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.

The Swiss Army knife is the ideal present for boys, especially those from nine to eleven years old. That's the age when every boy believes that all he needs to be a consummate survivalist is his natural pluck and one of those elegant, red, compact tools bouncing jauntily on his belt. Far from a mere blade, even a fake version of the Swiss Army package contains a pair of scissors, a nail file with a screw-driver tip, tweezers and a toothpick. With a tool like this, you could fight off an assailant, clean a fish or even assemble a desk from IKEA. Without one, you're a wallflower among the Webelos. If any building has earned the right to be called the Swiss Army Knife of urbanism, it would be the ingenious, five-level structure in downtown Burbank known as Media Village. Under a single roof, the building combines a low-income senior housing complex with 147 apartments, a public parking structure for 500 cars, a popular nightclub with live music, a ballet school, a Brazilian restaurant, and a store that sells golf equipment. Additionally, architect Mark Gangi — vice president of design of the development firm, Gangi Development of Glendale — has carved out several sensitively-scaled plazas just off the sidewalk that should fill up with people when the area has enough pedestrians. In short, the Media Village building is a "city in the box" that contains damn near everything you need for a lively downtown area. Media Village is a centerpiece of the restoration — perhaps creation is more accurate — of downtown Burbank. Making downtown happen in Burbank has been slow and difficult; Johnny Carson's infamous jibes at "beautiful downtown Burbank" were inside jokes. Everybody in the NBC Studios knew that Burbank had virtually no downtown at all, except some diners, a retail strip and a few civic buildings. The main retail attraction was the Golden Mall, which had the novelty of being a pedestrian-only shopping street. Like the old Third Street mall in Santa Monica, it failed from a lack of foot traffic. In his Los Angeles: The Architecture of Four Ecologies, the late Reyner Banham predicted the mall would fail because it was a single, linear strip, rather than an entire urban district; perhaps the mall seemed too anomalous or too inconvenient in a landscape of park-in-front retail. Even without the Golden Mall's unique problems, making a downtown for Burbank meant overcoming extraordinary obstacles. The map of Burbank is radically decentralized; the city has at three different grids. Interstate 5 and the Metrolink commuter-rail line plow through the center of town, disrupting much of the street continuity, except for a small number of major thoroughfares, most of which change direction several times. (The present writer, who is dyslexic in way-finding and easily disoriented in the car, actually refused to drive in Burbank for many years.) The city's business culture is also split. The film studios are located to the south, and the aerospace industry and the Burbank-Glendale-Pasadena Airport to the west. The civic center is not close to either business cluster. Worse, Interstate 5 isolates downtown from much of the rest of the city. Visitors must cross a freeway overpass to reach downtown, which feels of isolated. If downtown is isolated, the city has had both the tax base and the active civic leadership to hang in there with a quixotic project like making a downtown nearly from scratch. Burbank is one of a number of self-made California communities that could be called "redevelopment cities." (San Jose, Long Beach and Anaheim also fall into this category.) These are cities that have big dreams of being important places. Sometimes such cities have big chips on their shoulders; they feel slighted for being seen as industrial, or outdated or otherwise unglamorous. They seem almost hell-bent on making something happen in their downtown areas and tourist destinations. Burbank's downtown is an early case history of entertainment-driven redevelopment. After the failure of the Golden Mall in the early 1980s, the city in the mid-1980s opened one of the first multiplex cinemas in the region, which became a "destination" and which has added screens incrementally ever since. By the late 1980s, the city had won voter approval to build a regional mall to compete for what the city perceived as lost sales-tax revenue flowing to malls in nearby Glendale and Sherman Oaks. The second phase of downtown redevelopment, equally commercially but friendlier to people on foot, was a power center anchored by IKEA and Virgin Records. While obviously designed for cars, this power center also had sidewalks and tried to approximate something like a shopping street. The third phase of downtown (I am simplifying the sequence here somewhat) has been the transformation of the Golden Mall into an eight-block, mixed-use district known as Burbank Village, which is the setting of the Media Village building Located immediately east of the power center, the village is built on the vestiges of the original downtown Burbank, and, as such, has the built-in advantages of a traditional street grid and existing commercial structures. Cartoon Network, for example, occupies a four-story building originally used by the telephone company. Ironically, Burbank officials made the area more attractive to pedestrians by re-introducing vehicular traffic to the formerly vacated streets, and supplying public parking, most notably in the present project. Parking, the bane of urbane design, once again becomes an engine of pedestrian activity. Media Village itself has a rational design that some people find hard-edged and lacking in charm. It is a large building, covering most of a city block with 55,000 square feet of retail space on the ground floor alone, yet it is not out of scale with its multi-storied neighbors. For all its many uses, the building feels very much like one building. If anything the architecture is too unified. Still, Media Village, which opened in 1999, has a number of architectural features that are praiseworthy: Built on the former site of a Pic 'N' Save store, the project avoids boxiness. As mentioned above, the building shrinks back at certain points from the sidewalk to provide open air plazas. In other areas, the architect provides towers that lend a distinctive form to the housing portion of the project. Even in the alleys, the developer showed creativity by locating a ballet school at the rear of the project and providing floor-to-ceiling glass walls that allow passers-by to watch girls at their barre exercises. A small crowd is gathered in front of the window at most times of day. If Media Village could be more charming, the project has proven to be a catalyst for pedestrian movement and, possibly, for further investment in the area. The project has been a versatile tool for activating downtown Burbank. Perhaps a good mixed-use building is not quite as glorious as a Swiss Army Knife, but it still makes a great gift for the right city.

A lawsuit over an annual fire assessment on property owners in the Oakland hills has been revived by an appellate court. Overturning a Superior Court decision, the First District Court of Appeal ruled that the lawsuit should go forward because the City of Oakland did not provide for an adequate administrative appeal of the tax. Two years ago, the Oakland City Council approved the creation of the Oakland Wildfire Prevention Assessment District to fund fire suppression, prevention and preparedness in the city’s eastern hills. The city then established a fee of $65 per house, enough to raise $1.7 million annually. The city created the assessment district in response to the 1991 fire that killed 25 people and destroyed 3,300 houses in the Oakland hills. The city received protests over the assessment but determined that because the protesters did not constitute a majority, the assessments could go forward. A group of homeowners called Unfair Fire Tax Committee sued, arguing that formation of the district violated Proposition 218 (the 1996 Right to Vote on Taxes Act) and environmental laws. Alameda County Superior Court Judge Steven Brick ruled that the homeowners committee did not exhaust its administrative remedies, and he threw out the lawsuit. In general, an aggrieved party must pursue every potential administrative avenue before turning to the courts. In its appeal to the First District, the committee submitted a number of arguments for why the exhaustion of administrative remedies rule should not apply here. Among other things, the committee pointed out that the city’s process allows only for a request of reconsideration by the City Council — the same body that approved the assessment district — rather than an appeal to a separate body. The unanimous three-judge appellate court panel found the city’s process “nebulous” and said the lawsuit should receive a hearing. The system, the court ruled, “fails entirely to provide any procedure for ‘submission, evaluation and resolution’ of such a request for reconsideration; it does not state how the appeal (or request for reconsideration) may be taken, whether the appellant will be entitled to a hearing, when the matter will be heard, what evidence may be submitted, or the standard for reconsidering the city council’s earlier decision.” The court sent the case back to the Superior Court for further proceedings. The Case: , No. A109510, 06 C.D.O.S. 1623. Filed February 27, 2006. The Lawyers: For Unfair Fire Tax Committee: Paul Kleven, (510) 528-7347. For the city: Mark Morodomi, city attorney’s office, (510) 238-3601.

Everybody in California is talking about form-based codes these days. Cities throughout the state are in the process of adopting these codes. The wave is growing so fast that form-based codes appear to represent a revolution in the making. But nobody seems to know what form-based codes are. That, at least, is the impression we get here at . Over the past year, no single question has come up more frequently than: The answer lies in the century-long battle for power in land-use planning between designers and lawyers. Since the dawn of modern planning during the 1890s, designers have focused on the shape and form of urban growth, especially in the public realm – the design of streetscapes and public squares, the creation of great places as a backdrop for a city. Lawyers have focused on the do’s-and-don’ts of regulating private development at the parcel level, which emerged largely out of nuisance law. The basic idea was to identify which “uses” are incompatible and separate them. (This battle is described in detail in Chapter 3 of my book co-written with Editor Paul Shigley, .) The traditional zoning code, with its long list of use districts and uses that are permitted or banned, represents a victory of lawyers over designers. The “form-based code” is an attempt by design-oriented planners to swing the balance back the other way. The basic idea of a form-based code is pretty simple: It places more emphasis on the design and form of buildings than a traditional zoning code does, and less emphasis on uses inside the buildings. This kind of approach makes sense today in a lot of places in California, where the main task of planning involves managing the transition from suburban to city-style development. The New Urbanist architect Victor Dover has summarized it simply by saying that a form-based code is a “design-oriented code.” This conveys the general idea – maybe better than “form-based code” — but it’s not quite specific enough, which is why the New Urbanists prefer the dense term “form-based.” It’s not really about the typical details of architectural design, such as façade treatments, color schemes, and architectural styles. It’s about the guts of urban design – the form and massing of buildings, the width and design of streets, and the physical relationship between the buildings and the streetscape. A form-based code usually has a lot of illustrations so that developers and architects can see what the code-writers had in mind rather than imagine it for themselves after reading the text. This is not to say that a form-based code completely abandons traditional zoning concerns, such as use districts, units per acre, and parking ratios. Many form-based codes do contain such standards. But these standards are often more permissive – allowing greater flexibility – while the code focuses in great detail on urban design standards. New Urbanists often argue that the use-based code makes the creation of great places “illegal,” and a form-based code simply represents a return to the type of planning that characterized great cities for thousands of years before the invention of the car and modern zoning. It might be fairer to say, however, that the form-based code simply represents an attempt to accommodate a more urban situation in California. New Urbanist rhetoric aside, a traditional zoning code does force the creation of a suburban environment, with its setback, parking, and landscape standards. And it’s usually silent on the question of what buildings are actually shaped like. But as California becomes more urban, and infill development continues to increase in importance, the commonly held idea that compatibility problems can be solved by more space between buildings becomes less realistic. In that sense, a more design-oriented approach such as the one used by form-based codes is probably appropriate – because that is how compatibility problems will be solved. Perhaps the best way to explain a form-based code is simply to describe one that is already in place. One of the first form-based codes adopted in California was the “smart code” adopted by the City of Petaluma for the Central Petaluma specific plan in 2003. This code was adapted from the copyrighted “SmartCode” created by Duany Plater-Zyberk of Miami. The Petaluma code is not particularly short. In fact, it is 54 pages long. Nor does it look much different from a typical code, at least at first. It has a zoning map and a chart showing a list of uses in each zone. It also has parking standards. But these characteristics do not function quite like they do in a standard code. And the Petaluma code has other things in it that a typical code does not. The Petaluma zoning map has different districts, but those districts are not typical of a zoning map. Some are tied to the New Urbanist idea of a “transect.” The transect divides the developed world into six zones – T-1 through T-6 – that range from extremely rural to extremely urban. The idea is that compatibility is not simply a matter of use; rather, neighborhoods should have compatible urban, suburban or rural fabric. There is one chart in the Petaluma code that calibrates the traditional land uses (i.e. general retail, 10,000 square feet or less) to the zones on the zoning map and specifies which ones need conditional use permits and which ones do not. There is another chart that specifies densities, parking ratios, setbacks, and height limits – though all of these standards are most definitely not suburban in scale. Setbacks have both minimums and maximums, for example, and all residential development requires only one parking space per unit. The Petaluma code differs from traditional codes in several other ways. For one thing, it devotes many pages to creating street standards. It also incorporates an alternative parking mechanism, specifying how developers may avoid on-site parking requirements either through participation in a parking district or by securing off-site parking. This alternative approach to parking is an increasingly common characteristic of form-based codes. In the form-based code world, parking, like so many other things, is a problem to be solved at the level of the district or neighborhood, not on each individual parcel. Unlike many form-based codes, the Petaluma code does not contain pages and pages of illustrated building types – a kind of “pattern book” for urban development. This is good and bad. On the one hand, form-based codes are supposed to focus on form and massing of buildings, so pictures help clarify the goal. On the other hand, a picture-laden form-based code can – implicitly or explicitly – impose a particular architectural style. (This appears to be O.K. with most New Urbanists, who like traditional architecture and despise modernism; but it is clearly not O.K. with modernist architects, whose buildings can sometimes fit into a New Urbanist context.) Most important, what’s missing from the Petaluma form-based code are the dozens of use districts, each with a laundry list of what uses are permitted and what uses are prohibited. A few outright prohibitions are contained in the Petaluma code, such as adult businesses in live-work spaces. By and large, however, most uses are permitted in most districts, though many are subject to a conditional use permit. Obviously, some use parameters must be wrapped around a form-based code. Most industrial uses would likely be banned from mixed-use areas where retail, office, and residential uses are permitted with great flexibility. And it is pretty clear that form-based codes will not work unless they are accompanied by neighborhood- or district-level plans for parking and other common needs. But in California’s increasingly urban context, focusing on the form of development — as opposed to the use — makes a lot of sense.

An unusual collection of more than 30 farm groups, environmental organizations and regulatory agencies has signed onto a California Rangelands Coalition, marking the first time that some of the entities have worked together. The disparate groups — many of which have clashed in the past — have pledged to work cooperatively to preserve and enhance rangeland for the good of the ranching industry, and for the health of plants and wildlife. An undercurrent of the agreement is that development needs to steer clear of rangeland. The coalition is focused on the ring of foothills around the 400-mile-long Central Valley, a region that includes pieces of 28 counties. So far, Alameda County is the only county to sign the coalition’s California Rangeland Resolution. Other county governments could soon be hearing from the coalition. “Even if we don’t agree on land management or land use,” said Karen Sweet, executive officer of the Alameda County Resource Conservation District, “we agree that the worst thing that can happen is development. We’re going to have to find ways to keep agriculture viable.” “There is definitely pressure to put houses in areas that are ranchland. Both environmentalists and ranchers would like to prevent that,” added Alex Pitts, a spokeswoman for the U.S. Fish and Wildlife Service. Although the coalition is emerging as an advocacy group, it was the Fish and Wildlife Service that helped create it. Steve Thompson, operations manager of the agency’s California-Nevada office, found that he was receiving similar correspondence from ranchers and environmentalists. Both interests have a strong desire to preserve rural landscapes, albeit for different reasons. Ranchers sought incentives for preserving and improving ranchland for the sake of agriculture; environmentalists sought preservation of the same lands for the benefit of plants and wildlife. Thompson brought representatives of numerous groups together for a meeting in the Alameda County community of Sunol last fall. The representatives soon found that they agree on 95% of issues, said Tracy Schohr, director of industrial affairs for the California Cattlemen’s Association. By January, the groups had settled on a rangeland resolution that calls for: • Keeping common species common on private working landscapes. • Working to recover rare species and enhancing habitat on rangeland, while minimizing regulation. • Providing economic, social and other incentives to keep ranchers in business. • Increasing private, state and federal funding for practices that benefit sensitive species and ranching. • Encouraging voluntary, locally led conservation efforts. Among the groups that have signed the resolution are the Cattlemen’s Association, the California Farm Bureau Federation, the California Rangeland Trust, the Fish and Wildlife Service, state departments of Conservation, Fish and Game, and Food and Agriculture, Defenders of Wildlife, The Nature Conservancy, Environmental Defense and the Trust for Public Land. The coalition’s first priority is to lobby in Washington, D.C., for funding from the 2007 farm bill. The coalition would like to see more federal money for conservation easements and for programs that enhance rangelands. In fact, the debate over the farm bill is largely about whether the federal government should pay for commodities or farmland conservation, said Alvin Sokolow, a semi-retired professor at University of California, Davis. Because California grows few commodities, it has traditionally not received a large amount of farm subsidies, even though California is the nation’s leading agricultural state. In 2003, California farmers received $97.2 million from the Department of Agriculture’s Natural Resources Conservation Service, according to Sokolow. But that represented only about 5% of funding nationwide from the federal conservation reserve program, which mostly pays farmers to idle cropland. “The argument is being made by ranching advocates that ranchers are the best stewards of the land, rather than public owners,” Sokolow said. “I think the argument is accurate, especially when comparing ranchland to cropland.” Besides more money, the coalition would like to see a streamlining of regulations, or at least a new approach to enforcement. This would fall into the concept of “safe harbors.” As it now stands, landowners who undertake projects that aid endangered species can get stuck in a difficult regulatory bureaucracy, even though the species would receive no benefits if not for the ranching project, Schohr said. Ranchers can spend two years getting various approvals for fairly simple projects, such as building new stock ponds, that also happen to be good for a rare species. Pitts said the Fish and Wildlife Service recognizes the argument, and the agency is comfortable with safe harbor agreements. “That habitat wouldn’t exist if not for ranching,” she said. Kim Delfino, California program director for Defenders of Wildlife, said conservation groups involved with the coalition do a lot of work on grasslands and vernal pools, which are small, seasonal wetlands that some species rely on for survival. Scientific studies have shown that grazing is a good technique for controlling non-native species in grasslands and for protecting vernal pools, Delfino said. Still, the bottom-line issue is land use. Environmentalists and, at times, farmers and the state Department of Conservation have used conservation easements to steer development in certain directions, limit new areas of development, or establish buffers between cities. And conservation easements — in which development rights are essentially retired in exchange for a one-time payment — are not universally accepted. Ted James, planning director in Kern County, which has vast stretches of grazing land, noted that ranchers in his area are suspicious of such easements because they limit property rights. John Hofmann, director of natural resources for the Regional Council of Rural Counties, also expressed skepticism about conservation easements. “I’m just not convinced that a conservation easement is a good deal for the people who own the land,” Hofmann said. “That money doesn’t come in perpetuity, but the conservation easement is in perpetuity.” The purchase of an easement does not ensure that agricultural lands remain productive, he noted. Moreover, counties often do not learn about conservation easements until they are already in place, and the landowner is applying to the county for a permanent property tax break. “Maybe we had that land zoned for development,” Hofmann said. “Now we are having to find a new place for development. It takes some of the planning flexibility out of local government’s hands.” It is not uncommon for grazing land to be targeted for development precisely because the soils do not qualify as “prime farmland” or “farmland of statewide importance.” Delfino conceded that the local government piece of the ranchland preservation effort is an issue the coalition needs to address over the long term. Schohr, of the Cattlemen’s Association, said the group has purposefully avoided specifics of local land use thus far. “It’s taken a lot of time to decide on the policies that we want to change,” she added. “We think ranching on the private lands in the Central Valley and surrounding foothills areas is environmentally beneficial,” Delfino summed up. “When you’re looking at the amount of development in the Central Valley, and the conversion of ranchlands into housing, it’s a concern.” Contacts: Tracy Schohr, California Cattlemen’s Association, (916) 444-0845. Kim Delfino, Defenders of Wildlife, (916) 313-5800. Karen Sweet, Alameda County Resource Conservation District, (925) 371-0154. Alvin Sokolow, University of California, Davis, (530) 752-0979. John Hofmann, Regional Council of Rural Counties, (916) 447-4806.

A Santa Barbara County property owner’s takings claim has received new life, thanks to a Second District Court of Appeal ruling. The appellate panel overturned a lower court that had ruled the property owner filed the claim too soon. The trial court had determined the takings lawsuit was not “ripe” for a judicial decision because the level of development Santa Barbara County would permit on the six-acre site was unknown. Without a final answer from the county, the lawsuit could not go forward, the trial court ruled. The Second District, however, found that the county had made clear exactly how much development it would permit, meaning that the property owner had his final answer and the lawsuit could proceed. The appellate court made no decision on the merits of the takings argument. At issue is a parcel in the unincorporated coastal town of Summerland, a few miles east of Santa Barbara. In 1995, the property owner, David Dunn, submitted an application to divide the parcel into two three-acre lots. The existing six-acre lot was created via a 1986 parcel map and had two potential building envelopes on either side of an active earthquake fault. The property lies in the coastal zone, so it is subject to the Coastal Act and the county’s local coastal plan (LCP). After preparation of an environmental impact report (which was never certified), the county denied the lot-split application. Biologists had identified about one-sixth of an acre of wetlands on the property, and, despite the 1986 parcel map, setbacks from the wetlands and the coastal bluff made it impossible to locate a second building site, the county determined. Additionally, grading for development would likely result in loss of some wetlands, according to the county. Dunn sued. He alleged that the county had violated his constitutional and civil rights by carrying out a physical and regulatory taking of his property. In early 2004, Santa Barbara County Superior Court Judge J. William McLafferty ruled that there had been no physical taking of the property, and that the regulatory takings claim was unripe. A unanimous three-judge panel of the Second District, Division Six, upheld Judge McLafferty on the claim of physical taking, but overruled the decision on the regulatory takings. In finding the regulatory takings claims premature, McLafferty had said uncertainty “exists with respect to the scope of any development project which would be allowed on the remaining existing building envelope” because of setback requirements and wetlands protections. He also said the county could consider rezoning or a variance, or permit minor development in otherwise protected areas. But the Second District, pointing to the denial of the lot split application, said the county had in fact made up its mind. Under , (2001) 533 U.S. 606 (see , August 2001), a property owner need not submit “‘further and futile applications,’” the court ruled. “The county has made clear that only one viable building site remains after the application of its regulations, and that Dunn will be allowed to build a single-family residence on that site,” Justice Steven Perren wrote for the court. “Because the county has stated that it will not allow Dunn to subdivide his property, and that it will allow him to build only one residence on the remaining building site, the permissible use of the property is known to a reasonable degree of certainty. Accordingly, the takings claims are ripe for review.” In portions of the ruling upholding the Superior Court decision, the Second District backed the county’s designation of wetlands and environmentally sensitive habitat areas (ESHA) on Dunn’s property. Dunn had argued that the wetlands have no environmental value. The court pointed out that Dunn’s own biological consultant recognized the areas in question contain the attributes of wetlands. There was also evidence that a number of animal species rely on the wetlands, the court noted. Plus, the court ruled, under the Coastal Act, all wetlands — no matter their quality — are deserving of protection. The Coastal Act also mandates protection of ESHA. Dunn argued that the county’s definition of ESHA was too broad and the regulations too restrictive. “Nothing in Dunn’s briefs,” Perren wrote, “demonstrates that the wetlands on his property are not entitled to this heightened protection.” The case now returns to Superior Court for consideration of the takings claim. The Case: , No. B175149, 06 C.D.O.S. 781, 2006 DJDAR 1023. Filed January 25, 2006. The Lawyers; For Dunn: Diane Matsinger, Hatch & Parent, (805) 560-8808. For the county: Kelly Casillas, county counsel’s office, (805) 568-2950.

A settlement that Rohnert Park signed to resolve a lawsuit over the city’s general plan did not illegally abridge the city’s police power, the First District Court of Appeal has ruled. Two development companies argued that the city surrendered its police power by approving a lawsuit settlement calling for the city to remove the developers’ land from the city’s sphere of influence. The First District disagreed, ruling that the settlement did not grant an outside party veto power over the general plan. The developers, 108 Holdings, Ltd., and SC Forty Acres, Inc., in March asked the state Supreme Court to accept the case. The appellate court’s ruling addresses what can be a tricky situation, said Susan Brandt-Hawley, an attorney for a citizens group that had sued Rohnert Park. Generally, all parties want to resolve land use litigation with settlements, she said. The tricky part is crafting a settlement that does not impinge on a local government’s land use authority. In this instance, the City Council considered the settlement agreement in open session, and the agreement does not limit future general plan amendments. The First District ruling, Brandt-Hawley said, shows that it is acceptable for a government agency to settle a lawsuit with environmental groups, even if the settlement is a long-term agreement to protect the environment. Rohnert Park adopted a new general plan in July 2000. The plan placed 137 acres of unincorporated land near the community of Penngrove within the city’s sphere of influence, and designated a portion of the land for industrial development. Later that year, voters approved a city-sponsored ballot measure establishing an urban growth boundary. About 100 acres of the property in question lies within the boundary. In March 2002, the Sonoma County Local Agency Formation Commission (LAFCO) approved the city’s application to expand its sphere of influence to take in the entire 137 acres. Shortly after the city adopted the general plan, however, a group called South County Resource Preservation Committee (the real parties in interest in the case at hand) sued the city on a number of grounds. The group argued primarily that the general plan’s environmental impact report was inadequate. In August 2002 — after LAFCO had approved an expanded sphere of influence — the City Council approved a settlement agreement and stipulated judgment, which the Superior Court accepted the following month. The settlement with the environmental group called for the city to apply to LAFCO for removal of the developers’ land from the city’s sphere of influence, and to interpret in certain ways general plan policies regarding groundwater conservation, the availability of water to serve new development, community design and traffic. Following the terms of the settlement, the city then approved a general plan amendment removing the developers’ property from the sphere of influence. The developers sued, arguing that the city had delegated its police power. The developers also contended the settlement amounted to a general plan amendment that should have been subject to environmental review. The Sonoma County Superior Court ruled for the city, and the First District, Division Five, upheld the decision. In the First District opinion, Justice Lawrence Stevens pointed out that a municipality may not contract away its legislative functions, and that adoption and amendment of a general plan are legislative acts. The developers argued that the city had negotiated away its legislative authority. They cited , (1998) 62 Cal.App.4th, 727 (see , May 1998), and , (1995) 38 Cal.App.4th 1716 (see , November 1995). concerned a San Diego County agreement for a 15-year moratorium on rent control legislation with respect to mobile home park owners who signed an accord with the county. The court threw out the agreement as an unlawful surrender of the police power. concerned a memorandum of understanding (MOU) that Hayward, Pleasanton and Alameda County signed regarding a parcel of land that lay within all three jurisdictions. Under the MOU, there could be no further amendments to any of the three entities’ general plans for the parcel unless all three entities agreed. The court held the MOU was an unlawful surrender of the police power because it gave another jurisdiction veto power over a local government’s general plan amendments. However, the First District found those cases different from the Rohnert Park case. “In contrast to the MOU at issue in Alameda County, the settlement agreement and stipulated judgment do not grant real parties in interest (or anyone else) veto power over future general plan amendments,” Justice Stevens wrote. “To the contrary, the stipulated judgment places no restrictions on the city’s exercise of its police power in the future. There is simply no basis for concluding that, in entering into the settlement agreement and stipulated judgment, the city has sacrificed the ‘crucial control element’ that is the hallmark of an improper surrender of police power,” Stevens continued, citing . The court then considered the argument that the settlement amounted to a general plan amendment. The court conceded that changing the sphere of influence was a general plan amendment. The developers argued that action was “tainted” because it was “dictated entirely by the terms of a private contractual agreement.” The court disagreed, noting that the city conducted the required administrative process. “ he city’s action is reviewable only by the electorate, not the courts,” Stevens wrote. The developers further argued that the settlement was a general plan amendment because it requires the city to interpret the general plan in certain ways. The court again disagreed, finding “most of the provisions to which 108 Holdings object to be little more than restatements of policies that are already part of the general plan.” The Case: , No. A108629, 06 C.D.O.S. 970, 2006 DJDAR 1304. Filed January 31, 2006. The Lawyers; For 108 Holdings: Tracy Kirkham, Cooper & Kirkham, (415) 788-3030. For the city: Michelle Marchetta Kenyon, McDonough, Holland & Allen, (510) 273-8780. For South County Resource Preservation Committee: Susan Brandt-Hawley, (707) 938-3908.

It was a case of hopeless infatuation in 2001, when the City of Los Angeles finally landed a developer who was rich and optimistically cock-eyed enough to build that long-dreamed-of-but-never-consummated project, the convention center hotel. I can imagine the late Peter Arno, a 1940s-era cartoonist for , depicting the city as a doting old millionaire and the developer as a street-smart showgirl. “I’ll give you anything you want, if you just grant me this one happiness!” says the infatuated old geezer. “Well, sweetums,” says the young thing, who is nobody’s fool, “if it weren’t asking too much….” Now, Los Angeles is getting the hotel, and a whole lot more. The developer calls the 28-acre project LA Live. Snuggling up to a planned 56-story hostelry will be the 7,000-seat Nokia Theater, fronted by the acre-sized Nokia Plaza. The plaza will be the public centerpiece, illuminated with 90-foot light towers and programmed with live performances and a giant video projection screen, which will be either 45 feet or 90 feet tall. Surrounding the plaza will be white-tablecloth restaurants, retail, a 15-screen multiplex cinema and the Conga Club, a Latin-themed night spot co-owned by actor Jimmy Smits. The developers call LA Live a “content campus.” I call it a revenue-capture machine designed to lure droves of conventioneers, and concert-goers and sports fans attending events at nearby Staples Center arena. There is very little else going on in this southern corner of downtown L.A. at night, and if the developers of LA Live have their way, there won’t be much happening anywhere else downtown, either. As conceived by AEG, the development outfit led by Denver billionaire Philip Anschutz, LA Live might be described as a self-contained sports, entertainment and restaurant district intended to enliven the area that will lie in the shadow of the new hotel. The $4.2-billion project is touted by its developers as the largest single development project in the history of the city. The same developer completed the Staples Center arena seven years ago, and has been buying up land in the immediate area ever since. Part of that budget is at least $250 million in city subsidies to build the hotel. That amount does not include about $70 million in bond proceeds the city made available to the developer to buy the hotel site five years ago. In the belief that convention centers are big moneymakers for cities, Los Angeles spent nearly $500 million during the 1990s to expand the existing convention center, which has done only fair-to-good business since. The lack of a large hotel within the immediate vicinity was a stumbling block to signing the really big conventions and trade shows, according to the local tourism and convention board. Dutifully, the city has courted a series of developers off and on during the past two decades, only to see those budding romances wither when the subject of subsidies arose. By far the biggest part of the subsidy package, beyond a few million dollars in fee waivers, is a rebate of the city’s 14% transient occupancy tax over a 25-year period starting in 2008, when hotel occupancy is expected to stabilize. In absolute dollars, that amount comes out to a breathtaking $246 million, although real estate people generally use a discount rate of 10% to translate the value of those future dollars into present-day value, which is more like $64 million. The city authorized the subsidies in 2005 despite a recent report from the Brookings Institution that described such subsidies as a bad investment. “With the possible exception of a handful of major cities that have long dominated the national and regional economies and a very small number of prime visitor destinations like Orlando and Las Vegas, the grand promises of convention center investment are unlikely to be realize, the strategy doomed to failure,” the report stated. To refute the report, the city hired PKF Consulting, which said in a September 2005 letter that Los Angeles “meets both criteria” indicated by the Brookings report insofar that Los Angeles is a “major city that has long dominated the national and regional economies, as well as a prime visitor destination.” By this rhetorical sleight of hand, PKF made the Brookings report sound like a tacit endorsement for a subsidized convention-center hotel. Criticism of the concept aside, there are some good design ideas at LA Live. Starting with the monolithic superblock assembled by the developer, the architectural firm of RTKL invades the site with several mid-block openings, breaking the superblock into six big pieces separated by shopping streets and/or vehicular circulation. Breaking down the unworkable scale of the grid is an idea worth exploring elsewhere in downtown Los Angeles, which is a dreary place to walk partly because blocks are so long. Good design ideas, however, cannot salvage a bad concept. The whole notion of an entertainment center seems like bad urbanism. It seems especially unfortunate to introduce one more hulking megastructure into the South Park neighborhood, next to existing megastructures like the sports arena and the convention center. This is inflexible, over-scaled urbanism in what planners have long designated a residential area. Especially disappointing in a downtown area is a promising public space like Nokia Plaza, which the developer wants to drown in media glitz and marketing. That kind of stuff is exciting in a trade show or on the Vegas Strip. It is out-of-place in a densely populated residential district. LA Live is almost guaranteed to add value to the arena and the convention center, but it may not serve downtown as a whole. Many tourists and suburban concertgoers may never see anything more of downtown than the inside of this noisy, hyper-commercial environment, which would be very similar to many other noisy, garish places across the country. To let this project go forward is one of the prices we pay for a free-market system. To subsidize it with public money seems self-defeating. LA Live will probably be a great asset for Phil Anschutz, but it is no gift to the city.

Two new chapters have been written in one of California’s longest-running environmental dramas. The latest installments lack the emotional wallop of earlier parts, which featured celebrities, death and torture, but may ultimately prove more significant. On January 30, the state Supreme Court upheld the authority of state water boards to regulate logging activities that have the potential to degrade streams. The ruling was a rebuke to Pacific Lumber Co. (PALCO), which had argued that the Forest Practice Act granted the California Department of Forestry and Fire Protection (CDF) sole authority to regulate logging. In a blunt assessment, the justices concluded that PALCO’s interpretation of the law “makes no sense.” The much-vilified Humboldt County logging company fared better at the hands of the First District Court of Appeal. In December, the appellate court overturned a trial court ruling and reinstated the controversial set of plans and permits negotiated as part of PALCO’s $480 million deal with state and federal agencies to protect the Headwaters grove of old-growth redwoods. Perhaps the most significant element of that ruling was the court’s upholding of the “no surprises” assurance attached to an incidental take permit issued under the California Endangered Species Act. The permit authorized the company to kill protected species in the course of its operations, in exchange for development of a habitat conservation plan (HCP) that would boost protections elsewhere. No-surprises assurances typically immunize permit recipients from future changes in mitigation requirements, even if new information or changed circumstances suggest the adopted measures may not be adequate. Although contested by environmental groups and criticized by biologists, “no surprises” has been a cornerstone of the HCP process since the mid-1990s, serving as an incentive for landowners to participate in the program. Both court cases grew out of the 1996 Headwaters forest agreement, intended to resolve a bitter, drawn-out and violent dispute over forest management. The agreement transferred about 7,000 acres of old-growth redwoods in Northern California from PALCO’s hands into public ownership for $480 million in state and federal money. Certainty was one of the major goals for both sides in the deal. The company retained ownership of more than 200,000 acres of adjacent timber land, home to a number of endangered or rare species. Conservationists wanted assurances that logging on that land would not imperil those creatures. For its part, the company wanted to end the tree-by-tree warfare with protesters and their attorneys that had hobbled PALCO’s efforts to meet timber production goals. The Headwaters deal included a commitment by the company to adopt an HCP for its remaining Humboldt County property, limiting logging to protect such species as coho salmon, the northern spotted owl and the marbled murrelet. Based on that HCP, the company received approval for a sustained-yield logging plan, federal and state incidental-take permits, and a streambed alteration agreement. The Sierra Club and the Environmental Protection Information Center, a Garberville-based organization that has been a thorn in PALCO’s side for years, sued in March 1999. The plaintiffs challenged CDF’s approval of the sustained-yield plan, the issuance of the incidental-take permit and approval of the streambed alteration agreement by the Department of Fish and Game (DFG), and the findings issued by both state agencies under the California Environmental Quality Act. The plaintiffs alleged that the state agencies had failed to follow proper procedures, and they contended that the incidental-take permits failed to include sufficient steps to offset harm to imperiled species. With respect to the no-surprises assurance, the plaintiffs argued that by agreeing not to change the mitigation requirements during the 50-year life of the permit, DFG was violating its legal obligation to ensure full mitigation of harm to rare species. The Humboldt County Superior Court ruled in the environmentalists’ favor in July 2003, throwing out the plans and permits and bringing a halt to further logging. PALCO appealed, and in December won on most of the disputed items. The appeals court found that the state agencies had for the most part acted properly, and that the no-surprises assurance was legal. Despite the longstanding controversy over HCPs, the First District’s decision was one of the first published state court opinions regarding the no-surprises rule, making the decision a noteworthy rarity (see August 2004). The justices did find, however, that DFG had overstepped its bounds when it included 13 unlisted species in the incidental-take permit, relieving PALCO of any responsibility for additional mitigation if those species were listed in the future. Incidental-take permits can be issued only if the agency determines that such action will not jeopardize the species’ continued existence, and there’s no way to make such a determination in advance, the court ruled. Rather than invalidate the entire incidental-take permit, however, the court ruled that the section pertaining to the unlisted species should be stricken and the remaining provisions should remain in force. The plaintiffs have asked the Supreme Court to take up the case. PALCO did not fare as well in its other case, which concerned a timber harvest plan adopted for about 700 acres in the Elk River watershed that the company acquired through the Headwaters negotiations. The CDF approved the plan, finding that it included adequate steps to protect streams from contamination by sediment, but the North Coast Regional Water Quality Control Board disagreed. It issued an order requiring the company to conduct substantial monitoring to make sure the Elk River remained unimpaired. PALCO appealed to the State Water Resources Control Board, which upheld the regional board. The company then sued the state board, arguing that the Forest Practice Act pre-empted the water board’s authority to regulate activity carried out under an approved timber harvest plan. The trial court agreed, but that ruling was overturned on appeal. PALCO then took the case to the Supreme Court, where the justices made quick work of the company’s argument. The Forest Practice Act, they pointed out, does not grant CDF authority to supersede the water boards in regulating water quality. In fact, it contains language specifically stating that “no provision” of the logging law limits the power of other agencies to carry out their legal mandates. “We take the phrase ‘no provision’ to mean what it says, that nothing within the Forest Practice Act … implicitly bars the water boards from fulfilling their independent obligations,” the justices ruled. Contacts: Pacific Lumber Company, (707) 764-2222. Environmental Protection Information Center, (707) 923-2931. The cases: , No. A104828, 05 C.D.O.S. 10468, 2005 DJDAR 14291. , No. S124464, 06 C.D.O.S. 886, 2006 DJDAR 1195.

In recent years, matters related to planning and development have not appeared at the top of state lawmakers’ agenda. But 2006 is different. Spurred by Gov. Schwarzenegger’s pitch for an infrastructure investment package, the Legislature has tackled infrastructure and related financing with an almost single-minded determination. Besides the governor’s proposal, which is contained in numerous bills, Democrats and Republicans have introduced counterproposals contained in other pieces of legislation. Policy committees and a conference committee met regularly during late January and all of February to dissect the governor’s proposal and craft responses. Los Angeles state Sen. Kevin Murray, co-chairman of the Conference Committee on Infrastructure Bonds, said the committee could start meeting daily this month. “Everybody is waiting for the infrastructure conference committee to go forward,” said Sande George, lobbyist for the California Chapter of the American Planning Association. “The attention is all on that because it’s the only thing happening.” What the infrastructure package will look like is unknown, as everything — including the amount of bonds — appears to be in play. Although the governor proposed very little money for natural resources and parks, and no money for housing, Democrats are insisting that investment in those areas is essential. Both Republicans and Democrats have expressed concern about the size of the governor’s $68 billion, 10-year bond package. Neither Democrats nor Republicans are rushing to embrace the governor’s plan for building new prisons and jails. The infrastructure discussion is so far-reaching that it even includes proposed California Environmental Quality Act (CEQA) amendments and a plan to make local governments liable for Central Valley levees. Aside from the infrastructure discussion, lawmakers are considering the largest changes to the Community Redevelopment Law since 1993. The Democrat-backed redevelopment changes appear to have a much better chance of passing than Republican-authored restrictions on eminent domain. As originally proposed, the governor’s infrastructure package provided virtually no money for natural resources, open space and parks. Sen. Sheila Kuehl (D-Santa Monica), the chair of the Senate Natural Resources and Water Committee, said during a late February committee meeting that the governor’s plan undervalues natural resources. Kuehl, an important voice in the Senate, said that she views flood protection, water and natural resources as co-equal with education and transportation. Committee member Sen. Sam Aanestad (R-Grass Valley), however, urged his colleagues not to confuse water resources and flood protection with parks and open space. Lawmakers already have concerns about the size of the governor’s bond package, Aanestad said, and loading money for parks and open space into it will only make the debt bigger. Still, it is unlikely the Democratic majority will back a bond package that lacks money for parks and open space. Flood control, however, has at least started the year as something of a bipartisan issue. Aanestad and Democratic Assemblyman John Laird of Santa Cruz introduced as part of the governor’s package two bills (SB 1166 and AB 1839) that would shift liability and financial responsibility for levees from the state to cities, counties and special districts. The proposal could have the effect of nearly ending new development in areas protected by levees, many of which have been chronically underfunded. Local governments have already voiced opposition to the legislation. During a February hearing, Aanestad conceded his bill “probably wasn’t ready for prime time” and said he would rewrite it. But lawmakers clearly are concerned about unabated growth in flood-prone areas. During the same hearing, Kuehl spoke of “changing land use planning so we can help people by not putting them in harm’s way in the first place.” During a February 23 meeting of the Conference Committee on Infrastructure Bonds, state Treasurer and Democratic gubernatorial candidate Phil Angelides urged members to take a smart-growth approach to infrastructure investments. He said infrastructure spending provides “the most important lever the state has” to influence growth patterns, and he contended that Schwarzenegger’s package ignores the lessons California has learned about growth during the last 50 years. “A good infrastructure plan should increase the choices Californians have,” Angelides told the committee. “We have to allocate more resources to mass transit … and to transit-oriented development.” Conference committee members, perhaps tellingly, did not engage Angelides on the subject. Instead, they focused on fiscal issues. Clearly, the conference committee will be where much of the action is. Murray said Democrats can agree with the governor on many things. But when the committee starts producing recommended legislation “we will not necessarily be putting out the governor’s product. We will be putting out the Legislature’s product,” Murray said. Republicans are hoping that CEQA amendments will be part of that product. San Joaquin Valley Republican Assemblymen Greg Aghazarian and Michael Villines introduced bills (AB 2026 and AB 2029) that would relax environmental review for flood control projects. Initially, however, Democrats gave a cool reception to the measures. Housing advocates, meanwhile, have pushed to place money for housing into the infrastructure discussion. State Senate President Pro Tem Don Perata (D-Oakland) and Assembly Speaker Fabian Nuñez (D-Los Angeles) said in February they would include $1.4 billion and $2 billion for housing in their respective bond packages. Although Schwarzenegger did not include money for housing in his initial proposal, his representatives have signaled that he might support the idea. Other than the infrastructure proposals, state Sen. Christine Kehoe’s proposals to amend redevelopment law are potentially the year’s most important land use bills. Her measures, SB 1206 and SB 53, are the result of hearings conducted last fall, which themselves were the result of fallout over the Supreme Court’s June 2005 decision upholding the use of eminent domain for economic development purposes. “I heard from homeowners who feel they may lose their homes, and I also heard from community groups that support redevelopment projects that clean up neighborhoods in crisis,” said Kehoe, a San Diego Democrat who chairs the Senate Local Government Committee. “This is not a simple issue, but one thing is clear: The state needs to do more to tighten the laws and regulations that protect homeowners.” The bills would: • Tighten the definition of blight and repeal the antiquated subdivision exception for required blight findings. • Require new blight findings before redevelopment agencies issue new bonds or merge project areas. • Provide up to 90 days for opponents to file lawsuits or file referendum petitions. • Increase state oversight, primarily by giving the attorney general greater ability to sue redevelopment agencies. • Prohibit redevelopment agencies from buying land for city halls. • Require greater advance disclosure about how agencies will use eminent domain, and limit the time during which eminent domain may be commenced. Kehoe’s redevelopment changes would be the most significant since a 1993 overhaul. The California Redevelopment Association has expressed concern that some of the changes go too far. Kehoe’s bills, though, are not the only measures, as the Supreme Court’s unpopular decision has forced lawmakers to address redevelopment practices. Proposed Land Use Legislation For 2006 • AB 1387 (Jones). Modifies an existing exemption from environmental review for urban infill housing projects. The bill, which has passed the Assembly, would exempt from CEQA-related traffic impacts projects of up to 100 units with a minimum density of 20 units per acre. The projects also would have to be within half a mile of a transit stop and comply with the local circulation element. • SB 832 (Perata). Expands an exemption for urban infill housing developments to cover projects of up to 10 acres and 300 units, but only in cities with populations of at least 200,000 people. This bill could be amended to become part of a Democratic infrastructure package. • SB 1191 (Hollingsworth). A major overhaul of CEQA. Among other things, the bill would establish a “short form” environmental impact report that a lead agency would be required to prepare if a project met certain criteria. The bill also changes notice requirements, timelines and definitions in CEQA, and limits the issues a lead agency may consider. The bill has been assigned to the Senate Committee on Environmental Quality, which is highly unlikely to approve the proposal. • SB 44 (Kehoe). Requires all jurisdictions to adopt air quality elements that account for development patterns. • SB 409 (Kehoe). Requires cities and counties to correlate the water supply portion of their conservation elements with their land use elements. • AB 802 (Wolk). Requires cities and counties to account for flood safety in general plan updates. The bill passed in the Assembly with a bare majority of 41 votes. • SB 655 (Ortiz). Requires cities and counties to map areas with naturally occurring asbestos, identify the areas in the general plan, and disclose to buyers if asbestos is present. The bill stems from controversy in El Dorado and other Sierra foothill counties, where development has stirred up natural asbestos fibers. • SB 1059 (Escutia). Requires cities and counties to amend their general plans to show the electric transmission corridor designated by the California Energy Commission. • AB 350 (Matthews). Authorizes local governments in Alameda, Contra Costa, Santa Clara, San Joaquin and Stanislaus counties to create infrastructure finance districts in jobs-housing opportunity zones. • SB 223 (Torlakson). Establishes a new program in which the Department of Housing and Community Development would offer forgivable loans to cities and counties for the preparation of specific plans that provide for additional infill housing. • SB 1322 (Cedillo). Requires cities and counties to make emergency shelters and residential service providers by-right uses in certain zones. • AB 1020 (Hancock). Permits councils of government and regional transportation agencies in most urban areas to prepare new transportation models that better account for land uses, transit and the effects of charging tolls. The bill passed the Assembly after the author downgraded the provisions from mandatory to permissive. • AB 1157 (Frommer). Authorizes $500 million in bonds to fund railroad grade separation projects. • AB 1785 (Bermudez). Increases by $55 million annually the money available for railroad grade separation projects. • AB 1783 (Nunez). The speaker’s infrastructure plan. The bill contains few details so far. • AB 1831 (Jones) and SB 1163 (Ackerman). Authorizes $2.2 billion in bonds for courthouses, state parks, mental hospitals and other state facilities. Part of governor’s package. • AB 1833 (Arambula). Authorizes $6.8 billion in bonds for county jails, state prisons and development of state military facilities. Part of governor’s package. • AB 1836 (Daucher) and SB 1164 (Runner). Authorizes $38 billion worth of bonds for schools and universities. Part of governor’s package. • AB 1838 (Oropeza) and SB 1165 (Dutton). Authorizes $26 billion in bonds for transportation improvements. The bills also change contracting procedures to permit “design-build” projects and “design sequencing.” Part of governor’s package. • AB 1839 (Laird) and SB 1166 (Aanestad). Authorizes $9 billion worth of bonds for flood protection and water management projects. The bills would shift responsibility for Central Valley levees from the state to local governments in some instances, and would impose a new charge on water customers statewide to raise $5 billion worth of revenue over 10 years. Part of governor’s package. • AB 2025 (Niello). Authorizes Caltrans to use the design-build method to deliver projects. Part of Assembly Republican package. • AB 2026 (Aghazarian) and AB 2029 (Villines). Reduces CEQA requirements for flood control projects. Part of Assembly Republican package. • AB 2027 (La Malfa). Reduces wildlife habitat protection requirements for flood control projects. Part of Assembly Republican package. • ACA 4 (Plescia), ACA 9 (Bough) and ACA 11 (Oropeza). Different approaches for protecting Proposition 42 sales tax revenue for transportation. • ACA 27 (McCarthy). Provides for pay-as-you-go capital improvements. Part of Assembly Republican package. • SB 153 (Chesbro). Authorizes $4 billion in bonds for parks, open space and water resources. • SB 1024 (Perata). Authorizes an unspecified amount of bonds for a wide variety of capital improvements and environmental programs. The bill could authorize at least $14 billion worth of bonds. • AB 773 (Mullin). Increases from 30 days to 90 days the time in which voters may prepare a referendum of a redevelopment ordinance. Jurisdictions with more than 500,000 people already have the 90-day period. The bill would extend the 90-day provision to smaller jurisdictions. • AB 782 (Mullin). Removes as a basis for establishing a redevelopment project area the existence of small and irregular lots. Agencies instead would have to make typical findings of blight. • AB 1162 (Mullin). Places a moratorium until 2008 on redevelopment agencies taking by eminent domain an owner-occupied residential property if the property is to be transferred to a private entity. • AB 1893 (Salinas). Prohibits a redevelopment agency from using tax-increment financing to fund the acquisition of land on which a city hall or county administrative building would be constructed. The bill also bars use of tax-increment financing for site clearance or design costs for city hall and administration center projects. • AB 1990 (Waters). Prohibits use of eminent domain if the real property being acquired is to be transferred to a private entity. • ACA 22 (La Malfa), SCA 15 and SCA 20 (McClintock). Constitutional amendments that place tight restrictions on the use of eminent domain. • SB 53 (Kehoe). Requires redevelopment plans to explain where, when and how officials will use eminent domain. The bill also makes plan amendments subject to referendum. • SB 1206 (Kehoe). Proposes an overhaul of the Community Redevelopment Law by, among other things, providing a new definition of blight, limiting the use of funds in merged redevelopment project areas, and making it easier to file legal challenges and referendums regarding redevelopment plans. • SB 1210 (Torlakson). Makes numerous changes to how agencies carry out eminent domain actions. • SB 1329 (Alquist). Authorizes redevelopment agencies to award planning grants and other financial incentives to supermarkets and other grocers to assist with planning and building supermarkets in underserved areas. • AB 1766 (Dymally). Permits enterprise zones to request 25-year extensions. Eighteen such zones, in which the government provides tax breaks for new and growing businesses, are scheduled to expire this year. • AB 1898 (Jones). Requires property owners in areas lacking 200-year flood protection to get flood insurance. This would be a new requirement for large portions of the Sacramento and Stockton metropolitan areas. • AB 1899 (Wolk). Prohibits development on land that lacks 200-year flood protection. This bill could start a major controversy over planning to avoid disasters. • SB 42 (Florez). Requires new compacts between the state and Indian tribes to be approved by the Legislature. • SB 625 (Battin). Authorizes the Department of General Services to offer surplus land to local governments at fair market value. • SB 1060 (Campbell). Authorizes two or more local agencies within the same county to swap property tax revenues for sales tax revenues. • SB 1230 (Florez). Creates the Clean Air Enterprise Zone Program, which permits creation of new enterprise zones in the San Joaquin Valley.

For almost 60 years, urban redevelopment and eminent domain have been intertwined, both in public policy and in the public’s mind. Since at least the passage of the Housing Act of 1949 – and in some states even before that – eminent domain has been used to assemble large blocks of urban land out of small, cut-up parcels. Maybe urban development specialists can’t imagine life without it. Now all that is changing. The backlash against last summer’s U.S. Supreme Court decision in – which upheld the use of eminent domain for economic development purposes (see August 2005, July 2005) – has rippled throughout the nation and deeply into California. There are any number of bills in Sacramento that would restrict or place a moratorium on local governments’ use of eminent domain. Two initiatives are in the signature-gathering stage. And state Sen. Tom McClintock (R-Thousand Oaks) is trying to ride the anti-eminent domain wave into the lieutenant governor’s office, just as he used anti-car tax sentiment in his 2003 gubernatorial campaign. Not surprisingly, most of the effort on the public side is focused on trying to turn back this tide or at least contain restrictions on eminent domain. But the truth of the matter is that, in California, eminent domain has been on the wane as an economic development tool for at least a decade, and further restrictions appear inevitable no matter what local government and redevelopment advocates do. So the real question is not, how does expansive use of eminent domain get protected? It won’t. The reason question is, how do you pursue an urban development strategy without eminent domain? There are two answers. One is the “needle in a haystack” idea – use a microscope to find the best hidden opportunities in the private market. The second is the “big kahuna” idea – find the biggest landowner you can, usually a public agency or a large institution, and bring them to the table. Let’s begin with the needle in a haystack. One of the main reasons for the use of eminent domain in urban redevelopment was land ownership patterns. The same conditions exist today that existed 60 years ago. Infill locations are cut up into small parcels. The parcels are expensive. And many landowners are simply uninterested in playing the infill game. Hence the needle in the haystack strategy. This is what most of the major GIS-based infill analysis experts are working on – finding the parcels that are big enough, well situated enough, and that have enough potential under existing zoning to accommodate a lot of new development. Cities want to identify these sites in order to focus their infill development policies in the right locations. Developers want to find the needles in the haystack to get a leg up on the competition. Full disclosure: This is the essence of what the infill analysis method developed by sister company, Solimar Research Group ( Solimar.org .), seeks to do. It is also the idea behind other GIS-based infill policy tools that have emerged, mostly with Caltrans funding. These include the California infill parcel locator ( infill.gisc.berkeley.edu ), developed by John Landis of UC Berkeley, and the L.A. Lots program ( lots.ucla.edu ), developed by Neal Richman and his colleagues at the UCLA Neighborhood Knowledge Research Center. Simply finding the parcels isn’t the end of the story. Whether you’re a city or a developer, if you don’t have eminent domain available, you then have to persuade the current landowners to play ball voluntarily. And this isn’t easy. Like their greenfield counterparts – who were historically farmers – urban landowners are not always economically rational business owners and they are not always in the marketplace at the time cities or developers want them to be. Farmers usually want the right to farm until they decide to retire, at which time they want the right to sell out to a developer at a high price. The same is true for urban landowners. They want the right to sell at a high price, but only on their timetable. And often as not, their timetable is driven by personal concerns such as retirement, estate planning, or the educational needs of children and grandchildren. On top of that, many urban landowners – especially along commercial strips – have owned their property for decades. This means they have no debt and pre-Proposition 13 taxes. Even a half-empty, rundown strip is providing them with a healthy cash-flow, and it can be hard to persuade them that partnering in an infill development project is a better business model than cashing their tenants’ checks. But that doesn’t mean that looking for the needle in a haystack is pointless. It only means you have to be realistic and understand that the landowner’s internal clock is as important as any other factor. For developers, this means understanding the landowner’s personal circumstance and financial needs. For public agencies, it’s a little trickier. The main goal of the needle in the haystack search is to identify the parcels that should be ripe for infill, and then change land use policies (density, parking, processing time, whatever) so that when the right time comes for the landowner, infill is an attractive alternative. Another goal might be to pre-screen parcels so that infill developers don’t have to look so hard to find the needle. The city gives them the microscope. Then there’s the “big kahuna” approach – which is likely to be the basis for most large-scale urban development in the post-eminent domain world. Amid all the needles in haystacks in the urban environment, there are a few landowners in a completely different situation. They own large parcels, and often (though not always) they are focused on public policy goals rather than strictly on the bottom line. This class of landowners includes government agencies of all kinds and semi-public institutions such as universities and hospitals. Sometimes, these institutions and agencies have similar motivations to other urban landowners. They have no debt on their land and therefore little motivation to use it efficiently; they don’t see themselves as being in the development business. Increasingly, however, they see both the financial rewards of infill development and the benefit of improving their neighborhood around them. And in places that are both congested and expensive, they are also often motivated to provide housing for their employees. We have seen this motivation at work for some time in downtown Los Angeles, where the county government owns some of the most desirable real estate in the United States. Attempts to exploit it for profit go back two decades, when the county planned skyscrapers on what is now the site of the Walt Disney Concert Hall. Now there is a renewed effort for something more sophisticated and urbane, given the hot downtown condo market. Sometimes large private landowners simply realize it is time to cash in – as is happening with the owners of California’s pre-eminent horse racing tracks. In these situations, cities can play the redevelopment game by using the leverage they have over the approval process to get an urban place rather than just a development project. Bay Meadows in San Mateo is undertaking a major and commendable “placemaking” effort – and it’s not in a redevelopment area. We will surely see a similar large-scale effort at Hollywood Park in Inglewood and perhaps at Santa Anita in Arcadia as well. Of course, even under the best of circumstances, a lot of needles will stay lodged in the haystack. And some large urban landowners – even institutional and public landowners – will take the easy money of big boxes and self-storage over the harder job of making great urban places. But the larger point is that urban redevelopment will continue to occur in California – with or without eminent domain – because political and economic forces are demanding that it happen.