We were driving up the coastal area of hilly San Mateo County, just north of Silicon Valley, when we saw something ahead on the shoulder of the road. When we got a little closer, we saw it was a middle-aged man wearing a tweed jacket with elbow patches. He was holding up a sign: "WILL TEACH SCHOOL FOR HOUSING." While this story is fictitious, the need for affordable housing for teachers in the Bay Area is very real. Several school boards, including those in San Francisco, San Jose and Milpitas, have studied the idea of building subsidized housing for teachers who cannot otherwise afford to live in the area. And in December, the tiny La Honda-Pescadero Unified School District in San Mateo County went further, by entering into an agreement with Mid-Peninsula Housing Coalition, a Redwood City-based non-profit home builder. The district and non-profit agency plan to construct between 15 and 45 units of subsidized housing on vacant district land adjacent to Pescadero High School in Pescadero, a small, unincorporated community. The agenda for La Honda-Pescadero is clear: teachers simply cannot afford, or even find, housing in or near this semi-rural community. Housing is expensive in San Mateo County, which lies just north of Silicon Valley. The median home price of a single-family home was $605,000 in the fourth quarter of last year, according to the San Mateo Board of Realtors. Prefer to rent at those prices? A two-bedroom apartment in the area, if you can find one, goes for an average of $1,851 monthly, according to the Palo Alto office of Marcus & Millichap. Scarcity is an even more pressing problem than high rent in the coastal area of San Mateo County. Apartments are thin on the ground to begin with, and apartment vacancies are currently 2%. Many of the district's 35 teachers are living in a variety of less-than-perfect circumstances, including converted garages and rented rooms in private houses. One district official told the San Jose Mercury News that some teachers have quit the same day they were hired because of their inability to find housing. As a result, the district is rarely able to hold onto teachers for more than three or four years. The small district does not make matters easier by paying some of the lowest starting salaries in the region. A fully credentialed teacher starts at about $28,600, compared to starting salaries of about $34,000 in the rest of the Bay Area, according to school district Superintendent Bonnie McClung. The proposed subsidized housing for teachers, however, could translate into something akin to a generous housing allowance that would make those paltry salaries look far more attractive. Although the project is still in the talking stages and rents are yet to be decided, subsidized two-bedroom units in the Bay Area typically run about $950 a month, according to Richard Ridenour, communications director for Mid-Peninsula Housing Coalition. With that number, we can do a seat-of-the-pants pro forma of the potential value of the subsidized housing to renters. Subtracting the subsidized rent ($950) from the market rate ($1851) leaves us a subsidy value of $900 monthly, or $10,800 yearly. All of a sudden, those La Honda-Pescadero salaries start looking a lot more attractive. As desirable as this deal sounds on paper (to me, at least) it is conceivable that not every teacher would have a low enough income to qualify for the subsidized housing. As I mentioned above, rents are not yet available for the San Mateo County units, although we might get a rough idea of the income ranges that might qualify for subsidized housing in the South Bay, based on HUD definitions of low- and moderate-income. Low income is defined as being 50-to-60% of the median income in a particular area. In San Jose (which is probably somewhat higher than San Mateo County) 50% of the median income equals about $34,800 for a single-earner household, or $39,500 for a family of three with two breadwinners; these folks qualify for a two-bedroom apartment that rents for $925. Teachers who earn 60 percent of the median income ($41,760 for single-earner households or $46,980 for a three-person, two-breadwinner households) can rent a two-bedroom apartment at $1,120 monthly. Moderate-income is defined as starting at 80% of median income; in San Jose, that is $55,680 for single-earners and $62,640 for two-income households; those salaries qualify teachers for a unit at $1,525 monthly. In short, those income qualifications may work for teachers who are both single and receiving salaries on the lower end of the pay scale. Those qualifications, however, may not work for married couples (unless teachers are married to freelance planning journalists). Teachers with seniority, who earn $60,000 and more, would not qualify. Public policy problems remain to be solved. Ridenour hinted that the nonprofit may not be entirely comfortable with a teachers-only building, and it wants to include other public employees, such as fire fighters. Despite problems, I think this is a good deal all around: for the district, the teachers, the community. I was originally intending on concluding this story with a prediction that major Silicon Valley employers would soon follow the example of La Honda-Pescadero, by purchasing or renting units for entry- and mid-level personnel. As is often the case, however, my light bulb flashed on long after someone else had the idea. Redwood City-based Oracle Corporation, one of the largest employers in the region, is reportedly planning to purchase about 300 apartment units in Foster City and Redwood Shores, which are among the few communities in the area where large-scale home building is taking place. I think it's a great idea, even if I doubt Oracle can buy enough units at this late date to make a big difference to its rapidly growing workforce of more than 10,000 people. Nonetheless, Oracle's home buying spree is eloquent testimony that business, as well as education, needs housing at all income levels. Maybe some non-profits should stand by the side of Highway 101, holding signs that say, "WILL PROTECT CALIFORNIA ECONOMY FOR HOUSING." I bet they would get some takers.

A state appellate court has rejected the argument of a landowner who claimed that the City of Fort Bragg was liable for losses suffered when the city approved an adjacent building. In 1997, the city granted a building permit to David Codling for construction of a two-story building on a vacant lot next to the Barracks Mall, a two-story structure with businesses on the ground floor and apartments above. The Barracks Mall had been built to the lot line, and the city allowed Codling to do the same — putting his new structure within inches of the Barracks Mall. The new building cut off access to light, air and a fire escape for second-floor apartments in the Barracks Mall. Soon, some tenants vacated their units; other tenants were told to leave by the property owner because of the lack of a secondary fire escape. In time, the lack of rental income left the owners, Douglas and Jill Sutherland, unable to pay their mortgage, and they lost the property to foreclosure. The Sutherlands sued the city under the Tort Claims Act (Gov. Code § 815.6), which makes a public entity liable for failing to discharge a mandatory duty. In this case, the property owners contended the city's Site and Architectural Review (SAR) Committee had a mandatory duty under the Fort Bragg Municipal Code to review Codling's proposed structure. The committee did not consider the application. Mendocino County Superior Court Judge Conrad Cox issued a judgement on the pleadings for the city. The Sutherlands appealed, but a unanimous three-judge panel of the First District Court of Appeal, Division Four, upheld the ruling. In an opinion written by Justice Patricia Sepulveda, the court contrasted "mandatory duties" with "administrative discretion," making clear that even the word "shall" does not alone support liability under the Tort Claims Act. The court cited Haggis v. City of Los Angeles, (2000) 22 Cal.4th 490, see CP&DR Legal Digest, April 2000, in which the state Supreme Court held the City of Los Angeles was not liable for landslide damages despite failing record a notice of substandard condition as required by city code. The court also relied on a case outside the realm of land use, Creason v. Department of Health Services, (1998) 18Cal.4th 623, in which the state was held not liable for failing to diagnose and report a minor's health condition. "Creason and Haggis stand for the proposition that even where language in the predicate enactment appears mandatory, if significant discretion is required to carry out any duty imposed, that duty is not mandatory within the meaning of section 815.6 and thus a breach of the duty will not support tort liability," Sepulveda wrote. In the Fort Bragg case, the city's municipal code mandates that SAR Committee perform certain functions. "But this mandatory language is coupled directly with subjective, general and advisory duties," Sepulveda noted. She cited municipal code language instructing the committee to encourage a "desirable environment" and to ensure the compatibility of development with its design concept. She also noted the committee's role is solely to advise decision-making bodies. "We conclude that the City's site and architectural review committee exercises administrative powers that are general in scope, vague in formulation and advisory in function; powers that qualify, in a word, as discretionary," Sepulveda wrote. The court also rejected the Sutherlands' argument that the city incurred liability for a mandatory duty under the Uniform Fire Code. " t is evident that the dominant, the overriding, and quite possibly the exclusive purpose of review of building plans by the SAR committee is aesthetic and scenic, rather than the preservation of access to light and air from vacant adjoining lots or preventing the obstruction of windows so they may be used as fire exits," the court held. Plus, the court ruled, while the city's fire chief has extensive discretion in interpreting the Uniform Fire Code, he does not have the authority to deny a building permit for a neighboring landowner. The Case: Douglas Sutherland v. City of Fort Bragg, No. A088919, 01 C.D.O.S. 340, filed December 19, 2000, ordered published January 10, 2001. The Lawyers: For Sutherland: Jone Lemos Jackson, (707) 962-0222. For Fort Bragg: Andrea Saltzman, Meyers, Nave, Riback, Silver & Wilson, (510) 351-4300.

The act of going downtown to see a movie is another great example of America's nostalgic relationship with its urban past — kind of like shoeshine boys, hopping onto streetcars, and tossing nickels at newsboys shouting headlines. Nostalgia aside, the post-war suburbanization of culture led to a downtown exodus not only of housing, offices, and retail, but also of cinemas. First, theatre screens popped up on the exurban fringe in the form of drive-ins. Eventually, twin theatres began appearing in malls and shopping centers, and ultimately in multi-screen configurations. This pattern left many a grand old downtown cinema to fend for itself – usually with poor results. California's best example of the decline of the downtown movie house remains beleaguered downtown Los Angeles, where the city's storied Broadway is littered with grand movie palaces that are listed on the National Register of Historic Places, nearly all of which are shuttered. The emergence of the new retail and entertainment downtown during the late 1980s has been accompanied by a return of movie screens to downtown – usually in multiscreen formats. But a counter-trend has also emerged, bifurcating the booming cinema exhibition business. Driven by consumer preference for choice and distributor preference for volume, the 1990s also saw the industry turn to giant, high-tech megaplexes: stadium seating, digital sound systems, and nearby parking structures. Some plexes have become so large that they often serve as anchors in there own right. And these projects are rarely placed in the built-out, under-parked, aging commercial districts of yore. Old downtowns do not fit the profile of most exhibitors. Meanwhile, a cinema screen niche market has emerged downtown, starting in Pasadena. In what was a daring move for the time, United Artists opened a modest cineplex in Pasadena's then-nascent Old Town area back in the late 1980s. That one development has since been considered by Pasadena observers to have been a crucial spark that ignited one of the most successful downtown shopping and entertainment developments in the state. Since that time, many a city hell bent on downtown revitalization has pinned all hopes on getting a cinema back up and running. And a small number of exhibitors have obliged them, particularly when public tax dollars helped grease the skids. So during the 1990s, many a downtown cineplex was built. Currently, there are probably more screens in the planning process in California's downtowns than at any time since the 1930s. But just as many downtowns have found a new life as retail and entertainment centers, the cinema exhibition industry has hit hard times. And that has placed many a project in jeopardy. For the downtowns that have not yet turned the corner, the struggles of movie houses could spell trouble. "The whole industry is in a major state of turmoil, making it difficult for new theatre deals to go ahead" says Roger Dale, Principal of The Natelson Company, an economic consulting firm based in Orange County. Indeed, during the last year, cinema chains such as Edwards, United Artists, General, and Carmike have all filed for Chapter 11 bankruptcy protection. Not surprisingly, overbuilding has been at the heart of the problem. According to industry officials, in 1995 there were 27,000 screens in the United States. At the end of 2000, the number had grown to 37,000 – a 37% increase. It's understandable that exhibitors were enticed into building – box office revenues have increased for nine years running. But the big losers are the big chains that weren't watching the niche markets closely enough. So, despite evidence that many recently-developed downtown cinemas are actually doing well, many cities are watching their screen dreams get cut. In mid-January, the City of Culver City was tripped up when American Movie Corporation pulled out of a 20-screen project in the Town Plaza project, a development the city has worked on for years, and one seen as necessary for Culver City's downtown revitalization. The City of Oxnard has lost at least two exhibitors it had lined up during its now three-year effort to get a downtown cineplex off the ground. According to Dale and other industry professionals, however, downtowns remain one of the niche markets where more theatre growth is possible. "One of the exhibitors doing well is the Krikorian chain, which sticks to smaller 12 to 14 screen venues, and takes advantage of redevelopment assistance" says Dale. Another successful player is San Rafael-based Century Theatres, a rapidly growing exhibitor with eight downtown theatres currently in the works, including San Mateo, Sacramento, and Albuquerque. Century spokespeople suspect that they are the nation's leading developer of downtown theatres, with 40% of their current projects in central business districts. According to Victor Castillo, senior vice president of corporate development at Century, the key to success downtown lies in the answer to four questions: 1) is there a newly opened, stadium seating cineplex in the trade area? 2) Is access to downtown easy? 3) Is there plenty of parking? 4) Does the downtown have something else going for it? "There are some downtowns that are so in the hole in terms of their situation that there needs to be a plan that goes beyond just putting in a theatre," Castillo says. Century executives, when considering a downtown location, visit the downtown, sampling restaurants and checking activity levels. "The momentum needs to be going in the right direction," says Castillo. As with many things in planning and development, success depends up on whom you work with. Despite a number of stalled or canceled downtown cinema projects in California, many downtown cinema projects may still be viable, particularly if the downtown is already showing other signs of life. Ultimately, it's the deal partner that may determine whether a community gets to live out its movie-going nostalgia, or whether those dreams will fade to black. Stephen Svete, AICP, is president of Rincon Consultants, Inc., a Ventura-based consulting firm.

While the regional housing needs debate drags on in the southern part of the state, the nine-county Association of Bay Area Governments is finalizing its Regional Housing Needs Determination for the 1999-2006 planning cycle. Although, ABAG's process of allocating 230,000 housing units to its jurisdictions has not been without bumps, it does not show signs of derailing. Only 10 jurisdictions appealed ABAG housing targets, with a decision due on those requests at the end of January. The apparent acquiescence of local planners could stem from ABAG's "blunt instrument" methodology, said Alex Amoroso, ABAG senior planner. "If you compare our process to what SCAG used, we didn't get off into a whole bunch of intricacies," Amoroso said. "In general, it was very straightforward. Jurisdictions new exactly where we were coming from." That does not mean local officials are satisfied. The Sonoma County Town of Windsor was among the appellants because ABAG did not consider local conditions, said Windsor Planning Director Peter Chamberlin. The city requested a housing target of about half its ABAG figure of nearly 2,100 units. The Town Council in Windsor, which incorporated in 1992, has made job growth a priority because Windsor is a bedroom community for Santa Rosa and Petaluma, Plus, voters have imposed a stringent urban growth boundary effective until 2017. "The citizens of Windsor want growth control. They want city-center development. They want to preserve the open space buffers and ag land around Windsor," Chamberlin said. The state Department of Housing and Community Development, however, does not acknowledge local growth controls. And planners at ABAG say they will grant appeals only if a jurisdiction finds another city or county willing to accept more housing units. "We're not going to take anyone else's numbers and we don't expect anyone else to take ours," Chamberlin responded. "They (ABAG) have steadfastly held the line because if they blink, then the whole house of cards falls down." Amoroso, a former local planner, is sympathetic. No one — from state officials to regional planners to local government leaders — likes the allocation process, he said. Still, planners need to decide how to accommodate growth that everyone knows is coming, especially in the Bay Area, where anti-growth sentiment runs hot, he said. Cathy Creswell, acting deputy director of HCD, said the issues are much more difficult in the ABAG region than in Southern California because the demand is overwhelming and the prices are sky high. Amoroso said his agency will help members prepare their housing elements before the state-mandated deadline of December 31. The organization is also working on establishing jobs-housing zones that could serve as examples for places that lack a good balance, he said. "I think there are a lot of jurisdictions that have not worked on their housing elements for a very long time," Amoroso said. Contacts: Alex Amoroso, Association of Bay Area Governments, (510) 464-7955. Peter Chamberlin, Town of Windsor, (707) 838-1021 Cathy Creswell, Department of Housing and Urban Development, (916) 323-3183. ABAG housing needs website: www.abag.ca.gov/planning/housingneeds/99rhnd.htm

A divided U.S. Supreme Court has limited the scope of the Clean Water Act by removing U.S. Army Corps of Engineers' jurisdiction over isolated waters and seasonal wetlands, such as vernal pools and ephemeral washes. Farmers, developers and property rights advocates hailed the ruling as an important limitation on intrusive federal regulation. Environmentalists decried the ruling as a step backward, although many observers said the decision's impact would not be as great in California because of extensive state environmental laws. The 5-4 ruling appears to mean that builders, farmers and local governments will no longer need a Corps of Engineers permit under § 404 of the Clean Water Act to fill in most wetlands. Since 1977, the Corps has interpreted the Clean Water Act to include jurisdiction over isolated water – in addition to traditional "navigable waters," such as streams, rivers and lakes. Under its 1987 "Migratory Bird Rule," the Corps clarified that its reach under the Clean Water Act (33 U.S.C. § 1344) extended to any wetland or isolated body of water that provides habitat for migratory birds or endangered species. But the high court ruled that Congress did not intend for the Corps of Engineers to have jurisdiction over nearly every body of water or wetland, no matter how small or temporary. "Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the ‘Migratory Bird Rule' would result in a significant impingement of the States' traditional and primary power over land and water use," Chief Justice William Rehnquist wrote for the majority. The court split in what is becoming its typical 5-4 fashion, with Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas voting to reign in federal authority. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined in a sharp dissent that called the majority's reading of the Clean Water Act "miserly." Robert Falk, co-chair of the Land Use and Environmental Law Group at Morrison & Foerster in San Francisco, said the ruling hits at federal agencies that have strayed far afield. "It's a message to regulatory agencies that when you make rules and regulations and so forth, you better stick pretty close to what Congress's stated intent was," Falk said. But Stephan Volker, an Oakland attorney who represents environmentalists, said that Congress clearly wanted isolated waters and wetlands protected. "The court turned its back on 30 years of precedent in favor of allowing local governments to fill in or otherwise degrade waterways that historically have been under the regulation of the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act," Volker said. "This ruling represents a major setback for wetlands restoration across the country." States can fill the regulatory void, although state and local governments have been reluctant to do so in the past, which is why Congress passed the Clean Water Act in 1972, Volker said. California is different from many states, though, because it has extensive environmental regulations, a system of Regional Water Quality Control Boards, and an active Coastal Commission that oversees wetlands near the coast. Plus, most of the vernal pools that dot the central valley and portions of San Diego County are known to contain an endangered species (the fairy shrimp), so regulation by the State Department of Fish & Game and even the federal Fish & Wildlife Service is likely to continue. "It may mean that the status quo in California does not change a lot," Falk said. But state law does not contain provisions for "citizen attorney general" lawsuits that seek to enforce regulations when government refuses, Falk noted. The Clean Water Act does allow citizen lawsuits to force compliance with the Act, a right the. Supreme Court itself upheld last year in Friends of the Earth v. Laidlaw, 528 U.S. 167 (see CP&DR Legal Digest, February 2000, December 2000). The ruling also raises endangered species issues because the Corps of Engineers' review of a § 404 permit application often provides the "federal nexus" that spurs review of potential impacts to protected species, said Brian Plant, of counsel to Sacramento's Remy, Thomas & Moose. Without the Corps "federalizing" a project, some projects' potential effects on endangered species could go unreviewed, said Plant, who called the ruling a "landmark decision." The decision could also mean that developers lose access to "Section 7" permits under the Endangered Species Act and instead have to seek "incidental take" permits under the Act's more cumbersome Section 10, which requires implementation of a habitat conservation plan. The case at hand involved a proposed landfill in Illinois. A consortium of 23 cities, called the Solid Waste Agency of Northern Cook County, sought to bury municipal waste at a 533-acre former sand and gravel mine on the border of Cook and Kane counties. In 1987, the Corps of Engineers exerted jurisdiction because about 30 acres of ponds on the site (the result of the abandoned mine) qualified as "waters of the United States." The solid waste agency moved through the regulatory process, acquiring permits from local and state agencies. But the Corps refused to issue a § 404(a) permit because the agency did not prove its proposal was the "least environmentally damaging and most practicable alternative," because the agency refused to set aside enough money to remediate leaks, and because the impact to sensitive species was unmitigable. The solid waste agency sued, challenging both the Corps' jurisdiction and the merits of the permit denial. A district court judge and the Seventh Circuit Court of Appeals both ruled for the federal government. But the Supreme Court reversed the lower decisions. In particular, the court took issue with the importance of failed 1977 legislation that would have limited the Corps' jurisdiction. The Corps argued that Congress's failure to pass the bill indicated that lawmakers accepted the agency's broad definition of "navigable waters" to include isolated, intrastate waters. "We conclude that respondents have failed to make the necessary showing that the failure of the 1977 House bill demonstrates Congress' acquiescence to the Corps' regulations or the ‘Migratory Bird Rule,' which, of course, did not first appear until 1986," Rehnquist wrote. "Where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result," Rehnquist continued. "This requirement stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority. This concern is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power." " e find nothing approaching a clear statement from Congress that it intended § 404(a) to reach an abandoned sand and gravel pit such as we have here," Rehnquist wrote. The high court looked favorably on the Corps' original, 1974 interpretation of "navigable waters," which emphasized a water body's capability to accommodate transportation or commerce, and not the Corps of Engineers' more expansive, 1977 interpretation, which led to the Migratory Bird Rule. In his dissent, Justice Stevens wrote that "simple common sense cuts against the particular definition of the Corps' jurisdiction favored by the majority." Stevens quarreled with the majority's reliance on the word "navigable," as he contended the term "navigable water" is "shorthand for waters over which federal authority may properly be asserted." Stevens put great weight in the failed 1977 legislation because Congress did pass a law that specified some exceptions to the Clean Water Act, such as stock ponds, irrigation ditches and temporary sedimentation basins on construction sites. "The legislative history of the 1977 amendments therefore plainly establishes that, when it enacted § 404(g), Congress believed – and desired – the Corps' jurisdiction to extend beyond just navigable waters, their tributaries, and the wetlands adjacent to each." Stevens said the majority was unfaithful to United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), in which the court upheld Corps jurisdiction over wetlands that abutted a navigable waterway. Moreover, Stevens wrote, the Commerce Clause of the Constitution, Art. I, § 8, cl. 3, supports the Corps' jurisdiction in this case. "The destruction of migratory bird habitat, like so many other environmental problems, is an action in which the benefits (e.g. a new landfill) are disproportionately local, while many of the costs (e.g. fewer migratory birds) are widely dispersed and often borne by citizens living in other States. In such situations, described by economists as involving ‘externalities,' federal regulation is both appropriate and necessary," Stevens wrote. In analyzing the decision, Plant, of Remy, Thomas & Moose, said that the definition of "adjacent" becomes significant, because the court appeared to uphold the Corps' of Engineers jurisdiction over wetlands and ponds adjacent to navigable waters. Falk added, "It is significant that the court didn't rule on a constitutional basis. It ruled on a statutory basis and a legislative-intent basis." Thus, Congress could extend the Corps' jurisdiction by passing a law similar to the Migratory Bird Rule, although Falk conceded that was unlikely under the current Congress and Bush administration. Environmentalist attorney Volker said the high court is moving toward dismantling many major statutes protecting the environment. Indeed, the court has already heard oral arguments this term in a case that could limit the Clean Air Act. The Case: Solid Waste Agency of Northern Cook County v. United State Army Corps of Engineers, No. 99-1178, 01 C.D.O.S. 269, 2001 Daily Journal D.A.R. 267, decided January 9, 2001.

Politically popular but ecologically suspect, habitat conservation plans (HCPs) have become a powerful tool for resolving conflict between human economic activities and the survival of imperiled plants and animals. Before 1994, only 20 such plans had been adopted. But since the Clinton administration figured out the potential for such agreements to avoid divisive clashes over the Endangered Species Act (ESA), the federal government has embraced them in a big way. There are now more than 300 HCPs nationwide. California is the leader in the development of these plans; the first in the nation was crafted in 1983 to protect the San Bruno elfin butterfly near San Francisco, and there are more than 80 adopted in the state. In recent months, however, a jurisdictional dispute involving the HCP process has flared, raising profound questions about the future of both land development and conservation efforts in and near California's rapidly urbanizing coastal zone. HCPs, first authorized by Congress in 1982, are voluntary agreements negotiated between the federal government and private landowners or state and local agencies. They allow private parties to obtain "incidental take permits" under ESA, authorizing them to unintentionally harm listed species in the course of otherwise lawful activities. In return, landowners agree to adopt specific protections for those species. A builder who wants to pave a meadow, for example, may be allowed to do so if he agrees to protect or reclaim a meadow somewhere else. A key element of the HCP agreement is that it grants the landowner a "no surprises" guarantee, assuring him that during the life of the agreement, new restrictions will not apply to the affected property even if additional species there are declared endangered or if the conservation plan should prove inadequate. The HCP has powerful political appeal. In theory, it provides a net benefit to wildlife and habitat while allowing development to continue, thereby promising something for everyone. It is no coincidence that HCPs soared in popularity after Republicans gained control of Congress in 1994 and mounted a strong campaign to substantially rewrite the ESA, which traditional GOP constituencies — farmers, developers, miners, loggers — regard as an intolerable impediment to their activities. By promoting HCPs, the Clinton administration sought to reconcile the rights of private landowners and the needs of imperiled species, thereby blunting attacks on ESA's integrity. During the two years after Republicans became the majority party in Congress, the U.S. Fish & Wildlife Service approved 196 HCPs, about 10 times as many as in the preceding 12 years. As HCPs have become more common, however, they have attracted strong opposition from environmentalists and conservation biologists. A common criticism is that the "no surprises" policy is politically expedient but scientifically suspect, given the complexity of ecosystems, the certainty of change in nature and the paucity of data about interactions between creatures and their habitat. The HCP negotiation process is frequently faulted for being secretive, and critics charge that HCPs often are based on incomplete scientific data or that they ignore science altogether. There is some independent support for these assertions. A December 1998 report by researchers at the University of Michigan's School of Natural Resources and Environment concluded that the public was being provided no meaningful opportunity for involvement in the HCP process. And a 1999 report by the American Institute of Biological Sciences and the National Center for Ecological Analysis and Synthesis at the University of California, Santa Barbara, concluded that HCPs typically rest on shaky scientific ground. The study found that HCPs lack quantitative assessments of the actual harm they will allow to listed species, and that they make no provision for evaluating results. Nevertheless, legal challenges to HCPs have been rare. Only twice have courts ordered federal officials to rewrite them, the most recent such ruling coming this summer in a suit brought to overturn an HCP for Sacramento's Natomas Basin. The controversy rose in pitch during October when the California Coastal Commission —asserting that poorly crafted HCPs may authorize ecological damage that violates the state's 1976 Coastal Act — demanded a role in the process. Typically, the California Department of Fish and Game (DFG) has represented state interests during HCP negotiations. Peter Douglas, the Coastal Commission's executive director, proposed last year in a letter to federal officials that commission staff be involved in drafting HCP agreements and that the commission be allowed to review HCP permits for compliance with the state's Coastal Act. His argument is that the federal Coastal Zone Management Act grants the commission a role in federally regulated activities that affect the coastal zone — including HCPs and offshore oil leases — even if the activities extend outside the zone. The commission voted at its October 11 meeting to support Douglas's proposal, asking the U.S. Department of Commerce — which is involved in the HCP process through its Office of Coastal Resources Management — to order that the commission be consulted whenever an HCP is being prepared. Such routine notification already is the case in 10 states. That move set off a turf war. Michael Spear, operations manager at the U.S. Fish & Wildlife Service's California-Nevada office, sent Douglas a letter saying that involving the Coastal Commission would "have a chilling effect" on the willingness of landowners to participate in the HCP program. The development community — which battles continuously with the rigorously protective Coastal Commission — predicted calamity if that panel were allowed to interfere. The DFG also resisted the commission's effort to get involved. State Resources Secretary Mary Nichols, whose agency encompasses DFG and the Coastal Commission, entered the fray as peacemaker, trying to persuade the commission to back off. She failed, although the commission agreed in December to wait a month before taking additional action. That set up a potential showdown between the commission and the Department of Commerce this month, when the latter is to rule on the consultation request. Environmental groups are frantically lobbying Commerce Secretary Norman Mineta because they assume the Bush administration will be less sympathetic to coastal protection than the Clinton administration, although Texas is among the states where routine notification is the rule. Although many HCPs provide clear ecological benefits, the ruckus lends credence to the suspicion that HCPs are primarily political tools, rather than a biologically sound mechanisms to ensure conservation of rare species. Involving an entity such as the Coastal Commission — which has its own popular mandate in the 1972 voter-approved initiative that established it — might slow down the process, but HCP proponents place themselves in an awkward position when they assert that public scrutiny and conformity with state law are impediments. However the turf war is resolved, it appears certain that the use of HCPs is going to receive more scrutiny in the future than it has during the past decade. Contacts: Michael Spear, USFWS, (916) 414-6464 Peter Douglas, California Coastal Commission, (415) 904-5200 Mary Nichols, California Resources Agency, (916) 653-5656

The standard saying among retail analysts in the past month is that "this is a tough Christmas." Even though incomes are going up, retailing is off. Kmart has closed dozens of stores nationwide. HomeBase has gone out of the home improvement business (focusing on home furnishings instead) in order to duck direct competition with Lowe's and Home Depot. Two of the biggest movie theater chains have gone under, and most of the others are teetering on the verge of bankruptcy. Home Depot's third-quarter earnings were down, and its stock price dropped by more than half during the year 2000. Even Wal-Mart's business is off. So you might think that California's retail wars are on the wane. Think again. Engaged in cutthroat competition, the big boxes actually appear to be stepping up their efforts to saturate local markets throughout the state. Engaged in equally cutthroat competition, cities are still throwing out the welcome mat to try to lure the retailers. San Dimas recently committed $2.8 million to underwrite a 150,000-square-foot Lowe's store that will bring the city $400,000 annually in sales tax revenue. In other words, even as a probable recession approaches, California's dense thicket of affluent metropolitan suburbs remains a Mecca for retailers. And for most cities, the "big box" remains the Holy Grail. Not surprisingly, the push to kill big boxes is growing as well. In the last few months, Home Depot has gotten walloped twice in attempts to build a bigger store near a smaller, existing store. Ontario turned down the company's plan to replace its current Upland facility, and Ventura did the same thing (though a new store is being constructed less than five miles away in Oxnard). But if the recession does not slow the big boxes in 2001, then labor unions might. At the same time local neighborhood and community activists have stepped up their opposition to big boxes, unions have increased their commitment to the cause as well — especially if the big box in question is likely to sell groceries. Generally speaking, retail workers are not unionized. But grocery workers are represented by large and important unions, such as the United Food and Commercial Workers. As big-box discounters, especially Wal-Mart and Costco, move into the grocery business, UFCW is becoming a major force in opposing construction of new big-box stores. Nationwide, UFCW has targeted Wal-Mart in particular, characterizing it as a company that promotes poor manufacturing conditions in Third World nations and engages in predatory attacks on small retailers and small communities in the United States. It is no coincidence, of course, that Wal-Mart is moving quickly into the grocery business. Next year the company will build 80 "superstores" that sell groceries and 15 to 20 smaller "neighborhood market" grocery stores. In California, UFCW and other unions within the AFL-CIO are, increasingly, using all the political muscle they can muster to oppose construction of new Wal-Marts and Costcos. The most famous incident occurred in the fall of 1999, when a bid to prohibit local government from approving big boxes that sell groceries suddenly landed on Gov. Gray Davis's desk at the end of the legislative session. Wary of signing a bill that had not gone through regular hearing processes, the normally pro-union Davis vetoed it. The veto may have discouraged the unions from using the Sacramento "juice bill" approach in the future. But it has not discouraged them from moving into local jurisdictions to try to block grocery big boxes. Union-driven anti-big box ordinances are on the table in many liberal jurisdictions throughout the state. The City of Los Angeles has been considering an ordinance that is virtually identical to the vetoed state law. So has the college town of San Luis Obispo, which has been considering a Costco, and the union stronghold of Martinez, which has been reviewing a Wal-Mart. It's a predictable strategy: Failing to obtain a state law, the unions are now seeking local ordinances in liberal strongholds that are also "hot spots" for the issue, hoping that more mainstream cities will adopt such ordinances in the long run. The truth is, most land-use planning issues percolate through California in exactly this fashion. But is this really a land-use issue? Unions often line up with neighborhood and community activists in opposing big boxes because of their size, their impact on the community, and the possibility of their predatory attacks on small retailers. But the ordinances under consideration — like the bill that Gov. Davis vetoed in 1999 — have a very specific purpose related to the vested interests of unionized grocery workers. The ordinances are not designed to prohibit the construction of big boxes or even to encourage patronage of local stores. They are narrowly designed to use the land-use approval process to prohibit non-union companies from selling groceries. Under the proposed ordinances, a 150,000-square-foot store that does not sell groceries — that is, a conventional Wal-Mart — would be fine. An 80,000-square-foot store that sells mostly groceries — that is, a conventional Safeway or Ralph's — would be fine. Does anyone really believe that if Wal-Mart's workers were unionized, the United Food and Commercial Workers would care at all about the land use and community implications of big boxes? It's a typical impulse to use the land-use planning system to protect some social or economic value that is held dear by an entire community or even by one vested interest. But it's very difficult to put this impulse into practice without a wide array of weird side effects. Many of our state's most liberal municipalities — such as Santa Cruz and Davis — have had knock-down, drag-out battles over whether to allow retail chains into their communities. In the end, the chains have come in — for the simple reason that it is almost impossible to use California's land-use regulation system to differentiate among types of business ownership. And that's as it should be. It is an article of faith in land-use planning that you can control the building —you can regulate its size and shape and its relationship to other buildings — but you can't really dictate which businesses the building houses. When land-use restrictions are crafted to pursue a narrow agenda, the community at large usually suffers. For unions and neighborhood groups, it might make sense to try to unionize Wal-Mart employees or encourage communities to boycott big boxes that sell groceries. But seeking to cripple non-unionized companies by blocking them at the planning counter is an activity that's probably doomed to failure.

The state Supreme Court has sided with builders in a case regarding construction defect liability. In a 5-2 decision, the court held that homeowners cannot sue for economic losses in cases where no property damage or personal injury has occurred. The ruling was a definite victory for the development industry. Builders for years have complained about the burden of construction defect liability, and they have blamed negligence lawsuits for their inability to construct condominiums and townhouses. Associations of condominium and townhouse owners have brought many of the lawsuits. However, few people said that the decision would result directly in increased production of shared-wall, for-sale homes, which are often seen as a "smart growth" solution to the state's housing shortage. The decision could bring some insurance companies back to the California market because the ruling stabilizes the types of damages that homeowners can pursue in court, said Nick Cammarota, general counsel for the California Building Industry Association. The lack of insurance available to builders has depressed condominium construction, he said. Newport Beach consumer attorney Thomas E. Miller agreed that the decision's implications for condominium construction appear limited. "I don't think it's going to change things that much. I still think they see a significant exposure there," Miller said. Two lawsuits were filed in 1996 against developer William Lyon Company. One was filed by the owners of single-family homes in the Belle Fleur subdivision in San Diego's Carmel Mountain Ranch. The other was filed by the homeowners' association responsible for managing and maintaining the Provencal condominiums, also in Carmel Mountain Ranch. The plaintiffs in each case alleged they suffered from a wide variety of construction defects. They asserted causes of action for negligence, strict liability and breach of implied warranty. The single-family homeowners also alleged breach of contract and express warranty, and they sought damages for loss of property value. After extensive oral arguments, the trial court dismissed the tort claims in both cases that were based on alleged defects that had not caused any actual property damage. The Fourth District Court of Appeal upheld that ruling. Now the state Supreme Court has also upheld the ruling. Writing for the court's majority, Justice Kathryn Werdegar held that construction defects that do not cause actual harm to people or property do not meet legal criteria for negligence lawsuits, even if the defects would appear to threaten safety. "Whether the economic loss rule applies depends on whether property damage has occurred rather than on the possible gravity of damages that have not yet occurred," she wrote. Justices Melvin Baxter, Janice Rogers Brown, Ming Chin and Joyce Kennard joined Werdegar's opinion. But Chief Justice Ronald George issued a lengthy and sharp dissent. "I conclude … that a homeowner may maintain a cause of action in negligence to recover the costs of correcting the most significant building safety code violations conceded in this litigation (e.g., shear walls that were improperly constructed or fastened and that put the structure at risk of collapse during high winds or an earthquake; improperly constructed fire walls that would allow a fire to spread rapidly from one part of the structure to another), but that have not yet manifested themselves in physical damage to the property or resulted in personal injury," George wrote. Justice Stanley Mosk issued a separate dissent. Cammarota, of the CBIA, said that the decision does not change the playing field for litigation a great deal. The decision "tends to uncover, or expose, the scam that has been going on with the trial lawyers when they file their preliminary list of defects, which is a list of horrors that can happen but have not yet happened," he said. Miller, author of the book Handling Construction Defects in the Western States, said the case does not appear to be a major loss for consumers. Because the ruling eliminates some categories of defects, it could mean that lawsuits get settled quicker, he said. Most construction defect lawsuit are settled before going to trial. Several independent analysts contacted by CP&DR declined to speculate on the record about the decision's impact. One analyst said it appeared to be "a rather substantial decision," and another called it "huge." Paul Tryon, of the Building Industry Association of San Diego, told the San Diego Union Tribune that this decision alone would not spur a resurgence in condominium construction. All members of the state's high court appeared to agree on the need for state lawmakers to intervene. "In our view, the many considerations of social policy that this case implicates, rather than justifying the imposition of liability for construction defects that have not caused harm of the sort traditionally compensable in tort, serve instead to emphasize that certain choices are better left to the Legislature," Werdegar wrote. "That body has at its disposal a wider range of options and superior access to information about the social costs and benefits of each." Bills seeking to limit construction defect liability have become staples of recent state legislative sessions, but none has passed yet. Still, builders have vowed to lobby the Legislature again this year. On the other hand, Miller said consumer advocates would likely press for legislation that allows lawsuits for any building code violations, regardless of damages. Builders must be held accountable for shoddy construction before someone is injured, he said. The Cases: Alan O. Aas v. Superior Court of San Diego County; Provencal Community Association v. Superior Court of San Diego County, No. S071258, 00 C.D.O.S. 9607, 2000 Daily Journal D.A.R. 12831, filed December 4, 2000. The Lawyers: For Aas: Steven Strauss, Procopio, Cory, Hargreaves & Savitch, (619) 238-1900. For Provencal: Duane Shinnick, Silldorf, Shinnick & Duignan, (619) 239-5900. For Lyon: Gregory Dillion, Newmeyer & Dillion, (949) 854-7000.

A Los Angeles County judge has invalidated an Orange County ballot initiative intended to block an airport at the former El Toro Marine Corps base. Superior Court Judge James Otero ruled that Measure F, which voters approved 2-1 in March 2000, was "fundamentally flawed and in violation of the constitution and laws of this state." Measure F required two-thirds voter approval for construction or expansion of airports, hazardous waste facilities or jails. Otero held that such a requirement "greatly impairs or wholly destroys essential government power." He ruled that the Legislature has given Boards of Supervisors exclusive authority to decide on airports. Additionally, Otero held that Measure F violated the single-subject rule, and that airport opponents should have sought repeal of Measure A from 1994, which rezoned El Toro for use as a civilian airport. After the early December decision, airport opponents said that they would both appeal the ruling and move forward with a ballot measure that repeals Measure A. The case is Citizens for Jobs and the Economy v. County of Orange, No. 00CC03205.

Steven Nissen became acting director of the Governor's Office of Planning and Research in April 2000 and the appointment has since become permanent. Besides advising the governor and carrying out his interests, OPR provides assistance to local government on land use planning issues. The office is responsible for preparing CEQA Guidelines and General Plan Guidelines, and it operates the state clearinghouse for environmental impact reports. Besides his role at OPR, Nissen serves as a governor's special assistant for innovation in government. Before joining the Davis administration, he was executive director of the State Bar for two years. Earlier, Nissen was a partner in the law firm of Manatt, Phelps & Phillips and served as executive director of Public Counsel, a large pro bono law office. CP&DR: You freely admit that you're not a land use expert. So why are you at OPR? Nissen: When I came here I think I was viewed by the governor as kind of a utility person, and indeed I continue to wear a number of different hats. I set up the efficiency in government office and for about 6 months I was his staff director. During that time, I was in charge of a number of interagency project teams that brought various agencies together. I don't come here totally without a land use background, but admittedly I am not an expert. I did some real estate cases back when I was in private practice. … I think fundamentally there is a relationship between local jurisdictions and the state that is broken for a number of reasons. And one of the first things I want to do is establish healthy lines of communication. CP&DR: How do you go about that? Nissen: Yesterday, for example, we brought together representatives of local jurisdictions, the state and federal government to look at what together we can do on electricity consumption and load sharing and other things. Really for the first time we brought together these people to deal with what kind of contributions we can make. Those public agencies probably account for 5 to 6% of all peak consumption in the state, and we had never sat down and talked to each other. … At the end of the day, even though when we approach Stage 2 alerts and there is a statewide announcement, people feel it in their neighborhoods. There's a broken communication tree to locals and we're trying to fix that. CP&DR: What are your goals for OPR? Nissen: I'd like to see us help build a GIS system available to local jurisdictions with a goal that local jurisdictions use compatible GIS systems so that both the state and local jurisdictions can see what impacts land use decisions have statewide and regionally. I think it's an ambitious undertaking. But our land use planning will only be as good as the information we have. We have started to beef up our group of planners. When I got to the Office of Planning and Research we had one planner. … We want to offer proactive assistance to local jurisdictions. We are not a regulator. We can be a facilitator. It puts us in a unique position in government. We're also the "R" part — the research arm for the governor. We have a legislative function and we have statutory functions. … We also have a number of other charges that are not necessarily related to planning or to one another. Each year it seems like OPR picks up one or 2 more statutory duties, such as coordinating duties among agencies. We want to incent regional planning efforts. The projected growth for the state in the next 20 years is the addition of at least 12 million people. We're all in this together. If we don't plan intelligently under the narrow confines of one local jurisdiction pitted against another, we're not going to accommodate the jobs and housing for those 12 million people, and maintain quality of life and public services we expect. CP&DR: How do you get that collaboration? Nissen: I'm hoping in the year to come we will have a number of comprehensive planning, or "smart planning," sessions so that we can sit down and find common ground. It won't be a dictate from this office. But what we are doing is not working. You are not going to get a groundswell of support to develop in a sprawling fashion. CP&DR: Your office has sent letters to most cities and counties requesting that they file annual progress reports and update old general plans. Why is this a priority? Nissen: It is the law, and we're not asking for blind adherence to the law. It's a law that made sense at the time of its passage and it continues to make sense today. You can't get good regional planning without good local planning. It really starts with the basic tenet that your general plans need to be updated. And you have to give it a level of priority comparable to figuring out how you're going to get your water tomorrow, and your sewer and your electricity. … It is the fundamental building block. CP&DR: What do you do with the updates and status reports? Nissen: Obviously, we have to be selective in our responses to them because we don't have a large enough staff to go through them with a fine toothed comb. The grand plan down the road is, much like the notion of the GIS data, to … overlay all of these general plans to ensure that the whole is truly the sum of the parts. CP&DR: What did you hear from local planners? Nissen: It was distressing that there was a significant negative reaction to asking locals to comply with the law. So we sent out a subsequent communication to offer assistance to jurisdictions that were out of compliance and to be as customer-friendly as possible. I've heard mostly positive comments. There's no doubt that the issue that leads every discussion is money. But once we get past that, there is interest on the part of locals in working regionally and with the state. We're all impacted when we are stuck in traffic for hours. CP&DR: The OPR environmental goals and policies report is supposed to be updated every four years, but it has not been updated since 1978. Are you going to tackle that one? Nissen: There is a commitment to produce an EGPR pursuant to our statutory requirement to do so. The statute requires such a report be produced every four years. The timing of ours will be dependent, among other factors, on availability of adequate staff to produce a useful report. I envision the report containing accessible data, indicators and measurements. Ideally, the report will also be in electronic form so that the data it contains will be updated as new information becomes available. CP&DR: You're talking about facilitating regional cooperation and gathering a great deal of data in a usable way. Is that too much for a small office to bite off? Do you have a timeline for these projects? Nissen: I don't think it's too much to bite off because it has to be done, and it's too dangerous for all of us not to do it. In terms of a timeline, look, we're all dealing with limited resources, OPR included. It is an ambitious project and OPR is the place to do it. But much of the timeline will be dictated by how committed cities and counties — and the associations that work with local jurisdictions, as well as the other stakeholders, environmentalists and developers — are to a well-planned state of California. CP&DR: Where does private sector fit in? Nissen: I think, as in everything, the private sector is crucial. For these smart planning concepts to be successful, they do have to pencil out. They have to be attractive to people who build homes. They have to make sense to lenders who provide the capital that makes projects possible. CP&DR: You've mentioned that the Davis administration does not use the term "smart growth." But the administration seems to advocate many of the concepts often included in definitions of smart growth. Nissen: In the language used in the budget, particularly in the local budget section, there is a recitation of principles for development that has become known as smart growth. But it has become a loaded term that may not be appropriate for California. CP&DR Managing Editor Paul Shigley interviewed Steve Nissen in mid-December.

A divided California Supreme Court has upheld a state law that allows religious institutions to exempt themselves from historic preservation ordinances. In a 4-3 ruling, the court found that the exemption — which applies only to noncommercial property owned by religious institutions — violated neither the First Amendment's free exercise clause, nor the state constitution's establishment clause. "These exemptions simply free the owners to use the property as they would have done had the property not been designated a historical landmark," Justice Marvin Baxter wrote for the majority. Justices Janice Brown, Ming Chin and Joyce Kennard joined the opinion. The court majority was met with strong dissents by Justice Stanley Mosk and Kathryn Werdegar, the latter of whom was joined by Chief Justice Ronald George. "Hundreds, if not thousands, of buildings are vulnerable," Elizabeth Merritt of the National Trust for Historic Preservation told the Los Angeles Times. The majority's ruling not only allows religious institutions to avoid certain zoning regulations, it also throws into question the future of many historic structures in the state. But state attorneys who defended the law said churches are different than other landowners. They argued that the law removed a potential infringement on religious expression. At issue are provisions in Government Code §25373, subdivision (d), and §37361, subdivision (c), which the Legislature passed as temporary measures in 1993, and made permanent in 1994. The law prohibits the application of local landmark preservation ordinances to noncommercial property owned by a religious entity if the owner objects to the local regulation. The Government Code sections themselves do not actually exempt any property; they only establish the framework for owners to get the exemption. Several nonprofit development and historical preservation organizations, and the City and County of San Francisco challenged the law. (Ironically, then-speaker Willie Brown carried the legislation to assist a San Francisco church.) The plaintiffs argued that the law violated the First Amendment by conferring a benefit only on religious organizations, providing significant economic advantages to religious groups at the expense of secular property owners. The plaintiffs also argued that the law improperly gave government authority to religious groups, which can essentially approve their own exemptions. The plaintiffs further contended that the law violated the "no preference" provision of Article 1, §4, of the state constitution, and Article XVI, §5, which bars government aid to religious institutions. Sacramento County Superior Court Judge Joe Gray ruled that the law violated both the state and federal constitutions. But the Third District Court of Appeal reversed that decision. The appellate panel ruled that the exemption did not endorse religion; it merely facilitated the efforts of religious organizations to advance their purposes. The state Supreme Court upheld the appellate court ruling. First, the state's high court applied the "Lemon test" derived from U.S. Supreme Court decisions in Walz v. Tax Commissioner, (1970) 397 U.S. 664, and Lemon v. Kurtzman, (1971) 403 U.S. 602. Under the Lemon test, a law passes First Amendment muster if it has "a secular legislative purpose," if its primary effect "neither advances nor inhibits religion" and if it does not "foster an excessive government entanglement with religion." The court ruled that the law passed all three prongs of the Lemon test. "Although application of a landmark preservation law to property owned by a religious entity does not violate a religious entity's free exercise rights, insofar as they law may burden that right, an accommodating exemption is a proper, constitutionally permissible, secular purpose," Justice Baxter wrote. "The exemption in question here seeks only to relieve religious entities of a potential burden on free exercise." As for advancing religion, the court held, "The only impact of the exemption is that the owner may continue to use the property as it sees fit (subject to other applicable laws) to further its religious mission unrestricted by the historic preservation law. … That the owner may enjoy an economic advantage over secular owners of landmark properties is not relevant." Finally, the court held that the law did not create any entanglement, or even any relationship, between religious institutions and the government. The court then addressed challenges based on the state constitution. "We do not believe … that the protection against the establishment of religion embedded in the California Constitution creates broader protections than those of the First Amendment," Baxter wrote. Neither the language in the state's "no preference" clause nor the legislative history "supports plaintiffs' argument that the clause bans governmental accommodation of religion or religious belief in general," Baxter continued. Nor did the law provide aid to religious institutions as defined in the state constitution and interpreted in California Educational Facilities Authority v. Priest, (1974) 12 Cal.3d 593, the court majority ruled. "While there may be a benefit as compared to properties that are subjected to landmark designation, neither the state nor the local governmental entity expends funds, or provides any monetary support, for the exempted property or its owner," Baxter wrote. In their dissents, Mosk addressed the state constitution, and Werdegar the federal. "This is an easy case," Mosk wrote. " he Legislature has conferred on religious organizations a governmental power that is not enjoyed by other property owners. Such favoritism toward religion is prohibited under out state constitutional provisions forbidding the establishment of religion, the preference for religion, and aid to religion." Mosk wrote that the state constitution is "analytically distinct and more protective of the principle of church-state separation than the First Amendment." Thus, the Lemon test should not control this case, he wrote. And he railed against the majority for basing its decision on the speculative burden of historic preservation laws. " t is not enough that local historic landmark preservation laws might in some conceivable situation impose some burden on a religious organization, however insignificant and however unrelated to a religious mission," Mosk wrote. "The majority's flawed approach could be used to justify exempting religious organizations from any neutral law of general applicability." Werdegar called the exemption a "drastically overbroad measure," that was inconsistent with the First Amendment. " he challenged provisions … go far beyond a reasonable accommodation of the exercise of religion and, as a practical matter, grant a significant, unjustified and preferential benefit to religious organizations." Historical protection advocates said that they might ask the U.S. Supreme Court to review the decision. The Case: East Bay Asian Local Development Corporation v. State of California, No. S077396, 00 C.D.O.S. 10114, filed December 21, 2000. The Lawyers: For East Bay: Zane Gresham, Morrison & Foerster, (415) 268-7145. For San Francisco: Kate Stacy, deputy city attorney, (415) 554-4617. For the state: Louis Verdugo Jr., assistant attorney general, (213) 897-2177.

A 2-2 vote on an environmental impact report is not enough to certify the document, the Fourth District Court of Appeals has ruled. The California Environmental Quality Act requires that the elected body make an affirmative decision on environmental documents, the court held. In this case, the Orange County Board of Supervisors, after one member recused himself, voted 2-2 on an EIR for a proposed 705-unit mobile home park. The county then determined that the Planning Commission's certification of the EIR, which had been appealed to supervisors, remained in effect. But in an artfully written opinion, Fourth District, Division Three Presiding Justice David Sills said no. " board cannot validly provide for an approval of an EIR by tie vote. In doing so, it would be circumventing the protections provided by CEQA to expose elected decisionmakers to the political consequences of any decision to certify an EIR," Sills wrote. "There is sort of a grand design in CEQA: Projects which significantly affect the environment can go forward, but only after the elected decisionmakers have their noses rubbed in those environmental effects, and vote to go forward anyway." In 1996, California Quartet, Ltd., proposed a 705-unit mobile home development on 222 acres in Trabuco Canyon near St Michael's Abbey and the Ramakrishna Monastery. Orange County prepared an EIR that identified a number of significant impacts, including adverse air quality, loss of certain habitats, conflict with wildlife movement corridors, viewshed alteration and nighttime glare. In December 1997, the county Planning Commission certified the final EIR. The Vedanta Society of Southern California, which owns the monastery, appealed the decision to the Board of Supervisors. Two months later, the Board of Supervisors conducted a public hearing from which Supervisor James Silva recused himself. The remaining four supervisors split 2-2 on the EIR. However, Supervisor Thomas Wilson, acting as board vice chairman, declared that the tie vote meant that the Planning Commission's decision had been upheld. The Vedanta Society sued, seeking a declaration that the Board of Supervisors never decided on the appeal and did not ratify the Planning Commission's action. Meanwhile, California Quartet revised its project to call for 299 single-family houses. The Board of Supervisors then decided on a 3-1 vote that the project revision did not trigger the need for a subsequent EIR and that an addendum would suffice. That decision produced another lawsuit from the Vedanta Society and St. Michael's Abbey, and a suit from three environmental groups. The three lawsuits were consolidated in 1999. Orange County Superior Court Judge Robert Thomas ruled that the tie vote was the same as taking no action on the Vedanta Society's appeal; thus, the EIR was never validly certified. Judge Thomas also directed the county to set aside all approvals regarding the 299-unit project. On appeal, the developer and the county argued that, under CEQA, the default result of a tie vote was adoption of the planning commission's findings and explanations. They also argued that under the county's internal procedures the tie vote meant the Planning Commission decision was upheld. Finally, they argued that supervisors' 3-1 vote not to require a subsequent EIR was an affirmation of the original EIR. The unanimous three-judge panel of the Fourth District rejected all three arguments. The court held that CEQA and its Guidelines (California Code of Regulations, Title 14, §§15000) required the Board of Supervisors to make an "affirmative explanation" and adopt its own findings. "The very fact that ‘findings' (including a Guideline 15091 (a) explanation) must be made at all is incompatible with the nature of a tie vote. A tie vote … cannot constitute an affirmative act de novo," Sills wrote. "In effect, CEQA requires not only de novo review by a board of supervisors, but de novo fact finding as well." Sills continued, "Elected decisionmakers faced with appeals under CEQA from unelected bodies thus do not have the luxury of playing Hamlet. … Inherent in a consideration and finding requirement is that the body of elected decisionmakers must take unambiguous action, and unambiguous action means decisionmakers cannot be evenly divided against themselves. In CEQA terms, they have no alternative to taking arms against the troubles identified in the EIR; they do not have the option of suffering them silently." The court found that if the county had a policy allowing EIR approval on a tie vote, it would not be allowed under CEQA. The court also held that the 3-1 vote against requiring a subsequent EIR meant little. "As we have explained above, this EIR was never validly certified. A vote to allow an addendum made on the assumption that it already was certified cannot substitute for a vote certifying the EIR in the first place," Sills wrote. The court pointed out that its decision did not apply to tie votes in non-CEQA cases. It also did not address consequences of failing to adopt the EIR. Pointing to Sunset Drive Corp. v. City of Redlands, (1999) 73 Cal.App4th 215, (See CP&DR Legal Digest, August 1999), in which the court held that a city could be liable for damages under the federal Civil Rights Act for not completing a required EIR, Sills wrote, "We simply note that a developer is not without remedy for a lead agency's failure to certify an EIR because it deadlocked on a vote." The Case: Vedanta Society of Southern California v. California Quartet, Ltd., No. G026580, 00 C.D.O.S. 8762, 2000 Daily Journal, D.A.R. 11559, filed October 30, 2000. The Lawyers: For Vedanta Society: Edmond Connor, Connor, Culver, Blake & Griffin, (949) 622-2600. For California Quartet: William D. Ross, (213) 892-1592. For Orange County: Robert Break, Latham & Watkins, (714) 540-1235.