-3, with dissenters arguing the plan does not give adequate power to Bayview residents. But Rosen dismisses history as just that, and says the Bayview Hunters Point plan is "different from the urban renewal plans of old." Supervisor Sophie Maxwell, who represents Bayview Hunters Point, has been among the biggest supporters, arguing that the district has been depressed for too long. The plan is the result of 10 years of planning and hundreds of public meetings. Community members first decided on a vision statement, which emphasized the need for affordable housing, economic development and community enhancements. Those three issues became the cornerstones of the redevelopment plan. "This project area was 10 years in the making because it was a bottom-up, community planning process," Rosen said. The process was deliberately chosen to decrease public skepticism. Tim Colen, executive director of the San Francisco Housing Action Coalition, said the redevelopment agency deserves credit for addressing the city's affordable housing challenges. "It's surprising to me, given the tax increment devoted to affordable housing, how controversial the Bayview Hunters Point redevelopment project is. Affordability is at crisis levels right now," Colen said. "There's nervousness in the Bayview Hunters Point about people being forced out. But the redevelopment plan addresses that," Colen added. As in all of San Francisco, housing that poor and even middle-class families can afford is an issue in Bayview. Plus, because the area has relatively inexpensive real estate, it may be only a matter of time before developers gobble up chunks to build expensive, market-rate housing. The redevelopment plan intends to ensure that Bayview has a diverse social and economic mixture, Rosen said. "None of us can stop escalating rents or hoards of developers desperately trying to claim the last sizable lots of undeveloped land in San Francisco," Project Area Committee Chairman Angelo King wrote on the committee's website. "But I believe that community driven redevelopment can alter the change to benefit the indigenous people of the affected area." In fact, portions of Bayview might benefit from a touch of gentrification. In some neighborhoods, more than 80% of housing units are subsidized, according to Rosen. A "better blend" of housing could benefit those poor neighborhoods. One project that counts as both economic development and as a community enhancement is the planned Third Street light rail line. It would provide easy access from Bayview - which has long been somewhat isolated - to the Financial District and Mission Bay, where thousands of new jobs are being created. The new project area abuts a 9-year-old redevelopment project area that encompasses the Hunters Point shipyard, a closed Navy shipyard on the San Francisco Bay waterfront. The city has signed a master development agreement with Lennar that calls for revitalization of the shipyard, thousands of new housing units and extensive development of new industrial and commercial space. "We're really looking at two different kinds of redevelopment," Rosen said. "One is the transformative, economic use of a military base to a mixed-use neighborhood. The second is a much more modest plan for a much larger area that is intended to revitalize the Bayview for the benefits of the residents and businesses that are already there. It is building on the assets that are there." Taken together, the redevelopment projects should have multiple benefits for the broader Bayview Hunters Point district, she said. Contacts: Marcia Rosen, San Francisco Redevelopment Agency, (415) 749-2588. Tim Colen, San Francisco Housing Action Coalition, (415) 541-9001. Bayview Hunters Point Project Area website: www.sfgov.org/site/sfra_page.asp?id=5581 Bayview Hunters Point Project Area Committee website: www.bvhp-pac.org

In a decision handed down shortly before the state Supreme Court opinion on California State University project impacts, an appellate court ruled that a San Diego community college district is responsible for off-campus traffic impacts caused by campus expansion. Much like the state Supreme Court, the Fourth District Court of Appeal said the 20-year-old decision in San Marcos Water Dist. v. San Marcos Unified School Dist. , (1986) 42 Cal.3d 154, was “inapplicable” because it involved a special assessment for capital facilities, not a school’s obligations under the California Environmental Quality Act (CEQA). “We conclude that the district’s mitigation obligation under CEQA is not a prohibited special assessment, and the district’s claim that it lacks legislative authorization to mitigate its project’s significant adverse off-campus traffic impacts is unsupported by the administrative record or applicable law,” the court ruled. At issue are a master plan and environmental impact report adopted in 2004 by the Grossmont-Cuyamaca Community College District calling for an expansion and remodeling of the Cuyamaca College campus in Rancho San Diego. The various construction projects would permit student enrollment to grow from about 8,000 to 15,000 by 2015. As in the California State University, Monterey Bay, case, the community college district denied responsibility for off-campus traffic impacts and adopted a statement of overriding considerations because of the unmitigated impacts. San Diego County sued, arguing that the traffic mitigations in the EIR were inadequate and that adoption of the statement of overriding considerations did not excuse failure to include mitigation measures. San Diego County Superior Court Judge Linda Quinn ruled for the college, but a unanimous three-judge panel of the Fourth District, Division One, overturned the lower court. The community college district presented many of the same arguments that CSU made to the state Supreme Court. The community college district argued that mitigating traffic impacts was not feasible because the county has exclusive jurisdiction over the roads, the district cannot assure necessary road improvements would be implemented, construction is constrained by limited rights-of-way, and the district cannot “lawfully pay for the off-site traffic improvements.” The district contended that Education Code § 14020.1 prohibits community college districts from spending money for off-site street improvements. The Fourth District, however, ruled that § 14020.1 constrains only a portion of state funds provided to the district. “ he district accepts its responsibility under CEQA to mitigate significant impacts on air quality, aesthetics and visual quality, biological resources, cultural resources, hydrology and water quality, paleontology and noise,” Justice Gilbert Nares wrote for the court. “The district does not explain how expenditure of funds to mitigate these project-related environmental impacts is permitted if, as it claims, the district is only authorized to spend funds on educational services.” The court determined that other sections of the Education Code make clear that any funds available to the district may be spent to provide community college facilities — and that the district must comply with CEQA. “In our view, expenditure of the district’s funds on off-campus road and intersection improvements designed to accommodate the increased volume of student and faculty vehicular traffic to and from the Cuyamaca College campus that the project will generate is implicitly authorized by § 81800 of the Community College Construction Act of 1980 and pertinent regulations. Specifically, the CEQA Guidelines are expressly adopted as part of the regulations promulgated to implement the Community College Construction Act of 1980,” Nares wrote. The court found the district’s arguments based on San Marcos and subsequent legislation regarding capital improvement assessments on school districts (Government Code § 54999) to be “unavailing” because neither the court case nor the legislation makes any mention of CEQA. The court further rejected the district’s claim that traffic mitigation is economically infeasible, because “the administrative record contains no estimate of the cost of the district’s proportional share of the off-campus traffic mitigation measures identified in the final EIR.” Because it concluded the district’s handling of mitigation measures was inadequate, the court did not even consider the statement of overriding considerations. Instead, the court invalidated the EIR and master plan. The Case: County San Diego v. Grossmont-Cuyamaca Community College District , No. D046728, 06 C.D.O.S. 6144, 2006 DJDAR 8939. Filed July 7, 2006. The Lawyers; For the county: C. Ellen Pilsecker, county counsel’s office, (619) 531-4860. For the community college district: Kevin P. Sullivan, Stephenson, Worley, Garratt, Schwartz, Garfield & Prairie, (619) 696-3500.