In an unusual case from the wilds of Plumas County, the Third District Court of Appeal has rejected the claims of a property owner who argued that a county ordinance allowing a neighbor’s livestock to graze on his land amounted to an unconstitutional taking. The court’s opinion, written by Justice Tani Cantil-Sakauye, offers an interesting look not only at takings law, but at the traditional grazing practices of the West. In the 1800s, California adopted a “fencing out” livestock policy: Livestock were free to graze, and if someone wanted to keep livestock off his land, he had to put up his own fence. The law also prohibited owners of unfenced land from seizing stray livestock. This approach was counter to the rule of common law that required cattle owners to fence in their animals. Over the decades, particular areas and counties began adopting the common law “fencing in” policy, and a 1915 state law repealed the “fencing out” laws in most California counties, including Plumas County. However, an uncodified statute approved by the Legislature in 1919 (Statutes of 1919, Chapter 284, §1, p. 464) spells out exceptions specifically for Plumas, Lassen and Modoc counties. Under the statute, if livestock is herded or grazed on another person’s property, the livestock owner is liable for all damage, and the livestock may be seized as stray. But the law does not apply to “any live stock running at large on the ranges or commons.” In other words, livestock not moving as the result of human conduct may graze legally on someone’s private property. Although the statute was never codified, neither was it repealed or amended and it remains good law, Cantil-Sakauye wrote. The background is important because it means that a Plumas County property owner could sue for damages if livestock were herded onto his property. In 1982, Plumas County designated the Last Chance Creek Open Range as an area chiefly devoted to livestock where the “fencing out” rule would apply. The owner of unfenced land could demand “a reasonable rental fee” from the livestock owner, but he could not take the animals as strays. The case at hand was filed by Jack Herzberg, who purchased 40 acres in the Last Chance Creek Open Range in 1994. From 1995 to 2000 and again in 2003, cattle owned by the Wemple family grazed on land leased by the Forest Service — and wandered onto Herzberg’s neighboring land. Herzberg’s attempts to contact the Wemples were unanswered, according to the court. So Herzberg sued the Wemples and Plumas County in 2004. Herzberg argued that the county ordinance improperly shifted the burden of livestock grazing from the cattle rancher to other private property owners. This, Herzberg contended, was an unconstitutional taking of private property, and deprived him of his due process and equal protection rights. Plumas County Superior Court Judge Ira Kaufman ruled against Herzberg, who then appealed the ruling in favor of the county. A unanimous three-judge panel of the Third District upheld the lower court. In addressing the takings claim, Justice Cantil-Sakauye first laid out the U.S. Supreme Court’s Penn Central factors: The degree to which a regulation impacts a property owner economically, the extent to which the regulation interferes with “distinct investment-backed expectations,” and the character of the regulations. The court then listed 10 nonexclusive factors, most of which build on the Penn Central inquiry, that the California Supreme Court has applied to takings claims. “There is no ‘set formula’ for identifying a taking,” Cantil-Sakauye summed up. Herzberg tried to pass the Penn Central test by arguing that the county’s action damaged his private property while serving no public use. Rather, the ordinance forced him to accept the physical invasion of his property by a neighbor’s cattle. The court, however, identified the legitimate public interest that Penn Central requires, and concluded it was not a burden on Herzberg. “The ‘fencing out’ ordinance of the county recognizes and substantially fosters the important historic, traditional and economic use of rural property in California for open grazing land, a legitimate governmental purpose,” Cantil-Sakauye wrote. “The ‘fencing out’ ordinance does not require property owners to fence their property,” the court continued. “If owners choose not to fence because of the expense, aesthetics, or other personal reasons, the owners are not forced to accept any intentional herding or grazing of other people’s cattle on their land … . They are only precluded from seizing livestock wandering at large or suing for negligent trespass damages. They can still try to move the cattle off their property. They can still contact the cattle owners, if known, to ask them to move their cattle along.” If the livestock owner does not cooperate, an intentional trespass claim “may eventually ripen.” The landowners also may charge a rental fee, Cantil-Sakauye pointed out. “Therefore, the only potential economic burden of this ordinance is the occasional use of and damage to property caused by wandering cattle as they move on. Plaintiffs have not shown, nor can we perceive how plaintiffs could show, this limited burden interferes with their reasonable investment-backed expectations in buying this particular property within a traditional open grazing area when plaintiffs can always avoid it by fencing their property,” the court ruled. “The ordinance does not itself limit plaintiff’s best, or any, use of their property.” The court dismissed Herzberg’s due process claim as inadequately stated. As to equal protection, Hertzberg argued that the county would require him to obtain a special use permit to conduct commercial animal husbandry on his property, yet the county’s “fencing out” ordinance essentially allows a neighbor to conduct animal husbandry on Herzberg’s land without any permit. The court didn’t buy it. “Plaintiffs’ argument is premised on the assumption the ordinance allows other people to care for and raise their cattle on plaintiffs’ property. In fact, the law does not permit intentional herding or grazing of livestock on another person’s land without their consent,” the court ruled. The court also rejected the argument that the ordinance’s prescription of a “reasonable rental fee” violated state law prohibiting commercial rent control. The court ruled that the ordinance set a floor, not a ceiling, for renting pasture land. The Case: , No. C048130, 2005 DJDAR 11920. Filed October 3, 2005. The Lawyers: For Herzberg: Ronald Zumbrun, (916) 486-5900. For the county: Brian L. Morris, deputy county counsel, (530) 283-6240. For  FULL ACCESS  to all our premium content  - Subscribe Online  Today! (If you're not a subscriber premium articles can be purchased for just $5 each by visiting our online Single Purchase Store )  COMMENTS:

To its supporters, the California Environmental Quality Act is a powerful mechanism for protecting air, water, wildlife, land, public health and safety. Critics, on the other hand, regard it as a powerful mechanism for mischief, allowing activists to delay or halt projects they oppose even if the activists’ complaints are without merit. This long-running argument between CEQA supporters and critics periodically flares up in Sacramento, generally over legislative proposals to make the law less burdensome to builders, farmers and other business interests. Another such confrontation may soon break out, this time over efforts to make CEQA friendlier to housing developers. Draft versions of a blueprint for CEQA revision have been circulating since midyear, hatched by a working group assembled by Gov. Arnold Schwarzenegger. Although none of those suggestions has yet been incorporated into a bill, the latest draft outlines significant changes in the way CEQA is applied to residential development, such as exempting many housing projects from environmental review and reducing the opportunity for opponents to use litigation to slow or stop projects. The working group includes the secretaries of state and consumer services; labor and workforce development; food and agriculture; and business, transportation and housing; and the directors of the Environmental Protection Agency and the Office of Planning and Research. Resources Secretary Mike Chrisman, who is heading up the effort, also established a 35-member advisory group to brainstorm ideas and develop recommendations. Its membership represents nearly every conceivable interest: farmers, developers, water agencies, local governments, and an array of environmental organizations. But if the membership of the group is broad, its mandate is not. Rather than launch a sweeping review of CEQA effects, the governor directed the group to look narrowly at ways the law could be modified to, in Chrisman’s words, “encourage more efficient land use for new housing and infrastructure.” The focus on housing comes as no surprise. Recently, the Department of Housing and Community Development issued a report titled “California’s Deepening Housing Crisis.” In August, the report notes, only 14% of the state’s households earned enough to buy a median-priced home. That price, $568,890, was 20% higher than the median during August 2004. The report puts much of the blame for the affordability crisis on the continuing gap between housing production and population growth. The state estimates that to accommodate the 600,000 or so new people in California every year, builders need to construct 220,000 housing units. On average, 170,000 units have been permitted annually since 1999, according to the report. The state’s calculations are not universally endorsed. A report issued two years ago by the Public Policy Institute of California, a nonpartisan think tank, argued that it is misleading to consider only raw population numbers as a predictor of housing demand. Adding 1,000 children to the population, for example, does not affect housing demand the way that adding 1,000 adults does because infants do not establish households. And adding 1,000 Latin American immigrants, who tend to form larger households than other demographic groups, does not affect demand in the same way as adding 1,000 native-born transplants from other U.S. states. Many factors influence demand and prices. By singling out CEQA and suggesting it constrains housing production, the governor and his task force are borrowing a page from the playbook of the California Building Industry Association, which recently issued a report calling CEQA “the biggest offender” on the list of policies that discourage such things as higher-density projects. “For $175 – the cost of a court filing fee – a single individual can at any time in the already lengthy local approval process bring down a multimillion-dollar affordable housing project,” the CBIA report says. However, in a letter to Chrisman accepting his invitation to join the advisory panel, Sierra Club state legislative director Bill Allayaud offered an opposing view. “CEQA is frequently unfairly and inaccurately blamed by the development and extraction industries as a main cause of high housing prices,” Allayaud wrote. “We hope you agree that CEQA is not the culprit and actually is a major benefit to Californians and local governments.” The revisions being circulated by the governor’s task force appear to side with the CBIA. CEQA requires a complete evaluation and disclosure of the potential adverse consequences of development and other activities, which is typically accomplished through preparation of an environmental impact report. Under one proposal from the governor’s task force, no EIR would be required for a housing project that is consistent with a city or county general plan, as long as that plan had been the subject of its own EIR. This would be the case even for projects likely to have significant effects on their surroundings. “I think that’s a significant change,’ said San Diego attorney Bill Devine, who specializes in CEQA compliance and development law at Allen, Matkins, Leck, Gamble & Mallory. Perhaps the most far-reaching proposal is to establish a sort of hybrid specific plan/development agreement process that sidesteps CEQA entirely. Property owners would be able to enter into such agreements with cities and counties to plan particular areas. The agreement would detail the projects to be built in that area, analyze the impacts, describe any mitigation to be undertaken, and specify a public participation process. Once that has been done and the plan has been approved, the individual projects to be built under the plan would be exempt from further review and challenge. Another of the proposed changes would establish an administrative review process for CEQA disputes, requiring that they be submitted to a specially appointed judge before the parties could proceed with litigation. Although the intent is presumably to reduce the number of CEQA lawsuits and save developers money, that provision could actually make matters worse by adding another step to the process, Devine said. During a panel discussion at the annual meeting of the California Chapter of the American Planning Association, Pasadena Deputy City Attorney Theresa Fuentes offered a similar evaluation. She said that adding another level of review would only delay development further. By the time any of these revisions surfaces in legislative form, it is likely to have undergone substantial revision itself. Already, CEQA’s defenders have their hackles up, several having issued statements suggesting that efforts to encourage affordable housing and infill development should not focus only on CEQA. Contacts: Bill Devine, Allen, Matkins, Leck, Gamble & Mallory, (949) 851-5412. California Building Industry Association, (916) 443-7933. Sierra Club, (916) 557-1100. Governor’s CEQA Improvement Advisory Group: http://ceres.ca.gov/ceqa/impradvgrp/

A water district may enter into a reimbursement agreement with a developer for the construction of oversized infrastructure to support anticipated growth, the state Attorney General’s Office has concluded. State law provides specific authority only to cities and counties to sign reimbursement agreements. However, the ability to approve such agreements with developers is an implied power that water districts may exercise, Deputy Attorney General Susan Duncan Lee wrote in a formal opinion. Under a reimbursement agreement, a developer builds infrastructure with more capacity than is required to serve his project. Future developers pay back the developer who built the infrastructure. Assemblywoman Barbara Matthews (D-Tracy) requested the opinion on behalf of the San Luis Water District. Since its formation shortly after World War II, the district has provided irrigation water for agriculture in the Los Banos area. In recent years, however, the district has begun providing drinking water and wastewater services for a few dozen new homes. More importantly, the district projects that 60,000 to 100,000 people will move into areas south of Santa Nella within the next few decades, said Gary Sawyer, general counsel for the agency. “The district has been exploring options for how to finance the substantial infrastructure that is going to have to be constructed,” Sawyer said. “The district wants to do it right, which means they want to do it regionally.” When considering the district’s financing options, Sawyer said he could not tell from reading state law whether reimbursement agreements were available to the water district. If the district were to sign such an agreement and lose a subsequent legal challenge, the district could be liable for tens of millions of dollars of debt, he explained. So the district requested the attorney general’s opinion. In her opinion, Lee stated that nothing in the California Water District Law (Water Code §§ 34000-38501) expressly authorizes water districts organized under the Water District Law to enter into reimbursement agreements. In contrast, the Subdivision Map Act does authorize cities and counties to sign such agreements, and the Public Contract Code permits county waterworks districts to sign similar agreements, Lee noted. Despite the lack of express authority, “we believe that these statutory schemes governing other public entities serve to validate the proposed agreements in question. They indicate the Legislature’s support for the use of such agreements to address the growing needs of a community in a reasonable and practical manner,” Lee wrote. “We do not view the lack of express authority in the Act as indicating that the Legislature contemplated and then deliberately rejected granting such authority. Rather, it was considered unnecessary to include it.” “The implied powers of a special district are those ‘necessary for the due and efficient administration of powers expressly granted by statute’,” Lee wrote, citing , (1944) 24 Cal.2d 796, 810. “Here, the powers expressly granted by the Act are both broad enough and specific enough to give a district the legal authority to enter into the proposed agreements.” Many special districts were anxiously anticipating the attorney general’s opinion. Some have already signed and are implementing development reimbursement agreements. A negative opinion could have cast doubt on those contracts. Sawyers said he was not questioning other districts’ contracts; he was only taking a conservative approach in determining his client’s options. As it now stands, the San Luis Water District is likely to use other financing arrangements, he said. “It’s not as though we were waiting for the AG’s opinion to come out so that we could sign a bunch of reimbursement agreements,” Sawyers said. The opinion issued October 12 is No. 05-307 and may be found at 05 C.D.O.S. 9016 and 2005 DJDAR 12239.

El Dorado County continues to be the center of litigation over laws involving mining. In the latest case, the Third District Court of Appeal ruled that a mine operator may not sue the State Mining and Geology Board, its members and two employees for allegedly violating the miner’s civil rights. One year ago, the Third District ruled that the environmental review of a proposed mining reclamation plan need not consider the impacts of the actual mining ( , 122 Cal.App4th 1591; see , December 2004). Earlier this year, the state Supreme Court ruled that the director of the state Department of Conservation has standing to sue a local agency over a mining and reclamation plan approved by the local agency ( , 36 Cal.4th 971; see , September 2005). The latter case involved the county’s allegedly inadequate enforcement of Surface Mining and Reclamation Act (SMARA) regulations against Loring Brunius, who was operating Weber Creek and Diamond quarries without approved reclamation plans or required financial assurances of reclamation. The present case involved litigation filed by Brunius against the Mining and Geology Board and state agents. In October 2003, the state sued Brunius to recover $24,005 in surface mine inspection costs. The suit was just one facet of ongoing enforcement against Brunius, whom the state also has ordered to stop mining and to pay millions of dollars for quarry reclamation. Brunius, however, filed a cross-complaint, arguing that the mining board and employees Stephen Testa and John Parrish had violated his civil rights under 42 U.S.C. § 1983 because the board and state workers treated him differently from other miners in similar situations. Brunius sought compensatory and punitive damages from the board, its individual members, Testa and Parrish. Sacramento County Superior Court Judge Loren McMaster found that the state was not subject to liability under § 1983, and neither were the individual defendants because they were taking actions of the state. Brunius appealed, and the Third District upheld the lower court. The primary question for the court was whether the board and its employees were acting as the state or as a local government. Local governments are subject to suit under § 1983, but the state is not. Ordinarily, local governments enforce SMARA. In , the mining board took over the role of enforcing SMARA because the state was dissatisfied with the county’s performance. Brunius argued that the board and its employees, therefore, were serving as county officials. The court disagreed. Under SMARA, the court ruled, the mining board may “take back the regulatory powers previously delegated to a local lead agency when the local government is not properly administering the state policy, and in doing so, the mining board not only retains its status as a state agency but functions as one as well.” The board, Testa and Parrish “at all times were enforcing state policy, not local policy.” As for the individual liability of Testa and Parrish, the Third District agreed with the lower court that Brunius failed to explain how their actions were those of individuals and not of the state. The Case: , No. C047380, 05 C.D.O.S. 8350. Filed September 13, 2005. The Lawyers: For Brunius: Freda Pechner, (530) 333-1644. For Parrish: Ralph Venturino, deputy attorney general, (916) 322-2573.

State lawmakers are likely to consider numerous bills that could restrict redevelopment authority, require greater state oversight, limit use of eminent domain, ease redevelopment opponents’ access to court and impose other requirements on redevelopment agencies. Thirteen lawmakers from five different committees attended a mid-November joint interim hearing on redevelopment in Sacramento. Senate Local Government Committee Chairwoman Christine Kehoe (D-San Diego), who chaired the hearing, said she expects to see at least six redevelopment bills in 2006. That estimate could be low. The activity in Sacramento is occurring while Congress considers a bill that would withhold economic development funding from states that permit the taking of private property for economic development purposes — a potential poison pill for redevelopment agencies. The U.S. Supreme Court’s decision in (see C , August 2005, July 2005) appears to have provided an opening for longtime redevelopment opponents. In , the Supreme Court ruled 5-4 that a Connecticut city could use eminent domain to acquire houses in a working class neighborhood for economic development purposes. Public opinion regarding the decision has been overwhelmingly negative, which has permitted redevelopment opponents to seize on the issue. State lawmakers considered a number of bills to restrict the use of eminent domain or alter redevelopment practices after the decision, but the Legislature passed nothing before adjourning for the year in September. During the hearing in Sacramento — one of several interim hearings on the subject — legislators made clear that they supported at least minor changes to current law. A staff report presented numerous possible changes that lawmakers and redevelopment experts dissected during the six-hour hearing. State Senate Transportation and Housing Committee Chairman Tom Torlakson (D-Martinez), who is carrying a constitutional amendment to prohibit the taking of single-family homes, suggested he might support requiring redevelopment agencies to make new blight findings every 12 years and limiting campaign contributions from property owners to agency directors. Assembly Judiciary Committee Chairman Dave Jones (D-Sacramento), a former legal aid attorney, favored increasing the percentage of tax increment that redevelopment agencies must spend on housing. Jones and other lawmakers also indicated that citizens need greater opportunities to challenge redevelopment plans. Currently, opponents have 30 days after plan approval to submit signatures on a referendum and 60 days to file a lawsuit. Lawmakers said those deadlines might be too tight. Kehoe said that relying on courts to keep redevelopment activities in check might be inadequate. “I do believe there is a legitimate role in redevelopment for state oversight,” said Kehoe, who noted the state backfills school districts that lose tax revenue to redevelopment agencies. Still, Democratic lawmakers said redevelopment benefits communities. “It’s my belief that when used properly redevelopment can be a good thing,” Kehoe said. “But redevelopment needs to avoid the perception of being heavy-handed.” Republicans are more noncommittal, although Sen. Tom McClintock (R-Thousand Oaks) used the Sacramento hearing to bash redevelopment efforts. He contended that eminent domain abuse is widespread and that property owners in redevelopment project areas live in constant fear that the government will take their homes and businesses “for pennies on the dollar.” Sharing McClintock’s viewpoint were persistent redevelopment critics, including Orange County Supervisor Chris Norby and Timothy Sandefur of the Pacific Legal Foundation. Norby called redevelopment a “corporate welfare scheme” for big-box stores, automobile dealers and football team owners. “We’ve had 10 years of hearings and studies. Now is the time for action,” Norby demanded during the mid-November hearing. Santa Clara County Executive Pete Kutras also urged lawmakers to take action. He said redevelopment amounts to “fiscal eminent domain” because it permits cities to take property tax revenue that would otherwise go to other public agencies. Kutras said the nine redevelopment agencies in Santa Clara County received more property tax revenue than the county itself over the last five years. Kutras said the state should hold counties harmless by backfilling money diverted to redevelopment agencies, prohibiting agencies from getting counties’ shares of property tax revenue or by giving counties some sales tax generated in redevelopment project areas. The Legislative Analyst’s Office recommended the Department of Finance or the Attorney General’s Office review new project areas. The Attorney General’s Office backed measures to make it easier for the AG to sue over redevelopment activities. California Redevelopment Association (CRA) Executive Director John Shirey said his organization is prepared to accept some changes. Noting that redevelopment agencies have taken only three single-family homes during the last five years via eminent domain (including two in which condemnation was used to clear up title problems), Shirey said CRA would accept a prohibition on the taking of single-family houses. Shirey said he believes state law already requires agencies that want to exercise eminent domain authority after the first 12 years to renew blight findings, and that using eminent domain for economic development absent a finding of blight is impermissible in California. He said the Legislature could make those provisions clearer. On the federal level, Congress in early November voted 376 to 38 to approve HR 4128, which would cut off federal economic development funds for any state that permits the use of eminent domain for economic development purposes. As of late November, the bill’s fate in the Senate was uncertain. During an Urban Land Institute conference in Los Angeles, Tim Keller, an attorney for the Institute for Justice, which lost the case, endorsed the bill. Keller said that economic development projects do not need eminent domain to be successful. But Clinton administration Interior Secretary Bruce Babbitt, a former Arizona governor and state attorney general, decried the legislation as “federal land use micromanagement.” Forest City Commercial Development CEO Jim Ratner, whose company is one of the country’s largest commercial developers, offered a harsh assessment of HR 4128. He said eminent domain is often an essential tool for development of projects in poor, neglected neighborhoods. Without the government’s ability to assemble land for development in these areas, projects would not get built and impoverished neighborhoods would remain poor, Ratner argued.

New Jersey is not California. New Jersey is an intense and partisan place filled with rough-and-tumble politics, gritty urban centers both decrepit and revived, political corruption, ethnic tension, and the suburban snobbery that goes with a desire to escape all of the above. This is not the kind of crucible that you’d expect to produce thoughtfulness, extreme caution, judicial restraint and extraordinary deference to parochial governmental power, no matter how prejudiced or corrupt. Remarkably, however, New Jersey appears to have produced such a judge in Samuel A. Alito Jr., President Bush’s nominee to replace Sandra Day O’Connor on the U.S. Supreme Court. Though conservatives have hailed him, this deference to local authority has led Alito to set a very high standard for “substantive due process” – a key determination in deciding federal civil rights lawsuits. For this reason, Alito could be bad news for property rights lawyers. Alito’s long paper trail on the Third Circuit Court of Appeals reveals a judge who is so methodical that he is almost boring – and anything but a judicial activist. Over and over in these cases, Alito narrowly circumscribes the issue at hand, creating the smallest possible envelope within which to make a decision. Perhaps most surprising, given his background and the way politics works in New Jersey, is that Alito’s judicial philosophy requires him to turn a blind eye to the rough-and-tumble. He draws the strongest possible line between politics and law. Having grown up amid Trenton politics and served as the state’s U.S. attorney, Alito knows the score. But he seems absolutely committed to refrain from using judicial power to even the score. In this regard, Alito could not be more different than the previous Supreme Court justice to emerge from New Jersey politics, William Brennan. Brennan was a state Supreme Court justice before he became the last great liberal on the U.S. Supreme Court. Some years ago, magazine Editor Alan Ehrenhalt, a keen observer of urban ethnic politics, described the choice that a New Jersey judge must make in approaching his job on the U.S. Supreme Court. “Cases come before you that recall all the improprieties you saw too much of in New Jersey: districts drawn to keep corrupt cliques in power, discrimination against the poor and the minorities, spoils systems that cost the citizens billions in bribery and payroll padding.” The choice, Ehrenhalt wrote, was this: “Do you strike a pose of statesmanlike restraint?” Or “do you wield your judicial power like a club?” Brennan, of course, took the club approach. When issuing rulings that politicians must implement, Ehrenhalt wrote, “you didn’t err on the side of trusting them. You erred on the side of telling them exactly what to do – line by line, number by number, mandate by mandate.” Alito clearly goes the other way - to the statesmanlike approach. He apparently learned this from his father, who led the New Jersey Legislature’s bipartisan research bureau for more than 30 years. Whenever the political realities of local government push through the thicket of legal argument that an appellate judge deals with, Alito ignores them in order to address the narrow issue in front of him. This leads him to defer to local governments, even those that are parochial and perhaps prejudiced or corrupt. In the Third Circuit, many of the cases are from small towns in Pennsylvania and New Jersey, and the cases often reflect the ethnic tensions, the political corruption, and the economic hardship that these communities experience. In case after case, Alito circumscribes the matter narrowly and decides it with little acknowledgement of the roiling nature of the community that produced the case. In some cases, it’s as if Alito doesn’t want to face what’s really going on. He’s the New Jersey version of Casablanca’s Captain Renault, who can face up to corruption – and probably a substantive due process violation – only when he is that something untoward is going on. For example, in , 321 F.3d 411 (2003), a local pizzeria filed a civil rights lawsuit after being shut down as a public nuisance by the City of Wilkes-Barre, Pennsylvania. The nuisance action supposedly arose after another establishment closed and an African-American clientele shifted to Desi’s, leading to more crime. Alito’s conclusion? Even if the pizzeria owner’s civil rights had been violated, this does not necessarily mean that Desi’s had not become a public nuisance. Occasionally, Alito will use his numbingly methodical approach to make a case for overturning precedent. His one crusade appears to be to narrow the use of substantive due process, which is used to invoke constitutional lawsuits based on the notion that the government is acting without legitimate power. In , 107 F.3d 164 (1997), the majority ordered the lower court to proceed with a porn store’s civil rights action against a local government that had denied the store a permit based partly on an anti-porn ordinance passed after the permit application had been filed. In a lengthy dissent, Alito debated the merits of a previous Third Circuit ruling ( , 840 F.2d 1124) that he believed had interpreted the doctrine of substantive due process too expansively. Perhaps the most extreme example of Alito’s “blind eye” approach came in his dissent in , 256 F.3d 107 (2001), in which a New Jersey township made life miserable for a Hindu temple seeking to take over a nightclub. The temple kept agreeing to conditions – limiting the number of worshipers, agreeing to hire off-duty cops to regulate traffic circulation – but the town kept erecting roadblocks. After the town board required the hiring of the off-duty cops, for example, the police chief said no off-duty cops were available. Eventually the U.S. Bankruptcy Court – a bankrupt entity owned the land in question – ordered the town to let the temple use its own volunteers to police traffic. The majority affirmed the Bankruptcy Court ruling, clearly suggesting that the town was prejudiced against the Hindus. In dissent, Alito sided with the township, adding: “I would view this case quite differently if there were any suggestion that the BOA harbored any bias toward BAPS or any of its members, but I am aware of no such evidence.” In other words, we presume New Jersey politicians have no ulterior motive unless evidence to the contrary whacks us in the head. Indeed, Alito’s most daring foray into judicial activism appears to be aimed at furthering the Captain Renault school of jurisprudence and circumscribing substantive due process. In , 316 F.3d. 392 (2002), the town asked two movie theater chains to pay a $100,000 annual impact fee. One paid and the permit sailed through; the other, United Artists, sued instead. The threshold question before the Third Circuit was the standard of review for a substantive due process claim. Here again Alito went after the ruling. Writing for the majority, he concluded that evidence of an “improper motive” was too low of a threshold for a substantive due process claim; rather, the test that should be applied is the “shocks the conscience” test laid down by the U.S. Supreme Court in , 523 U.S. 833 (1998), a wrongful death case. Alito interpreted the Lewis ruling as reaffirming the “shocks the conscience” test – that substantive due process rights are violated when government officials’ actions are not merely improper but so outrageous they shock the conscience. Alito wrote that there is no reason why the shocks-the-conscience test should not apply to a land use dispute. Clearly, Alito will take aim at substantive due process regarding land use issues before the Supreme Court. And he’ll probably take every opportunity to raise the standard of review so that substantive due process violations are harder to argue. This could make life before the Supreme Court harder for property owners. That wouldn’t surprise William Brennan, of course. He was never shocked by anything that happened in New Jersey.

Construction is scheduled to begin during the first half of 2006 on what will be, for a short while anyway, the tallest courthouse in California. The federal courthouse at Broadway and State Street in downtown San Diego will reach 22 stories — 407 feet — into the sky. Designed by Richard Meier & Partners, the slender, 620,000-square-foot building will have a footprint of only 24,000 square feet, leaving plenty of space on the 2.27-acre site for a new public plaza and extensive landscaping. The courthouse will provide 18 courtrooms for the Southern California District and the Ninth Circuit Court of Appeals, as well as office space for the Internal Revenue Service, Social Security Administration, the U.S. Marshals Service, the U.S. Trustees Office and the General Services Administration (GSA). Approximately 610 people will work in the structure, according to the GSA, which in charge of the project. “In addition to meeting the specific program requirements of the courts, the new United States federal courthouse in San Diego is designed to contribute to an urban fabric that is much larger than the construction site,” lead architect Michael Palladino, of Meier’s Los Angeles office, said earlier this year. The courthouse will fill a corner of downtown that has been a sore spot for years with downtown boosters. The site was home to three dilapidated residential hotels — the San Diego, the Capri and the State — and an ominous corner liquor store. After purchasing the site last year, the GSA demolished the Capri and State. At the same time, the government boarded up the San Diego, which has sat vacant ever since. It is due to come down in 2006. With the residential hotels out of business, the liquor store quickly closed. While few would dispute that the government is eliminating urban decay in San Diego’s bustling downtown, housing advocates are angry that the federal government has provided no replacement housing. The residential hotels provided about 400 rooms for poor people. The group Housing Coalition San Diego fought, but failed, to preserve the Hotel San Diego. “That was particularly galling as it is a federal project, was closed long before construction was due to start and tenants were evicted with no plan whatsoever to replace the lost housing,” said Richard Lawrence, co-chair of Housing Coalition San Diego. Catherine Rodman, director of Affordable Housing Advocates, said it was wrong to evict the Hotel San Diego tenants two years before demolition. Rodman said she hates to argue to keep open substandard facilities. However, she charged, city officials showed little concern for the condition of Hotel San Diego until the site was wanted for other development. The City Council and the city’s semi-autonomous redevelopment agency did ask federal officials to replace the low-income housing units, but city officials did not attempt to enforce a city ordinance that requires one-for-one replacement of any single-room occupancy (SRO) hotel rooms that are demolished or converted to other uses. Federal officials have been unwilling to provide housing assistance. Instead, they emphasize the benefits that the new courthouse will bring to downtown San Diego. “The building will be a significant architectural statement and a major contribution to the development of downtown San Diego,” Circuit Court Judge Margaret McKeown said in a prepared statement. During a design presentation in San Diego earlier this year, GSA Regional Administrator Peter Stamison called the planned courthouse “a future landmark … that will shape our country’s architectural legacy.” The design is modern yet warm, with prominent off-white tones. Materials such as natural stone, terra cotta and concrete are being considered. The rectangular courthouse will rise above an elliptical lobby, which will be visible from all approaches. The sunny lobby will include a 200-foot-long, south-facing ribbon window that frames a “mural garden.” A large jury assembly space with a terrace will sit adjacent to the lobby. The thin high-rise will permit daylight to penetrate the entire building, and pedestrian activity within the building will be clearly visible from the public plaza. The idea is to express the dynamic, accessible judicial process, according to the architects. The most public part of the project, though, will be the new plaza, promenade and gardens outside the courthouse. Architects and federal officials have designed the grounds as a community gathering place. The plaza will open to Broadway on the north and E Street on the south. Designers have placed all support and service areas below ground to provide space for the plaza and gardens. The courthouse’s “front door” will be on the plaza, not on Broadway or State Street. Earlier this year, Centre City Development Corporation, the city’s redevelopment agency, complained that the design was not friendly to pedestrians on adjacent sidewalks, and some city representatives suggested incorporating retail stores or restaurants along the streets. These days, however, security needs dominate courthouse layouts, and immediate street access is a security problem. Federal officials also cite security as a reason for providing only 105 parking spaces — none of which will be for the general public. Officials estimate the new courthouse will cost $200 million to complete, making it by far the most expensive in California to date. Construction is scheduled to take four years, with the courthouse opening in 2010. The existing Edward J. Schwartz Federal Courthouse will remain in use, just across the promenade from the new facility. Just how long the San Diego courthouse will be the tallest is uncertain, as a new federal courthouse in Los Angeles is planned to have 23 stories. Contacts: General Services Administration, Pacific Rim Region, (415) 522-3001 Catherine Rodman, Affordable Housing Advocates, (619) 233-8441.

A legal battle between wealthy property owners on the shores of Lake Tahoe appears to have been won by a group wanting to build a new boat dock. The Ninth U.S. Circuit Court of Appeals rejected all arguments against the proposed dock presented by the Glenbrook Homeowners Association and allied parties, and the court upheld the Tahoe Regional Planning Agency’s approval of the project. Interestingly, the homeowners seeking to stop the project were represented by attorney Ronald Zumbrun, a longtime advocate of property rights and co-founder of the Pacific Legal Foundation. Representing the dock proponents was E. Leif Reid, son of U.S. Senate Democratic leader Harry Reid — even though one of the proponents is liquor magnet Larry Ruvo, who donated more than $200,000 to President Bush’s re-election campaign. Of course, one of Ruvo’s partners in the project is Harvey Whittemore, possibly Nevada’s most prominent Democratic fundraiser. Four years ago, Ruvo, Whittemore and other partners sought approval from the Tahoe Regional Planning Agency (TRPA) for a 300-foot-long recreational pier on the Nevada side of the lake. TRPA regulations make pier development very difficult, but the agency approved the application. Among the conditions of approval, though, were the requirements that a court determine the proposed pier would not interfere with the recreational and access rights of the Glenbrook Homeowners Association, and that a court determine the pier proponents do not have the right to use the homeowners association’s existing community pier. Project opponents are residents of the private Glenbrook development on the shores of the high Sierra lake. They have contended throughout the proceedings that the pier proponents were pursuing a commercial project that was not being adequately described, and that the project would harm Glenbrook residents’ property rights. The opponents also maintained that TRPA gave the pier proponents preferential treatment because they are rich and politically connected. After TRPA issued its decision, three lawsuits were filed and subsequently consolidated. In 2003, U.S. District Court Judge Roger Hunt upheld TRPA’s approval of the project and found that the pier would not interfere with the homeowners association’s pier. However, Hunt also ruled that the pier proponents have the right to access the existing Glenbrook pier — a ruling that essentially blocked the project. Everyone appealed, setting up the Ninth Circuit’s ruling squarely for the pier proponents. The homeowners association argued that TRPA violated the National Environmental Policy Act by not preparing an environmental impact statement for the project and by not considering the cumulative impacts of the pier and what the homeowners claimed was a larger commercial project. In its brief treatment of the issue, however, the Ninth Circuit ruled that the state-federal compact that created TRPA has its own rules for environmental review, and NEPA does not apply. As for the conditions imposed by TRPA, the Ninth Circuit ruled for the pier proponents in both instances. The homeowners association has an easement across the pier proponent’s land to provide access to the existing community pier. The association argued that construction of the proposed pier in the easement would violate the association’s rights. But the District Court and the appellate panel pointed to language in the easement that specifically permits the property owner to develop recreational uses. On the question of access to the existing pier, the Ninth Circuit overturned the lower court. The Ninth Circuit determined that a contract for pier access between an earlier property owner and the homeowners association was a personal contract that did not run with the land. The right of pier access was not conveyed when the latest owners acquired the property, the Ninth Circuit ruled. The Case: Glenbrook Homeowners Association v. Tahoe Regional Planning Agency, No. 03-17224, 05 C.D.O.S. 8496, 2005 DJDAR 11584. Filed September 21, 2005. The Lawyers; For the homeowners association: Ronald Zumbrun, (916) 486-5900. For TRPA: William J. White, Shute, Mihaly & Weinberger, (415) 552-7272. For the pier proponents: E. Leif Reid, Lionel, Sawyer & Collins, (775) 788-8690.

A property owner’s lawsuit against a San Francisco housing activist has been swatted down by the Ninth U.S. Circuit Court of Appeals. The court found, essentially, that the First Amendment protected the activist’s complaint about the property owners’ plans. The owners of the Empress Hotel, in San Francisco’s tough Tenderloin district, filed the lawsuit. During the late 1970s, the city classified the Empress as a mixed-use hotel, with 58 tourist rooms and 30 residential rooms. Starting in the early 1980s, the Empress fell into disrepair, and it later closed for a number of years. Eventually, Vijay and Ramilaben Patel purchased the Empress from Vijay Patel’s parents. The new owners invested about $1.5 million to refurbish the facility for use as a tourist hotel and received permits from the city authorizing the tourist use. However, Randall Shaw, executive director of the Tenderloin Housing Clinic, a nonprofit property management, social service and advocacy organization, protested the Patels’ plans. In a letter to the city’s zoning administrator, Shaw contended that the Empress’s tourist use had been abandoned and that, under the city’s ordinance, the Empress could reopen only for residential purposes. San Francisco has an extensive zoning scheme than seeks to preserve single-room occupancy hotels as affordable housing. After investigating, Zoning Administrator Lawrence Badiner agreed with Shaw. Badiner concluded that the tourist use had been discontinued for more than three years and could be re-established only if the Patels complied with current regulations. Those regulations require development of replacement affordable housing units or the payment of in-lieu fees. The Patels then sued the city, Badiner, Shaw and other parties under the Civil Rights Act (42 U.S.C. § 1983), arguing that the city and individual government officials had delegated zoning decisions to Shaw. District Court Judge Phyllis Hamilton dismissed the claims against everyone except Shaw. After the Patels amended their lawsuit, Hamilton ruled that Shaw’s actions were protected by the Noerr-Pennington doctrine and dismissed the lawsuit. The Patels appealed the ruling for Shaw, and they won a minor victory at the Ninth Circuit. The three-judge appellate panel first ruled that Judge Hamilton incorrectly applied the “heightened pleading standard” to the Patels’ lawsuit. That standard requires the petitioner “to state with factual detail and particularity the basis for the claim.” Instead, the district court should have held the Patels to the lesser “notice pleading standard,” the Ninth Circuit ruled. Nevertheless, even applying the more lenient standard, the Ninth Circuit ruled against the hotel owners. “Under the Noerr-Pennington doctrine, those who petition all departments of the government for redress are generally immune from liability,” Judge Sidney Thomas wrote for the Ninth Circuit. “Although the Noerr-Pennington doctrine originally immunized individuals and entities from antitrust liability, Noerr-Pennington immunity now applies to claims under § 1983 that are based on the petitioning of public authorities.” Thomas cited , 227 F.3d 1214, 1231: “Noerr-Pennington is a label for a form of First Amendment protection; to say that one does not have Noerr-Pennington immunity is to conclude that one’s petitioning activity is unprotected by the First Amendment.” The Patels argued that Noerr-Pennington protection did not apply to Shaw because his activity was a sham and part of a conspiracy. The Ninth Circuit, however, ruled that the conspiracy exception to Noerr-Pennington could be applied only to government officials, not to private citizens. And, the court ruled, “ t appears beyond a doubt that they can prove no facts demonstrating that Shaw’s activities fall under the sham exception.” The Ninth Circuit upheld the judgment against the Patels. But, because of its decision on the pleading standard, the Ninth Circuit reversed the lower court’s award of $13,109 in attorney fees to Shaw. The Case: , No. 03-16706, 05 C.D.O.S. 7369, 2005 DJDAR 10081. Filed August 18, 2005. The Lawyers: For Empress: Andrew Zacks, (415) 956-8100. For Tenderloin Housing Clinic: Stephen Collier, (415) 771-9850.

A settlement agreement between the City of Malibu and a developer has been thrown out by the Second District Court of Appeal because the agreement limited the city’s police powers and was improperly adopted in closed session. The agreement committed the city not to make zoning decisions that would block the proposed housing development and to exempt the project from density requirements. The court ruled that the density exemption amounted to a variance that required administrative proceedings and findings for which the city did not provide. Additionally, the city’s actions required public proceedings. Because the city acted in closed session, it violated the state’s open meeting law, known as the Brown Act, the court held. The settlement “is intrinsically invalid because it includes commitments to take or refrain from regulatory actions regarding the zoning of Trancas’s development project, which may not lawfully be undertaken by contract,” Presiding Justice Candace Cooper wrote for the unanimous three-judge panel. The city has requested a rehearing, and City Attorney Christi Hogin said the Brown Act issue may be one the state Supreme Court is willing to consider. Hogin said the Second District decision was erroneous largely because the court read more into the settlement agreement that either the city or the developer did. “We all agree that you can’t contract away the police power. And we all agree that you can’t grant a variance in closed session. And we all agree you can’t guarantee zoning forever unless there’s a development agreement, and then it’s only for 10 years,” Hogin said. “What we disagree on is whether our settlement agreement did these things.” The proposed project has a lengthy administrative and legal history. Before Malibu incorporated, Los Angeles County approved a subdivision map for the 35 acres near Pacific Coast Highway and Trancas Canyon Road in 1980. That map apparently was never acted upon, and the county approved two subdivisions in 1985. These called for 15 single-family lots on 26.5 acres, and 52 condominiums on the remaining 8.5 acres. Eight years later — and after the coastal enclave incorporated — the landowner submitted proposed final maps to the city, one of the final steps before pulling building permits. The city refused approval, saying the tentative maps had expired. The landowner sued and both the trial court and the Second District determined that a combination of extensions had preserved the maps’ vitality. However, other issues held up the final maps, including the question of permits from other agencies. There was more litigation, this time involving the Coastal Commission. The property changed hands. And still the city refused to approve the final maps, citing unfulfilled tentative map conditions. In 2002, property owner Trancas-PCH sued the city to prevent it from disapproving the final maps. But in March 2003, with the lawsuit pending, the City Council voted unanimously to disapprove the final maps because Trancas lacked necessary permits from the Coastal Commission and the Regional Water Quality Control Board. A few weeks later, the city and Trancas began negotiating, and, in April 2003, the City Council approved the settlement agreement in closed session. The settlement required Trancas to record a deed restriction limiting development to 32 townhouses on 8.5 acres, and to dedicate the 26.5-acre parcel to the city for parkland. In exchange, the city agreed not to enact regulations that would prohibit the development and to expedite the processing of a general plan amendment. The Trancas Property Owners Association, whose members own houses on nearby Trancas and Broad beaches and who have been fighting development on the site for decades, then sued the city. The property owners association argued the decision to disapprove the final map was correct, the revised project did not conform with the tentative map, the settlement agreement should have undergone environmental review, and the City Council violated the Brown Act. Los Angeles County Superior Court Judge David Yaffe ruled for the city. On appeal, the Second District overturned Yaffe. The court first dealt with what it called “retraction of zoning authority.” The court likened the situation to that in the landmark case, , 17 Cal.3d 785 (1976). In Avco, the state Supreme Court ruled that the government may not contract away its ability to exercise the police power in the future. ( led to the passage of laws permitting “vesting” tentative maps and development agreements.) In the Malibu case, the property in question is zoned for one residence per five acres. According to the Second District, the settlement agreement’s exemption from this density regulation was exactly what Avco condemned. “Moreover, it functionally resembles a variance,” Cooper wrote. “Such departures from standard zoning, however, by law require administrative proceedings, including public hearings followed by findings for which the instant density exemption might not qualify. Both the substantive qualifications and the procedural means for a variance discharge public interests. Circumvention of them by contract is impermissible.” The city argued that the settlement agreement did not ensure development would occur and that Trancas would still have to go through the administrative process. But the court determined the city “has already made impermissible promises and commitments, which, contrary to its representations, extend beyond simply renewed consideration of the final maps.” Regarding the Brown Act, the court found the question was whether the act’s public meeting exemption for advice about pending litigation “authorizes approval in closed session of a settlement agreement containing dynamic features.” Courts have construed Government Code § 54956.9 to permit a city council to decide in closed session to settle litigation. But that authority must be harmonized with the need for public hearings, the court ruled. “We believe it ineluctable that, when such a settlement extends to authorization or taking of action that by law requires public decision-making, § 54956.9 cannot and does not provide an exemption either from that mandate or from the public meeting norm of the Brown Act. The City Council therefore was not authorized to adopt the present SA in closed session, and the SA was void for that reason as well as those previously discussed.” City Attorney Hogin found that court’s Brown Act conclusion particularly disturbing. The court’s invalidation of the settlement based on a Brown Act violation places a new limitation on what may be discussed in closed session, she said. In a letter supporting Malibu’s rehearing request, San Francisco Deputy City Attorney Paul Zarefsky agreed with Hogin, writing that the court’s decision “introduces uncertainty into the law regarding closed sessions for pending litigation that was previously well-settled.” After the decision, the developer, whose 2002 lawsuit against the city is still pending, indicated it would pursue the larger development originally approved in 1985. The Case: Trancas Property Owners Association v. City of Malibu, No. B174674, 05 C.D.O.S. 8605, 2005 DJDAR 11697. Filed September 26, 2005. Modified October 6, 2005 at 2005 DJDAR 12037. The Lawyers: For the property owners association: John Bowman, Jeffer, Mangels, Butler & Marmaro, (310) 203-8080. For the city: Christi Hogin, Jenkins & Hogin, (310) 643-8448. For Trancas PCH: Barry Levy, Horvitz & Levy, (818) 995-0800.

From rural counties experiencing modest urbanization to California’s fastest growing areas, regional transportation impact fees are being levied on new development. Nearly unheard of five years ago, the fees are bringing in hundreds of millions a year across the state for road work. The fees vary widely from area to area, ranging from a few hundred dollars for a house in one community to nearly $1 million for a large retail building elsewhere. Local transportation officials say they need the money to pay for arterial road projects, freeway interchanges and other improvements of a regional nature that are not funded by local impact fees, the state or the federal government. It is no coincidence that regional transportation fees have become prominent at the same time that the state has reduced funding for transportation, said Max Neiman, Governance and Public Finance program director at the Public Policy Institute of California. “Since about 2000, the state has sent transportation back to the counties,” Neiman said. “The state has literally walked away from statewide transportation improvement finance.” In a number of areas, the fees complement revenue derived from a local transportation sales tax. But some counties have implemented regional impact fees even before voters have approved a sales tax. The fee programs typically are overseen by a council of governments or county transportation commission. They put together a nexus study that projects growth, identifies transportation needs, estimates expenses and then divvies up the total cost. Western Riverside County is a leader. Two years ago, Riverside County and 14 cities in the western end of the county began implementing the Transportation Uniform Mitigation Fee (TUMF) program. The fees, set by the Western Riverside Council of Governments (WRCOG), were originally pegged to raise about $2.5 billion over 20 years to help fund about $3.2 billion worth of improvements to arterial roads and intersections, freeway interchanges, bridges, rail grade separations and transit. A number of cities resisted imposing the fees at first, but WRCOG threatened to withhold revenue from a transportation sales tax if a city did not participate in the TUMF program. Consequently, every jurisdiction complied. Fees started off at $6,650 per house and $4,600 per multi-family unit, with varying per-square-foot amounts for nonresidential construction. Those fees increased by about 9% earlier this year, and builders have already paid more than $200 million in TUMF fees; however, program managers now say fees need to rise significantly. Rick Bishop, WRCOG executive director, said new growth forecasts generated locally and by the Southern California Association of Governments indicate an even greater need than originally projected. More growth combined with rapidly escalating construction costs mean that the $3.2 billion transportation program could actually cost more than $5 billion. “We have validated our existing network. But that same network costs about $1.5 billion more than we estimated three years ago,” Bishop said. His agency is recommending that the fee increase to $9,300 per house. A final decision by the WRCOG board is due this fall. The fee revisions have stirred up the development community, partly because builders say they have seen few benefits from the $200 million already paid. “Until such time that they can show that they can do more than just collect fees, we are wary of giving more fees to such an organization,” Borre Winckel, executive director of the Riverside County Chapter of the Building Industry Association of Southern California, told the North County Times. Next door, the San Bernardino Associated Governments (SANBAG) is moving forward with regional fees, but in a very different manner. The fees would be collected by 19 cities and the county, but the amount of the fee would be up to each jurisdiction. SANBAG went through the typical process of estimating growth, needs and costs, but then the agency divided up the total cost among each jurisdiction based on localized growth and the benefits received from the transportation program. The agency then assigned a number to the jurisdiction, ranging from $151.6 million for Ontario down to $2.9 million for Chino Hills. “We’ve come up with the overall amount they would have to raise. How they do that is up to them,” SANBAG spokeswoman Cheryl Donahue said. “They know their cities the best.” The SANBAG board was expected to give final approval to the program November 2. The $1.5 billion program would fund arterial road improvements, freeway interchanges and railroad grade separations. Cities have one year to start collecting revenue. Those that refuse to participate could lose other transportation monies, including revenue from a countywide half-cent sales tax, Donahue said. At the same time that SANBAG is advancing its “congestion management program,” the San Joaquin Council of Governments (SJCOG) is pushing a more standard regional traffic impact fee plan. It calls for fees of $2,500 per single-family house, $1,500 for a multi-family residence and levies ranging from 75-cents- to $1.25-per-square foot for nonresidential construction. Officials with SJCOG expect to make presentations to the county’s seven cities and the Board of Supervisors this month and during December in hopes that all jurisdictions will start collecting fees as early as January, said Michael Swearingen, SJCOG senior regional planner. “San Joaquin County is a region that is experiencing significant growth, and the regional transportation system is failing,” Swearingen said. Still, it has taken years to reach the point where a regional fee may be levied. SJCOG worked on the program for two years before abandoning it in 2003. Work restarted early this year and was successful this time because everyone who was interested had a say on fees, projects, implementation and administration, Swearingen said. “The elected officials, the development community, the Sierra Club — all the stakeholders — are on board from our perspective,” Swearingen said. “It’s been a gigantic consensus-building effort.” Although urban regions are at the forefront of regional transportation impact fees, rural regions also are charging developers for regional improvements. Merced County approved a regional fee program earlier this year, and even more rural western Nevada County has been collecting regional fees for four years. Neither county has a sales tax for transportation. The Nevada County Transportation Commission (NCTC) bases fees on peak p.m. hour trip generation, and then sets the amount per-trip based on the location of the development. Projects in and right around Grass Valley and Nevada City pay the most — $630 per trip. The agency is now considering revisions that would raise the per-trip amount and hike fees on outlying development, which appears to have a greater impact on Grass Valley and Nevada City traffic than expected, said NCTC Executive Director Dan Landon. “The community is increasingly agitated about congestion,” Landon said. “There is a little bit of unrest right now because people want to see things happen faster.” In other words, there is support for higher fees if they result in projects getting built quickly. However, regional transportation fees do not get universal acceptance. The Solano Transportation Authority, for example, considered a regional fee before dropping the idea earlier this year. “We felt the timing wasn’t good right now to look at impact fees,” said Dan Christians, assistant executive director of the Solano County agency. “We’re really focused on our sales tax measure.” A Solano County half-cent sales tax received 64% of the vote in 2004, and supporters plan to try again for two-thirds approval in 2006. The sales tax “doesn’t solve everything, but it would implement a lot of projects along the I-80/I-680/I-780 corridor. It would implement commuter rail along the Capital Corridor,” Christians said. Neiman, of the PPIC, said he understands the position of the COGs and county transportation agencies, but he lamented the lack of broader transportation planning efforts. “The longer-term, larger questions of tying transportation into other issues, like air quality and goods movement, sort of drift along unanswered,” Neiman said. “What you get is a near-term focus on congestion relief.” Contacts: Max Neiman, Public Policy Institute of California, (415) 291-4400. Rick Bishop, Western Riverside Council of Governments, (951) 955-7985. Dan Landon, Nevada County Transportation Commission, (530) 265-3202. Michael Swearingen, San Joaquin Council of Governments, (209) 468-3913. Dan Christians, Solano Transportation Authority, (707) 424-6075. San Bernardino Associated Governments: www.sanbag.ca.gov

A state appellate court has thrown out the environmental study for the Cal-Fed Bay-Delta Program. The Third District Court of Appeal found that the study failed to identify what water would be used to carry out the program, did not consider reduced exports of Delta water, and failed to provide known details of an "environmental water account." What appeared to doom the environmental study was the document's lack of specificity about the source of water for Cal-Fed's environmental programs and improved reliability for urban areas. The study — a "programmatic" environmental impact report for state purposes and an environmental impact statement for federal purposes that the court referred to as the PEIS/R — did not have to provide precise water sources, the court ruled. "However," the court ruled, "because the program is premised on such water being available, the PEIS/R must include an analysis of the impacts of supplying such water, from whatever source. "Without such analysis, a proper evaluation of the program and its alternatives and mitigation measures is not possible," Justice Harry Hull Jr. wrote for the court. "Cal-Fed has approved a program requiring large amounts of water to fulfill its objectives without analyzing the environmental impacts of supplying such water. This will not do." Cal-Fed directors will ask the state Supreme Court to review the case. In the meantime, though, the Third District's decision has added to the growing number of questions about Cal-Fed. The joint state-federal effort both to address the ecological health of the Delta and to provide a more assured urban water supply has spent $3 billion over the last decade, but has few large successes to show for the expense. Many people inside and outside of government are questioning the entire program's structure (see CP&DR Environment Watch , October 2005). In 1994, 18 federal and state agencies with management or regulatory authority over the Delta signed a Bay-Delta accord. After six years of study, negotiation and planning, the state resources secretary in August 2000 certified a programmatic EIS/EIR and adopted the record of decision formally approving the 30-year Cal-Fed program. Naturally, litigation ensued in both state and federal courts. The chief opponents are agricultural interests, Delta irrigation districts and the Regional Council of Rural Counties, which comprises 28 Northern and Central California counties that receive most of the state's rainfall. Superior courts in Sacramento and Fresno counties upheld the environmental study and other challenged aspects of Cal-Fed. The Third District consolidated the state litigation and then overturned the lower courts on California Environmental Quality Act (CEQA) grounds. Justice Hull's 244-page decision is remarkably detailed. The ruling starts with a lengthy explanation of the state's plumbing system and Southern California's efforts to secure water from the Colorado River, Owens Valley and Mono Lake. The court addresses the legal and environmental issues surrounding the existing system. Hull then moves to the heart of the matter — whether the environmental study satisfied CEQA. One issue that surfaces repeatedly in the court's CEQA discussion is the level of detail required in a programmatic EIR, an issue that public agencies, lawyers and judges have struggled with for decades. The court clearly thought the environmental study should have been more specific about where the program would get its water. Under Cal-Fed's preferred alternative, environmental restoration efforts would need an additional 980,000 acre-feet of water in the first year alone. Additionally, exports from the Delta to Central and Southern California would increase by anywhere from 250,000 acre-feet to 900,000 acre-feet annually depending upon the amount of new storage developed and rainfall. Agricultural interests fear that most of the water will be diverted from farms. In defending the environmental study, the state argued that a first-tier EIR for a program needed only to recognize that water must be supplied and to identify potential sources. The state said the EIR described the potential sources in detail. But the court found such detail lacking. The EIR says the water will come from "willing sellers along the pertinent rivers and new storage," but goes no further, according to the Third District. "The PEIS/R does not provide any basis for the estimates of water that will be made available from willing sellers along the various rivers," Hull wrote. "On the contrary, a response to comments states that ‘the amount and source of water that will be transferred by willing sellers is not currently quantifiable.' Nor does the PEIS/R identify what new storage is contemplated." "In light of the overarching importance of water to the success of the Cal-Fed program, merely listing potential sources of water, indicating that the ultimate source determination will be made later, and deferring CEQA analysis of the need to provide water to the program violates the PEIS/R's basic informational purpose," wrote Hull, who noted that new water storage projects are very difficult to develop. "The PEIS/R attempts to forestall the inevitable battle over water allocation and storage, and the effects of such on the environment, by leaving the source of program water undefined." After dealing with water sources, the court then moved onto what might be the most controversial part of the ruling — an analysis of project alternatives. Under CEQA, an environmental study must discuss a range of alternatives for the proposed project or the project's location. The opinion provides a lengthy review of how Cal-Fed developed dozens of alternatives that ultimately where whittled down to four contained in the EIR. None of the four contemplated reduced export of Delta water because, the state argued in court, reduced exports would not meet all of Cal-Fed's goals, specifically a more reliable water source for Southern California. "But," the court ruled, "Cal-Fed's rejection of a reduced exports alternative is premised on the false assumption that, for an alternative to be feasible, it must meet all of the program's goals." Cal-Fed and the EIR assume that the program must provide for ongoing population growth, especially in dry Southern California. But the court refused to accept this approach as a given. " f there is no water to support the growth, will it occur as projected?" Hull posited. "Population growth is not an immutable fact of life. Stable populations have been established in such states as New York, Pennsylvania, Connecticut and Rhode Island. Inflow of new residents to California continues to exceed outflow because conditions in the state are conducive to population growth. One aspect of these conditions is the availability of water. However, as the state reaches the limit of available water and must seek other sources such as desalination, water will become more expensive to obtain and California's appeal will lessen." "Cal-Fed appears not to have considered, as an alternative, smaller water exports from the Bay-Delta region which might, in turn, lead to smaller population growth due to the unavailability of water to support such growth," the court continued. "Taking an assumed population as a given and then finding ways to provide water to the population overlooked an alternative that would provide less water for population growth leaving more for other beneficial uses." In the later reaches of its opinion, the court rejected the EIR's description of the environmental water account (EWA), which is intended to provide more water for fish. The court determined that Cal-Fed participants — one month before EIR certification — approved a framework that detailed how the EWA would work. The EIR did not contain this information but should have, the court ruled. The Case: In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings , No. B175020, 05 C.D.O.S. 8858, 2005 DJDAR 12079. Filed October 7, 2005. The Lawyers: For California Farm Bureau Federation: Brenda Southwick, (916) 561-5660. For Central Delta Water Agency: Dante John Nomellini Sr., Nomellini, Grilli & McDaniel, (209) 465-5883. For Regional Council of Rural Counties: James Wagstaffe, Kerr & Wagstaffe, (415) 371-8500. For California Resources Agency: Tom Greene, attorney general's office, (916) 445-9555.