The Second District Court of Appeal has overturned a City of Los Angeles decision not to permit construction of a billboard, and the court indicated the city could be liable for revenue the would-be sign builder lost. The opinion by Justice Rueben Ortega strongly suggests that political pressure from the mayor's office influenced the city's Board of Building and Safety Commissioners. The board initially refused to revoke the billboard permit on appeal. After the mayor's office intervened, the board did revoke the permit on grounds the Court of Appeal rejected. In July 1996, the Los Angeles Department of Building and Safety issued a permit for Van Wagner Communications to erect an off-site sign at the intersection of Bentley Avenue and Little Santa Monica Boulevard. A nearby store, Koo Koo Roo, appealed the awarding of the permit. Department staff members denied the appeal, which then went to the Board of Building and Safety Commissioners. At the end of a long public hearing, the Board determined the sign permit was issued in error because the proposed sign was too close to an existing sign on Sepulveda Boulevard. However, the board stopped short of revoking the permit. Department staff members revoked the permit anyway in October 1996. Van Wagner then asked the department to reconsider and to find that Van Wagner had acquired a vested right because it had begun constructing the sign. The department ruled in Van Wagner's favor. Koo Koo Roo then brought a second appeal to the Board, challenging the department's decision and the lack of a public hearing on Van Wagner's claim of vested rights. At the second Board hearing, two department staff members said the proposed sign was acceptable under the city's ordinance, which requires 600 feet between off-site signs on the same side of the street. In this case, the existing sign and proposed sign were within 600 feet but they were not on the same street. Nevertheless, a representative of the mayor's office objected to the proposed sign, as did Koo Koo Roo. The Board then ruled that the permit was invalid, that Van Wagner did not act in good faith reliance on the permit when it began building the sign, and that Van Wagner had no vested right to the permit. Van Wagner sued the city in May 1997. Los Angeles Superior Court Judge David Yaffe concluded that the Board was authorized to interpret the city's 600-foot spacing ordinance. He noted that the existing sign on Sepulveda Boulevard is angled so that motorists on Little Santa Monica Boulevard can see it; hence, the proposed sign could not be placed within 600 feet. He also suggested Van Wagner rushed to begin construction even though it knew an appeal was possible. Yaffe then transferred the case to Superior Court Judge Edward Ferns, who rejected Van Wagner's inverse condemnation and estoppel claims. On appeal, the issues were application of the 600-foot spacing restriction, and whether Van Wagner may seek inverse condemnation damages for loss of revenue. The unanimous three-judge panel concluded that the 600-foot requirement did not apply. "The ordinance unambiguously states that it applies to signs that are located on the same side of the same street, which these signs are not. … Had the City wished to regulate the spacing of signs situated on different streets but visible to motorists on an adjacent street, it could have done so," Justice Ortega wrote. Because it ruled the permit was valid, the court also reversed Judge Ferns's inverse condemnation judgement against Van Wager. The company sought compensation for delays associated with administrative and judicial proceedings and with the city's erroneous revoking of the permit. "Should the motion be renewed below, the parties and trial court will be bound by our findings that the permit was validly issued and erroneously revoked," Ortega wrote regarding the inverse condemnation claim. He then pointed to two cases: Landgate, Inc., v. California Coastal Com. (1998) 17 Cal4th 1006, in which the court held that failure to approve a development did not constitute a taking (see CP&DR Legal Digest January 1999); and Ali v. City of Los Angeles, (1999) 77 Cal.App.4th 246, in which the city's delay in issuing a demolition permit was ruled a temporary taking and the city was ordered to pay more than $1.2 million for inverse condemnation (see CP&DR Legal Digest, February 2000). The court held that the estoppel claim was moot because the court reinstated the permit. The Case: Van Wagner Communications, Inc. v. City of Los Angeles, No. B135654, 00 C.D.O.S. 8753, 2000 Daily Journal D.A.R. 11577, filed October 30, 2000. The Lawyers: For Van Wagner: George James Stephan, Stephan, Oringher, Richman & Theodora, 310 557-2009. For the city: Michael Klekner, deputy city attorney, (213) 485-5420.

Ever since Camp Pendleton opened on its northern border during World War II, Oceanside has been known as a military town. Over the years, nude dance clubs, rough bars, tattoo parlors and hourly motels flourished in the beachfront downtown, giving Oceanside a reputation as a tough town with a high crime rate. But city officials, civic leaders and merchants in this northern San Diego County town of 160,000 people have worked hard to make those days history. Now, downtown is on a comeback, aided by new row houses and an evolving retail scene. Although the city's redevelopment efforts remain controversial and have experienced setbacks, the redevelopment agency did bring in a multi-screen theater. A developer wants to build a high-end, beachfront resort. And a pharmaceutical company is moving forward with plans for a $1.25 billion campus in a new industrial park in a different part of town. "After doing this for 10 years, we are an overnight success," said John Daley, president of the new Main Street association. "We've really had an incredible summer with tens of thousands of people coming downtown, more so that at any other time." Ten years ago, Daley and other merchants started the "downtown business watch" because drug sales, prostitution and gang activity were flourishing. Business owners hired private security and kept a close eye on suspicious activity. As the climate improved, the group evolved into the Downtown Business Association, which marketed the district, organized cleanup programs and promoted concerts. That group eventually became Main Street Oceanside, which gained sanction from the state Trade and Commerce Agency earlier this year. Daley, who has been active in Oceanside civic affairs for three decades, said merchants' partnership with City Hall has been crucial in downtown's turnaround. "It's the place to be now in Oceanside," he said. Oceanside Planning Director Michael Blessing called the downtown comeback "truly remarkable … we don't just have young Marines looking for something to do. We have all kinds of people there now." Restaurants and shops catering to surfers and beach-going families have replaced some of the rougher establishments. The opening of a downtown multiplex in November 1999 was also key because it introduced a whole new population to the downtown, which sits next to a wide, 3 1/2-mile-long beach. Daley called the movie theater an important step, but he noted that the city's redevelopment process was very slow, starting nearly 20 years earlier when the city leveled a number of buildings. Now the developer, DDR Oliver McMillan, has backed away from completing other retail portions of the project. And downtown redevelopment has been a controversial topic during this fall's City Council election campaign, which drew 15 candidates for two seats. The city did spend more than $6 million for the cinema — selling the land at a great discount, clearing the site and creating parking, Redevelopment Director Doug Clark said. Although Oliver McMillan's departure has forced the city to rethink the rest of the two-block project, the theater has drawn other businesses to the area, he said. While the multiplex project is long and expensive, nothing else has been as controversial as the proposed Manchester Resort. Two years ago, 55% of Oceanside voters approved a ballot measure to permit a large oceanfront resort. Catellus Corporation and San Diego developer Doug Manchester both proposed resorts for approximately the same area on the edge of downtown. The city decided to work with Manchester, who proposed an elaborate resort with 500 hotels rooms in twin 12-story towers, a 100-unit, time-share resort, a spa, ice rink, entertainment pavilion and retail stores, as well as one to three resort golf courses across town. However, the downtown project would have wiped out the city's amphitheater and civic center, displaced three historic houses, leveled a bluff, taken over three blocks of vacant beach-level real estate owned by the city, and closed a few blocks of Pacific Street to traffic. Despite public complaints of the resort's impacts, the City Council voted 4-1 to approve the Manchester project in April. Opponents filed a lawsuit over the environmental impact report, but a judge threw out the lawsuit because it was filed one day after the legal deadline. However, the opposition did not go away and it became apparent that getting Coastal Commission approval for the project would be very difficult, as the project involved converting public parkland to private use. The city applied for an amendment to its Local Coastal Plan to allow a project like the Manchester Resort, but the amendment process has not gone beyond the discussion stage, said Diana Lilly, a California Coastal Commission analyst. Lilly said she is waiting for details from the city, and no hearing has been scheduled before the commission. She might have to wait a while because Manchester has backed away from the earlier proposal. The revised project will probably have a 400-room hotel with no time-share resort, and refurbishment of the existing amphitheater, according to Blessing. "Basically, it's a new project," said Blessing, who hopes the revised project will not require an LCP amendment. "If that gets built, it will have a significant impact on the landscape in Oceanside, especially from a tourist's point of view," Blessing said. Several other hotels have expressed interest because of the downtown comeback and plans to improve the harbor, said Jane McVey, the city's economic development director. But opponents, including a number of environmental groups, contend Oceanside has no need for an upscale resort. Oceanside plays an important role as a blue-collar beach town in a region of upscale coastal development, said Mark Massara, head of the Sierra Club's Coastal Program. The proposed Manchester Resort site would be ideal for a public park or low-cost facilities for beach-goers, he said. "Our feeling is that there is no shortage of luxury, visitor-serving, coastal accommodations," Massara said. While Massara and others fight the slow gentrification of Oceanside, the popularity of pricey, infill housing continues to grow. Buyers quickly snapped up about 40 row houses built near a transit station, even as the price for houses on lots as small as 2,500 square feet hit the mid-$400,000s. Developers are now looking for other infill opportunities, and the conversion of a former telephone switching station to live/work lofts is going forward, Clark said. East of Interstate 5, several housing projects are going forward, including a 600-acre master planned community with 800 to 1,200 homes, a golf course, parks and a neighborhood commercial center. But, more importantly, development of the 400-acre Ocean Ranch Corporate Center is underway. In September, IDEC Pharmaceuticals closed escrow on 60 acres in the industrial park where it will build a 1.37-million-square-foot research and manufacturing facility valued at $1.25 billion, according to Jane McVey, the city's economic development director. Biotechnology research companies have congregated around University of California, San Diego, approximately 25 miles south of Oceanside, but opportunities for expansion near UCSD are limited. "We have an industry in its infancy in San Diego that has nowhere to manufacture this stuff," McVey said. "The timing is just right. What it has done is given us other opportunities." The city waived most development impact fees to lure IDEC and its 2,400 jobs, most of which will be in the $45,000- to $65,000-a-year range. The city and Hon Development Corp., the Ocean Ranch developer, are aggressively marketing the site. With only 0.62 jobs per household, Oceanside needs employers, and the city hopes the industrial park will eventually provide 7,000 to 8,000 jobs. Next to the Ocean Ranch Corporate Center is the 150-acre Rancho Del Oro Technology Park, which has developed rapidly in the last few years. The fact that until recently Oceanside had 550 acres of mostly undeveloped, industrially zoned land that was not being marketed presented a remarkable opportunity, especially considering the town's location between Orange County and San Diego, McVey said. That location has helped make Oceanside's Amtrak station the second busiest in the state. Now, the North County Transit District is working on a light rail line from Oceanside to the inland city of Escondido that is scheduled to open in 2004. Oceanside is taking advantage of its six future light rail stations by preparing land use plans for the areas. The city should complete studies for those plans by year's end, Blessing said. Contacts: Michael Blessing, Oceanside planning director, (760) 966-4770. Jane McVey, Oceanside economic development director, (760) 435-3355. Doug Clark, Oceanside redevelopment director, (760) 435-3539. Diana Lilly, Coastal Commission analyst, (619) 767-2370. John Daley, Main Street Oceanside president, (760) 439-1319. Mark Massara, Sierra Club Coastal Program coordinator, (415) 665-7008.

Redevelopment is supposed to be out of fashion. The legislative reforms passed in 1993 made it more difficult for local governments to find "blight" — and cut down on the financial incentives for using redevelopment as well. Furthermore, California's appellate courts have made it increasingly clear that they have little patience for California's redevelopment games. In three recent rulings, appellate judges have hammed local agencies for playing fast and loose with the definition of both "blight" and "urbanization." Yet a few cities and counties around the state are moving forward with large redevelopment projects — sometimes as much as several thousand acres. In some cases, these local governments appear eager to tap into redevelopment tax-increment financing as one of the few available sources of funding for public infrastructure improvements. In other cases, both cities and counties appear to be simply placing all older urban neighborhoods into project areas. As is typical, these new project areas are being met with resistance from both angry residents and county governments fearful of losing revenue — though in at least two cases, the large project areas are being proposed by counties themselves. "It's not a trend," asserted William Carlson, executive director of the California Redevelopment Association. As evidence, Carlson pointed to figures from the state Controller's office showing that the creation of new redevelopment project areas has been dropping steadily since the 1980s. On average, 20 new project areas were created statewide in the three fiscal years from 1996-97 through 1998-99, compared with about 35 per year in the late 1980s. Even though the number of project areas may be small, the acreages involved are large. And so maybe there is a trend going on after all. Among the recently created or pending project areas are the following: o Stanton and Westminster, adjacent older cities in north Orange County, have both moved to place all property in their jurisdiction inside redevelopment areas. o Both Alameda County and Sonoma County have created large redevelopment areas in unincorporated, but apparently urbanized, communities — flood-prone Guerneville in Sonoma County, and Castro Valley (and a series of other communities) in Alameda County. Sonoma County has been sued by local residents. The Alameda County project consists of 3,300 acres in five non-contiguous communities; the Sonoma County project is 1,800 acres along the lower Russian River. o San Jose, which has one of the largest redevelopment agencies in the state, has greatly expanded its neighborhood-based effort, placing 18 different neighborhoods into a 9,400-acre project area that covers about one-sixth of the large city. o Upland, a small but generally affluent city in San Bernardino County, has placed some 1,600 acres of land in its older part of town in a redevelopment area — and has been sued by the county. In many cases, cities and counties are justifying these major redevelopment pushes in very different terms than we saw 10 to 15 years ago. Rather than promoting business growth, they claim older neighborhoods have housing problems that must be fixed. In other cases, the redevelopment agencies are pushing for simple public facilities improvements such as curbs and sidewalks. San Jose, for example, has committed $20 million over five years for this sort of thing in the neighborhoods. However, all this action comes in the context of three recent court cases that have taken redevelopment agencies to task for not adhering to the stricter definition of "blight" contained in the 1993 redevelopment revisions. In the most recent case, Friends of Mammoth v. Town of Mammoth Lakes, the Court of Appeal found that the city had failed to provide substantial evidence not only about blight but also about the question of whether the area was predominantly urbanized. All three recent cases criticized the boilerplate manner in which redevelopment agencies and their consultants typically approach findings of blight and urbanization. In the case of Mammoth Lakes, for example, the city argued that existing blight was harming economic viability. But the court concluded that the city "could not determine from the evidence that the flat rate of tax revenues was caused by defective design or construction, inadequate lot sizes or substandard site design" — in other words, by the physical conditions that must be present to find blight. CRA's Carlson acknowledged that redevelopment agencies "have to be more careful in their analysis" than they used to be. He also said he is not surprised by an increase in proposed large project areas by counties because the redevelopment system is likely to result in less oversight of counties. Traditionally, cities have had far more motivation to create redevelopment areas because they stand to capture a great deal of property tax revenue that otherwise would flowed to counties. Counties, on the other hand, have had little interest in redevelopment because they are simply stealing property tax revenue from themselves — and, indeed, counties have usually been the agencies that hold cities accountable by suing them. But Carlson pointed out that, if counties can reach a political consensus on redevelopment, there is usually nobody to look over their shoulder and enforce the law against them. No one, that is, except angry residents of the affected area, who often object to the blight finding and fear that the government will use redevelopment to impose large changes. That's what is happening in the Guerneville area, where two sets of local residents are suing. The redevelopment project area approved by the Sonoma County Board of Supervisors in July stretches for nine miles along the Russian River from Guerneville to Monte Rio. The redevelopment plan calls for $185 million of improvements such as affordable housing projects, home repairs, sidewalks, streetlights, parks, and public buildings. This area floods frequently, and both fires and landslides are common. The area is also characterized by low-density "rural sprawl" and a plethora of "paper subdivisions" which have never been built on. The area is a weekend tourist destination for San Franciscans, but some local residents want to retain the rural feel and object to the notion that their area is both "blighted" and "urbanized." Under redevelopment law, an area must be 80% urbanized to be legal. "They must have been counting vacant lots," said Susan Lea, a lawyer living in the area who is representing several residents challenging the project area. Redevelopment has always been a controversial tool in California. It is a tempting tool for almost any city or county that's strapped for cash — the financier of public improvements or public facilities of last resort. This will probably always be true, even if California's screwy state-local fiscal situation is improved someday. The latest round of new project areas simply shows that cities and counties are going to keep using redevelopment as a tool to intervene in older neighborhoods, whether or not they are, strictly speaking, blighted, urbanized, or even incorporated. This is why the redevelopment game — even if it slows down — probably will not stop until every older area in the state is inside a project area.

The U.S. Ninth Circuit Court of Appeals will not reconsider a takings case involving a building moratorium in the Tahoe Basin. However, five Ninth Circuit judges did vote to hear the case of Tahoe-Sierra Preservation Council, Inc., v. Tahoe Regional Planning Agency, 216, F3d., 764. (9th Cir. 2000), and Judge Alex Kozinski issued a blistering dissent in which he accused the three-judge panel that decided the case of ignoring takings precedent. "The panel does not like the Supreme Court's Takings Clause jurisprudence very much," Kozinski wrote. "Because we are not free to rewrite Supreme Court precedent, I urged the court to take this case en banc. By voting not to rehear, we have neglected our duty and passed the burden of correcting our mistake on to a higher authority." In June, a three-judge panel of the Ninth Circuit ruled that the Tahoe Regional Planning Agency (TRPA) was not liable for a takings when it imposed a 32-month building moratorium during the early 1980s while TRPA drafted a new regional plan (see CP&DR Legal Digest, July 2000). The panel ruled that property cannot be divided into separate pieces related to certain time frames, in this case the 32 months that the moratorium was in place. Writing for the unanimous panel, Judge Stephan Reinhardt called a temporary moratorium a "crucial planning mechanism." The decision was the fourth appellate court ruling in the long-running litigation, during which property owners have lost every claim at one point or another. Property owners asked for a hearing en banc. Only Kozinski and Judges Diarmuid O'Scannlain, Thomas Nelson, Stephen Trott and Andrew Kleinfeld voted to hear the case. All five signed the Kozinski's dissent. Kozinski accused the three-judge Tahoe-Sierra panel of reversing First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), the landmark case that establish the concept on "temporary takings." Kozinski said the panel adopted Justice John Paul Stevens's dissent in First English, in which he rejected the concept that property can be "taken" by imposition of a temporary land-use regulation. To emphasize his point, Kozinski cited similarities in Stevens's dissent and the opinion in this case. "Although claiming its opinion is fully consistent with First English, the panel plagiarizes Justice Stevens's dissent," he wrote. Kozinski continued, "In this case, a series of consecutive development moratoria has prevented the landowners from building any homes on their lots for the two decades since the start of this litigation. If a local government can evade its constitutional obligations by describing a regulation as ‘temporary,' we create a sizeable loophole in the Takings Clause." Kozinski also said the latest Tahoe decision conflicted with Lucas v. South Carolina Coastal Council, 505, U.S. 1003 (1992), in which the Supreme Court held that government regulation which prevents all economically beneficial uses of a property is a takings. "The only difference between this case and Lucas is that the regulation here had a finite duration," Kozinski wrote. And, he wrote, First English made clear that a temporary building moratorium is no different than a permanent ban. The case is Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, Nos. 99-15641, 99-15771. Kozinski's dissent, filed October 20, 2000, can be found at 2000 Daily Journal D.A.R. 11307.

Federal housing officials violated the free speech rights of three Berkeley residents who protested plans for a homeless shelter in their neighborhood, the Ninth U.S. Circuit Court of Appeals has ruled. The court ruled that a Department of Housing and Urban Development officials' eight-month investigation into the activities of project opponents trampled on rights that were clearly protected by the First Amendment. The court held that the five HUD officials (one of whom is now deceased) are individually liable for their actions, clearing the way for a U.S. District Court trial to determine damages. In a detailed opinion, the Ninth Circuit made clear that HUD officials had gone way too far with an investigation that involved the threat of subpoenas, demands that project opponents stop publishing a newsletter, and directives for the opponents to turn over all documents related to the homeless shelter. In fact, the investigation, which officials in Washington eventually killed, led to permanent changes in HUD policy for dealing with housing project opponents. In 1992, the nonprofit group Resources for Community Development (RCD) applied for a use permit to convert the Bel Air Motel on University Avenue in Berkeley into a homeless shelter. The city's Zoning Adjustment Board granted the permit; an appeal by the Coalition of Neighborhood Groups Opposing the Bel Air Conversion failed on a 4-4 City Council vote in April 1993. Soon thereafter, the Coalition filed a lawsuit alleging that zoning board member Linda Maio had a conflict of interest because she was also on the RCD board. An Alameda County Superior Court in early 1994 ruled against the Coalition, saying that the "good faith" exemption to the state's conflict of interest law saved Maio. Meanwhile, the director of Housing Rights, Inc., a Berkeley advocacy group, complained to HUD about "discriminatory scare tactics used by the opponents," such as warnings that the shelter would bring mentally disabled people and drug addicts to the area. In November 1993, the Housing Rights director signed a federal housing law complaint prepared by San Francisco HUD staff members. The HUD officials then sent letters to the three Coalition leaders — Alexandra White, her husband, Joseph Deringer, and Richard Graham — notifying them of the investigation and warning that they could face $100,000 penalties if found guilty of discriminatory housing practices. The following month, HUD officials produced a "proposal for conciliation" that required the three to drop their state court litigation and stop publishing the newsletter and flyers about the Bel Air conversion. In January 1994, the HUD officials issued a broad request for all documents related to the project. HUD interviewed the three residents but received little other cooperation. In July, the San Francisco office forwarded the case file to HUD's Washington headquarters with a report concluding that the project opponents had violated the Fair Housing Act and there was reasonable cause to take further enforcement action. But the director of HUD's Office of Investigations in Washington quickly ended the case when she decided that the First Amendment protected opponents' actions. White, Deringer and Graham then sued five HUD officials in their official and individual capacities (and a sixth official only in her official capacity) claiming that they harassed the opponents solely for exercising their rights to free speech and to petition the government for redress of grievances. U.S. District Court Judge Marilyn Hall Patel granted partial summary judgment for White, Deringer and Graham. Patel ruled against the project opponents only on the issue of prospective relief, which they sought to prevent future harassment. On appeal, a unanimous three-judge panel of the Ninth Circuit upheld Patel. Centering on the residents' unsuccessful state court lawsuit, the HUD officials argued on appeal that opponents did not have First Amendment protection because they lost that case. The opponents used the lawsuit in an attempt to prevent people from exercising their right to move into a neighborhood. The HUD officials, citing Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983), argued that they only had to show that a lawsuit was filed with a discriminatory motive. Whether there was an objective basis for the suit was immaterial, they argued. But the Ninth Circuit said the HUD officials incorrectly extended the reach of a labor law case. Instead, the court said, the residents were protected by the Noerr-Pennington doctrine, which "ensures that those who petition the government for redress of grievances remain immune from liability for statutory violations, notwithstanding the fact that their activity might otherwise be proscribed by the statute involved." In fact, there was an objective basis for the state court lawsuit — even the Berkeley city manager conceded Maio's conflict of interest — that the HUD officials failed to investigate, the court ruled. Circuit Judge Stephen Reinhardt continued: "Regardless of whether Noerr-Pennington or Bill Johnson's applies, the investigation far exceeded what was reasonable for the purpose of ascertaining the plaintiff's motives for filing the state-court suit and thus intruded unnecessarily on their First Amendment rights. … The plaintiffs' reasons for opposing the Bel Air project were matters of public record and evident from the flyers in the San Francisco Office's possession before HRI even filed its complaint." The court ruled that the HUD officials should have known that the scope and manner of their investigation violated project opponents' First Amendment rights. Thus, the officials lost their qualified immunity as government officials. "In 1993 and 1994, reasonable government officials would have known that they could not conduct an eight-month investigation into the vocal but entirely peaceful opposition of residents to a housing project proposed for their neighborhood, or into their efforts to persuade the appropriate government agencies of their point of view," Reinhardt wrote. As for the prospective relief sought by the residents, the court said there was no need because HUD has permanently altered how it conducts such investigations — in response to this case. Despite the Ninth Circuit's ruling on liability, the U.S. Justice Department said it would continue to provide legal representation for the HUD officials. The Case: White v. Lee, Nos. 99-15098, 99-15109, 99-16033, 00 C.D.O.S. 7958, 2000 Daily Journal D.A.R. 10577, filed September 27, 2000. The Lawyers: For White: Kenneth Marcus, Cooper, Carvin & Rosenthal, (202) 638-3930. For Lee, Robert M. Loeb, U.S. Department of Justice, (202) 514-2000.

The U.S. Ninth Circuit Court of Appeals has reversed a lower court judgment giving an Indian tribe the right to regulate the use of fee-patented private property within a reservation boundary. The unanimous three-judge panel ruled that an Indian tribe has the authority to regulate land owned by nonmembers only when given specific Congressional approval or when then land use directly affects the tribe's political integrity, economic security, or health and welfare. The case involved a small timber harvest in the Hoopa Valley Indian Reservation in Humboldt County. In January 1995, the Hoopa Valley Tribal Council adopted a forest management/timber harvest plan. It prohibited all logging within a half a mile of the White Deerskin Dance Site, where the tribe conducts a 10-day dance dedicated to world renewal every two years. Only two months later, Roberta Bugenig purchased in fee simple 40 acres within the reservation — and within the new no-harvest buffer zone. In July 1995, Bugenig received a state permit to selectively harvest three acres of second-growth timber on her parcel. She sought a hauling permit from the Tribal Council so she could transport timber on a tribal road, but the council denied her application. Bugenig began cutting trees anyway. The Tribal Council ordered her to stop and soon filed a lawsuit at the Hoopa Valley Tribal Court, which issued an injunction to halt the logging. In October, the state revoked Bugenig's permit, citing the Indians' protests. In 1996, the Tribal Court ruled that the Tribal Council had jurisdiction over Bugenig's land and permanently enjoined her from harvesting timber. Bugenig appealed to the Northwest Regional Tribal Supreme Court, which upheld the lower Tribal Court in 1998. Bugenig then sued in federal court, seeking declaratory and injunctive relief against the Tribe's exercise of regulatory jurisdiction and the Tribal Court's exercise of adjudicatory jurisdiction. U.S. District Court Judge Claudia Wilken granted the Tribe's motion to dismiss the lawsuit. On appeal, however, the Ninth Circuit ruled that the two bases on which the Tribe asserted jurisdiction where not applicable in this case. The Tribe asserted jurisdiction based on the Hoopa-Yurok Settlement Act of 1988, 25 U.S.C. §§1300i-1300i-11. The Settlement Act ended a century-old dispute between the Hoopa Indians and the Yurok Tribe by dividing the reservation into two parts, and by ratifying the governing bodies of both Tribes. Judge Wilken ruled that the Settlement Act gave the Hoopa Valley Tribe jurisdiction over all land within the boundaries of the reservation, including Bugenig's. The Ninth Circuit disagreed. Only specific Congressional authority could give the Tribe jurisdiction over private lands. " he delegations of congressional authority to Indian tribes that have been recognized by the Supreme Court all employ the same standard language to achieve delegation, giving Indian tribes authority over all land within the geographical boundaries of the reservation, ‘notwithstanding the issuance of any patent.' This recognized delegation language is conspicuously absent from the Settlement Act section relied upon by the Tribe," Circuit Judge Diarmuid O'Scannlain wrote. The judge cited United States v. Mazurie, 419 U.S. 544 (1975), and Rice v. Rehner, 463 U.S. 713 (1983), as the only two Supreme Court cases directly on point. The second basis for the Tribe's jurisdiction was the "Montana exception," which gives Tribes jurisdiction when "nonmembers engage in conduct on fee lands within a tribal reservation that ‘threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.'" (Montana v. United States, 450 U.S. 544 (1981).) The Ninth Circuit called this exception "exceedingly narrowly." Bugenig's logging did not threaten the Tribe's ability to govern itself, nor would it harm the tribe's health and welfare, the court held. "Under the Tribe's view of the exception, a tribe could effectively acquire general regulatory jurisdiction over nonmember land simply through asserting an interest in protecting various sites of claimed historical or cultural importance," O'Scannlain wrote. The court rejected that far-reaching interpretation. The Case: Roberta Bugenig v. Hoopa Valley Tribe, No. 99-15654, 00 C.D.O.S. 8131, 2000 Daily Journal D.A.R. 10823, filed October 3, 2000. The Lawyers: For Bugenig: James Burling, Pacific Legal Foundation, (916) 362-2833. For Thomas Schlosser, Morriset, Schlosser, Ayer & Jozwiak, (206) 386-5200.

After years of meager funding at the hands of a congressional majority with little affection for environmental issues, land-conservation and habitat-protection programs nationwide are about to receive a huge financial boost from the federal government. California, in particular, stands to gain a great deal from what some observers characterize as a "landmark" conservation-funding measure in the $18.8 billion Interior Department appropriations bill sent to President Clinton in October. Federal funding will double immediately for everything from urban parks and soccer fields to marine and coastal habitat protection. Spending will increase even more in subsequent years. Yet at the same time that conservationists welcomed the increased federal commitment, they lamented the bigger fish that got away. A more substantial financial package — one that had achieved a remarkable level of bipartisan support and appeared headed for an easy victory after a 315-102 endorsement by the House in May — failed in the Senate because of opposition by a handful of Western senators. The demise of that initiative, the Conservation and Reinvestment Act (CARA), suggests that despite growing recognition in Congress of the economic importance and public popularity of habitat protection and recreational use of federal lands, the old Western attitudes favoring resource extraction and regarding Uncle Sam as an unwelcome meddler in regional issues predominate. The six-year spending program approved last month by Congress allocates $12 billion to conservation programs. Financed mainly by Outer Continental Shelf (OCS) oil and gas royalties, the plan authorizes $1.2 billion in 2001 (another $400 million for marine and coastal programs is included in a separate bill) and raises that to $2.4 billion by 2006. The huge spending increase will fund a variety of federal programs, such as Everglades restoration and national parks maintenance. Importantly, however, two-thirds of the money is earmarked for state and local programs. The bill directs first-year spending toward six major categories: federal and state land and water conservation ($229 million); state conservation programs ($229 million); urban and historic preservation ($39 million); federal lands maintenance ($150 million); coastal programs ($100 million); and compensation to states for taxes lost on federal land, a new category of federal conservation spending, ($50 million). In contrast, the failed CARA bill (HR 701) would have spent $3 billion a year for 15 years, for a total federal commitment of $45 billion. Among its primary components was full funding for the federal Land and Water Conservation Fund (LWCF), a remarkable program launched in 1965 that has established Cape Cod National Seashore and Voyageurs National Park, protected landscapes as diverse as Big Sur and Yosemite, and created more than 37,000 local and state recreation projects. Restoring full funding to the LWCF has been a top priority for conservationists for the past three years. The theory behind creation of the LWCF was straightforward: Money derived from depleting one natural resource should be used to protect another. Accordingly, the fund allocated royalties on the sale of oil and natural gas pumped from offshore leases to land conservation and recreation programs, with particular emphasis given to those coastal states — such as California — that bear the burden of OCS oil and gas development. Since 1980, when Congress established a ceiling for LWCF appropriations, $900 million a year has flowed into the fund. Half that historically was directed to state and local programs. But a few years later, money technically directed into the LWCF remained unallocated to conservation programs — the dollars shifted, in fact, to cover other government spending during a time of rising deficits. State and local programs were particularly hard-hit. That money typically provided matching funds and grants for urban park and recreation programs, as well as state park acquisitions and operations, but non-federal LWCF allocations dropped to zero in the mid-1990s. The CARA bill would have restored the state/local LWCF funding to $450 million annually, authorized in the form of 50-50 matching grants. It also would have devoted substantial funding to other programs with potential benefit to California communities, such as the Urban Park and Recreation Recovery Program ($75 million), State Wildlife Program ($350 million), Farm and Ranch Lands Protection Program ($50 million), Urban and Community Foresters Program ($50 million) and Historic Preservation Program ($150 million). In all, California stood to collect at least $171 million a year. The CARA bill was co-sponsored by Rep. Don Young — a conservative Alaskan not known for sympathy to environmental causes — and Rep. George Miller, a Bay Area liberal. This partnership between ideologically dissimilar lawmakers helped generate broad bipartisan support for the bill in the House, where it survived several attempts by Western Republicans to append restrictive amendments. In the Senate, CARA was championed by Sen. Frank Murkowski, another Alaska Republican not generally considered a friend of environmental legislation, who chairs the Energy and Natural Resources Committee. (Support from the Alaska delegation is not surprising in light of the state's economic reliance on crude-oil revenues — and the implicit assurance that LWCF spending would encourage popular support for the drilling that provides the money.) Murkowski pushed the bill through his committee on a 13-7 vote, and persuaded 62 his colleagues to sign on, including Senate Majority Leader Trent Lott. The Western Governors Association argued that the bill made "good economic, ecological and political sense." Despite this broad support, entrenched opposition by Rocky Mountain senators — who viewed the money as a way of invigorating the federal "land grab" in their states — promised a bruising floor battle. With time in the legislative session growing short, Lott was reluctant to embroil the chamber in such a dispute, which would delay passage of other key budget bills and interfere with fall election campaigns. Thus was born a compromise — a scaled-down appropriations bill that nevertheless commits substantial federal resources to conservation. Key environmental leaders mourned the death of CARA but praised the compromise. George Frampton, chairman of the White House Council on Environmental Quality, called it a "historic breakthrough." Rodger Schlickeisan, president of Defenders of Wildlife, declared it "the most important conservation funding legislation in our lifetime." Others were not so sanguine. "The Interior appropriations bill may mean more money in the short term for land protection and wildlife conservation programs," said Mark Van Putten, president and CEO of the National Wildlife Federation, "but it's not enough, it's not guaranteed, and it would likely come at the expense of a far superior proposal … Anything less than CARA effectively subverts the will of the American people and both houses of Congress." That may be the case. In an election year, however, it may also be the best deal conservationists can get. Contacts: White House Council on Environmental Quality: (202) 395-5750 House Committee on Resources' CARA Web page: www.house.gov/resources/ocs/ National Wildlife Federation: (202) 797-6840

The U.S. Supreme Court has accepted for review a takings case from Rhode Island. The case centers on the Rhode Island Coastal Resources Management Council's denial of permits to fill 18 acres of wetlands and a pond in the town of Westerly. The landowner, Anthony Palazzolo, first sought permission to dredge and fill the marsh and pond in 1962 so that he could build 74 houses. He filed several subsequent applications but did not receive the approval needed to proceed. The state agency found that the development would harm birds and animals that rely on the wetlands. Furthermore, state laws approved in 1965 and 1971 gave state officials more authority to deny such applications. The landowner filed a lawsuit in 1988 claiming that the state had "taken" his land without just compensation. The Rhode Island Supreme Court ruled that the takings claim was not ripe because Palazzolo never filed an application to develop the subdivision; he sought permits only to fill the wetlands. Moreover, the court ruled, Palazzolo never "sought permission for less ambitious development plans." The court also held that Palazzolo had no inherent development rights when he acquired the property, and could not have reasonably believed he would get permits to fill the wetlands when he acquired the land. The landowner's attorney, Eric Grant of the Pacific Legal Foundation in Sacramento, argued that the case involves three questions: whether a regulatory taking is categorically barred when a regulation predates a landowner's acquisition of the property; whether a landowner must file less ambitious development applications after the denial of the first application to ripen a takings claim; and whether a property value of greater than zero means that permissible uses remain "economically viable." Rhode Island state attorneys argued that the takings claim is not ripe and that the court has settled other issues raised by the suit. The case is Palazzolo v. Rhode Island, 99-1047. Oral arguments before the high court will probably be conducted in early 2001.

When a disaster destroys your home, there are basically two responses. You can choose to start afresh, and build an entirely new house. Or, you can rebuild the house you had before, brick by brick, because it was familiar and because you loved it. That was the dilemma facing Avila Beach, an unincorporated community San Luis Obispo County, which found itself with the rare opportunity of rebuilding after a near-total demolition. The community's decision says much about both planning and the human dimensions of urbanism. Avila Beach is a Steinbeck kind of place — at least, Steinbeck in the boozy, sentimental mode of Cannery Row or Tortilla Flats. Avila Beach is a funky, dusty beach town with a population of 350 residents at its height. No new buildings have gone up on the town's 50 acres during the past 23 years because of a water moratorium, and the existing buildings are not blue-ribbon examples of property management. There are a couple of small grocery stores, a diner, and several bars that can get loud late at night. That's the way Avila Beach has always been, and that's the way residents like it. Then came a shock: a local group, Communities for a Better Environment, won a $200 million lawsuit against Unocal Corporation in 1998. Unocal had leaked an estimated 400,000 gallons of crude oil into the sand and soil of this popular beachfront community. Unocal then decided that, in order to save the town, as we used to say, it was necessary to destroy it first. The oil company chose to clean up the mess by digging out all the contaminated soil and carting it away all 200,000 cubic yards of it. Unocal's plan was to excavate three enormous holes in the middle of town; the Associated Press likened the operation to a "dentist performing giant root canals." Unocal paid to evacuate local residents and compensated local businesses for lost earnings. Nearly 46 buildings — including nearly all of Front Street and an entire mobilehome park — were demolished. The demolition and reconstruction, which started in late 1998, is scheduled for completion in December. During the past year, county planners held public meetings with Avila Beach residents to build a consensus on the best way to reconstruct the beachfront settlement. For the most part, however, residents wanted the town rebuilt pretty much the way it was. The Avila Beach Specific Plan recommended preserving the character of the community, the use of traditional materials, bike paths and other alternative forms of transportation, and creation of a pedestrian zone between Front Street and the beach. Local residents were not particularly interested in design standards, according to John Hand, a San Luis Obispo County planner. "The most frequent comment we heard from residents is that they wanted the town to look funky," he said. At least four businesses that were demolished, including the Sea Barn boutique, the Custom House restaurant, Cafe Avila and Mr. Rick's, a bar, will be rebuilt where they originally stood. One "historic" building, the otherwise unremarkable Avila Market, returned to town on the back of a truck, and was reinstated on its former spot. "It's a link to the old Avila," said Hand. In fact, there is much in Avila Beach that will be for the better when the reconstruction is complete. (The rebuilding of Front Street, a one-sided street facing the ocean, is already finished.) The community has designated a new park on the northern edge of the beach and set aside a hillside on the south as open space. As mentioned above, the town has removed the cars from a one-block area of Front Street, creating a direct pedestrian route through a shopping area, across Front Street and to the Avila Beach Pier. Along the street is a new "water feature," a sort of artificial tide pool made out of sandstone paving that fills with sea water from the action of the tide. Another fine new touch is a set of wiggly walls located at the inland end of the beach, where visitors can take off their shoes to walk on the sand, or just sit and look at the ocean. The maximum height on Front Street has been raised from a single story to 25 feet, allowing the possibility of some larger, beachfront hotels. And there are no plans to replace a 46-unit mobilehome park, whose former residents have found new homes in town or elsewhere. Other details may rankle planners, such as the survival of a surface parking lot in the center of town. Even with the proposed landscape camouflage of the parking lot, this is a poor choice. Hand, the county planner, said local residents discussed and rejected the idea of a parking structure. Here, the tensions between Avila Beach's dual identity — regional beach destination and self-contained community — have caused a tear in the urban fabric. Structured parking with ground-level retail would have been a "better" solution, enhancing the pedestrian scale and probably providing more parking spaces. But residents wanted the parking lot to stay a parking lot. The residents of Avila Beach did not want to erase their city; they wanted to rebuild it. Cities contain our memories, and as such are part of our identity. I wish Avila Beach had been willing to go further in making a coherent urban design. But the presence of a parking lot was more important to them than a fine new street lined with shops. While that is strange, even perverse, to outsiders, this attachment to place is also the lifeblood of planning because it represents the human connection to places, even mediocre ones. The difference between planners and regular folks is that planners look at a city as a problem needing to be solved, while everyone else see a community filled with spaces that hold meaning. I hate that parking lot, but that does not mean keeping it was the wrong decision for Avila Beach.

The California Supreme Court has voted to review a business tax case from San Diego. However, the state's high court deferred action on Teyssier v. City of San Diego until the court decides a similar case from Los Angeles. In June, the Fourth District Court of Appeal ruled that San Diego's tax on rental residences was not subject to Proposition 218, the Right to Vote on Taxes Act of 1996 (see CP&DR Legal Digest, August 2000). The city assessed a rental unit business tax on all residential properties that are rented. The court held that Proposition 218 (Articles XIII C and XIII D of the state Constitution) only applies to taxes imposed as an incident of property ownership. The San Diego tax is a general tax based on use of the property, the court held. The property owners contended that Proposition 218, which was intended to close Proposition 13 loopholes, applied to any taxes relating to property ownership. The ruling appeared to conflict with Apartment Association of Los Angeles v. City of Los Angeles, 74 Cal.App.4th 681 (see CP&DR Legal Digest, October. 1999). In the Los Angeles case, the Second Appellate District struck down a tax levied on apartment owners to fund a slum-abatement program. The state Supreme Court accepted the Los Angeles case about one year ago and heard oral arguments in mid-October. The court will decide the Los Angeles Case before considering the San Diego case. The case is Edward Teyssier v. City of San Diego, No. S090271.

The City of Los Angeles's general plan framework and accompanying environmental impact report have survived most aspects of a legal challenge. The Second District Court of Appeal found the EIR acceptable but rejected the city's findings regarding traffic impacts, remanding the case to the trial court. The unanimous three-judge appellate panel upheld the EIR's discussion of alternatives, water resources analysis and housing policies. Assistant City Attorney Susan Pfann said city officials were happy not to have to readdress those issues and believed they could move forward quickly, depending on the remanded proceedings. Pfann said officials feel like they only narrowly lost the case. The attorney for the Federation of Hillside and Canyon Associations, which filed the lawsuit, declined to comment. In July 1994, Los Angeles officials notified the public that they were preparing a general plan framework (GPF) and a draft EIR. Six months later, the city completed the two documents and invited public comment. The general plan framework was intended to guide future amendments of the 35 (now 37) community plans that compose the city's general plan. It addressed land use, housing, infrastructure, transportation and other elements. Because anticipated growth would severely impair circulation, the framework recommended several programs, including a Transportation Improvement Mitigation Plan (TIMP) and a new circulation element. The draft EIR stated that the mitigation measures would reduce the cumulative significant effects on transportation "to the extent feasible." The city completed the TIMP in February 1995. The document contained proposals that would cost $12 billion over 20 years, such as building roads, adding rail and bus lines, encouraging greater use of public transit and telecommuting. The TIMP was available to the public, but there was no public notice and the draft EIR was not recirculated. After public hearings, the city produced a final EIR in June 1996 and an amended general plan framework in July of that year. Both documents relied heavily on the TIMP mitigation measures. The city also prepared a statement of overriding considerations that said transportation impacts would be significant and unavoidable. The City Council approved the final EIR, the statement of overriding considerations and the framework and in December 1996. The Federation, the city's most powerful homeowners' organization, sued, challenging the EIR and the city's failure to recirculate the draft EIR after the TIMP was completed. Los Angeles Superior Court Judge Daniel Yaffe ruled the city was required to circulate the TIMP for public comment but rejected other challenges to the EIR. On appeal, the Federation argued that there was insufficient evidence to support findings that the mitigation measures will reduce significant effects on transportation, and that there was insufficient evidence that water resources would be adequate. The Federation also contended the EIR did not adequately address feasible growth alternatives or the impact of population growth. The city, which also appealed, argued that it did not need to circulate the TIMP. As to transportation, the Federation latched onto statements in the TIMP that indicated the city did not have enough money to carry out mitigations. The city defended its plan and did not rely on the overriding considerations it adopted. On this point, the court agreed with the Federation. "Although the city adopted the mitigation measures, it did not require that they be implemented as a condition of the development allowed under the GPF and made no provision to ensure that they will actually be implemented or ‘fully enforceable,'" Justice Walter Croskey wrote. The court suggested the city may comply with the California Environmental Quality Act by amending the framework to ensure mitigations are carried out as a condition of development, by restricting development, or by making a finding of overriding consideration regarding significant traffic impacts. In all other aspects, the appellate court sided with the city. In addressing water, the EIR projected an increase in both demand and supply, the latter based on water reclamation programs and increased groundwater pumping. The Federation argued that certain figures were inconsistent but proved no city error, the court held. As for alternative, the Federation challenged the range of scenarios the city presented. There were five: a growth moratorium; continued development under existing plans; a transit-centered growth plan; continued development based on Southern California Association of Governments' projections; and building based on the general plan framework but without its land use management policies. The appellate court called the alternatives "a meaningful basis for comparison with the project." Croskey wrote, "Petitioners must show that the alternatives are manifestly unreasonable and that they do not contribute to a reasonable range of alternatives. Since they cite no evidence or meaningful legal authority and offer no reasoned argument to so demonstrate, we reject their challenges to these alternatives." The court also upheld the city's population growth analysis against challenges based on employment expansion. The question of recirculating the documents was moot because the city had since circulated the TIMP, the court ruled. Pfann, the city's attorney, said the lawsuit was only delaying transportation improvements. "We look upon this general plan as not something that is causing these impacts, but as something that is mitigating them. It's a growth-control plan," she said. The Case: Federation of Hillside and Canyon Associations v. City of Los Angeles, No. B126659, 00 C.D.O.S. 8054, 2000 Daily Journal D.A.R. 10651, filed September 28, 2000. The Lawyers: For the Federation: Lawrence Teeter, (213) 387-4512. For the city: Susan Pfann, assistant city attorney, (213) 485-5416.

The First District Court of Appeal has cleared the way for Oakland Mayor Jerry Brown to participate in redevelopment decisions in neighborhoods where he owns property. In overturning a Fair Political Practices Commission ruling, the court held that Oakland's City Charter provides a loophole in state conflict-of-interest laws by requiring the mayor's participation in redevelopment activities. Brown championed the state's conflict of interest law, the Political Reform Act of 1974 (Gov. Code §81000), when he was secretary of state. But as mayor, Brown argued that his participation was "legally required" in a redevelopment project area near his home and two investment properties. The controversy has roots in the November 1998 election, when Oakland voters approved Measure X. The Brown-backed initiative amended the city charter to establish the mayor as head of the executive branch of city government, removing him from the City Council. Measure X also made the mayor the chief executive officer of the Redevelopment Agency. Armed with new powers, Brown became the leader of the Lower Broadway Project, negotiating with the county, landowners, lawyers and developers. He directed the city manager and city staff to revise zoning standards, and he lobbied city councilmembers regarding development strategies. However, Brown owns three parcels, including his primary residence, in the Central District Redevelopment Project Area. His real estate is within 500 to 1,500 feet of the Lower Broadway Project. Brown acknowledged that his property's proximity to the Lower Broadway Project posed a conflict under the Political Reform Act. But, citing Affordable Housing Alliance v. Feinstein, (1986) 179 Cal.App.3d 484, Brown contended his participation in the Lower Broadway project was required by the revised city charter because there is no other source of decision making regarding economic development within the executive branch. The FPPC disagreed. Earlier this year, the commission determined that the "rule of legally required participation" did not apply because the city charter broadly authorized the city manager to administer affairs of the city. The FPPC held that Feinstein did not apply. In that case, then-San Francisco Mayor Dianne Feinstein was allowed to exercise her veto power over a San Francisco rent control ordinance even though she owned rental property. The FPPC said that San Francisco's city charter required the mayor — and no one else — to either sign or veto all legislation. But in Oakland, the city manager or even the vice-mayor can perform the mayor's functions, the FPPC held. In overturning the FPPC, the appellate court held that the Brown matter was a closer call than Feinstein, because Brown sought a far wider exemption to conflict of interest laws and because the Oakland city charter assigns authority to the city manager. The court even called the FPPC conclusion "an understandable one." Still, in reviewing the history of Measure X, which sought to improve government by overhauling the system, the court held that the FPPC's interpretation was flawed. Measure X gave the mayor specific powers to propose legislation, call special City Council meetings, break council deadlocks and effectively veto legislation, the court held. "These are substantial legislative functions and the mayor is the only elected official in Oakland who can perform them (except for proposing legislation, which any council member may do). Particularly in the area of economic redevelopment, which the charter encourages the mayor to undertake, the ability to propose plans for the council's approval is a crucial first step in a complicated and difficult process, and one for which the mayor is uniquely qualified since he is the official in charge of carrying out the plans," Justice Joanne Parrilli wrote. "For purposes of the Lower Broadway Project, the FPPC's opinion would prohibit the mayor from even attempting to act as the chief executive promised by Measure X," Parrilli continued. "City government would effectively resume the power structure that existed under the former charter, which vested the city manager with broad administrative authority and prevented the mayor or the city council from interfering with the city manager's exercise of that authority. Such a result is obviously inconsistent with the charter in its present form, and with the will of the voters." Attorneys for the FPPC warned that overturning the commission's decision would "open the floodgates to other exception claims." But the court noted that the "strong mayor" form of government is rare in California and concluded, " e are skeptical that any such flood is imminent." The Case: Jerry Brown v. Fair Political Practices Commission, No. A091305, 00 C.D.O.S. 8391, 2000 Daily Journal 11157, filed October 12, 2000. The Lawyers: For Brown: Lowell Finley, (415) 421-7151. For the FPPC, Kathleen Gnekow, general counsel, (916) 323-1937