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.

Twenty miles south of San Francisco , the City of San Mateo has approved a specific plan calling for a major, mixed-use development next to the busiest Caltrain station in San Mateo County. At least 1,000 new housing units and more than 1 million square feet of office and retail space would replace the Bay Meadows horse racing track in a project backed by numerous environmental and housing groups. The local response to the city's approval of Bay Meadows redevelopment was a referendum. When county elections officials in January determined the referendum was 136 valid signatures short of qualifying for the ballot, referendum backers filed a lawsuit challenging the county's determination of valid signatures. The uncertainty stemming from the litigation and potential referendum, coupled with the fact that the developer has no entitlements yet, suggests that a project being promoted as a model of transit-oriented development may be years from breaking ground. "This is a big enough project," said referendum proponent Linda Schinkel, of Friends of Bay Meadows, "that, even if the race track wasn't involved, the citizens of San Mateo should vote on it. We believe the City Council is out of step with the majority of the citizens of San Mateo." Those charges frustrate Vice Mayor Jack Matthews, who has been involved in planning Bay Meadows redevelopment for three years. He said the Bay Meadows plan is too complicated for voters to understand. And, he noted, the three City Council candidates who endorsed Bay Meadows redevelopment won during the last election. "We're trying to increase transit and decrease traffic," summed up Stephen Scott, San Mateo principal planner. Distrust runs deep on all sides, and Scott's assertion is a case in point. How, ask project opponents, can a major development project in the middle of a built-out city decrease traffic? And, they ask, what about assurances — issued when auxiliary race track facilities were developed only a few years ago — that there were no plans to tear down the horse track? City officials ask why the project's opponents declined to take part in the planning process other than as observers and occasional commenters. Meanwhile, scars from the referendum signature-gathering process remain. When referendum proponents set up tables in front of stores, developer Bay Meadows Land Company (BMLC) sent its own representatives to provide counter-arguments and get signatures on petitions backing the project. The police broke up at least one confrontation. For decades, Bay Meadows was a regional landmark. Built during the Depression, the track is adjacent to the county's exposition grounds, and between the Bayshore Freeway and El Camino Real. The track's heyday came during the 1940s and '50s, but it apparently remained a successful operation for decades. More recently, though, horse racing has struggled nationwide, and the roughly 3,000 people who attend a race leave many empty seats in Bay Meadows' huge grandstand. In 1997, San Mateo approved what is now known as "phase one" redevelopment. It involved a specific plan for development of 734 residential units, 300,000 square feet of retail uses, and a 900,000-square-foot campus for investment giant Franklin Resources. The 75-acre site formerly had a practice track and horse barns. By late 2002, all but the final third of the Franklin project was completed. Designed by new urbanist architects at Calthorpe Associates, the project won a number of awards. Back when the city approved the phase one specific plan, PaineWebber Inc. controlled BMLC, which owned the entire 173-acre Bay Meadows site. Bay Meadows Land then sold chunks of the phase one site: Ryland Homes and apartment developer JPI built the housing, and Franklin built its own campus. A few years later, BMLC itself developed a 7.3-acre mixed-use project that serves as the centerpiece of phase one. Since then, BMLC has separated from its corporate owners and it is now a real estate investment trust backed by public pension funds and institutions. During the 1990s, the city started receiving projections of major population growth from the Association of Bay Area Governments, Scott recalled. So the city began looking for underutilized areas. Eventually, the city undertook a study of the Caltrain corridor and in June 2005 the city adopted a corridor plan for about 600 acres, including Bay Meadows, as an amendment to the general plan. At the same time it prepared the corridor plan, the city processed the Bay Meadows specific plan amendments for the race track site. In November 2005, the City Council unanimously approved the revised specific plan. The exact mix of uses is up to the developer, but the base program calls for 1,250 residential units, 1.25 million square feet of commercial uses, and 150,000 square feet of retail space. The plan designates 15 acres of parks and a town square, and envisions a mixed-use main street. Nearly all of the new development would be within four blocks of the train station, which is a stop for the "Baby Bullet" linking San Francisco with San Jose. The Hillsdale shopping mall is only two blocks west of the train stop. The plan also contemplates dramatic changes to the city's circulation. The railroad tracks, the race track, the practice track and the expo grounds made getting from point to point in that part of San Mateo a challenge. The specific plan calls for three new railroad grade separations, providing improved east-west circulation. Additionally, Delaware Street, a thoroughfare that now ends at the horse track parking lot, would be pushed through to improve north-south circulation. "The city will be knitted together a whole lot better than it has been in the past," Matthews said. City officials see other benefits, as well. Bay Meadows is not within a redevelopment project area – the area does not qualify, according to Scott — so all infrastructure improvements are the developer's responsibility. The development agreement between the city and BMLC requires advance payment of traffic mitigation fees to help fund two of the railroad undercrossings. And the city will get more than 15 acres of parks, plazas and easements, Scott said. In addition, the city's inclusionary housing ordinance, which does not allow in-lieu payments, requires that 10% of new units be provided for moderate-income residents, and the development agreement requires the donation of one acre for affordable housing development, which could provide at least 50 more affordable units, Scott explained. The Sierra Club, Greenbelt Alliance, Silicon Valley Leadership Group, San Mateo Housing Leadership Council and the League of Women Voters are among groups endorsing the project. "It's an excellent example of smart infill," said Michele Beasley, South Bay field representative for Greenbelt Alliance. The site is underutilized, on a commuter rail line, and provides a good alternative to development on the Bay Area's fringe, she said. Project opponents are not convinced. Pointing to promises made as recently as five years ago that the race track was safe, Save Bay Meadows Citizens Group co-founder Donna Bischoff contended that the city and landowner have been lying to citizens for years. That is why she and other opponents did not participate in a Citizens Advisory Commission (CAC) that helped write the corridor plan and endorsed Bay Meadows redevelopment. "Opposing views were really shut out of the process. The decision to develop Bay Meadows was made a long time ago," Bischoff charged. Schinkel, of Friends of Bay Meadows, agreed, calling the CAC "handpicked" and not representative. Opponents are unconvinced the project will improve congestion. They contend the new connections will only put more cars on existing thoroughfares. Schinkel said that although the train would serve the project, the train is the only good public transit choice, meaning that new residents and office workers mostly will drive. She also questioned why the city needs another dose of office space when vacancy rates have been at about 20% since the dot-com bust. "The track is irreplaceable. It's been part of San Mateo history for 71 years. It still makes a lot of money," Schinkel said "It's part of the social fabric here." She and other project opponents note that the industry is healthy enough that a Canadian developer has proposed building a new horse racing track in Dixon, about 25 miles southwest of Sacramento. Phase one development has also become an issue, partly because phase two is expected to be somewhat similar. "A lot of people believe phase one was poorly done," said Schinkel, who said many residential units are quite small. "More quality could have gone into phase one. What you see are a lot of stucco buildings." That argument strikes a chord with Matthews, an architect who was on the Planning Commission when phase one was approved. Some of the townhouses are quite narrow and maybe not functional, he said, and some of the architecture is not to his liking. He called the Franklin complex cold and forbidding. Still, phase one has been successful, and Matthews said that "a lot of the elements are there." Phase one has a broad mix of housing units — single-family houses, condominiums, townhouses, apartments, live-work flats — all within walking distance of a grocery store, a gym, a childcare center, coffee houses and restaurants. No unit is more than two blocks from a park. Whether the developer will seek to replicate phase one is unknown. Currently, design guidelines are being drafted, and the developer has submitted no application for entitlements, Scott said. "Phase two is really more challenging in many respects," said Matthews "because it's bigger and much more closely integrated with the rest of the city. We've got to make sure it's a transit-oriented development and not a transit-adjacent development." Litigation over the referendum is expected to proceed quickly. Interestingly, project opponents did not challenge the environmental impact report for the specific plan. Contacts: Stephen Scott, City of San Mateo, (650) 522-7207. Jack Matthews, San Mateo vice mayor, (650) 522-7049. Michele Beasley, Greenbelt Alliance, (408) 983-0856. Linda Schinkel, Friends of Bay Meadows, (650) 344-5424. Save Bay Meadows Citizens Group: www.savebaymeadows.org . Bay Meadows Land Company: www.bmlc.com .

Redevelopment plans in downtown San Bernardino appear to be advancing after many years of fits and starts. In January, proponents of a plan to replace an older neighborhood with a 44-acre lake won two lawsuits over the project. In February, LNR Properties, a subsidiary of homebuilding giant Lennar Corp., acquired a long-struggling mall. The developer plans to build at least 900 housing units on the site. Meanwhile, the city’s redevelopment agency is actively acquiring and assembling land for a 200-unit, live-work loft project. The lake project may be the most ambitious of the downtown efforts, and it is by far the most controversial. Eight years ago, the city, the San Bernardino Valley Municipal Water District and the Inland Valley Development Agency formed a joint powers authority (JPA) to carry out the project. The proposal has evolved over the years from a giant reservoir, to a series of small lakes and canals, to the project that was approved last year. The approved north lake area project calls for scraping clean an 82-acre, 16-block area on the north end of downtown, just east of the 215 freeway. A 44-acre lake, parks, 72 houses and 12 acres of commercial development would replace the existing neighborhood. The 53-acre south lake area project lies about 11 blocks south. It involves a 5-acre lake/wetlands area, and development of about 500,000 square feet of offices, retail stores and restaurants. The area is now the site of aging industrial buildings and houses, and the city’s redevelopment agency already has considerable holdings there. For the north lake project, the water district is responsible for acquiring property and relocating residents and businesses. The project would displace about 1,300 people living in 475 housing units, and about 50 businesses. The area is impoverished, blighted and crime-ridden, according to project backers, who cite a variety of census and police statistics to support their claims. The lake project is a needed step toward renewal of the downtrodden area, said Patrick Milligan, president of the water district’s board. Others are skeptical. James Mulvihill, a geography and planning professor at California State University, San Bernardino, said that the project follows the disproven “urban renewal” model, in which poor, aged and disabled people are displaced for to make room for more desirable people. “It would be an absolute embarrassment if San Bernardino actually carried through on this,” Mulvihill said. “We’ll be the poster child for 1950s-style redevelopment in the 21sth Century.” Area residents filed two lawsuits. One charged that the city failed to identify adequate replacement housing and that the project relied on outdated real estate information. The other lawsuit challenged the project’s environmental impact report, including its handling of historic structures. In January, San Bernardino County Superior Court Judge John Wade issued a tentative ruling against project opponents in both lawsuits. The opponents’ attorney, Louis Goebel, said he was awaiting a final judgment, but said that appeals were likely. “Our people would like to not have it happen at all,” Goebel said of the north lake project. “They are very happy there. They love their homes.” Other avenues are available for fighting the project, Goebel added. For one, the JPA has yet to complete an environmental impact statement (EIS) required by the National Environmental Policy Act. Documents suggest that two of the reasons for building the lake — cleaning up tainted groundwater and resolving problems with high groundwater — are bogus, according to Goebel. Water district and city officials dispute those contentions. The project’s heavy reliance on eminent domain also presents a potential problem because state lawmakers are considering changes to how and when public agencies may use eminent domain. Not all locals oppose the project, though. Walter Jarman, president of the NAACP’s San Bernardino chapter, said the organization is concerned about the impact on long-time residents. But, Jarman recalled, years ago Old Pasadena was a derelict district that people avoided. Now it is a national model of urban development. “I know something needs to happen here in San Bernardino regarding the living conditions and the whole gamut of problems that are in existence,” Jarman said. “But somebody always loses.” John Hoeger, the JPA’s project manager, said a relocation plan for the north lake project is nearly complete. The federal EIS is scheduled to be complete in January 2007. It is required because the water district intends to use federal funds to acquire property, Hoeger explained. The water district has secured about $20 million in federal funds for the project and hopes to get more. The entire project is expected to cost at least $150 million. Once the lake and other public improvements are complete, it will be up to the Economic Development Agency (the city’s redevelopment arm) to encourage adjacent housing and commercial development. The south lake project is not as far along. The city and its redevelopment agency, not the water district, will be in charge. Between the two proposed lakes lies the Carousel Mall, which has been dying a slow death since the mid 1990s and is now mostly an office building. Numerous entities have taken a run at refurbishing or replacing the mall, but nothing has happened. The mall’s acquisition by LNR has given the city hope, said Colin Strange, a project manager for the Economic Development Agency. “We’re very happy, and we’re very comfortable,” said Strange, who noted that LNR has asked for no public agency participation in the project so far. “They have long-range plans for either converting the mall or tearing it down, and creating, for want of a better word, an ‘urban village’ there.” Preliminary plans call for 900 to 1,100 housing units, along with retail and office development, according to Strange, who said the project would complement the new lakes. The mall and north lake project should spur new investment in the 20 blocks between the two projects, Strange said. Already, the city’s redevelopment agency is working with Watson & Associates on a 200-unit, live-work project in the area. The project site is next to a fairly new, city-built senior citizens center on 5th Street. Contacts: John Hoeger, lakes project joint powers authority, (909) 384-5133. Colin Strange, San Bernardino Economic Development Agency, (909) 663-1044. James Mulvihill, CSU San Bernardino, (909) 537-5522. Walter Jarman, NAACP San Bernardino Chapter, (909) 887-7411. Louis Goebel, lake project opponents attorney, (619) 239-2611.

A turf battle between two local agency formation commissions has concluded with an appellate court ruling that a commission from one county has jurisdiction to determine a sanitary district’s service area in another county. The issue decided by the Third District Court of Appeal is this: When a special district provides service in two counties, which county local agency formation commission (LAFCO) has jurisdiction over planning matters concerning the district’s work within an individual county? The court ruled that the LAFCO from the “principal county” — defined as the county with the most assessed value of the district’s taxable property — has jurisdiction, even if the planning matters in question occur in another county. The ruling came in a lawsuit filed by Placer County LAFCO against Nevada County LAFCO regarding the Truckee Sanitary District (TSD), which provides wastewater collection in the High Sierra. The TSD is one of nine special districts that provide service to portions of both counties. Nevada County LAFCO is the principal county for six of those districts, include TSD. Truckee Sanitary District proposed a sphere of influence expansion in Placer County that would overlay a substantial portion of the Northstar Community Service District’s existing sphere of influence. The Northstar district provides a variety of services, including wastewater collection. In 2002, Placer County LAFCO asked the court to determine which LAFCO had jurisdiction over the proposed sphere of influence proposal and which agency had authority to prepare a municipal service review for sewer services within Placer County. Sierra County Superior Court Judge William Pangman, sitting by assignment to the Placer County Superior Court, ruled that Nevada County LAFCO — the principal county — should determine the sphere of influence and perform the municipal service review. However, Judge Pangman also concluded that Placer County LAFCO could conduct its own service review, even if it could not determine the sphere of influence. Placer County LAFCO appealed, and a unanimous three-judge panel of the Third District upheld the lower court. There is no dispute that Nevada County is the principal county. Rather, the case turned on the interpretation of the Cortese-Knox-Hertzberg Local Government Reorganization Act (Government Code § 56000 et seq.), which governs local agency formation commissions. The law defines changes of organization as “a city incorporation/disincorporation; a district formation/dissolution; an annexation to, or detachment from, a city or district; a consolidation of cities or special districts; a merger or establishment of a subsidiary district.” The law defines sphere of influence as “a plan for the probable physical boundaries and service area of a local agency.” Local agency formation commissions conduct municipal service reviews to prepare and update spheres of influence. Placer County argued that under the statute, the principal county has jurisdiction over only “changes of organization” affecting other counties, and not over spheres of influence or service reviews in other counties. Because TSD was not proposing a change of organization or reorganization, Placer County LAFCO contended that it had jurisdiction over the sphere of influence request and service review. The court disagreed. “ hange of organization is what the Act is all about. It is why all LAFCOs exist, whether or not they are the LAFCOs of principal counties,” Justice Richard Sims III wrote for the Third District. “Once the principal county comes into being, we see no impediment to the Legislature giving the principal county jurisdiction over additional matters beyond changes of organization — matters such as spheres of influence and service reviews.” Placer County LAFCO made numerous arguments centered on local control and the intent of Cortese-Knox-Hertzberg, which is to discourage urban sprawl and provide for efficient provision of services. “However,” the court responded, “having a neighboring county (as opposed to the state) determine a sphere of influence for a multi-county district does keep the matter local, and having one county determine the sphere of influence for a multi-county district (as opposed to multiple counties within the district each determining their own sphere of influence for the district) is consistent with the objectives of planned growth and discouragement of urban sprawl.” Placer County LAFCO cited the Governor’s Office of Planning and Research’s “Local Agency Formation Commission Municipal Service Review Guidelines and Appendices,” and the 2000 report from the Commission on Local Government for the 21st Century, “Growth Within Bounds: Planning California Governance For The 21st Century.” The latter report was the basis for the overhaul of the then-Cortese-Knox Act. Placer County LAFCO argued that the OPR guidelines do not give exclusive jurisdiction to a principal county, and that “Growth Within Bounds” talked about limiting principal county jurisdiction to changes of organization. The court, though, was unconvinced. The court also rejected the contention that the trial court’s ruling was inconsistent because Judge Pangman ruled that although Nevada County LAFCO had “exclusive jurisdiction” over the service review, Placer County could conduct its own review. “We see nothing wrong with Placer County studying or reviewing services within its border,” the Third District ruled. “Its reviews simply do no constitute the ‘service reviews’ that will be used to establish and update spheres of influence under the Act for multi-county districts for which Placer County is not the principal county.” The Case: , No. 06 C.D.O.S. 410. Filed January 13, 2006. The Lawyers: For Placer County LAFCO: William M. Wright, (916) 783-2946. For Nevada County LAFCO: P. Scott Browne, (530) 272-4250. For Northstar Community Services District: Neil Eskind, (530) 583-5536. For Truckee Sanitary District: Ruthann Ziegler, Meyers, Nave, Riback, Silver & Wilson (916) 556-1531.

Cities may not use aesthetic considerations to regulate the placement of telecommunications antennas, the Ninth U.S. Circuit Court of Appeals has ruled. Under the California Public Utilities Code, “the regulatory power is functional, and does not extend to aesthetics,” the court ruled while invalidating the City of La Cañada Flintridge’s ordinance regarding telecommunications facilities. The ruling appears to be a major victory for telecommunications companies, with which California cities have an ongoing battle over the siting of antennas and other facilities for wireless communication. In 2001, La Cañada Flintridge adopted an ordinance regulating “above-ground structures along city public rights-of-way.” The ordinance spelled out criteria city officials were to use when considering permits for such structures. A number of criteria concerned the appearance of the proposed structures. In the months following the city’s adoption of the ordinance, Sprint PCS applied for five permits for antennas to remedy service dead spots in town. The city approved two applications, and Sprint dropped one. The city denied two other applications. The city denied an application for an antenna on Figueroa Street because it would “significantly damage the existing character of the neighborhood and result in a negative aesthetic impact on the right-of-way,” change the character of the neighborhood, impact residents’ views of the neighborhood and be “unsightly.” The city rejected an antenna proposed for Descanso Drive because the antenna would result in an over-concentration of such structures, would be “out of character for the neighborhood,” and would “draw attention in a negative aesthetic manner along the street.” Sprint sued over the two rejections. District Court Judge David Carter upheld the city’s decisions. A unanimous three-judge panel of Ninth Circuit not only overturned the lower court, but also threw out the city’s ordinance. According to the appellate panel, California Public Utilities Code § 7901 governs the city’s ability to regulate in this area. “Section 7901 gives telephone companies broad authority to construct telephone lines and other fixtures,” Judge Diarmuid O’Scannlain wrote for the court. “By the plain text of the statute, the only substantive restriction on telephone companies is that they may not ‘incommode the public use’ of roads.” “The text,” O’Scannlain noted, “focuses on the of the road — its use, not its enjoyment.” However, § 7901.1 provides two modifications to the general rule of § 7901. The former permits regulations based on “time, place and manner,” and on how facilities are accessed. A proposed antenna’s appearance could conceivably be regulated under the “manner” provision. But, the court ruled, that would be an “illogical” reading of the statute. “Section 7901.1 only gives cities the authority to regulate the manner in which roads ‘are accessed,’ not the authority to regulate the manner in which telephone companies affect the road’s appearance,” O’Scannlain wrote. Under the law, cities cannot consider evidence regarding aesthetics when reviewing a permit application, the court ruled. The city argued that the federal Telecommunications Act of 1996 reserves the city’s police powers and even mandates city autonomy. The court rejected this argument. O’Scannlain explained it thusly: “If the local ordinance is valid under the Telecom Act, despite being invalid under state law, then the Telecom Act effectively provides a measure of sovereign authority to cities, which their own state constitutions and statutes deny them. The language of subsection (c)(7)(A), however, does not imply that local law should be valid to the exclusion of state law, but merely that local law itself may not be ignored. Thus, if the local law itself is invalid — for example, because it conflicts with state law — then subsection (c)(7)(A) will not save it.” “ here is no local authority here in the first place — state law has already preempted local authority,” the court concluded. The authority sought by La Cañada Flintridge “would be antithetical to the purpose of the Telecom Act,” whose goal is to promote higher quality telecommunications services and rapid deployment of new technologies. The Case: , No. 05-55014, 06 C.D.O.S. 451. Filed January 17, 2006. The Lawyers; For Sprint: John J. Flynn III, Nossaman, Guthner, Knox & Elliott, (949) 833-7800. For La Cañada Flintridge: Scott Grossberg, Cihigoyenetche, Grossberg, & Clouse, (909) 483-1850.

The question of whether a transportation agency must perform an environmental review before placing a sales tax measure on the ballot remains unresolved. In a case from San Bernardino County that could have answered the question, the Fourth District Court of Appeal instead ruled on a procedural matter. The Sierra Club argued that San Bernardino County should have prepared an environmental impact report before a half-cent sales tax measure for transportation appeared on the November 2004 ballot. However, the Fourth District ruled that the Sierra Club should have challenged the San Bernardino Associated Government’s decision to exempt the sales tax measure and expenditure plan from environmental review. The Sierra Club did not choose this line of attack. Instead, the group challenged the Board of Supervisors’ conclusion to exempt from review the decision to place the measure on the ballot. That was not the proper legal route for the Sierra Club, the court ruled, because the Board of Supervisors’ decision to place the measure on the ballot was ministerial and, therefore, exempt from the California Environmental Quality Act (CEQA). “That troubles me,” Sierra Club attorney Barrington Daltrey said of the ruling, “because we’re saying that the public agency that is paid to carry out the law can play ‘gotcha.’” The California State Association of Counties, however, was pleased with the ruling. The association had submitted an amicus brief contending that a Board of Supervisors has no discretion over ballot measures sent from other governmental entities for placement on a county ballot. The Fourth District agreed the board’s duty in such instances is ministerial and not subject to CEQA — a decision that is helpful to counties, said Jennifer Henning, CSAC litigation coordinator. Different agencies provide different answers to the question of whether to study the potential impacts created by a proposed sales tax measure and its related spending plan. Most transportation agencies have not performed environmental review prior to the placement of a sales tax measure on the ballot. But in recent years, transportation agencies in Contra Costa County and San Francisco have completed environmental evaluations prior to putting sales tax extensions on the ballot. The Orange County Transportation Agency has indicated it will do the same before seeking an extension. San Bernardino Associated Governments (SANBAG) was in the majority of agencies that declined to complete an environmental review. In June 2004, SANBAG authorized a 30-year extension of an existing half-cent sales tax override, adopted a transportation expenditure plan and requested the San Bernardino County Board of Supervisors place the extension before voters. On June 15, 2004, SANBAG posted a notice of exemption stating that its decision was not a project under the California Environmental Quality Act (CEQA). Two weeks later, the Board of Supervisors approved placing the measure on the ballot and posted its own notice of exemption. On August 3, 2004, the Sierra Club filed a lawsuit contending that SANBAG and the county were required to prepare an EIR before placing the measure on the ballot. The election went ahead, and 80% of voters approved the sales tax extension (see , December 2004, October 2004). The measure is expected to raise $6 billion over 30 years starting in 2010. The county and SANBAG asked San Bernardino County Superior Court Judge Shahla Sabet to dismiss the Sierra Club’s lawsuit. When she declined to do so, SANBAG appealed. On appeal, the Sierra Club presented two primary arguments: First, the county, as a member of SANBAG, helped shaped the measure, so it had a duty to study the environmental consequences. Second, the group argued, placing the measure on the ballot was a discretionary action requiring environmental review. In overturning the lower court, the Fourth District rejected both lines of reasoning. The court noted that the Local Transportation Authority and Improvement Act (Public Utility Code § 180200 et seq.) gives the sales tax override jurisdiction to the county transportation authority, not to the county itself. “The purposefully broad-based process for approving the expenditure plan and the two-thirds requirement for the authority to adopt the sales tax ordinance indicate the Legislature’s intent to prevent the county from exercising its concentrated power over the dispersed and, presumably, less powerful individual cities. This purpose would be poorly served if we were to read into the act a discretionary power or duty on the part of the Board to reject or change the sales tax ordinance and expenditure plan it has been formulated, reviewed and approved by the authority and its members,” Justice Jeffrey King wrote for the unanimous three-judge appellate panel. The court then turned to the issue of whether the Board of Supervisors’ decision to place the measure on the ballot was discretionary. The Sierra Club argued that, under , (2001) 25 Cal.4th 165 (see , May 2001), any public agency must comply with CEQA before placing a measure on the ballot. “A close reading of does not support the Sierra Club’s position,” Justice King opined. “The precise holding of the Supreme Court in is as follows: ‘CEQA compliance is required when a project is by a public agency.’” In this case, King wrote, SANDBAG — not the county — generated the ballot measure. The county “was merely the agent of SANBAG.” “If the expenditure plan or the measure required compliance with CEQA (a question we do not decide), it was SANBAG, as the body substantively responsible for the measure, that would have been required to conduct an environmental review,” the court held. “The governmental officials who shape the contents of the expenditure plan, and who must be knowledgeable about the environmental consequences of their decisions, are the members of SANBAG.” The Sierra Club pointed to Local Transportation Authority and Improvement Act language that says a transportation agency shall “request” a Board of Supervisors place a measure on the ballot. The term “request” implies that the board has discretion, the environmentalists argued. The Fourth District, though, found that a request “is merely the event that triggers the calling of the special election; as such it implies no discretion or decision-making power in anyone.” Finally, after determining the county did not have to perform an environmental review, the court ruled that the lawsuit was filed after the statute of limitations had expired on SANBAG’s notice of exemption. Daltrey, the Sierra Club’s attorney, said that a master EIR on the transportation expenditure plan would have provided the best study of cumulative impacts, and would have provided useful information for voters. Now, SANBAG will have to address cumulative impacts while reviewing every individual project, he said. SANBAG officials have contended throughout the controversy that it would be pointless to study the potential impacts of projects that will not be carried out for years or even decades because an EIR would be obsolete by the time a project commences. The Case: , No. E037468, 06 C.D.O.S. 675, 2006 DJDAR 893. Filed January 23, 2006. The Lawyers: For SANBAG: Michelle Ouellette, Best, Best & Krieger, (951) 686-1450. For Sierra Club: Barrington Daltrey, (951) 780-5131.

A state appellate court has overturned a trial court judge’s decision to impose a mobile home park rent increase in the City of Carson. Rather than impose the rate hike, Los Angeles County Superior Court Judge Dzintra Janavs should have sent the matter back to the city’s Mobilehome Park Rental Review Board, the Second District Court of Appeal ruled. The decision, however, does not rule out the possibility of a major rent increase for tenants in the Carson Gardens mobile home park. Like many cities, Carson regulates the amount that park owners may charge mobile home residents for the rental of a park space. The controversy at hand stems from an application filed in October 2000 by Carson Gardens LLC for a rent increase of $105.50 per month per space. Carson Gardens LLC had purchased the mobile home park three years earlier for $1.5 million on a line of credit. The landlord proposed the park’s first rent increase since 1993 — which would have amounted to 44% to 51% per space — based on a “gross profits maintenance analysis.” Essentially, the landlord argued that under the city’s rent control guidelines, it should earn the same profit as the previous owner, even though the previous owner had no mortgage and, thus, far lower expenses. The city’s Rental Review Board refused the request and, in August 2001, instead granted a 9.68% rent increase based on half of the increase in the consumer price index since 1993. The board reasoned that Carson Gardens LLC could not expect to earn the same profit as the prior owner, and that only the increase in the CPI since the new landlord acquired the park should apply. The park owner sued, and, in April 2003, Judge Janavs directed the board to set aside the 9.68% increase and conduct a new hearing. She specifically ordered the board to “apply the gross profits maintenance analysis discussed in the guidelines … or another reasonable analysis or methodology that gives due consideration to the park’s actual reasonable operating expenses, including actual reasonable expenses incurred in acquiring the park.” The city did not appeal the judge’s ruling. It conducted a new hearing at which the board considered a “maintenance of net operating income” methodology, which excluded debt service. The board settled on a monthly rent increase of $36.44 based largely on inflation. The board found that passing through to tenants the amount of mortgage interest would be unreasonable and would create a windfall for the current park owner. Carson Gardens LLC returned to court seeking enforcement of the April 2003 order. Judge Janavs determined that the city did not comply with the earlier order and, in December 2004, ordered a rent increase of $113.36 retroactive to August 1, 2001. Janavs conceded that the $113 hike might be excessive, but she said she could not determine a fair return for the park owner because the city had not used the methodology she ordered. This time, the city appealed. The city argued that it complied with the first order by applying the maintenance of net operating income methodology. The appellate court promptly rejected the argument, noting that the rent board chose that approach specifically because it deleted debt service costs from the process. However, the Second District accepted the city’s argument that Judge Janavs exceeded her authority. In issuing the December 2004 order, the judge herself conceded she could not determine a fair return based on the evidence before her. “Under these circumstances,” Justice Paul Boland wrote for the unanimous three-judge appellate panel, “we think the court was obliged to remand the case once again, so that the board can exercise its discretion on the question of whether passing through the entire amount of debt service costs was necessary to provide a fair return.” The park owner argued that sending the case back to the rent review board was unnecessary because the board could apply only the gross profits maintenance analysis without deviation. The court disagreed. “While the board cannot take new evidence on remand, nothing in the city’s ordinance requires the board to apply any particular formula or methodology without deviation,” Boland wrote. The court noted that Judge Janavs’s decision amounted to punishment of the mobile home park tenants for the board’s failure to comply with a court order. The Second District threw out the $113 rent increase and sent the matter back to the city’s rent review board for a decision consistent with Judge Janavs’s original order. The Case: , No. B180308, 06 C.D.O.S. 482. Filed January 17, 2006. The Lawyers: For Carson Gardens LLC: Robert Coldren, Hart, King & Coldren (714) 432-8700. For the city: William Wynder, Aleshire & Wynder, (949) 223-1170.

Some people hissed in January when landscape architect Ken Smith won the competition to design the future Orange County Great Park. The 1,347-acre portion of the former Marine Corps Air Station El Toro in south Orange County was a covetable plum if ever there was one. In the world of landscape design, the selection of Smith was an event on the scale of an upset at the Olympic Games. Smith is best known for small parks in New York, particularly a tony rooftop garden in the newly renovated Museum of Modern Art in Manhattan. For the Orange County job, Smith assembled a team of designers, including Mexican architect Enrique Norten, Los Angeles-based landscape designer Mia Lehrer & Associates and artist Mimi Smith. How, then, did this small-time interloper win the El Toro competition over such titans of turf as Laurie Olin, likely the busiest and best-known landscape architect in the country, and Hargreaves Associates, which designed the fine, three-mile-long Guadalupe River Park in San Jose? Even the normally good-natured Christopher Hawthorne, architecture critic of the Los Angeles Times , was snarking about the owlish New Yorker. "Is Ken Smith capable of executing a project of this expense, complexity and sheer size?" he asked, sounding unconvinced. The "more vexing question," Hawthorne went on to write, "frankly, is whether Smith's final scheme will be up to the task strictly from a design point of view." Well, that is the critical question on this and any other design. Still, I think Smith's scheme, as it stands, is an inspired beginning. True, the current plan offers a limited amount of information, and we will not really know how successful it will be until it is built. That said, I think the Great Park has a better-than-even chance of becoming a memorable set of trails, views, habitats and, above all, experiences. One thing that inspires confidence in Smith's park scheme is simplicity. While the site is "flat, featureless and uncomfortable," as the architect told reporters last month, it does have some streams and remnants of wetlands. Out of these vestigial elements, Smith has fashioned essentially three organizing events: a "great canyon" along the east, a wetlands area along the west, and a central area that finds use of the old runways, including a through-road and an aviation museum. The canyon accomplishes the most difficult and important task of all, which is to provide a unifying element that ties the park together. A linear trail along a continuous landscape feature is a simple idea. The exciting part is the way that Smith has enriched this simple idea: Like a natural canyon, the artificial canyon is constantly changing in width, depth and profile. The canyon is a way of relieving the tarmac-like flatness of the former El Toro. Significantly, Smith's drawings show different cross-sections of the canyon at different points. The canyon is a condition in constant change, offering a variety of experiences along the way. The canyon terminates at the south in what the designers call a "lake feature." The wetlands is a little hard to decipher from the map. Wetlands are fragile environments, so I assume that Smith and his team will create wooden boardwalks that stand clear of the spongy soil, or some other way that allows people to go swamp crawling without destroying habitat. I wonder if this proposal excites Orange County residents; if not, it should. I have seen three wetlands parks — one in McGrath State Beach in Ventura County, another in Sherman Oaks at Sepulveda Dam and a third at a natural history museum in Aspen, Colorado — all of which are successful. Much of the interest of a wetlands comes from the life it attracts—the ducks, frogs, pelicans and other fauna that seem to appear from nowhere. The proposed wetlands in the Great Park will be large enough to make visitors feel immersed in the experience. And it could provide habitat of real value to migratory waterfowl, who have been left with very little in Southern California, Bolsa Chica and Playa Vista notwithstanding. The proposal has its share of "programmed" spaces, such as the aviation museum and an amphitheater. It is currently a popular doctrine that parks need programming to attract loads of people, and some park designers, especially in urban settings, can get pretty manic with programming. Here the programming seems kept to a tolerable level—enough to sell the project to people who believe that programming is civic minded and makes the park more attractive to "constituencies." Happily, there are no "exploration" forests or "discovery" gardens to make our children go goggle-eyed. When completed, the Great Park will conclude years of controversy regarding the reuse of the former military base. When the last marine left El Toro in 1999, the official reuse plan called for development of a large, civilian airport. However, leaders of nearby cities, especially Irvine, resisted the proposed airport, and led two successful ballot measures to block the project. Since then, Irvine has taken control of El Toro, designating roughly half of the 4,700-acre site for wildlife habitat, parks and civic uses, including the Great Park. Lennar, a homebuilder, paid $650 million for 3,718 acres, donating about 1,500 acres to the city, including the park land, as a precondition of development. Park construction is scheduled to start this spring, although the park as envisioned may take a while to arrive. Like many other military bases, El Toro sits uneasily on ground steeped in carcinogens and other hazardous materials. The Pentagon plans to spend at least $300 million to clean up the toxic stew. Park development is expected to cost $400 million. Of course, details are everything, and the park must be well-designed at human scale, as well as at the 30,000-foot viewpoint of this site plan. But at least the park has a strong scheme to start with. A strong scheme by itself will not make a great park, but it's far easier to make a great park with a strong scheme than without one. As for the charge of Smith's inexperience, it may be meaningful, or may just be a canard. Mia Lehrer, a consultant on the project, observed that Frederick Olmstead won the job of designing New York's Central Park fairly early in his career, when he had few projects to his name. "The last I heard," she said dryly, "people were still enjoying that park pretty well."

The state Supreme Court has been extraordinarily active in the field of land use during recent weeks. The court has accepted for review an important case involving the environmental impact report for the Cal-Fed Bay-Delta Project. The court also took a case involving redevelopment in the City of Stockton. In addition, the court ordered two recent appellate court land use decisions to be decertified, and the high court dismissed because of new state legislation a State Lands Commission case that was under review. The Cal-Fed case accepted for review is , No. S138975. The case concerns the EIR for the gigantic Cal-Fed project, a 12-year-old state and federal effort to improve the ecological health of the Sacramento-San Joaquin River Delta and provide a more assured urban water supply. Last year, the Third District Court of Appeal ruled that the EIR was inadequate because it failed to identify what water would be used to carry out the program, did not consider a project alternative that included reduced exports of Delta water to Southern California, and failed to provide details of an “environmental water account” (see , November 2005). The decision was a victory for an odd-bedfellows collection of environmentalists and Central Valley farmers. On the opposite end of the decision were other Central Valley farmers and irrigation districts, and urban water providers, including the Metropolitan Water District of Southern California. The decision provoked a great deal of discussion amongst water and California Environmental Quality Act experts, some of whom said that if the massive Cal-Fed EIR was inadequate, then no EIR was safe. One specific concern with the Third District’s decision was the ruling that the EIR’s discussion of project alternatives was inadequate because none of the alternatives contemplated reduced export of water to Southern California. The court said that the EIR did not have to assume that continued population growth in Southern California was a given. That reasoning stunned many observers. An analysis of the Third District decision by Los Angeles law firm Weston, Benshoof, Rochefort, Rubalcava & MacCuish noted, “There are state and local laws that compel cities, counties and local agencies to plan for and accommodate the state’s growing population. Despite these clear legal mandates to meet the needs of a growing population, the court’s requirement to analyze the ‘feasible’ alternative of a purposeful plan to not meet those needs in order to encourage ‘no growth,’ appears to disregard both law and policy. Indeed, compounding this problem, the court’s holding that water agencies should analyze whether such future growth should be accommodated at all seems to utterly confuse the proper role of water and land use agencies.” That argument apparently gained traction at the state Supreme Court, which voted 6-0 (Justice Ming Chin recused himself) to accept the case for review. Opening briefs are due this month. The state’s high court now has two water/EIR cases under review. The other is , No. S132972. In that case, the Third District upheld an EIR’s handling of the water supply for the 22,500-housing unit Sunrise Douglas community plan area (see , April 2005, March 2005). The high court’s decision to review effectively depublished the Third District’s opinion. That means there is not a single published decision upholding an environmental impact report’s water supply analysis, Margaret Moore Sohagi, of Fox & Sohagi, recently noted. In an advisory, Morrison & Foerster said that the Cal-Fed and cases “should be particularly important to all stakeholders in the CEQA process, as it has been many years since the California Supreme Court has considered a CEQA case involving the substantive requirements for environmental impact reports. Also, while there have been a number of Court of Appeal decisions on the application of CEQA to water issues, the Supreme Court has not yet ruled on these important issues.” The other land use case recently accepted by the state Supreme Court, , No. S139237, actually has to do with contract law and the Government Claims Act. The litigation involves a contract that the city signed with a developer, Civic Partners Stockton, LLC, for two downtown redevelopment projects. The city eventually cut Civic Partners out of the redevelopment projects, prompting a breach of contract suit by the developer. The Third District ruled that Civic Partners could not pursue the lawsuit because the developer did not present the city with a claim for damages before filing suit (see , December 2005). The question for the state Supreme Court is whether such a claim is a mandatory prerequisite to litigation. The state Supreme Court declined to review two other land use cases, but the court did decertify the appellate court opinions, meaning they have no value as precedent. In late January, the state Supreme Court decertified the Second District Court of Appeal’s decision in , No. S139913. In that case, the Second District Court of Appeal ruled that the owners of Santa Anita Park horse track did not wait too long to file a lawsuit seeking to correct a property title error (see , January 2006). Shopping mall owner Westfield, which gained title to the 2.3-acre parcel in question by error, is fighting the horse track owners over a development project on the site. In February, the state Supreme Court decertified the Third District’s opinion in , No. S139741. In that case, the court ruled that a Caltrans’ EIR of a proposed Highway 50 interchange to serve a planned Indian casino was inadequate (see , January 2006). The court ruled that Caltrans’ handling of air quality impacts was unacceptable because the agency determined the project would not have a cumulative impact on air quality, but the agency did not reveal what the specific, project-related impacts would be. The decision appeared to throw into doubt Caltrans’ standard approach for studying transportation projects’ air quality impacts. Caltrans officials expressed satisfaction that, although they lost the case, the Third District’s ruling will not set a precedent. The Third District also rejected the EIR on the grounds that Caltrans did not consider a smaller Indian casino as a project alternative. Revisions to the EIR are already in the works. Finally, the state Supreme Court dismissed and remanded to the Third District the case of , No. S134300. In that case, the court blocked a land exchange between the State Lands Commission and the City of Long Beach. The court ruled that the exchange violated the state law permitting a swap of land covered by the tidelands public trust doctrine (see , July 2005). The land in question is three acres that had been tidelands when it was transferred from the state to Long Beach in 1911. The city filled the land during the 1950s. More recently, the site was developed into Pike at Rainbow Harbor, which includes a movie theater, arcade and retail shops. Project opponents argued that public trust tidelands cannot be developed, so the State Lands Commission removed the three acres from the public trust and, in exchange, accepted 10 acres of city-owned land along the Los Angeles River into the public trust. Although such exchanges are fairly routine, the Third District held that the Long Beach swap was not explicitly allowed under state law. The state Supreme Court accepted the case for review. After that, the state Legislature passed SB 365, which rewrote Public Resources Code § 6307 to permit such exchanges. Once the SB 365 changes became effective, the state Supreme Court dropped the case and directed the Third District to reconsider in light of the new law.

A proposed hotel that is consistent with a redevelopment plan, which itself has been the subject of a program environmental impact report, does not require a new environmental study, the Fourth District Court of Appeal has ruled. In a decision regarding a hotel proposed for downtown San Diego, the unanimous three-judge appellate panel ruled that the “fair argument” standard did not apply to a redevelopment agency’s determination that a project’s potential impacts were adequately analyzed by an earlier program EIR. Rather, the “substantial evidence” test applied, and the city provided such evidence, the court held. The decision appears to provide a boost to San Diego’s ongoing downtown revitalization efforts — specifically, the Horton Plaza redevelopment project. In 2002, a group that included Westfield America, Inc., and Horton Land LLC proposed development of a 30-story, 460-room Intercontinental Hotel. The hotel was proposed above a parking garage for Horton Plaza, an open-air mall near the new downtown baseball stadium. The city prepared a “final environmental secondary study” that concluded the hotel project would have significant environmental impacts, including traffic congestion and air pollution. However, the city determined that those impacts had already been analyzed in a “master” EIR adopted in 1992 for downtown redevelopment, and in a 1999 subsequent EIR that covered the baseball stadium and ancillary projects. In November 2002, the city approved the hotel project without additional environmental review. A group called Citizens for Responsible Equitable Environmental Development (CREED) sued the city, its redevelopment agency and the Centre City Development Corporation, a city-controlled entity that carries out downtown redevelopment projects. CREED argued that the city violated the California Environmental Quality Act (CEQA) by approving the hotel without a project-specific EIR. San Diego County Superior Court Judge Linda Quinn ruled for the city. CREED appealed but lost again. The project opponents argued that, under Public Resources Code § 21090 (a section of CEQA), every project undertaken as part of a redevelopment plan must undergo project-level environmental review. The Fourth District, though, read § 21090 differently and ruled that the statute prohibits an agency from requiring project-level environmental review if a project EIR has already been prepared. San Diego’s 1992 EIR, although called a “master” EIR, was actually a program EIR — not a project EIR — and “§ 21090 does not require an agency to prepare an EIR for a project whose environmental impacts have been sufficiently analyzed in a prior program EIR or master EIR,” the court ruled. CREED contended that a fair argument could be made that the project would have substantial environmental impacts. “However,” Justice Cynthia Aaron wrote for the court, “the fair argument standard does not apply to judicial review of any agency’s determination that a project is within the scope of a previously completed EIR. Once an agency has prepared an EIR, its decision not to prepare a supplemental or subsequent EIR for a later project is reviewed under the deferential substantial evidence standard.” Justice Aaron cited , (2003) 114 Cal.App.4th 689 (see , February 2004), in which the court ruled that the more deferential substantial evidence test in these instances “is a reflection of the fact that in-depth review has already occurred.” The project opponents argued that the hotel project was not proposed until after the earlier EIRs were completed. The opponents pointed to a ruling in , (2002) 103 Cal.App.4th 268 (see , December 2002), in which the court ruled that the city could not rely on an earlier program EIR when approving a port expansion project because the program EIR did not address the project’s environmental concerns. The Fourth District, however, ruled that the San Diego case was different because San Diego performed an initial study that concluded the 1992 and 1999 EIRs had adequately examined all of the hotel project’s potentially significant impacts. “To hold that a project specific EIR must be prepared for all activities proposed after the certification of the program EIR, even where the subsequent activity is ‘within the scope of the project described in the program EIR,’ would be directly contrary to one of the essential purposes of program EIRs, i.e., to streamline environmental review of projects within the scope of a previously completed program EIR,” Aaron wrote, citing CEQA Guidelines § 15168, subdivision (c)(5). In fact, the court noted, the earlier EIRs addressed the hotel’s potential impacts, and the redevelopment plan designated the area in question for commercial and office development, with an emphasis on hotels. The Case: Filed November 30, 2005. The Lawyers: For CREED: Cory Briggs, (909) 949-7115. For the city: Heidi Wierman, city attorney’s office, (619) 533-5800. For Horton Land LLC, Jenny Goodman, Sullivan, Wertz, McDade & Wallace, (619) 233-1888

Fontana has broken ground on a large new library that, city officials and library boosters say, could become a building block of downtown revitalization. At 93,000 square feet, the Fontana Library and Resource/Technology Center will be more than four times the size of any existing facility in the San Bernardino County-run library system. Project planners envision the library as a lively place with extensive educational, employment training and cultural offerings. The Fontana library will be a destination, said Patricia Laudisio, a former San Bernardino County library facilities manager who is coordinating the county’s role in the Fontana facility’s development. The library site is adjacent to an outdoor amphitheater and a 1937 art deco movie theater that the city’s redevelopment agency is refurbishing for use as a dinner theater. “What the city is really creating is a civic center for cultural events,” Laudisio said. Fontana is hardly known as a center of culture and literature. The hometown of author Mike Davis, Fontana is better known as the home of Kaiser’s huge — but now closed — steel mills. During the 1990s, part of the old Kaiser plant was redeveloped as California Speedway, which attracts tens of thousands of auto racing fans several times a year. Until recently, Fontana’s downtown was a forgotten land. Route 66, which traversed the core of numerous Southern California cities, bypassed downtown Fontana. Later, Interstate 10 drew the focus even further from downtown while the city became a major player in the shipping and warehousing industry. Recent city councils, however, have decided to reverse the trend and bring downtown back to life. The library is a key part of the downtown redevelopment strategy. City and county officials began planning for a new library during the late 1990s. The existing library was built in 1964, when Fontana’s population was about 20,000. Today, the city has eight times as many residents and continues to grow by 6,000 to 8,000 people annually. “The library that we have is just absolutely inadequate to meet the needs of the community,” said Ray Bragg, the city’s redevelopment and special projects director. The city submitted applications for $20 million in funding from the 2000 state library bond but was turned down twice. In 2004, the city reduced its request, and the state approved a $14.9 million grant, which will provide one-third of the Fontana project’s funding. The city has committed $13 million in redevelopment funds and $2 million in development impact fees to the $45 million project. The final $15.1 million is supposed to come from private contributions, including money from a lawsuit settlement. The city will build, own and maintain the facility, while the county will operate it. Because the state twice rejected the city’s application, officials had a great deal of time to consider the community’s needs, Bragg said. By the time the state awarded funding, the city and county knew what resources and services a new library should offer. Plus, architectural drawings were 90% complete, Bragg noted. “We really paid attention to what the community expected to see,” Laudisio said. “One of their major requests was more computers. We will have about 205 public use computers.” About 25 of those computers will be Spanish language. The library also will have ports for laptop computers and wireless Internet service. The new facility will have a 330-seat auditorium for library events and city functions. Additionally, the library will have a family learning center that features a computer center, literacy programs, a career center and resources for children doing homework. Another 2,000 square feet will be dedicated to children ages 5 and younger. The facility has been designed with many “inviting people spaces,” Laudisio noted. “The two things that really draw people into libraries are that the staff is friendly and cheerful, and that the facility is comfortable and warm,” she said. RNL Design of Los Angeles has based its plans on the mission style, but with modern updates. The main entrance will be via a plaza with a fountain and clock tower. At the other end of the building will be a large rotunda that overlooks Sierra Avenue, downtown Fontana’s main drag. Parking will be subterranean. The library is just south of city hall, adding to a civic center that demonstrates the city’s commitment to downtown, Bragg said. Besides the library, the city is developing a historic plaza. A bungalow from 1910 was moved onto the plaza and the building now serves as a historical society research library. The plaza also features a new memorial rose garden and a relocated stone chapel. Nearby is an old freight depot that is being renovated for use as a coffee bar and art studio. Besides putting money into the library and theater projects, the redevelopment agency also is implementing a façade improvement program along Sierra Avenue. The agency recently secured a façade easement for all buildings along one block. Later this year, the city plans to replace the existing mish-mash of building fronts with architecturally consistent facades, Bragg said. In coming years, the city plans to extend the façade program to at least three more blocks. “We’re trying to make a visual change in downtown, which, hopefully, means people will stop and shop,” Bragg said. It also should mean that people will invest in downtown businesses, he added. “Our ideas are not grandiose and out of scale. We know that Trader Joe’s is never going to come downtown. We know that PF Chang’s is not going to come downtown. We got over it,” Bragg said. Instead, the city would like to see locally owned, small businesses opening downtown. The aesthetic improvements and the new centers of activity are all part of the plan, he said. The city broke ground on the new library in November 2005. A grand opening is scheduled for early 2008. Contacts: Ray Bragg, City of Fontana, (909) 350-7697. Patricia Laudisio, San Bernardino County Library, (909) 350-6588. Project website: http://www.fontanalibrary.org

Proposed alterations to the inside of a private residence are not subject to California Environmental Quality Act review, even if the alterations would affect a historic structure, the First District Court of Appeal has ruled. “What an owner plans to do to the private interior of his or her home does not implicate a significant adverse effect on the environment, which is the predicate for requiring CEQA review by a municipality,” the court held. Under CEQA, the construction or remodeling of a single-family home is exempt from environmental review. However, the question posed in the case was not as black-and-white as might appear on first impression. The building in question is known as the Atkinson House, located in San Francisco’s Russian Hill neighborhood. The house was built in 1853, making it one of the oldest structures in San Francisco. In 1893, famed architect Willis Polk designed an interior remodeling of the Atkinson House that featured his trademark redwood woodwork. San Francisco designated the Atkinson House a “city landmark” in 1977, and the entire Russian Hill neighborhood has been on the National Register of Historic Places since 1988. One factor in the National Register’s listing decision was the Polk-designed redwood interiors in some Russian Hill homes. In 2001, Francis Martin III, who owns the Atkinson House, submitted plans to alter the building’s interior and exterior. The San Francisco Planning Department responded that the interior space contributed to the National Register listing, making the interior part of a historic resource. Thus, alteration would not be categorically exempt from CEQA, the Planning Department advised. The city declined to process the application for interior alterations until Martin submitted an “environmental evaluation application.” Instead, Martin submitted a lawsuit seeking a court declaration that CEQA did not apply to his proposed interior modifications. He also sought a pronouncement that San Francisco had no discretion under § 26 of the San Francisco Business and Tax Regulations Code to deny a permit that complied with local building codes and zoning ordinances. San Francisco Superior Court Judge Peter Busch provided Martin with no relief. When Martin appealed, the city argued that § 26 gave the Planning Department and an appeals board discretion in deciding whether to issue a building permit. Because it was a discretionary project, the city argued, it must review the project under CEQA, particularly considering the historical resources at stake. The First District, however, rejected the city’s arguments and overturned the lower court. “ t is noteworthy that one of the CEQA guidelines, known as the ‘common sense’ exemption, excludes activities ‘covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment,’” San Francisco Superior Court Judge John Munter, sitting on assignment to the First District, wrote for the court. “‘Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.’ This exemption applies even where a local agency has discretion to approve or deny a project.” The general principle is that the construction or modification of one single-family residence is not covered by CEQA, Munter wrote. “A local agency’s discretionary authority cannot negate this exemption.” What matters, he continued, is “whether a project will affect the environment of persons in general.” “That sine qua non of CEQA is missing here; no one not actually inside Martin’s house will have any percipient awareness that interior modifications have been made. A purely intellectual understanding that work by Willis Polk may no longer be within an unobservable part of another person’s private living quarters will not suffice to establish a significant effect on the environment. That what Martin proposes may strike some as cultural vandalism will not bring it within the ambit of CEQA unless there is a physical impact on the environment,” Munter wrote. “Destruction of an irreplaceable antiquity not being savored by the public does not qualify as a significant effect. … In fact, environmentally speaking, it is no change at all.” As to whether the city must issue Martin’s requested permit under § 26, the court declined to rule because the city has made no decision yet on the application. The Case: , No. A107768, 06 C.D.O.S. 45, 2006 DJDAR 120. Filed December 29, 2005. The Lawyers: For Martin: Jonathan Bass, Coblentz, Patch, Duffy & Bass, (415) 391-4800. For San Francisco: Sarah Owsowitz, city attorney’s office, (415) 554-4700.