Sacramento city and county officials are congratulating themselves   – and getting congratulated by editorial writers and others – for cutting a deal to share sales tax revenues from auto dealers. But the deal's not the result of enlightened regional cooperation. It came about because both jurisdictions are threatened by auto malls elsewhere in the Sacramento region. On the surface, the deal is commendable: Although the county currently receives a lot more auto sales tax revenue than the city -- $7.7 million versus $3 million --  the two jurisdictions will share all future revenues 50-50. Isn't this exactly the kind of thing that everybody in California's been trying to get local governments to do for years? After all, it's illegal to subsidize the move of an auto dealership across jurisdictional lines ; and Sacramento's Darrell Steinberg – now the head of the Senate – caused a big ruckus when he was in the Assembly with his regional tax-sharing bill in 2002 . Well, sort of. The city and county of Sacramento are not joining forces because it's the right thing to do. They're joining forces because they think it will help them better compete with the powerful auto malls in Roseville and Folsom and the emerging auto center in ever-aggressive Elk Grove. The geography of auto sales in metro Sacramento now favors these outlying areas. Most of the older dealerships are located along Fulton Boulevard in Sacramento County, not far from Arden Fair Mall but far away from any freeway and increasingly hemmed in by traffic. The other auto centers have stronger locations, good marketing – and a lot of help from their cities. It's no coincidence that the Sacramento city-county deal was struck only a week after Roseville considered paying for half of a $6 million upgrade to the Roseville auto mal l. I learned a long time ago in planning school that politicians can work constructively together – but only when they think the alternative is worse. In the case of Sacramento's auto dealerships, we should congratulate the city and the county for doing the right thing – but we shouldn't forget that they're only doing it because the wrong thing isn't working anymore. -- Bill Fulton

Did you hear it at the very end of Barack Obama's acceptance speech Thursday night? "Cities to rebuild" was the phrase, and it marked the closest the Democratic nominee came to discussing urban planning and land use. I know, I know. I'm a land use nerd, and I'm well aware that the vast majority of land use decisions are made locally, not by the president. No one expects – or wants – the president to be a planner. But the federal government does have a big influence on what gets built where. Consider the Clean Water Act and the Endangered Species Act. Consider all the money the federal government spends on transportation, housing and flood control. Consider that the federal government owns half the land in California. Apparently all of this was not enough consideration to qualify for Barack Obama's acceptance speech. To be fair, no one expects John McCain to talk about inclusionary housing or mixed-use overlay zones, either. Obama gave himself an opening when he talked about energy. He mentioned tapping natural gas reserves, "clean coal" technology and nuclear power. (So much for the environmental movement.) He also mentioned more fuel-efficient cars and investing "$150 billion over the next decade in affordable, renewable sources of energy; wind power and solar power and the next generation of biofuels." But he didn't address climate change directly, nor did he talk about the role that development, redevelopment and new construction techniques could play in reducing energy usage and greenhouse gas emissions. Neither did the former community organizer in Chicago's South Side talk about specific inner-city needs. At the very end of his speech, Obama said, "America, we cannot turn back. Not with so much work to be done … Not with an economy to fix and cities to rebuild and farms to save …" And that was it. No real bone for us planning geeks to chew on. Ignored again. – Paul Shigley

A lawsuit challenging the City of Pleasanton's housing policies has been reinstated by the First District Court of Appeal after a trial court judge had ruled the lawsuit was filed too late. The unanimous three-judge appellate panel determined the statute of limitations for the lawsuit had not expired. The court concluded housing advocates had at least three years to sue the city. While the ruling pleased affordable housing advocates, it concerned officials in Pleasanton and elsewhere who said the court appeared to establish an open-ended statute of limitations. "We have some concern about the Court of Appeal's decision that a validly enacted growth management regulation can be subject to attack just because of the passage of time," Pleasanton City Attorney Michael Roush said. The city has asked the state Supreme Court to take the case because the Court of Appeal's decision, Roush contended, lets plaintiffs decide the deadline for filing lawsuits. Housing advocates contend they have legitimate complaints about Pleasanton's growth management ordinance, a voter-approved housing cap, and the way those laws restrict the provision of mandated affordable housing. They say litigation was a last resort after city officials stalled on implementing measures in the city's own housing element. "The housing cap makes it literally, mathematically impossible" for the city to meet its fair-share housing obligations, said Richard Marcantonio, who filed the suit for the group Urban Habitat Program. Pleasanton is a relatively wealthy, job-rich city of about 69,000 people along the 580 and 680 freeways in eastern Alameda County. The city's politics have tended toward slow-growth, as evidenced by the passage of city ordinances and ballot measures to restrict development (see CP&DR , December 2002 , April 2000 , July 1999 ). Specifically at issue here are a growth management ordinance and a voter-approved housing cap. First adopted in 1986 and amended in 1998, the growth management ordinance limits building permits to 750 per year. The Measure GG housing cap approved by voters in 1996 establishes 29,000 as the maximum number of housing units permitted in town. For the 1999-2006 regional housing needs allocation (RHNA) period, the Association of Bay Area Governments told Pleasanton it must plan for 729 units of very low-income housing, 455 low-income units, 1,239 moderate-income units and 2,636 above-moderate units. In 2003, about a year after the deadline, the city adopted a housing element that was supposed to reflect the RHNA figures. A key part of the element was a promise to rezone 30 to 40 acres of commercial and industrial land by June 2004 to permit high-density residential development. Without the rezoning, the city acknowledged it would lack land for 871 needed lower-income units. The state Department of Housing and Community Development (HCD) granted "conditional approval" of the housing element but revoked that approval in early 2005 because the city still had not rezoned land. With Pleasanton lacking a certified housing element, advocates began pressing the city about the provision of affordable housing. They noted that over the first five years of the 7 1/2-year planning period, only about one-third of the moderate and low income-units were built, and only a handful of very low-income units, all for senior citizens, were provided. City officials told the state and housing advocates that the rezoning had slipped because of an ongoing general plan update. To date, the city still has not designated the acreage promised for high-density housing. In October 2006, the group Urban Habitat Program sued the city, arguing that the housing element did not comply with the state housing element law, and that the growth management ordinance and housing cap were inconsistent with the city's general plan, state zoning and planning law, the housing element law, the least cost zoning law and the density bonus statute. Alameda County Superior Court Judge Winifred Smith agreed with Pleasanton that the statute of limitations had expired and that some of the claims were not ready for judicial review. On appeal, the First District, Division Two, overturned most of the lower court ruling, clearing the way for the litigation to resume in Superior Court. The First District focused on the statute of limitations. Both Urban Habitat and the city assumed that the deadline in Government Code § 65009, subdivision (d), applied, but they differed on what triggered the start of what is a 150-day timeline for notification and the filing of a lawsuit. However, the court ruled that statute did not apply because "the limitations periods set out in the statute are triggered by specific acts of local land use planning authorities." Urban Habitat's contentions regarding the growth management ordinance and the housing cap did not concern "a specific action taken by the city," the court determined. Because Urban Habitat is not suing over a specific action, the three-year statute of limitations in Code of Civil Procedure § 338 applies, the court held. In making this ruling, the court cited the state Supreme Court decision in Travis v. County of Santa Cruz , (2004) 33 Cal.4th 757 (see CP&DR Legal Digest , September 2004 ). In Travis , the court ruled that § 338 gave landowner three years to sue over a county ordinance that was allegedly in violation of a newer state law. The general conclusion in Travis , First District Justice Paul Haerle wrote, was this: "A challenge to a local government's decision based on events that occurred after that decision took place and, therefore could not have been brought during the statutory time limits, is not governed by § 65009." A staff report to the City Council in April 2006 conceded that city could not meet its RHNA numbers. From that date, Urban Habitat had three years to file suit, the court ruled. City Attorney Roush disagreed with the ruling. He said housing advocates were challenging the validity of an ordinance, and such a challenge must be filed shortly after the local law was approved. Otherwise, he said, cities lack certainty regarding their ordinances. Berkeley Deputy City Attorney Zack Cowan, who filed an amicus brief in the case for the League of California Cities, agreed with Roush. "The court's logic and the ruling could extend to anything. They aren't limiting it to housing elements," Cowan said. "Do we ever get to know what our rules are? People should get to raise questions about whether our rules are working. But that's what the political process is for." The court did toss out two claims regarding Pleasanton's housing element. But it reinstated claims regarding housing discrimination as being timely filed within two years after the occurrence of an allegedly discriminatory practice. The court rejected the city's argument that a portion of the lawsuit was not ready — or "ripe" — for judicial review because the city has never turned down a specific affordable housing project. Urban Habitat attorney Marcantonio said the city's argument incorrectly assumes only a housing developer may sue over the city's housing laws. Marcantonio contended that a court must address the conflict between Pleasanton's annual building permit limit and ultimate housing cap — which the city appears to be nearing — and the city's obligations under state law. He noted that in the current, 2007-2014 RHNA process, Pleasanton was directed to plan for 3,277 units, about three-fourths of which must be affordable. The Case: Urban Habitat Program v. City of Pleasanton , No. A118327, 08 C.D.O.S. 118327, 2008 DJDAR 11171. Filed June 20. Ordered published July 21, 2008. The Lawyers: For Urban Habitat: Richard Marcantonio, Public Advocates, Inc., (415) 431-7430. For the city: Michael Roush, city attorney, (925) 931-5015.

Two referendums of large housing projects in the City of Loma Linda have been reinstated by the Fourth District Court of Appeal. The court overturned a Superior Court judge's decision to pull the referendums from the June 2006 ballot because referendum petitions failed to contain the full text of challenged ordinances. The Fourth District found the petitions to be legally adequate, clearing the referendums to appear on ballots in 2009. In recent years, Loma Linda has replaced Redlands as San Bernardino County's center of ballot-box planning. After the disputed measures were pulled, voters passed a different initiative in November 2006. Measure V established a 7,200-square-foot minimum lot size for the entire city, preserved about two-thirds of the 3,000-acre "South Hills" area as permanent open space, imposed new building height restrictions and mandated development traffic mitigation. Voters rejected a city-backed alternative concerning the South Hills territory. The developer of one of the projects targeted by a disputed referendum has sued over Measure V. A San Bernardino County Superior Court judge upheld Measure V earlier this year, but an appeal is pending in the Fourth District. That case is Holland Partners Orchard Park, LLC v. City Council of Loma Linda , No. E046153. The referendums concerned two large projects approved in September 2005: the 990-unit, 138-acre Orchard Park project, and the 1,500-unit, 168-acre University Village project. Both projects would also contain substantial office and retail space (see CP&DR Local Watch , December 2005 ). A group called Save Loma Linda prepared a referendum on each project and obtained enough signatures to force a vote. Ten days before the deadline to print the June 2006 ballot, however, the pro-growth group Friends of Loma Linda sued. Friends of Loma Linda submitted two one-page exhibits describing last-minute project modifications approved by the City Council; the referendum petitions did not contain the exhibits. Within days, Superior Court Judge Martin Hildreth removed the referendums from the ballot, concluding referendum authors' failure to include the exhibits was "fatal." But the Fourth District determined the exhibits were simply documents prepared by Friends of Loma Linda and unavailable to referendum proponents. The last-minute project changes approved by the City Council never made it into any official document, nor were they even referenced by the formal resolutions and ordinances. "The one-page exhibits describing the specific plan modifications were not required to be included in the referendum petitions, because they were not part of the text of any of the challenged resolutions or ordinances," Justice Thomas Hollenhorst wrote in an unpublished decision. State elections law does not require "the inclusion of information or documents that are not part of the text of the proposed measure or the challenged ordinance, regardless of their informational value to voters." The case is Friends of Loma Linda v. Verjil , No. E040974 and was filed on August 19. Orchard Park and University Village have not moved forward because the specific plans must be revised to comply with Measure V. Still, Save Loma Linda is pressing to have the referendums on the ballot as soon as possible.

Calling Proposition 13, "deeply flawed," a new report by the Lincoln Institute of Land Policy recommends entirely new approaches to property tax relief. Some of what the report says has been reported previously: Proposition 13 has resulted in radically different tax bills for similarly situated properties; the measure places a disproportionately large tax burden on new homebuyers; it has benefited commercial property owners more than residential owners; and it has forced local governments to compete for sales tax-generating development (see C P&DR , June 1998 ). The report also argues that severing the connection between property values and property taxes makes the tax system unaccountable and unclear. The authors further contend that Proposition 13 causes homeowners to stay put even when moving closer to a job otherwise makes sense. "Assessment limits are often put forward as a means of combating two problems popularly associated with rapidly appreciating property values: increasing tax bills and the redistribution of tax burdens," according to the report, Property Tax Assessment Limits: Lessons from Thirty Years of Experience . "In fact, 30 years of experience suggests that these limits are among the least effective, least equitable and least efficient strategies available for providing property tax relief." The report was prepared by Terri Sexton, an economics professor at California State University, Sacramento, and associate director of the University of California, Davis, Center for State and Local Taxation, and by Mark Haveman, executive director of the Minnesota Taxpayers Association. They recommend four alternatives to Proposition 13: • "Circuit breaker programs" that cut taxes when they rise above a certain percentage of income. • "Truth in taxation" measures that require public notice or even elections before tax revenues may exceed the prior year's total. • "Deferral options" that permit qualifying owners to delay tax payments until their home is sold or estate is settled. • "Partial exemptions" for owner-occupied housing units, and "classified tax rates" that permit rates to rise for commercial and industrial properties. The report is available on the Lincoln Institute website, www.lincolninst.edu .

Senate Bill 375 – commonly referred to in the popular press as the "climate change smart growth bill" – is going to become a law . The newspapers have been calling the legislation "precedent setting," but it's got nary a new idea in it. If you peel back the layers, you've got what old-timers like me call a "growth management law" – one that ties transportation funding to growth patterns. The ideas in SB 375 have been kicking around Sacramento for 20 years. But until the passage of AB 32 , which is essentially an air pollution law that contains a ferocious mandate to reduce greenhouse gas emissions, there was no issue in Sacramento overpowering enough to break the decades-old logjam involving enviros, builders, and local governments. The question now whether SB 375 – combined with all the other darned laws we already have in place here in California – will actually influence the state's growth patterns. SB 375 says that each region in California has to create a preferred growth scenario that will minimize greenhouse gas emissions, and then ties state transportation funds to projects that conform to that preferred growth scenario. This is not exactly a revolutionary idea. In fact, it's the basic idea contained in the "original" smart growth policy, the one put into place by Maryland Gov. Parris Glendening in 1997. In California, the idea's pedigree goes back much farther than that. Most of the growth management proposals of the late 1980s contained this exact same idea. (I'd hyperlink to old CP&DR stories about Willie Brown and regional planning, but the stories are so old we don't have them on-line.) The policy contained in SB 375 is already in place in Contra Costa County , thanks to the county's 1990 growth management initiative, which created an urban limit line and requires local governments to adhere to a growth management policy in order to qualify for transportation funds. It's important to remember, however, that SB 375 is only one of several state laws and policies dealing with growth – and unless the Schwarzenegger administration is serious about using all of them consistently, the impact of the new law is likely to be reduced. There is, for example, AB 857 , the 2002 bill that requires all state actions to promote a smart growth development pattern but has never really been implemented. There's also Schwarzenegger's own "Strategic Growth Council," which is supposed to address growth issues but may in fact be mostly designed to promote public-private partnerships on transportation infrastructure projects. And, of course, there is the $40 billion in 2006 bonds , which could play a big role in altering growth patterns if the money was spent with smart growth in mind. The good news is that some of the bond money is being spent to promote a different growth pattern, including the $1 billion or so in the 2006 housing bond set aside for infill and transit-oriented development . But most of the infrastructure money – for transportation schools and flood control – is not being doled out with smart growth or greenhouse gas emissions in mind. And Schwarzenegger isn't pushing very hard to change the allocation system. All of this means that, even though California is finally going to tie some transportation money to growth management, not everybody in Sacramento is traveling in the same direction. – Bill Fulton

The state Assembly has voted 46-22 to approve SB 375, the bill that ties together land use planning, transportation funding, affordable housing planning and greenhouse gas reductions. The largely party-line vote followed a 40-minute debate in which Republican bill opponents argued the measure would erode local land use control. The mostly Democratic supporters rejected that argument, noting that the League of California Cities and the California State Association of Counties endorsed SB 375. "The era of dollar-a-gallon gasoline ... of planning the way we have in the past, that era has passed," Assemblyman Mark DeSaulnier (D-Martinez) said while endorsing the legislation. Senate Bill 375 now returns to the Senate, where members will consider the substantial amendments added to the bill since the Senate approve it last year. Passage seems likely, however, because bill author Darrell Steinberg (D-Sacramento) is in line to become the next Senate president pro tem. – Paul Shigley

The State of California is nearly two months into the 2008-09 fiscal year, and it faces at least a $15 billion gap between current spending levels and tax revenues. Yet there is no sense of urgency at the state Capitol. Earlier this month, I predicted that lawmakers would pass a budget by August 25 because that's the day the Democratic National Convention starts and every Democrat wants to be in Denver. Looks like I'm wrong again. Legislators continue to work on non-budget bills, and this week they have spent an extraordinary amount of time on ceremonies for termed-out members. But there has been surprisingly little budget negotiation. In an interview with the Sacramento Bee , Gov. Schwarzenegger lays part of the blame on term limits. He notes that this is the first year that Assembly Speaker Karen Bass (D-Los Angeles) and Senate Minority Leader Dave Cogdill (R-Modesto) have participated in leadership-level budget talks. "It's just one of those examples that chasing people out of the building after a certain amount of years, even though they're still capable of leading and doing a good job, like Burton, is a mistake," the governor told the Bee . What the governor didn't mention is that he has declined to participate in most of the legislative leadership's budget haggling. The "Big 5" this year has been the "Medium 4." Redevelopment update Earlier this week, the governor released a "proposed compromise" that includes a "temporary" $228 million diversion of tax increment from redevelopment agencies to schools. The governor's proposal is to shift the greater of 5% or $225 million from redevelopment to schools every year for three years. In a legislative update, California Redevelopment Association Executive Director John Shirey said he thinks this shift could become permanent . The idea of using property tax increment to ease the state's budget woes has been floating around the Capitol for weeks. The idea is not going away, rather, the size of the shift seems to be increasing. Five percent is real money for many redevelopment agencies, whose ability to repay bonds and proceed with projects could be jeopardized. If the shift of funds from redevelopment agencies is approved, it would render meaningless a bill passed this week (AB 2594-Mullin) that permits redevelopment agencies to use non-housing revenues to acquire foreclosed housing and to assist homeowners, developers and lenders in financial straights (see CP&DR , July 2008). The state's budget solution would ensure that redevelopment agencies do not have "extra" revenue lying around to spend on housing. – Paul Shigley

I've been listening to sports talk radio since "Sportsphone 68" with Scottie Sterling was on the Bay Area airwaves during the 1970s. I think the show was on for a couple hours on weekday evenings. These days, there are full-time sports radio stations, and some of them fill nearly all 24 hours with talk shows. These shows mostly amount to guys (and the rare brave gal) bloviating about which teams and players suck or rule. Although they have memorized the previous night's scores and stats, few participants – hosts included – have any real insight into why Team A beat Team B, or why Player X was unable to rush for a critical first down. Mostly, the folks on sports talk radio want to express their strong opinions. When the subject is big-time spectator sports, it doesn't matter that the opinions are based on very few actual facts because none of it really matters. It's only sports. Over the years, discussion about things that do matter — such as social policies that effect millions of people's everyday lives – has devolved to the level of sports talk radio. "Dialogue" amounts to a bunch of hot-headed people with strong opinions yelling over one another. You get name-calling, shouting, insults, threats – essentially all the things that your mother and second grade teacher warned you about. And this doesn't occur solely on AM talk radio and cable television. You can see vivid examples in the comments that many newspapers permit readers to post at the end of on-line stories. If you scroll down very far in these comments, you'll find dialogue that goes something like this: "You're an idiot." "No I'm not, you are." "Takes one to know one." "You must know them all." What once seemed like a populist idea – letting readers comment immediately about the news of the day – has become just another annoyance. However, at least a few newspapers are reconsidering their policy of letting readers self-post anonymous comments. The Sacramento Bee ombudsman recently questioned that paper's policy after commenters attacked a rape victim who testified before a legislative committee. This is my way of getting around to talking about CP&DR 's policy regarding comments on news stories and blog entries. We permit readers to post comments. You simply need to be registered and logged in to read or post comments. Although we don't receive a lot of comments, we strongly encourage them because the level of dialogue here is different. Our audience is sophisticated and the comments reflect this. Since we started allowing comments a little more than a year ago, we have removed exactly one submittal. It was a diatribe that was only tangentially related to the subject at hand. I'm sure no newspaper would have removed the comment, but our standards are higher. Am I being elitist? Probably. But I do know that I'm not the only person who values facts, well-researched analysis, reasoned argument and opinions that just might be different from my own. So, if you want to comment on any story you see on this website — including this very blog entry — sign up, log in, and have at it. We're happy to foster a discussion about land use policy, real estate development and related subjects. I have no doubt that our readers still remember what their second grade teachers taught them about civility. - Paul Shigley

A federal judge's ruling blocking development of a controversial condominium project on the shore of Big Bear Lake has been thrown out by the Ninth U.S. Circuit Court of Appeals. The Ninth Circuit ruled that the district court had no jurisdiction to consider alleged Clean Water Act violations because environmental groups' notices to the developer regarding potential violations of the act were inadequate and federal agencies were already forcing corrective action. The Ninth Circuit further rejected alleged violations of the Endangered Species Act as both bogus and moot. The Ninth Circuit also threw out an award of $1.7 million in attorney fees to the environmental groups, a $1.3 million penalty, and a ruling that the developer was in contempt. The Ninth Circuit ruling marks a stunning reversal in a dispute that developer Irving Okovita had previously lost on a number of levels. The ruling also appeared to be a blow at Central District of California Judge Manuel Real, the 84-year-old appointee of President Johnson who has been under investigation by both the Ninth Circuit and a congressional committee in recent years. The Ninth Circuit has removed Real from at least eight cases, according to the American Bar Association Journal . Real's rulings in the Big Bear Lake controversy drew plenty of attention, but so has the entire affair. In 1989, Okovita and partners in the Marina Point development bought a 12.5-acre site on the north shore of Big Bear Lake in the very small town of Fawnskin. There was a recreational vehicle park, campground and marina on the site at the time. Okovita proposed building 133 condominiums and a 175-slip marina. Over the course of several years, the developer lined up all necessary local, state and federal approvals for the project. Construction was slow to proceed, however, and an Army Corps of Engineers permit for dredging in the marina expired in May 2002. The Corps allowed work to continue but in July 2003 issued a cease and desist order because a contractor was using the wrong equipment and stockpiling dredged material below the high water mark. By that time, the project had gained prominence among local environmentalists, who contended the site provided bald eagle habitat. The groups Center for Biological Diversity and Friends of Fawnskin sued in April 2004, arguing that the developer had violated the Clean Water Act and the Endangered Species Act. Okovita responded by suing members of Friends of Fawnskin and United State Fish and Wildlife Service employees under the Racketeer Influenced and Corrupt Organization Act (RICO). Okovita claimed his adversaries had illegally conspired to halt the development project and lower the property value so they could purchase the land. Judge Real quickly threw out the RICO lawsuit and later ordererd Okovita's attorneys (who were not involved in the case at hand) to pay $267,000 for filing a frivolous lawsuit (see CP&DR In Brief , August 2006 , September 2005 ). Meanwhile, the environmentalists' lawsuit moved to trial, and in June 2006 Real ruled that the Marina Point developers had violated the Clean Water Act and Endangered Species Act. Real permanently blocked any development on the site without court authorization, awarded attorney fees and imposed a statutory penalty. Last year, he found the developer in contempt and issued various orders based on that finding. None of those rulings held up at the Ninth Circuit. For a citizen to sue under the Clean Water Act, he first must provide a 60-day notice of intent to sue that describes the activity in question. " he notice is not just an annoying piece of paper intended as a stumbling block for people who want to sue," Ninth Circuit Judge Ferdinand Fernandez wrote in the opinion for the three-judge panel. "The purpose is to accomplish corrections where needed without the necessity of a citizen action." Over the course of five months beginning on June 30, 2003, the environmental groups filed four notices regarding dredging and the placement of fill material into the lake. But the Ninth Circuit determined that the notices were not detailed enough because they did not specify exactly how and when the developer violated the Clean Water Act (CWA). Plus, between the second and third notices, the Corps of Engineers issued a cease and desist order, and prior to the fourth notice the Corp authorized the developer to take corrective measures. Thus, the court determined, the environmental groups could not bring a Clean Water Act lawsuit. "" n light of the defects in the notices, and in light of the fact that the Corps and Marina Point did act to cease the activities that the center claimed were wrongful and even acted to effect ongoing repairs for any problems caused by past activities, the district court did not have jurisdiction to hear the CWA action," Fernandez wrote. "It should have dismissed the action at the outset." Regarding the alleged Endangered Species Act violations, the court found the lawsuit was moot because the Fish and Wildlife Service removed the bald eagle from the endangered species list last year. But even after declaring that part of the suit moot, when considering the award of attorneys fees, the court addressed the merits of the claim that the development would harass the raptors. The court concluded the project would not harm raptors. " aking all of the evidence together, there was no basis for a finding that there was some sort of causal connection between Marina Point's activities and any disruption of the behavioral patterns of the bald eagle," Fernandez wrote. Although the Ninth Circuit lifted the injunction against the development, it is unclear when construction might proceed because of the troubled housing market. The Case: Center for Biological Diversity v. Marina Point Development Co. , No. 07-56574, 08 C.D.O.S. 10204, 2008 DJDAR 12307. Filed August 6, 2008. The Lawyers: For CBD: Bernice Conn, Robins, Kaplan, Miller & Ciresi, (310) 552-0130. For Marina Point: Robert Crockett, Latham & Watkins, (213) 485-1234.

It's the last week of the California Legislature's session, and we're still on the SB 375 watch. SB 375 is, of course, Sen. Darrell Steinberg's bill that would implement the AB 32 greenhouse gas emissions reduction bill by tying state transportation and infrastructure money to regional plans to create "sustainability communities." It has been years since California Planning & Development Report has covered a bill this much. Last year, the bill got almost all the way through the Legislature before Steinberg pulled it at the last minute. Ever since, it has been the focus of extensive negotiations among builders, local governments, and environmentalists. Last week, proponents announced a deal had been done – but this may have been wishful thinking . The reason for all this hullabaloo is that all the experts agree the state can't hit the greenhouse gas emissions reduction targets in AB 32 through technological fixes alone, and that 10-15% of the solution has to come from changing growth patterns in a way that reduces overall driving . This attention to land use has given smart growth advocates and environmentalists an opening in Sacramento, but it's not something that builders or local governments really want to hear. We assume SB 375 will pass in some form, setting off a frenzy of activity in California on how to implement the legislation. But it's worth noting that the whole AB 32 thing might be short-lived. No matter who is elected president in November, it's likely that a federal greenhouse gas reduction bill will pass that could override AB 32. Even if there is no new federal legislation, it's likely that the next administration – of whichever party – will likely give California more leeway on technological solutions. For example, the state has run into trouble with the Bush administration on tougher fuel economy standards. California asked the Environmental Protection Agency for a waiver permitting the state to impose tougher standards than the feds – the kind of action that the EPA has routinely granted in the past for tailpipe emissions. Surprisingly, the EPA pushed back, saying that greenhouse gas emissions, unlike other air pollution, creates a global problem rather than a local one and therefore California should not get the waiver. Schwarzenegger and Bush remain at loggerheads on that one, but even a McCain administration might back off. It's also worth noting that in the last 20 to 25 years, California has been very successful at being on the cutting-edge of technological fixes such as cleaner-running cars and energy conservation. On a per-capita basis, the state is among the most electricity-efficient places in the world, and builders are moving quickly toward green building practices. On smart growth, however, California has been behind the curve. And it may be that the state is such a crazy quilt of interests on growth that we'll stay behind the curve. If the state can't get its arms around the question of growth patterns, that will put more pressure on the technological improvements. – Bill Fulton

A housing bill that local governments love and affordable housing advocates hate has passed the state Legislature. Assembly Bill 2000 by Assemblyman Tony Mendoza (D-Norwalk) would permit a city or county in which newly constructed housing exceeds the jurisdiction's regional fair share to count the "excess" units during the next round of the regional housing needs allocation (RHNA). For example, if a city is told by its council of governments and the Department of Housing and Community Development to plan for 50 units of moderate-income housing during a planning period but builders provide 60 units, the city would have 10 units to count against its next allocation of moderate-income units. (A city could not produce extra moderate-income units and count them against future low- or very low-income allocations.) Local governments say the bill provides an incentive for cities and counties to approve needed housing. On the other hand, affordable housing advocates argue the bill marks a dangerous shift because it treats the RHNA numbers as a ceiling, rather than as a floor. Plus, the advocates say, RHNA numbers are forward-looking; the allocations don't consider housing shortages that have accumulated over the years. The City of Cerritos is sponsoring AB 2000. Through the development of several senior housing complexes, Cerritos exceeded its RHNA allocation of very low- and low-income units for the 1998-2005 planning period. Cerritos wants credit for this excess in the current RHNA cycle. The Senate narrowed the bill a bit by requiring deed restrictions for units in the lowest income levels and by permitting HCD to establish criteria for determining the appropriate income level when providing credit for excess units. Still, housing advocates and HCD remain sharply opposed. Somewhat surprisingly, the bill passed easily in both houses. The state Senate on Tuesday voted 28-3 for the bill, which now heads to the governor. (Procedurally, the Legislature is holding all bills for the time being because Gov. Schwarzenegger has vowed to veto any bill that reaches him before a budget is passed.) No matter when AB 2000 actually lands on the governor's desk, he may very well veto it. Not only is HCD opposed, but the building industry appears to have reservations as well. What of the "big" land use bill — SB 375 ? Housing advocates this week very reluctantly signed on, and the deal is holding for now. The bill is pending on the Assembly floor. – Paul Shigley