The City of Stockton has successfully defended against a lawsuit filed by a developer whom the city cut out of two downtown redevelopment projects. The Second District Court of Appeal ruled that the developer, Civic Partners Stockton, LLC, could not pursue its lawsuit alleging breach of contract because the developer did not present the city with a claim for damages before filing suit. The city had signed two development contracts with Civic Partners, one for rehabilitation of the Hotel Stockton and one for development of a cinema. In May 2001, the city leased Civic Partners 65,000 square feet on the upper floors of the hotel, apparently for development of office space. Three months later, the city repudiated the lease and demanded that Civic Partners find a new use for the space. The city suggested senior housing, so Civic Partners moved forward with planning, designing and financing proposals for senior housing development. In January 2002, the city notified Civic Partners that Cyrus Youssefi and his company, CFY Development, would take over renovation of the hotel’s upper floors, the housing project and a tax credit application. Stockton Redevelopment Agency officials assured Civic Partners that the city would repay the company’s investment and overhead, and not undermine the hotel development contract. Civic Partners agreed to turn over its plans for the housing project, and a March 15 memorandum from Civic Partners to the redevelopment agency stated that the company understood that the city would assume a $800,000 loan to Civic Partners and would reimburse the company for expenditures after December 1, 2001, and that CFY would lease the first floor of the hotel to Civic Partners for 55 years. Apparently, city officials orally agreed to those terms, and Civic Partners turned over its plans, which the city then gave to Youssefi. However, the city did not pay Civic Partners’ costs or assume the $800,000 obligation. As for the cinema deal, the city terminated its agreement with Civic Partners after the company had already obtained a lease from Kirkorian Premier Theatres. Instead, the city signed its own lease with a different theater chain. Civic Partners sued the city, the redevelopment agency and Youssefi, alleging breach of the hotel lease by the city, breach of the hotel development agreement by the agency, breach of the cinema development agreement by the agency, and intentional interference with the development agreements by the city and Youssefi. The city and its redevelopment agency filed demurrers contending that Civic Partners had failed to present claims prior to filing the lawsuit, as required by the Government Code. Sacramento County Superior Court Judge Jeffrey Gunther rejected the demurrers, concluding that the requirement for submitting a claim did not apply because the lawsuit was based on contracts. The city appealed. A unanimous three-judge panel of the Third District Court of Appeal overruled the lower court and sustained the demurrers. The Government Claims Act (Government Code § 810 et seq.) requires that all claims for damages or money against a public entity be submitted within either 6 or 12 months, depending on the cause of action, and contain certain details. No lawsuit for money or damages may be brought until the public entity has been presented with the claim and has either acted upon it or been deemed to have acted. The Third District ruled that Judge Gunther “clearly erred” in determining that the Claims Act did not apply. The court cited , (1998) 64 Cal.App.4th 635: “‘In short, unless specifically excepted, any action for money or damages, whether sounding in tort, contract or some other theory, may not be maintained until a claim has been filed with the relevant public entity and either the public entity acts on it or it is deemed to have been denied by operation of law.’” Thus, Civic Partners was required to present a claim to the city, the court ruled. The developer argued that a February 19, 2002, letter and the March 15 memorandum qualified as a claim because they put the city on notice that litigation could result if Civic Partners was not paid. But the court was not convinced. “All of the correspondence between Civic and Petitioners amounted to negotiations either to mitigate Civic’s damages from Petitioners’ earlier breaches or for new contractual arrangements to replace the two development agreements and the lease,” Justice Harry Hull Jr. wrote for the court. The documents “did not notify Petitioners of the amounts Civic claimed to be owed or the basis for such debt and did not alert Petitioners that Civic intended to file suit,” the court ruled. “Thus, they did not serve the primary purposes of the Government Claims Act — to alert Petitioners of the need to investigate and to allow Petitioners an opportunity to decide whether the claims will be litigated.” The court did rule that the city should not be allowed to pursue a cross-complaint that it had filed against Civic Partners. If the city does pursue the cross-complaint, then Civic Partners may file “any defensive claims they may have,” the court ruled. The Case: , No. C048162, 05 C.D.O.S. 9415, 2005 DJDAR 12870. Filed October 4, 2005. Ordered published October 28, 2005. The Lawyers: For the city: Charles Reese, Wulfsberg, Reese, Colvig & Firstman, (510) 835-9100. For Civic Partners Stockton: Malcolm Misuraca, (925) 284-0840.

In a decision similar to other recent rulings, an appellate court has rejected an environmental impact report for a proposed business park in Santa Clarita because the project EIR’s discussion of water sources was inadequate. The decision marks the fourth time in less than four years that the Second District Court of Appeal has rejected a Santa Clarita-area EIR based on its consideration of water resources. In fact, the case at hand was decided in large part because of water supply uncertainty that was cast by the court’s earlier invalidation of an EIR for a water transfer from Kern County to the Santa Clarita area. The Second District ruled that the EIR for the business park did not adequately address the uncertainty of that water transfer. State lawmakers and courts in recent years have become more insistent that developers and local governments prove that water is available for growth. In Santa Clarita, slow-growth advocates have seized on the water-for-growth requirement as a way to fight development. Thus, the Los Angeles suburb is the birthplace for a growing body of case law — most of which is placing a greater burden on developers and local government. The case at hand involves Gate King Properties’ proposal for a large industrial park off the Antelope Valley Freeway. The City of Santa Clarita approved a 4.2-million-square-foot commercial and industrial development on 161 acres, with another 283 acres either donated to the city or dedicated as open space. The California Oak Foundation and the Santa Clarita Organization for Planning the Environment (SCOPE) sued the city. The organizations argued that the city was relying on State Water Project (SWP) entitlements that were uncertain, and that the EIR did not quantify the impact of perchlorate contamination on groundwater resources. Los Angeles County Superior Court Judge Dzintra Janavs ruled for the city. The environmental groups appealed, and a unanimous three-judge panel of the Second District, Division Eight, overturned the lower court. The opinion by Justice Paul Boland lays out the legal background. Five years ago, an appellate court invalidated the environmental impact report for the Monterey Agreement, which was intended to change how SWP water was allocated between agricultural and urban users ( , (2000) 83 Cal.App.4th 892 < > pcl>). The Monterey Agreement specifically permitted the transfer of up to 130,000 acre-feet of SWP entitlements from agricultural water contractors to urban users. Under the Monterey Agreement, Castaic Lake Water Agency, which serves the Santa Clarita Valley, purchased the rights to 41,000 acre-feet per year (AFY) of SWP water from the Kern County Water Agency. However, the EIR for the water transfer tiered off the EIR for the Monterey Agreement. In 2002, an appellate court invalidated the environmental study for the water transfer because the Monterey Agreement EIR had been decertified ( , 95 Cal.App.4th 1373 < > friends i>; see , March 2002). In subsequent years, courts threw out an EIR for the 2,500-unit West Creek residential and commercial project ( , (2003) 106 Cal.App.4th 715 ; see , April 2003) and rejected the EIR for the Castaic agency’s urban water management plan ( , (2004) 123 Cal.App.4th 1 < > friends ii>; see , December 2004, , November 2004). In the and cases, the court found that public agencies were relying on “paper water” — water entitlements from the SWP. Because it was never completed, the SWP typically provides only 50% to 75% of the water to which contractors are entitled. Thus, courts have refused to equate SWP entitlements with deliverable water. In the case at hand, the industrial park opponents’ primary contention was that the city relied on the 41,000 acre-foot transfer without analysis or discussion, even though the EIR for the transfer had been decertified. Gate King Properties countered that the EIR did indeed discuss the water transfer’s uncertainty and pointed out that the court did not halt the water transfer. Indeed, the Castaic agency has received at least a portion of the water annually for several years. The court rejected Gate King’s assertion about the EIR. In ruling for the project opponents, the court found the circumstances to be “strikingly similar to those in SCOPE, so far as the 41,000 acre-foot entitlement is concerned. The draft EIR gave ‘no hint’ that State Water Project entitlements cannot be taken at face value. When SCOPE pointed this out in its comments, the city did ‘little more than dismiss project opponents’ concerns about water supply.’” “The text of the EIR does not mention decertification of the EIR for the Castaic purchase, and does not discuss the fact that entitlements are not really entitlements, but only ‘paper’ water,” Justice Boland wrote. “We can only assume the city ‘concluded that it is likely that the 41,000 AFY will continue to be available,’ because the point is not discussed. Such an assumption, however, is impermissible, as it is antithetical to the purpose of an EIR.” The fact that Castaic is using the water in question does not matter because the water’s future availability is uncertain, the court ruled. Gate King argued that sufficient water supplies existed even without the 41,000 acre-feet in question. But the court found this argument flawed because it assumes Castaic will receive its longstanding entitlement to 54,200 acre-feet of SWP water — even though the EIR itself says the SWP can be expected to deliver 50% of entitlements 80% of the time. “In sum, without the 41,000 AFY entitlement, substantial evidence of sufficient water supplies simply does not exist,” Boland concluded. The court did find that the EIR’s analysis of perchlorate contamination on groundwater, which provides the majority of the area’s water, was adequate. The EIR relied on the perchlorate analysis in the 2000 urban water management plan (UWMP). Perchlorate pollution from a former munitions factory has forced closure of four wells and is an ongoing concern in Santa Clarita. “Gate King’s victory on the issue of perchlorate contamination, however, is pyrrhic,” Boland wrote. “Our decision to decertify the EIR, based on inadequate consideration of the water supply issues previously discussed, inevitably has the practical effect of requiring the city to come to grips with the perchlorate issue as well, because reliance on groundwater supplies will acquire additional significance if less imported water is available. And, while the city properly relied on UWMP 2000 conclusions on perchlorate contamination in its previous analysis, it will be unable to do so in any new analysis because of the invalidation of UWMP 2000 in .” Not surprisingly, the two sides differed on the impact of the ruling and how difficult it will be for Santa Clarita to remedy the EIR’s defects. Attorney Stephen Onstot, who represented the city, told the the ruling amounted to “a fix-it ticket.” “It’s a whole different than the appellate court saying, ‘Go back to square one.’ The court found only selected water-supply problems and said to have those problems fixed,” Onstot told the . But Roger Moore, of Rossmann & Moore, which filed an amicus brief for the Planning Conservation League supporting the project opponents, said of Onstot’s characterization: “Nothing could be further from the truth.” The court, Moore said, made clear that “the city needs to do an entire new water supply assessment grounded in reality.” The decision means “the water relied on to support local government decisions must be real, not ‘paper’ or illusory,” he said. Moore noted that the court, when discussing the issue of perchlorate, seemed to go out of its way to say that the city must re-evaluate all water sources. The ultimate result of the court’s decision, he said, was very close to the remedy that project opponents’ requested. The Case: , No. B175580, 05 C.D.O.S. 9565, 2005 DJDAR 13039. Filed November 2, 2005. The Lawyers: For California Oak Foundation: Babak Naficy, (805) 593-0926. For the city: Stephen Onstot, Burke, Williams & Sorensen, (213) 236-0600. For Gate Kin

Voters in Loma Linda could soon make decisions that greatly affect how the San Bernardino County city of 21,000 people grows. Referendums of two specific plans that call for a total of 2,400 housing units are likely to appear on the June 2006 ballot. And petitions for a general plan initiative are currently circulating. The ballot measures could limit development in Loma Linda. The referendums would block two mixed-use developments. The general plan initiative would mandate a mininum lot size of 7,200 square feet for single-family parcels and change into a number of "smart growth" provisions in a proposed general plan that is nearing adoption. The issues for the slow-growth advocates are primarily traffic and density. They fear that more residential units will jam the streets with cars, and that higher densities will ruin the city's atmosphere. "Uncontrolled high-density urban development would permanently alter the unique character of the city as a quiet university town surrounded by open spaces, including undeveloped hills, and agricultural and citrus producing lands," the group Save Loma Linda states in its general plan initiative petition. "Such development would also threaten the public health, safety and welfare by causing increased traffic congestion, associated air pollution, noise and higher crime rates." Loma Linda is unique among the many small- to medium-sized cities in the Los Angeles Basin. As the home of Loma Linda University and an associated health services center, and a large Veterans Administration hospital, Loma Linda is the only small city in the Inland Empire that qualifies as job rich. The workers and students push the city's daytime population to about 60,000 people, according to city Planning Director Deborah Woldruff. Additionally, Loma Linda is largely a Seventh-day Adventist community, as the university and medical center are operated by the Adventist church. The city also is one of the very few — along with neighboring Redlands — in the Inland Empire that has an active slow-growth movement. Loma Linda Mayor Floyd Peterson, a 15-year member of the City Council, said residents want everything: A big research university, a major and expanding medical center, a popular VA hospital — plus large-lot residences and no traffic congestion. "You can't connect all those dots," Peterson said. At the center of nearly every growth controversy for many years has been the South Hills, approximately 3,000 acres of largely undeveloped land that serves as the city's backdrop. Developers have eyed the hills enviously for years, but city residents and officials have held back the growth forces. In 1993, Loma Linda voters approved a ballot measure to restrict development in hillside areas to large lots ranging from 2.5 to 10 acres, depending on the slope. Measure B, which received 53% of the vote, also reduced the buildout of a 2,600-acre hillside area from 1,700 homes to 600. The city itself owns about 800 acres in the South Hills. "There is something about the hills," said Peterson, who originally ran for the City Council in 1990 to halt large-scale development of the South Hills. "A few people walk up there a lot. A lot of people look at them. When people look out their windows and see hills without any houses on them, it gives them a certain level of comfort." Not surprisingly, planning for the South Hills has been a major component of a general plan update that is now in its fifth year. The proposed general plan would permit up roughly 1,200 houses in the South Hills, mostly in clusters, with the bulk of the land remaining open space. In recent weeks, city officials have negotiated an alternative with South Hills landowners and some slow-growth advocates. The number of housing units would be about the same, but there would be general plan policies requiring density transfers and credits. The idea, Woldruff said, is to get landowners to give up areas so they may be preserved for open space. The City Council could make a decision on the South Hills and the entire general plan this month — after 18 workshops, 17 public hearings and 6 study sessions. "This is probably the most evaluated general plan in the history of Southern California," Woldruff said. Peterson said the alternative approach to the hills resolves the most contentious issue in town. But members of Save Loma Linda are not convinced. "I think the citizens of Loma Linda have a higher standard," Save Loma Linda organizer Jay Gallant told the Redlands Daily Facts . Exactly how the general plan initiative would address development in the South Hills is a bit unclear. The measure would appear to permit development of 5- and 10-acre parcels on the majority of the land, but the total number of new houses would appear to be less than half the number allowed by the city's new alternative. "The reality," Woldruff said of the initiative, "is you would probably have 10-acre ranchettes sprinkled throughout the hills in a way that no one would be able to enjoy the hills except for the rich." The initiative's city-wide 7,200-square-foot minimum lot size responds to a density issue that rose to prominence with the city's approval in October of the University Village and Orchard Park specific plans. The projects in total would place about 2,400 single- and multi-family housing units and 1 million square feet of commercial development on 300 acres. The projects would introduce new concepts to Loma Linda, such as mixed-use buildings and row houses. Lewis Operating Corps would develop University Village; a consortium that includes Holland Partners is behind the Orchard Park proposal. Peterson said the projects are exactly the sort of growth Loma Linda needs. "In California, we've got to get people closer to where they work," he said. But referendum supporters decry the dense developments, small lots and — primarily — the traffic that would come from the projects. Project opponents have suggested they might support about half as many housing units as the city approved, and possibly more commercial development on the site. Woldruff contended that traffic concerns are overblown and that congestion is unrelated to housing development. "Once rush hour is over, traffic disappears. You can drive almost unimpeded through the city," she said. Not so, says Save Loma Linda, whose website states: "The new general plan will add thousands of residents to our town and yet the study concludes that they can decrease daily car trips. We can only assume that the City Council expects all the new residents to ride the bus or ride bikes and walk around town." Whether voters find the driving to be smooth sailing could determine Loma Linda's growth for years to come. Contacts: Floyd Peterson, Loma Linda mayor, (909) 799-2810. Deborah Woldruff, Loma Linda planning director, (909) 799-2830. Save Loma Linda, www.savelomalinda.com.

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.