Five million metric tons of carbon dioxide equivalent. This is the target – at least for now – that is likely to drive "smart growth"-style land use planning in California over the next few years. It's the tentative reduction target that the California Air Resources Board has assigned to the land use sector in order to help meet the state's greenhouse gas (GHG) emissions reduction goals by 2020. CARB adopted the target in its AB "Climate Change Scoping Plan" in mid-December. First, it's not a very large percentage of the overall statewide reduction target of 174 million metric tons of carbon dioxide equivalent (MMTCO2E). Second, it's not nearly what environmentalists asked for. They wanted a reduction of between 11 and 15 MMTCO2E. Third, it is still a pretty big number. As near as I can tell, meeting this target will require a reduction in vehicle miles traveled (from the current levels, not projected 2020 levels) of around 3-4%, which would require a considerable shift in land use patterns. And fourth, it actually is not the final number. CARB punted to the soon-to-be-appointed "Regional Targets Advisory Committee" called for in SB 375 (see CP&DR , November 2008 , September 2008 ). The committee will to do an analysis of each region in the state and come up with a target for that region. The total reductions could be more or less than 5 million metric tons. But if it's less, then CARB will have to come up with other savings somewhere else. So the battle over the target is far from finished – and it's likely to stretch well into 2010, when the regional numbers must be finalized. Let's take a step back and look at just exactly what 5 million metric tons means in the real world of planning and development. Right now, Californians have more than 35 million vehicles, and they drive about 330 billion miles a year. Obviously, that's more than any other state. On a per-capita basis, however, California does pretty well. Annual per-capita vehicle miles traveled (VMT) in California is about 9,000 miles, or about 24.6 miles per day. This ranks California 11th out of the 50 states in VMT efficiency. By contrast, per-capita VMT is about 10,200 miles in Texas and 11,300 miles in Florida. Still, all this driving represents a significant amount of greenhouse gas emissions – somewhere around 135 million metric tons per year, or slightly less than a third of the state's current total of around 460 million metric tons. The problem is that VMT is expected to go up in the future – both in absolute numbers and per capita – and it has to go down in order for the state to meet the AB 32 targets. Forecasts for VMT for 2020 range between 380 billion and 430 billion miles, and the higher number is a much more likely "business as usual" scenario. This kicks the GHG emissions up to around 180 billion metric tons. Under AB 32, the state is expected to realize significant savings in vehicle-related GHGs from two other sources – better fuel efficiency for the vehicles themselves (32 million metric tons) and lower carbon content in the gasoline (15 million metric tons). But that still won't be enough to meet the state's goal. Hence the 5 million metric ton total to be extracted from changing land use patterns. So how much driving do we have to eliminate? If nothing else were to change, VMT would have to go down 11 billion miles per year from the current number – about 31 million miles per day. That's the equivalent of taking more than 1 million vehicles off the road completely in California. Alternatively, it's the equivalent of everybody in California – 40 million or so vehicles – driving about 1 mile less per day. Obviously, lots of people are locked into current driving patterns because they live in residential subdivisions accessible only by car. Others will probably increase their driving if they move to distant areas in order to buy houses, such as the Central Valley and Southern California's high desert. So that puts an enormous amount of pressure on infill development to deliver driving reductions. In essence, infill is going to have to offset all the increased VMT from new greenfield development and deliver a reduction of 31 million miles driven every day from current levels. Does this mean the end of greenfield development in California? Obviously not. There's too much land in play, too big a market and too many expectations – by landowners, developers, and local governments – for greenfield projects to go away. But the regional targets, combined with new SB 97 requirements to study a project's contribution to climate change, will put enormous pressure on greenfield projects to minimize their carbon footprint. And because even the most carbon-light greenfield development will create an increase in greenhouse gases, there will be an enormous amount of pressure on infill projects to create greenhouse gas savings. Inevitably, if AB 32 is the driving force, regional planning agencies will have to stack huge densities at every serious transit stop, and even in nodes and activity centers not heavily served by transit in order to reduce VMT (even if congestion increases). Infill areas could conceivably serve as "mitigation banks" for greenfield projects. Of course, if the enviros have their way, the target will be double or triple the 5 million metric tons per day. And because the land use target is currently squishy, it's possible that other sectors who anticipate having a tough time making their target will try to push for more savings from the land use sector. Which leads us, inevitably, to the politics of the Regional Targets Advisory Committee, which will recommend the actual land use target for each region. Senate Bill 375 says that the committee – which is scheduled to be appointed this month – is to be essentially a land use stakeholder committee that includes representatives from the metropolitan planning organizations and the air districts; from cities, counties, and local transportation agencies; and from homebuilding groups, environmental organizations, planning organizations, environmental justice organizations, affordable housing organizations, and other groups. Senate Bill 375 envisions a nerdy, technical task for the Regional Targets Advisory Committee, which is supposed to pass judgment on the modeling that will forecast possible GHG savings from land use in each region, as well as growth predictions and jobs-housing balance forecasts. The committee is supposed to make its recommendations to CARB by September. No matter how technical the task is on paper, however, the targets committee inevitably will be enmeshed in a political tug-of-war among the usual land use suspects – local governments, homebuilders, environmentalists – over the numbers. Local governments and homebuilders will probably argue in favor of 5 million metric tons at most – and maybe less. Environmentalists will probably continue to argue for double or triple that number. Given the history of land use politics in Sacramento, it is hard to see how this committee will break through the usual logjam to have a meaningful discussion about how to shape the future of California's growth.

A mobile home park owner in San Luis Obispo County has won a state court order for a new county hearing on a rent increase. The Second District Court of Appeal ruled that Manufactured Home Communities is due a new hearing because it did not have the opportunity to cross-examine tenants who testified against the proposed rent increases at an earlier county hearing. However, the state appellate court panel declined to consider Manufactured Home Communities' argument that the county's application of its rent control ordinance was an unconstitutional taking of private property. In a federal court case involving exactly the same ordinance and proposed rent hikes, the Ninth U.S. Circuit Court of Appeals withdrew a 2007 ruling against the mobile home park owner, but once again rejected all the property owner's contentions that its Fifth and Fourteenth Amendment rights had been violated. One of largest owners of mobile home parks in the United States and Canada, Manufactured Home Communities (also known as MHC and Equity Lifestyle Properties) has vigorously fought rent control measures in numerous California cities and counties with minimal success. In 1997, the company purchased the 126-space Sea Oaks Manufactured Home Community, located in the unincorporated coastal town of Los Osos, just south of Morro Bay. The park is subject to San Luis Obispo County's mobile home rent stabilization ordinance, which voters approved in 1984. The ordinance limits annual rent hikes to 60% of the increase in the consumer price index, although park owners may boost rents by 10% upon transfer of a mobile home. The ordinance also provides a hardship exception when park owners have extraordinary expenses, and an exception when tenants sign leases or contracts for a period longer than month-to-month. The company's San Luis Obispo County lawsuits stemmed from its 2002 proposal to increase rents by 185% for nine tenants in Sea Oaks. MHC said the rent control ordinance did not apply to those tenants because they had signed 12-month rental agreements. The county's rent review board conducted a hearing at which the tenants said the park manager had told them they were covered by the rent control ordinance and that MHC had engaged in "deception" and "mob-like bullying tactics." An MHC attorney asked to cross-examine the tenants, but the board refused to allow the questioning. The board rejected the rent increase after finding that the tenants had treated the leases like month-to-month agreements and that MHC had misrepresented the contracts' terms. MHC appealed to the Board of Supervisors, which upheld the rent review board. The company then filed suit, alleging that the county had denied MHC a fair hearing because it would not allow cross-examination of witnesses, and that the county's rent control ordinance was unconstitutional. A San Luis Obispo County Superior Court judge ruled the 12-month contracts were invalid and not exempt from rent control, and rejected arguments about the ordinance's constitutionality. On appeal, MHC argued it had a constitutional right to cross-examine the tenants. The county argued MHC had no such right in a rent control proceeding akin to a public hearing. In a unanimous ruling, a three-judge panel of the Second District, Division Six, agreed with MHC. "The tenants had an unfair advantage. They could select the facts they wanted the board to hear, and avoid questions concerning those facts," Presiding Justice Arthur Gilbert wrote. "There are valid reasons for restricting cross-examination in some administrative proceedings. But this was not a quasi-legislative hearing or an informal public hearing where speakers are not sworn and cross-examination could inhibit public comment. "This was an adversarial hearing where the tenants requested the board to make findings against MHC. The rent control ordinance requires findings and testimony under oath, and the board exercised ‘judicial-like' powers in deciding the parties' rights involving their individual leases," Gilbert explained. "Where it makes a decision based on a party's testimony, the adversary is entitled to question his or her opponent." The court then turned to the question of the leases' validity. The trial court found them invalid because one paragraph permits the park owner to raise rents upon a 90-day notice. The court ruled this provision conflicted with the county's rent control procedures. However, the appellate court noted that the same paragraph in the leases says that rent increases are subject to state and local laws. The leases are not necessarily invalid, the court ruled, although it is possible the county could reject the leases if it determines the tenants were misled or that MHC was somehow barred from claiming a rent control exemption. The court sent the matter back to the county's rent review board for a new hearing at which it permits cross-examination. Because it ordered a new hearing, the Second District declined to consider MHC's contention that the county's application of the rent control ordinance to MHC's proposed rent increase was an unconstitutional taking. In federal court, the Ninth Circuit withdrew a 2007 decision in which it rejected all of MHC's arguments about the validity of the county's rent control ordinance and refused to consider challenges to the rent increase process (see CP&DR Legal Digest , November 2007 ). In November, the Ninth Circuit rejected MHC's petition for rehearing and issued a new opinion similar to the 2007 ruling. On MHC's taking claim, the court continued to maintain MHC could not seek federal court relief without first requesting a "Kavanau adjustment," the state process in which future rents increase to compensate for previous confiscatory rents (see CP&DR Legal Digest , February 2004 ). The court found no basis for MHC's arguments that the county violated the company's due process and equal protection rights. The rent control ordinance serves a legitimate public purpose, and the shortage of mobile home spaces along with the impracticality of moving a mobile home justify the county's singling out park owners, the court found. State Court Case: Manufactured Home Communities, Inc. v. County of San Luis Obispo , No. B196426, 08 C.D.O.S. 13243, 2008 DJDAR 15820. Filed October 15, 2008. Federal Court Case: Equity Lifestyle Properties, Inc., v. County of San Luis Obispo , No. 05-55406, 2008 DJDAR 17425. Filed November 25, 2008. The Lawyers: For MHC: Edith Matthai, Robie & Matthai, (213) 624-3062. For the county: Henry Heater, Endeman, Lincoln, Turek & Heater, (619) 544-0123.

A property owner cannot participate in a California Coastal Commission appeal process for years and then assert that the Commission was prohibited from considering the appeal because it missed a procedural deadline years earlier, the Second District Court of Appeal has ruled. The court rejected a Pacific Palisades landowner's contention that the Commission had lost jurisdiction over an appeal of the landowner's three-lot development because the Commission did not conduct a hearing within 49 days of receiving an appeal in 1999. Landowner Mt. Holyoke Homes (MHH) "did not question the Commission's jurisdiction until June 7, 2003 – three and a half years after the latest date on which it contends the Commission lost jurisdiction. During that time, MHH readily provided information to the Commission in response to several requests; its actions over such an extended period of time constituted consent (acquiescence) to jurisdiction or, alternatively, invited error," Presiding Justice Dennis Perluss wrote for the Second District, Division Seven. As with many coastal development projects, the one at issue here has a legacy. Nearly 20 years ago, Darla and Stanley Jones formed Mt. Holyoke Homes for the purpose of developing their property in Los Angeles's Pacific Palisades. (Mr. Jones has since died.) They filed an application with the city for a four-lot subdivision, which the City Council ultimately rejected on appeal of a neighborhood group. After MHH sued, a Los Angeles County Superior Court judge in December 1993 ordered the city to reconsider. Negotiations ensued amongst the Joneses, their neighbor Barbara Schelbert and the city. MHH agreed to reduce the project to three lots, increase building setbacks and provide view corridors between the planned houses. But city officials raised new concerns about geology and soils that required extensive study. Finally, in April 1999, the city approved the revised, three-lot project. Schelbert appealed the decision to the Coastal Commission in June 1999. The following month, the Commission opened but continued a public hearing on the appeal because the city had provided no documents related to the project. The landowners then arranged to have a copy service copy and transmit more than 2,000 pages of city records to the Commission. Staff members for the Commission found the record incomplete, however, so MHH arranged to have the entire city file delivered to the Commission. On April 3, 2000, MHH delivered a stipulation signed by the Joneses, a city representative and Schelbert stating the Commission had been given all documentation. Five weeks later, the Commission determined the appeal raised substantial issues regarding geologic hazards and landform alternation and said it would conduct a de novo hearing at a later date. From August 2000 until April 2003, MHH and the Commission's staff went back and forth, including one 17-month period when MHH did not respond to a staff request for seismic information. Eventually, the staff recommended project approval, but at a June 2003 hearing, the Commission denied the proposal. MHH then requested the Commission reconsider, in part because the Commission did not act on the appeal within 49 days as required by the Coastal Act. MHH argued the Commission should have determined whether the appeal presented a substantial issue by either August 2, 1999, or January 25, 2000, the later date being 49 days after MHH's copy service delivered records to the Commission. After filing the request for reconsideration, MHH then asked the Commission to continue the matter "for an indefinite period of time in order to facilitate discussion and consideration of alternatives." In the meantime, MHH sued the Commission and Schelbert for inverse condemnation and to overturn the Commission's decision. In 2004, the Commission and the landowners signed a tentative settlement in which the Commission agreed to conduct a new hearing on an alternative site plan with a larger view corridor. But when Schelbert protested that she had not been a party to negotiations, the settlement fell apart. After further proceedings, Los Angeles County Superior Court Judge Dzintra Janavs ordered the Commission to conduct a new hearing but also dismissed MHH's suit. In an unpublished 2005 opinion, the Second District Court of Appeal overturned Janavs and ordered the suit reinstated. The case went back to Superior Court, where Janavs in November 2006 ordered the Commission to set asides its disapproval and dismiss Schelbert's appeal because the Commission had missed the 49-day deadline. This time, the Commission and Schelbert appealed. Much of the argument on appeal centered on the relevance of Encinitas Country Day School, Inc., v. California Coastal Commission , (2003) 108 Cal.App.4th 575 (see CP&DR Legal Digest , July 2003 ). In that case, the court ruled the Commission had lost jurisdiction in an appeal of an approved private school project because the Commission did not decide within 49 days whether the appeal presented substantial issues warranting a new hearing. In the case at hand, however, the Second District said Encinitas "did not change the law" and was not needed for a decision anyway. The Second District said the question here concerned "estoppel to contest jurisdiction" – in other words, whether MHH should be prohibited from challenging the Commission's jurisdiction over the project. MHH argued it should not be barred from challenging the Commission's jurisdiction because MHH's participation in the Commission's process did not hide the facts or cause the errors. But the Second District said MHH "had an obligation to contest the Commission's jurisdiction promptly after the date on which it contends the Commission lost it." Justice Perluss even suggested MHH was wasting everyone's time with its allegations. "If MHH were not now estopped to contest the Commission's jurisdiction and the city's approval of its project were to be deemed final without a de novo hearing on the substantial issues raised by Schelbert's appeal, significant resources will have been expended over a period of several years for naught," Perluss wrote. "Such conduct amounts to an unacceptable trifling with a public agency and the courts." The Second District decision appears to clear the way for new Commission hearing on the MHH proposal. In December, MHH asked the state Supreme Court to overturn the appellate court. The Case: Mt. Holyoke Homes, LP v. California Coastal Commission , No B201517, 08 C.D.O.S. 13328, 2008 DJDAR 15935. Filed October 21, 2008. Modified and rehearing denied November 12, 2008, at 2008 DJDAR 16823. The Lawyers: For Mt. Holyoke Homes: John Bowman, Jeffer, Mangels, Butler & Marmaro, (310) 203-8080. For the Commission: John Saurenman, (213) 897-2000. For Barbara Schelbert: John Murdock, (310) 450-1859.

An environmental impact report for a proposed quarry in Madera County has been thrown out by an appellate court, which found the document's consideration of water, traffic, noise and cumulative impacts to be inadequate. The court also determined a water supply assessment is needed for a mitigation measure that could require the quarry to connect surrounding property owners with a water system. Although the Fifth District Court of Appeal upheld portions of the EIR for the proposed Madera Ranch Quarry, the court found a number of shortcomings. The court said the analysis of water issues was acceptable, for example, but found that one mitigation measure defied common sense and another improperly deferred specific action. Seven years ago, W. Jaxon Baker purchased property in Madera County, about 16 miles northeast of Madera. Baker applied for a conditional use permit to develop and operate a hard rock quarry, and he sought a rezoning and second use permit for a hot mix asphalt plant. The excavation pit for Madera Ranch Quarry would encompass 86 acres, and the remaining facilities would cover about 39 additional acres. At the time of the application, the land was zoned for agriculture, used for cattle grazing and covered by a Williamson Act contract. There are dozens of residences and at least 55 wells within a mile of the project site. Residents raised many questions about the project, as did the Central Valley Regional Water Quality Control Board. After several public hearings, the Madera County Board of Supervisors in October 2006 approved two conditional use permits, the rezoning and the cancellation of the Williamson Act contract. The board also certified the EIR. Neighbors Sheryl and Bruce Gray sued, arguing the county violated the California Environmental Quality Act (CEQA), the Surface Mining and Reclamation Act (SMARA) and the Madera County general plan. Madera County Superior Court Judge Charles Wieland ruled for the county. Area residents and the Regional Water Quality Control Board were concerned that the quarry would dry up area wells and that the quarry's pit would serve as a well tying together disconnected aquifers, possibly polluting aquifers residents use for drinking water. The county approved two mitigation measures to ensure neighbors were not harmed. Measure 3.9-1a provided Baker with three options: rehabilitate or deepen the private wells; provide "incremental replacement water" with a connection to the quarry's water system, or provide full replacement water with a connection to the quarry's system. Measure 3.9-1b permitted Baker to provide bottled water to neighbors or build a "water system constructed under federal, state and county guidelines" to provide potable water to affected neighbors. The Grays argued there was inadequate evidence the mitigations were feasible or effective, and the Fifth District agreed. " ur common sense informs us that the mitigation measures will not effectively replace the water that could be lost by the neighboring landowners," Presiding Justice James Ardaiz wrote for the unanimous three-judge panel. "It is true that the mitigation measures will provide a replacement for the lost amount of water. However, neither Mitigation Measure 3.9-1a nor Mitigation Measure 3.9-1b will provide neighboring residents with the ability to use water in substantially the same manner that they were accustomed to doing if the project had not existed and caused a decline in the water levels of their wells." The only true mitigation would be connecting neighbors to a water system, but the county never examined the feasibility or impacts of such a system, the court determined. "While we generally agree that CEQA permits a lead agency to defer specifically detailing mitigation measures as long as the lead agency commits itself to mitigation and to specific performance standards, we conclude that here the county has not committed itself to a specific performance standard. Instead, the county has committed itself to a specific mitigation goal – the replacement of water lost by neighboring landowners because of mine operations," Ardaiz wrote. Because building a new water system "is the only effective mitigation measure that was proposed," the court said the county must analyze the impacts of building a system, and the county must either conduct a water supply assessment to determine whether water will be available or explain why a water supply assessment is not required. To offset traffic impacts, the county required Baker to construct intersection improvements on Highway 41 under Caltrans oversight or to pay fees to Caltrans. Another road mitigation measure required the payment of maintenance fees based upon annual tonnage mined. Again, the court agreed with the Grays that the mitigations were inadequate. There was no evidence Caltrans had scheduled improvements to the highway "in a way that would mitigate the increase in vehicle traffic," the court ruled. Nor was there evidence the county had a plan for maintenance or improvements required by the increased traffic. The court rejected the county's findings regarding noise because of the "bare conclusion" that an increase of 2.1 decibels in the day-night average was insignificant. In addition, because the area already has noise levels greater than allowable in the general plan, the EIR should have addressed the project's contribution to cumulative noise impacts, the court found. For these reasons, the court found the county's statement of overriding considerations regarding noise to be unacceptable. The county's failure to address cumulative noise impacts also placed the project in conflict with the general plan. The court rejected the EIR's cumulative impacts section because the county did not document how it determined there would be no substantial cumulative impacts. The county did not violate SMARA, the court ruled. The Case: Gray v. County of Madera , No. F053661, 08 C.D.O.S. 13523, 2008 DJDAR 16168. Filed October 24, 2008. The Lawyers: For Gray: Donald Mooney, (530) 758-2377. For the county: Douglas Nelson, county counsel's office, (559) 675-7717. For Madera Ranch Quarry: Thomas Terpstra, (209) 599-5003.

In the world of land use planning and real estate development, 2008 will go down as a memorable year, but not necessarily for positive reasons. If the housing market bubble burst in 2007, it crashed to the ground Hindenburg-style in 2008. The fallout from the housing market disaster continues to affect nearly every aspect of planning and development in California. In fact, if you are in the pro-development camp, there was not a lot to cheer during 2008. State lawmakers approved SB 375, which has the potential to completely change the rules of the development game. Voters extended growth control initiatives in the Bay Area. The state decided to take a bunch of redevelopment money. Heck, local government even re-exerted control over cell phone antennas. Does that mean 2008 was a big year for the slow-growth side? In some aspects, yes. Passage of SB 375 was clearly a strike against sprawl, however the term gets defined. Plus, voters demonstrated their commitment to transit, and to preserving farmland and open space, and the Schwarzenegger administration continued to lead the nation in fighting climate change. Rather than pick the winners and losers, though, we have selected what we think are the 10 most important land use stories from 2008. While the national economic recession plays a role in some of these stories, our list provides proof that life � as well as planning, litigation and lawmaking � goes on. With that, here are California Planning & Development Report 's 10 Most Important Land Use Stories of 2008: 1. Passage of SB 375 Whether or not this was truly the most important land use measure since passage of the Coastal Act in 1976 (as some suggested), state Sen. Darrell Steinberg's bill has the potential to alter the planning system in dramatic fashion. Essentially, the bill uses the urge to limit driving as a way to mandate regional planning . Quite clearly, the goal is to encourage infill development, mixed uses and transit, and to discourage greenfield housing subdivisions. As important as the bill might have been, the unprecedented coalition that backed it might have been even more impressive. Environmentalists, major building organizations, labor, planners and local government all endorsed SB 375. The only real opponents were Republican lawmakers who hate everything the Democrats propose and the pavement crowd. 2. The Housing Bust We thought things were bad when we named this the top story of 2007. Little did we know. In 2008, housing starts reached their lowest level since anyone started keeping track. The median housing price in many markets is now 30% to 50% less than it was only three years ago. In some Central Valley cities and Inland Empire exurbs, more than 10% of the housing stock has been foreclosed. Cities and counties all over the state cut their planning staffs by one-quarter to one-half. Building inspection and plan check staffs shrunk even more. And the killer: No one expects the housing market to rebound in 2009. 3. Sales taxes approved Despite the sour economy, voters approved sales taxes for transportation in Los Angeles, Santa Clara, Santa Barbara, Imperial, Marin and Sonoma counties in November. The result should be major expansions of Los Angeles rail service,  completion of BART to San Jose, and a new commuter rail service through Sonoma and Marin counties. Voters also backed the $9.95 billion bond to start building a high-speed train system. 4. Voters Reject Proposition 98 After voters defeated a confusing and oddly worded property rights initiative in 2006, the Howard Jarvis Taxpayers Association and the California Farm Bureau Federation returned with an initiative that sought to prohibit the use of eminent domain for economic development purposes. But the measure also would have outlawed local rent control laws, a provision that earned the scorn of retired people and anti-poverty advocates. The result was a 61-39 defeat , and probably the end of the anti-eminent domain backlash spurred by the Supreme Court's 2005 Kelo decision. Instead, voters approved Proposition 99, a modest initiative backed by the California Redevelopment Association that prohibits the taking of owner-occupied homes for economic development projects. 5. State Supreme Court's CEQA Infatuation Never in the 38-year history of the California Environmental Quality Act has the state Supreme Court shown so much interest in the law. This year, the court issued three rulings, upholding the EIR for Cal-Fed Bay Delta project, approving the review of three timber harvest plans in the Sierra Nevada, and rejecting West Hollywood's delayed review of a contract to build affordable housing. Three other cases remain pending. While the court has clarified some aspects of CEQA, it has not steered the law in an obvious direction.  6. Growth Control Extensions Voters in November extended existing growth control mechanisms in Solano and Napa counties . Unless voters change their minds, the extensions jointly lock up nearly 1 million acres of agricultural land, watershed and open space between the Bay Area and Sacramento until at least 2040. 7. Adoption of AB 32 Scoping Plan A month ago, it looked like this might be the biggest story of the young century. The California Air Resources Board appeared ready to adopt a very aggressive target for greenhouse gas emissions reductions due to land use changes. At the last minute, the board backed away and, instead, deferred to the SB 375 process . Homebuilders breathed a sigh of relief. Environmentalists cursed a lost opportunity. 8. Redevelopment Gets Stiffed To "balance" the state budget, lawmakers and the Schwarzenegger administration agreed to shift $350 million of tax increment revenue from redevelopment agencies to school districts in order to decrease the state's obligation to education. Arguing that the shift is unconstitutional, the California Redevelopment Association responded with a lawsuit . Meanwhile new Legislative Analyst Mac Taylor released a report urging lawmakers to increase the shift to $400 million and make it an annual fixture of the budget. 9. Wireless Zoning Not often does an appellate court do a 180-degree turnaround in only seven years. But the Ninth U.S. Circuit Court of Appeals completed a course reversal when it decided that local government does in fact have the ability to regulate the siting and appearance of wireless telecommunications facilities . After years of blowing past local regulations, cell phone companies no longer have the upper hand. 10. Stanislaus County Slow-Growth In February, voters by a 2-to-1 ratio backed the Stamp Out Sprawl initiative , which requires voters to decide on the rezoning of land from an agricultural designation to residential. The measure was the first of its kind to pass in the Central Valley. � CP&DR Staff

A state appellate court has upheld the Coastal Commission's handling of a housing project appeal. The court ruled that although the Commission did not comply precisely with the state open meeting law's requirements, the Commission came close enough and did not portray an intent to avoid the law. The ruling is the latest setback for developers Keith Fromm and Robert Kalmbach, who propose a 43-unit housing development on about 6 acres in Pacifica's coastal zone. Last year, the Ninth U.S. Circuit Court of Appeals threw out an award of $665,000 to the developers for damages and legal fees in a suit alleging the City of Pacifica violated the developers' equal protection and due process rights (see CP&DR Legal Digest , July 2008 ). In 2002, Pacifica approved a coastal development permit for the project proposed by Fromm and Kalmbach (operating as North Pacifica LLC). A resident appealed the decision to the Coastal Commission. Before the Commission could take action, North Pacifica filed lawsuits in state and federal courts. The state court lawsuit concerned one of the city's conditions of approval, which an appellate court upheld in an unpublished opinion. Because of the litigation, the Coastal Commission delayed consideration of the appeal until December 2005. At that time, the Commission determined the appeal was within its jurisdiction. It followed up on December 20, 2005, by mailing a "Commission Notification of Appeal" to the city and North Pacifica setting a tentative hearing date of January 11-13 in San Pedro. The Commission posted an agenda for its January 2006 meeting on its website December 28, and posted a staff report on the appeal December 30. The Commission mailed formal hearing notices on January 3, 2006. On January 11, the commission decided the appeal presented a substantial issue but postponed a hearing until February 2006. North Pacifica did not attend the January 11 meeting but afterward requested the hearing be delayed until at least April. The Commission finally conducted its appeal hearing on May 11, 2006, during which the Commission overturned the coastal development permit because of potential impacts to wetlands, water quality and environmentally sensitive habitat. North Pacifica did not attend the May 11 meeting, either. In the meantime, North Pacifica sued the Commission, arguing that its noticing of the January 11 meeting was deficient. Los Angeles County Superior Court Judge David Yaffe rejected the contentions, and a unanimous three-judge panel of the Second District, Division Five, upheld the ruling. The Bagley-Keene Act (Government Code § 11120 et seq.) requires state agencies to provide 10-day advance meeting notice to all interested parties. The law authorizes nullification of actions taken at improperly noticed meetings, which is what North Pacifica sought. The court conceded North Pacifica did not get the actual meeting notice until six days before the hearing, but the court found the Commission substantially complied with the law. "When the Commission's efforts to provide notice of the January 11, 2006, meeting are viewed in the aggregate, they substantially comply with Government Code § 11125," the court ruled. "Northing about those efforts suggests that the Commission was attempting to thwart the objectives of the Bagley-Keene Act by holding a meeting that was not fully disclosed or open to the public." Even if the meeting notice was inadequate, North Pacifica was not harmed because the Commission at the January 11 meeting – without debate or public comment – merely set a date for a hearing on the merits, the court found. Thus, the Commission was authorized the act on the appeal at the May 2006 meeting. The state Supreme Court on December 23 denied North Pacifica's request to consider the case. The case is North Pacifica LLC v. California Coastal Commission , No. B199446, 08 C.D.O.S. 12419, 2008 DJDAR 14787. It was filed September 19, 2008.

Monterey County has been ordered to pay more than $244,000 in attorney fees and costs in a California Public Records Act case involving a long-controversial development proposal in Carmel Valley. The Sixth District Court of Appeal upheld a trial court's award of $244,287 in fees and costs to the Open Monterey Project, an organization that sought records related to the proposed September Ranch project. The Sixth District also directed the trial court to award the Open Monterey Project attorney fees related to the appeal. Plans to build houses on the 900-acre September Ranch have been around since the 1990s, and in 1998 the Monterey County Board of Supervisors approved a 109-unit subdivision. However, the Sixth District Court of Appeal invalidated the project approval because of an improper water supply study ( Save Our Peninsula Com. v. County of Monterey , 87 Cal.App.4th 99; see CP&DR Legal Digest , April 2001 ). After conducting additional environmental analysis, the county approved a 95-home project on a small portion of the ranch in 2006; however, a Monterey County judge last year rejected the revised cumulative water analysis. While the county was processing the revised project, the Open Monterey Project made several California Public Records Act (CPRA) requests. Although the county produced some records, the organization was not satisfied and went to court in March 2005. A special master was appointed and ultimately recommended the county turn over another 2,000 pages of records. Superior Court Judge Robert O'Farrell accepted the recommendation and ordered the county to produce the records. Open Monterey Project then filed a request for attorney fees of $194,800, with a multiplier of two because attorneys worked on a contingency basis and because of the protracted nature of the litigation. Judge O'Farrell approved fees of $188,630, applied a multiplier of 1.25, and then added costs to reach a total award of $244,287. On appeal, the county argued that the fee amount should be cut by two-thirds because Open Monterey Project was successful in only one of three areas of requests, and that no multiplier was appropriate. The county said that the special master rejected most of the group's requests for private records of the environmental impact report consultant, and all requests for correspondence with the county's legal advisor. The Sixth District, however, found no legal basis for the county's argument, and concluded that the county's approach could diminish efforts to enforce the Public Records Act. " e determine that there is no requirement that the trial court make an award of attorney fees in an amount that is commensurate with or in proportion to the degree of success in the CPRA litigation," Justice Patricia Bamattre-Manoukian wrote for the court. The appellate panel also upheld the fee enhancement because of the incentive it provided to an attorney to enforce "important constitutional rights" on a contingency basis. The case is Bernardi v. County of Monterey , No. H0231648, 08 C.D.O.S. 13725, 2008 DJDAR 16415. The opinion was filed on September 30, 2008, and ordered published on October 29, 2008.

Sometimes, email is no substitute for snail mail. In a California Environmental Quality Act (CEQA) case from Contra Costa County, the First District Court of Appeal has ruled that notification of a trial court's judgment via email did not trigger the 60-day deadline for filing an appeal. The court ruled that opponents of Davidon Homes' plan to build 22 single-family houses on the 15-acre Weber Ranch may press forward with their appeal of the trial court's ruling. The Town of Danville approved the housing development in 2007 based on a mitigated negative declaration that said all significant environmental impacts would be fully offset. A group called Citizens for Civic Accountability sued, arguing the city needed to further study impacts on roads, red-legged frog habitat and scenic views. The group insisted the city should prepare an environmental impact report. Contra Costa County Superior Court Judge David Flinn ruled for the city but did insist on further study of the impacts of removing 120 trees from the site. The clerk of the court then sent the parties an email advising them that the judgment had been authorized for filing on April 1, 2008. On April 10, Citizens served a "notice of entry of judgment" and on June 9 filed an appeal. The city and Davidon Homes contended the appeal was too late because the 60-day deadline started to run with the April 1 email notification. The First District, however, said an email did not suffice under California Rules of the Court rule 8.104(a). That rule requires filing a notice of appeal within "60 days after the superior court clerk mails the party filing the notice of appeal a … file-stamped copy of the judgment." The city and Davidon Homes argued the terms "mail" and "email" were essentially the same here. The court disagreed. " ecause rule 8.104(a) must be strictly construed to preserve the right to appeal when possible without doing violence to the language of the rule, ‘mail' must be construed according to its primary meaning to be limited to postal delivery," the court ruled. The Case: Citizens for Civic Accountability v. Town of Danville , No. A121899, 08 C.D.O.S. 13565, 2008 DJDAR 16254. The opinion was filed October 27, 2008.

The Auburn Dam died an official death in December, when the State Water Resources Control Board revoked the U.S. Bureau of Reclamation's rights to 2.5 million acre-feet of water per year from the American River. The board and state law require water rights holders to put water to beneficial use. But with the dam stalled since 1975 and no prospect for resuming construction, the board concluded it had little choice but to take back the water rights. The City of Sacramento and San Joaquin County have already filed applications to gain rights to the water. Congress authorized the 680-foot-tall dam in 1965, and site work just south of Auburn began in 1967. An earthquake on a fault that runs directly under the dam site forced construction to a halt in 1975. As environmental concerns and estimated costs – they eventually approached $10 billion – rose, the project lost momentum and construction never resumed despite downstream flood concerns and the need for water (see CP&DR Environment Watch , August 2006 , September 2002). Also dying in December was a proposal to extend Orange County's Foothill South toll road through San Onofre State Beach. In early 2008, the California Coastal Commission rejected the Orange County Transportation Corridor Agency's plan to build the freeway through the state park because of potential impacts to coastal resources and environmentally sensitive habitat. Using the federal Coastal Zone Management Act, the agency appealed that decision to the federal Commerce Department. However, federal officials declined to override the Coastal Commission. A 28-page decision prepared by the National Oceanic and Atmospheric Administration found that there is at least one alternative route for the six-lane toll road and that the road is not necessary for national security. The transportation agency vowed to continue fighting for the toll road, likely in the courthouse. A plan to remove hundreds of structures and rebuild 125 acres in the heart of Baldwin Park appears to have died with Bisno Development's announcement that it was pulling out of the project because of the sour economy. The plan called for Bisno to fund the Baldwin Park Redevelopment Agency's acquisition of residential and commercial properties. The agency would then turn over the real estate to Bisno for development of up to 8,000 housing units, nearly 4 million square feet of commercial, retail and entertainment uses, and public projects such as a promenade, a lagoon and a fancy Metrolink station. The project was extremely controversial because of its potential to displace about 100 households and 300 businesses (see CP&DR Redevelopment Watch , May 2008 ). City officials say other developers are interested in a smaller version of the project.

Proposals to extend the life of redevelopment project areas for as long as 40 years continue to float around the state Capitol as part of a budget-balancing package. Local redevelopment agencies or some other entity would issue tax-increment bonds based on future revenues, and the state would get a chunk of the proceeds to help offset the budget deficit. In exchange, redevelopment agencies could continue implementing redevelopment plans and receiving tax increment without having to make legal findings that blight still exists. Although a detailed, written proposal for the redevelopment extension has not surfaced, the California State Association of Counties (CSAC) has already gone on the defensive. In a December 16 letter to Gov. Schwarzenegger, CSAC called the proposal both "legally questionable" and ineffective, because most tax increment is diverted from school districts and the state is obligated to backfill the lost revenue. "Counties simply cannot afford to continue involuntarily contributing to redevelopment activities beyond their statutory deadlines," the CSAC letter states. One potential supporter of a redevelopment extension is the City of Industry, where developer Ed Roski Jr. has proposed a 560-acre project on city-owned land that would include a pro football stadium, a shopping mall and entertainment district, and 1.5 million square feet of offices (see CP&DR Places , June 2008 ). Last year, Industry sponsored legislation that would have allowed it to continue redevelopment activities for an additional 10 years without renewed blight findings (see CP&DR In Brief , May 2008 ). Although the city denied it, the bill was largely seen as a vehicle for football stadium financing. The bill died without a hearing. Now, Industry has called a special election for January 20 at which the city's 82 registered voters will decide on a proposed $500 million general obligation bond that would provide the infrastructure for Roski's project. Also on the ballot are proposals to tax tickets and parking at entertainment venues, creation of a municipal electric utility, authorization for the city to award public works contracts without competitive bidding, and a measure that would prohibit people who live other than in permanent residences from voting in the city.

Agreements approved by Riverside County and cities in the Coachella Valley in support of a multiple species habitat conservation plan did not violate a political corruption law, according to the state attorney general's office. Attorney General Jerry Brown's opinion unit provided its analysis in response to a request by state Sen. Jim Battin, a Republican from La Quinta who has since been termed out. A staunch opponent of the Coachella Valley multiple species habitat conservation plan, Battin in June 2007 asked the attorney general if a memorandum of understanding between the county and eight cities in support of the plan violated Penal Code bribery prohibitions, and if the agreement would remain in effect as the membership of elected bodies changed over time. Deputy Attorney General Marc Nolan said the MOU did not violate the Penal Code, and that ongoing implementation of the agreement was permissible because it did not contract away any jurisdiction's police power. Nearly 15 years of planning and politicking went into the habitat plan, which the cities approved in 2007 and became final in September 2008 when the U.S. Fish and Wildlife Service and the California Department of Fish and Game provided formal approval. The plan permanently preserves 240,000 acres (in addition to 500,000 acres already owned by public agencies) to provide habitat for 27 sensitive plant and animal species (see CP&DR Local Watch , April 2006). The "hard line" plan prevents nearly all development in protected areas and calls for a mitigation fee (now at $5,730 per acre) on development outside protected areas to fund acquisition of conservation lands. Every city in the Coachella Valley except Desert Hot Springs, along with Riverside County and other local government agencies, has agreed to participate in the plan. Battin fought against the habitat plan and specifically against political pressure from Riverside County Supervisors Roy Wilson and Marion Ashley, both of whom championed the plan and publicly suggested they would make life difficult for cities who did not support the plan. Battin questioned the MOU between the county and the cities under which the county agreed to abide by city development standards within a city's sphere of influence if the city endorsed the habitat plan. Battin suggested the agreement amounted to illegal vote trading under Penal Code § 86. In his opinion, however, Nolan explained that § 86 concerns bribery, corruption and personal advantage, and that the provisions dealing with vote-trading are narrowly written. "The mere fact that the item voted upon involves a proposed trade-off between jurisdictions does not dictate or even imply that any trade-off will occur between officials voting on that item," Nolan wrote. The mutual obligations set forth in the MOU did not portray a corrupt intent, he added. "To conclude otherwise would, in effect, criminalize the conduct of entering into intergovernmental contracts which, by their very nature, mutually commit participating jurisdictions to any number of obligations, and thereby subject the public officials who vote to enter into such agreements to the severe criminal and civil sanctions reserved for bribery and like offenses," Nolan wrote. "We decline to attribute such sweeping coverage to § 86. Absurd results would follow." An agency may not contract away its police power or that of "successor legislative bodies," but the agreement at issue here did not do so, Nolan found. In fact, the implementing agreement made clear a participating jurisdiction may withdraw from the conservation plan and its provisions with sufficient notice, Nolan pointed out. The attorney general's opinion is No. 07-506 and may be found at 08 C.D.O.S. 14099, and 2008 DJDAR 16920. It was published on November 13, 2008.

The Fourth District Court of Appeal has thrown out a California Environmental Quality Act lawsuit filed by Riverside residents because of a procedural error. Because Friends of Riverside's Hills brought California Environmental Quality Act (CEQA) challenges along with allegations that the City of Riverside violated the Subdivision Map Act, the map act's requirement for service of a summons within 90 days of the city's decision applied. Friends argued they had to comply only with CEQA procedures, but the court disagreed and blocked the lawsuit. Friends did successfully defend against a claim for millions of dollars in damages and sanctions sought by landowners, who argued the appeal was frivolous. On June 13, 2006, the Riverside City Council accepted as complete final tract maps for three subdivisions in La Sierra, located in northwest Riverside. La Sierra has been the scene of growth battles since the 1970s as residents have fought to maintain the area's semi-rural nature. A month after the council's 2006 decision, Friends of Riverside's Hills sued, arguing the city had violated open space protections and mitigation measures required by a 1996 specific plan. The group also argued the city violated the map act. On September 14, 2006, the city, the subdivision developers and the landowners asked the Riverside County Superior Court to dismiss the lawsuit because Friends had failed to serve a summons within 90 days of the City Council's decision. Riverside County Superior Court Judge Stephen Cunnison granted the request and dismissed the suit. Friends appealed only the issue of the map act's procedural requirements to the CEQA claims. Friends argued that because the allegations of CEQA violations did not involve the map act, the 90-day deadline for service of a summons should not apply. But the court determined that the CEQA claims and the map act claims were essentially all the same and, therefore, the map act's procedural requirements applied. " he CEQA cause of action was merely another vehicle for challenging the city's failure to require the applicant to implement open space and other mitigation measures that were part of the project's conditions of approval and of the specific plan," Presiding Justice Manual Ramirez wrote for the Fourth District, Division Two. "Friends not only could have brought this claim under the SMA rather than CEQA, it in fact did." While the appeal was pending, the landowners asked the court to sanction Friends because "any reasonable attorney would agree that the appeal is totally and completely without legal merit." The landowners sought $16 million for loss of market value, $403,000 for out-of-pocket expenses plus $1,248 every day since September 1, 2007, and $27,500 in attorney fees. The court rejected the request because such an award could chill litigants' right to appeal. "Weighing the chilling effect of sanctions against the issues raised in this appeal, and finding that a reasonable attorney may well have believed the appeal had some merit, we conclude that sanctions are not justified," Justice Ramirez wrote. The case is Friends of Riverside's Hills v. City of Riverside , No E042724, 08 C.D.O.S. 14458, 2008 DJDAR 17376. The opinion was filed October 24, 2008, and ordered published November 24, 2008.