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Not often does a case already decided by the state Court of Appeal return to the same court for an interpretation of who won. However, the Fifth District Court of Appeal has issued a second ruling on a California Environmental Quality Act (CEQA) case from Merced County, making it perfectly clear that environmentalists won and the county lost. The case stems from Calaveras Materials’ proposal for a 450-acre gravel quarry on farmland next to the Merced River. Environmentalists led by the group Protect Our Water (POW) sued, arguing that the environmental impact report was defective. In a ruling issued two years ago, the Fifth District overturned the project approval because, the court said bluntly, Merced County’s administrative record was such a mess that the justices could not even find CEQA essential documents. ( , 110 Cal.App4th 362; see , September 2003.) When the case returned to Merced County Superior Court, POW attorney Rose Zoia requested attorney fees under Code of Civil Procedure § 1021.5. In an early 2004 ruling, Superior Court Judge William Ivey ordered the county to set aside its approval of the project as required by the Fifth District. But Judge Ivey found that the appellate court’s decision did not require the county to set aside the EIR, and he refused to award attorney fees to POW. The case returned to the Fifth District, where POW argued that it was entitled to fees because it was the prevailing party in the litigation and because its victory resulted in a significant benefit to the public — namely, the preparation of an adequate record of environmental review. The Fifth District agreed with POW. “Reduced to basics, the county was the loser,” Justice Nickolas Dibiaso wrote for the court. “POW sought an order setting aside the county’s approval of the project. Our opinion directed exactly that result. POW also sought an order setting aside the county’s certification of the EIR. Although this court did not direct that result because we did not reach the merits on appeal, and although the trial court concluded that our opinion did not require such a result, we did state that the administrative record as it stood was inadequate to support the certification. This was tantamount to a determination that the certification could not stand on the then current record.” The county pointed out that POW took it upon itself to prepare the administrative record. Thus, the county argued, POW should not benefit from the inadequate record. The court had little patience for this contention, however. “We unequivocally stated in our opinion and during oral argument that the county, not POW, bore the primary responsibility for the inadequate record,” Dibiaso wrote. “Although our opinion and comments at argument included complaints about the poor organization and lack of index in the record — for which POW was to blame — we stated explicitly that the critical inadequacy of the record was more fundamental than organizational.” As for a public benefit, the court noted that it published its 2003 opinion and that the decision should have prompted the county to improve its methods of creating and managing CEQA records. Hence, there was “no reasonable basis” for denying POW’s request for attorney fees. The Fifth District sent the case back to Superior Court with the direction to award the attorney fees. The Case: , No. F044896, 05 C.D.O.S. 5422, 2005 DJDAR 7395. Filed May 25, 2005. Modified and ordered published June 21, 2005. The Lawyers: For POW: Rose Zoia, (707) 526-5894. For the county: James Fincher, deputy county counsel, (209) 385-7564. For Calaveras Materials: William Gnass, Mason, Robbins, Gnass & Browning, (209) 383-9334.

Development activity in San Bernardino County’s high desert is as hot as a mid-summer afternoon. With miles of wide-open spaces, the Victor Valley has become an affordable housing relief valve for Southern California. The area’s four incorporated cities and half a dozen unincorporated communities will see about 7,500 new housing units this year alone, according to Joseph Brady, a land broker and industry analyst. Leading the way is Victorville, a city that may cross the 100,000 population line this year. In 2002, the City of Victorville issued about 1,000 permits for new houses. That figure doubled in 2003 and increased to about 2,700 in 2004. During the first six months of this year, Victorville issued 1,137 permits for new single-family homes. Meanwhile, the cities of Hesperia, Apple Valley and Adelanto are on track to add more than 1,000 new houses apiece. That adds up to a regional growth rate approaching 6%. Victorville Mayor Mike Rothschild sees the trend continuing. He expects the area’s population, now at approximately 400,000, to reach 1 million within 10 to 15 years. “We’re probably going to be at it for the next five to six years,” Rothschild said of his city’s extremely rapid growth. “We’re not limited in any way like the Los Angeles Basin is. We’ve got room to grow, and it’s mostly pristine land.” A large percentage of the new residents are families seeking refuge from high housing prices in the Los Angeles Basin and Orange County. The median price for single-family houses in the high desert was $290,000 in June, according to the California Association of Realtors. That sounds inexpensive compared with the statewide median of $542,000. But consider that houses in the Victor Valley were selling for less than $100,000 only four years ago. Only two years, about two-thirds of Victor Valley residents could afford to buy a house. Now, only about one-third can. Inland Empire economics guru John Husing says that the Victor Valley is one of Southern California’s “hot zones,” which he describes as an area in the first stage of the suburban growth cycle. As close-in cities build out and prices continue to rise, these hot zones burst onto the scene, even though they were previously considered to be located too far out. Essentially, this is part of California’s “drive-until-you-qualify” phenomenon, in which houses get progressively less expensive the farther they are from job centers. In 2004, the Victor Valley had only 0.65 jobs for every housing unit, according to Husing, or about half of what is needed for a true balance of jobs and housing. Brady said that 60,000 people a day commute “down the hill” to the Los Angeles Basin. The City of Victorville, however, has long been the San Bernardino high desert’s economic center, and long-term economic growth has been a city priority since the Pentagon closed George Air Force Base. The 1992 base closure cost Victorville about 5,000 military jobs and nearly 1,000 civilian jobs. Less than a year after George closed, Victorville annexed the site and a new redevelopment agency took possession of a 5,000-acre base with 13,000-foot-long runways, which are long enough to land even the largest airplanes. George closed at the same time that a number of other air bases in Southern California shuttered or were marked for closure. At the time, the Southern California Association of Governments concluded that George was the most unlikely of the closed bases to become a commercial airfield. Victorville officials were not deterred. Although Adelanto fought to keep the base, eventually the four cities worked together to create a joint redevelopment agency (the Victor Valley Economic Development Authority), which Victorville essentially runs. The redevelopment project extends for eight miles around the former base. The redevelopment agency recast George as the Southern California Logistics Airport and tried to position it as a major center for the shipping industry. Although very little happened at the Southern California Logistics Airport for nearly a decade, the action has picked up in recent years. Now, the airport has 60 tenants with 1,900 jobs in 2.5 million square feet of space — and more jobs appear to be on the way. The city has been acquiring right-of-way for a three-mile long railroad spur that will connect the airport with the Burlington Northern and Sante Fe Railway Company line. Construction on the rail line, a $25 million redevelopment project, is expected to start later this year. City officials are trying to convince BNSF to build a major, multi-modal yard at the airport. Nothing is final yet. Victorville officials contend the rail facilities would turn their city into a major “inland port” that handles freight coming into, and going out of, the ports at Long Beach and Los Angeles, where floor space is very limited. The 6,000-acre airport and the surrounding 25,000 acres are designated for commercial and industrial use. The city anticipates development of up to 60 million square feet of commercial and industrial space — and 30,000 jobs — over the next 10 years. Rothschild believes that although low real estate prices started the Victor Valley’s growth surge, the promise of new jobs is continuing the boom. “Now they see the jobs coming in. It’s not pie in the sky stuff,” Rothschild asserted. “We’re not interested in being a residential community. We’re interested in being the hub of the Victor Valley.” Brady, whose Bradco Companies sells land and tracks the market closely, said Victorville and the Economic Development Authority deserve credit for putting $55 million worth of improvements into the former base. “The base is the jewel that’s going to drive growth for 10 to 15 years,” Brady predicted. Already, the city has a five-year-old, 800,000-square-foot Goodyear warehouse and shipping facility. Distribution centers for ConAgra Foods and Nutro Pet Products are under construction. Not surprisingly, the city’s rapid population growth has already spurred extensive retail development. In fact, a new auto mall has opened on the site of the former Roy Rogers/Dale Evans Museum. While the museum is gone, other pieces of high desert history may be restored. In June, a citizen task force began work on a plan for revitalizing Old Town, which has struggled for years with high vacancy rates and deferred building maintenance. The city has hired Moore Iacofano Goltsman to help prepare the plan. In July, the city broke ground on a $27 million project to expand city hall from 41,000 square feet to 107,000 square feet. Maintaining adequate infrastructure is a concern. The city has proposed raising impact fees by 140% to about $9,500 per unit. Carlos Rodriquez, of the Building Industry Association’s Baldy View Chapter, said his organization recognizes the need for more revenue, but would like to see the increase phased in over two years. That request is under discussion at city hall. So far, negative reaction to the rapid growth has centered, not surprisingly, on traffic congestion.

A referendum of a $200 million agreement between the City of Rohnert Park and an Indian tribe planning to build a large casino has been blocked from the ballot. The First District Court of Appeal upheld a lower court ruling that the Rohnert Park City Council’s approval of the agreement was an administrative act not subject to referendum. Referendum supporters argued that the City Council made a policy decision that committed the city to a course of action that was counter to the city’s general plan. However, the court ruled that a policy decision is not necessarily the same thing as a legislative decision — which would be subject to referendum. In this case, the court said, the city made policy, but only by a contractual agreement with the tribe and not by any legislative act that would require the tribe or any other party to take a particular action. The appellate court decision was the latest in a string of losses for opponents of the casino and resort, proposed for 360 acres of unincorporated land west of Rohnert Park. In October 2003, the City Council approved an agreement with the Federated Indians of Graton Rancheria, whose sovereign status Congress restored three years earlier. The act of Congress permitted the tribe to select land in Marin and Sonoma counties for its reservation. The Graton Rancheria chose the site outside Rohnert Park and soon announced plans to partner with Station Casinos of Las Vegas on a large casino, resort and performing arts center. The tribe also started talking with local governments. The Sonoma County Board of Supervisors turned down $120 million from the tribe because the money came with the condition that the board not oppose the proposed casino, which still needs both federal and state clearance. However, Rohnert Park was willing to accept a no-opposition clause as part of its memorandum of understanding with the tribe that would pay the city $140 million over 20 years, and would provide $60 million to community nonprofit organizations and the Cotati-Rohnert Park School District. The land in question is located outside the city’s sphere of influence and its urban growth boundary, meaning it is not subject to the city’s regulatory authority. The council’s approval of the deal came despite the vocal protest of hundreds of people. The deal resulted in recall efforts against Councilmembers Armando Flores and Amie Spradlin. However, they retained their offices during a special election in August 2004. In addition to the recall, casino opponents went the referendum route. Local pastor Chip Worthington and other members of a committee gathered signatures on a referendum petition; however, the city refused to place the matter on the ballot. Opponents then sued the city, arguing that the MOU was a legislative policy decision that effectively amended the city’s general plan. The city countered that the memorandum of understanding was no different from any other contract. The MOU’s approval was merely an administrative act, the city argued, and administrative acts are not subject to voter referendum. Sonoma County Superior Court Judge Laurence Sawyer ruled for the city. The casino opponents appealed, and a unanimous three-judge panel of the First District Court of Appeal, Division One, upheld the lower court. The First District conceded that the City Council may have made a policy decision by approving the MOU. But that “does not make the act legislative in nature,” Presiding Justice James Marchiano wrote for the court. “By definition, a legislative act necessarily involves more than a mere statement of policy. It carries the implication of an ability to compel compliance.” “When an action requires the consent of the governmental entity and another party, the action is contractual or administrative,” Marchiano continued. “The give and take involved when a governmental entity negotiates an agreement with a sovereign Indian tribe is not legislation, but is a process requiring the consent of both contracting parties.” Ultimately, the court pointed out, the federal government — not a local government — decides the location of tribal land and whether it may be used for a casino. “Whether a local government approves or chooses to voice its disapproval is not legislation and therefore is not subject to referendum,” the court ruled. The fact that the Interior Department has not yet taken the land into trust for the tribe, and the fact that the tribe still lacks a compact with the state, do not alter the character of the city’s action, the court ruled. “The tribe’s political decision to blunt preemptively opposition from neighbors does not convert the resulting MOU process into local legislation,” Marchiano wrote. As for the general plan, casino opponents argued that the MOU conflicted with the land’s designation as open space. The MOU calls for the tribe to pay for road widening and installation of a traffic signal. However, both sides agreed that, although the site is within the city’s planning area, it is outside both the city’s 20-year urban growth boundary and the city’s sphere of influence. Sonoma County has land use regulatory authority. Moreover, “the MOU expressly provides that the city is not required to extend any infrastructure and that if future improvements are necessary, additional reviews and approvals may be required,” Marchiano concluded. “In light of the location of the proposed project and the preliminary status of the actions contemplated by the MOU, no inconsistency with the general plan is shown.” After the court ruled, Station Casinos maintained that the casino was only two years from opening. However, the project has not yet received either federal or state clearance, and an environmental impact statement has been delayed for months. The Case: , No. A107547, 05 C.D.O.S. 5865, 2005 DJDAR 8057. Filed June 30, 2005. The Lawyers: For Worthington: John Douglas Moore, Henn, Etzel & Moore, (510) 893-6300. For the city: Michelle Kenyon, McDonough, Holland & Allen, (510) 273-8780.

The City of Oceanside, which has enjoyed a renaissance in recent years, is preparing for a major civic improvement: rehabilitation of a 465-acre former sand quarry for parkland and public buildings. However, financing for the project — estimated to cost more than $100 million over 25 years — is far from certain. So far, about $25 million in tax revenue has been identified to pay for it. Those funds would come from a proposed commercial development on about 10% of the former quarry site. And, although an advisory committee has been at work for two years, the project must face a City Council vote. The project is known as El Corazon (Spanish for “the heart”) and has proceeded in fits and starts during the past decade in the northern San Diego County community. For 60 years, the El Corazon site was a sand and gravel mine. Holes were created in the ground, and parts of the property sunk. About 40 acres are still too unstable to allow buildings on them and will become athletic fields, according to George McNeil, vice chairman of a committee that recently created a master plan for the property. Despite the quarry’s history, the property has promise. The former mine operator gave the city the land in 1994. Garrison Creek runs along the undisturbed northern and western edge of the property and has created a lake. The City Council approved a “ vision program” for the 465 acres in 1997, but the program got caught up in an unsuccessful proposal for a hotel and golf course proposed for a portion of the property. Developer Douglas Manchester also proposed a second hotel in the city’s downtown. Manchester’s projects collapsed after the Coastal Commission rejected the proposed downtown hotel in 2002 (see , October 2003). The planning process began again two years ago, after city voters narrowly rejected a ballot initiative that would have turned the entire parcel into parkland. A portion of the site is currently used for the city’s green waste recycling. The waste is helping to replace the soil at the site, which is so denuded from mining activity that “weeds have trouble growing,” said McNeil. The 15-member, council-appointed committee is scheduled to present the draft master plan to the City Council this month. “They worked really hard to reach a consensus,” Mike Blessing, deputy city manager, said of the committee members. “I think it’s a plan that has success written all over it,” said Councilwoman Shari Mackin, a member of the El Corazon planning committee until she was elected to the council this year. But approval of the plan, if it comes, is far from the end of the process. The council would still need to rezone the land, do environmental review and come up with funding. Oceanside itself is undergoing a rebirth. For years, it had a reputation as a tough town with a high crime rate, in part due to its close proximity to the Camp Pendleton Marine Corps base. But in recent years, the city of 175,000 has been buoyed by job growth and a strong housing market that has some of the least-expensive coastal housing in the region. Several new residential, commercial and mixed-use projects are also under construction in the city’s revitalizing downtown core (see , November 2000). McNeil and committee Chairman Hugh LaBounty said the current plan differs for the earlier vision program in its level of detail and greater citizen involvement. The first plan was a list of specific uses for the site. With the new plan, McNeil said, “we have specific recommendations for almost every inch.” The plan would create the city’s largest park, with 363 acres of parkland and open space. The new park would provide athletic facilities in a city that has grown by 15,000 people during the past few years. McNeil said the city needs more park and recreation areas away from the city’s coastline. “You can’t play softball or soccer on the beach,” he said. Another 47 acres would be devoted to public facilities such as a senior center, a community center, an aquatics center and a library. A commercial development on 55 acres in the southeastern corner of the site would help fund the public projects. “We had enough acreage so that everybody got everything they wanted,” said committee member Joan Bockman, who previously was a member of the city’s Planning Commission. Well, not everybody. Some people in the city were pushing for a golf course that would cover most of the property’s useable land. But an analysis prepared at the committee’s request concluded that a city-owned golf course would not be economically feasible. The committee’s proposal calls for stores, restaurants and two hotels. The area around El Corazon is entirely built out, and the first hotel is expected to serve business clients at a nearby industrial park. The stores and restaurants would be within walking distance of nearby residential neighborhoods, McNeil said. The expectation is that the city would lease property to a commercial developer. The committee recommends that the city dedicate tax revenue from the commercial development to El Corazon park and public facility development. The city could potentially issue a bond to speed up public development, with tax revenue from the associated commercial project paying off the bond. The city got the idea for the finance plan from the nearby City of Escondido, which leased land for development of a shopping center to raise money for the building of Kit Carson Park. “We always thought that kind of model was what we were striving for,” said Diane Nygaard, a committee member. McNeil described the development as “useable” for local residents and not a tourist destination. “I don’t think (people) will want to get off Interstate 5 to see it,” he said. “They’ll want to get off Interstate 5 to use it.” The topography of the site, which consists of a variety of elevations, means the project will not end up as a flat, suburban park, according to Bockman. She envisions meandering drives with roundabouts, small parking areas, sculptures and native plants such as oak trees, Torrey pines and sycamores. One hundred and fifty acres around the creek would be left in a natural state. Construction on a senior center on the property is expected to begin soon, regardless of the council’s actions this month. Contacts: Michael Blessing, Oceanside deputy city manager, (760) 435-3069. Shari Mackin, Oceanside city council member, (760) 435-3029. Project website: www.elcorazon.ci.oceanside.ca.us

California appears to be headed slowly away from the carbon age. Gov. Arnold Schwarzenegger has set a goal of reducing air emissions that contribute to global climate change by 80% over the next 45 years. The California Energy Commission has directed private utilities to provide 20% of their electricity from renewable sources by 2017. However, the experience at the Altamont Pass Wind Resource Area — California’s oldest and one of the world’s largest wind farms — suggests that the move to renewable energy sources could have consequences. The approximately 5,000 windmills in the Altamont Pass area, which separates the East Bay from the San Joaquin Valley, kill between 880 and 1,300 raptors every year, including as many as 116 golden eagles, according to an Energy Commission study released in 2004. Golden eagles are protected by both federal and state law. “It’s the worst place in North America to put a wind farm, in terms of bids of prey,” said Jeff Miller, Bay Area wildlands coordinator for the Center for Biological Diversity. The site is on the raptor migration route, it serves as a golden eagle nesting ground and it provides wintertime habitat for a number of species. In 2003, 20-year use permits issued by Alameda County for various Altamont wind facilities started coming up for renewal. The eastern county Board of Zoning Adjustments — the only regulatory body for the wind farm — added some conditions aimed at reducing avian fatalities. Environmentalists, however, were not satisfied and appealed to the Board of Supervisors. It was obvious that environmentalists and the power generators were far apart. So the county put together a 30-member “wind power working group” to negotiate. In July, the Board of Supervisors gave its tentative approval to a package of nine measures aimed at reducing bird deaths over time while also keeping the wind farm in business. Supervisors appear to be walking a middle ground, not requiring as much as environmentalists would like but going further than the windmill operators wanted. The Board of Supervisors is scheduled to formalize the new permit conditions in September, according to county Planning Director Chris Bazar. The measures approved by supervisors require windmill operators to replace smaller, older models with fewer larger turbines that produce roughly seven to ten times the electricity than an old turbine can. The replacement project — known as “repowering” — would be phased in over 13 years. Additionally, the county will require that operators immediately shut down about 100 of the most dangerous windmills and that operations shut off everything for two months each winter. The wintertime shut down would grow to 3 1/2 months within five years. Additionally, supervisors called for extensive scientific study funded by the industry. Some of that information would have been useful two decades ago, when the county first approved the wind farm. “There was not any significant environmental review back then,” Bazar conceded. “There wasn’t any sense of these issues that eventually arose. The idea that birds would fly into turbines — no one seemed to anticipate that.” Now, there is no denying that birds will fly into the blades of a windmill. Birds have also gotten electrocuted on power lines and been harmed by windmill operators’ poor rodent management practices. Still, the industry insists on perspective. While as many as 4,700 birds of all species die at the Altamont wind farm every year (the upper figure in the Energy Commission’s 2004 study), that hardly compares to the hundreds of millions of birds that die annually in collisions with buildings, cars and communications towers, according to the American Wind Energy Association. The average pet cat kills more birds than the average Altamont windmill, according to the industry group. While those statistics may be true, Altamont is sensitive because of the types of birds killed — including golden eagles, red-tailed hawks, American kestrels and burrowing owls. Golden eagles, for example, are protected by the federal Bald and Golden Eagle Protection Act, and they are a “fully protected” species under state Fish and Game Code. Environmentalists argue that windmill owners break the law every time a turbine kills one of these protected birds. Wildlife regulatory agencies recognize that the bird kills occur and have urged mitigation measures, but they have not sought prosecution of any wind energy company. Partly because of the regulatory agencies’ position, the Center for Biological Diversity (CBD) sued all wind power companies at Altamont last year under the state unfair competition law. The lawsuit, , Alameda County Superior Court case No. RG04183113, got snared by Proposition 64, however. That ballot measure, approved by voters one day after CBD filed its lawsuit, restricts lawsuits under the unfair competition law. In March, Judge Ronald Sabraw ruled that CBD could seek an injunction against the companies, but could not request restitution or civil penalties. While the wildlife agencies have remained in the background, the attorney general’s office recently urged the Board of Supervisors to adopt the recommendations contained in the Energy Commission’s 500-page study from 2004. These recommendations, backed by environmentalists, call for removing about 300 of the worst offending turbines, an immediate start to the 3 1/2-month wintertime shut down, and other measures aimed at reducing bird fatalities by 85% within six years. The fact that the county is willing to do less than urged by the Energy Commission and the attorney general is “disturbing,” said Elizabeth Murdock, executive director of the Golden Gate Audubon Society. The proposed mitigations may not even cut bird deaths in half, she said. The county’s Bazar, though, defended the mitigations as “a really state-of-the-art set of solutions” that will be unique for the industry. Industry representatives argued that the measures requested by environmentalists and the state would put them out of business — an argument that the attorney general’s office dismissed because the windmill operators have not provided financial information. Bazar said that the county takes the financial health of the wind power operators seriously. Failure of the wind farm would place urban development pressure on a part of the county that many people consider to be valuable open space. James Walker, a director of enXco, which owns windmills at Altamont, told the that the mitigations “pushed the envelope” but that he appreciated the certainty they bring to the industry. What just about everyone agrees upon is that “repowering” appears to be the long-term answer. A 1998 study said that about 900 larger and more efficient turbines could produce as much electricity as the 5,000 smaller turbines at Altamont. Furthermore, studies suggest that the taller and slower-moving large turbines are safer for birds. “Repowering looks very promising,” said Murdock. But she cautioned that the science is evolving and no one can predict for certain how birds will behave around new wind facilities. The county has committed to completing an environmental impact report on repowering in three years, Bazar said. The EIR will look at the whole Altamont wind farm, he said, and provide certainty to operators who must invest about $1 million for each new large wind turbine. The mitigations backed by county supervisors call for repowering the entire wind farm by 2017. As California tries to encourage the development of renewable energy, implications of the Altamont experience are unclear. Dozens of wind farms are proposed across California. And, in June, the Bureau of Land Management released an environmental study that found wind farm development to be acceptable on federal lands, including 72,000 acres in California that appear to be prime areas for wind power. The American Wind Industry Association recognizes that the deaths of so many rare and inspiring birds at Altamont has been a black eye for the industry. But, said association spokeswoman Christine Real de Azua, “it’s really an anomaly. If you look at other equally large wind power projects developed at the same time in the Palm Springs area and the Tehachapi area, they don’t have the same problem at all.” Miller, of the CBD, said that bird kills are a problem at other wind farms, but the problem is far smaller than at Altamont. “The lesson is, take a good look at bird use of an area, and don’t put in a wind farm where there are a lot of birds,” he said. Murdock said the Audubon Society is concerned about global warming and, therefore, likes wind power. But picking the right location for wind farms, and studying the impacts of those projects, is critical, she said. “If we had known then what we know now in terms of Altamont’s significance for golden eagles and other birds, it would have never gotten built where it did,” Murdock said. Contacts: Jeff Miller, Center for Biological Diversity, (510) 499-9185. Elizabeth Murdock, Golden Gate Audubon Society, (510) 843-9912. Chris Bazar, Alameda County Planning Department, (510) 670-5400. California Energy Commission study of bird mortality at Altamont Pass: www.energy.ca.gov/pier/final_project_reports/500-04-052.html American Wind Energy Association: www.awea.org

A convergence of money, technology and landscape has given rise to a project that is both understated and remarkable. However, the set of forces, circumstances and personalities behind the Letterman Digital Arts Center in San Francisco is unlikely to be matched in the Bay Area or anywhere else. One unique circumstance is the presence of a former military base – the Presidio – that lies entirely within the boundaries of San Francisco, offering an opportunity for large-scale development in a city that is both “built out” and hostile to major projects. Unlike most military bases, which are barren stretches of contaminated soil, the Presidio is a park-like place with hundreds of historic buildings. Another hard-to-repeat factor is the role of filmmaker and special-effects entrepreneur George Lucas, who leased the Letterman site from the Presidio Trust to build an 865,000-square-foot complex for Lucasfilm Ltd. and its Industrial Light & Magic and LucasArts divisions. By itself, the act of bringing 1,500 high-paying technology jobs to a city would elevate Lucas to hero status. The creative mind behind Yoda and Obi-Wan Kenobi went several steps further, however, to “green” the Letterman complex, which opened in July. Beyond the gadgets and renewable materials that characterize the new film and technology studio, the green factor here is a park designed by Lawrence Halprin, the octogenarian master who is probably the most important landscape designer in San Francisco since the Olmsteads. Lucas’s most remarkable act, however, has been to donate 17-acres of his Halprin-designed landscape as a public park. Given this level of largesse, Lucas might have been forgiven if he had opted for a self-glorifying building, such as a Frank Gehry-type explosion of gesticulating metal, with his name spelled out in halogen lights. The architectural historian Vincent Scully has written about a kind of nervousness or restlessness in recent American architecture, as if buildings were impatient to be noticed. The recent ascendancy of sculptural, gesture buildings has only accelerated this trend. Something very different has happened at Letterman, however. The design by the San Francisco office of Gensler Architects and DKS Inc. is restrained and peaceful; it has what critics in past ages called “repose”—a largely forgotten quality in 21st century California. The Letterman Digital Arts Center is a set of low-rise buildings in a vaguely historical style intended to complement the Presidio’s genuinely historical buildings. The new buildings have steep pitched roofs and terra cotta tile. Some buildings have flat plaster walls and deeply punched windows; others have walls in red brick panels. Lucas has been so undemonstrative, in fact, that he decided against putting his name on the thing, deferring instead to the memory of an unsightly military hospital that previously occupied the spot. Some people have been critical of the total size of the Lucas project. They would do well to remember that the hospital was an undistinguished building that was 10 stories tall. Keep in mind that this act of park donation was anything but passive. It was not a matter of Lucas taking an existing clump of grass and saying, “Oh, you take it.” This park is actually an earthworks built atop an enormous, sub-surface garage for 1,500 cars. Going underground was Lucas’ idea of keeping the site clear of cars, and the execution may have added $10 million to the $100 million total cost of the compound. (The City actually waived an additional 1,000 parking spaces normally required under zoning because of the high rate of transit use expected from Lucas employees.) More remarkable still is the relationship of the public park to the LucasArt buildings. Most film studios in Burbank, by way of contrast, have the look of armed camps, and the Pixar studio in Emeryville is surrounded by an imposing wall. Here, there is little apparent divide between the park and the buildings, where the security apparatus is kept mostly inside. Lucas’ decision to hire Halprin for what could be the designer’s last major project in the Bay Area is particularly moving. Halprin is one of the very few landscape architects who are universally known outside the profession. It would be impossible here to overemphasize his influence on American urbanism and the notion of creating parks and fountains out of streets and other non-traditional turf. As a modernist, Halprin prefers abstraction over literalism. This quality of abstraction, combined with a deep appreciation for materials, has allowed him to evoke something like the feeling of nature and natural forces, particularly in places, like busy city streets, where creating the illusion of nature is impossible. One of Halprin’s best-known masterworks is a series of three linked fountains and courtyards stretched along an eight-block route in downtown Portland. Cities, after all, are only interventions on a natural landscape, and Halprin seems intent on reminding us of forces that continue to operate beneath the concrete and asphalt. While not as spectacular as the Portland scheme – the Letterman site does not call for demonstrative gestures – Halprin has managed to bring a lot of broken rock and waterworks, including a new stream and lagoon, into his new park. As landscape designer for the entire LucasFilm complex, Halprin also insisted that architects preserve the sight lines both to the Golden Gate Bridge and the Palace of Fine Arts, Bernard Maybeck’s early masterpiece, which has its own reflecting pool. Oddly, the designs of Halprin, who is possibly the most influential landscape architect in America of the past 50 years, seem to be endangered. Skyline Park, a project in Denver from the 1960s, was recently demolished. Portland, in contrast, created the Lawrence Halprin Park Conservancy to refurbish the landscape designer’s projects in that city. Portland deserves praise. But the big roses go to the guy who paid for a Halprin park out of his own pocket and then gave it to the public. Lucas, a filmmaker who seems intent on surpassing himself with each project, has trumped himself with the park in the Presidio.

The Los Angeles County Board of Supervisors has voted 3-2 to appeal a Superior Court judge’s decision upholding stormwater regulations adopted by the Los Angeles Regional Water Quality Control Board. In a complex ruling issued in March, Judge Victoria Chaney affirmed the regulations, which require local governments and developers to implement measures that clean up and slow down storm water runoff. Like an appeals court that upheld similar regulations in San Diego (see , January 2005), Judge Chaney ruled that the regional board could impose controls beyond the Clean Water Act’s “maximum extent practicable” standard and the state Porter-Cologne Act’s “reasonably achievable” standard. Chaney also ruled that the regional board did not have to provide exceptions for jurisdictions that cannot meet the runoff standards through “best management practices.” Chaney further rejected arguments that the regional board should have prepared an environmental impact report, that the regulations improperly intrude on local land use authority, that the board could not limit grading during the rainy season, and that the regional board should have considered economic impacts. Supervisors Michael Antonovich, Yvonne Braithwaite Burke and Don Knabe voted to appeal; Supervisors Gloria Molina and Zev Yaroslavsky voted against appealing. Environmentalists called the appeal a waste of money. County attorneys said they only want to ensure that regulatory programs are proven and cost-effective. The case is , Los Angeles County Superior Court Case No. BS 080548. Interestingly, Judge Chaney ruled in May that local governments may seek state reimbursement for complying with stormwater runoff regulations. Local governments say the stormwater requirements will cost billions of dollars. Local governments in 2001 submitted four test requests for reimbursement to the Commission on State Mandates. The Commission rejected the requests, citing a 1984 state law (Government Code § 17516) that exempts state and regional water quality regulations from a requirement that the state pay for mandated local programs. Chaney ruled that the 1984 law violated a post-Proposition 13 state constitutional amendment that prohibits the state from shifting costs to local governments. Chaney did not order the Commission to award the claims, only to reconsider them. The decision in , No. BS 089769 is on appeal.

An appellate court has ruled against a former San Diego Unified Port District commissioner who sued the district’s former attorney over faulty legal advice. In May 2003, ex-Commissioner David Malcolm pleaded guilty to a felony conflict-of-interest charge. While he was on the Port board, Malcolm was being paid $20,000 per month plus incentives by Duke Energy, a port tenant. Port attorney David Chapman advised Malcolm and the Port board that Malcolm’s disclosure of the contract and recusal from matters involving Duke was enough to satisfy conflict of interest laws. However, the district attorney undertook a criminal investigation of Malcolm, who eventually pleaded guilty to a conflict of interest. Malcolm then sued the Port and Chapman for damages. San Diego County Superior Court Judge John Meyer declined to grant summary judgment for the Port — but the Fourth District was willing to do so. Malcolm pleaded guilty to willfully violating Government Code § 1090, the court stated, so “allegations that Chapman’s negligent advice caused Malcolm to commit a crime and plead guilty are immaterial.” “Perhaps the wrongfulness of Malcolm’s conduct was not as apparent as lying under oath, but we believe the average person would readily regard it as improper notwithstanding Chapman’s inexplicable disclose and recuse advice,” the court ruled. The case is , No. D045374, 05 C.D.O.S. 5168, 2005 DJDAR 7040. It was filed June 15, 2005.

Four weeks after the U.S. Supreme Court upheld an expansive view of eminent domain by a 5-4 vote, President Bush went on national television to nominate D.C. Circuit Court Judge John G. Roberts Jr. to replace retiring justice Sandra Day O’Connor. O’Connor was in the minority on the eminent domain case, but she has been a key swing vote on many property rights cases. If Roberts is confirmed, will he move the court in a more conservative direction? Or will he maintain the moderate course of O’Connor? The question is an especially important one for the planning and development world. Even though most of the current Supreme Court justices were appointed by Republicans, government agencies have done well in most recent cases related to land use and property rights. The 5-4 ruling in supporting the use of eminent domain for private development is only the most recent example. Roberts has spent most of his career as a respected Supreme Court litigator and has a thin record after only two years on the bench. This, of course, is part of the Bush strategy – select a guy everybody in Washington knows and everybody respects, yet doesn’t have much of a record. So his critics are looking at his combined record as a judge and as a litigator. Litigators, of course, are hired guns – they try to win their clients’ cases – so it is difficult to know to what extent Roberts’ litigation career represents his personal views. The Roberts record is patchy, but the environment and property rights arena provides as much of a clue as anything else. Here are three important cases he was involved in: • In , 334 F.3d 1158 (D.C. Cir. 2003), an endangered species case, Roberts dissented from a D.C. Circuit Court decision not to re-hear the property owner’s arguments. This is his only significant property-related case as a judge. • As deputy solicitor general to Kenneth Starr in the administration of George H.W. Bush, he argued , 112 S. Ct. 2130 (see , July 1992) before the Supreme Court, and won a ruling in favor of mining on public lands. • Most perplexingly, as a lawyer in private practice he represented the Tahoe Regional Planning Agency before the Supreme Court in , 535 U.S. 302 (see , April 2002). He argued that a three-year moratorium on development in the Tahoe Basin during the 1980s was not a taking – and he won the case. There is no doubt that Roberts is a conservative. He worked in the Reagan White House and in the Solicitor General’s office under Starr. He was nominated to the D.C. Circuit by both Bushes. (The senior Bush left office in 1993 before Roberts’ confirmation hearings were scheduled.) And in private practice he has represented business interests and corporations on a regular basis. The question, of course, is how conservative. In this regard, his dissent in the case and his defense of government property regulation may provide useful – if sometimes conflicting – insights. In the dissent, Roberts disagreed with the D.C. Circuit’s ruling that the U.S. Fish & Wildlife Service’s regulation of private property in Southern California was permitted under the Commerce Clause of the Constitution. Echoing a Harvard Law Review article he wrote while in law school, he argued that federal regulation of a development project contained entirely within one state may not be a constitutional regulation of interstate commerce. In a phrase that has been often repeated in the last few weeks as evidence of his dry sense of humor, Roberts referred to the regulated species as “a hapless toad that, for reasons of its own, lives its entire life in California.” Whether the phrase is wry or not, environmentalists may think such language does not show much respect for the toad or its habitat. Then there is Roberts’ representation of TRPA in the case – a hard-fought case that went on for 20 years before it went to the Supreme Court. The State of California viewed the case as an extremely important one in maintaining the integrity of the strict regulatory system in the Tahoe Basin. Then a partner at the D.C. firm of Hogan & Hartson, Roberts came into the Tahoe case only to litigate in front of the U.S. Supreme Court. In so doing, he partnered with longtime San Francisco environmental lawyer Clement Shute and, in the oral argument, went up against longtime Los Angeles property rights lawyer Michael Berger, the winner of the landmark case before the Supreme Court in 1987. In the brief and at oral argument, Roberts focused mostly on the need to apply the three-prong legal test for a taking in , 438 U.S. 104 (1978), the first major property-rights taking case decided by the high court. He also argued that the moratorium did not lead to a taking because the regulation was only temporary. “ here is no dramatic effect on the economic value of the affected lots, because we’re talking about a temporary regulation for a limited time,” Roberts argued. He noted that most of the lots had been sold by the time the case came before the Supreme Court. This was a somewhat dangerous proposition before the Supreme Court, considering that Chief Justice Rehnquist had developed the concept of a “temporary taking” in the case. He also found a weakness in Berger’s case by arguing that Berger should not have made a facial challenge. “The facial claim is the mere enactment of this temporary moratorium taking effect,” he said. “Well, then don’t talk to me about what happened 15 years later, if the mere enactment of the temporary moratorium is your complaint. That’s a different case.” Roberts won the case 6-3, with Rehnquist and Justices Clarence Thomas and Antonin Scalia – the very justices that liberals fear Roberts will side with – writing a dissent disagreeing with his position. In a bemused speech before the Federalist Society a year later, Berger noted the had speculated that Roberts argued the case to help blunt anti-environmentalist criticism in case he was nominated for a federal judgeship again. There may be some truth to this. But Roberts’ role may also have something to do with his Hogan & Hartson partner Douglas P. Wheeler – who oversaw the Tahoe litigation for eight years as California’s Resources Secretary. Roberts’ position in the and cases contain no internal inconsistencies. After all, one has to do with whether a federal law arguably dealing with interstate commerce can interfere with a private development in an individual state; the other has to do with whether a moratorium by a regulatory agency established by an act of Congress went on too long. So here’s a guess: Roberts will push the Commerce Clause aspect of the Endangered Species Act – though he will not tip the scales. And on most other things, he’ll probably take things pretty much down the middle. The advantage to a stridently ideological president of picking a litigator is that you cannot tell what his record really is because he’s always representing his clients. The flip side is that a litigator knows how to make an argument on either side of an issue.

In commodity futures markets, investors agree to pay a price today for the unknown cost of goods some time in the future. The City of Beverly Hills does not play the futures market, at least to my knowledge. So it surprised officials of this affluent city of 35,000 people in the West Los Angeles area to realize they had inadvertently saved $20 million in a construction deal signed last year with a private developer to build a parking structure, a city-owned retail building and a public park next to a luxury hotel. Although the deal raised a furor and led to a ballot referendum, there is little doubt that Beverly Hills was the big winner in the end. And although many of the circumstances that surround this deal are unique to this fastidiously maintained city, there is at least one aspect of the deal that other cities may want to study closely. Beverly Hills is one of the rare California cities that does not have a redevelopment agency. Most of the time, the city seems largely unbothered by this deficiency, insofar as few, if any, of the city's neighborhoods could be described as blighted. One notable exception is a block of derelict buildings, several of them red-tagged since the 1994 Northridge earthquake, situated on a prominent corner of the Golden Triangle, the city's high-rent commercial district. The most visible is the old Beverly Theater, a lovable anachronism of the 1920s festooned with Taj Mahal domes. The 1994 earthquake was the proverbial final curtain call for the Beverly Theater and its neighbors, and all the buildings have been closed for more than 10 years. For 10 years, the property owner and the city studied a variety of different options to replace the empty buildings. The notion of a department store was shot down by local businesses as a traffic monger, while the city was unenthusiastic about the idea of an office building, which would add only $500,000 in property tax revenues to city coffers. For city fiscal purposes, the “highest-and-best” solution would be a luxury hotel, which could generate transient occupancy tax and other revenues in the $5 million-range annually. Beverly Hills is a community with a comparatively small inventory of luxury hotel rooms (defined here as renting for about $300 a night) and consultants, such as the Los Angeles office of PKF Consulting, state the city's high-end hospitality market has an unmet demand that the proposed 214-room Montage would not dilute. As it happens, the city owns about 48,000 square feet immediately north of the Montage site. In entitlement negotiations with the developer, the city decided the most efficient way to develop the city's parking lot into a park and a neighboring retail building would be to hire the developer to build it as part of the hotel project. The city tallied its own expenses at $32.27 million, including $15.50 million for the underground parking structure, $9.96 million for the park and related improvements and $6.63 million for the 20,000-square-foot retail building. In the final deal approved in November 2004, the developer agreed to build the improvements for the capped amount. The developer also agreed to convey the parking garage to the city upon completion. In addition, the developer agreed to an extra-ordinary 5% increase, on top of the city's existing rate of 14%, in the transient occupancy tax rate. That 5% overage would be applied directly to repaying the city for the cost of the garage construction. A February 2005 report from Keyser Marston Associates Inc. indicates that the Montage project would easily generate the money the city needed to pay off its part of construction. After the hotel income “stabilizes” in 2007, revenue from the parking garage is expected to be $1.03 million annually, while commercial rent from the retail building would be $506,000. The hotel's contribution toward the garage cost would be $1.14 million, and the net bed tax would be $1.79 million. Property tax, sales tax and other tax revenues would be $795,000. The total: $5.26 million per year, an income stream as rich as the flourless chocolate cake at Spago Beverly Hills. This deal infuriated some local businesses, especially the Peninsula Hotel, which accused the city of “subsidizing” a rival hotelier and raised enough signatures to force a referendum vote on the development agreement. The referendum failed by about 600 votes at the March election (see , April 2005). The city had yet a further victory. With the cost of steel and other construction materials rapidly escalating, the Montage developers now believe that the cost of building the city's improvements will run at least $20 million more than the city's capped contribution, and that amount continues to grow with time. “We had no idea we were going to do so well,” confessed Deputy City Manager David Lightner. With Beverly Hills' apparent success with the Montage, can other cities follow suit and remove blighted buildings without the aid of a redevelopment agency? Probably not. Beverly Hills is one of a very small number of cities where the resort market is strong enough to justify tying the financing of a major public project to a hotel that charges something in excess of $400 a night, plus another $80 a night in bed tax. One aspect of the deal that is replicable, however, is the use of a fixed bid. That is when the public sponsor of a project says, in effect, “We will contribute $32 million, and no more, to this project. What can you developers give us for that amount?” Although the deal between Beverly Hills and the Montage was not a fixed bid per se (there was no competitive bidding from other developers), the deal does show the advantages of capping one's expenses. The developer, who stands to gain the most financially, should shoulder the greatest risk, as well. Now, futures trading on the part of cities and other public agencies is a bad idea as a general rule. On the other hand, with the price of building materials steadily climbing, cities could do a lot worse than to a sign a deal for projects to be built tomorrow at today's costs. Just ask the people trying to build the new San Francisco-Oakland Bay Bridge.

The state Supreme Court has accepted for review a California Environmental Quality Act case involving the water supply for a huge project in Sacramento County. Opponents of the Sunrise Douglas community plan and a related specific plan are questioning whether the environmental impact report adequately addressed the issue of water supply by identifying potential water resources when those resources had not yet been dedicated to the project. Sacramento County - which approved the 6,000-acre, 22,500-unit community plan three years ago (see , August 2002) - approved the project based on water from the Sacramento River. However, the pipeline from the Sacramento River is years away from construction. In the meantime, the project, which is under development within the newly incorporated City of Rancho Cordova, is relying on groundwater. Project opponents argue that extensive groundwater pumping would lower the groundwater table and pull water away from the nearby Cosumnes River. In their appeal the state Supreme Court, project opponents also questioned whether the Third District Court of Appeal should have focused on the administrative record more than on how project opponents responded to the trial court's ruling. The Third District opinion contained harsh criticism of the opponents' legal strategy and statement of the facts (see , April 2005, March 2005). The case is , No. S132972.

The California Coastal Commission has survived one of most direct assaults on its existence since the Commission's establishment in 1976. Property owners, who have chafed for years at the Coastal Commission's land use restrictions, had hoped to have the Commission's makeup declared unconstitutional, but the California Supreme Court unanimously upheld the current system in a ruling issued June 23. The decision relieved environmentalists and coastal access advocates, many of whom were stunned 2 1/2 years ago when an appellate court ruled that the system for appointing Commission members was unconstitutional. That ruling, added to the state Supreme Court's decision to review the case, suggested that every land use decision the Commission has ever made might be on shaky legal ground. However, it appears that the Coastal Commission was saved in part by an urgency bill passed by the Legislature and signed by Gov. Gray Davis shortly after the appellate court ruling came down. The bill established fixed, four-year terms for the eight coastal commissioners appointed by the Assembly speaker and Senate Rules Committee. The 2003 legislation (AB X2 1, Jackson) eliminated the at-will provision for the Legislature's appointees to the commission, a provision that the appellate court said was a legislative intrusion into the executive branch of government that violated the separation of powers doctrine. In his 67-page opinion, state Supreme Court Chief Justice Ronald George said the pre-2003 appointment scheme posed "a much more serious separation of powers question than the current provisions." And in a concurring opinion, Justices Marvin Baxter and Janice Rogers Brown (who was recently appointed to the federal appellate court bench in Washington D.C.) called the earlier scheme "constitutionally flawed." However, the court based its decision in favor of the Commission on the appointment process adopted in 2003, which the court held was entirely proper under the state constitution. Because the lower court issued an injunction - which prohibits future action - what matters is the current law, the Supreme Court ruled. Environmentalists up and down the 1,100-mile coast praised the state high court's ruling. "It's a very significant decision for the coastal program, and for the ability to create these independent commissions and agencies," said Sacramento attorney Bill Yeates, who had filed a friend-of-the-court brief for environmental organizations. The court recognized that voters set up the basic structure of the Coastal Commission when they approved Proposition 20 in 1972, he said. That initiative was the precursor to the Coastal Act adopted by the Legislature in 1976. "This was set up by the voters for a particular reason," said Yeates. Voters did not want to place all power regarding coastal development in one branch of government, so they divided the appointments equally among the governor, the Senate and the Assembly. That approach ensures that neither the governor nor individual lawmakers can dominate the Coastal Commission, he said. Attorney General Bill Lockyer, who defended the Commission in the case, said the decision "affirms that the Coastal Commission's appointment structure reflects the will of the voters, who long ago declared that our coastal resources will best be preserved for future generations if planning decisions affecting the coast are made by an independent body comprised of members representing a variety of philosophical backgrounds." That independence, however, gripes property rights advocates. "What you have," said Pacific Legal Foundation attorney James Burling, "is a commission without any control. And I think that runs smack dab into conflict with a representative democracy and the separation of powers." Burling, who filed a friend-of-the-court brief in favor of upholding the appellate court decision, said the appointment system causes "the endemic problems that the Coastal Commission has, such as its arrogance, its abrogation of property rights, it's lack of accountability to voters." Burling said the move to fixed terms for the Legislature's appointees did not solve the problem because voters cannot choose the Assembly speaker or members of the Senate Rules Committee. Thus, voters have no ability to effect change at the Commission, he argued. Attorney Ronald Zumbrun, who represented the project proponent in the litigation, agreed that the 2003 legislature was not a cure-all. But Zumbrun added, "I felt that our client came out well in that he changed the law." Environmental attorney Yeates said the change was significant because it provided a unanimous vote at the Supreme Court. "I think the Third District Court of Appeal did us a favor," he said, because the ruling led to legislation that "eliminated any cloud of doubt." Although regulation of coastal land uses was at stake in the case, the court based its decision on an interpretation of state constitutional law. The litigation at hand was filed in 1999 by a nonprofit group called Marine Forests Society and its leader Rodolphe Streichenberger. During the early 1990s, Marine Forests Society built an artificial reef from old tires, plastic jugs, PVC pipe and concrete blocks on the ocean floor off Newport Beach to aid marine life. The group built the experimental reef without a coastal development permit. The Commission refused to grant an after-the-fact permit, and then issued a cease and desist order demanding removal of the reef. In its lawsuit, Marine Forests Society argued that the Commission did not have the authority to issue such an order because of the way the majority of commissioners was appointed. Sacramento County Superior Court Judge Charles Kobayashi agreed and ordered the Commission to stop taking action on permits or issuing cease and desist orders. The Third District Court of Appeal upheld Kobayashi's injunction (see , February 2003). Neither Kobayashi nor the Third District showed any desire to reopen previous Coastal Commission decisions. But, at the attorney general's urging, the state Supreme Court agreed to review not only the lower court ruling but also the question of what affect it would have on past and pending Coastal Commission decisions (see , May 2003). Advocates on either side began to wonder if the Supreme Court was willing to throw out nearly three decades of Coastal Commission decisions. The answer was no. In his opinion, Chief Justice George addresses at length the evolution of the California constitution and its differences with the federal constitution. Zumbrun and supporting attorneys based much of their argument on federal court decisions regarding the United States constitution. Those precedents did them little good here because the court found that the state's separation of powers doctrine is weaker than the federal constitution's. "In contrast to the federal constitution, there is nothing in the California constitution that grants the governor (or any other executive official) the exclusive or paramount authority to appoint all executive officials or that prohibits the Legislature from exercising such authority," George wrote. "Moreover," George continued, "the history of the California constitution and past judicial decisions make it abundantly clear that under the state's constitution, the Legislature posses authority not only to determine whether to create new executive offices, agencies, or commissions, but also to decide who is to appoint such executive officers and commissioners, including, at least as a general matter, the authority to provide for such appointment by the Legislature itself." George also reviewed the history of Proposition 20 and the Coastal Act of 1976, finding that the current appointment structure is similar to what voters backed when they approved a Coastal Zone Conservation Commission and six regional commissions in 1972. There are safeguards to the prevent lawmakers from meddling in the system, as opponents had contended could happen, George noted. He pointed out that the fixed four-year terms are the same length that the president and governor receive. The fact that three different entities make appointments is a safeguard, as are the provisions of the Coastal Act requiring fairness and transparency, and decisions that are based on substantial evidence in the record, George wrote. Although the pre-2003 appointment system was questionable because of lawmakers' ability to remove commissioners at any time, the court upheld all past Commission decisions based on the "de facto officer" doctrine. That principle holds that even if the Commission were not legally seated, the decisions stand because they were made by a lawfully established entity whose members followed guidelines, and whose decisions were relied upon by the public. Zumbrun and Burling entirely rejected the court's application of the de facto officer doctrine to this case. Zumbrun said the argument for overturning past decisions made by an illegally constituted Coastal Commission was strong. "I think our case was too much," Zumbrun said. "I think the court saw the world collapsing and chaos. And from a public policy standpoint, they had to shut us down." Burling said he had no desire to reopen tens of thousands of permits. But the court should have allowed property owners who filed timely lawsuits over the makeup of the Commission to press their claims, he said. Neither the Marine Forests Society litigation nor the larger battle over the Coastal Commission are over. The Marine Forests Society case now returns to Superior Court, where Zumbrun plans to argue that the Commission treated his client differently than it treated another entity that built marine habitat. Contacts: Ronald Zumbrun, attorney for Marine Forests Society, (916) 486-5900. James Burling, Pacific Legal Foundation, (916) 419-7111. Bill Yeates, environmental attorney, (916) 609-5000. , No. S113466, 05 C.D.O.S. 5501, 2005 DJDAR 7550.